Parliamentary Privileges Report


Examination of Witnesses (Questions 41 - 59)

TUESDAY 16 DECEMBER 1997

SIR DONALD LIMON AND MR W R MCKAY

Chairman

  41. Sir Donald and Mr McKay, welcome back. What we have in mind this morning is to have your assistance in particular on the first part of your helpful memorandum. I invite both of you to respond to our questions in whatever way you believe will be of most assistance to the Committee. Before I start, is there anything, Sir Donald, you wish to add at this point?
  (Sir Donald Limon) No, sir. I would like to carry on from where we left off last time.

  42. May I first ask for your help on a very general question? The law of parliamentary privilege is to be found today in one or two statutes and in an accumulation of precedents—some very old—decided in very different times. Have you any overall view on the suitability of those as a source today for the special rights and immunities (the privileges) of the two Houses?

  (Sir Donald Limon) I think this is the real difficulty; that there are many precedents which you can look at and say "We would not do that now; they would not put up with that". Either the House would not or the public would think we had taken leave of our senses. But they are still all there. So there are a lot of difficult precedents which we carefully ignore, but there are other jewels knocking about which we still like to adhere to. Nobody has codified this and there is quite a strong case for saying "Do not codify it". The whole subject is now so shrouded in mystery however that we probably owe it to somebody to try and attempt some form of codification—whether it be legislation, an authoritative report from this Committee or both. I would not like to lay the law down about how it is done but I do feel that privilege has got into a position now in the modern world where people are in need of some advice about it and, while we are about it, perhaps it needs a little bit of trimming here and there—or perhaps rather a lot. I gather that you are going to take evidence from overseas countries and I think that would be very valuable to you. One or two other senior Commonwealth countries have attempted this. I am not suggesting that what they have done would fit in exactly here. It would not because they have not all done it the same way. Having looked at what other countries have attempted to do in this exercise, however, you would, maybe, start to come to views about performance and how codification might take place. Our memorandum really was tended to stimulate thoughts on that kind and nothing much else—not in the way of detail. I think when you are beginning to form your own views about what should happen, you will probably need to come back (fortunately not to myself but to Mr McKay, whose announcement as my successor has now been made) and he will help you further it. I feel that this session and the last one are part of the stimulation process—probably not too necessary given the sharpness of your questions last time: you have been stimulated quite enough—but we are ready to help further today if you like.

  43. So is the law relating to parliamentary privilege, in your view, concerned as you have been with the administration of it for a long time, in a satisfactory state?
  (Sir Donald Limon) No, I do not think it is. It is all right for experts to find their way around but there are not many experts left and I feel, as I said last time, the ordinary Member of Parliament needs to be brought more into focus on what privilege is all about (or what it should be about) and I do not think there is much focus at all on it in the House now. I would not like to speak for the House of Lords but I should imagine it is not all that different there. Our feeling is that, having lost the opportunity last time there was a big Committee on this because the House did not take it up, we have gone further down the road of people not understanding things any more. It is dangerous if you go too far down this road and this is an opportunity to focus people's minds more about what privilege now means, what are its limitations, where it might possibly need bolstering to learn from experiences of other countries to try and get it on a better footing than it is now.
  (Mr McKay) If you focus on Article IX, as an example of the point you are making, Article IX (until I think the middle of this century) was never construed by the courts. All the great 19th century cases barely mention it and, to the extent they do, they give it a life limited to the circumstances which gave rise to it. They say "This was a way of dealing with an instance when the courts proceeded against the Speaker for something he did in Parliament". So Article IX was part of a constitutional wish list; it did not begin life as a statute. Now however, without a secure basis in the kind of statute we are used to, without a secure basis in commentary by the courts, we are faced with Article IX as the principal defence of freedom of speech because everybody wants to see rights in black and white. The courts fall to interpreting Article IX and ask themselves "What is a proceeding? What is impeaching or questioning?". But the intent of Article IX and its interpretation has not proceeded on that basis at all, until this century, so our main bulwark in cases of freedom of speech—which, as we say in the memorandum, is the centrepiece of privilege—is a very frail one.

  44. The uncertainty surrounding the subject, of course, has been with us for a long time. Is there any particular reason why now, rather more than in the past, something needs to be done?
  (Mr McKay) I am not sure it is true to say the uncertainty has been with us for a long time. It has been with us only since what the House of Commons in particular represented and was able to put before the courts became something open to contest. The 19th century cases, as I said, are full of echoes of Blackstone and the "dignity of the House". The House of Commons had an unchallenged place in the constitution. The courts were anxious to preserve that. You did not get litigants who picked over words. Nowadays that is the way, it seems to me, both litigants and the courts behave—quite properly. That is the change. That is the uncertainty. It is a modern uncertainty.

Mr Alan Williams

  45. Can I follow up on that? At the last meeting, I made clear my view that we should abandon the legalistic approach and start from scratch on what we need and how we get there. To avoid just going around and around with legal arguments on precedent and so on—and may I say your document was extremely helpful both in terms of information and also in making us aware of the confusion of the situation—would it not save time if we begin, not by looking for end products right at the start, but by identifying processes and asking "How do we get where we want to go?". Rather than asking "Where is everyone else?", and "Where are we now?", we should ask "What are the processes?" What would you recommend if you were in charge of this Committee? How would you structure the development of our proceedings in the most expeditious way possible?
  (Sir Donald Limon) That is quite a difficult question but I think I would like to look at things which are really out of date; things which are nowadays—it is an unkind word—really dross and which can confuse people. There is a little bit of that lying around. Freedom from arrest I would certainly say is one of those. Freedom of access to the Sovereign is another historic privilege, and we know the position when the House is going to address Her Majesty the Queen. All that is very well but there are other areas where, certainly, we are in need of guidance and probably of legislation. One of the ones I mentioned at the last meeting—and there has been a development since the last meeting—is that the House of Commons is involved in litigation (at least I am as the corporate officer which amounts to the same thing really) and the House passed a motion last Friday, without debate in fact, in which it allowed the legal process of the discovery of documents to be done with full freedom for the court to see certain papers which we would not normally have given to the House. Now that has happened because, in very recent times, the House of Commons in its wisdom has taken on some executive functions. It took over the running of this building; it is about to build an enormous new modern building. Formerly this would have been dealt with by the Department of Environment on our behalf and all these problems would not have arisen. However, they have and it is quite unreasonable, now that we have entered that arena, to expect the courts to say, "Because this is a House of Commons building we cannot possibly look at any of the minutes of any meetings which took place in the House about it which might be relevant to the case". No respectable judge would put up with that in that sort of field. Getting the right boundaries of what can and cannot be done in cases of that sort is something which is better done, I think, by giving some thought to the general issue and deciding what should be done in all cases rather than having piecemeal court cases where some sort of a solution eventually emerges. We have had to take an individual decision in this case because it is exceedingly urgent. We were about to be held in contempt, so we had to do something. That is a severe practical problem with which we are faced. It probably should have been faced at the time the Corporate Bodies Act was passed some years ago but it was not anticipated at that time and we were left with this difficult position which we have had to resolve piecemeal for the time being. That is a perfect example of the sort of thing where this Committee could have taken an early view and say, "This must be sorted out in an orderly fashion". I think that would not be too difficult but it would almost certainly mean an amendment to the Corporate Bodies Act.
  (Mr McKay) But it would not get you round your problem of not being legalistic. As the Clerk of the House is saying, I am sure that these problems can only be satisfactorily solved—almost finally solved—by a clearly thought out statement of law.

  46. Can I make it clear that I am not saying we should not end up on a legalistic basis. What I am saying is that we should not be misled into paying undue attention to the existing, rather ambivalent, legalistic basis of parliamentary privilege. We want to get something that is sustainable but in the process we have to abandon the view that the position at present is sacrosanct.
  (Mr McKay) Then you not only deal with the issues which the Clerk of the House has raised, you also deal with central issues like what do Members and Lords need to preserve their freedom of speech. Do you, for example, need to cast the mantle of freedom of speech over some of your correspondence with constituents? Do you need to cast the mantle a little further over constituents' correspondence with you? When you solve that problem, I suspect you have probably solved 80 per cent of the issues before you.

  47. Since you are so familiar with the morass, and we are still struggling with it, how unfair would it be to ask the two of you to draw up the type of analysis that you are talking about at the moment and also to draw up a fool's guide for this Committee on how we best go about achieving the end product we have set out to achieve?
  (Sir Donald Limon) That is something which could be done earlier or later—this is really up to you. I am sure colleagues in both Houses (because it does, of course, involve both Houses) would be happy to make the attempt and I think you are seeing the Clerk of the Parliaments quite soon and his co-operation would be necessary. It is no good pretending that these things apply to one House: they apply to both. He may have a line of his own. I have not had deep discussions with him about this but it is probably best at this stage for each of us to say our piece early on in order to help you and then to put in a joint memorandum if something of that kind might be desirable. Certainly if that is the way you would like to tackle it we are in the Committee's hands but, no doubt, a paper of that sort could be prepared.
  (Mr McKay) You will want to adjust it when you see the Commonwealth Parliamentary evidence because they will have problems that we have not seen.

Lord Wigoder

  48. When Mr McKay talks about a clear statement of law, does he exclude (as I very much hope he does) this Committee suggesting any amendments to the Bill of Rights itself?
  (Mr McKay) My Lord, to be blunt, the Bill of Rights is, as I said, a frail bulwark. What might be done is for you to recommend a statute which set out what you thought the Bill of Rights meant and for you to include in it a clause which the Australians have saying: "Look, none of this is intended to abridge but only to re-state Article IX". It is Article IX as it stands, however, which gives rise to all the legal morass that Mr Williams is talking about.

Lord Waddington

  49. Can I go back to the beginning of your evidence where you said that probably the time had come for some sort of codification and that there were two ways of doing it: either, one could set out in a report of this Committee or some other Committee what was thought now to be the present state of parliamentary privilege or one could pass legislation. At the end of your evidence you referred to the need to amend the Parliamentary Corporate Bodies Act 1992. Leave that on one side, because that is one discrete subject which could be dealt with by amendment. Which of the two alternatives would you think at present would be the more appropriate and easier way of dealing with the wider problems?
  (Sir Donald Limon) I think some fairly authoritative report from this Committee would be needed to set the ball rolling, as it were. I do not think it is a question really of persuading, very probably, the Government of the day that legislation is necessary and should then be drawn up. The extension of preliminary talks (and that is why we are all here) is to get a pronouncement from this Committee which is regarded as sufficiently modern, if I may use that very much in phrase, to enable progress to be made in the codification in some form—not necessarily legislation. We have tentatively concluded that legislation might be the best but it could be the Committee will feel differently after taking evidence.

  50. You are not suggesting it would be necessary to have legislation outside specific problems like the Parliamentary Corporate Bodies Act?
  (Sir Donald Limon) No, I am not. I think that is a matter for you to weigh up when you have seen how other people have got on in doing this and, as Mr Williams said, have decided roughly the kind of scenario you want to end up with.

Mr Bill Michie

  51. Can I go back to the Parliamentary Corporate Bodies Act? Whilst that may now mean that the minutes and other documents of domestic committees can be seen by a court, if that is necessary, it does not really mean that we cannot find a way of protecting Members and their privileges. There is a difference, surely, between contracts and buildings as opposed to the freedom of speech of a Member in the House?
  (Sir Donald Limon) That is absolutely right. There is a side issue but it is quite important and it is one which has hit us very hard indeed amidships in the last few weeks. The question of privilege of the House as it affects Members is a much more important subject intrinsically but, nevertheless, there is this difficulty which has arisen and it needs to be resolved in a sensible way. I completely agree with you about this.
  (Mr McKay) It seems to me that the solution to the problem will have to ensure that this hit amidships does not sink the ship. In other words, the change that is made in the Corporate Bodies area is not usable by others to flood the ship of privilege and sink it. The ship has got to be compartmentalised.

  52. So what is the real problem, then, as far as the Parliamentary Corporate Bodies Act is concerned? Does it really cause a leak to the ship? All it basically means is that officers of the House are now more vulnerable than Members.
  (Mr McKay) What it does mean is that, in the terms of the resolution passed by the House of Commons on Friday of last week, Committee papers, minutes of Committee meetings—discussions by Members—are now available to the courts if they are related to the particular contract and are in the hands of the Corporate Officer. Now, the courts are not permitted by the Bill of Rights to draw inferences from them, but it is a step to have made them available. These are not what officers said, but what Members said.
  (Sir Donald Limon) And the whole point about having done that is that I really do not believe myself that the court will be able to prevent itself from drawing some inferences. That is why the parties want it. The drawing of inferences is a very difficult area—this drawing inferences business. Once you have got something you do not say "Thank you very much" and take no notice of it. Obviously you have got it for a purpose.

Chairman

  53. Can I follow on this particularly narrow but important point involving the corporate officers? As I understand it, what we are focusing on are court proceedings involving the corporate officers. The question is whether the ordinary principles applicable to litigation in the case of court proceedings involving the corporate officers should take precedence over Article IX. That is a specific, on the face of it a self-contained, point. Do you see any reason why they should not? Do you see any difficulties arising from it if they are?
  (Mr McKay) There are two things here. The first is that I suspect the precedence of the normal rules of litigation is not so much over Article IX but over the more shadowy—but real—claim of both Houses to exclusive cognisance of their proceedings. Because that is not down in black and white it is more difficult for us to argue it in court. The second but principal issue, the real problem, is not so much making these papers available and obeying the normal rules, it is what happens next. What are the papers which next you will, in the normal course of litigation, be expected to disclose. What happens if, in any such case—I do not have particular regard to the one before the courts now—we make them available and then, in a sense, can be represented as having withdrawn them by saying, "We make them available but you must not draw any conclusions from them". That really puts the House in a difficult position. It would be necessary to draw the line in advance, whether by the conclusions of the Committee or in any other way, just exactly how far we go; where the line of compromise is between the normal rules of litigation and the normal rules of the House.

  54. Does there need to be a compromise? If one follows through the ordinary principles, all those documents in the House which are relevant would be produced and the court would, of course, draw from those documents whatever inferences were appropriate. Just help me on why that should not be so in the case of the two Houses where you have litigation involving the corporate officers so you are really dealing with commercial activities?
  (Mr McKay) My Lord, we are devising two forms of Select Committee: one form whose deliberations are entirely secret, never reported, where Members' freedom of speech is absolutely unlimited. The other Select Committee (apparently indistinguishable from the first) is where it is possible for deliberations to come into court.

  55. That follows, but maybe, now that the House is getting involved in this type of activity, that is a distinction which also must arise in Parliament. Is that right?
  (Mr McKay) It may be but, as the Clerk of the House says, it hit us amidships on this occasion.

Lord Archer of Sandwell

  56. I am trying to think of an example in the commercial field where we would not want inferences to be drawn from what was said in a Committee. I can understand it when we are talking about defamation or something of that kind but, if the House ventures into the commercial field, in what situation would you say, "Well, it would certainly interfere with the workings of Parliament if we draw inferences from that"?
  (Sir Donald Limon) I am in this dilemma in answering that question in that I can think of an absolutely perfect example which relates to the case which is before the courts now and I do not think it would be right for me to allude to that. I can assure you however that there could be in these documents which we have given, or there could have been, entries which would have had very material effect upon the case. We rather hope and believe, having read them ourselves, that that is not the case but you could easily see if you read them that there could have been inferences drawn from the deliberations of these committees which could have very material effect on this particular occasion, but I do not think I should be drawn on detail.

  57. Perhaps we could move to examples which are not immediate and going on at present. There could be no reason, if the House decided to enter into a contract, why it should not be liable on the contract in the ordinary way?
  (Sir Donald Limon) Yes, that is right and there is a lot of EC law on contracts and tendering processes and that sort of thing which we have to take into account. I do not think there is any suggestion that Parliament is exempt from them, certainly. If it ever went to European Court, I do not see our case standing up very well.

Lord Mayhew of Twysden

  58. If you were to produce the paper that has been suggested by Mr Williams, could you visualise yourself approaching it by saying that one has really got to start at the beginning and ask what Parliament needs as a legislature to be able to do its job effectively in the modern world, in modern conditions. We all know how conditions have changed—even in our own, quite short limited experience. When you have done that, look by all means at what other Commonwealth countries consider that they need, because that will be helpful; but then and only then should you get into the business of looking at the vehicle by which you actually deliver what is needed. It seems to me that that is how you have to do it. Then again, when you start to look at the question of how it is to be delivered, of course you look at the body of law that has been built up, both Parliamentary and statutory, and you also look at what Commonwealth countries have achieved and then you are in a position to produce a final report. But first of all, it seems to me, you have probably got to get practitioners and House officers to contribute to the first question "What actually is needed today?"
  (Sir Donald Limon) I think that is a perfectly legitimate way of looking at it and, as is our duty, we will make a very serious attempt to help in that direction by producing a further paper. If that does set you off in the right direction, that will be all well and good. It may be that you would find the direction we suggested was not going to work after you have taken other evidence, but there is no harm in that: at least it will help you further focus your minds as to where you want it to go and then you can explore ways of doing it, as you say, by taking evidence in other jurisdictions and then thinking how that should be fitted into our own body. This exercise that is being done now is very welcome because I think there has been a danger in this difficult period we have been in since this last report that we have been just reacting to events as and when they happen in a rather piecemeal way, which is not how this should be done.

  59. Does it seem to you that it is probably impossible in the practical world to come up at the end of this process with a code which every conceivable and foreseeable set of circumstances is likely to be able to be dealt with? A sort of template into which every set of circumstances can be forced? It seems to me that there is great value in doing what I have suggested because we have an opportunity to approach this extraordinarily important and very difficult subject from the beginning and have a comprehensive look right over the whole spectrum. But there is always going to be, I should have thought, areas which are new and have not been foreseen. The business about the House adopting executive functions and your being taken amidships by a demand for discovery of documents is probably a good example. There has got to be, therefore, some forum—whether Parliament or the courts—by which, in which, those unexpected future cases are going to be decided. You cannot hope to have a lovely great code with everything cut and dried for ever. Does that seem sensible?
  (Sir Donald Limon) I agree entirely with everything you say.


 
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