Examination of Witnesses (Questions 440
- 459)
WEDNESDAY 10 JUNE 2009
DR MALCOLM
JACK, MS
JACQY SHARPE,
MR MICHAEL
POWNALL AND
DR CHRISTOPHER
JOHNSON
Q440 Lord Lyell of Markyate: That
is key to the freedom of speech?
Dr Jack: That is key, yes, absolutely
correct.
Chairman: Subject to this Bill
of course.
Lord Lyell of Markyate: Yes subject
to this Bill. Enough said.
Chairman: Do you want to go on to the
next question, Mr George?
Q441 Mr George: Have there been any
cases involving Members of Parliament saying defamatory things
in all-party groups or party meetings? I presume that would be
totally excluded from the definition?
Dr Jack: Yes those words would
not be covered by privilege because they would not be in connection
with a proceeding of the House. I think if you are asking about
the evidence on whether there has been a hampering of prosecution,
is that the question you are asking?
Q442 Mr George: We will come on to
that later on.
Dr Jack: Okay but that is the
case, yes, that would not be covered by privilege.
Q443 Earl of Onslow: For my own information
if a Member of either House is given seven and six pence to say
something, would a court be allowed to use in evidence the words
that he said, perhaps: "I would urge the minister to buy
sweeties from the corner shop in Scunthorpe", or whatever
the bribe is for? Would the corner shop in Scunthorpe speech be
allowed to be used in evidence or is that privilege?
Dr Jack: That is privileged and
it would not be allowed to be used as matters stand now.
Q444 Earl of Onslow: When you get
statutes being interpreted by what is said in Parliament, is that
included or am I going off at a tangent?
Dr Jack: In my quotation of Article
IX the last part about impeaching or questioning, there has been
some, how shall I put it, watering down of questioning in the
case of Pepper V Hart which I think was in the early 1990s,
1992, and in that case the courts took the view that it was proper
for the court to look into the minister's speech or the promoter
of a bill's speech to ascertain what the meaning of the law was
when it was obscure or ambiguous, and it was limited to that,
but nevertheless it is regarded as an intrusion.
Q445 Chairman: That is a matter of
statutory interpretation rather than anything else?
Dr Jack: That is right but it
was nevertheless an entry into the privilege area.
Chairman: Lord Anderson, I think you
wanted to look at the possibility of prosecutions.
Q446 Lord Anderson of Swansea: Yes,
it was just the problem which is relevant to clause 15 of just
how relevant is the mischief? Is it something which has occurred
in the past or in the real world is likely to occur in the future?
I notice that Sir William McKay, who has already been quoted,
suggested in the 2003 proceedings that waiving privilege in corruption
cases could be compared to using "a mighty sledgehammer to
crack an almost invisible nut". Is that something with which
our witnesses would concur? Is there any evidence that the protection
of privilege has indeed hampered prosecutions from bribery or
corruption in the past? What in the real world is your assessment
that clause 15 of the draft Bill would in fact pave the way for
any increase in prosecutions in the future?
Dr Jack: It is difficult to answer
this in an accurate way and I think a lot of this is anecdotal
stuff. I do not mean to disagree at all with Sir William's evidence,
but he made that clear in his evidence to the Joint Committee
then. I think in 2003 Sir William said that he could not recollect
any case in the previous ten years of his experience that would
come into this category. He thought that there had been one or
two cases where in a very preliminary way an approach might have
been made to Parliament and Parliament said, "Go away and
find your evidence somewhere else because you are entering into
the privilege."
Q447 Lord Anderson of Swansea: But
he knew of no particular cases?
Dr Jack: He knew of no particular
cases. I think if I can just quote the Joint Committee on Parliamentary
Privilege which of course said, "We are confident there are
very few instances of corruption involving Members of Parliament."
Since Sir William's evidence—and of course I have been the
Clerk since 2006—I know of no cases at all.
Q448 Lord Anderson of Swansea: So
in short it is not a real problem, is it?
Dr Jack: It is not a real problem,
no.
Q449 Dr Iddon: How would you balance
the competing interests of convicting the corrupt and protecting
freedom of speech in Parliament? Indeed, does clause 15 of the
draft Bill strike the correct balance in your opinion?
Dr Jack: I think that does come
to the essence of the discussion about the public interest test.
I think the first thing that we must say of course is that corruption
is obviously a serious matter, and no-one is suggesting that it
is not, and indeed it is a contempt of the House, and it is a
serious contempt, it is a high crime and misdemeanour. There is
no question about the seriousness of it. I think what one has
to weigh up, and respectfully if I may say that is what your Committee
must do Lord Chairman, is whether it is worth interfering with
the complete and absolute protection of Article IX in respect
first of all of just one instance of a case and also the general
effect that it might have on debate in the House. Going back to
2003 again, I think the purport of Sir William's evidence—and
he used the phrase that it would have a "chilling effect
on debate"—was that he felt that any thought in a Member's
mind that entering a certain debate in the House would possibly
end up as evidence in a court would have a chilling effect, and
he thought that it was not necessarily a matter of numbers but
just the general feeling that something that someone said in Parliament
might end up as evidence in court would have that effect. That
was supported very much by Harry Evans, who was then the Clerk
to the Australian Senate, and he reckoned that it was a serious
attack on Parliamentary immunity. I rather agree with those witnesses
of 2003; I think it would be quite a serious attack. However,
I respectfully say I think that is what your Committee has to
decide, Lord Chairman.
Q450 Lord Lyell of Markyate: I just
happen to be steeped in Macaulay's History of England at
the moment and it is worth remembering James II leading up to
the Bill of Rights, and that high crimes and misdemeanours is
not an American phrase, although we tend to think of it as such,
it comes straight from the English Parliament and, secondly, the
chilling effect that Sir William referred to was very real in
those days when if you were a thorn in the flesh of the Government
ie, principally the King and his ministers, then witnesses could
be found to bring charges against you, and in an imperfect world
that could happen again, indeed it does happen from time to time.
If you were banging on endlessly about something to the annoyance
of the Government, it could perhaps be linked with some alleged
corruption, and you would then be in trouble.
Dr Jack: I am very happy to follow
you in the history lesson, my Lord. I think there is a problem
about vexatious prosecutions of Members which could occur in the
modern context, yes, I agree with that.
Mr Pownall: Lord Chairman, if
I could just add to the answer to the main question. I would simply
point out that this is the third time in a decade that a Joint
Committee of both Houses has addressed this issue and I for one
would have some hesitation in going against the conclusion of
certainly the 2003 Joint Committee, which more or less recommended
the provision in clause 15 as it currently stands, so it is an
issue which is now being addressed for the third time.
Chairman: It is quite important
in that case that we should get it right this time.
Q451 Lord Lyell of Markyate: Chairman,
could I just follow up, perhaps through you, why should we follow
it? What is it that it identified that will make us a freer country
or a better governed or a better judged country?
Mr Pownall: It is just a question
of the balance between public interests. I would hesitate to say
this but I would think that the balance comes down in favour of
allowing proceedings to take place in accordance with clause 15.
It is a question of balance.
Q452 Lord Lyell of Markyate: Although
nobody can identify a case?
Mr Pownall: That is right, I cannot
identify a case, that is true.
Q453 Lord Anderson of Swansea: In
that case, do you see any real purpose in clause 15?
Dr Jack: I think your witnesses
may have a slight difference of view on this. I do not know whether
it is the angels or the devils but I rather veer towards thinking
that the conclusions of the previous Committee were not correct
and that Sir William was correct, and I think that is what I would—
Q454 Earl of Onslow: Is this a private
fight or can anyone join in?
Dr Jack: These are complex matters
and I think the balance is a fine one and in the end one just
has to decide one way or the other.
Chairman: Should we go on with our list
because the next question points to the difference in the protection
as between Members and witnesses and Baroness Whitaker wanted
to ask this.
Q455 Baroness Whitaker: We could
also say that the Clerk of Parliaments has struck a balance in
the previous discussion on clause 15. He does have a point, but
of course the position of witnesses is slightly different. Our
crib says that a witness has a more privileged position because
an accused Member, if clause 15 goes ahead, could not rely on
the words said by a witness even if they were exculpatory. A contrary
view is that the witness is in fact in a more vulnerable position
because surely there are proceedings in select committees where
witnesses say things which they would only say so long as they
were protected by privilege. If they wanted to say that a big
company committed a bribe they might well be able to do that in
a select committee and would not risk it outside. Do you have
a view as to whether this greater protection which witnesses have
is right or should they be on the same level as Members?
Dr Jack: If I am following my
argument through of course they will be on the same level because
they will be protected as Members will be protected, but I think
the particular worry about witnesses which came out in the Joint
Committee, and then subsequently the Liaison Committee of the
House of Commons, I think, became very concerned with this issue,
was simply because it was felt, the reason that you just said,
that if witnesses were not given complete protection in giving
evidence to select committees this would be hampering the work
of select committees. I think that was really the essence of it.
I do not know whether my colleague Jacqy Sharpe, who has more
experience of select committees than I do, might throw some light
on that?
Ms Sharpe: I think the one thing
that one might consider in relation to protection for witnesses
is that witnesses are coming from outside Parliament, they are
not part of Parliament, and if there was actually any need to
investigate anything that they had done you would not usually
need in any sense to rely on what they had said as part of proceedings
because they would have another existence beyond Parliament which
could be looked at. I would say that in what witnesses say before
Parliament they do deserve protection so that they can feel they
can say freely what they believe and know that they will not have
any legal consequences of that.
Chairman: Thank you for that.
Question 18 is quite an important point about fairness of trials.
Mr George: I belong to the newly
formed Society for the Protection of MPs Against Cruelty, and
members are increasing by the hour!
Mr Borrow: It was formed a bit
late!
Q456 Mr George: Under the draft Bill
the words of an accused Member spoken before a select committee
would be admissible in court but the words of other Members and
witnesses would not. Is this not unfair on the accused Member
if he or she could not rely on the other words spoken during the
proceedings, particularly if they were exculpatory? Could this
breach Article 6 of the European Convention on Human Rights relating
to the right to a fair trial?
Dr Jack: I think the answer is,
yes, if the exculpatory material could not be used then that could
be a disadvantage to that Member. I am not sure that we are the
right people perhaps to comment on Article 6 of the European Convention,
but I think that it would certainly be the case, yes, a Member
could be disadvantaged.
Mr Pownall: I would just add that
it is difficult to envisage circumstances in which words spoken
by another Member or witnesses could be both exculpatory and admissible
in court. I cannot really think of circumstances in which words
spoken by some other Member could be relevant in a trial.
Mr George: With the contemporary
experience of which we are all aware, is it wise to say that it
has not happened before therefore it might not happen in the future?
This is part of the British disease. We do not seem to be prepared
to think about the future, relying too much upon the past. Is
your argument a reasonable one: it has not happened yet—because
it could?
Earl of Onslow: May I suggest
that I can think of a case. We will go back to the teashop in
Scunthorpe where a Member suggests that the teashop in Scunthorpe
should do something, it is alleged that he has taken a bribe so
to do. If another Member says, "I heard the Member advocating
this before the date of the bribery," that would be witness
in the man's defence. His speech would be unprivileged if this
clause goes through but the defence saying, "I heard him
saying he was going to do this before the bribe was proposed,"
would be exculpatory and that would not be admissible in evidence;
is that right, Lord Lyell?
Lord Lyell of Markyate: It is
possible.
Q457 Earl of Onslow: Have I got it
right?
Dr Jack: I think that is possible.
The only light that I feel I can shed on all this is in the 2003
inquiry the then Director of Public Prosecutions actually cast
doubts on the whole matter of the admissibility of what was said
in criminal evidence anyway and he summed this up by saying, and
I am quoting him: "Saying things about people is not evidence;
facts are evidence".
Q458 Lord Goodhart: Can I suggest
another possible case where it would be exculpatory and that is
if Member A is being charged with bribery and Member B in the
course of proceedings in the House admits that it was not Member
A but himself who was guilty of bribery.
Dr Jack: Yes, that is undoubtedly
a very interesting case.
Q459 Lord Lyell of Markyate: Could
I ask quickly do you remember the Neil Hamilton case which changed
the law in a minor degree? Does that have some relevance to this?
Dr Jack: I think it does in an
indirect way in the sense that this is the Defamation Act where
the House agreed that a Member could waive privilege if he was
a defendant in a defamation case. I think where it touches upon
this is this very business of various parties being involved and
how you actually sorted this out. I think it was one of the reasons
why it has been concluded that that reform of it, if it was a
reform, does not really work at all, and the Joint Committee recommended
that it should be repealed, so I think it raises similar sorts
of issues about more than one person being involved.
Chairman: Dr Iddon, you have asked to
raise the points in 19 and 20. Certainly 20 would be a comprehensive
provision which would allow us to discuss all this again.
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