Parliamentary Privilege Report

Examination of Witnesses (Questions 1 - 19)




  1. Sir Donald and Mr McKay, the Committee is very grateful to both of you for the eminently clear and lucid memorandum which you have prepared for us. At this stage of our deliberations, we are focusing primarily on the matters dealt with in the second part of the memorandum which you have headed "Corruption and Impropriety". As you know, the Government has announced that it intends to introduce a Bill to modernise and clarify the criminal law on the whole subject and you will readily understand therefore why this Committee may consider it is desirable to identify here a discrete aspect of parliamentary privilege on which to report separately. So I would like to seek your further assistance today primarily on some points on that part of the topic and maybe leave part one of your memorandum for another occasion, if that is not too inconvenient for you. I will ask questions addressed, Sir Donald, to you; but please, either you or Mr McKay respond, whichever of you considers that you are best able to give the Committee assistance. Before I start, is there anything, Sir Donald, you wish to say?

  (Sir Donald Limon) My Lord Chairman, no. What you said at the end is very welcome to me. The fact of the matter is that, if the Committee's deliberations are protracted (as I quite expect they will be) I will no longer be a witness on any future occasion and therefore Mr McKay is here both for continuity and for expertise and I shall be relying on his expertise a lot during this session.

  2. May I first see where we are going? The Home Office consultation paper issued last December, you will recall, identified four possible options and the first option, paragraph 10 of the consultation paper, was that bribery of members should be dealt with exclusively by each House. In paragraph 38 of your memorandum, you have listed some of the disadvantages of that particular course. You will remember that you have mentioned the House of Commons and its members are unlikely to be qualified to be, or indeed wish to turn themselves into, a court of law, and in any case how could the House try non-members; you talk of problems about punishment and finally you mention that, even if a parliamentary means could be devised, would it be able to convince public opinion of its evenhandedness. The Home Office consultation paper mentioned two other disadvantages which are not mentioned in your paper: the first was the lack of an appropriate investigative machinery. Do you see that as a potential problem?
  (Sir Donald Limon) It could well be a problem. Our Standards and Privileges Committee at the moment is wondering whether it ought to equip itself with a better machinery for investigation and we do not know the results of that. There was criticism in the last standards case which they looked at, which involved a lot of investigation; obviously dealing with bribery would also involve investigation, and they would need to improve their facilities. There are many other factors but the time which it would take is another important one. You cannot really expect a committee of ten members or so to become a court of law and to sit continuously. They have got other parliamentary duties and that is a severe practical problem. I think the main problem which cannot be overlooked is that if you are talking about bribery there are almost certain to be two parties involved—one parliamentary and the other not—and that is an almost insuperable difficulty.
  (Mr McKay) The House would have difficulties not only as a judge but also as a policeman. I would agree. We aim our criticisms, our doubts, at the judicial function but the police function is also open to grave doubts about the House's capacity to turn itself into a policeman or to supervise as a prosecuting authority those who do the policing.

  3. And you cannot think of any procedures whereby those difficulties might be surmountable?
  (Mr McKay) The House appointed a Parliamentary Commissioner for Standards to present the case in matters of conduct and I suppose the House could appoint an official to be its own prosecuting authority, but it would not dispose of the other objections.

  4. But there would still need to be the equivalent of a police investigative procedure?
  (Mr McKay) Yes.

  5. So there would need then, on the same reasoning, to be some other officer in charge of investigation?
  (Mr McKay) Unless the appointee supervised a police investigation as, I suppose, might be arranged; but it is very uncharted water.

  6. The other matter mentioned in the Home Office consultation paper which was not mentioned in your memorandum is the absence of a sanction if the alleged misconduct first comes to light after the individual has ceased to be a member. Do you see that as a problem?
  (Sir Donald Limon) I think that is a great difficulty and one that has occurred this year on the standards question; nearly all the people who stood accused either lost their seats or did not stand at the election which left us in a somewhat embarrassing position. The same thing could happen here and I think you would have to treat a non-member (as he would be by then) as any other non-member. Therefore the difficulty I have already mentioned would arise. It is a difficulty and it could happen in the middle of the investigation, so that is a real problem.

  7. The second option, and in a sense it is the second main option, is that the members of the two Houses should be subject to the criminal law even though that would mean that the courts might be concerned to inquire into and examine in depth the reasons why a member said what he did or conducted himself in the way he did—even perhaps voted in the House or the Committee. You have pointed out in paragraph 39 of your memorandum that that option would involve the possibility of cross-examining with a view to challenging the motives of members who are not under suspicion and it might be hard to put any limit on the papers that the criminal court is entitled to see. Can you suggest any safeguards which might limit or reduce the potential problems in that field?
  (Mr McKay) I think we do refer in a subsequent paragraph to some possibilities transcending the Home office's suggestions but, apart from that finessing of the problem, I do not think we can see any way round the need for the absolute protection of Article IX. Article IX is seen as a protection for Parliament and there is also the age-old desire of the courts and the Houses to hold their respective powers in balance. Both of these would be upset by the kind of suggestion which is made in the second option.

  8. The concern in the second option is that it really erodes potentially in a very significant and open-ended way the protection of Article IX.
  (Mr McKay) Yes.

  9. I am concerned to see whether you (and you have answered the question really) have any suggestions as to the way that the erosion might be limited beyond the ones you have mentioned?
  (Mr McKay) No.

  10. The third option in the Home Office consultation paper was to draw a distinction between certain types of conduct which fall within the criminal law and certain types which would be left to Parliament and, as you say, that would diminish but not dispose of the problems associated with the House's assumption of the criminal jurisdiction. Would you agree that under this option, insofar as the House did not assume control, then the criminal courts' jurisdiction would involve the same sort of problems we have just been mentioning in the second option?
  (Mr McKay) Yes, it would. This is an alley as blind as the other.

  11. Then the fourth option (paragraph 41) was to make criminal proceedings subject to the approval or annulment of each House and you point out, in addition to other possible disadvantages, this course would not solve the difficulties of the House as a court of law. Again I think you would agree that, if the House were to give its approval to a prosecution, the same problems would arise about the erosion of Article IX.
  (Mr McKay) Yes.

  12. If that course were followed, would there be a risk of inconsistency of decisions of the House, whether to give or withhold approval for prosecutions?
  (Mr McKay) I think there might be, though perhaps the greater difficulty, the greater vulnerability, would be the discussing of the case and its attendant facts in a political context to begin with. This would seem to me to run counter to the House's desire to play its part in comity and not to tread on areas in which the courts were going to have to take decisions very soon.

  13. That is, as it were, a major disadvantage. What advantage is in this option? What is the real advantage that this would give over the others we have been looking at?
  (Mr McKay) My Lord Chairman, I cannot see a serious recommendation for this option over the others, unless you tag on to it the kind of extras and ways of dealing with it that we suggest in a later paragraph. There are ways of getting the House into this particular decision but our view is that this one has not got much to recommend it.

  14. I am conscious of those difficulties. Could we just look at the two possible further courses which you have helpfully suggested? The first is in paragraph 44. As I understand it, but do correct me if I have this wrong, this would involve a waiver of privilege by the House but only so far as the member in question is concerned.
  (Mr McKay) Yes. That is right.

  15. How would that work in practice? What I have in mind is this: take the imaginary case of a member who has been charged with an offence who wishes to call another member to give evidence, say, of why he behaved in the way he did; to give evidence on discussions he has had with him which led to the conduct which is being impugned taking place. Could the other member be called as a witness in the criminal proceedings and cross-examined?
  (Mr McKay) I think it would be very difficult. We put these two options forward as the least worst choices. The only thing to be said for this option in the context you mention is that the other member could not be brought to account unless a charge had been laid against him.

  16. What is troubling me a little is that, if the other member cannot be cross-examined about his motives, he really cannot fully give evidence in the criminal proceedings and it may be said that, in those circumstances, this would be hampering the defence of the member who is charged.
  (Mr McKay) Yes. I think that is a very fair objection. It was one of the issues argued, if I recall, over the Defamation Act. The case is exactly the same.

  17. Yes. If on the other hand, in my imaginary example, the other member could be cross-examined and the waiver was to extend to him as well, then we are right back up against the sort of disadvantages that we have already touched upon in relation to the second option.
  (Mr McKay) Yes. That is right. One makes no more claim for this, as I said, than the least worst option.

  18. Please, you must not understand my questions as criticisms; they are just exploring with you the ramifications of what is plainly a difficult problem.
  (Mr McKay) Yes.

  19. The other alternative that you helpfully suggested was in paragraph 45. This, as I understand it, is really a variant on the third option. It involves distinguishing between types of conduct of which the criminal courts would have cognisance and other types of conduct which would be outside the criminal law, and the boundary line would be drawn so as to retain for Parliament exclusive cognisance of matters relating to proceedings in Parliament.
  (Mr McKay) Yes, my Lord Chairman, adding only that this we understand to be the regime in Canada and Australia but it depends in a sense on crossed fingers: that you do not have to face up to the Article IX problems. The only reason for taking that chance would be "Well, the Australians and the Canadians have not experienced problems". In other words, you retain all the difficulties of Article IX and hope it does not happen.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999
Prepared 9 April 1999