Examination of Witness (Questions 620
TUESDAY 17 MARCH 1998
620. Do you agree that the courts and Parliament
would be very astute to recognise their respective constitutional
roles and to accept it as a fact that no court anywhere in the
UK would challenge Parliament's right of free speech and control
over its precincts?
A. Very much so. If one looks too closely at
the words, let us say, of the Claim of Right as opposed to the
Bill of Rights, then one might say the conclusions would be different,
but if one follows the approach of Lord Browne-Wilkinson in the
Prebble case, which I believe would be the general approach
which I am speaking of, then I think that is the kind of thing
which would be the guidance which the court would apply. If one
were looking to the sort of passage which a Scottish court would
latch onto, it would tend to be the kind of passage which one
finds in the advice of Lord Browne-Wilkinson. That would be quite
consistent, if I may say so, with the general approach to the
interpretation of pre-Union Scottish legislation which strictly
speaking the Claim of Right is. The pre-Union Scottish statutes
tended to be drafted in a rather less exact way, let us say, than
the later statutes with which we are more familiar. Therefore,
the courts have tended to give them a broader interpretation than
the interpretation which has been used for United Kingdom statutes.
Therefore, if one has a constitutional document like the Claim
of Right, which anyway one might tend to think would be the kind
of document which one would interpret broadly, marrying the traditional
approach to pre-union Scottish legislation with the kind of approach
that Lord Browne-Wilkinson is advocating there, one would come
to the kind of view which he expresses. That is my opinion.
Chairman: Before we move on, would any of my
colleagues like to ask any further questions about the specifically
Scottish dimension that we are discussing this morning?
Lord Mayhew of Twysden
621. If I may, Lord Chairman. For a common lawyer,
it is very reassuring to find from a civil lawyer such a reliance
upon common sense and the broad drafting of such legislation as
applies to situations which may arise of the kind that we are
talking about. To go back to the first questions that you were
asked about, citation of a witness clashing with parliamentary
duties, am I right in thinking that you believe there will be
less disquiet in practice if the question is left at large, rather
than if it is sought to be resolved by legislation, because common
sense will be used by the courts, for whom alone you can speak?
A. Are we talking about the whole question with
which you are concerned in this Committee?
A. Then I do not think I would agree with that.
Partly as a result of reflecting upon the questions which you
have raised, I think that there are issues here of many kindsfor
example, the power of Parliament to punish for contemptwhich
raise very real issues in the modern world to do with human rights
and so on, where it may very well be that legislation is desirable.
623. On calling a witness?
A. With respect, I do not know exactly what
the shape of your report is likely to be or exactly what your
624. Neither do we.
A. If you are considering this whole area, you
could certainly leave the citation of witnesses untouched and
not amend the legislation. I do not think any particular problems
would arise. If you are getting into this whole area, then I see
no particular reason not to legislate on that particular matter
to make the position clear.
Lord Mayhew of Twysden
625. But you would not have any suggestions
to offer us as to how legislation should be shaped on that narrow
A. I put in a suggestion on which I see that
comments have been made, rightly. I suggested perhaps a certificate
from the Speaker. I fully recognise that there could be a political
element and the question of whether somebody should attend or
not attend for a vote could obviously have an important political
consequence in the event of a small majority. I cannot myself
see anybody else who could give such a certificate. I think it
would be precisely because it came from somebody who, by definition,
would be regarded as impartial that the certificate would be respected
by the courts, if that was the route down which one went. If it
came from the Chief Whip of the party, I think that would be
Sir Patrick Cormack
626. It could come from the Clerk?
A. Yes, it could, I do not know whether the
Clerks would find that an invidious role for them to take or not.
627. But it could?
A. It could, certainly.
Lord Mayhew of Twysden
628. Secondly, you have referred to Lord Browne-Wilkinson's
speech in the New Zealand case, Prebble v Television New Zealand.
What you are saying I think is that under the admittedly broader
legislation in Scotland you would expect the same approach to
be taken by a court in any area where the conflict is seen to
be likely to arise?
A. I have to bear in mind also that, if it were
a civil case, it would certainly be possible for it to be decided
along this corridor in the Appellate Committee of the House of
Lords. If I look at it in that way also and see that Lord Browne-Wilkinson
takes that approach, we have to take into account the kind of
approach which would be likely to be taken by the House of Lords.
If one sees the general approach of Lord Browne-Wilkinson, that
is the general approach which is taken. One looks at these broad
rights and so on and interprets them in a broad way, trying to
identify the purpose. Looking at it in that way, that is my hunch
as to what the Scottish courts would do; and indeed a hunch as
to what the House of Lords would do in a Scottish case.
629. I would suggest to you that what Lord Browne-Wilkinson
said is enormously comprehensive. I am paraphrasing: it would
be unlawful in any court for evidence to be received for the purpose
of three things, (a), (b) and (c)(a) questioning or relying
on the truth, motive, intention or good faith of anything forming
part of proceedings of Parliament; (b) otherwise questioning or
establishing the credibility, motive, intention or good faith
of any person; or (c) drawing or inviting the drawing of inferences
or conclusions wholly or partly from anything forming part of
proceedings in Parliament. It is enormously wide, is it not?
A. You have to start off with what the constitutional
basis is. I presume he draws that from his fundamental proposition?
A. I was not wishing to adopt any particular
inferences which Lord Browne-Wilkinson had put there. I was merely
taking his general approach, using the words in a loose form rather
than looking at the precise formulation. Once one gets a broad
formulation, then the particular inferences or the particular
doctrines which one draws out from that might be open to question.
You can see that, if you take a broad view of freedom of speech
in Parliament and so on, courts should not interfere with the
freedom of speech in Parliament. There will be particular applications
of that doctrine in individual circumstances, how best to apply
it, if you are going to respect the substance of the doctrine.
631. I have a layman's question on behalf of
laymen. Is there not a real dilemma that, if the citizen in Scotland
is, for example, misrepresented in the United Kingdom Parliament
and there is a different treatmentthe law as it applies
to the UK Parliament is going to take that problem in a different
way to the way in which it is going to be taken in the Scottish
Parliamentthere will be not only confusion but there will
be no doubt some dissent about whether the two systems should
work concurrently? The dilemma is that we are examining this at
precisely the same time as legislation is going through to establish,
recognise and celebrate the difference between the two legal systems,
the Scottish Parliament and all that. I am concerned that, from
the citizen's point of view, it would seem to be good sense to
have the same treatment at both levels; and yet it may be that
we are at this very moment examining this when everything is going
in the opposite direction.
A. Having received the letter from Lord Nicholls
and having looked at these matters, I was very struck by precisely
the point which you make, and I have already adverted to it. One
has this Bill going through Parliament at the moment dealing with
the setting up of a Scottish Parliament, where there is very little,
on the face of the Bill at the present time, to deal with many
of the kinds of points which are regarded as important for the
United Kingdom Parliament. Indeed, as it is drafted at the moment,
as I understand itand I am open to correction on thisit
would be possible for people to ask for interdicts of the court
against particular motions being made in the Scottish Parliament,
if they were thought to be ultra vires or whatever. That seems
to me to be light years away from the situation which is here,
and there does seem to me to be a lack of marrying up of the two
areas of policy.
Sir Patrick Cormack
632. That is, to coin a phrase, treating the
Scottish Parliament more like a council than like a parliament,
is it not?
Lord Archer of Sandwell
633. Is it not inevitable, because the powers
of the Scottish Parliament are going to be defined in a statute,
that the courts will have to look at the boundaries of that statute,
so you are going to get a difference, whatever happens, are you
A. It is not for me to say where the line should
be drawn but it is certainly the case that if, let us say, a statute
comes out or an order, a regulation or whatever it is, which is
ultra vires, then that must be able to be challenged. The more
difficult question is whether or not, when the matter is actually
before Parliament, the courts should be in effect invited to step
in and stop it at that stage.
Sir Patrick Cormack
634. Is not the most unfortunate aspect of this
potentially that the elector represented in both Parliaments,
the Scottish one and the United Kingdom one, is going to be very
confused because the very fact that the Scottish Assembly is called
a Parliament will make the ordinary layman feel that it is on
all fours with the Parliament here; whereas in fact it really
is a superior regional council in this respect?
A. It is of course a legislative body. It is
a matter for the government but it certainly seems to me that
if you call it a Parliament a lot of people will expect it to
have the kinds of immunities which this Parliament at Westminster
has. As it is drafted at the moment, these other things are not
there but it may be that these are yet to be drafted into the
Bill for all I know.
635. Would it not be fair to say that, when
you consider what this Committee is charged to do specifically,
we have the advantage of looking at material that has prevailed
over many centuries in some cases, so we are looking at an established
thing? Would you not agree with me that, to consider at the same
time what is envisaged in terms of the Scottish Parliament, it
is a little unfair because it is an entirely new body? After all
is said and done, it is anybody's guess what that might eventually
evolve into. It may well be that they are adopting at some future
date a system that might emanate from our deliberations but the
point I want to make is this: do you see any great relevance,
in terms of what this Committee is charged to do, in trying to
effect comparisons of what has happened over many years and what
is envisaged for the Scottish Parliament? Is it truly relevant?
A. I do not think the two things are wholly
irrelevant. My concern is that the position, let us say, for the
Scottish Parliament should be clearly understood. There should
be no delusions about the position and, for example, people should
realise that if the bill goes through as it is at present there
may be challenges to actions within the Parliament which would
not be possible at the Westminster Parliament. If that is not
understood now, then I think it will be likely to result in potential
difficulties between, let us say, the courts and the Scottish
Parliament. Now, because the situation has been built up over
centuries, we now understand what the division is between the
courts and the Westminster Parliament in broad terms. There was
a period when it was not so well recognised and the courts came
into conflict with Parliament. I think that is very undesirable
and one should avoid that. I think it would be very desirable
that when the Scotland Act comes into effect everybody should
understand clearly what the position is there and, if it is the
case that courts should be able to interfere, they definitely
realise that from the word go.
Sir Patrick Cormack
636. That is the point, is it not? It must be
Chairman: I do not think the existence of the
Scottish Parliament is irrelevant in any way to what we are here
to discuss. But I wonder whether it would not help if we did that
on another occasion and had one or two working papers in front
of us and a chance to think about it?
Sir Patrick Cormack: I am sure you are right
in one sense but I think that Lord Rodger has performed a very
important service in what he has said today. I hope it will be
taken note of by all of those who are concerned with the passage
of the Bill, both in our House where it has almost completed its
passage, and in your Lordships' House.
Lord Mayhew of Twysden
637. Is there quite such a clear cut distinction
between what you envisage with the Bill as drafted at present
in the Scottish Parliament and our own, in the context of the
European Communities Act when the jurisdiction of the courts could
intervene to ensure that legislation, whether secondary or primary,
is consistent with our obligations under the Treaties?
A. Certainly in the European context there are
limits. I may be wrong about this but I do not think that the
courts would entertain proceedings for an injunction to stop the
making of an order within Parliament on the basis that it was
potentially in conflict with our European obligations. I suspect
that they would wait until the whole thing had been passed.
Lord Mayhew of Twysden: Or until somebody tried
to enforce it.
Lord Archer of Sandwell: There is no provision
for that even under the Human Rights Bill. There is a declaration
but it is a declaration ex post facto.
Chairman: This is a very interesting and thought-provoking
Lord Merlyn-Rees: We ought to look at the Scottish
situation, quite properly, but there is another example that we
ought to look at anyway to see if there are any lessons to be
learned. For 50 years there was a Parliament in Belfast with two
Houses, with an enormous amount of independence. In economic affairs,
it is quite astonishing how independent it really was, with a
fair proportion of members who, if they could have driven a coach
and horses through any aspect of the law, would have done in Northern
Ireland. There is an example of a Parliament that existed for
50 years with members here as well. We ought, in my view as part
of our future consideration of the Scottish situation, to have
a look and see whether there are any lessons to be learned and
where did privilege lie in the old Northern Ireland Parliament?
638. Thank you. Let us go on to the general
question of freedom of speech in Parliament and ask you whether,
in your view, there should be absolute immunity from the courts
for anything that a Member says in Parliament?
A. I suppose part of the trouble is that I have
been brought up on this doctrine so much that I do not question
it particularly. I take the view that a very important part of
our constitutional set-up is the freedom of speech of Members
in Parliament. I start from that. I recognise that that carries
with it disadvantages and risks. It carries with it the risk that
people will abuse that right and that others will suffer from
the abuse. Others will indeed suffer from the correct use of the
right as well but any damage people suffer as a result must be
where the constitutional balances are best thought to lie. I take
that really as my starting point and I do not think that the disadvantages
of that are such that we should cut down the right of people to
speak freely in Parliament.
639. To take an extreme and probably very unlikely
case, if a Member of Parliament quite deliberately committed a
gross breach of the Official Secrets Act before he could be stopped
and it was of course simultaneously televised or broadcast, he
might do the most enormous damage, in theory, to the welfare of
the country. Should there be a way in which proceedings could
be brought against him for breach of the Official Secrets Act?
A. It is a very difficult case. I do not know
whether that is a situation where the national interest is such
that it should override. As far as I know that has not happened
and no legislation has been required to deal with it. It may be
that there are very limited exceptions but I cannot say that I
have identified them and my broad stance is the one I have indicated.