Parliamentary Privilege Minutes of Evidence

Themes and questions proposed to be raised by the Joint Committee on Parliamentary Privilege with Rt. Hon Lord Newton of Braintree OBE and Rt Hon John MacGregor OBE MP

  1.  The Committee's general approach in forming a view of the appropriate scope of Parliament's rights and immunities is to test every aspect of privilege by asking the question "is this still necessary for Parliament to fulfill its duties to the public".

  If you were carrying out such a test; what would you regard as essential to preserve and what could be discarded?

  Did your experience as Leader of the House modify your views on parliamentary privilege in any way? What particular considerations do you think, on your experience, we should bear in mind when we draft our Report?

  Is Parliament (the House of Commons in particular) too ready to see issues of privilege where none really exist: or is vigilance necessary in order to ensure that Members are not impeded from doing their jobs properly?

  2.  For various reasons the self regulation of the two Houses has been under considerable scrutiny in recent years. The first report of what was then the Nolan Committee (now the Neill Committee) recommended that "the Government should now take steps to clarify the law relating to the bribery of, or receipt of a bribe by, a Member of Parliament". This repeated a recommendation by the Royal Commission on Standards in Public Life chaired by Lord Salmon following the Poulson case almost twenty years earlier. The Home Office (when Lord Newton was still Leader of the House of Commons) published a consultation paper outlining possible options for applying the law to Members. There were (broadly):

    (1)  to rely solely on parliamentary privilege to deal with allegations of bribery against Members of Parliament;

    (2)  to subject Members of Parliament to the present corruption statutes (or similar provisions in new legislation) in full;

    (3)  to distinguish between conduct which should be dealt with by the criminal law and conduct which should be left to Parliament itself; and

    (4)  to make criminal proceedings subject to the approval of the appropriate House of Parliament.

  Mr Straw has indicated that it is his present intention to include Members and Peers within the scope of a new statute on corruption to be introduced next session or the session after that; but he has not closed his mind on the method to be used.

  Which of the options above (if any) do you favour?

  3.  Should the law of bribery apply to Members of both Houses? Should it apply to "proceedings in Parliament" eg to raising issues in debate for financial reward or to "cash for questions" or to cash for a vote? Or should it just clarify the common law offence which in the case of a former member (Mr Harry Greenway) was found to exist in respect of a Members' actions as a member outside the Chamber of the House or its Committees? (eg making representations to Ministers sponsoring receptions at the House of Commons or the House of Lords; writing to Departments to expedite a particular decision, &c.)

  Should the law apply with or without participation by the House concerned? (eg the House might vote on whether to "waive" privilege in a particular case; or pass a more comprehensive Resolution transferring all jurisdiction over such cases to the Courts for a Session, or for a Parliament.)

  If jurisdiction is entirely transferred to the Courts; are you happy about the consequences: Perhaps police investigations within the Palace; Members subpoenaed and so on?

  Do you see any problems for the systems of self regulation of the two Houses? Do you think that any legislation on bribery should in some way cross refer to the conventions and practices of the two Houses and to any Code of Conduct they have agreed to?

  4.  Do you think there is a case for a specific offence if bribery of an MP or of a Peer being created (as in Australia and Canada) rather than simply including MPs and Peers within a general offence or an offence relating to "public officers"?

  5.  Do you think that the self regulation of complex and serious cases which may involve criminal or near criminal conduct can ever be satisfactorily be dealt with by Parliament itself? What are the practicable limits of self-regulation?

  6.  Any change in the law of bribery which will enable the Courts to examine "proceedings in Parliament" will have some effect on Article IX of the Bill of Rights, but there are likely to be very few corruption cases. However, Section 13 of the Defamation Act 1996 which permits Members, or Officers, or witnesses before Select Committees to waive "their privilege" will potentially bring what is said and done in Parliament before the Courts relatively frequently. Was Section 13 of the Defamation Act a mistake?

  7.  While many recognise that freedom of speech in necessary for Parliament to operate, its exercise is sometimes criticised; particularly now that Parliamentary proceedings are regularly broadcast, and there is an all day cable channel. Both Houses have a "sub-judice rule" which limits debate and questioning on matters before the Courts. However, apart from these "self-denying" rules there is absolute freedom of speech. Is there a case for rules to try to prevent:

    —  breaches of Court injunctions?

    —  breaches of the Official Secrets Act?

  Are such rules desirable in themselves? Are they practical for the Chair to operate?

  Is there a case for providing some kind of right of reply in Hansard for members of the public who consider that they have been libelled? Is it practicable to do so?

  8.  On the other hand, does "freedom of speech" recognise sufficiently the activities of a modern member of Parliament? Committees of the House of Commons have recommended on several occasions that absolute privilege should be extended to the correspondenc of MP's with Ministers. However, when this was put to the House of Commons in 1957, the proposal was rejected by three votes. Consequently the correspondence enjoys qualified privilege at law—as does any correspondence undertaken by a Member on behalf of a constituent.

  Is there a case for protecting with absolute privilege:

    —  Members' and Peers' correspondence with Ministers and Executive Agencies?

    —  letters of reply from Ministers?

    —  letters of constituents to Members?

  9.  Privilege protects only the narrow area of proceedings: ie what Members say or do in the House or in a Committee appointed by the House; or matters so close to a proceeding (drafts of Committee documents, or briefs like this) as to be not easily distinguishable from the proceeding. It does not protect casual conversations in the House, party meetings, backbench groups, or even the House of Commons Commission or the Ecclesiastical Committee, and may not protect informal Committees of either House. Is this satisfactory?

  10.  In the light of the success of The Guardian newspaper in the libel action of Mr Hamilton in obtaining by subpoena documents kept by the Government whips office, do you think that the absolute protection of privilege is too narrowly confined to what happens in the two Chambers, or in their Committees? Is there any case for treating as proceedings conversations and papers relating to the management of the business of the House? Or is this absolutely contrary to the spirit of the times?

  11.  On one Court judgment (Rost v. Edwards) the Register of Members' interests was judged not to be a "proceeding in Parliament" and it may therefore be used by, or argued over, in a Court. Is this acceptable?

  12.  Apart from the privilege of freedom of speech there is the ill defined area of "exclusive cognisance" of Parliament which is generally accepted as being immune from intervention by the Courts.

    —  one area which most people would consider constitutionally important is Parliament's own absolute jurisdiction over the process of legislation and over all other aspects of procedure: would you agree that these are essential to retain?

    —  More controversial is that neither House is required to obey a statute (eg Health and Safety, Data Protection, licensing hours) unless the legislation specifically says so. Should the presumption be the reverse: that the two Houses of Parliament are bound by statute unless there is a specific exemption in the legislation?

    —  another aspect of "exclusive cognisance" is the control exercised by the two Houses (often the authority is exercised by the Speaker or the Lord Chancellor) over the precincts of the respective Houses: eg who may be admitted; what services shall be provided and to whom. Sometimes this causes controversy (eg the Speaker's temporary ban on showing the "Zircon" film in a Committee room; the House of Commons Library keeping a copy of "Spycatcher" for the use of Members when it was subject to a Court injunction). How important is it for the two Houses to maintain the present degree of control over their precincts? Should it be limited?

    —  Should there be any rights of public access?

    —  Should the two Houses be able to treat the service of a subpoena in the Palace on sitting days as a contempt (as, occasionally, they do)?

  13.  "Exclusive cognisance" is not based upon statutory authority: it is part of the law and custom of Parliament and might, possibly, be subject to a challenge in the Courts. Would it be better if the extent of Parliament's jurisdiction over its own affairs was more closley defined and had a statutory basis?

  14.  The precincts of the Palace are not statutorily defined. Did this ever cause you difficulty when you were Lord President? The issue might arise on the service of writs for example to a Parliamentary outbuilding, or to action by a local authority on planning or health grounds? Could this be a problem?

  15.  Members of both Houses have the rather antiquated right not to be imprisoned in consequence of a civil, as opposed to a criminal action. However they have an important consequential privilege of being able to refuse to obey any subpoena to attend a Court, whether civil or criminal, which is often used. How important do you think the retention of this privilege is for Members and Peers?

  16.  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 subpoena but would attend on a different day or time. How practical do you think this would be?

  17.  In dealing with witnesses against whom allegations have been made, whether Members or members of the public, Select Committees are sometimes criticised for the absence of rules similar to those of a Court eg there is no obligation on Committees to disclose all relevant evidence in their possession beforehand; there is no protection against self incrimination; nor a right to the advice and assistance of Counsel:

    —  Should there be rules governing the conduct of Select Committees and recognised "rights" for witnesses who are "invited" or compelled to appear? (eg as in New Zealand)

    —  Is the Select Committee machinery any longer appropriate for dealing with matters involving conduct, whether of Members or of private individuals?

  18.  Should the two Houses retain the right to punish for contempt? Should they continue to be the sole judges of what is a contempt? Shoud contempt be codified so that everyone, whether Members or not, has some clear idea of what actions are likely to be covered?

  19.  Are the powers of the two Houses to punish:

    —  in the case of the Commons to reprimand, or to imprison (or in the case of Members, suspension and expulsion)

    —  in the case of the Lords, reprimand, imprisonment, or fine

  relevant or credible? Should either House continue to possess penal powers?

  20.  Should "parliamentary privilege" be codified in statute: eg

    —  what "parliamentary proceedings" exactly are

    —  what protection Article IX of the "Bill of Rights" provides

    —  the extent to which and the circumstances in which proceedings in Parliament may be considered by a Court?

  Are you attracted to the Australian Parliamentary Privileges Act 1987?

  21.  Tribunals of Inquiry set up under the 1921 Act are in exactly the same position as Courts of law; there is no power to enable them to deal with proceedings in Parliament. This could well have been an oversight (after all the Marconi affair was one of the reasons for the 1921 Act being passed). Should the 1921 Tribunals of Inquiry Act be amended so that in some extreme circumstances the two Houses could agree to the setting up of a tribunal of inquiry which could examine proceedings in Parliament?

  22.  The Lord Chief Justice suggested to us that when there was the possibility of penal sanctions being imposed by the House these might be subject to appeal to the Judicial Committee of the Privy Council. Do you think this would be appropriate or practicable? Would you consider that a distinction might be drawn between disciplinary powers over Members, and the punishment of journalists or other members of the public if this was ever contemplated?

  23.  Is there any particular issue relating to privilege not covered today which you think we should look at?

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Prepared 9 April 1999