Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 780 - 799)



  780. You said you would not accord this the highest priority, and I do not want to press you on it, but can you help me, following through your line of thinking, what degree of protection would you accord to witnesses appearing before the Committees of the House? Would they be subject to qualified privilege?

  A. No. If they were witnesses before a Committee of the House, I would think that was a clear indication that they were participating in a proceeding in Parliament and they would have absolute privilege under Article IX as it is now.

  781. And you would leave that?

  A. Yes. Well, sorry, if the general position of Members were to be changed, of course then the position of witnesses and everyone involved in a parliamentary proceeding would be changed.

Mr Benton

  782. Would that not constrict witnesses, if you were to do that? What about the constraint which is put on witnesses? I would see that as an obstacle towards the pursuit of justice if a witness felt in any way constrained in giving evidence to a select committe. As I am sure you appreciate, it is totally different from being a witness in the courts, in the sense that you are bound under oath in the courts. I hope you understand the point I am making because I think it is rather an important point.

  A. I think it is a fair point, but one's answer might be, yes, it would constrain them, they might have to think rather carefully about what they said and make sure that they were not expressing personal grudges against people or something of this kind. Admittedly in court people can say whatever they like, and there is a law of perjury which does not usually get enforced against witnesses in parliamentary committees. So I think it follows that if you have qualified privilege it constrains you, but only to the degree that you must express your views honestly and not with any personal motive of a malicious kind. I do not, on the whole, think that is entirely a bad thing, that people should bear those constraints in mind when they are speaking, whether they are Members or witnesses.

Lord Mayhew of Twysden

  783. I am sorry to take another point on this, because you very fairly said you would not go to the stake on this, but is there not another point here, that it is not unusual—at least, this is my understanding—for the Treasury to look after the costs of a Minister—an illustration which you took—provided he has not gone right outside Government policy in the speech he is making? It is this in terrorem interest which Christopher Price speaks of which I think most people would be very unwilling to face, even though they would be advised at the end of the day the plaintiff would either lose or withdraw. Is there a point there which you recognise?

  A. I think it is a point which faces everyone in public life. If there were a flood of hopeless defamation suits, even though they got thrown out and this proved to be very costly, it would refute entirely the utility of what I am suggesting. I just feel it is not all that likely, it does not happen to members of local authorities, they do not have any protection, they do not have to engage in costly proceedings, and if anything of that kind happened then I would resile from this suggestion after two years if it turned out to be that it meant costly proceedings actually happened. As I say, I do not think it likely. That is why I think the whole subject of removing absolute privilege is surrounded by a certain amount of dubiety. I think on grounds of high principle it could be justified, and I raise it because I am an academic, but I think there are more urgent and pressing tangles to be sorted out about Article IX than this rather major point of principle.

Sir Patrick Cormack

  784. There is much to be said for "When in doubt, do nowt".

  A. I agree, yes. That was my point about codification of the whole thing. It is what I feel about messing about with the terminology of privilege and calling it something else.

  Lord Mayhew of Twysden: I thoroughly enjoyed that, that it all ended in hopelessness!


  785. Can we move on to section 13 of the Defamation Act 1996? I think it is fair to say that it has not found much favour with, at any rate, most of the witnesses we have seen on this Committee. They would, I think in most cases, simply wish to repeal it. Your preferred route, of course, following what you have already indicated in relation to Article IX, would be to amend section 13 so that what one might call the waiver would become unconditional. Would your suggested redraft of section 13 mean that other Members, and indeed officers or staff of the Houses, could then be sub-poenaed and cross-examined in court about what they had said and why, if that was relevant to defamation proceedings?

  A. Yes, I think that would follow. I think one would have to accept that, but I think that of course would already be possible under section 13 as it now exists. If the Member brings an action under that section, then that problem would arise as the law now is. Could I say that here is a matter on which I have had a slight re-think? I think it is not just a matter of fixing up defamation law here, I think there is a need for a general free-standing provision to deal with what I think of as the indirect impact of Article IX rather than the direct impact, that is to say, the present inhibiting force of Article IX in civil actions, and possibly criminal actions too, which have nothing directly to do with penalising a Member for what he says. There are other forms of proceedings. For example, there might well be criminal actions, and bribery is one of these things. An amendment of a general kind would say that no rule of privilege shall affect the giving of evidence in a case where it is not directly a matter of penalising a Member, but evidence is needed in some other case such as a bribery case, an assault case or any of the cases that now may arise under welfare legislation which have nothing to do with the proceedings of the House but where proceedings are being taken. Let me give, perhaps a silly example. Suppose a Member physically assaults another Member in the House. As you know, Erskine May says that is nothing to do with the proceedings of the House, it is not withdrawn from the criminal law, but he might well say, "The reason I did it was because I was insulted by something he said in that speech", and he might want to give that in evidence or the defendant might want to give that in evidence to show why he did it. That is nothing to do with the purposes of Article IX, and I think that is why you need a free-standing provision to allow evidence to be given in all kinds of cases, including bribery, assault, welfare cases and so on which do not involve the mischief of Article IX. Therefore, a provision of this kind, retaining sub-section (4) of the existing provision which would prevent it having any impact on the direct criminalisation of speeches, speeches of proceedings, would simply allow evidence to be given in cases which have no direct connection to proceedings. Now I admit that with bribery there is some discussion about whether in some bribery cases the proceedings are relevant to the bribery charge or not, but there are many cases where there is no connection at all between the case and its merits and the penalisation of Members for speaking. The expansion, what I call the indirect expansion of Article IX, has produced these difficulties in these cases.

  786. I follow that, and I follow, if I may say so, the neatness of your solution, but can we for a moment look at bribery which you have mentioned? As I understand it, essentially you question whether it is necessary to make any special provision regarding Article IX because either the courts will not need to look at what happened in the House in the conduct of the trial, or if they do, what has been said can be put in evidence in any event quite regardless of Article IX. I would like your help on the latter point. You have already indicated a moment ago that there may be cases where, in the course of a trial, the defence, for example, might wish to put in evidence as to what a Member did in the House, why he did it, and that might involve evidence from other Members on the same lines. As Article IX is presently interpreted, that could not be done, could it?

  A. Not on the wider interpretation, no. I think that is right. As I have said, under the existing amendment and section 13 in all sorts of cases other people might be dragged in. One case that did strike me was, suppose you had had people complaining about Ministers not resigning after the Scott Inquiry—I am going back now to the other sort, not the bribery case but dragging in other Ministers in defamation—I think it is inherent in the proceeding as it now is where Members can sue that in any of those cases either the defence or the prosecution may want to get someone else to give evidence, and say "I would like to call the Prime Minister and ask him what his views were about this, or why he took this or that action, or why he did not make Ministers resign when they should have done", if that was the substance of the argument. So there is always that possibility of other people being brought in, but I think if one is going to have proceedings either brought by Members or brought by citizens against Members, one has to, subject to rulings of the court, allow people to bring what evidence they like. It is already possible in such cases, but it does not happen.

  787. It is possible at the moment in defamation proceedings if the Member waives, is it possible elsewhere?

  A. I should have thought it might be possible in a disputed bribery case. If one did not take the point that bribery occurs outside the House and it is nothing to do with proceedings in Parliament, if you wanted to show a motivation and you wanted to show why the Member who was charged with having taken the money for, let us say—and there are some American cases along these lines—using his influence with a Minister or something of that kind, if that is the substance of the bribery charge, somebody might want to call the Minister and say, "He did not use his influence with you as it is alleged he had done when he is charged with bribery". Or he might want to bring evidence to show his motives had been perfectly innocent and, although he might have taken money, the result was not the purpose of influencing his conduct in the House. So I think in a bribery case there could be defences—the defence or the other side might well want to bring other witnesses to prove motive. I do not think motive should be necessary in a bribery case, but I can see there might be some particular bribery accusations that might involve people arguing about their motivation in the House if that is what they had been bribed to do.

Lord Waddington

  788. But surely if you are looking at a case of a bribe being offered and two people are being tried—the person who has offered or given the bribe and the person who is alleged to have accepted the bribe corruptly—there is nothing fanciful about the possibility that the evidence of whether he accepted that money corruptly will depend entirely on what he said on the floor of the House? Because it may well be that the person wanted him to say something to try and influence a Minister, and it would therefore be crucial to the prosecution that evidence should be led as to what he said on the floor of the House and what he meant by what he said on the floor of the House. So does it not follow that if you are going to allow the trial in the criminal courts of bribery of Members and acceptance of bribes by Members, you have to have a provision which waives Article IX in those cases, so as to allow the adducing of evidence of what the Member said on the floor of the House?

  A. Yes, that is exactly why I advocate this free-standing provision for exactly that kind of case, so such evidence can be led. It does not affect the primary thrust of Article IX, but just for this kind of case you need authorisation to lead that kind of evidence. I think there will be some bribery cases where it would not be necessary. If you really have evidence that somebody took money in a paperbag and you have evidence about what he said and the person who gave it is giving evidence, that may be sufficient in itself.

Sir Patrick Cormack

  789. The taking of the money is an offence anyhow, regardless of what is said.

  A. Quite. You either have evidence of it or you do not. If you do not have evidence, you could not show it anyway. If you do have evidence, you do not need to show the bribe was actually successful. But I concede there may be cases, and it is precisely because of these cases I think you may have to lead such evidence and you need some authorisation to do it.

Lord Waddington

  790. I was picking you up on that part of your memorandum, Dr Marshall, "Bribery of Members", where you say, "It is not clear why in any case involving alleged bribery of a member in relation to his parliamentary conduct, evidence of proceedings in Parliament is necessary." That is not really correct, is it, for the reasons I have mentioned?

  A. I think it is not correct in some cases. I think there would be some cases where motive had to be shown and you had not got sufficient evidence about the original corrupt taking. That is a point which had occurred to me after I wrote that, and that is precisely why I say I have had some further thoughts, and one of them was that you would have to lead evidence, and Article IX as it stands would prevent it and that is why I want to knock out the indirect impact of Article IX by allowing such evidence to be given.

Sir Patrick Cormack

  791. But do you want a general waiver or a specific waiver? You will have read much of the evidence we have had and this has come up time and again. The Committee could be faced with the choice of deciding there should in effect be a general waiver or that it should be up to Parliament by whatever mechanism—and all sorts have been suggested—to decide whether in a specific case there should be a waiver and the general protection should remain. How do you see that alternative?

  A. I am saying there should be a general waiver along the lines of saying that when the conduct of any person in relation to proceedings in Parliament is an issue in any court or tribunal, no rule of privilege should apply to prevent evidence being given or questions being asked, statements, submissions or conclusions being drawn, about his conduct. That would be a general provision.

Lord Waddington

  792. Is it appropriate to go on now and raise a question as to whether the law needs to be changed? You suggest in your paper that it really is not necessary to change the substantive law to make it possible for a person who offers a bribe and a member who accepts a bribe to be tried in the criminal courts, presumably relying as an authority for that proposition on the Harry Greenway case. Are there any other authorities for that proposition?

  A. I think so. The Greenway case, if I remember, was a common law prosecution. It was not under statute. There are a number of cases in Australia, for example, that say that bribery is a common law offence. R v Boston was one.

  793. Would it not be desirable, for the sake of certainty and as we have to change the law anyhow to waive Article IX to put any potency in such a prosecution, to clarify the matter and have a new criminal offence of bribery and acceptance of a bribe by a Member of Parliament?

  A. I agree with that. If the reconstruction or the amendment of all the Prevention of Corruption Legislation is being considered and is thought necessary for other reasons, which it may well be, it would do no harm at all to bring both Houses within the definition of "public body" in the 1889 Act. It only seemed to me that there are very good reasons for saying that it is already in there. The Salmon Commission I think were rather dogmatic about saying that neither House of Parliament was a public body. They did not give any very good reasons for supposing that the 1916 Act had not broadened the definition of public body to include Parliament. If there is any doubt about that and if the common law is not thought sufficient, which it seems to be anyway, it would do no harm at all to have a simple amendment in whatever corruption legislation is being mooted. It would only have to be two lines to bring either House of Parliament within the definition of public body, for purposes of that legislation only, not generally, because there may be other reasons for not wanting the House to be a public body. It is not under the new Bill of Rights, for example. It is specifically said that neither House of Parliament is a public authority.

Sir Patrick Cormack

  794. It is actually a hybrid body, is it not?

  A. It is some sort of public body but there may be different statutory purposes for which you might or might not want it to be a public body. For bribery, I think it clearly should be made to come within the definition of public body. I am not at all against a belt and braces approach to bribery.


  795. Can I move on to a different point where I would like your help, Dr Marshall? It really concerns who, at the end of the day, is to have the last word in interpreting, for example, the phrase "proceedings in Parliament". Whether an attempt is made to define that term or not, issues can arise, for example, in ordinary civil litigation in the courts. A non-Member sues a Member for defamation and the Member wishes to say, "What I said has the cloak of absolute privilege because it was said and communication was made by way of proceedings in Parliament" and there is a dispute about that. It might be, for example, a letter to or from a minister or a constituent. As matters stand, my understanding is that, in such civil proceedings in the courts, the courts would decide whether that defence by the Member was well founded, even though that involves interpreting the meaning of the phrase "proceedings in Parliament" in Article IX and applying it to a particular situation. As you may have seen from the evidence, the Lord Chief Justice has suggested that issues such as that should be decided not by the ordinary courts but by the Judicial Committee or some other committee of the Privy Council. Have you any thoughts on that?

  A. I must say I cannot see any special reason why one would want that to be so. Usually, when one invokes the jurisdiction of the Privy Council, it is on some high and difficult matter like issues arising under the Scotland Bill or the vires of legislation or something. Whether a matter is a proceeding in Parliament seems to me tricky but an ordinary question of statutory interpretation and I should have thought it could be left to be decided in the course of ordinary proceedings, where it naturally would fall. I am just trying to think of an example where there would be a doubt about whether something was a proceeding in Parliament. Here is an absurd example: suppose a chairman of a parliamentary committee wrote to me and said, "We were going to ask you to come and give evidence but we now discover you are a scoundrel, utterly incapable of performing your functions and should be dismissed from your job immediately. PS: this is a proceeding in Parliament so do not think you can sue us. There is a resolution of the House to the effect that all letters from chairmen of committees to persons outside the House are proceedings in Parliament". If I were to press ahead with a defamation suit, I think that would be an issue which the court would simply decide in the course of deciding whether I could proceed. It either would or would not be a proceeding in Parliament and the court would decide it. I cannot quite see why the particular skills of the Judicial Committee of the Privy Council are needed for it.

Sir Patrick Cormack

  796. I suppose the only way in which that argument would be put—and I think it is put—is this: I have not a ready made illustration, I am afraid, to point it up in my mind at the moment, but it is helpful to have some experience of Parliament when, in a particular instance, this issue falls to be decided. Parliament develops and the job of Members of Parliament changes very substantially over the parliamentary lifetime of any one of us. Do you see any force in that? I am a little bit repelled by the notion that this is a clear and clinical issue which can be decided by anybody with a good, analytical mind.

  A. I think the courts should be given some help and that is why the enumeration of things that fall within parliamentary proceedings in the existing section 13 of the Defamation Act 1996, which is quite useful, should be retained in any free standing provision; but I think it should not be an exhaustive enumeration. I think it should take the form of saying that the following matters—and here Parliament or the Houses should reflect upon what they really want to fall within it—fall within the ambit of parliamentary proceedings. You can then specify what you think should fall within parliamentary proceedings, but it should not be an exhaustive or necessary and sufficient definition because there will be things that appear on the border line, or someone has not thought about them and so on. One would not want it to be exhaustive. That is why I think a statutory definition of proceeding in Parliament is not a good thing. Quite a lengthy enumeration of matters that should fall within it to assist the courts would be useful, and then marginal cases are no different really from any question of statutory interpretation which comes up in the courts all the time. Some are very tricky but one does not rush off to a superior court every time a question of statutory interpretation turns up.


  797. Could we turn to another important aspect of parliamentary privilege: exclusive cognisance. You have raised some searching questions about the width of Parliament's right to exclusive cognisance for its own proceedings and I think you question whether, in its full width, that right can be justified today. I wonder if I could just explore with you for a moment what exclusive cognisance you think Parliament needs today? Would you agree that it is necessary for the House to have exclusive control over its procedure for legislation, arranging its business and deciding whether or not its own procedures have been complied with, leading in due course to an Act of Parliament?

  A. I think exclusive cognisance is a great mystery really. In its widest sense historically, as it was framed by Coke and Blackstone, it is obviously in modern times far too wide. The notion that anything at all that happens within Parliament must be adjudged by Parliament and not otherwise is a much wider principle than the notion that matters to do with proceedings in Parliament should be adjudged by Parliament and not by anyone outside. I think the true principle is not that there are two jurisdictions, but that the courts have conceded that certain matters to do with the work of Parliament should be unreviewable. It is not that Parliament has a jurisdiction. Only the courts have jurisdiction, but the courts have properly said that matters to do with the rules of the House, the control of its Members and the details of legislative procedure—those are the principal things—ought to be adjudged by the House, short of extreme cases for which there might have to be judicial review. I would think that those things would be matters about which the courts would naturally say these should be treated as in all normal cases unreviewable. Those are the principal matters, I think: the procedure of the House, the control of its Members and the details of legislative procedure, as matters now stand. There could be changes in that of course.

  798. For example, on control of its Members, do you think that if a Member is disciplined, the courts should have any supervisory judicial review role in relation to that internal disciplinary procedure, comparable to that which is exercised in the case of internal disciplinary procedures of other bodies?

  A. I would think that in principle there must be some element of supervisory jurisdiction to deal with extreme cases, but they would have to be extreme cases and the review would be only on grounds of complete irrationality or absolute unreasonableness or something like that. You may remember the case of Congressman Powell in the United States, where he was excluded from Congress on grounds which he held to be unconstitutional. The courts thought that they had to take a view about it. They did not impose any liability on Congress but they enforced remedies against the officers of the House who had excluded him. Certainly in the United States any constitutional grounds for thinking the House had exceeded its powers would be reviewable. I think in principle here, if one can imagine a case, it would be reviewable but in almost all circumstances the courts would surely say that this must be left to the House.

Sir Patrick Cormack

  799. I find it difficult to see what would be the principle by reference to which a court would decide. It is, with respect, quite easy to say that in an extreme case there would be a judicial review, but how does one measure, if one is a court without parliamentary experience, when the extremity is reached? I find this really very difficult. Are you putting the proposition that normally they would not act, on pragmatic grounds which include the undesirability of tangling with the legislature, or are you putting it upon some principle of its own?

  A. I would be putting it on the same principle that the courts handle disciplinary matters in other organisations, whether trade unions, professional associations, the Jockey Club or whatever.

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