Examination of Witnesses (Questions 580
TUESDAY 10 MARCH 1998
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privilege that you regard as being out of date?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
581. Could I make a point? It is a matter of
language again, I thinkwe 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
Sir Patrick Cormack: Of course it is. Yes.
582. You refer to Parliamentary freedom of speech.
Is that not essentially it? Do our American cousins not have it
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 amountsometimes
even a big amountof freedom. So the more we can pursue
these matters by convention, it seems to meconvention which
Members will obeythe 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 oftenwell,
occasionallygone 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 extentand I am not asking for specifics or detailshave
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 doesand
I speak as one who has actually done thisis 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,
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.
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 afternoonor even six o'clockand
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
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
constituentsindeed, Lord Weatherill has referred to them
on more than one occasion in giving evidence this morningwho
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
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.
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 MPswe are tougher than most
or should beshould 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 theoryand, indeed, in practicethe
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
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 downI think wisely.
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
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
A. Taking the last question first, I think certainly,
yes, they should. Any Member coming before a Select Committeeparticularly
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?