Parliamentary Privilege Minutes of Evidence


Examination of Witnesses (Questions 155 - 159)

TUESDAY 27 JANUARY 1998

MR MICHAEL DAVIES AND MR DEREK RIPPENGAL CB QC

Chairman

  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.

Chairman

  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 lightly.
  (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 importance.

  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 Article IX.
  (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.


 
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