Examination of Witnesses (Questions 155
TUESDAY 27 JANUARY 1998
RIPPENGAL CB QC
155. Mr Davies, Mr Rippengal, the Committee
is grateful to you for your helpful memorandum and for attending
this morning to give us further assistance. When questions are
asked, please, either or both of you respond in whatever way you
consider would be of most help to us. Is there anything that you
wish to say to us at the outset?
(Mr Davies) Lord Chairman, I think not. I think what
is contained in the paper in my name, for which I am indebted
to Mr Rippengal, contains all we need to say at this stage, but
of course we will answer whatever questions the Committee would
like to ask.
156. From your memorandum it is clear that parliamentary
privilege has always been more of an issue for the House of Commons
than for the House of Lords. Can you suggest any reason why that
should be so?
(Mr Davies) It is difficult to answer that question
except to say that the House of Lords is a more part-time legislative
body than the House of Commons. It contains people who did not
enter the political arena by choice, it contains a lot of cross-bench
Members, and it may be that from that perspective issues of privilege
are not as important as they would be to the elected chamber whose
Members have certain duties towards their constituents. I do not
know whether Mr Rippengal has anything to add.
(Mr Rippengal) No, I do not think so, my Lord Chairman.
We have said in the memorandum that they are a bit more relaxed
about privilege in the Lords than in the Commons. It is clear
that there have been one or two specific instances of matters
which would be regarded as breaches of privilege by the Commons
which we would not so regard, but I really cannot explain why
there have been so few cases of privilege in the Lords other than
the explanation the Clerk of the Parliaments has given.
Sir Patrick Cormack
157. Do you think it could be because of the
reluctance on the part of Members of the House of Lords who are
not elected Members to seek to assert the status that elected
Members are perhaps more ready to assert?
(Mr Davies) I think that is very difficult to say.
In my 34 years in the House of Lords, privilege has never been
a great issue. There has been just one reference under the Mental
Health Act 1983, but it is certainly not something with which
either Members or officials of the House have been much concerned.
158. Can we take that a little bit further.
It is notable that in your memorandum you take what I might call
a slightly more relaxed approach to the sacredness of Article
IX than your colleagues in the House of Commons. Do you think
that may be a reflection of the fact that privilege has been less
of an issue in the Lords than in the Commons? I am just wondering
how it comes about there is this difference in emphasis between
the two Houses.
(Mr Davies) Yes, Lord Chairman, I believe it must
come from the fact that neither the Members nor the officers of
the House of Lords have had to concern themselves so much with
the privileges of the House and perhaps it does lead us to appear
to be a little more relaxed about Article IX of the Bill of Rights,
although we certainly do not regard any relaxation of those provisions
(Mr Rippengal) Could I perhaps add to that. Certainly,
speaking for myself, I would not regard Article IX as anything
other than an extraordinarily important provision. We have said
in the paper that freedom of speech in the sense of protection
from any sort of proceedings against Members for what they say
in Parliament is the most critical of all privileges, and even
what is called in the memorandum the wider aspect of Article IX
we have said we regard as of high importance. I do not think it
would be true to say we take a relaxed view of Article IX, but
there have been very small aspects of it perhaps where we have
taken a different view from the Commons. For example, we never
regarded Article IX as precluding reference to proceedings in
Parliament at all. It was argued by the Attorney General in Pepper
v Hart that you could not even refer in court to reports of
proceedings in Parliament because of Article IX. We never took
that view but that was a very minor difference perhaps between
us and the Commons. We certainly regard Article IX as of crucial
159. What I had in mind in particular was that
you take a rather different approach on the question of whether
in relation to bribery the correct and better handling would be
through the criminal courts rather than for the Houses to attempt
to regulate it themselves, even though that would mean altering
(Mr Rippengal) Yes. We have said in the paper that
we think the only really effective way of dealing with bribery
is to make it a criminal offence triable in the ordinary way.
But we have also said that that means facing a hard choice. Which
do you regard as the greater public interest: preserving even
the wider aspect of Article IX in all respects, or nailing Members
of either House for corruption. There is a genuine choice to be
made. The Home Secretary, who was very much urging at your last
meeting to make corruption a criminal offence triable in the ordinary
way, conceded that there was a choice to be made. There is a conflict
of interest here.