Parliamentary Privilege First Report


Memorandum by Michael Ryle, former Clerk of Committees, House of Commons

REVIEW OF PARLIAMENTARY PRIVILEGE: SOME CENTRAL ISSUES

INTRODUCTION

  1.  As a former Clerk to the Privileges Committee of the House of Commons (1985-87) and as a writer on parliamentary matters (for example, see Griffith and Ryle, Parliament, Sweet and Maxwell, 1989, (particularly Chapter 3)), I thank the Committee for its invitation to submit evidence.

  2.  I confine myself at this stage to certain central issues that must govern any review of parliamentary privilege. However, if it would assist the Committee, I would be glad to have an opportunity to defend these arguments in oral evidence and to comment in more detail on a number of the specific points raised in your invitation.

  3.  I mainly confine my evidence to issues of privilege as affecting the House of Commons.

PARLIAMENT AND THE COURTS

  4.  The long struggles between Parliament and the courts to establish their sovereignty in their separate fields has led to a tacit settlement, to the benefit of both sides and for the citizens of the UK, which should not be lightly disturbed.

  5.  The recognition that speeches in both Houses of Parliament and their proceedings cannot be questioned in the courts, as set out in Article 9 of the Bill of Rights of 1689, is fundamental to the working of both Houses. In my view it is essential to preserve this position to avoid the courts adjudicating on the conduct of business in Parliament, the acts and conduct of Members in their parliamentary functions and, ultimately, the Acts of Parliament itself and the decisions of the two Houses.

  6.  To disturb this understanding and to allow the courts, even in limited ways, to question, comment or pass judgement on anything that is said or done in either House would lead increasingly, I believe, to a transfer of parliamentary sovereignty from a (largely) democratic body to un-elected judges (as in the USA). This could gravely undermine the authority of Parliament and further diminish the respect of the people for their elected representatives.

  7.  Any review of parliamentary privilege should not be allowed to trigger a constitutional landslide.

THE SCOPE OF PARLIAMENTARY PRIVILEGE

  8.  It follows that the scope of privilege should not be further extended (which would need to be done by statute and so involve possible adjudication by the courts of the application of that statute by either House).

  9.  Nor is it necessary for any of the established privileges to be formally relinquished. It may well be desirable for the Commons to resolve that it will not enforce certain of its privileges or act against alleged contempts in certain circumstances. It has already done so concerning speeches and proceedings in public sittings or committee hearings (Resolution of 16 July 1971) and in agreeing not to enforce its penal sanctions—especially relating to alleged contempts—except when it was essential to do so to protect the House from actions that could cause substantial interference with the performance of its functions (summary of Resolution of 6 February 1978). But the ultimate laws of privilege, and the House's powers to enforce them, should not be abandoned—future circumstances are never predictable.

DEFINITION OF PRIVILEGE AND CONTEMPT

  10.  It may be argued that the concepts of privilege and contempt, having evolved over several centuries based mainly on case law (with many conflicting decisions) need to be formally clarified. This could be done by statute, which could ultimately lead to judicial review of the interpretation of that statute by either House and thus to the proceedings of the House concerned being questioned in the courts—something to be avoided at all costs. Or it could be done by resolutions in each House.

  11.  Apart from the problem in drafting resolutions that would apply equally to the two Houses (as do the laws of privilege, though not the concept of contempt), there would be grave problems in attempting to codify privilege and contempt in this way. Unless the definitions were in very general terms, which would add little to the present position with their application being guided by case law and precedents, any definition would almost inevitably lead to dispute (perhaps politically inspired) as to its meaning and application in many cases. It would undermine the common sense discretion and flexibility that, at present, have to be applied by the Speaker to privilege applications and by members of the Standards and Privileges Committee to cases that come before them.

  12.  In general, the Houses of Parliament are not courts of law. Its Members are not necessarily lawyers. It would be undesirable for them to seek to bind themselves with precise, quasi-legal definitions, which would handicap their judgement in the wide spectrum of privilege and contempt cases they will be required to consider. It is better to run the risk of criticism for subjective judgements than to find that the precise rules require conviction in cases which most Members would consider unfair. Common sense assessment by MPs of the behaviour of those (particularly fellow MPs) accused of a breach of privilege or contempt will normally secure the respect of the House and of the intelligent public.

  13.  The argument against codification (as has been done in Australia) applies particularly in respect of the vexed question of the definition of a proceeding in Parliament. Again, not only would this drag the courts into adjudication of parliamentary decisions, but the nature and circumstances of all potential cases are impossible to predict and cannot be defined precisely in advance. Again it would be better for the Speaker and the Committee and the House to judge each case on its merits.

THE HOUSE'S CONSIDERATION OF PRIVILEGE MATTERS

  14.  The procedures adopted by the House on 6 February 1978, for the pre-vetting, in private, by the Speaker of privilege complaints appear to have worked very well. Mistaken and trivial cases are kept out of the Chamber and genuine serious cases get proper consideration at this stage. No change is needed here.

  15.  I have anxieties about some of the procedures followed by the Standards and Privileges Committee. The way the recent Hamilton case was handled was certainly disturbing. The issue is particularly difficult when there is no agreement on the facts of the case and the Committee has to exercise a quasi-forensic role in seeking to discover where the truth lies.

  16.  For the same sort of reasons that I used above about codification, I do not believe that it would be desirable for the Committee to appear to set itself up as, or seek to act as, a court of law, and therefore it would not be right for precise rules to be laid down relating, for example, to the content and hearing of evidence. However, it is important—especially in complicated and highly charged cases—that justice should be seen to have at least been tried to be done. This is not always so at present.

  17.  I cannot go into detail on the procedural changes that should be made, and I am not at all sure what would and would not work. However, in evidence I submitted to the Commons Select Committee on Members Interests in 1992 (HC, 1991-92, 326, Appendix 2), I suggested two improvements.

  18.  First, whenever the conduct of a Member (and this should apply to non-Members when appropriate) is under examination, both the complainant and the Member should be represented by counsel, if they so wish (this might need to be modified when the complaint comes from the Parliamentary Commissioner for Standards).

  19.  Second, it might be desirable to separate more deliberately the prosecuting and adjudicating roles of the Committee. One Member, presumably the Attorney General, could be asked (with the assistance of the Commissioner where appropriate) to lay the facts before the Committee and to lead its examination of witnesses, but to stand back from the preparation and consideration of its Report. This might also help to separate the assessment and prosecuting roles of the Commissioner that, at present, seem to be somewhat confused.

  20.  It follows from all my argument that it would be wrong to set up some appeal procedures other than the ultimate judgement of the House. An appeal to the courts—and no other body can be envisaged—would be totally unacceptable.

THE HOUSE'S PENAL SANCTIONS

  21.  If the House of Commons is not to operate as a court, with strict rules of evidence and an acceptable appeals system, it follows that its penal powers should be limited and sparingly used. Strict penalties imposed by a politically focused body would not be tolerated by the public.

  22.  The sanction of imprisonment (as for contempt of court) should be retained as the ultimate deterrent for those outside Parliament who may deliberately give false evidence or in some other damaging way defy orders of the House or obstruct its proceedings. The lesser penalty of a fine might occasionally prove useful to mark the seriousness of an offence, especially where a breach or contempt (for example by a newspaper) has resulted in financial gain. However, exercise of power over people outside Parliament, other than by legislation, is in principle undesirable and should normally be used by a single House only for the enforcement of its established rights, for example to require attendance as a witness or to call for evidence. The case, therefore, for the Commons to take on the power to impose fines for breach of privilege or contempt by strangers does not appear to me to be very strong.

  23.  As far as Members are concerned, the present powers—including suspension involving loss of salary—seem perfectly adequate. The ultimate sanction of expulsion is always available (although it must be used very sparingly and never for political motives), and lesser penalties would usually be effective. Where a Member has clearly done wrong, and this is so found by his fellow Members from both sides of the House, the resulting damage to his or her career is probably sufficient punishment.

CONCLUSION

  24.  In general therefore, I see little case for any substantial change in the scope, rules or practice of parliamentary privilege as far as the House of Commons is concerned. And I see grave dangers in any changes that would result in increased supervision of Parliament by the courts. Article 9 of the Bill of Rights of 1689 should not be abandoned.

  25.  The new Committee on Standards and Privileges has a challenging responsibility to demonstrate that the House of Commons can effectively police the conduct of its own Members and can and will be both vigilant and severe in stamping on any misconduct or abuse of the privileges of membership. Unless it fails—and it is far too early to judge—it should be allowed to show that the present privileges of the House can be properly defended and enforced, both fairly and effectively, in ways that should command the respect of the people.

Michael Ryle

22 December 1997


 
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Prepared 9 April 1999