Examination of Witnesses (Questions 880
TUESDAY 28 APRIL 1998
DOWNEY, KCB AND
880. Is there within the ordinary disciplinary
processes that take place in the House a right to cross-examine
(Sir Gordon Downey) No.
881. Would that not be regarded today as an
essential part of a fair process which involved criminal sanctions
even if it is disciplinary?
(Mr Pleming) If it involves criminal sanctions you
would then have to look through all the ingredients of a fair
trial not only under Article 6, because Article 6 does not deal
specifically with all aspects of a fair trial, as I would see
themI was thinking of the Scott Inquiry as an equivalent
inquisitorial process which may or may not have led to criminal
proceedings. There can be cases where non cross-examination is
still consistent with a fair inquisitorial process.
882. With the disciplinary process in the House
which can involve ultimately expulsion, imprisonment possibly,
I confess, I would be very surprised if the European Court of
Human Rights did not take the view that that fell within Article
6(2) as something which for this purpose involved criminal sanctions.
(Mr Pleming) If the view, first of all, is that this
was a criminal process for Article 6(2) purposes then you would
expect to see the equivalent protections of a criminal trial,
including the right to cross-examine, the right to representation,
the right to equality of arms with the prosecution, and that of
course will involve an independent tribunal and also the appellate
structure. So you would either have to create that structure to
meet Article 6(2) compliance or you would have to say, "No,
this is not for the House, this is for the criminal jurisdiction
of the courts."
883. So that is something else we may need to
(Sir Gordon Downey) It seems to me that the current
procedures available for disciplinary cases work very well, if
I may say so, for the general run of disciplinary cases. The investigation
I think can produce a reasoned judgment and I think the Committee
on Standards and Privileges is well able to exercise certain functions
in an appellate capacity. What it can do is to satisfy itself
that the investigation has been conducted with reasonable and
appropriate procedures, for example, and it can satisfy itself
that the conclusions of the investigation are supported by evidence
and are not manifestly unsound, that sort of thing. I do not think,
for some of the reasons I have mentioned earlier, that a Committee
would be well placed to act in an appellate capacity if there
was a need for a rehearing. In those circumstances I think the
Committee is not well equipped, because a Committee never is,
to handle a really complicated case and, also, I think it would
be in a sense difficult in principle for an appeal to take place
from an independent investigation to a party political committee.
I think it is in those circumstances, either because of the seriousness
of the offence or the complexity of the case, that there may need
to be an alternative appellate arrangement bringing in a greater
degree of independence. I would not want to say much more than
that because, as you know, the Committee itself is examining these
matters and given my relationship with the Committee I only throw
that out as a first thought on the subject.
884. Should the Register of Members' Interests
fall within Article 9 as a proceeding in Parliament and therefore
be immune from being questioned in any circumstances before the
courts or not?
(Sir Gordon Downey) I think if corruption were being
examined by the courts then there really should be no barrier
to its opportunity to satisfy itself on necessary evidence and
if it is relevant for them to draw inferences from the Register
then I would have thought the Register should not be exempt from
that process. I think the answer more specifically is that it
should not be covered by Article 9.
(Mr Pleming) My Lord Chairman, could I respond on
that because it seems to me that this may go to the heart of one
of the problems, which is Article 9 of the Bill of Rights and
the definition of "proceedings in the House". The question
is whether or not material is excluded under Article 9 or the
House decides that because the criminal process is engaged then
there is no evidence that cannot be used, if it is relevant, for
the determination of guilt or innocence. That question may then
bring in Article 6(3) of the European Conventionotherwise
there would be the prevention of the defendant bringing witnesses
before the court.
885. But leaving aside corruption for a moment,
there may be other circumstances in which a member of the public
might wish to refer to the content of the Register, either in
terms of what is there or what is not there. It might arise, for
example, in defamation proceedings. Do you have a view on whether
the Register in that context should be immune from the questioning
in the courts?
(Sir Gordon Downey) As soon as one crosses the boundary
from corruption to defamation my sympathies rather swing from
one side to the other. I would be very concerned about any action
taken which would enable the courts to question or challenge proceedings
in Parliament in defamation cases.
886. I have not made myself clear. If something
is said outside Parliament and for the purposes of trying the
defamation proceeding the non-member wishes to use not what was
said in Parliament but the content of the Register, do you think
the Register should or should not count as a proceeding in Parliament
for that purpose?
(Sir Gordon Downey) No, I do not think it should count
as a proceeding in Parliament. I think the Register is a public
document and I think the courts ought to be able to draw on that
as a source.
Chairman: If there are no other questions, may
I thank Sir Gordon and Mr Pleming very warmly for their very considerable
assistance this morning. You have both given us a great deal of
food for thought on some of the difficult questions that we are
having to grapple with. Thank you.