Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 604 - 619)




  604. Lord President, good morning. We are grateful to you for submitting in writing your answers to the written questions that we sent to you. It seems to me that there are really two roles that we are asking you to play here this morning. One is as Lord President of the Court of Session; you will know more about the Scottish legal system than most of us here, and you will therefore be able to help us on whether there are any possible difficulties, when we consider parliamentary privilege from the English point of view, if matters were to come before the Scottish courts for adjudication. Your second role this morning is as a former Law Officer, able to help us on some of the more general matters which we have to consider. So far as the Scottish aspect is concerned, can I just give you one or two examples of the sort of difficulties I have in mind, and leave other Members of the Committee to suggest other examples? First, there is the situation where, if a Member of Parliament is subpoenaed to attend as a witness, an English court would accept that he need not comply with that subpoena because of the prior claim of his parliamentary duties. How would a Scottish court react in that situation?

  (Lord Rodger of Earlsferry) If I may, I would start with a general comment as a background to anything I say about this matter or indeed most of the other matters. As far as I am aware, very few, if any, of the issues which you raise have arisen, certainly in the recent past, for consideration by the Scottish courts. Therefore, to a large extent, what I say is based on my best guess at what I think the position would be. Having made that remark, I believe that in broad terms the Scottish courts would tend to follow the general approach which would have been followed by the English courts in this matter. I do not understand there to be any particularity about the Englishness of the proceedings which would affect matters in relation, for example, to subpoenas. In the case of subpoenas, in Scotland, it would be what is called a citation for somebody to appear as a witness or indeed as an accused person. The same principle would really arise for decision and that would be whether or not, in that situation where there was a conflict between the terms of the citation, that should give way to the requirement to be present at Parliament. My belief is that the courts would in an appropriate case recognise that a Member of Parliament could refuse to attend in answer to a citation on the basis that he or she was required to be present in Parliament for some particular parliamentary business. That is my general approach.

  605. The Lord Chief Justice of England suggested to us that, as a matter of common sense, any judge worthy of the title would be able so to arrange his proceedings that the Member of Parliament could be accommodated without difficulty.

  A. Indeed so. I think this is, in many senses, a very academic question. For example, if it were a criminal trial where he was likely to be required as a witness, one might schedule the trial at a time when Parliament was not sitting. In any event, nowadays with modern communications, even from Scotland, it would be perfectly possible for somebody to be present at court during the day and to be present to vote if he were required to vote in a parliamentary division at ten o'clock the same evening. I do not believe that there is likely to be, in reality, a clash in these situations. Partly because of that, one does not come across the issue as a live issue. If you are asking it as a theoretical question, then the answer and my view are what I have given.

  606. On a similar line, if a Scottish court were to issue an order that, let us say, a child's name should not be disclosed and a Member of Parliament chose to disclose it in the course of a debate in one of the Houses of Parliament, would the Scottish court think it appropriate to take action or not?

  A. Again, this comes back to the wider issue. Article IX is actually an English statute which does not apply in Scotland. There is an equivalent, a Claim of Right, which is not in precisely the same terms. If one thinks about the general background to both, they both were enacted at the same time, out of, roughly speaking, the same general, historical developments; both were designed to secure supremacy of parliamentary government and so on. Therefore, if one takes that as the general background, I believe that the general understanding in Scotland would be the same as in England. In other words, that the courts do not question proceedings which go on in Parliament. The same rules apply that you cannot question the enactment of an Act of Parliament by reference to some supposed defect in the internal procedures of Parliament. Generally speaking, the approach would be the same. Therefore, in answer to the particular question, my belief is that in the same way the courts would take the view that the right to freedom of speech in Parliament would prevail in that situation, however unfortunate it might be.

Mr Michie

  607. Can I just go back to the original point? It does not give me a lot of confidence to hear you say that it has never arisen? That does not indicate, if it did arise, what would happen. Are we saying that because it has not arisen, it never will or never can and, if it does, what is your suggestion as to how it would finish up?

  A. It has not, to my knowledge, arisen. Therefore, I cannot point to a decision which gives us the answer. All I can therefore do is to give you my best judgment as to what the result would be. If we are talking about the subpoena/citation case, that is my estimate. On the other hand, I think that the courts would look quite scrupulously to see whether or not there was in fact a reason for the person not turning up at the particular time. I do not think, for example, the fact that you had to be present to vote at ten o'clock that night or the following night would be reason not to attend court at ten o'clock the previous day. That would not be enough, but if there were an actual clash then I think the courts would yield to Parliament in that situation.


  608. One particular question that occurs in relation to Scotland is this: you know that it has been strongly suggested that corruption of a Member of Parliament should be made a criminal offence, triable by criminal courts?

  A. Yes.

  609. Clearly, if the act of corruption took place in Scotland, the Scottish courts would have jurisdiction over the proceedings. In what would probably be the very, very rare case in which the corruption relates directly to proceedings in Parliament, we have had a good deal of assistance from various sources as to whether or not it would be desirable to amend the Bill of Rights or whether the courts would feel inhibited by the Bill of Rights from proceeding with a prosecution in such a case. You have not the Bill of Rights but the Claim of Right which is in somewhat less specific language. In the event of a prosecution coming before the courts in Scotland in which it was necessary to prove directly as part of the case what had gone on in proceedings in Parliament, and if the Claim of Right remained unamended, how would you see the Scottish courts resolving that issue?

  A. If Parliament were to legislate to bring in a crime of corruption of a Member of Parliament, I think it would be most desirable—and in my view really virtually necessary—in order to remove any doubt about the matter that there should be specific legislation dealing with precisely the issue of allowing the courts to investigate what goes on in Parliament in so far as is necessary for dealing with the prosecution. I really think that anything else would be undesirable. One might get it by inference. One might, for example, say that the fact that Parliament had enacted that this was a crime meant therefore that someone should be prosecuted and that by implication Parliament had said that it should be possible to investigate the allegation efficiently and in all ways necessary for the prosecution to be effective. That might very well be a construction which would be put on it, even by implication, but I think that to remove any doubt about the matter there should be legislation. If it were not amended, there would be at least a question which might be raised by anybody who was defending people as to what extent it would be proper to get involved in matters relating to the internal questions or whatever it was raised in Parliament. I think that would be something which should be resolved if any legislation in this matter is to take place.

Sir Patrick Cormack

  610. Would you favour legislation?

  A. To be honest, I am not sufficiently familiar with the question as to whether or not corruption of Members of Parliament is something which is so prevalent that it is felt to require legislation. That seems to me to be a substantive policy issue about which I am not sufficiently well informed, but if it is felt that there should be such prosecutions and that legislation should be made, then I do believe that it would be appropriate for the legislative position to be the same throughout the United Kingdom.

  611. The Committee is faced with a dilemma here. I think it is generally accepted that corruption is not a major problem and that there have been very few cases, thank goodness. One hopes there will be even fewer in the future. The decision that this Committee will ultimately be faced with is whether we recommend that we go down the legislative route and, in effect therefore, have a complete waiver of privilege under Article IX so far as corruption is concerned; or whether we recommend that Parliament should continue to deal with its own, only waiving privilege in specific instances if the case appears, on the face of it, to be very serious and very complex and beyond the competence of Parliament to deal with in an appropriate manner, by giving an appropriate punishment, for instance. As between those two alternatives, do you have a favoured option?

  A. I think the answer I have to give you is that I do not, because I am not sufficiently familiar with the degree of the problem. I think I would be speculating.

Lord Mayhew of Twysden

  612. Arising out of that, in your answer to the eighth written question, where you say you would prefer United Kingdom legislation as a whole, you go on to identify a possible problem, namely the Lord Advocate, who is the head of the prosecuting arm in Scotland; and you suggest there might be a different political base to the executive in Scotland to Westminster. I was a little perturbed by that. Do you really see that as a danger, because the Lord Advocate, like the Attorney General, will always act, will he not, impartially and without any regard to partisan concerns in prosecuting matters?

  A. I agree entirely, if I may say so, with that, but I thought it right to identify the question because the difference would be that any prosecution in England and Wales would of course be a matter for the independent judgment of the Attorney General or the DPP and, in Scotland, for the independent judgment of the Lord Advocate. Nonetheless, the Attorney General would be the person who would be ultimately responsible to Parliament and could, to whatever extent, be asked questions by the House of Commons. All I was identifying was that, in the case of a devolved Parliament for Scotland under the Scotland Bill, the person who would be ultimately responsible for the prosecution and who would of course deal with it—I accept, in an entirely apolitical manner—nonetheless would be somebody who would not be ultimately responsible either to the House of Lords or to the House of Commons here but to a different body. There is a sensitivity obviously about prosecutions in relation to Parliament and therefore I simply identify that the person here who would be responsible would not be a person who was responsible to the Westminster Parliament but to the Scottish Parliament.

  613. I can quite see that and I think I am in danger of making too much of a rather small point. There was a reference to a different political hue. The point about accountability is a very important one. It seems to me that the different political hue of the Scottish executive or the Westminster government was not something that was likely to be a practical consideration.

  A. It should not be and I am certain that in practice it would not be. There are sometimes of course questions of perception which arise in these situations.

Lord Merlyn-Rees

  614. I do not have the background knowledge of a former Attorney or a former Lord Advocate but, in the reply we had that the Lord Advocate might well be a member of an administration of a different political hue, given the job of Lord Advocate—and I accept fully it would be because of the result of an election—I have never thought, down this end, of any Attorney General being a member of the administration.

  A. I think they are. They are in different ways because, if I may say so, you are absolutely right. In their prosecution role, they are entirely independent of the government. There is no Cabinet or government responsibility for them. On other aspects, they are bound up more with the government.

  Lord Mayhew of Twysden: When the list of the government is printed, there is a line drawn under the Cabinet. Then there are two of the law officers and they are of Cabinet rank, not members of the Cabinet. They are answerable to the House of Commons for all matters connected with the law. The Attorney General is the principal legal adviser to the government. He also has now administrative responsibilities of a very considerable kind with the Crown Prosecution Service, the Serious Fraud Office and others, but there is this dualism. He is technically a member of the administration. There is a distinguished Solicitor General sitting opposite. That is right, is it not?

Lord Archer of Sandwell

  615. Certainly. Before we pass from this, I wonder whether you see any similar questions arising in relation to the Scottish Parliament? Is there likely to be a claim of privilege by the Scottish Parliament when it exists and are the same kinds of questions likely to arise?

  A. If one looks at the Scotland Bill, it is interesting just how little of this is there. I am not sure whether it is in its final form. I do not know whether there may yet be some more material put in. At the present time, there is almost nothing. There are various things relating to the absolute privilege of statements made in Parliament, in the case of defamation and so on, but for the rest there is virtually nothing there at present. Whether that will be the final position or not I do not know.

  616. If it were, the question of accountability which you have just raised could operate in reverse presumably? If for some reason it was suggested that a member of the Scottish Parliament should be prosecuted in the English courts, then you would have the English law officer not accountable to the Scottish?

  A. That is right.

Sir Patrick Cormack

  617. But the Scottish Members of the United Kingdom Parliament would continue to be operating under this?

  A. Yes, and they could raise the matter.


  618. Lord President, to come back for the moment to the question of corruption, if it were decided that all cases of alleged corruption of a Member of Parliament were to be tried in the criminal courts and that that did necessitate therefore some fundamental amendment of the Claim of Right and the Bill of Rights, would there be the same degree of controversy in Scotland over fundamentally amending the Claim of Right as there might be in England over fundamental amendment of the Bill of Rights?

  A. If the overall reform were thought to be desirable, I do not think there would be a particular sensitivity over it. There are sensitivities, for example, over the Act of Union. I know governments go around it rather than amend it directly, but I am not aware of any such particular sensitivity in the particular case of the Claim of Right. It would obviously depend on the general view of the overall effect of the legislation, whether it was seen as beneficent or not.

  619. Can I move on to ask you whether the Scottish courts would accept that Parliament has the exclusive right to decide what constitutes a contempt of Parliament and exclusive right to punish such a contempt?

  A. It is very difficult to be sure about this matter because there is no authority on it. My overall feeling is that they would accept the general line which there has been up to now. I do not think they would depart radically from that.

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