Examination of Witnesses (Questions 460
- 473)
WEDNESDAY 10 JUNE 2009
DR MALCOLM
JACK, MS
JACQY SHARPE,
MR MICHAEL
POWNALL AND
DR CHRISTOPHER
JOHNSON
Q460 Dr Iddon: Do you think there
is a need, as recommended by the Joint Committees of 1999 and
2003, for a separate Parliamentary Privileges Bill to make further
reform, bringing into account perhaps the fraud offences, or would
this risk bringing the courts more into conflict with Members
and their work? I gather that the Clerk of the House of Commons,
Dr Jack, has recommended a Privileges Bill.
Dr Jack: Yes I think I have, not
after a great deal of thought, and with some trepidation. I think
perhaps, without being too discursive, this probably needs a bit
of context, historical and otherwise. If we think back to the
provenance of privilege in the first place it is, as has been
mentioned already, a struggle between Parliament, particularly
the House of Commons, and the Crown and the Executive. Subsequent
to the Bill of Rights, which of course codified existing privilege
which had existed in the House of Commons for very long periods,
the focus of the conflict, if I can call it that, became between
Parliament and the courts, and I think that throughout the 19th
century there is this to-ing and fro-ing between the courts and
Parliament trying to establish what are the correct boundaries,
what should be left to Parliament and what should be left to the
courts. As early as 1839 in the case of Stockdale v Hansard
Lord Denman said that the House controlled its internal proceedings
but the court could determine whether privilege was exclusive.
It was the court that could hold an inquiry into whether privilege
was properly asserted. I think originally the courts took the
view that there was no such thing as parliamentary privilege anywhere
and they simply ignored it, and then gradually, and I am sure
with the Bill of Rights they became more convinced that there
was such a thing as the law of Parliament, the lex parliamenti,
and they started to look at the borders around it. I think the
story in the 19th century was that the courts were generally reluctant
to get into the area of exclusive cognisance, the area really
that the Houses determine for themselves, setting their own rules
and so on and so forth, but on the boundaries of privilege they
were willing to begin to question more. This went on into the
20th century. I have got a quotation here from Lord Denning who
said in the Pickin case in 1973: "The courts must
ensure that the procedure of Parliament is not abused. In this
matter the courts are acting in aid of Parliament". I think
that in Australia the background to the 1987 Act was just this
sort of gradual questioning by the courts of where the boundaries
of privilege lay and that led to the 1987 Act. I am sorry to be
so long-winded in coming to this point, but I think that is one
of the reasons why we have also reached this position. Jacqy Sharpe
might be able to help with some recent instances of the courts
questioning proceedings.
Ms Sharpe: Yes, we have had in
2007 and 2008 four cases in which Mr Speaker has intervened not
on the substance of the cases but in connection with protection
of the privileges of the House. One of the most recent was the
case of the Office of Government Commerce and The Information
Commissioner[1],
and the Committee may be interested in the judgment of Mr Justice
Burnton, as he then was, who gave a very interesting description
of parliamentary privilege and the relationship to the courts,
and he emphasised that obviously conflicts between Parliament
and the courts should be avoided and that one needed to adhere
to the principle as to the risk of any interference with free
speech in Parliament and the principle of the separation of powers
between the judiciary and Parliament. This case concerned the
use of select committee reports which were being referred to by
the Information Tribunal and whether you could draw inferences
from them. There was no argument that you could not actually refer
to the fact that there had been a report but that inferences should
not then be drawn from them. I can certainly give the Clerk a
copy of the judgment if that would be of any help.
Q461 Chairman: I suppose the justification
for clause 15 is that nowadays, whatever may be the history, the
public simply would not stand for it, in the context of bribery,
that parliamentary privilege should stand in the way of prosecution.
Dr Jack: Yes, I take the weight
of your comment, Chairman. I think the question really is whether
it is necessary, to obtain conviction, to go to those proceedings.
Q462 Dr Iddon: My Lord Chairman,
I dare to ask whether the Clerk of the House of Lords agrees with
the Clerk of the House of Commons on this issue?
Mr Pownall: I have to say that
on the basis of experience alone in the House of Lords, if it
was a single chamber government by the House of Lords alone, there
is so little learning on parliamentary privilege in the House
of Lords that I would not recommend a dedicated Act because we
have had very little experience or learning in the House of Lords
in recent years, but I do see the force of the argument that the
uncertainty of the scope for Article IX can now be counter-productive.
Thus, as I said in my memorandum, I do support the Clerk in his
suggestion that if there is to be any modification we should think
of it in terms of a wholesale comprehensive Act.
Dr Jack: If I may add, Chairman,
there are other aspects to this. As well as the questioning in
the courts there is the fact that there is now quite a bit of
legislation which in one way or another deals or impinges on privilege
which I think could be brought together in a Privileges Act. There
are Employment Acts, Planning Acts, FoI and these various other
things and these are dispersed in various Acts. Very recently
in the case of the Parliament Act the vires of a bill has been
questioned by the courts, the actual validity of an Act. This
has gone much further than has previously been the case. On perhaps
the more modern side, if I dare say so, an Act could also perhaps
examine matters which have been raised in the past, although discounted
by the Joint Committee, of some sort of system of redress or hearing
for people who feel that privilege has worked against them. This
is something which I think would find quite a lot of favour in
the European Court where in the case of A v UK, although
the case was largely one in which parliamentary privilege was
upheld in the sense that it was recognised as necessary, the judges
made quite strong remarks about the need for national parliaments
to look at their systems in a modern context of perhaps having
systems of redress and so on, which they do in some of the Commonwealth
countries.
Q463 Baroness Whitaker: Just so I
can get it clear because there has been a lot of history, now
it is Dr Jack's contention, is it, that Members of Parliament
should not be like other people and have what they say used in
court proceedings against them? I do not know whether they would
be unique in that but it would be pretty unusual. I can only think
of perhaps confession to a priest or a doctor's surgery, but is
that your view, that Members of Parliament should not be able
to be tried using as evidence the words they use in Parliament?
Dr Jack: Yes that is my view and
not only Members of Parliament but witnesses and anyone else who
is involved.
Q464 Baroness Whitaker: For criminal
offences?
Dr Jack: For criminal offences
or for any offences.
Q465 Baroness Whitaker: Any criminal
offence, bribery, murder?
Dr Jack: Yes, that is my view.
Chairman: Very well. Mr George, I think
you wanted to ask the last two questions.
Q466 Mr George: I will be brief.
Dr Jack, in written evidence you suggest that the proposal contained
in clause 15 be put to each House in the form of a substantive
motion. Could you explain your reasoning on that. What would be
the advantage of this approach and why is legislative scrutiny
alone insufficient to determine the merits of the proposition?
Dr Jack: I think perhaps it seems
a fairly narrow point but it really relates to the procedures
in the House of Commons, which are different of course from the
House of Lords. If the Bill came forward in the House of Commons—and
of course I understand that it has been already examined—this
matter could be decided in a public bill committee of 16 Members
of the House in a room somewhere in the Palace of Westminster.
I do not think that is the proper way to deal with a matter of
this substance. I think the matter should be brought forward to
the House in a substantive motion so that all Members of the House
could express a view about it. I do not think that necessarily
negates the proceeding on the bill. The bill can go ahead, a substantive
motion can be taken at any time, but I think leaving such a matter
to the possibility of 16 members in a standing committee does
not seem to me to be proportionate.
Q467 Lord Lyell of Markyate: I agree
with Dr Jack that it could be very undesirable. I may have forgotten
my procedure but it would normally, although now things have got
more truncated, come up on report on stand part, would it not?
Dr Jack: No, stand part would
only be at committee stage which would be in a public bill committee
of Members.
Q468 Lord Lyell of Markyate: And
it would not come back on report?
Dr Jack: It would not come back
on report. Amendments could be put down on report to the lines
of the clauses in the bill but you could not return to the principle
of the clause.
Lord Lyell of Markyate: I quite
agree with your point then.
Chairman: Very well then, the
final question.
Q469 Mr George: We have heard a lot
recently about Codes of Conduct for Members of Parliament and
this might be speculative, Dr Jack or any of the witnesses, but
what role should the proposed Code of Conduct for Members be given
perhaps in determining whether or not a Member is guilty of a
bribery offence? Can you kick that into touch or do you think
there is something worth saying at this stage?
Mr Pownall: If I could just speak
a little bit to my memorandum, Lord Chairman. We are fresh from
the experience in the House of Lords of the recent case of the
four Members and although of course that is now water under the
bridge I have drawn to the Committee's attention the comment by
the police when they announced their decision not to launch a
full investigation on 11 February, and the police indicated that
there are "very clear difficulties in gathering and adducing
evidence in these circumstances in the context of parliamentary
privilege". I do not think in fact that was correct. I do
not think any issue of privilege did in fact arise in this case
because the events which were discussed and the cross-examination
and so on took place well away from the chamber so there was no
question of any proceedings being involved. I just wanted to make
that point. The recent case has made me wonder what is the relationship
between the Code of Conduct and any proceedings under clause 15
because the Codes of Conduct of both Houses, as I indicated earlier,
are privileged and therefore covered by Article IX, but they are
not mentioned in the draft Bill so they would not be admissible
as evidence in any criminal trial. It seems to me that the Codes
would be a key element of the background to any trial in accordance
with clause 15.
Q470 Chairman: I thought we established
a moment ago that the Codes of Conduct are proceedings.
Mr Pownall: They are proceedings
and they would not therefore be admissible as evidence in a criminal
trial. That is my contention.
Q471 Chairman: Would not be admissible
as such?
Mr Pownall: No, that is right.
Q472 Mr Cox: Because they are not
specifically provided for in the Bill.
Mr Pownall: That is right. They
are not provided for in the Bill and therefore they would not
be admissible as evidence, and yet it is difficult to see how
actions in accordance with clauses 1 to 2 of the Bill could be
judged other than by some reference at least to the Code of Conduct.
Q473 Chairman: I think this is a
new point, is it not?
Mr Pownall: I hope it is one that
I made in my memorandum, Lord Chairman. I suggested that the Joint
Committee might wish to seek guidance from the Government as to
how they would bring it in and what relevance the Code would have.
Chairman: Has anybody else got any questions
for our witnesses? In that case, may I thank you all very much
for coming. We will read carefully what you say when the transcript
comes round. In the meantime, thank you very much indeed and I
shall adjourn the Committee until we resume our labours tomorrow
morning at 10.30.
1 [2008] EWCH 737 (Admin) Back
| 
