Memorandum by Michael Ryle, former Clerk
of Committees, House of Commons
REVIEW OF PARLIAMENTARY PRIVILEGE: SOME CENTRAL
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.
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.
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 sanctionsespecially
relating to alleged contemptsexcept 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 abandonedfuture
circumstances are never predictable.
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 courtssomething
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.
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
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 importantespecially
in complicated and highly charged casesthat 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 courtsand
no other body can be envisagedwould be totally unacceptable.
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 powersincluding suspension involving loss of salaryseem
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.
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
failsand it is far too early to judgeit 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.
22 December 1997