Examination of Witnesses (Questions 500
TUESDAY 24 FEBRUARY 1998
500. It certainly does not.
(Professor Bradley) Equally it could not be taken
away. Let us suppose an unpopular Member of Parliament has said
defamatory things in Parliament and none of the parties wished
to be identified with this, a majority of the House might wish
to see this member stung for damages of hundreds of thousands
of pounds but there is nothing the House can do about it.
501. Would not the House doing something about
it be retrospective anyhow?
(Professor Bradley) I would be very unhappy if there
502. It would have to be because he has already
(Professor Bradley) Yes, it would have to be in that
case. My Lord, I do not propose to take up time saying how much
I concur with those many who spoke in Parliament against what
is now section 13. I do believe a numberonly one has been
mentioned so farof very important reasons have been passed
by and I hope the Committee will give this priority attention.
(Mrs Leopold) I think there is a problem because Parliament
itself says to MPs, "Don't come bleating to us if people
defame you, go to the courts." That was really the effect
of the resolution in 1978, they are more or less saying, "Don't
complain that the press are criticising you or saying nasty things
about you", and then there is this difficulty. But then you
could say, "That is really perhaps what you have to accept
as an MP". Or, if you are going to keep it, it must not be
for the individual member. There is the potential mess to be considered,
and also the conflict. A potential conflict between Parliament
and the courts, I think, is set up in section 13 because section
13 does not stop Parliament itself saying, "Actually, we
think what this newspaper said about this MP is contempt of Parliament.
We are going to bring our own investigation about it at the same
time." Meanwhile the court action is brought. I think there
is a great potential for conflict created there and that, I think,
is what Parliament wants to avoid.
(Professor Bradley) On my reading of section 13, it
is not just a member who may waive this but any person, which
would include Mr Ian Greer in the particular case of the Hamilton-Greer
libel action. It seems to me extraordinary how a person outside
Parliament can be entrusted by Parliament with waiving a privilege
Sir Patrick Cormack
503. Never a better illustration of hard cases
making bad law!
(Professor Bradley) Absolutely!
504. Before we come on to the slightly different
area of exclusive cognisance or exclusive jurisdictionI
will skip that for a moment and come back to it, because it is
importantthere is the question of judicial review. Your
memorandum, Professor Bradley, concludes that Parliament need
not be concerned at developments in judicial review. Is there
a risk that the courts and Parliament could find themselves considering
the same matters from different viewpoints and reaching conflicting
(Professor Bradley) In my answer to your question,
my Lord, I will endeavour to keep within the remit of this Committee
and not get into this enormously interesting subject, for most
of us who either practise or teach administrative law, of where
the boundary should be drawn between courts and government. What
I was trying to indicate in my paper was that in fact aspects
of executive power are exercised in Parliament. When delegated
legislation is being made, the court may look at the consequences
of the procedure in Parliament or the content of the delegated
legislation and find it is ultra vires because the procedures
have not been properly followed. I did discuss in my paper the
practice which I believe has been widespread certainly for 20
years or so, that if there are judicial review proceedings and
if there is a statement in Parliament that is relevant to them,
then the court may look at it. Before 1980 it was necessary for
the party that wished to look at Hansard to petition Parliament
to get special permission, but since 1980 it has not been necessary.
So therefore while the aim of the judicial review proceedings
is not to question what has been said in Parliament but to question
the minister's decision, nonetheless the court may read what that
minister has said in Parliament about that decision. I would find
it very difficult to accept that given the development of administrative
law we have, and indeed taking account of commonsense, the minister
should be able to prevent a court from looking at something he
has said in Parliament about a controversial decision. I cannot
believe it would be in the public interest to have a technical
barrier to that. This indeed has been confirmed by the House of
Lords in Pepper v Hart. The question is whether Parliament
and the courts may find themselves considering the same matters
from different viewpoints. Well, indeed, my Lord, they can do.
At great risk of taking the Committee into a complex area which
I would prefer to remain outside, the Maastricht Treaty was an
example of where Parliament for days or weeks had been debating
the Maastricht Treaty and the variants of British adherence to
that, and then that was followed by proceedings in the courts
brought by Lord Rees-Mogg. My explanation of that is that nearly
all the points which were relied on in those judicial proceedings
were questions of Community law, rather technical questions as
to whether the parliamentary proceedings in Britain had actually
given effect to the required matters of Community law. Therefore
you found that Parliament had been considering the Maastricht
Treaty for weeks and then the High Court had to consider it. It
did not take the High Court weeks because in fact they had to
deal with three precise points upon which the application for
judicial review was based and rejected them all. In that case
there was not a conflict in the conclusions reached, but I can
imagine situations in which the House as a political body may
be happy with the decision a minister has made but, nonetheless,
the court in judicial review may be unhappy on a particular point
of legality. It seems to me, unless parliamentarians accept that
and I believe they do, we would then be in at the making of a
series of new conflicts between, shall we say, the elected House
and the courts if the elected House wishes to say that the courts
had no business to be ruling on the legality of ministers' decisions.
This has to be accepted and it would be, I think, a very unfortunate
step if there was a backward step taken.
(Mrs Leopold) If we look at two of the most recent
decisionsone in the Northern Ireland High Court in October
1997 in McGuinness13
and one on the Parliamentary Commissioner for Standardswe
find that in both those cases the courts have very decidedly said
that this is internal to Parliament; in support of the idea that
there were areas they would not get involved in. I think the boundaries
of judicial review are such that none of us can say exactly where
they will be in ten years' time.
505. Can we come to the exclusive jurisdiction
of the House? It is the practice of the two Houses to ignore Health
and Safety at Work statutes, licensing statutes, planning procedures
and so forth. Is it right Parliament should be able to do that?
(Mrs Leopold) I think ex parte Herbert16 
is wrong. I think the decision is wrong there. It is contrary
to an earlier decisionWilliamson v Norris 17on
licensing. I think it is simply wrong and I think it is a shame
506. There should be a presumption that the
statutes apply to Parliament unless Parliament has expressly excluded
(Mrs Leopold) I think so, yes.
(Professor Bradley) I would not go quite as far as
Mrs Leopold in saying categorically that the Herbert decision
was wrong. What I would point out is that it was taken by Lord
Chief Justice Hewart who is not renowned, I think, among 20th
century Lord Chief Justices for his brilliant legal analysis.
Another argument which did arise in ex parte Herbert is,
if I am right, is the Palace of Westminster a royal palace? It
therefore may not, for that reason, be subject to a great deal
of legislation. There is, as the lawyers here will know, a presumption
that the Crown is not bound by legislation unless it is expressly
enacted or by necessary implication bound, and it would seem to
me one could justify the Herbert decision possibly on that
basis. But I totally accept that this is in many ways out-dated
and if, for example, health and safety problems arise because
Health & Safety legislation does not apply in Westminster,
I believe it should apply. On the question of the corporate officer
and the problem the corporate officer has had in litigation over
his contracts which have been entered into, I agree with Mrs Leopold
that these are not related to essential interests for which Parliament
should be exempt.
Lord Archer of Sandwell
507. Would Mrs Leopold and Professor Bradley
suggest that we legislate to say that or we leave each case to
be decided by the courts as it arises? Or would we ourselves say
that it is part of our exclusive jurisdiction?
(Professor Bradley) I have mentioned the Zircon case
already and an attempt was made by the Attorney General to get
an injunction against the showing of the Zircon film in a Committee
room in Westminster. The court had no difficulty in rejecting
that application and saying that the matter was properly within
the exclusive jurisdiction of the House. It was a Committee room
of the House, and I imagine control over who can use rooms and
accommodation is a matter exclusively for the House and I see
no reason for the court interfering. If we think about other aspects
of exclusive jurisdiction, it would be over such matters as what
was the result of the vote on Second Reading last night and if
there is a conflict of opinion as to whether some member was counted
through twice or not. That must be a matter, surely, for the House
to resolve in its own way? It would be quite wrong for anyone
to go off to the courts and start seeking a declaration that a
particular stage of legislation had not been properly carried
through. Equally, and I know this is trespassing on ground already
covered, in the disciplinary function. My answer I think about
the implications of ex parte Herbert is that it is essential,
surely, that Parliament should know which legislation applies
to its premises and which does not? How you achieve that is a
matter for some discussion. I am not certain whether it is necessary
to declare each House has exclusive power over its own procedures
and so on. That might be so well established in law and the custom
of Parliament that it is not necessary to state it.
508. Just a clarification, you referred to the
fact that certain situations may derive from the fact that this
is a royal palace. We do distinguish already between royal palaces
which are currently really royal palaces, the five occupied royal
palaces, and the rest, which are the responsibility of the Department
of Heritage, are historic royal palaces. Therefore, would it not
be very simple in law at least to confine the damage of non-protected
privilege of the law to just differentiate between the two of
them in terms of protection from legislation?
(Professor Bradley) I see no problem and it would
be very easy to provide. I regret I am not an expert in what the
licensing practices of Westminster are today but it would surely
be possible to find a similar answer to that problem. I am bound
to say that while it may be that the Herbert decision would
not be made in identical terms today, I am not sure what was the
harm which resulted from it.
(Mrs Leopold) It certainly was not followed in Australia.
Australia did not follow that case. The other area is, what is
the position about European Community law?
(Professor Bradley) We are not able to ask questions
here except of a rhetorical kind!
(Mrs Leopold) I apologise, my Lord!
Lord Mayhew of Twysden
509. European Community law is part of our own
(Mrs Leopold) Indeed. Does it overrule Parliamentary
510. It is part of our own domestic law under
section 2. I suppose the broad answer is yes. I would like to
ask one question apropos of that. Is it appropriate to require
that the legislature should ask a branch of the judiciary for
an extension to its licensing arrangements? Is there not here
some built-in conflict between the judiciary and the reasoning,
Hewart having gone as he did?
(Professor Bradley) I do not believe it is a serious
matter on which to base a more general discussion, and I say that
as an admirer of Sir Alan Herbert and his writing.
511. Mrs Leopold, are there any further matters
arising from media and broadcasting issues on which you might
be of help to us.
(Mrs Leopold) They did make representations, my Lord,
at the time of considering broadcasting. There were representations
from the various media then. It may well be that the law is working
satisfactorily. My point againperhaps the answer is that
it does not matter if it is all illogicalbut a lot of it
is illogical in terms of the protection which does exist. I mentioned
the reporting of "criminal words", as a shorthand. We
happen to have protection in the Public Order Act 1986 (s. 26)
for criminal words: incitement to hatred said in the course of
proceedings of Parliament. Those happen to have a statutory protection,
partly because somebody only thought about this when the second
Race Relations Act was going through, so protection was given.
Is there any reason why they should have a statutory protection,
but the reporting of what would amount to contempt of court does
not? It seems that there was a statutory opportunity and that
is the way our legislation works a lot of the time: an opportunity
comes and you use it. However, there does seem a certain amount
of illogicality in saying that this can be protected but for contempt
of court we have to see whether the courts would produce a defence
or not. I suppose, just drawing attention to that fact, that there
are quite a lot of anomalies which have arisen because problems
have been seen and have been dealt with at one point. Whether
this Committee is the right place to try to put any of those right
I am not sure, but I think there are a lot of anomalies that exist.
If we take the position with the Early Day Motion and Re Z,
I understand there was quite a lot of concern in newspapers that
some newspapers took the opportunity to publish the names and
said, "We are reporting Parliamentary proceedings."
Other newspapers took the view that as a law was likely to stop
them, they should not. I do not know whether the ones who did
not were annoyed that there were no actions taken against others,
but it is an uncertain situation.
Chairman: May I say a word to my colleagues,
please. We have two witnesses here, who are people who have obviously
gone into great depth into almost everything we have been considering
so far. If any of you have any further questions which you would
like to raise, it would be a very good and rare opportunity to
do it now.
512. May I raise an issue which is constantly
on my mind, as I sit here learning. Parliamentary procedures are
pretty esoteric and over the years people have absorbed them.
I made it an aim in my life as an MP rarely to ask questionsif
at allone did it better by writing a letter to the minister
and getting longer information. On one occasion I answered a question
and I wrote two letters, one telling the truth and one not telling
the truth. An airman's wife had written complaining that her husband
never served near home. Why was it? I wrote one letter saying,
"exigencies of service" and another letter saying, "This
man always says, `I do not want to live near my wife ever again.'"
So there were two letters: the question of letters from a minister,
sent on via a Member of Parliament. I see that those ought to
be covered by Parliamentary privilege. They are more extensive
than questions. Therefore, they ought to be protected not by qualified
privilege but by absolute privilege. Would you agree?
(Professor Bradley) I believe there was a strong case
for this in 1957 at the time of the Strauss case. Indeed,
that was the view of the Committee of Privileges. That strong
case is still there. However, we have had the last 40 years in
which the qualified privilege of common law seems to have enabled
members of both Houses to carry out their functions satisfactorily.
In law there is quite a considerable difference because one would
be very foolish to try to sue in a matter which is plainly covered
by absolute Parliamentary privilege. However, if it is only covered
by qualified privilege, then one might say that there is evidence
of malice and one has a chance of succeeding. There is, in law,
a very big difference between those two; but whether, in fact,
Members of Parliament are subject to these types of action arising
out of what they have done for constituents, I simply do not know.
513. I spoilt my story just now by not saying
that the Member of Parliament sent the wrong letter to the wife.
Whether this is covered by privilege or qualified privilege I
do not know. I strongly believe that much of what goes on in the
House of Commons is false pretences rather than bribery or corruption.
One pretends that one is important rather than actually being
(Professor Bradley) Could I possibly add a qualification
to the last answer I gave. So far we are discussing letters to
ministers. With executive agencies one is in a somewhat different
situation. Of course, as a result of letters from constituents,
members may write to other public authorities; local authorities
or whatever. I would be against extending proceedings in Parliament
to letters to everybody. If one is writing to a minister who is
a Member of Parliament and who could be expected to reply and
deal with this question, then I see no reason why that should
not have absolute privilege.
Mr Williams: I want to follow on that. Since
you challenged me, my Lord Chairman, to match Merlyn's story,
I well recollect a situation where I had to enquire on behalf
of a constituent whose deceased army husband had apparently not
left her anything in his will. I had to send on a letter disclaiming
all responsibility, while in the meantime I had a phone call from
the administrators saying: "The truth of the matter is that
he is a bigamist and he left everything to his other wife in Germany
but we do not want to upset the poor lady." So one unconsciously
perpetuated the lie in order to protect the individual.
Lord Merlyn-Rees: That did not happen very often.
514. No, not in Swansea! Coming to this point
I would disagree fundamentally, but I know I may have absolutely
no constitutional reason for doing so. This question of letters.
A Member of Parliament writes a letter, by virtue of his office,
in the House of Commons. Therefore, it is as a part of Parliament
that he writes this letter. Now, on writing to ministers, you
have made the very point I was going to take up. We are facing
a dwindling protection because regardless of the rights or wrongs,
as you have the proliferation of quangos and agencies increasingly
we are writing not to the minister but to chief executives. Also,
where do we stand when we write to the local manager of a department
of a minister? I should imagine that like most Members of Parliament,
on a Saturday at my surgery I actually write the letters there
and then, and then just post them off. Most of your letters are,
in fact, not to ministers but they are in pursuit of your job
as a Member of Parliament representing your constituents. We only
deal with our own constituents. That is another in-house rule.
I would, therefore, argue that the Member of Parliament's letter
should be protected as long as he wrote it in his role as a Member
of Parliament. It is not to whom it goes; it is a matter of his
duty, as a Member of Parliament, on behalf of his constituents.
Clearly, that is not a legal argument.
(Professor Bradley) That may be the reason why this
particular issue of letters to ministers is not seen as being
of such importance, if in public administration the minister is
playing a less significant role than possibly they did in the
past. One might say that it would be somewhat going against the
trend of developments in public administration if this Committee
were to make a recommendation which encouraged or gave this incentive
to members to write to a minister rather than somewhere else in
the structure, for this reason. But beyond that, is Mr Williams
suggesting that absolute Parliamentary privilege should extend
to every letter written?
515. Yes. We actually receive letters from ministers
advising us that if we want full answers we should write to the
chief executive, and they give us the addresses we should write
to. Again, what happens if we send the letter to the minister
and he sends it on, as he invariably does, to the chief executive?
Have we written to the minister or have we written to the chief
(Mrs Leopold) And then, would their reply to you also
be absolutely privileged?
Mr Williams: Yes, because it is important that
one should be able to publish the replies. Very often an individual
constituent raises an issue with you. His particular situation
may be the Child Support Agency or benefits question, but its
implications are much wider because there are many other people
in identical positions. Therefore, there is a matter of privacy
between you and the individual, on behalf of whom you write, but
there is a matter of public interest in the principles which are
implicit in the reply you receive.
Lord Merlyn-Rees: Ministers under all governments
from time to time write and say, in effect, (and nicely), "Please
do not bother me. Write to the local manager of the local benefits
office." When I was an MP I had a constant stream of correspondence
with the local benefits office. It was there I would call on a
Friday sometimes and have a cup of coffee with the chap because
we were constantly in touch with each othernot to the minister
but the head clerk or whoever it was.
Sir Patrick Cormack: I think there is a danger
in what is being suggested because it gets ministers off the hook
too much. I personally would be a little bit against making everything
Mr Williams: How does it get them off the hook?
They are ministerially responsible themselves for what happens
within their departments, so the reply which comes from one of
their managers still is regarded as having come from the department;
i.e. therefore is subject to ministerial responsibility. There
is a logic in it. You can see that you cannot have 660 Members
of Parliament sending every income support case to the minister
in order to ensure that it is protected. You would be absolutely
inundated. Therefore, for expediency, in order to get a quicker
reply the logic is to go to your local office. The minister encourages
that and your local office encourages that, because they hope
that the minister will not find out what they have been doing
wrong if you write to them and they can keep quiet.
516. Have you any comments on Mr Williams' observations?
(Mrs Leopold) Not that are helpful. I can see the
problem but doubt if I can see the solution.
Lord Archer of Sandwell: My Lord Chairman, I
am not sure these are matters we can put to Mrs Leopold and Professor
Bradley. I would like to put down a marker that my right honourable
friend has said a number of things that when we come to discuss
them I would like to challenge. I think it could be a very dangerous
thing if we tried to extend privilege to the publication of letters
we have received from ministers.
Chairman: On that indication the Committee,
at the moment, are not unanimous. However, may I say on behalf
of us all that we are unanimous in saying thank you very much
for coming here. You have helped us with your knowledgeable and
stimulating replies to a variety of questions and we are very,
very grateful. Thank you very much.
72 13 In the matter of an Application by Martin
McGuiness for Leave to apply for Judicial Review, High Court
of Northern Ireland (Kerr J), 3 October 1997. (Professor Bradley)
I am grateful to Mrs Leopold for mentioning the fact that the
Parliamentary Ombudsman's decisions have been judicially reviewed.
The first occasion was ex parte Dyer where it was held
that the court did have jurisdiction to review the legality of
the Ombudsman's decisions, although that application did not succeed
on the merits14 <fu14>. When Mr Al-Fayed attempted to seek
review of the decision of the Parliamentary Commissioner for Standards
15 <fu15>, both Mr Justice Sedley and the Court of Appeal
were in no doubt that this was an internal parliamentary matter
in which the courts should not be concerned. The difference, plainly,
between the Ombudsman on the one hand and the Parliamentary Commissioner
for Standards on the other, is that the Ombudsman is exercising
powers under an Act of Parliament and is concerned with the relationship
between government and the individual citizen essentially, whereas
with the Parliamentary Commissioner for Standards there is no
statute, he was set up by resolution of the House and is exclusively
concerned with matters going on within the House. That therefore
seems to me an indication that judicial review is not going to
press ahead into matters which should be properly within the internal
cognisance of Parliament. Back
16 R v Graham-Campbell, ex parte Herbert  1 KB 594. Back
17 Williamson v Norris  1 QB 7. decision is able
to influence things today. I think the extent to which the law
should apply to Parliament is certainly an unclear area. I find
it interesting that the Human Rights Bill is not taking any risks,
it is excluding parliamentary proceedings, but we had the example
some years ago of the mental health legislation and whether that
applied to insane peers. Were they "other persons"?
And of course we had a conflict of opinion there between the Attorney
General who said he could not be sure whether or not they were
"other persons" within the legislation, and three or
four law lords who were saying, although not in a judicial decision,
they thought they probably would. The Committee in the end decided
they did not really know but they thought that peers probably
would be covered and legislation ought to be introduced to make
it clear. The idea that freedom from arrest for anything should
be to prevent an insane peer just seems to be a nonsense-that
was never the intention of it. So I think ex parte Herbert
is wrong. I think, again, perhaps more consideration should be
made on each occasion as to whether the Act of Parliament should
apply to Parliament. The idea of how the law applies to parliamentary
staff seems to me completely nothing to do with what we are talking
about, the need for parliamentary privilege; they should not have
these protections. Back