Parliamentary Privilege Minutes of Evidence

Replies to questions submitted in writing by the Chairman of the Joint Committee on Parliamentary Privilege to the Lord President of the Court of Session, the Rt Hon the Lord Rodger of Earlsferry

(The Chairman's questions are printed in italics)

1.   One of the key sources of parliamentary privilege is Article IX (freedom of speech) of the Bill of Rights 1688. This antedated the Union with Scotland Act 1706. Is there an equivalent to Article IX under Scots law? Does this equivalent have the same ambit as Article IX?

  1.  The only equivalent to Article IX of which I am aware is the article of the Claim of Right 1689 which secures freedom of speech and debate to members of Parliament. As far as I know, the courts have never been required to apply that provision in this connection and so its precise scope is uncertain. Pre-Union Scottish statutes are drafted differently from modern statutes and have often been interpreted in a broader way. I am confident that, given the history of relations between the courts and Parliament and the general understanding that the courts do not seek in any way to question proceedings in Parliament, the Scottish courts would arrive at a conclusion in line with the position based on Article IX.

2.   Do the Scottish courts recognise that each House of Parliament has exclusive cognisance of the conduct of its internal affairs?

  2.  Yes. For the reasons given in the preceding Answer.

The further questions which follow are based on the assumption that under Scots law Members of Parliament enjoy an equivalent immunity to that enjoyed in front of English courts by virtue of Article IX and the "exclusive cognisance" principle. To the extent that this is not so, the questions may need modification.

3.   In order to discharge their public functions members of the two Houses need certain rights and immunities, such as freedom of speech. Some of these rights impact on non-members, eg a defamatory statement made in one of the Houses. In the event of a dispute over the existence or extent of a right, who should decide: the courts or Parliament? For instance, if a member is sued for defamation in respect of a statement he claims lies within Article IX of the Bill of Rights, should it be for the courts or Parliament to decide? or should there be concurrent jurisdiction? or should some other body decide?

  3.  I should not wish the ordinary courts to decide an issue as to the existence or extent of a right claimed by one or other of the Houses of Parliament. That seems to me to open up a potential area of conflict which we should be most anxious to avoid. Concurrent jurisdiction would seem to maximise the scope for conflict and would therefore be unacceptable. I consider that, in the first instance at least, the Houses of Parliament must determine the scope of any rights and immunities which they claim. I suspect that this is in any event the best and most practical approach since the House authorities are familiar with the subject-matter and with all the nuances and practical considerations. If there is to be an appeal, then, for the reasons which I have given, it should not in my view be an appeal to the ordinary courts. In such a situation one instinctively thinks of the Privy Council to which a reference was, of course, made by Order in Council on a not dissimilar matter in Re the Parliamentary Privilege Act 1770 [1958] AC 331. The reference was to the Judicial Committee and therefore those who dealt with the matter were all judges. I note, however, that two of them, Lord Reid and Lord Somervell of Harrow, had been MPs and Law Officers. Their experience would, I believe, have been of considerable help. I have a feeling at least that, if the Privy Council were to be the basis for any appellate body, then there might be something to be said for the particular body having Privy Counsellors with relevant political experience either as members or as assessors. Mixed courts of senior judges and senior clerical figures are not unknown and some such model might be appropriate.

4.   Similar questions arise over another of the rights of the two Houses, the regulation of their own procedures. The Houses have "exclusive cognisance" over these procedures even though they impact on non-members, eg by requiring non-members to attend before Parliament or a committee; by imposing penalties on non-members for conduct which the Houses regard as obstructing members in the conduct of Parliamentary business; by reserving the right to treat as a contempt the intimidation of witnesses before select committees. To what extent should the two Houses be immune from review in the courts in respect of the conduct of their own affairs? Should the courts have any jurisdiction, residual or otherwise, exercisable at the behest of members or non-members? For instance, should the Houses have an uncontrolled right to decide whether conduct amounts to a contempt, and what punishment to award?

  4.  This question appears to raise issues which are indeed similar to those in the previous question and my basic answer would be the same. So far as possible the ordinary courts should not be involved. On the other hand, if there is no body to which some kind of appeal can lie, there could be apparent injustice, whether involving a Member or third party. I suspect that part of the reason for the Committee being asked to review these matters is that there is an awareness that the procedures, however appropriate in the past, might not meet the standards which are required of other bodies. Although the Human Rights Convention is not to be made to apply to Parliament, that perhaps makes it all the more important that its procedures, say, for holding someone in contempt and punishing them can be seen to meet the standards of Article 6 of the Convention.

  For the reasons which I gave in the previous answer it may be that an appeal might lie to a suitably composed committee of the Privy Council.

5.   Freedom of speech

    (a)   The work of an MP is a seamless web, extending from statements in the House to dealing with constituents' affairs. What is the principle on which the boundary line should be drawn between statements and communications by members or non-members which cannot be questioned in the courts and those which are not so immune?

    (b)   Should the immunity be total? Or should there be exceptions eg if criminal proceedings are involved?

  5.  I start from the position that nothing would be done to abridge the right of free speech in Parliament and the absolute privilege which attaches to what is said there. Although it is open to abuse, this absolute privilege seems to me to be appropriate. It is being reproduced in the Scotland Bill for the new Scottish Parliament. I cannot imagine anyone trying to change it and I am confident that he would not succeed if he tried.

  I am not sufficiently familiar with the work of MPs to be able to envisage all the situations where relevant issues arise. I should think, however, that most people would accept that a Member of Parliament is a person who has a duty to consider matters of concern to his constituents. It would seem to follow that any communication of a matter of concern by the constituents to the MP should in principle be covered by qualified privilege. If the communication were made, not to the person's constituency MP, but to another MP, then I consider that the position should be the same. If the MP then chooses to communicate formally and privately with a Minister about the matter, that communication would certainly be the subject of qualified privilege under the ordinary law but it may well be that such a communication does or should attract absolute immunity. If the MP raises the matter in the House, then clearly absolute immunity applies at present and I believe that it should continue to apply, even at the risk of it being abused from time to time.

  On the other hand it would seem to me to be wrong that, if the M.P. chooses to raise the matter with the Minister in the course of, say, a Newsnight programme, it should attract any privilege.

  Peers do not have constituencies and therefore do not receive communications from constituents. On the other hand they can and do raise many important public issues and it seems to me right that communications made to them in relation to their parliamentary role should attract qualified privilege along the same lines as communications to M.P.s. The same principles should also apply to their communications with Ministers as apply to communications by M.P.s.

  If the subject-matter of any criminal case were, say, corruption or bribery of a Member of Parliament under the type of legislation envisaged in Question 8, then it might well be necessary for communications to and by Members to be investigated and made the subject of evidence at any trial. I can see no basis on which such evidence, whether relevant to the prosecution or to the defence, could properly be excluded.

6.   Should members be immune from being subpoenaed to attend and give evidence as witnesses in criminal or civil proceedings?

  6.  In general M.P.s and peers should be subject to citation to appear as witnesses in both criminal and civil cases. On the other hand there will be situations where a vote or some other Parliamentary business is so vital that their attendance in Westminster is imperative. In such a situation I believe that the requirement to attend at Westminster should prevail. Any other rule would lead to potential conflict between the courts and Parliament and that would be highly undesirable. What is required is that appropriate arrangements should be made to minimise the risk of conflict and to enable someone like the Speaker to give a certificate which the courts would recognise. Undoubtedly there might be cases where such an arrangement could cause difficulties, but the present arrangement could cause difficulties too. I very much doubt if any difficulties would be insurmountable.

7.   Increasingly one or other of the Houses, through their corporate officers (see the Parliamentary Corporate Bodies Act 1992, sections 1 and 2) and in other ways as well, enter into contracts, for example, for building and repair works. In addition, officials and staff are employed under contracts of employment, and disputes do arise regarding wrongful or unfair dismissal. Disputes can also arise following accidents to persons working in or visiting the Palace of Westminster. When disputes arise and litigation ensues, questions may and do arise regarding the discoverability of relevant documents, which may be the minutes of a committee or sub-committee of one of the Houses. Similarly, questions may arise concerning oral evidence on what happened at a meeting of a committee or sub-committee.

Plainly it would seem unsatisfactory for these sorts of litigation not to be attended by the usual evidential consequences, even though this would involve incursion into the general immunity afforded by Article IX. Do you agree? Where, and on what principle, do you think the boundary line should be drawn in this regard?

  7.  This problem seems unlikely to arise in practice in connection with Scottish proceedings. I agree, however, that the normal rules about the production of documents should apply so far as possible. I doubt whether Article IX was ever designed to enshrine rights in relation to a buildings committee or a catering committee, for example, as opposed to rights to freedom from intrusion into the actual substantive business of Parliament. Although I have not expressed the matter properly or exactly, I have a feeling that the boundary line must lie in such a way that, for instance, routine matters discussed by a building committee lie outside it while even routine discussion of substantive matters by any Parliamentary body lie inside it.

8.   The Government is considering introducing criminal legislation in respect of bribery and corruption. If the ingredients of the offences were expressed in terms wide enough to include the conduct of members of the two Houses in discharge of their functions as members, should members be liable to criminal proceedings in the courts, even though this might mean that a criminal court would have to investigate in depth the conduct of Parliamentary business by a member and others? Or should such conduct be left to be controlled elsewhere, either by Parliament or by another body?

  8.  In my view, if there is to be legislation to make it an offence to bribe or to corrupt members of either House of Parliament in discharge of their functions, then the legislation should be United Kingdom legislation. This would be a most particular area of law and it would, I believe, be appropriate for it to apply in the same way in all parts of the United Kingdom. I am aware that corruption has been considered recently by the Law Commission but not by the Scottish Law Commission. If no general reform of the law of corruption on a United Kingdom basis is planned, any offence relating to Parliament should be drafted in such a way that it could apply to Scotland even if the rest of the legislation could not.

  That said, I foresee what could be a potential awkwardness if the Government's devolution proposals become law. Under the Scotland Bill the Lord Advocate will become a Member of the new Scottish Executive responsible to the Scottish Parliament. He will remain head of the prosecution system. It follows that, if it were made an offence for someone in Scotland to bribe a Member of Parliament in the discharge of his duties, then the decision whether to prosecute would be a matter for the Lord Advocate and his officials. The Lord Advocate might well be a member of an administration of a different political hue from the administration in Westminster. Especially if there happened to be a period of tension in relations between the Westminster and Edinburgh parliaments, it might seem strange—or even unacceptable—for the decision on whether to prosecute in such a case to lie with the Lord Advocate. I could also foresee certain tensions if his officials were to seek to investigate the conduct of business in Parliament. I believe that the Committee should consider whether this would be an arrangement which would command the confidence of Parliament.

  I am not sufficiently familiar with the number of cases where corruption and bribery of members of either House have occurred to know whether this is an area of conduct which now requires to be dealt with by the creation of an offence. That seems to me to be the critical question of policy. If an offence must now be created, then I do not really see how it could properly be dealt with by a body which was anything other than an impartial court or investigated by anything other than an independent body. If the offence carried a substantial penalty, then prima facie jury trial would be appropriate. In England it may be that there will be a precedent in serious fraud trials for a body other than a jury to adjudicate, but there is unlikely to be any such precedent in Scotland and I for one would be reluctant to see one established especially since I see no particular reason to believe that the issues involved would be particularly difficult for a jury to understand.

9.   Codification. On balance, would codification of the law of parliamentary privilege be advantageous or disadvantageous? If the law were codified in a statute, should interpretation of the statute be a function to be discharged exclusively by the courts?

  9.  I am very much against codification in general. I am by no means sufficiently familiar with the details of parliamentary privilege to know whether codification would be easy. On the other hand any codification would have the very obvious disadvantage that, especially with a body like Parliament which is subject to pressures from all kinds of evolving developments in the media and elsewhere, it would almost inevitably be out of date within a very few years. Especially since cases of Parliamentary privilege can be conducted in the glare of publicity, it might well be undesirable if the code were found to be unable to deal with what seemed to be an obvious case of breach of privilege.

  On the other hand, if penalties are imposed for breaches of privilege, then it could be said that, unless the rules are laid down, there is a breach of the principle of nulla poena sine lege. I note that under Clause 6(3) of the Human Rights Bill neither House of Parliament is included within the definition of a public authority whose acts are caught by Clause 6(1). Whether the provision which exempts penalties imposed by one of the Houses of Parliament from the purview of the Convention is itself compatible with the Convention is perhaps a nice point. Be that as it may, one might well take the view that it is not prima facie satisfactory for the Houses of Parliament to penalise people, whether Members or not, for breaches of privilege which are themselves not always easy to define in advance. My impression is that the allegations of breach of privilege by Members of the House of Commons can give rise to more uncertainty at present than allegations of breach of privilege by journalists etc.

  I should be most reluctant to see the ordinary courts adjudicating on matters of privilege. They have no expertise in the matter and they would almost certainly run into conflict, sooner or later, with one or other House of Parliament, whose members would have greater expertise.

10.   Are there any areas of law or practice where the existing relationship between the Scottish courts and Parliament is unsatisfactory and clarification or change would be beneficial?

  10.  I am not aware of any areas giving rise to difficulty at present.

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Prepared 9 April 1999