Parliamentary Privilege Minutes of Evidence


Examination of Witnesses (Questions 200 - 219)

TUESDAY 27 JANUARY 1998

MR MICHAEL DAVIES AND MR DEREK RIPPENGAL CB QC

Lord Mayhew of Twysden

  200. That was rather what was worrying me. How do the police investigate this without calling into question or impugning, which I think is the language, a parliamentary proceeding, because they would need, in the case which I can envisage, to go to the proposed defendant's or the suspect's colleagues and say, "What about this?" Would he be thereby prevented from saying, "I am not obliged to answer this sort of question. It is a parliamentary proceeding". have I got that wrong?
  (Mr Rippengal) I think it certainly does say that freedom of speech and debates or proceedings in Parliament should not be questioned or impeached in any court or place out of Parliament.

  201. Or place, yes, that is what I had in mind.
  (Mr Rippengal) It would cover the executive (they had in mind the King in those days) but I think yes, the police could not carry out this investigation without questioning or impeaching what was said in Parliament.

Sir Patrick Cormack

  202. Would you not agree that that really is a very major constitutional change, that I could be subpoenaed to appear to give evidence in court when I had had absolutely nothing to do with the particular transaction, but merely to substantiate a particular statement that I may have made or intervention I may have made in Parliament? Is this not of profound constitutional significance?
  (Mr Rippengal) Yes, it would be an important constitutional change to make any further inroad into Article IX, and we have a little bit of it already in the Defamation Act. I think we have said in the paper that we regard Article IX as a very important article, even as respects its wider aspect.

  Mr Williams: This is turning into being semi-deliberative, but ideas are flowing and I think that that has not been a common feature of our meetings in the past because we have all been somewhat feeling our way around. What about, say, the Commissioner being the trigger? It is the Commissioner who does the initial investigation on behalf of the Privileges Committee, saying, "These I can deal with and I refer them to the Privileges Committee. These I cannot deal with adequately because I do not have the resources or the power to carry out the appropriate investigation and, therefore, rather than refer it down channel A, the Privileges route, I would want to try and channel it through B, the court route". It would mean revising the concept of the Commissioner as well possibly.

Chairman

  203. May I turn next then to other aspects of parliamentary privilege which you may be able to help us on. I am going first to one that you single out, freedom of speech, as perhaps the single most important. Should ordinary citizens have, in your view, any protection against that privilege in the sense, for example, of having a right of reply or any other protection or safeguard when they have been, so they say, defamed?
  (Mr Davies) Well, I think this is a matter of hard choices. My view is that a private citizen does not have any right of reply to a defamatory statement in either House. If you are going to preserve the freedom of speech intact, I think that has got to stand by itself and that there can be no comeback, as in a court. I believe, though I am not a lawyer, that in a court of law, members of the public could be defamed in evidence without any right of reply, or recourse to making a statement themselves. I think that both Houses have got to be aware of their responsibilities in this regard and ensure that outrageously defamatory statements are not made just because they are protected by the privilege of freedom of speech.

Mr Michie

  204. You said in your memorandum that maybe a way around this would be for the citizen to have access to making statements in Parliament, but you are not happy about that because that might be defamatory or too negative. Surely there can be a protection mechanism to make sure it is not abused in that way.
  (Mr Rippengal) Yes, I think clearly one could have a provision for a right to have a statement read out in the Chamber or possibly published in the minutes of the House, some written or spoken statement. I think we said in the paper that you would need to take care over the provision to make sure it was not itself defamatory and was indeed a fair representation. You could go on for ever. A statement could come back against the Member who had made the first statement and then—

Sir Patrick Cormack

  205. It is a dangerous path to tread, this one is.
  (Mr Rippengal)—The Member might say, "Well, yes, but I don't agree with this statement". It is quite a difficult area. I believe they have done it in one of the Australian jurisdictions—I am not sure if it is the federal or one of the states—but I think it is quite a difficult sort of provision to frame when you really get down to it.

Chairman

  206. That really brings us on to the next question. Is it practicable to devise a workable system of a right of reply given the sort of difficulties you have just touched on?
  (Mr Rippengal) I have got my doubts. It might be possible, but it is not easy.

  207. Article IX draws a boundary line between proceedings in Parliament and everything else, so that the boundary line is drawn between certain communications, spoken but also written, on the one hand, which are within Article IX and others which are not. If you were writing today on a clean slate, and forget the phrase "proceedings in Parliament", but if you were today drawing on a clean slate a boundary line between communications which should be the subject of parliamentary privilege and others which should not, where would you draw the line, having regard to the areas today where there is doubt and obscurity, for example, communications with constituents, communications with ministers and so forth? Where, in your view, should the line be drawn?
  (Mr Rippengal) Well, in the Lords of course we do not have the problem of constituents, if I may put it that way. We are really always talking about proceedings either in the Chamber or one of the committees of the House and things said or written for the purposes of any proceedings taking place there. I think if you are asking us about what should happen in relation to the Commons—

  208. Communications with ministers.
  (Mr Rippengal) Well, communications with ministers again, looking at a peer's function strictly in accordance with his Writ, a peer does not have any particular function of writing to ministers, though of course peers probably do sometimes write to ministers in connection with matters in Parliament in which they have got an interest. I would have thought that a line could be drawn entirely around the proceedings in the House and its committees.

Mr Michie

  209. So all proceedings?
  (Mr Rippengal) Any proceedings in the Chamber or in any of the committees of the House.

Chairman

  210. So the whistle-blower who writes to his Member or to a peer would not be within the privileged area?
  (Mr Rippengal) Well, I think there is a Bill going through—

  211. No, leaving aside the qualified privilege as a matter of law, but, as a matter of parliamentary privilege, you would not include him or the Member's response?
  (Mr Rippengal) Not within the absolute privilege accorded to proceedings in Parliament.

Sir Patrick Cormack

  212. But if the Member read out the letter in Parliament, it would be covered, and that is the point. If I had a letter from someone in my constituency alleging a malpractice and I communicated on that matter outside of Parliament, it would not be covered, but if I chose to stand up in Parliament and either in an adjournment debate or another debate I read out that letter or quoted from that letter, then it would be covered and covered absolutely
  (Mr Davies) That is the privilege of freedom of speech.

  213. Absolutely.
  (Mr Rippengal) Yes, it is a difficult line to draw.

  Chairman: The publication in Parliament would be the subject of privilege, but whether the writing of the letter to the Member would be is the particular aspect that I am asking you about.

  Lord Merlyn-Rees: I choose my words carefully in that I know of a case where research assistants write to ministers and that would not be covered.

Chairman

  214. But you have answered the question in that you would draw the parliamentary privilege protection tightly.
  (Mr Rippengal) Yes, because it is such a powerful privilege.

  215. Can I move on to another area, subpoenas. On page 9, paragraph 16 of the memorandum, Mr Davies says in the third line, "There have in fact been no cases in recent years of which I am aware." Do I understand from that that no peer has raised the point or it is thought that no peer has ever been subpoenaed?
  (Mr Davies) Well, I cannot believe that no peer has ever been subpoenaed, but no peer has ever raised the point, or not in recent times.

  216. But the conflict that has to be resolved here is, on the one hand, ensuring that the service of the subpoena either to attend and give evidence as a witness or to produce documents should not interfere with the work of the Member of the House and, on the other hand, not permitting that need to protect the workings of the House from interfering unnecessarily with the administration of justice, so one is looking for a satisfactory practical resolution. One possibility of course is that prima facie the subpoena should stand and a Member should not be able to avoid his obligations to assist in the administration of justice by saying, "I am a Member and the House is going to be sitting for the next six months". On the other hand, one would not want to find that difficulties of time-tabling in the law courts really did interfere with a Member attending the House or a committee at an important point. Now, is a possibility that prima facie the subpoena stands, but that the Speaker, for example, or the Lord Chancellor or some other official in the House should be able, when needed, to take steps to see that the subpoena should not override the obligations in the House? What is the best resolution of this conflict in practice?
  (Mr Davies) I think in modern circumstances the interests of justice and the court system probably take priority over the availability at any rate of a Member of the House of Lords, to be in his place on any particular day. As I have mentioned in paragraph 14, there might be a case where a Member of the House was actually serving on a Private Bill committee whose work would be interrupted unreasonably, possibly at the end of its hearings, and that perhaps the subpoena should be postponed for a short time, while those proceedings were concluded. But I cannot believe that in the circumstances of normal attendance in the House the privilege against being served a subpoena should take priority over the interests of justice.

Sir Patrick Cormack

  217. May I take you further on that? Presumably in the House of Lords the system is that if a peer wished to resist, he would come to you as Clerk of the House?
  (Mr Davies) Yes.

  218. I have myself had to do this, to go to the Clerk of the House of Commons. I had a particular constituent, vexatious and litigious, and we all have them from time to time, my Lord Chairman, and the argument would be that Members of the House of Commons would be summoned right, left and centre to all manner of cases if we did not have the provision of going to the Clerk of the House of Commons and asking that he communicate that the duties of Parliament take precedence. I just want to establish that that system, although not used in your experience, exists in the House of Lords and I want to put on record that I think it is terribly important that it should continue to exist in the House of Commons.
  (Mr Davies) Well, I have had no experience of a Member of the House coming to me and I believe my predecessors have had no recent experience of that, so it is rather difficult to give the Committee any advice from our perspective, but I think the relationship of a Member of the House of Commons with constituents remains different from membership of the House of Lords which is a rather more fluid arrangement.

Chairman

  219. At present, Acts of Parliament which affect the regulation of Parliament do not apply unless expressly so provided. Do you think it would be better if the procedure were the other way round so that Acts would apply to what happens in Parliament unless expressly provided to the contrary?
  (Mr Rippengal) Well, there is a case for that, I think. There are very few modern cases on the matter. The Graham Campbell case, which held that the House of Commons was not bound by the Licensing Acts in the sale of alcohol, seem to have been a benchmark and, as a result, I think the draftsmen of legislation affecting, for example, employment have assumed that it would not cover both Houses without express provision. When you get down to the details of an Act, and, for example, we have been looking at the Health and Safety At Work Act recently, you find that it probably does not quite fit the parliamentary situation without adaptation, so that a general presumption that Acts applied to either House unless they said to the contrary could lead you into difficulties. But I would have thought, and I think we said in the paper, that this area is one which might be of some interest to the Committee because it has gone a long way. There are people who doubt the soundness, for example, of the Graham Campbell decision, and it is not a bad question: why should either House be free of the licensing laws in the sale of alcohol, and why should either House be free of legislation protecting the interests of its employees? That is certainly an area, it is the exclusive cognisance area, the limits of which are probably not altogether clear.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999
Prepared 9 April 1999