Examination of Witnesses (Questions 517
TUESDAY 10 MARCH 1998
517. Good morning, Lord Weatherill. Thank you
very much for coming to help us this morning. As someone who was
Speaker of the Commons for nine years, you are in a unique position
to assist us, particularly on the practical side that sometimes
we are in danger of overlooking. May we start by asking you about
Article 9 of the Bill of Rights. The central privilege which it
guarantees is freedom of speech in debate: what importance do
you attach to the retention of that privilege?
(Lord Weatherill) I think it is absolutely
essential. I know you are going to ask me about the Zircon affair
a little later on, but Article 9 was very much in my mind during
the difficult decision I had to take in relation to Zircon. It
does seem to me that a Member of Parliament (and, I suppose, a
Member of the House of Lords too) must be unfettered in what they
say in debate.
518. Have we got the boundaries broadly right
at the moment? How far should the absolute legal immunity which
the privilege accords extend?
A. I think anything that is said in the Chamber
should be subject to the Bill of Rights. I also think that letters
from Members of Parliament to Ministers should be subject to that.
I think it is extremely important that a Member should be absolutely
able to express the truth as he sees it in debate and also when
approaching a Minister with a constituency problem.
519. At the moment letters to Ministers only
attract qualified privilege?
A. Letters do attract qualified privilege.
520. And the reverse situation, of letters from
constituents to their Member of Parliament, would you regard them
as being privileged?
A. I am a bit rusty on that sort of thing, but
my belief is that they are not subject to privilege.
Lord Archer of Sandwell
521. Do you consider that letters from constituents
to Members ought to be privileged? Should people be in some way
discouraged from approaching their Member of Parliament or would
it be too dangerous to allow anything, however malicious, to be
A. That is always the problem, is it not, Lord
Archer, malicious accusations? Nevertheless, in terms of equity,
if a Member has a right of absolute freedom of speech in Parliament,
I suppose a constituent really ought to have the right of that
privilege in addressing his Member of Parliament. Of course, the
conundrum always is the malicious letters that all of us have
over the years received.
Sir Patrick Cormack
522. Do you really think, Lord Weatherill, that
what you said is right? I am wholly with you on this privilege
of a Member of Parliament and on his correspondence with Ministers
and so on, but should any constituent be allowed to say absolutely
anything and should privilege be conferred on that missive merely
because it is addressed to a Member of Parliament?
A. I suppose that is correct because of the
malicious accusations that might well be made in a letter to a
Member of Parliament. I think that all of us who have had these
sorts of things sent to us would pass them on to the Minister
with a qualification.
523. Your proposal is that the correspondence
of a Member to a constituent should be absolutely privileged,
but when it is from a constituent to a Member it should be qualified
privilege, in other words if it was malicious it would be actionable?
A. In replying to a constituent of course one
passes on the letter that one has as a Member received from the
Minister. I can only say in my case as the Speaker, and I think
it was only since I was Speaker, that I sometimes received on
some issues two letters, one that I would pass on to my constituent
and the other which told me the reason why the Minister had come
to that particular decision, which of course I would not have
passed on to the constituent. I do not know whether that is common
practice amongst other Members.
Lord Mayhew of Twysden
524. Would parity of reasoning lead you to give
the same privilege for letters from MPs to heads of agencies?
A. I suppose yes. At least they are Government
Lord Mayhew of Twysden: They are.
525. Should the absolute privilege extend to
the broadcasting and reporting of debates?
A. You cannot do anything about a broadcasting
of a debate in Parliament, as for instance on a BBC programme,
or on the Parliamentary Channel, which is a "Gavel to Gavel"
programme of proceedings exactly as they go on. If the broadcasters
put that sort of thing on a programme I do not think you could
do anything about it because it is a proceeding of Parliament
and is subject to the Bill of Rights. On the other hand, as I
have understood it, broadcasters themselves do not have that privilege.
If they extract what is said in a live broadcast and put it on
to another programme, that would not be subject to parliamentary
526. You have mentioned the continuous televising
of debates, live televising in particular, that goes on at the
moment. Should the privilege continue to be absolute in cases
of breaches of the Official Secrets Act, breaches of court injunctions,
and defamation of individuals? Would you deal first with breaches
of the Official Secrets Act?
A. It is an extremely difficult question. First
of all, the Speaker would have to know in advance (and was not
always told) that what a Member was saying was a breach of the
Official Secrets Act. On the other hand, if the Speaker did know,
then he or she could stop it. That is certainly true of course
of breaches of court injunctions, because if you had knowledge
of that you were able to stop it. Certainly it was so in cases
of sub judice. I remember regularly being on my feet to
caution Members about that sort of thing. As to the defamation
of an individual, I can think of quite a number of occasions on
which I have been on my feet to warn Members of Parliament that
they should have regard to what they were saying about an individual
who did not have the right of reply, but there was no way I think
in which I could actually stop it.
527. If a Member is determined to commit a breach
of the Official Secrets Act, he could do so. He cannot be stopped
by the Chair, can he?
A. I do not think he could be.
Sir Patrick Cormack: He certainly cannot be
stopped in your Lordships' House because there is no Chair to
A. I think in the Commons the Speaker would
constantly be on his or her feet warning the Member concerned,
but I doubt very much if the ultimate sanction of naming a Member
for saying something which was a breach of the Official Secrets
Act would actually be accepted. That goes right across the right
of Member to say what they want in the House of Commons.
Sir Patrick Cormack
529. But, if I may interject, my Lord Chairman,
Lord Weatherill I am sure would agree that in the Commons there
is nothing really to stop the determined Member, unless a resolution
of the House has previously been passed which the Speaker can
530. But unless he has something to invoke he
really cannot stop the Member, can he?
Lord Mayhew of Twysden
531. And whether something is or is not a breach
of the Official Secrets Act, it really cannot be claimed that
the Speaker acted judicially, I would have thought, and it would
be quite wrong to impose that upon the Speaker; he would no doubt
wish to follow whatever his good sense indicated. He could not,
could he, fairly be invited to determine whether something that
was going to be said would be a breach of the Official Secrets
A. I think he would be challenged by the House
and then he would have to explain why he had done it and then
the thing is blown wide open again. I think that puts the Speaker
in an impossible position.
532. If a Member of Parliament did deliberately
commit a blatant breach of the Official Secrets Act which was
highly damaging to national security and was covered live by television
at the time, which would obviously exaggerate the effect of it,
should the Member be privileged so far as proceedings are concerned
in the courts?
A. I suppose the Member is privileged, but I
think what I would do in a case like that would beif the
Member was absolutely persisting and I knew that this was a breach
of the Official Secrets Actto adjourn the House for 15
Sir Patrick Cormack
533. Suspend the sitting?
A. And call the Member's Chief Whip to tell
him to get hold of this Member and explain to him what his duty
534. But the suspension of the House is something
that can only be used in extreme cases, is it not, and even if
the House were suspended, when it finally returned after the suspension,
if you still had a totally determined Member of the House who
is not in breach of a resolution of the House, the power of the
Chair is very limited, is it not?
A. Absolutely. The Members of the Commons will
know that a Speaker with the House behind him can get away with
almost anything. If the House is not behind him, he has no power
at all. I think one would have to make a very quick and sage judgement
in suspending the House as to whether that was the wise thing
to do because the Speaker's authority really must remain absolute.
He or she should not do something which puts him or her in danger
of being repudiated by the House.
535. There is the added complication, is there
not, that if a motion is put down and signed by any number of
Members criticising the Chair, that has to take priority in business
the very next day and therefore the Speaker's conduct is subject
to full debate on the floor of the House?
A. That is absolutely correct.
Lord Archer of Sandwell
536. Ought there not to be something like the
equivalent of an interim injunction to preserve the situation?
Is there not a conflict here between the right of a Member to
speak freely and the right of all the other Members to prevent
something happening which might be a national disaster? Although
I can see that to put that on the shoulders of the Speaker is
placing too great a burden on one individual, ought there not
to be some procedure for preserving the situation until the House
has taken a decision?
A. At the moment there is no procedure. I am
not really qualified to answer that. I think that your Committee
is going to have to come to that very difficult decision.
537. I wondered if you had a viewpoint.
A. I stick to what I said at the beginning.
I think it is extremely important that we should not qualify,
to any major extent anyway, the right of a Member to speak as
he wishes in Parliament.
Sir Patrick Cormack
538. It is a very short step towards the executive
having the power to muzzle a Member if you move in that direction,
is it not?
A. It is a very short step, Sir Patrick. We
have not yet discussed this Zircon affair but this was very relevant
to all of this because very considerable pressure was brought
upon me as the Speaker at that time to do something which I was
deeply reluctant to do.
539. Are we not getting into difficulties because
we are confusing prevention with punishment? The reality is that
a determined, experienced Member of Parliament can manage to say
most things he wants to say before the Chair realises that he
is committing an indiscretion and, secondly, it is impossible
for any Speaker of the House to have a compendious knowledge of
what is covered by the Official Secrets Act. In reality we are
chasing a myth if we are talking about how to prevent. The only
thing we are concerned with is, are Members then protected if
Speakers do not act?
A. I have already said at the beginning that
the Speaker would not normally know unless previously told whether
what was about to be said in that debate was subject to the Official
Secrets Act. Nevertheless, I have found in my experience that
the vast majority of Members are responsible. I cannot recollect
a case in my time either as a Whip or as a Member of Parliament
where this sort of thing has actually happened. I cannot think
of any specific case where there was a terrible problem such as
I had to face.