Parliamentary Privilege Report


Examination of Witnesses (Questions 20 - 40)

TUESDAY 2 DECEMBER 1997

SIR DONALD LIMON KCB, AND MR W R MCKAY CB

  20. Because that is what, looking at it in the round, might be said to be troubling about this boundary line, namely, that you are leaving outside the cognisance of the criminal law any type of conduct constituting bribery if it relates to proceedings in Parliament.
  (Mr McKay) Yes. That is so.

  21. And in respect of that, the House would remain self-policing.
  (Mr McKay) In respect of that, therefore, more limited area the House would remain self-policing but able to take specific actions as it felt necessary, if such a case arose. The virtue of this solution would be that no such case has arisen; it may do so, but not every corruption case (if it comes) will be in this area. So at least we have reduced the vulnerability of the House.

  22. But, insofar as there is a risk that the case might relate to proceedings in Parliament, the disadvantages that we have already touched upon would remain?
  (Mr McKay) Yes, and the House, I suppose, if it felt it could not proceed directly at its own hand, would have to invent some kind of tribunal procedure—invent again as we are trying to invent here.

  23. And that involves the public being invited to accept that, in relation to this area, the criminal law would not bite?
  (Mr McKay) Yes. When stripped of all the other arguments, that would be true.

  24. Have you got any comment on that?
  (Mr McKay) I do not think there is a perfect solution. If there had been, both Houses over the last century and a half would have hit on it and, if they had not, perhaps the thought given to the issue over the last ten years would have produced something; but I do not think it has produced very much. We have to settle, it seems to me—intellectually, logically—for something that will work (we think) without solving a problem which has been around since the Middle Ages and arises from the fact that the Houses and the courts are two independently acting parts of the fabric of the State.

  25. Would this route necessitate a statutory definition of proceedings in Parliament?
  (Mr McKay) I think it must or, at any rate, it would rest most securely—even if there were no other arguments for a statutory definition—on a statutory definition, as other jurisdictions have attempted, and as exists in a referential way in statute in this country.

  26. I sense that, of the various options we have so far considered, the one that you may feel is on balance attended with the least disadvantages is the last one, is that right?
  (Sir Donald Limon) That is our conclusion: that we do see there are disadvantages in all of the solutions so far canvassed and that is likely to remain so even if we do come up with a scheme. I do not think there is a perfect solution to this; nobody has seen one yet.

Lord Mayhew of Twysden

  27. I wonder if I might ask you to flesh out what so far has seemed to be self-evident: namely that Article IX must remain sacrosanct? It must of course be a matter of value judgment as to whether the problem with which Parliament is concerned—bribery of members of Parliament and related activity—is of such great concern that we should be prepared to do what has not been done since the Bill of Rights. I would like, for my own part, to have your help as to why it would be virtually unthinkable, why it would not perhaps even be practicable, to encroach a little upon this immunity in a case where Parliament itself has said that that would be acceptable to it. Would it be impracticable, for example, in all circumstances for "the other member" to be questioned first in the defence of the accused member and, secondly, no doubt by the court or anybody else as to why he had conducted himself in a particular way? If that were necessary for the just disposal of the charge against the accused member, would you say that the countervailing disadvantage in terms of the protection of freedom of speech is so great that it ought not to be really seriously considered?
  (Sir Donald Limon) Firstly I would not say that, no. That might be something which would have to be considered and, disagreeable though it might be to many people, the interests of justice might force such a solution in the end.
  (Mr McKay) What we are saying at the moment is that before we get to the end, the buffers, the foot on the brake ought to be that of the Houses—the foot on the brake in the sense of saying, "This is a particular case and it may make bad law but until we are convinced that case after case is occurring and bad law is being made, we, the House, should make the value judgments of which you spoke rather than the courts".

  28. A major factor in making a value judgment which, I suppose, the Committee is ultimately going to have to do, and then the two Houses in considering our Report, must be past experience of either House sitting judicially and trying to deal judicially with a matter of this kind. You are in a rather delicate position, I know, when it comes to expressing criticism but is there, within your joint experience, any instance that you can look back on and say "The House discharged this with efficiency and in a just and proper manner", or does one have to acknowledge that, in every modern case, other influences have intruded themselves in a way which has rather tarnished the exercise?
  (Sir Donald Limon) I think it depends how far you go back. I think there are plenty of quite good examples where the Committee of Privileges in the old days managed to reach an equitable solution for a case which was before it. Opinion at the moment is highly coloured by some recent extremely difficult cases where more than one Committee has been in great difficulty. But there are examples (perhaps not major ones in the sense of the ones we are thinking about) where the Committees and the House have made quite sensible decisions and reached them in a very fair manner.
  (Mr McKay) The key word in Sir Donald's answer is "equitable". They did not have a statute in front of them. The Committee of Privileges, it seems to me in the past, came to the common sense solution on the facts. They were politicians reviewing political conduct and they were colleagues criticising colleagues. What now, it seems to me, the Committee is addressing, is conduct of a clearly criminal character which is punished in one way, in a clear understandable way, where it is committed by persons who are not members. This is a dimension not relevant to the Committee of Privileges in the past. Fully judicial proceedings of the House of Commons I would have thought have not happened since impeachment, and doubtless the inability in the 18th century to prosecute a non-political impeachment led to the effective abandonment of impeachment. There are the obvious problems, of course, of the Committee first, and then the House, reading all the evidence (as they must) for the process to be proper and complete. The Committee and the House would have to have regard to the kind of considerations a judge would take into account when he imposes a sentence, whatever sentences were available. It would be undesirable obviously, if the House were to be given such a judicial responsibility, that the sentences that the House imposed and the courts imposed should be out of kilter. I do not think the House has ever done that kind of thing.

  29. Would you be able to visualise it doing it?
  (Mr McKay) No, my Lord.

Mr Bill Michie

  30. When we talk about having a proper definition of proceedings, could you make a suggestion how deep it would go; how detailed it would be, and whether it would open the tablets of stone, so the House would know precisely how it would proceed from then on?
  (Mr McKay) I have given some thought to this and the real problem which you have put your finger on is, once you enact a statute, it bears a strong resemblance to tablets of stone. It also means in this context that the Houses would be saying to the courts, "Well, the application, the interpretation, of these tablets of stone we wash our hands of. You can take care of it". I simply wonder, and this is an idea which I am slightly nervous about putting forward because I am not a lawyer, whether there would be any possibility of the statute which defined proceedings and said other things about privilege and corruption and impropriety also saying: "And when the Houses"—both of them—"come to a resolution (as a court might) interpreting this statute, the courts will take judicial notice of that." In other words, the House does not rewrite the law any more than the court makes new law in interpreting a statute, but the House does say "Now, when Article IX was drafted in 1689, there was no circumstance like the one facing us. We think the application of the 1689 text in modern circumstances should be this and the courts will in future take notice of our view".

Mr Joe Benton

  31. For a moment I would like to ask our witnesses to look at the public image of Parliament. I have read your memorandum and it is fairly enlightening and it has explained a lot of things to me that I did not know before. I would like to put to you the common perception of justice, in the sense that, if I assess the mood of the people correctly, what they are actually looking for is to see why this so-called immunity or privilege belongs to members of Parliament. They are calling that into question because they are saying at lots of levels within society that there is one law for them and one for others. Your document has helped me greatly in that but there are a few matters where I can find myself in sympathy with the public perception insofar as, for example, I notice that members of Parliament cannot be subpoenaed. This I find—and I am not just referring to recent events—quite remarkable really. At the end of the day the most desirable thing is that justice is seen to be served irrespective of whether you are a member of Parliament or anything else. The point of all this is that, having read of the difficulties you have referred to, if you were a member of this Committee, you would consider that the avenue and channel we should be going down and have first and foremost and uppermost in our minds is that justice should be seen to be served and, no matter how insurmountable it might be, we should be pursuing that notion of justice in terms of how the public perceive us?
  (Sir Donald Limon) I am bound to agree with that entirely. That is the "political" problem with which this Committee is faced. It is undoubtedly the case that there is a perception outside Parliament that justice is not always being seen to be done in cases of this kind and any solution you come up with must take that factor into account. I think that is really the most difficult side of the job you are doing. All I can say to that is that the first part of the memorandum addresses a lot of those problems and there is a lot of tidying up, at the very least, needed there. It is in some ways unfortunate that the bribery matter has become urgent—although I can appreciate why it has done—but the answer to some of the questions in the earlier part of our memorandum, and others that may occur to you, will be important in assessing your attitude to bribery or corruption—or should be. Therefore I think there is some danger of putting the cart before the horse here and it may be that you need to consider some of the earlier points before you are ready with a solution on the bribery point.
  (Mr McKay) Chairman, the problem identified here (and in paragraph 30 of the paper) is that the House's privileges are so sweeping and the House has in the past been so touchy that there are lots of cases and there are other less important privileges (such as the one you mentioned about subpoenas) which still exist, but they guard a House that is not there any more: a House that is touchy, a House that would put in gaol anyone who criticised it. The protection does not fit what is being protected.
  (Sir Donald Limon) Of course, the House has already taken cognisance of that following an earlier report where it said it should use all these various considerations very sparingly and I believe it has done so. There are plenty of cases now where matters arise and the House in one way or another—sometimes it is done by the Speaker on the House's behalf, I think—says "No, this is not in the right sort of territory. We do not do that sort of thing any more these days". But codifying all that and putting it in the context of bribery is extremely difficult. I believe that is what in many ways is expected of this Committee and the two Houses in due course and it will take time to sort it out.
  (Mr McKay) Another way of looking at it is that the House of Commons and the House of Lords have begun to tackle the "conduct" end of the spectrum and it may be that, in looking at bribery, this Committee will be doing a parallel exercise in the "criminal" end of the spectrum. In both cases, however, it seems to me what Mr Benton says is right. It is the interests of justice and the transparency of what the House is deciding to do in principle that would by and large underpin the decisions—partly because it is right and partly because the political climate will not, I think, stand for anything else.

Mr Paul Tyler

  32. Can I explore a little bit the extent to which the Australian and Canadian experience may help us? I am the statutory legal ignoramus on this Committee, so forgive me for that. First of all, it seems that they do have a way in which they have overcome the concerns about Article IX to which Lord Mayhew has referred. Maybe they have just been lucky but some of their legislation has been in place for quite a long time. I wonder whether you can comment on that. Secondly, I wonder if it is possible for you to indicate how they came to their apparent solution. Did they have the same sort of process of scepticism about self-regulation that we are now experiencing certainly in the lower House here?
  (Mr McKay) They do not really solve the Article IX problem. What they have done in Australia and Canada is sheer off the concept of the functions of a member from proceedings in Parliament and, as we say at one point in our paper, this is very difficult. A member of the House of Commons will see his or her responsibilities as going through the whole of the spectrum from speaking in the House to writing to a constituent, but what the Canadians and the Australians seem to have done is to say "In respect of your functions as a member, we will try you in court if you have done criminal wrong". They have not said anything about Article IX and there has not been a problem. As to the circumstances, 1914 is the date of the Australian Crimes Act and I cannot recall what the Canadian date is but I would be surprised if they had in either case a situation like ours. However, I will certainly look into it and see what I can find out about it.

Mr Alan Williams

  33. Sir Donald, you said that the Privileges Committee had in the past produced some very sensible results but I think the problem we are confronting here is that the latest cases we have had (and to some extent the Brown case) showed the inadequacy of the system for dealing with more complex cases. That brings us to the investigative question as well because the more complex the case the more investigative capability is needed, which we do not have. At the risk of upsetting you, my Lord Chairman, can I ask therefore how strongly our witnesses stand by the feeling (which I must admit I am increasingly coming to myself) that the cart is thoroughly before the horse at the moment; that we are taking almost the most difficult situation as our starting point and losing sight of perhaps what is the basic requirement, which is to look at what we want parliamentary privilege to achieve; how it could achieve this and what is the best way to go about it, regardless of how it is being done in Canada?
  (Sir Donald Limon) Your order of reference certainly enables you to do all of that and you may wish to do it in your own way rather than the way in which outsiders may be trying to dictate to you. I think these are fundamental problems. There have been select committees and joint committees in the past who have deliberated upon them. I am afraid their recommendations have not always been accepted and have very often been ignored by the House. We believe, however, and I am speaking not perhaps so much as a Clerk now, that the situation has changed over the last twenty years since these general matters last came up before a Committee. As Mr Benton rather implied, the public are now expecting Parliament to "do something about it" and that is about as far as most public perceptions will go. There will be great disappointment if a decent solution to all these problems cannot emerge from this Committee and be approved by the two Houses. What I am saying is that it is difficult perhaps to isolate one particular aspect of it—important and urgent though that may be—until you have decided on some of the more general definitions and other things you have mentioned. That seems to me to be fundamental in the consideration of any problem really. What I think I am saying is: "do not be hustled into doing something prematurely before you have thought out the real fundamental issues."

  Mr Alan Williams: In light of that, would it be possible to ask whether the timetable we have set ourselves in relation to bribery is really as invariable as we have assumed it to be? This may be more a question for the Leader of the House.

Chairman

  34. I think this is something we should consider later today perhaps. Can I just ask as a supplement to that, Sir Donald, what precisely are the questions in the earlier part of your memorandum that you think we may need to consider before we can answer the questions we are now addressing?
  (Sir Donald Limon) I do not particularly want to pick any out but one very minor one was mentioned which has always seemed to me to be absurd ever since I first set foot in this building and that is that a member called as a witness in a perfectly normal case outside Parliament should be able to claim immunity from going to the court as a witness. I have to sign certificates or advise the Speaker to do so and I do it with grave misgiving every time: I think it is quite absurd. I do not see any rhyme or reason for it. That is a small point but something that we do cover here and one which could be easily cleared up.

  35. I understand that but what I am not clear about at the moment -and I certainly have no particular views at the moment about it—is the appropriate way of handling any of the matters before this Committee. How does the answer to that bear on the questions we have to consider? I would like your help because I do want to be very sure that we do not fall into the trap of putting the cart before the horse.
  (Sir Donald Limon) I think much more fundamentally one needs to make quite sure that everyone now understands this twin horn of standards and privileges. We have a committee now that deals with both these things by entirely separate procedures actually; have we got the distinction right and are we dealing with the two matters in the best way? There has been a lot of criticism of the way we have been dealing with standards but we have taken it upon ourselves to deal with them in that particular way. Again, the question is whether the dividing line between standards and privileges is exactly as we would like it to be. Is it correct, and should they be treated by the same committee in the House of Commons? Is the issue being blurred by the presence in our jurisdiction now of the Parliamentary Commissioner for Standards? Is he being used in the way which was originally envisaged? All those things come up and impinge upon those other problems.
  (Mr McKay) Behind those, Chairman, I would add that the big problem for the Committee is whether you will recommend codification in statute of the privileges, because if you do you have made a great leap both intellectually and over the centuries. No other Anglo Saxon Parliament has done it completely, deliberately, and doing so will, of its nature, raise all the other problems. What do we put in? Is the exemption about subpoenas to go in? How do we define "proceedings in Parliament"? How do we ensure that the Houses retain their own control over interpretation and do not simply subject themselves over a period of years to the courts? There are internal issues such as Sir Donald mentions, and external ones too.
  (Sir Donald Limon) Another question which springs to mind is what adjustments are needed now that Parliament has given itself several—I was going to say quasi-executive functions—really executive functions in recent years. For example, by taking over the works and buildings and its own printing arrangements, we are in the commercial field; I am the Corporate Officer and people can sue me—and are doing so—and privilege (as we are going to find out in the next few weeks) impinges on that. Is that any longer sustainable or sensible? That is a very important side issue we are going to have to deal with.

Mr Bill Michie

  36. Could I follow on from that? I think it is right to say that the status quo cannot remain intact. Whether we have the status quo is not an option. The status quo with a bit of tinkering with one or two things we do not like, which are obviously out of date, will not necessarily satisfy the public, and the public will have a say in this over the next few months. Surely we are coming to the conclusion that there has to be some form of definition and there will have to be some sort of codifying and surely that is the job of this Committee, with your advice, on how we proceed? We do not have to throw the baby out with the bathwater. There can be a certain structuring carried out with a lot of thought which will, hopefully, give us a chance to define the differences between what should be covered by ourselves and what should be covered by the courts.
  (Sir Donald Limon) Well, I entirely agree with that and I do not think it is any great secret that the officers of both Houses over a period now have been saying behind scenes that privilege generally is badly in need of a thorough overhaul. It simply does not meet all modern circumstances, which is a very general point, but there it is. I believe it is a perception which the public also has. As this is, so to speak, my swansong, I feel I should put over the message to you that this is the best opportunity we have had for a long time to set this to rights. But nobody, least of all myself, pretends that it is going to be easy; it is not. It is going to be extremely difficult to get it right.

Lord Wigoder

  37. My Lord Chairman, could I just ask Sir Donald a question in the light of some of the observations that he has made and Mr Benton has made. I think it is probable that we would all agree that there is at the moment a huge interest by the public in the issues which we are deciding. That being so, what I would like to ask is this: how important is it that when we do eventually come to our conclusions, they should appear to the public to be sensible and intelligible? I ask that because we seem to me to be having six proposals in front of us, of which the first two are extremes of course which could be explained without difficulty, and the remaining four are all, in one way or another, compromises based on very real problems which we all understand and accept, based on niceties of interpretation perhaps, based on how we might develop the concept of codification. Would you see any of those four compromise alternatives being able to be presented in a way which the public would say, "Oh yes, that is sensible and we understand that". If so, which of the four do you think is the more likely candidate on that basis?
  (Sir Donald Limon) I wonder who the public are in this respect. We hear the phrase "the chattering classes" mentioned occasionally and I believe that they are interested in this. I do not think the man on the top of the number 11 bus is all that interested in it, but he is uneasy about some of the things which have happened in Parliament in recent years, although it does not go much beyond that. If we are going to try to alleviate that feeling, we should do so and we may have to do so by quite subtle means. But I do not think there are many people deeply interested outside the specialist field. Indeed I go around saying that I do not think many Members of Parliament have much of a clue about all of this or are terribly interested in it actually. But it is, we all have to acknowledge, very important. I think this Committee has got this difficult dual role. They have got to take into account those feelings both outside and inside Parliament and try and alleviate them, while at the same time taking into account these immense difficulties, looking perhaps at the way they have been dealt with in particular in some of the senior Commonwealth countries and seeing if anything can be learned from that, and then coming up with recommendations. I see that as an immense problem and one which will take you a lot of study to get right and I just am nervous when we start talking straightaway about how to solve one particular problem in one of six ways. Of course we have to address it and I think that the last option raised in our paper is, to use Bill McKay's words, the least worst, but there may be others which will be thought of by yourselves in the light of your evidence. I do not think we have exhausted all the possibilities this morning in relation to bribery; there may be others. We, the Clerks of the two Houses, are not lawyers and there is a big legal element here which needs to be taken into account and proper advice given, I would suggest, by lawyers. There are two sides to this coin. You are doing it from the parliamentary aspect, but the legal aspects are of great importance to the law and you will need very authoritative legal evidence on how to do it, to set beside the evidence which we are able to give you which is based mainly on precedent. Clerks are always in this difficulty in that they are supposed to tell you about the precedents, but they may not feel that all of them are all that good.

Chairman

  38. Sir Donald, you mentioned authoritative legal evidence. Do you have anybody in mind?
  (Sir Donald Limon) In Parliament it is traditional to start off with the Attorney, I think, and see where you go from there, as it were.

  39. I understand, Sir Donald, that you and Mr McKay have an appointment with the Speaker at midday, but can I just ask you one last question this morning and that is this: going to the least worst of the six alternatives, as I understand it, this really depends upon hoping that corruption never arises in relation to proceedings in Parliament. Can that be a satisfactory basis?
  (Mr McKay) I would say, Chairman, that, as I understand it, it has been pragmatically possible since 1914 in Australia, nearly a century, and we might hope for a century of peace.

  40. Thank you very much for coming. We will now deliberate and there may be a possibility arising from our discussions that we would welcome further evidence from you on the 16th of this month. Could I ask you if you would kindly keep that date available and of course we will let you know through the usual channels if we wish to question you further. Thank you very much indeed.
  (Sir Donald Limon) Thank you very much.


 
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