Examination of Witness (Questions 440
TUESDAY 17 FEBRUARY 1998
440. You suggest that before there should be
a prosecution of a Member for corruption, the consent of the Attorney-General
should be required. What particular reason prompted you to think
that, and do you think there is any risk that the Attorney, being
the holder of a political office, might be thought not always
to be acting wholly without political considerations in mind?
A. I would have total confidence in an Attorney-General
to recognise that he was exercising a public interest role completely
divorced from his political allegiance and in the presence of
a former Attorney-General I say that with added confidence. I
think that the public understand the Attorney-General does not
make decisions in his field on the basis of party affiliation,
but I think that his intervention is a valuable safeguard to make
sure that any risk that may exist of an ill-judged prosecution
is obviated. So I favour his consent as a high level safeguard.
441. Do you think there would be pressure on
him to lean over backwards in favour of permitting the prosecution
because it is desirable that he should not be seen to be favouring
A. No. I think the Attorney-General would do
his utmost to make a just decision on the merits of the case.
If there were thought to be doubt about this, then I suppose it
could be left to the Director of Public Prosecutions to give his
or her consent, but I think I prefer the intervention of the Attorney.
442. It is not unknown for the Attorney-General
to be accused of partisanship, is it?
A. No, it is not, but it is some years since
any accusation has been made with any semblance of justification.
I do not know which case you are thinking of. Is it 1929?
Lord Wigoder: I am not sure I have not made
the point myself in one or two cases!
Lord Mayhew of Twysden
443. Of course, the Director of Public Prosecutions
is "superintended", which is the statutory word, by
A. Quite, which means that if one gives the
power to the Director she is fully entitled to consult the Attorney.
I think one either has to have confidence in the Attorney-General
or abolish the office or change it. I have confidence in it and
I think anybody who has any knowledge of the system shares that
444. One of the matters which naturally causes
some concern is that if the criminal legislation is to apply to
Members of Parliament, one could have the situation where a criminal
court is required to consider in detail not only what a Member
said or did in the House but why he did it. One could have the
situation where that could apply equally to other non-charged
Members. For example, if it is suggested that Member A was bribed,
in his defence he might wish to give evidence as to what he did
and why he did it and, indeed, part of that might involve him
having had discussions with other Members whom he also would wish
to call as witnesses in his defence. In his evidence to us the
Home Secretary said that he thought that if there were ever a
case in which a Member was charged with corruption which involved
activities in the House, then when the matter came to court the
judge conducting the trial would ensure there was a very narrow
frame or focus of the issue and would be alive to the need for
there not to be a general excursion into the Member of Parliament's
conduct. Do you think judges would be comfortable in seeking to
control the width of investigation of parliamentary activities
in the course of a criminal trial?
A. I would not be entirely happy with what the
Home Secretary has said, as summarised by you. In any trial, and
most of all in a criminal trial, no evidence is admissible unless
it is relevant, but if it is relevant, i.e. it tends either to
establish the charge or rebut it, it is very difficult to exclude
it and it can only be done on strong and recognised grounds. The
decision as to what evidence is adduced in a criminal trial does
not rest with the judge so far as the prosecution is concerned,
it rests with those acting for the Crown. So far as the defence
is concerned, it rests obviously with those acting for the defence.
Of course, if one party or the other objects to certain evidence
and says, "This is irrelevant and inadmissible", the
judge will have to rule, but I do not think it would be safe to
approach this matter on the basis that the judge will be deciding
what evidence is called or what is relevant. Basically that rests
with the prosecutor or the defence and, as I say, it is very difficult
to exclude evidence which is relevant either to proving guilt
or establishing innocence or throwing doubt on it. I do not think
the Committee would be wise to go into this on the basis that
the judge will be exercising a role different from that that he
exercises in any other criminal trial.
445. One of the suggestions that has been put
before the Committee is that if charges of bribery were raised,
then a Committee of one of the Houses should consider it initially
and in certain circumstances decide, perhaps on the complexity,
the matter should go to the criminal courts; in other less serious
cases not. One of the comments made on that type of approach is:
that for a decision to be made by a Committee or maybe by the
whole House on whether a matter should be referred for further
investigation to the police or whoever, it would be difficult
for the Committee or the House to make a decision even at a prima
facie level without running the risk of prejudicing the fair
trial of the accused, if one ever were to take place. Have you
any comment to make on the practicability of some sort of procedure
of that sort having regard to the need to ensure a fair trial?
A. Yes, I think there would be that risk. Presumably
if the House were to investigate whether there was a case against
the Member, it would have to pay attention to the reasons given
by the Member as to why there was no case or why there was a case
that should not be referred to the police, and this would involve
a form of preliminary trial which could only be damaging, I would
have thought, to the Member if the decision is that it should
go to court. I think one has to distinguish very sharply between
allegations of criminal conduct and allegations of misbehaviour
falling short of that. One has a parallel in financial regulation
where it is often said, "Why isn't this conduct or that conduct
dealt with on a regulatory basis? Somebody could be disbarred
from acting in a certain capacity and we could save great expense,
time and effort at these human criminal trials that go on for
months", which in my view is all very well up to a point
but if the conduct is criminal then I think it should be dealt
with in that way and I would feel the same in this particular
446. Can I move on then to a different subject,
namely, subpoenas. One view which is espoused is the one which
you have favoured, that in general Members of either House should
not be exempt from the obligation to attend and produce documents
or give evidence as witnesses in the ordinary way. If that view
is adopted, then one has to find some adequate practical procedure
to ensure that when there is really a clash of commitments, the
answering of the subpoena does not cause what might be quite serious
consequences through the absence of the Member from the House
or from a Committee. You might say, "Well, that is primarily
a matter for the parliamentarians to solve", but have you
got any suggestion as to how one can minimise the risk in practice
of such clashes? I would anticipate that if there were such a
difficulty, judges would be accommodating so far as they are able,
but one is left, if the matter stays there, without any really
satisfactory fall-back position whereby the Member without the
consent of the court could find himself having to absent himself
from what could be a critical Division.
A. I would think it wholly inconceivable, if
a Member of Parliament were subpoenaed to give evidence at a trial
and wrote to the court to say, "I have pressing parliamentary
business at such-and-such a time so please make arrangements so
that I need not attend to give evidence at that period",
that the judge would not accede. It is not an unfamiliar position.
I simply cannot imagine that any judge would say, "Nonsense,
you must attend at such-and-such a time or else." If a Member
of Parliament were expected to be giving evidence for a very long
period of days or even weeks, which on occasion I suppose could
happen, then I would expect that to be drawn to the attention
of the court at the pre-trial hearing and the hearing would be
arranged during the recess or at some point when it would not
conflict with attendance at Parliament. If it were desired to
have some sort of formal procedure to deal with the problem, then
I would think a request by the Speaker or the Lord Chancellor,
asking that the Member in question should not be required to attend
at a certain period because of parliamentary business, would be
a satisfactory mechanism for dealing with this. As I say, I simply
cannot believe it could ever be a practical problem.
Lord Archer of Sandwell
447. There is a difficulty in that one cannot
always predict very far ahead when one is going to be needed here.
Sometimes you are actually told on the day there is going to be
a vital Division which really no one had foreseen. I can understand
that a telephone message to a judge would normally lead to his
saying, "Well, we can fit this one in tomorrow", but
I can imagine a situation in which it is absolutely vital to finish
the case today. I wondered whether the Lord Chief Justice would
agree that there might be a case here for some kind of formal
procedure and that it might have to be a formal procedure which
involves the use of a telephone?
A. Yes. I understand that a crisis could arise
at very very short notice and a Member could suddenly find him
or herself obliged to be in the House. Quite a lot of the hours
during which the courts sit do not overlap with the hours during
which Parliament sits or the hours on the nights on which governments
fall are not those during the normal course of sitting. I do understand
this and I have no objection to the telephone or a fax message
or a telephone message saying, "I simply cannot be there".
448. I was not thinking so much of the Royal
Courts of Justice as a subpoena to attend in, say, Newcastle-Upon-Tyne.
A. Again, I do not think it would be at all
difficult to devise a mechanism for the Speaker to say, "Mr
X, the Member for so and so, was required to be in the House at
such-and-such a time. Please would the court not require his evidence
during that period", and a fax through to the court would
be effective and given effect.
449. If we did have a situation where Members,
unless they had a good excuse, would have to accept a subpoena,
would the same apply to jury service?
A. No, I would favour retaining the existing
exemption from jury service.
450. Can I move on to codification, with the
advantages of accessibility, clarity and, one hopes, lack of technicality
where at the moment there is much technicality, but with the disadvantages
perhaps of inflexibility. On balance, as I understand it, you
would favour an up-to-date modern code. The interpretation of
statutes is, at any rate in general, pretty exclusively the role
of the courts. If there were to be qualifications and if the Judicial
Committee were to have the sort of role that you suggested, would
you envisage that the interpretation of this statute should be
made expressly the subject of jurisdiction in the Privy Council
A. I do not think the suggestion I make for
involving the Judicial Committee of the Privy Council is in any
way dependent upon the existence of a code or the absence of a
code. My own view in every field of law really except one is against
codification because of its constricting effect on the development
of the law case by case. The one exception is criminal law because
it always seems to me right that somebody should, if they want,
be able to go to a document and look and see what conduct is prescribed
as criminal, and the arguments that exist in favour of developing
the law so that it accords with changing conditions do not seem
to me to apply in anything like the same force to crime. Unless
you can clearly discover at the time you do something whether
it is criminal or not, it does not seem to me fair that a court
after the event should say, "Well, unknown to you and despite
the fact that this has never been so decided before, this was
actually criminal all along". One could take as an example
the Ladies' Directory case where my memory is the House
of Lords decided by three to two that conduct was criminal and
it would be very difficult for the defendant in that case to have
known at the time that he did it whether it was criminal or not.
We are not dealing in the case of contempt with criminal conduct
but we are dealing potentially with cases that have a severe effect
on those who are involved and may involve a penalty. For those
reasons it seems to me desirable in principle that the rules should
be made clear. If my suggestion concerning the Privy Council were
to find favour then in the case of dispute it will be the Privy
Council that would rule.
451. So far as contempt of Parliament is concerned,
I wonder how far a statute would be able to clarify the edges,
because insofar as contempt of Parliament may be regarded as all
forms of activity which improperly interfere with either House
carrying out their functions, either one is more specific, in
which case one is unacceptably limiting that which is the subject
of a contempt of Parliament, or one would leave the statute drafted
in a generalised form, in which case its application in any one
particular set of facts might still give room for doubt. Are you
envisaging that in that particular field something very detailed
would be needed?
A. I think I would envisage that certain specific
acts such as the intimidation of witnesses who were giving evidence
to a Select Committee or an attempt to interfere with witnesses
should be specifically mentioned, but I would accept that there
would undoubtedly have to be some more general sweeping up provision
that would embrace kinds of conduct which were not the subject
of specific mention. That, however, is a very familiar legislative
technique and even if there were a general provision, it would
be better than nothing.
452. Let us move on to those situations where
one or other of the Houses or officers on behalf of the Houses,
either a corporate officer or others, may become involved in litigation.
The litigation may arise out of contracts, contracts of employment,
or the litigation may also arise in some circumstances in tort,
personal injuries, which again may arise out of contracts of employment
or not out of contracts. I think the general feeling would be
that in litigation of those characters it is not satisfactory
for the ordinary rules of the Supreme Court to be inapplicable,
but that does mean, of course, that in some circumstances there
might have to be produced in court documents or even oral evidence
given of matters which plainly fall within Article 9, the content
of the minutes of a Committee or evidence of what happened in
a Committee; and so one again has to strive to find a boundary
line between those types of claims which should not be within
the scope of Article 9 and those which remain within. Such is
the width of the possible ambit of litigation that it is very
difficult to find an adequate dividing line. Can you help at all?
A. I think that I would favour the test of relevance
which is, after all, the test which is applied to disclosure in
any civil proceedings. If the documents were not relevant then
they would not have to be produced. If they were relevant it would
seem hard to see why they should not be produced unless they fall
within any established exemption.
453. I did not make myself clear, I am sorry.
In ordinary litigation between two members of the public a question
might arise concerning something that had been said in the House.
In the ordinary way if there were any question of looking into
what was said and why it was said that would simply not be admissible
in the court proceedings. So there is one type of litigation where
Article 9 prevails. There are other types of litigation where
the general feeling is that Article 9 should not prevail and I
gave some examples. What I am concerned to do is to identify the
boundary line between the types of litigation where, on the one
hand, Article 9 would prevail and, on the other hand, exceptionally
it will not.
A. I do not know if this is very helpful, but
I think I would draw the dividing line at the point where the
proper functioning of Parliament is hampered. If it is, then something
should be on the protected side of the line. If it is not, then
it should be on the open side of the line. But I think that should
be the test however difficult it may be in a given case to apply
454. You were asked a general question about
whether there were any areas of law or practice where you thought
the existing relationship was unsatisfactory between the courts
and Parliament and you mentioned just three areas. First, you
expressed the view that the sub judice rule should possibly
be clarified. Can you help us at all on what you had in mind?
A. Yes, I think it is often understood too narrowly.
I think there is quite often the view that if something is the
subject of a pending trial it simply cannot be mentioned at all
and the rule is that nothing should be said which could affect
the outcome of the trial, in particular a review about the merits
and the rights and wrongs of the matter. That should not, for
example, prevent an account of where the action has got to and
what the parties respectively are contending or what the issue
is. I may be wrong about this but I think in the minds of many
people there is an understanding that the rule is much wider than
I believe it to be.
455. And then you mentioned, if I may say so,
somewhat elliptically that certain procedures affecting judges
could perhaps be reviewed.
A. Yes. From time to time, as you very well
know, judges have to give decisions which they know will be extremely
unpopular and the fact that they are unpopular does not necessarily
mean that they are wrong and it certainly does not mean that they
should not be giving that decision, but it does sometimes prompt
motions, particularly in the House of Commons, that the judge
should be removed and none of these motions I think progress but
they do cause very considerable worry and anxiety to the judges
involved until such time as the motion fades away. I distinguish,
of course, an address of both Houses which is seriously concerned
to remove a judge who has fallen down on his duty in a very serious
way, but I think these brief efflorescences of criticism are undesirable.
456. What do you suggest should be done about
A. I would imagine that it would be perfectly
possible for the House simply to have a rule excluding this kind
of motion unless certain safeguards were satisfied. I know various
judges who have been the subject of these motions and they have
been very upset until somebody tells them they probably do not
need to worry.
Lord Mayhew of Twysden
457. It is rather a paradox because my understanding
is that it is a rule of the House that you cannot criticise a
judge in debate in the chamber on the floor of the House; and
yet this does not appear to apply to an Early Day Motion, for
example. You can achieve conformity and consistency either way
when dealing with that. It is not altogether clear to me why elected
Members of Parliament should not be able to express criticism
of a judge from time to time. It would happen extremely rarely.
There are considerable grounds for criticism which may have come
to an individual Member of Parliament's notice on behalf of his
constituent, i.e. if a judgment has been unduly delayed, to take
a topical illustration. I am very against unfair criticism of
anybody, but I am very wary of rules that prevent anybody in public
life being criticised.
A. I am inclined to support the existing rules
on the basis that the system works best if there is mutual reticence.
I have no doubt that, if Members of Parliament were more free
in their criticism of judges, then judges would be tempted to
become more free to criticise Members of Parliament. I think that
is totally undesirable. I think a tradition of mutual reticence
probably serves the country best.
458. Lord Chief Justice, we are very grateful.
We have asked you a lot of questions. Is there anything you would
like to say to us either arising out of the questions or quite
generally before you leave us?
A. No. That is the shortest answer of the day!
459. May I repeat our appreciation of you for
coming here today and giving us your assistance this morning.
Thank you very much.
A. Thank you.