Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 667 - 699)




  667. It is my pleasant duty to welcome today two witnesses, Lord Newton and Mr MacGregor, both of whom have served distinguished terms as Leader of the House of Commons. In that capacity they have had much practical experience of the problems we have been considering, and we look forward very much to their assistance. Lord Newton, Mr MacGregor, you have the list of questions and themes which we sent to you. Can I begin by taking together questions 2 to 6, which deal with the corruption issue. Perhaps I could ignore for the moment the last sentence of question 6, which refers to section 13 of the Defamation Act 1996, which is a slightly separate matter. Have you any comments on the issues raised in those questions which relate to the whole corruption issue, to the question of whether Members of Parliament should be subject to prosecution for corruption, and whether, if so, it should be the same offence of corruption as is defined for the rest of the public or one that takes account of different considerations because Members of Parliament are involved. If the answer is that proceedings should follow in one form or another any allegation of corruption by a Member of Parliament, should the matter be dealt with in the criminal courts or in the relevant House of Parliament or by some combination of the two?

  (Lord Newton of Braintree) My general view is that while there are clearly good and sufficient reasons for the privileges of Members of Parliament in relation to freedom of speech (and I am using very shorthand terminology), it is extremely difficult to see why they should enjoy the same privileges in respect of bribery and corruption. Clearly there are things you can argue that an MP might do—or appear to do, for that matter—that would cause difficulty for another member of the public, (for instance, in relation to a court injunction or something of that kind) that was nevertheless justified in the course of his proper duties as a Member of Parliament. One cannot envisage an argument that says it is necessary for a Member to take a bribe or to be corrupt in order to do his job as a Member of Parliament. Therefore, at that very general level, I do find it quite hard to see why the law should not apply to Members of Parliament and Peers in the same way as it applies to others. I have a lot of sympathy with the way in which the Home Secretary put that point when he gave evidence to you. Once one goes beyond that, it seems much more difficult to answer the second part of your question as to whether it should be exactly the same statutory provision or one which, for examples, takes account of the existence of specific parliamentary codes of conduct and registers of interests and all the rest of it, which implies a range of activities which Parliament thinks are proper, provided they are declared both in the register and on appropriate occasions. One thing, therefore, on which I rather differ from Mr Straw—having read most, though I am afraid not all, of his evidence—was in relation to the fencing that took place between him and the Committee on what I would call the chicken and egg question—whether the Government should come forward with proposals first or whether the Government should wait for this Committee to come forward with proposals, before doing any drafting. As the current Leader of the House knows well, and I think—though I would not wish to put words into her mouth—she shares my view, I have long seen considerable advantages in the much wider use of the practice of publishing legislation in draft, not only in this context but in the context of what I would call ordinary legislation. In the last Parliament we moved substantially down that path and had made commitments to move down it further. This seems to me to be an absolutely classic case where it would be sensible for the Government to publish a draft, or even some alternative drafts, which could then be examined in detail by a Committee of this kind to test what the probable effects of actual words in an actual Act of Parliament would be, because this is a very difficult subject to discuss in a generalised way.

  668. You distinguish between a Government draft and the Law Commission's recent draft, therefore?
  (Lord Newton of Braintree) I do not really mind who does it. The Law Commission has a very good track record and, happily, governments have acquired a slightly better track record in recent years in using the work of the Law Commission and carrying it through. I do not really mind who does it, but I do think that in this very difficult area -especially when you are considering the inter-relationship between the courts and Parliament, which is about as delicate a subject as is known to man—it would be sensible to see some actual drafts and have an opportunity to consider those before coming to firm and final decisions.

Sir Patrick Cormack

  669. May I just come in here? As this Committee has been established to look at this question among others, and whilst not dissenting for a minute from your general proposition about the desirability of drafts (I agree entirely with that), would it not be more sensible, and also, perhaps, more courteous, if the Government allowed this Committee to make its recommendations before proceeding to produce these drafts? It may well be that this Committee came to a conclusion which was extremely helpful to the Government in formulating its view.
  (Lord Newton of Braintree) That appeared to be what the Home Secretary was hoping. I would actually think that probably the best thing in these particular circumstances, given that this Committee has been set up (though it is not for me to tell you what to do, and I hope I am not breaching privilege in what I am about to say), is to say there might be a case for this Committee producing some fairly general recommendations about the principles that it thought should be applied and then returning to the matter on the basis of detailed drafting work which, frankly, this Committee is not in a position to do.


  670. Mr MacGregor, would you like to add to what Mr Newton has said?
  (Mr MacGregor) Thank you, my Lord Chairman. Can I start with a couple of introductory comments? First, I am not a lawyer and I am very much aware that there are a number of key legal issues involved in these subjects which I have not got the expertise to comment on. No doubt there are traps, too, which you will unravel from the legal point of view. I am talking very much as a Member of Parliament. Secondly, I think, in fact, when I was Leader of the House, not many of these issues of bribery and corruption came up, in my experience, so it is some time since I looked at this issue and I have only prepared my thoughts because of this session of evidence. Again, I am talking very much as an individual Member of Parliament, in a personal capacity, rather than anything to do with my time as Leader of the House. On the question you raised, I tend to take the view that while I am very much aware of the context of the Bill of Rights, and those sorts of issues, I start from the standpoint "What does a modern Member of Parliament need to do his job properly?" In that context, I think it is very important for us all always to remember what Sir Donald Limon said in his evidence to you, when he said that neither House has acted in such a way as to give any real substance to a charge of unwarranted extension of its privilege jurisdiction. I think the reason for that is we have all been very conscious of our roles as Members of Parliament and not to give ourselves preferential positions where it is not justified. I start from that standpoint. Taking that view, I very much agree with Lord Newton that it is the freedom of speech aspect, and not being constrained in any way from that point of view, that is most important in this privilege context to a Member of Parliament. Therefore, I do, myself, come down on the side of those who say that Members of Parliament should be treated in the same way as any other citizen in terms of bribery and corruption. There are just two caveats to that. One is that I think, as some of the evidence has shown, Members of Parliament, because of their public position, could be subject to quite unwarranted attacks on them for political reasons, for electoral reasons or whatever—perhaps because someone is disaffected by some view that an individual Member or the House as a whole took. I think we need to give thought as to how Members of Parliament can be protected from that. In looking at the original Home Office evidence, where they put forward the four alternatives, I was attracted, of course, to alternative two—to subject Members of Parliament to the present corruption statutes in full, but I was looking at option four to see whether there is any way in which Members of Parliament could be protected from that kind of unwarranted intrusion. I tend to share all the objections of those who say that having it either going to the Committee on Standards and Privileges or—as would inevitably happen—come on to the Floor of the House, has some real difficulties in it, and I think they have all been itemised to you already so I do not need to repeat them. However, there ought to be some sort of protection there for Members of Parliament in the context of what I was saying. I wonder whether a Committee (and this would be, I think, probably unprecedented) of Members of the House of Lords who have also been Members of the House of Commons—preferably some with clear legal experience as a former attorney general—might act as a scrutiny for some of the charges of bribery and corruption which really should never get to the courts in the first place and which come into that category. My problem is that I would want them to have the authority to do this without having to go back to debates in either House, because of the earlier reason. It seems to me that is probably the best way that you could protect Members of Parliament in their unique role from this point of view. The second point that I wanted to make was that, of course, if a Member of Parliament does get himself involved in a bribery and corruption case in the courts, I do think that it will be necessary to find some way of meeting their costs, because it would be quite easy to put Members of Parliament into an extremely difficult position if they had to undertake very substantial legal costs—again, sometimes because of unwarranted attacks on them for the reason given earlier. I think Members of Parliament are very much subject to that. I certainly think that if you were involved in one of those cases where you were found not guilty, could you rely simply on the courts enabling all your costs to be met by the plaintiff? I rather wonder. I suspect if you were a company director in this situation you would have your costs met. I think there is a problem there for Members of Parliament, and I just flag it up, because I can see some people put into an extremely difficult and unfair position if we move away from the present situation on privilege

Lord Waddington

  671. Could I ask two questions? First of all, do you consider that there is a real mischief to be tackled here and feel that the public expect Parliament to do something to tackle a real abuse—ie, attempts to bribe Members of Parliament and the acceptance of bribes by Members of Parliament? It would be, really, rather fatuous if we were to recommend that new laws should be passed if there was no real abuse to be tackled. That is my first question. Secondly, assuming you come to the conclusion that some action has to be taken, is it really conceivable, in this day and age, that the matter can be dealt with by Parliament itself? Is it really conceivable, in this day and age, that you can actually try within Parliament a person who offers a bribe to a Member of Parliament? My answer to that question is that it is quite inconceivable that Parliament could try somebody for offering a bribe to a Member of Parliament and mete out appropriate punishment. If you come to that conclusion then, obviously, it follows that you have to deal with these matters within the framework of the ordinary criminal law and in the ordinary criminal courts. That means, of course, trying both the person who offers the bribe to the Member of Parliament and the Member of Parliament who accepts the bribe. How do you think on those lines?
  (Mr MacGregor) Those are two very good questions. I think, on the first question, you make a very real point (and one I was hoping to make at some point in the Committee, so I will do it now) that these cases are very rare. I think it is important that we do not—just because there are some cases and in other areas that you are looking at there may, in future, be possible difficulties—throw in the whole kitchen sink in looking at this issue, and try and codify the law to deal with every conceivable situation. With regard to some of the later questions in your list of written questions, I feel there have not been problems and so it is not necessary for the Committee to recommend anything on them, but if there are problems in future then they must be addressed by another committee. So I think it is a very, very good question—to make sure we keep in context just how serious these matters are and how likely they are in other cases. There have been cases of abuse and, therefore, one has to address this issue, and in the bribery and corruption case one has to address it. I think that is the answer to the first question. In answer to the second question, I very much agree with you. It follows from what I was saying, I think, that option two in the Home Office paper was the right one to go for. I think in this day and age, you are right, I cannot see, myself, why Members of Parliament should be treated differently on criminal offences because of freedom of speech; freedom of speech involves other issues. So I very much agree with you, but there were just these two caveats I put in at the end, because I think they are issues that have to be looked at.
  (Lord Newton of Braintree) I do not think I need add anything on the second question because I think I answered it in my first set of observations. Broadly speaking, I agree with Lord Waddington, though recognising—as, again, I said earlier—that there would be an awful lot of detail to be teased out in turning these general propositions into a piece of legislation. On the first question I had, actually, been wondering whether to have the nerve to say to the Committee that in reading the evidence there was, at times, a slight feeling of looking for a mischief to do something about, as it were. The current theme in the evidence is "Well, it could cause a problem, but it never has—or not for the past 100 years, or whatever". That, I have to say, left me with the feeling that if that is the situation, why do we not leave well alone? However, on this front, I think (while totally sharing the view that such cases of the kind that people have in mind are, happily, extremely rare) one does have to acknowledge—and, again, I echo something that I recall the Home Secretary as saying—that there has been sufficient focus on them to have caused a public perception to which I think it is appropriate for Parliament to respond.


  672. Assuming, as I am sure is right, that cases will be extremely rare, the number of cases that directly involve proceedings in Parliament will be even rarer, practically, I suppose, almost non-existent. There may be one every decade or whatever it may be. Do we have to cater for the situation in which there may be this very occasional incident? If so, how do we cope with a situation in which we say that the courts will have jurisdiction to try such a case but Article IX of the Bill of Rights still remains in existence and would prevent courts from examining the evidence?
  (Mr MacGregor) That is the thing that I would wish to put to the lawyers. I have outlined what I think we should be aiming for, but putting that into legal form under Article IX is something legal minds should apply themselves to. Could I just take the point about the rarity of cases? Of course I very much agree with that, but there is an issue here of what you define as parliamentary proceedings, which I think has to be addressed and which you have to make recommendations on—and I know you are looking at it. The Greenway case seemed to me to come very much into that category, and, of course, eroded, in a sense, the position of privilege, because, as I recall it, that was a case to do with a constituency matter. I think you have to define clearly what are parliamentary proceedings. I have a fairly clear view myself where I would go, but the position is unclear at the moment, as a result of things like the Greenway case. Therefore, coming back to your point about how rare it is, it is rare but it does happen, and that was a case in point.

Lord Waddington

  673. Yes, but would there not be complete outrage if we actually passed an Act of Parliament which allowed a Member of Parliament to be tried in a criminal court for accepting a bribe, and then when it came to the push the prosecution had to hold its hands up and say "We have got to drop the case because we are not allowed to introduce any of the evidence as to what actually happened inside Parliament which proves the commission of the offence"? Surely, we cannot go down this road unless we grasp the nettle and say that in this type of case Article IX has to be waived.
  (Mr MacGregor) Perhaps I was not clear. Yes, I agree with you. That is one of the reasons why I say that bribery and corruption should be treated in the normal courts. We had already allowed that to happen in the Greenway case—it has actually happened—but by some definitions that was actually parliamentary activity that he was engaged in, it just happened to be not within the precincts of Parliament or not in a debate of the House. That does lead me to the conclusion—and I entirely agree with what you say—that this is an area where we take it outside the realm of parliamentary privilege.

Sir Patrick Cormack

  674. I would like to develop one or two of these points. First of all, as far as the Greenway case is concerned, it was the judgment of a particular judge that these matters were not related directly to Mr Greenway's activities within Parliament, and that, therefore, privilege did not apply. That was the judgment he came to, which some people thought was rather controversial. Nevertheless, there was no question, at any stage, that Mr Greenway had abused his position within Parliament. It was suggested that he had done something outside Parliament and it was tackled on that basis. At the end of the day the case was dismissed and Mr Greenway emerged without a stain on his character and continued to function as a very active Member of Parliament until the last General Election. I think we have to get these things very clear. What we are talking about here, really, is freedom of speech, because if a Member of Parliament is hauled before the courts and if other Members of Parliament are then subpoenaed to give evidence in those courts, they can be questioned on their speeches and activities in Parliament which have no relation whatever to a criminal offence. What I would like to do, Mr MacGregor, if I may, is take you back to what you called your caveats. I have, for a long time, felt that there should be some sort of appellate body which would determine whether or not the case was too complex, or too serious or both, for Parliament itself to deal with. I do not want any Member of Parliament who is corrupt to escape his just desserts, but I do think it is important that we do not, because of the rarity of these cases, get rid of important protective privilege—protected freedom of speech. I would much rather we have an adjudicating body to decide whether a particular, specific case was so serious that privilege should be waived. Would this not meet your point?
  (Mr MacGregor) On the Greenway case, to be absolutely clear on what I was trying to say, I felt that if you were going to continue to have parliamentary privilege applying, one would have to have a clearer distinction as to what proceedings that applied to. In my view, from all I know of the Greenway case, that could easily have come within parliamentary proceedings because if he had asked a question in the House, or raised the matter in debate, it would have then come within that context. It could easily have done so. Taking that as a hypothetical example, it was a pure accident, if you like, that it was not dealt with in that way but was dealt with outside the area of parliamentary proceedings. Given that we have got that position, that leads even more to the feeling that the ordinary courts should apply to bribery and corruption, because if you then did start to redefine parliamentary privilege, as perhaps we should, it would begin to look very strange that Members of Parliament were treated so very differently. I very much agree with Lord Waddington on that. On your second point, I rather agree with the Home Secretary on this when he said that no solution is perfect—I am paraphrasing his words—and there are going to be difficulties in every solution. What we have to look at is where the balance best lies. In my view, the balance best lies in applying the laws of bribery and corruption to Members of Parliament as to everyone else in the same way, and accepting that this may occasionally create difficulties for other colleagues of the accused Member appearing in the courts. I do not think that that is a serious intrusion of freedom of speech and, therefore, I think, on balance, I come down in favour of that. On the question of a screening process, if you like, I think it may be very difficult to do this. I put forward one suggestion as one way of trying to do it and avoid all these frivolous and unwarranted attacks. What I am quite clear about is that I do not think that those issues should be debated, firstly, in the House, which follows from an investigation by the Committee on Standards and Privileges and then goes to the courts. It seems to me there are too many difficulties in that solution.

  675. Having the filtering body, or appellate body—call it what you will—does not in any sense mean that you have to have it debated in the House. It could be set up with such jurisdiction as you yourself said that it could adjudicate and decide whether the case was frivolous, or complex, or whatever, and could make a recommendation. If that recommendation were binding it would meet your point.
  (Mr MacGregor) I think one has to think it through and see whether there are other traps, but it certainly would meet the point.


  676. What does Lord Newton have to say?
  (Lord Newton of Braintree) I have to say I do see some difficulties in what I understand you are suggesting, Sir Patrick, which is that in circumstances where, presumably, a criminal prosecution has already been brought, there should then be a body (at this moment undefined) which should decide whether an important and relevant part of the evidence could or could not be used. If you are to have a filtering process—and I think this was touched on by Mrs Leopold in the very interesting evidence that she and Professor Bradley gave—in my view the filtering process is the one that occurs in quite a lot of public interest cases. That is to say, that it requires the consent of the Director of Public Prosecutions. I, personally, would take quite a lot of persuading—certainly if you are going down the path of subjecting Members of Parliament to the same law as everybody else in this respect—that there should be some completely different procedure for Members of Parliament. If we are going down this path, we ought to have enough confidence in our ordinary procedures of determining on and conducting a prosecution to feel that it can be applied to Members of Parliament in the same way as to everybody else. That would be my instinctive reaction.

Lord Merlyn-Rees

  677. We have come to the conclusion this morning that there are very few cases of corruption, and we have done so many times before. The question I would like to ask you, with your great experience, is what sort of cases are we talking about when we talk about bribery and corruption?
  (Lord Newton of Braintree) There have been a number of allegations, which were given wide currency towards the end of the last Parliament and at the beginning of this one, that are the sort of cases that have given rise to debate.

  678. What sort of cases?
  (Lord Newton of Braintree) We are talking about the kind of allegations that have been made and most publicised in respect of Neil Hamilton. However, there were also—though this was so conclusively dismissed by Sir Gordon Downey that it has rather passed out of public consciousness—some very serious allegations against Michael Howard, which were the subject of a very extensive enquiry.

  679. These were bribery and corruption?
  (Mr MacGregor) Yes.
  (Lord Newton of Braintree) On any normal construction of the meaning of those words in English, I think that is what was being suggested.

  680. Forgetting about Michael Howard, if you were talking about local government I would have a clearer view as to what bribery and corruption might mean, because decisions are taken in committee and so on. Whether it happens is another matter. I think of myself as a Member of Parliament and ask myself "How could I have been corrupt? What would I have taken a bribe for?" Frankly, I find it very difficult. So with this number of cases which are few and far between—what are they? As a backbench Member of Parliament, as I was for years in one way or another, what is "being corrupt"?
  (Mr MacGregor) You may have a view that asking a question in Parliament or raising issues in Parliament does not necessarily have any great influence on any decision that is taken—I think that is where you start from, and you may well be right—but that is not what some people feel. Clearly, if money passes hands for a specific parliamentary action, that seems to me to be in the category of bribery and corruption. These cases do occur occasionally.

  681. May I pursue this. There are things that Members of Parliament should not do which may not be understood by the Director of Public Prosecutions or judges or anybody else, given the role of Members of Parliament. There are those people who believe that eating with journalists too often is a thing they should not do because you are, sort of, in the swim—I will not say corrupted, but you are in the swim. However, actual bribery and corruption is thin on the ground, in my view, and when I am talking to people about it outside—"What are you doing?" "I am on a Committee talking about bribery and corruption." "What sort of thing?"—I am caught because I cannot think of many examples of bribery and corruption that a Member of Parliament can be involved in. A minister, yes, I suppose.
  (Lord Newton of Braintree) This appears to rest on the proposition that Members of Parliament have little or no influence, which, I have to say, I am slightly surprised that Lord Merlyn-Rees holds to quite the extent he seems to do and which, I must admit, I do not share. Like any other group of people, Members of Parliament vary, but some do have quite considerable influence in one way or another within the corridors and discussions that take place in this place.

  Chairman: In any event, the legislation would cover attempts to corrupt, would it not? So the Member is in a position to—

  Sir Patrick Cormack: The very receiving of money is, in itself, corrupt.

Lord Archer of Sandwell

  682. Beginning from the point which Lord Newton made a few moments ago that, on the face of it, the public will wonder why Members of Parliament should be subjected to a screening process which does not apply to anyone else, my understanding of the process which Mr MacGregor was proposing was that it should protect Members of Parliament because they are particularly vulnerable to allegations of this kind—presumably in the way that Lord Merlyn-Rees was suggesting a moment ago. That is to say that if you did something which was not really corrupt somebody would pick it up and say "You only asked that question because he invited you down to his home for the weekend". If that is so, then the question which the screening body would ask themselves would not be whether it was too complicated or whether there was enough evidence, or whether there would be evidential difficulties; all that would, presumably, be decided by the Crown Prosecution Service. What you were suggesting, Mr MacGregor, as I understand it, was that it should be some different question which they ask themselves: namely, "Is this the kind of allegation which would only be made against a Member of Parliament because they are particularly vulnerable?" I was wondering how you distinguish that from councillors, for example, or company directors or trade union officials? Is there really a case for saying that Members of Parliament are more vulnerable than anyone else to this kind of irresponsible allegation?
  (Mr MacGregor) I was seeking to find a way of meeting Sir Patrick's point that there are aspects of parliamentary life which do have to be protected, and there are issues of privilege—that is the wrong word but I think we know what we mean—without running into all the difficulties that seem to me to flow from the other alternatives that were being suggested, such as the Standards and Privileges Committee and so on, and see whether there was a way of doing that. I noticed in other evidence that some people have put forward the view that very wealthy people who have a grievance may wish to apply that grievance to an individual Member of Parliament or other Members of Parliament who may be perfectly innocent but who may find themselves—though I take the point about the Director of Public Prosecutions and so on—subjected to very considerable expense in the courts, as some company directors have (but they have usually had the resources to deal with it). I was seeking to find some way of protecting Members, because I can see that if we lose this altogether there may be unforeseen problems that will arise in the future, and we need to think about how we would tackle them if they do—problems like the one I have just described.

  683. I was slightly troubled that that kind of problem could apply equally not necessarily to a flourishing company director but a director of a small company or to a trade union official or someone of that kind. Should we not be directing that kind of protection against defendants in general, rather than specifically in relation to Members of Parliament?
  (Mr MacGregor) It is a point that all of us can have differing views on, but I suspect Members of Parliament are somewhat more vulnerable.


  684. Perhaps, after questions from Mr Michie and Mr Williams, we ought to move on to another part of the questioning. We could profitably spend several hours on this, and I would be very happy to do so.
  (Lord Newton of Braintree) May I make one observation on the first part of Lord Archer's point? I think that Members of Parliament are, almost by definition, particularly vulnerable by comparison with other groups, at a certain point in time—namely in the immediate vicinity of a General Election. I do not see any answer to that problem because allegations can be made anyway, under whatever machinery you have. They may get currency in the public print, as indeed did happen in the run-up to the last election. I do not see any perfect answer to that, but it does simply have to be acknowledged.

Mr Michie

  685. I agree that we have covered this fairly substantially, but one of the main reasons for the existence of this Committee is because the public have had some misgivings about reports of activities in this House in the past. That is the reason why we are sitting, I suppose. So the public perception is still there, even if we think there is not a lot to worry about. I think there are a lot of people out there who think there might be something to worry about, and they would like some clear definition of who makes the judgment. This is what worries me about the suggestion that we should have a special Lords committee of senior parliamentarians, because in some senses the public would still see it as us looking after our own. If there is real evidence that there is a case to answer, then the perception will be that the person is almost guilty before the case gets to court, as his own peers have some doubts about it. I cannot understand why we need, or whether it would help a Member of Parliament if we had, this special track. The Director of Public Prosecutions or the Crown Prosecution Service could act as a filter, just like for everybody else, to see if there is any truth in the matter or whether it is just mischief, as they do at the present moment; they do not always charge, and, in fact, they do not follow up as many cases as some of us would like. I think we have got to make sure that the public out there are going to be confident, and I do not think they will feel confident if we are still going to have in-House enquiries and come up with conclusions which say that there is no truth in this particular allegation. Surely, at the end of the day, the prosecution and the courts can decide, because they are totally impartial and much more trusted to do the job than, maybe, a special committee of Lords.
  (Mr MacGregor) Could I say that, of course, I agree broadly with that proposition, because I sided myself entirely with those who say that the offences of bribery and corruption should apply to Members of Parliament in the normal way as to any other citizens. So, clearly, I am going very much down that route. I was trying to see whether there was any aspect of the unique position of Parliament which one still had to protect. One thought to put to Lord Archer is this, that any case involving a Member of Parliament, we know, gets a huge amount of publicity in the press—quite enormous. I have not really thought this through, but in the case of Michael Howard, which was absolutely dismissed by Sir Gordon Downey—completely and clearly dismissed—if there had not been some sort of screening process, would that get a huge amount of endless publicity and be dragged through the courts? I am not sure. I think I will just leave the thought with you.

Lord Merlyn-Rees

  686. In this instance, this comes under the heading of things that ought to be investigated by the Standards and Privileges Committee, not setting up a special committee. We are not suggesting that there was a great danger of a prosecution against somebody like the Home Secretary. Was there? Was it an allegation that could be cleared up by a House of Commons Committee?
  (Lord Newton of Braintree) I think that would have been a matter of argument, if things had gone differently. I think it would have been a matter of argument.

Mr Williams

  687. I agree completely with the theory that the role of the Director of Public Prosecutions should eliminate the risk of frivolous allegations. However, as we all know, there is enormous media build-up when parliamentary figures are involved, and it makes it much more difficult for anyone to be completely objective. I think we have to give the benefit of the doubt to the people we appoint to that office. As for the question of costs, John Macgregor has adduced the case of wealthy people (and I think we can all think of one or two) who might conduct such a campaign regardless of what it might cost. However, the more likely scenario is the reverse; that anyone wanting to have a go at a Member of Parliament would find someone who had as little resources as possible—as we find with libel cases. Allegations are made by people against whom it is no good taking libel action because they have no resources. That is, possibly, where we are more likely to come up against the question of costs, but I would not think that that was an insuperable problem for the courts to provide for. A further thought occurs to me, which is that because of the seriousness of allegations in relation to bribery and corruption, might there not be a remedy already within the legal system, that in the case of frivolous attempts, as opposed to genuine mistaken attempts, there should perhaps be consideration given by the Director of Public Prosecutions—or whoever is the appropriate person—to bringing a counter-charge of perjury or trying to pervert the course of justice? There must be numerous statutes that should, theoretically, enable a person who is thinking of making a frivolous complaint and who has nothing to lose from it financially, to still think twice about it, because he has something to lose in terms of his personal freedom and so on. It could well be no change in the law is needed but a change in the action of the existing filtering organisation, the Director of Public Prosecutions. The final point—and if I am anticipating questions to come, my Lord Chairman, my apologies and I will defer it till later—is that John MacGregor made the interesting point that he had a definite view of how to define parliamentary proceedings—though, if that is something we are coming on to I will not press it. However, I do not think the Committee would want either of you to leave here without expressing your views on that.
  (Lord Newton of Braintree) It may be you will wish to leave that to your own order of batting, as it were, my Lord Chairman. Can I make one comment on what Mr Williams has said? It seems to me that frivolity and perjury raise two entirely different issues. If a case is mounted and it turns out that the evidence is perjured evidence, then obviously there are the appropriate legal remedies. However, I would not regard that as frivolous—far from it. I can think of a number of other words. What I have in mind, when using the word "frivolous", would be trivial cases of a silly kind. Lord Archer touched on one just now, where it may be suggested that merely because somebody stayed a weekend with somebody he did something in Parliament in return for the hospitality. One can think of cases of that kind. Frankly, the system would not work if those were not struck out by the Crown Prosecution Service or the Director of Public Prosecutions. If a lot of cases of that character started to reach court, then, frankly, we need to start thinking again.

Sir Patrick Cormack

  688. Why can Parliament not deal with this vexatious and frivolous allegation itself? After all, we are dealing with Parliament and we must not be panicked by public perception, and we must not be panicked by one or two cases. That we need to redefine and improve our procedures, I readily accept. That no Member of Parliament who is corrupt should get away, I totally agree with. But I do believe that it should not be beyond our wit to come up with a system that does preserve freedom of speech intact, that does deal with the frivolous and the vexatious but which does not protect the really corrupt from long prison sentences if that is what is merited.
  (Lord Newton of Braintree) I would not have a completely closed mind against that, but I do have a question mark in my mind—which I think has already been touched on by one of the other interlocutors—which is what is the situation of somebody who has got a parliamentary Committee, or whatever it is that is doing this process, that has actually issued a finding, presumably public, that they are so concerned by what has come out that they think it ought to be taken to the courts. That would be taken as, virtually, a conviction before the case even came to be heard.

  689. Of course I accept that nothing is perfect, and that is what Mr Straw said when he sat where you are sitting now. He said whatever solution we come up with, there are going to be problems. I accept that the solution which I am tending to favour at the moment (although the Committee has not deliberated and I am not final in my mind) is not perfect. Of course it is not; it is fraught with difficulties, as is every other solution, but I am very concerned about the repercussions on freedom of speech if, in order to tackle what we all agree is a minor problem, we in fact erode a large section of Article IX of the Bill of Rights.
  (Lord Newton of Braintree) That is a perfectly fair comment, and I could be persuaded.
  (Mr MacGregor) Can I make a comment on this, because I think the background is that both of us—as is the Home Secretary—have been saying we should change the position of Members of Parliament, and that the normal laws of bribery and corruption in parliamentary proceedings should now apply to Members of Parliament. That is a fairly big shift in what has been the constitutional position. Therefore, I think all one is saying is that in making that leap, are there particular situations in which Members of Parliament by way of their unique position find themselves that we need to think about before they happen, as it were. I think that is why I was putting forward the suggestion I did. It may not be right, it might have a lot of difficulties, but at least it is worth thinking about. Mr Williams' comments before he asked the question, I thought, were very good ones. These also raise the kind of issues that we need to think about, because of the very unusual position which Members of Parliament are in, in public life. Lord Archer's point, about do you include staying with someone for a weekend, is an issue we are very used to dealing with in the context of Members' interests and the Register of Members' Interests. We know it has been quite difficult sometimes to grapple with what is something that Members of Parliament should not do but which is perfectly legitimate for them to do. These are all issues that we know are not easy, so we need to be sure that we have understood all that before we make the final leap.

  690. Perhaps I did not explain it clearly the first time, but the Member of Barchester is accused of whatever. He goes to court, and then you find that a whole lot of Members for all sorts of other towns, cities and counties are summoned and subpoenaed to give evidence in court, are questioned about their parliamentary activities and the speeches they have made when they have no personal involvement in the alleged crime at all. I do think we have to be very careful of anything which begins to erode freedom of speech within Parliament.
  (Mr MacGregor) I must say I do not have too much difficult with that particular situation. I think that Members of Parliament are perfectly capable of defending themselves in that situation, and if it was extraneous to the issue I presume the court would rule it out anyway.


  691. Can I ask my colleagues for their assistance. It seems to me that this is an extremely valuable and helpful meeting. I know Mr MacGregor has a meeting at 12 o'clock, but I am rather reluctant to rush through the whole of the remaining parts of these questions in a desperate attempt to finish by midday or shortly after midday. Would it meet with my colleagues' approval if we were to proceed at a normal pace and adjourn at, say, 12 noon and invite perhaps a slightly reluctant Lord Newton and Mr MacGregor to come back on another occasion, after Easter?
  (Lord Newton of Braintree) It is peculiarly difficult to speak for both of us, in view of this enticing suggestion. For my part, of course, it is a very important area and if it is helpful to the Committee I would be very happy to do so. I am bound to observe that one of the relatively satisfactory things about the past year for me—among many less satisfactory—has been that I have not had to spend all my time thinking about this.

  Sir Patrick Cormack: You made a very sensible suggestion. What we do need to do, as a Committee, when our Chairman is restored to health, is to have some deliberative sessions amongst ourselves. If, after that, our two witnesses today would be kind enough to come back, perhaps we could tease out some of the other issues and some of those about which we would, in the meantime, deliberate. This would be the way to deal with that.


  692. Let us proceed on that basis.
  (Lord Newton of Braintree) I was going to say, there are some basic points I have checked with my friend here. We would both be very happy to assist the Committee further.
  (Mr MacGregor) As I understand it, some Members of the Committee have to go at 12 o'clock as well, so it is not just me!

  693. We are extremely grateful for your co-operation. Let us then leave this interesting problem of corruption. We can add to it next time, when we have had the benefit of reading the transcript with care. Could I ask you a very much shorter matter. The very last sentence of question 6 simply reads: "Was section 13 of the Defamation Act a mistake?". Perhaps that can be dealt with fairly summarily.
  (Mr MacGregor) I actually voted for it.

Lord Merlyn-Rees

  694. That does not answer the question!
  (Mr MacGregor) I have not finished yet. You sound like some of the interviewers on the Today programme! I voted for it and I would do so again. I am aware of some of the criticisms but it seemed to me that given where we were at that time, given the state of the law, Members of Parliament were being very unfairly prevented, because of this quirk of parliamentary privilege, from defending themselves and from taking actions which would be available to any other citizen.
  (Lord Newton of Braintree) I reread the Debate last night, as a matter of fact, and if I had to make an even-handed presentation of the pros and cons, I would have an extremely difficult time indeed. I would describe it as the best of a bad job in the circumstances. There was a perception that the overall position that had arisen in relation to the Hamilton libel action and all the rest of it, whatever view one took, was that this was just not a very satisfactory position in which to leave anybody. That powerfully influenced those who voted for section 13. However, I have to say that in an ideal world, one would have proceeded in a more considered fashion over a longer period, probably after examination by a committee of this kind. Therefore, whilst I would not resile from it because I voted for it as well, I do think that this Committee now provides an opportunity to consider the issue in the broad. I do not think this Committee should rule out some further action in respect of section 13. In any event, of course, if you were to go down the path we have spent most of the morning so far discussing, that would virtually necessitate some view of section 13 because it is directed very largely at the same sort of issue.
  (Mr MacGregor) It might help to solve the problem anyway.

Sir Patrick Cormack

  695. The general view of our witnesses, up to now, has been of a hard case making bad law.
  (Lord Newton of Braintree) You used the phrase, I noticed.

  696. I agree with you, we would need to look at that in the round.
  (Mr MacGregor) It was curiously the case that Members of Parliament were disadvantaged rather than having a privileged position.


  697. Question 7 really relates to the issue as to whether freedom of speech ought to enable Members of Parliament to break court injunctions—for example, on disclosing the identity of a child—or, indeed, somewhat improbably perhaps, to commit a deliberate breach of the Official Secrets Act. Should the freedom be there in theory to do that, or should there be rules prevent it? If there were rules, would it be practicable to enforce them?
  (Mr MacGregor) Obviously it is desirable to have rules if it were practicable to enforce them. The difficulty is, how do you do so? I read some of the earlier evidence. I thought a very good point was made that you do not know, in cases of breaches of the court injunction, whether it is being made until it has actually happened. I can see some very real practical difficulties. Just two other thoughts. I do not really see that the right of reply in Hansard, for members of the public who consider they have been libelled, takes us very far. I do not see that as an attractive option. I suspect that the Australian experience shows that this is not very workable. The other point, of course, is that in both cases—court injunctions and a breach of the Official Secrets Act—the biggest problem is that once it is said in the House, it can then be repeated endlessly in the media and it gets a great deal of publicity that way. Whether there is any way of preventing this from happening, if it was generally agreed that there was a breach, is worth exploring. There are real practical difficulties there too because the propagation to the media now is instant rather than after the Speaker has had time to reflect whether there was a breach which should not be allowed to go further. In many ways this is where the real difficulty lies. If it were possible to find a way of dealing with that, perhaps that would solve the problem, but I am not very sure it is possible.

  698. In the very unlikely scenario of a Member of Parliament getting up and committing a grotesque breach of the Official Secrets Act where, as you say, the damage is magnified enormously by radio and television simultaneously, should he be liable to be prosecuted?
  (Lord Newton of Braintree) My own instinct, while John is thinking about that, is probably not. This is because at the end of the day—and this is quite different from bribery and corruption in that we are now getting into freedom of speech—frankly, once we talk about banning doing these things— One would hope that they are only done responsibly—and, of course, an awful lot of what we expect from Members of Parliament does depend on responsible people behaving responsibly—and there is no way the Chair can guarantee that. But I think a Member of Parliament, if, for example, he feels that an injunction is being used to suppress something which genuinely ought to be in the public domain, or—as might well have been argued not so many years ago, the Official Secret Acts was being used to suppress information which ought to be revealed in the public interest—at the end of the day one has to rely on that Member's judgment. I do not see any alternative.
  (Mr MacGregor) I think that is probably my reaction. I would like to reflect on the question you ask. I do very much feel that it is up to Members of Parliament themselves to act responsibly. It is the case that there are very few instances where they do not, but this has happened. There can be an injustice to ordinary citizens quite apart from the Official Secrets Act. So this does bother me, but whether there is a way of Parliament finding some way of disciplining people who are clearly breaching the normal conventions, short of prosecution, I do not know. Again, it is a case where it happens very, very rarely. Usually, the House expresses its views very, very clearly. But, of course, once it has happened, it has happened. That is the problem.

Sir Patrick Cormack

  699. Lord Weatherill did seem to think that there might be merit in the Chair having extra powers as with the sub judice rules. It was the witness whom you quoted, Mrs Patricia Leopold, who also said that she felt that to codify things, as to what is permissible or should be permissable, would be a good idea. That suggestion met with a fair amount of approval.
  (Mr MacGregor) But then, what do you do with somebody who, for freedom of speech reasons, actually insists on going ahead?

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