Parliamentary Privileges Report

Examination of Witnesses (Questions 80 - 99)



  80. The letter from a constituent to a Member which prompts him to raise a question would be within Article IX?
  (Mr McKay) Not at the moment necessarily but I think if you started from the beginning you might draw the line there. I do not recommend it; I simply say it is possible, logical.

  81. A possibility might be that Article IX or its equivalent should be construed fairly narrowly, having in mind, of course, that there is another sanction outside Article IX attaching to conduct which is an improper interference with a Member in the pursuit of his public duties. So challenges to constituents who are writing letters like that should not be ones which are regarded as flowing from interference in Article IX terms but should be regarded as consequences which flow from interfering with the wider principle of the orderly conduct of a Member of his public duties?
  (Mr McKay) I think it would be very difficult for an individual letter to be regarded as improper interference. You would have to be a pretty persistent correspondent and have lots of friends before you really began to make yourself a contempt case. In other words, the House's self-imposed restriction on what was contempt would probably dismiss that abusive letter or even a lot of abusive letters. There would be no conflict, as I see it, between the possibility of the House punishing someone for a letter and a letter in the same vein being protected because it is used in a proceeding.

  82. But when we come back to what is the underlying purpose of Article IX, it is to prevent Members from being inhibited in freedom of speech and communication. How does failure to put the Article IX mantle over the letter we have been talking about conflict with the Member's right to freedom of speech?
  (Mr McKay) I think there is a connection, admittedly tenuous. There is a constructive inhibition in that I, being now a constituent, think I had better not write to the Member and blow the whistle on some particular fact which I know about, which he might raise in the House. I shall not do it, because he cannot protect me if I do. Thereby the Member is limited in participation in the proceeding; but it is a tenuous connection.

  83. I have an uneasy feeling we have not yet got to the bottom of the principle. You are suggesting, as I understand it, the difference is one of degree, the closeness or distance of the connection?
  (Mr McKay) Yes.

  84. So how would that work in respect of other types of communication? A Member writes to a minister: that is always protected?
  (Mr McKay) There is a choice, it seems to me, whether you take the view that a Member writing to a minister is, on the balance of probability or till you can show that he is not, doing so by right of his membership of the House. That is a different set of considerations from those applying to the constituent, because the Member has a position in the House, in the constitution. His or her writing to a minister is more likely to be on the affairs of Parliament than that of a constituent writing to a Member, but the controlling consideration in both instances is, is it about that set of duties which a Member, as a Member of Parliament, has to the constitution, to his constituents and to the House.

  85. The Article IX right was amended by the Defamation Act of 1996?
  (Mr McKay) Not in terms but effectively.

  86. Have you any comments to make on that particular amendment in terms of its consequences?
  (Mr McKay) Chairman, I think we say in paragraph 17 of our paper that there are problems unresolved arising from that section of the Defamation Act. These include problems of the person who is not a Member of either House who waives the privilege—the privilege of a petitioner or a witness - against the wishes of Members of either House who are concerned in the same activity. There is the question of the two Members who are alleged to be jointly part of a conspiracy of a corrupt character, one of whom waives his or her privilege and the other does not. There is the issue of the Member who waives his privilege on one occasion but not on the next. These are practical problems. The problem of principle is that the Houses have always understood parliamentary privilege to be a collective right, and this statute turns a part of it into an individual right.

  87. If we could tackle it from the other end for a moment and look at it as a collective right, should the House be able to waive that right?
  (Mr McKay) The House has frequently waived, or rather not insisted on, its non-statutory privileges. Indeed, as we mentioned, there is an anomalous case where an individual Member does not insist on his or her privilege.

  88. Should that be so for the statutory rights as well?
  (Mr McKay) I think that is a decision which the Committee must take. All we can do is point to the practical problems which may arise if a Member does it. It would be for the judgment of the Committee whether, taking those into account and giving them proper weight, it is still right to go ahead and allow the Defamation Act provisions to stand.

  89. One possible difficulty which might arise is that if the House were given power to waive the Article IX protection in respect of defamatory statements made by one Member, then a Member, contrary to his wishes, might find himself exposed to court proceedings?
  (Mr McKay) That is so. That is simply, it seems to me, Chairman, an articulation of the difficulty of principle—collective against individual.

  90. That might suggest that it could only be done by the House with the consent of the individual. Have you any comments to make on that type of approach?
  (Mr McKay) That would perhaps dispose of the point of principle. The practical points would probably remain.

Lord Wigoder

  91. Is "not insisting upon" the same thing as "waiving"?
  (Mr McKay) I do not know, my Lord. I think I prefer "not insisting upon" because it does not answer the question.

Lord Mayhew of Twysden

  92. It does not add to the body of certainty, does it, if a Member may find that the House has pulled the rug from under him? On what principles would the House direct itself in approaching that discretionary power?
  (Mr McKay) I suppose on the principle of transparency, the point that Lord Waddington has made. "Some offence may have been committed. We should not stand in the way of its trial."

  93. Lord Waddington's point avoids this, as I understand it. Lord Waddington is saying, "Here is a discrete area which we are going to block off and it will not work," and that is much more certain in its consequences than what we are at present discussing?
  (Mr McKay) But then Lord Waddington, as I understood it, made that proposal in the context of corruption and bribery. We are now perhaps thinking in terms of defamation.


  94. In your memorandum you have drawn attention to the distinction between privilege and contempt and the two Houses now are, as you have already pointed out, much more tolerant than perhaps they once were of perceived offences against what certainly in the past could be called their dignity in express terms and now is used rather differently. Is there, in your view, a need for retaining the notion of a parliamentary offence of contempt?
  (Sir Donald Limon) I do not mind what it is called. That is an old-fashioned phrase and I would be quite happy to try and think of another one, but I think the concept does probably still remain valid. In recent cases the House has exercised great restraint in this area, having adopted the recommendations made by the Privileges Committee in 1977, and I think that has worked quite well actually. But if people do not like the phrase "contempt" I think we could think of a better one. "Privilege" itself is an unfortunate word, but these are the words which we have been left with. We might be able to think of something which was more in accord with the way people think and work nowadays. I do not think it would make very much difference but if people were unhappy with the language no doubt other words could be thought of, but I think the offence of contempt in extreme cases should probably be retained.

Mr Williams

  95. On that, I think of things like our Select Committees, where we are asking for evidence from people outside Parliament. If you did not have the concept of contempt and if people were not afraid of being charged with contempt, is it not likely that the veracity of witnesses might be considerably undermined?
  (Sir Donald Limon) Indeed. I think that is a good example.


  96. In your memorandum I thought I detected some doubt on your part on the ability of the Committee on Privileges to deal satisfactorily in all cases with the exercise of its punitive functions. Do you have any alternative procedure that you would prefer?
  (Sir Donald Limon) The Committee itself is addressing that very problem at the moment, I think, and I prefer to leave it to them to come to a judgment on their own affairs to start with. Whether that proves to be acceptable to the House generally if it is put to the House I do not know but I think on that particular issue, which is acute at the moment, brought about by the fact that the first case under the new procedure proved to be an exceptionally difficult one, I would prefer to allow the Committee to see if it can think of a way out of that but I think it will be very difficult indeed. Again I go back to what Lord Mayhew said at the last meeting. The same applies to that. If they are going to purport to hear a great deal of evidence day after day after day in very complicated cases, I think it is not a bad proposition for Members to undertake that sort of work plus other duties.

  97. But without pressing you, therefore, on the detail, do you think it is acceptable today for either House to fine or imprison, punish in any way, a non-Member without that person having the procedural safeguards which are available to defendants in court proceedings?
  (Sir Donald Limon) I think people outside would find it very difficult to accept that the House should do that. I think that is probably one of the things which inhibits it. There is nothing to stop them trying it now. They have not done so and there are all sorts of considerations which apply there, not least, I imagine, the power of the press, which is one of the things we have not mentioned in these proceedings but, of course, it is extremely important in this context actually.

  98. Do the procedures of the Standards and Privileges Committee give defendants, so to speak, in those circumstances the same protective safeguards as are available in court?
  (Sir Donald Limon) No, not the same at all. One of the problems is that the investigatory side of this was envisaged at one stage to be done by a Sub-Committee of the Committee, leaving the Committee to act as a court of appeal. That is not the way in which the Committee has, in fact, been working. Nevertheless, the thought of having three investigations, one by the Parliamentary Commissioner, one by a Sub-Committee and another by the Committee, is very daunting, especially since that final one still did not resolve it.

Mr Williams

  99. Before we leave that, on a point of clarification, could we have it made clear that, as I understand it, the abandonment of the idea of a Sub-Committee was not a decision of the Standards and Privileges Committee itself? That was a decision of the House of Commons. It is just so that we do not draw the wrong conclusions.
  (Sir Donald Limon) I do not believe that is so.

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Prepared 9 April 1999