Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 580 - 599)



  580. Are there any aspects of parliamentary privilege that you regard as being out of date?

  A. Off the top of my head I cannot think of any.

Mr Michie

  581. Could I make a point? It is a matter of language again, I think—we have had this in the Committee before. Basically the public do not always fully understand how this place operates and why it operates in the way it does. At the same time they understand "privilege" in a different way from what we mean by "privilege". We have not got another word we can put in its place which would also keep the necessary protection. There is a misunderstanding and the word is misleading. How, in fact, do we convince the public that we need some form of protection for their benefit more than ours and, at the same time, get rid of this tag which is "privilege" in the sense that they understand it?

  A. Yes. Words change their meanings over the centuries as well and over the decades really, as we well know. If the Committee could come up with a definition of "freedom of speech" and other "privileges" of Parliament then I think they would be doing it a great service because, to members of the general public, as you have said, the word "privilege" in many of their minds means "you special lot who have privileges that the rest of us do not have and thereby protect yourselves". So if you could think of another form of words it would be a good thing. Nevertheless I repeat what I have said: the privilege of freedom of speech is really the privilege of the constituent as well.

  Sir Patrick Cormack: Of course it is. Yes.

Mr Tyler

  582. You refer to Parliamentary freedom of speech. Is that not essentially it? Do our American cousins not have it about right?

  A. Yes.

Sir Patrick Cormack

  583. We must not be too afraid of public opinion which, for the most part, is no such thing but is really the strident observations of a few motivated journalists.

  A. It is not for me to put questions to you but we have talked about the House of Commons. I have only been in the House of Lords six years so I am a new comer and an amateur but it seems to me there are very few rules in the House of Lords of any kind; in the Lords we operate by conventions, and I am very much in favour of conventions. I used to regularly say when I was a whip in the other place and also when I was Speaker that, if conventions are abused, then rules are introduced and when rules are introduced you thereby lose just a small amount—sometimes even a big amount—of freedom. So the more we can pursue these matters by convention, it seems to me—convention which Members will obey—the better. It is a very difficult matter really to say this but I think if I may, with the leave of the Committee, I would say that the best definition that I know of "convention" is the one on ethics which is "obedience to the unenforceable" and, to a very large extent particularly in the House of Lords, there is obedience to what would be, in the end, very difficult to enforce. I think that is also true, to some extent, in the Commons as well.


  584. Do you think privilege should extend to not being compellable by sub poena to give evidence in court?

  A. We mentioned this matter earlier on the question of constituents. We all have constituents who wish to take us to court one way or another and although it is not easy these days (and it is going to be even more difficult) to get public funds to take matters to court, nevertheless there will be some constituents who will succeed in getting legal aid or who may well have enough money to do it themselves. I think we should just think very carefully about this. I have often—well, occasionally—gone to court to give evidence not on a sub poena but voluntarily. I suppose if a constituent said "I wish to serve a sub poena in Central Lobby on such-and-such a day", that would be fair enough, but I really do not think members of the public should have the right to come in here and find Members in the tea room.

Lord Archer of Sandwell

  585. I think the real question is whether attendance at a court under sub poena may interfere with the duties of a Member of Parliament. I wonder whether you could assist us to this extent—and I am not asking for specifics or details—have you ever had a Member coming to you and saying, "We have a vital division on Thursday. I have here a sub poena to attend the Newcastle-on-Tyne crown court. Could you explain to the judge I have this problem"?

  A. I think the former Chief Whips and current Chief Whips in this place might think that was a wheeze which they had not really met before. I cannot recollect.

  Sir Patrick Cormack: But you do not have to do it. May I interject? Lord Archer's question is based on a slight mistake. If a Member does receive a sub poena what he does—and I speak as one who has actually done this—is go to the Clerk of the House and the Clerk of the House writes a letter in which he says, in effect, that the Member is attendant upon his duties at the High Court of Parliament and, while that is in session, it takes precedence over any other court and therefore the Clerk writes to the court and you do not have to go. So you do not actually have to bother the Speaker with it.

Lord Archer of Sandwell

  586. I accept Sir Patrick's experience of how he dealt with it but I was wondering whether there has ever, to your knowledge, been a situation where the judge was saying "Well, I have to have him here because the trial has got to finish tomorrow", and where the Member was saying "But I cannot".

  A. The answer to that question is, in my knowledge, no.

  Lord Archer of Sandwell: That is what the whole business about the sub poena is based on.


  587. One possibility would be to remove the absolute right of a Member not to attend court and to substitute a procedure whereby the Speaker could certify that a Member's absence from Parliament would prejudice Parliamentary work and the Member would not then have to respond to the sub poena but would attend on a different day or time. How practical do you think that might be?

  A. In a purely practical sense, I suppose that would be possible but let's just think this through. Presumably the whips would come to the Speaker and say, "It is awkward for us to have X away at this time and would you therefore rule that he cannot attend court now but later?". What is the House going to think of that? The Speaker has got no power at the moment to get up and say "This is going to happen". He might well be challenged on points of order or something. If that could be a convention, and understood to be an acceptable way out of this problem, I think it would probably be OK.

Lord Merlyn-Rees

  588. I am trying to think of what this Parliamentary work could be that prevents a Member of Parliament from going to court. All I can come up with is the sort of vote that happened in 1979 when the Government was defeated by one and that happened at ten o'clock at night. Of course it was important then and there was a problem, on that occasion, of a Member not being able to be there who was dying, and he died—

  A. I remember it very well.

  589.—but I cannot think of any other occasion when it would be other than very difficult for the Speaker to certify that the presence of a Member of Parliament in the Palace of Westminster, in a committee or to speak in a debate was essential, of world shattering importance?

  A. On the other hand, in a Parliament when the Government of the day did not have a majority, you could have a vote at four o'clock in the afternoon—or even six o'clock—and if the court was sitting in Chester or somewhere far away, the Member would not be able to get there and back in time.

  Lord Merlyn-Rees: It is only voting we are really talking about on specific occasions. The idea that Members of Parliament are tied to the place for long periods is not really true.

  Sir Patrick Cormack: I would dispute that. I do not want to enter into a debate with my noble friend over there but I think that my day would be significantly disrupted if I had to trot off to court. The real problem with this is that it is to protect Members of Parliament from constituents who are prone to vexatious litigation. I would not for a moment have sought the protection of the Clerk in the instance that I gave had it been a criminal trial where I was a prime witness. Of course I would have gone; I would have given it priority. We all have these constituents—indeed, Lord Weatherill has referred to them on more than one occasion in giving evidence this morning—who rather like to embarrass the Member of Parliament. If you have that sort of sub poena I think you do need to be able to answer it appropriately.

Lord Archer of Sandwell

  590. Do you think the Speaker would be able to decide that? Not whether the Parliamentary duties were of great importance, but whether this man was being asked by a malicious constituent to appear as a witness?

  A. It is a very heavy responsibility to put on the shoulders of a Speaker, to decide whether a case is genuine or litigious. I do not think you can do that.

Mr Michie

  591. Why should a Member of Parliament be more protected from some vicious person outside than a doctor, a priest, a nurse, a school teacher or whatever? All of them are subject to this sort of attack at some time in their professional lives and I am not quite sure why MPs—we are tougher than most or should be—should get this special protection.

  A. That is another point of view but this is in connection really with the Member's Parliamentary work and his responsibilities. Doctors certainly are subject to this sort of thing and, no doubt, their patients would be affected if they had to leave them in surgery one day to go to court. Yes, they would be. We are really dealing with the responsibilities of the Speaker in deciding whether a Member should effectively have leave of absence to go to court and whether that takes precedence over his Parliamentary duties.


  592. Can we come to an aspect of the question of "exclusive cognisance"—the position where legislation such as health and safety at work and employment regulations and so forth have no application in the area covered by the Houses of Parliament unless the statute specifically provides that they should cover the Houses of Parliament. We have had the suggestion made to us that the presumption should be the other way round and that Acts of Parliament, statutes, should apply to the workings of the two Houses of Parliament unless they are specifically exempted by the terms of the statute. Have you any view about that?

  A. This certainly came my way during the time I was Speaker because the Speaker is responsible, as the Committee knows, not just for what goes on in the chamber but as Chairman of the House of Commons Commission, and everything else that goes on (at the Commons end anyway) on the Parliamentary estate. I see no reason at all why, if Parliament passes legislation concerning health and safety at work, those regulations should not apply equally to the Palace of Westminster.

  593. Let us now come to one or two further matters, Lord Weatherill. First of all, should the two Houses continue to have power to decide what actions constitute a contempt and then punish for the contempt, or should there be a closer definition, a codification in its way, of what actions are contempts?

  A. Are we thinking here about a recent Select Committee case where a witness refused to disclose names? Is it that sort of contempt we are thinking about?

  Lord Merlyn-Rees: Lord Weatherill is referring to the recent case where a Select Committee in another place wanted to know names. Something about the freemasons.

Lord Archer of Sandwell

  594. Refusing to answer questions.

  A. Is that what you mean, Lord Chairman?


  595. It is the very wide powers which both Houses of Parliament claim to have at the moment as to what constitutes a contempt of Parliament and the power to haul people, journalists for example, before them.

  A. In theory—and, indeed, in practice—the disclosure of a Select Committee report before it has been published is contempt of Parliament and I can think of one or two occasions where journalists have been hauled up on that account. One of them in years gone by, Mark Schreiber I think, disclosed a Select Committee report and he was reported to the Committee on Privileges and suspended from the lobby for a period.

Sir Patrick Cormack

  596. He is now a Member of your lordship's House.

  A. Nevertheless, that is one example from the past but then, more recently, in my time as Speaker, there was disclosure by, I think, The Times. Something had gone on in a Select Committee which was brought to the Committee of Privileges and my recollection is that, when it was debated, the House turned it down really on the basis that to arraign The Times for something of this kind would have made Parliament look silly. I think that kind of thing has really got to be very carefully looked at in the modern age. If we take the course which Lord Merlyn-Rees has mentioned what, in fact, would have happened if this particular witness had refused to disclose names? Would the Committee really have made a report to the House committing him to gaol or fining him? I think the public would think that would be a very strange procedure.

Lord Archer of Sandwell

  597. Do you know of any case where the House has been silly, in your view, or normally can the House be entrusted with this very wide definition of what might constitute a contempt?

  A. I come back to what I was saying earlier about the collective wisdom of the House. I think it would have looked very silly, in the case of The Times which I have already mentioned, if they had imposed any penalty. It was the collective wisdom of the House, when the Privileges Committee report was debated, to turn it down—I think wisely.

Mr Williams

  598. Was the case not slightly more complex than that? Was not there a change in perception, and the decision of the Committee and of the House was that a journalist's job is to report and the contempt was committed by the person who leaked the document to him, and we could not find out who that was but it was not breach of privilege for a journalist to go about his job in reporting information that he obtained? It was not because it was thought the House would look silly doing anything about it but because we thought there were two different situations and it was the Member or an official who committed the contempt.

  A. That was, of course, the case but also that the journalists concerned never disclose their sources. They refuse to.

  Lord Merlyn-Rees: This raises another problem. I was on the Privileges Committee, if I have the right occasion, and Mr Charles Douglas-Home came to the Committee and in short sharp terms told us what we could do with our questions. They never were answered.


  599. Can we conclude by asking you two related questions about the rights of members of the public? First of all, it has been suggested to us that they might have a right of reply in some form or another to what is said about them in the course of Parliamentary proceedings. Secondly, a closely associated question, should the members of public who appear before Select Committees have any protection by way of some sort of code of rights?

  A. Taking the last question first, I think certainly, yes, they should. Any Member coming before a Select Committee—particularly one which is televised (which they frequently are today) should know what his rights are. I can answer that very quickly. As to the first question, could you repeat it?

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Prepared 9 April 1999