Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 391 - 399)




  391. Lord Chief Justice, may I say how much we appreciate your coming here this morning to assist us in carrying out our review of the law of parliamentary privilege. We are very conscious that among the matters encompassed by our review are some fundamental features of this country's constitution, namely the relationship of Parliament and the courts and the boundary between their respective jurisdictions. We are grateful to have the benefit of your special expertise and the judiciary's perspective on these matters. Thank you also for responding to the issues by putting your thoughts in writing. It is common ground that in order to discharge their public functions Members of the two Houses need certain rights and immunities, such as freedom of speech. That at once raises the question: in the event of a dispute over the existence or extent of a right who is going to decide it? It is going to be the courts or Parliament? At the moment in practice, maybe in theory as well, there is a concurrent jurisdiction in the sense that if an issue arises in the course of proceedings in the courts over whether a particular matter entrenches upon Article IX the courts decide that issue. On the other hand, if the issue arises in the course of some activity in Parliament, for example whether or not a particular activity was an infringement of the rights of a Member of Parliament, in practice that is decided by Parliament. So far as I am aware, for many years a decision by Parliament along those lines has never been challenged in the courts. Pausing there for a moment, is the present concurrent position satisfactory in your view?

  (Lord Bingham of Cornhill) I have never known it give rise to difficulty. I suppose if there are no problems one can say that the situation is satisfactory. I have had some concern that, if one had a situation in which Parliament decided that something was a proceeding in Parliament and there was a desire to challenge that, there was no means of doing so. You say, and I have no doubt you are right, that Parliament's decision on the subject has never been challenged. I think most people would imagine that it could not be. I suppose I would confess to an element of surprise that it could be. If the court decided that something was or was not, clearly its decision would be subject to further review on appeal. I would feel that a decision by Parliament should have some avenue of appeal and I made a suggestion as to how that might be done in what would seem to me perhaps to be the most harmonious forum available, a forum clearly of enormous weight and authority. But I cannot pretend that I think this is a problem of great practical import because, as I say, I have never known it give rise to difficulty.

  392. But these days, in the climate of the times, many practices which were accepted are challenged. People are much readier, as we all know, to take issues to the court than they were even 25 years ago.

  A. Yes.

  393. So one perhaps needs to clarify one's thinking on whether it would be open to somebody to go to the law courts and say , "I am an outsider. Parliament has held that I am in contempt of Parliament because of this, that and the other. Please, court, that is not the position." You have made the interesting suggestion of an application to the Judicial Committee of the Privy Council.

  A. Yes.

  394. I wonder whether we can explore a little bit how that would work. For example, if the issue of the boundary of Article IX were to arise in the course of proceedings properly brought in the law courts, are you thinking that at that point that issue would then be referred by the courts to the Judicial Committee?

  A. It certainly could be. It would need some machinery to achieve that result but I would think that was preferable to a decision taken at a lower level and then working its way up the hierarchy until you got a decision ultimately given by much the same people who would give it if there were a reference to the Judicial Committee. I would have thought one could make a tenable case for an issue of constitutional import of that kind being referred straight to a body in my view pre-eminently suited to deal with it.

  395. And the same could happen if the issue arose in the course of some parliamentary proceeding, that one of the Houses of Parliament could refer the matter for decision to the Judicial Committee?

  A. Yes. I would envisage either House making its own decision and any party who did not accept that decision having a right to petition the Judicial Committee by way of challenge. I certainly would not seek to suggest that the House should be prevented or in some way shut out from making the first decision.

  396. This would be of course a novel departure, and one always asks oneself what is the mischief one is seeking to cure, what are the risks involved in the change, what are the advantages involved in the new departure. Could you summarise how we would respond to such a tripartite question?

  A. Yes, certainly. I have an inherent unease at a situation in which anyone can be held to have committed what I think you might call a quasi-criminal offence and perhaps subjected to some penalty where there is no means of challenge at all. Of course one does get this position in the courts. A judge may find that there is a contempt of court that has been committed and impose some penalty. But there is always an appeal as of right so that anybody who says, "This simply is not a contempt" or somebody who says, "Well, even if it is, this penalty is quite disproportionate", can challenge that decision. I am always rather uneasy if any decision by anybody, however wise and authoritative, is final and immune from any challenge, and therefore the reason why I think it would be desirable to have a route of challenge available is simply to eliminate that situation. I would not expect the right to be exercised at all often, and I would be surprised if the primary decision-maker, namely either House, were disturbed at all frequently; it certainly would not be disturbed at all readily. I just think it is better to enable people to challenge an adverse ruling, in anything other than a domestic context of course.

  397. That leads on to another feature of parliamentary privilege, which is the Houses' exclusive cognisance of their own procedures. You have expressed the view that it was right that both Houses should have the primary responsibility for regulating their members and also members of the public in relation to the conduct of parliamentary business.

  A. Yes.

  398. But again, consistently with what you have just been developing, that the Houses should not be the sole and final arbiter in such matters. In respect of some aspects of procedure you may think that the Houses do need to be the final arbiters, for example, if a question were to be raised over whether a Bill had undergone the proper steps leading to Royal Assent. That is regarded as a matter at which the courts will in no circumstances look, even if there is an allegation of fraud. On the other hand, another aspect of exclusive cognisance is the ability of the Houses to punish outsiders who are in contempt of Parliament. One perhaps instinctively more readily feels that it is the latter type of case foreseen in the point that you have been developing. One then has to ask oneself: is there going to be a boundary line between those activities where the House indeed has the last word and those where it does not, and on what principle is that boundary line to be defined? Can you help us?

  A. I would have absolutely no doubt that the first position should be maintained. I would not contemplate for a moment that there would be any question of inquiring into the procedures which led to the enactment of legislation or a ruling on whether there was adequate time for a debate or anything of that sort. I would exclude that from any review by anybody anywhere. The case which I did have in mind was that which you came on to mention, where a member of the public or a Member is being punished for something which is held to be a contempt. I do not myself think, although I may be grossly over-simplifying the situation, that it should be too difficult to distinguish between the two situations. I have not got a formula at my fingertips which would enable me to produce a litmus test which would say yes in one case and no in the other. I suppose the point at which I would draw the line would be at a point where some decision was being made adverse to the member of the public or a Member, which either involved some penalty or at any rate some adverse conclusion as to his or her conduct. I think the two situations you have described are quite different and I cannot believe it should defeat the Committee to find a formula that would distinguish one from the other.

Lord Wigoder

  399. This would be a right given both to the Member and the non-Member?

  A. Yes, I think so. I think it is obviously more needed in the case of the non-Member but I would think it right to have it for the Member too.

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