Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 400 - 419)



Lord Waddington

  400. We will no doubt come back to this in more detail later, but I would like to be clear on this right away. We have discussed at great length whether there should be a new offence of bribery of a Member of Parliament and acceptance of a bribe by a Member of Parliament. There has been a long debate as to whether offences of that sort should be dealt with within Parliament, or whether we should grasp the nettle and say that it should be triable by the courts and there would be no question of Article IX applying to an extent which would frustrate a proper hearing of such a case. I wonder, when you are talking about a right of appeal against a decision made by Parliament which affects the rights of an individual, whether you are considering that in fact this question of bribery of a Member of Parliament and acceptance of a bribe by a Member of Parliament could be dealt with within Parliament rather than by the courts, provided there was a safeguard of some sort of right of appeal. Is that something you are contemplating and, if you are contemplating it, I wonder whether the European Convention has any bearing on this. Is there a feeling behind this that, if such a matter was dealt with by Parliament and there was not a right of appeal, there might in fact be an infringement of Article 9 of the European Convention on Human Rights?

  A. I understand the sensitivity of the whole question of bribery, but I certainly envisage that if—and it is a big "if"—a Member of Parliament is accused of corruption, he or she is tried in the ordinary courts by the ordinary criminal processes, and nothing that I have said so far applies to that situation. There will be a number of reasons why I think, despite the sensitivity of the question, that this is to be preferred. I think the most obvious really is the public perception of the matter. I think if the public are to be reassured that Members of Parliament are beyond reproach, they would think it a safeguard that Members of Parliament, like everybody else, were subject to the ordinary law of the land and liable to be prosecuted in the ordinary courts. I hope that answers the question.


  401. May I just revert for a moment to the suggestion of an appeal to the Judicial Committee in certain circumstances, one of which would be in the event of a Member having been disciplined by one of the Houses. One possible criticism of the Judicial Committee functioning in an appellate capacity in that situation is that of course it is not so well placed, it might be thought, to assess the seriousness or otherwise of the offence of which the Member has been charged. For example, if it is suggested that he has failed to register an interest when he should have done or that a Party Whip has sought to influence a Select Committee, really an outside body is not the best vehicle to decide the gravity of the offence. Are you envisaging that the appeal body would be one which in effect heard the matter de novo or would it be more akin to a judicial review in the sense of the supervisory jurisdiction, or would it be more akin to the appellate court jurisdiction when there is as it were a hearing de novo but only on the basis of the evidence which has already been given? Which of those three possible variants, or indeed any other variants, would you envisage?

  A. I most emphatically envisage that any right of review should be on the lines of the review which is currently exercised on any appeal from an expert professional body, so that if for example the Judicial Committee is hearing an appeal by a doctor who has been struck off the medical register on an order of the General Medical Council, the Judicial Committee will not say, "What do we think of the gravity of this offence?" or, "What do we think is the right penalty?". It will review the decision of the General Medical Council, see if there is any legal error in it, see if there is any legal flaw in the decision-making, and consider whether the penalty is so strikingly disproportionate that somebody must have misdirected themselves as to the gravity of the offence. Obviously, in the situation that I envisage the Judicial Committee would give the greatest possible weight to the decision of the House and it would recognise that the House was in a better position than it was to assess the gravity of particular kinds of offence, just as the General Medical Council are in a better position to assess the gravity of different kinds of breaches of doctors' ethical responsibility. But it would mean that there was a power of review, it would mean that there was another body that could look at the decision, and that I think is a healthy safeguard in almost any situation of this kind.

  402. So that the jurisdiction which the Judicial Committee of the Privy Council currently exercises on appeals from the General Medical Council and the General Dental Council would be the model?

  A. Yes, and of course that is exactly the same as the court does with solicitors and accountants and everything else.

Lord Archer of Sandwell

  403. But is the likelihood here that the complaint will be not that there was some procedural mistake (that is probably unlikely where we are dealing with one of the two Houses of Parliament), but that the assessment of the political effects of what was happening, the failure to disclose something on the register of interests, was mistaken? That is not quite like the review of the decision of a professional body, is it? Surely if we need anything to deal with that kind of complaint, it is a tribunal where people do have some feel for the culture of the work of a House. I was wondering whether the Lord Chief Justice might consider that instead of the Judicial Committee of the Privy Council, whose members normally have not had much experience certainly of the House of Commons, we could have some kind of specially selected committee of the Privy Council which might include a wider range of expertise on this.

  A. Yes. I think my preference would be for the Judicial Committee but I have given thought to a wider committee and that would clearly be something that would deserve consideration. It is very difficult to envisage all the cases that might arise because of course until a case does arise you do not know what it is going to be. I have sufficient confidence in the judicial members of the Judicial Committee that in so far as they lack personal experience they would not lack imagination and the ability to understand what they were told, and, as I say, they would of course pay close attention and give great weight to the decision of whichever House was involved. I would understand it if the Committee thought it would be better to have a wider mix of people.

Lord Wigoder

  404. Does the expression "the High Court of Parliament" mean anything these days? Does it complicate the issue or is it simply a meaningless expression?

  A. If you were to ask me what it meant to me I would really need time to think about it. I think the Appellate Committee of the House of Lords sits as a Committee of the High Court of Parliament, does it not—the Lord Chairman is giving me a faintly encouraging nod—so it may well be that it is its derivation that enables the House of Lords to sit as a judicial body at all.

Lord Mayhew of Twysden

  405. Is the Judicial Committee of the Privy Council not a much larger body potentially than for example the Appellate Committee of the House of Lords, which is limited? My recollection, which is pretty hazy, is that it is limited to people from anywhere within the Commonwealth who have held high judicial office and it may be more wide than that. If it is wider than that, it is a unit that is open to people in the Commonwealth, and that means that there is quite a large pool, does it not, from which somebody has got to choose the relevant committee in an instant case? Would that be the Lord Chancellor and would you envisage any problems arising there?

  A. I think it is certainly true that the Judicial Committee is a wider body than the Appellate Committee of the House of Lords in that it does include Privy Councillors who have held high judicial office in this country or in those countries of the Commonwealth which still have their senior judges as members of the Privy Council. I would envisage that the nomination of members to try a particular case would be in the hands of the senior Law Lord, which is what I understand to be the position at the moment. I certainly do not understand that the Lord Chancellor plays any part in that any more than he does in deciding who will try any other case.


  406. Over fairly recent years the courts and Parliament have developed a relationship of what I think can be fairly described as mutual respect. In general at least the practices evolved in the two Houses in respect of sub judice matters represent a determination by the Houses not to entrench upon matters which are properly the subject of the courts, and conversely the courts have respected parliamentary privilege. We have had certain developments of course. Pepper v Hart springs immediately to mind. Section 13 of the Defamation Act has increased the possibility that there might be circumstances where the detail of what happened in one of the chambers is examined in depth by the courts and the question of criminal courts looking into these matters in the context of bribery and corruption is one of the possibilities in the air at the moment. Your suggestion of a Judicial Committee having in effect an appellate, supervisory role represents another development. Do you think this is at all dangerous in the sense of it shifting an existing balance in a way that might be unfortunate? Do you think the judges would welcome it?

  A. I think one has got to judge every single proposed change on its merits rather than as it were whether it gives support to a principle of change without attention to the detailed proposals. I do not myself see a danger in Pepper v Hart. I do not see a danger in the right of the courts on the very limited basis that I am suggesting in the case of a dispute to the Judicial Committee of the Privy Council. I do not think there is anything there that would alarm the judges and I do not think there is anything there that should alarm parliamentarians, because I do not think there is any risk of the courts deciding to interfere with Parliament save in the very special circumstances that we have been discussing. So far therefore, no, I do not think there is anything which is dangerous or would be unwelcome to the judges. I do not think they are being asked to do anything that they would prefer not to do, but you are in a better position to express a view on that than I am.

  407. I suppose in a sense if one went the Judicial Committee route, one is limiting possible areas of danger because that would be to continue the message to the judges that you, the judges, do not examine in detail what happens in the chamber because they still would not do so.

  A. Yes.

  408. That would be reserved for the Judicial Committee. But one is—and maybe you would agree—anxious to avoid a situation where bit by bit one erodes a safeguard which has been built up through a gradually changing attitude, that whereas in the past the judges accepted that there were certain areas that were properly and exclusively within the province of the legislature, now gradually the courts were moving into that area. That is, would you agree, something to be avoided as a danger?

  A. Certainly. At the same time it seems to me a desirable thing that the Committee should look at all these things. It is after all 300 years since the Bill of Rights and the situation then was very different. One had a completely subservient judiciary and no formal prosecuting processes etc, so it does seem to me appropriate to have another look at these things in the entirely different environment which exists today.

Lord Waddington

  409. Is there or is there not a difference between a member of the public being hauled before Parliament and punished for a contempt and having a right of appeal and a Member of Parliament who is punished by his own co-Members having a right of appeal? Is there not a very much stronger case for a right of appeal for a member of the public than for a Member of Parliament?

  A. Yes, I think there is a much stronger case, but if one could perhaps—and you may consider this so far-fetched as to be inconceivable—theoretically have a situation in which a Member had made himself or herself for whatever reason particularly unpopular, incurred great odium among fellow Members of either House, and was the victim of a decision which that person, rightly or wrongly, claimed was unfair despite the fact that they were a Member, in such a situation it would seem to me desirable that there was some avenue of appeal. But I agree with your fundamental point. I think it is much stronger in relation to members of the public than in relation to Members who in a sense can be said to have become Members on terms of accepting whatever the disciplinary arrangements were.


  410. May I move on to a slightly different aspect of the problem, freedom of speech, Article IX for shorthand purposes, and where the boundary should be drawn between that which is the subject of absolute parliamentary privilege on the one hand and that which is not but may be the subject of a legal privilege, eg qualified legal privilege for cases of defamation, on the other hand? You have made the suggestion that a possible place to draw the boundary is what goes into Hansard and what does not. At the moment, as you may well know, certainly the generally accepted view is that Article IX also encompasses that which is said in front of committees, sub-committees, early day motions and so forth. It is Hansard plus at the moment.

  A. I was under the impression that what was said in committees was reported in Hansard but perhaps I am wrong about that.

Lord Wigoder

  411. They are separate reports.

  A. Yes, but it is the same body, is it not?

  Lord Wigoder: You can get hold of reports.


  412. Let us not spend time on the detail as long as we are in agreement on the substance. There are two particular aspects that I would like your help on, which are these. First of all is the position of the person who is frequently summarised simply as the whistle-blower, the member of the public who writes to his member and says, "You ought to knowthat . . .". Very often that will have been communicated to the Member—and others will know much better than I do—in the hope if not the expectation that the Member will raise it in the House or with a Minister, so it is intended to lead on to something within Parliament. Do you think that communications of that sort by constituents and others to their Members or by Members to their constituents should be the subject—and I emphasise "should be" rather than "is" or "is not"—of absolute parliamentary privilege?

  A. My view was, and I think still is, that it should be the subject of qualified privilege. Let me take if I may a hypothetical but realistic example to test it against. Suppose a member of the public believes that there is systematic child abuse going on in a local authority home within the area of a particular Member of Parliament and writes to the Member of Parliament saying that this is going on and something ought to be done about it. I would be quite clear in my mind, if the member of the public was right, that there would be a complete defence for every complaint. If the member of the public believed genuinely that there was such abuse going on and was making the complaint to an appropriate person, namely a Member of Parliament, it would seem to me that there certainly ought to be qualified privilege. If, on the other hand, the member of the public was making that complaint maliciously, because he or she had some grudge against the people who worked at the home or had been dismissed and wanted to do the dirty on somebody working there, then I do not myself think that should become the subject of privilege. I think somebody should be responsible for a malicious statement of that kind. So far as the Member of Parliament is concerned, one is in a different situation because the Member of Parliament, having received this complaint, is likely to feel that it could be right and deserve investigation. The Member of Parliament might I suppose inform the police and might inform the NSPCC or might inform the Department of Health. In either event, as it seems to me, the Member of Parliament should be protected by qualified privilege so that, provided he has no ulterior motive and was simply doing his or her job as a Member of Parliament, not knowing whether the complaint was true or false and certainly not believing it to be false, there should be that protection. Again I would question whether, if the Member of Parliament actually does know it to be false or has some malicious or ulterior motive, there should be more protection than that. That is where I would be inclined to draw the line.

Mr Michie

  413. May I ask how qualified privilege works in practice?

  A. In this particular case, if I could pursue my example, the manager of the children's home will issue proceedings either against the member of the public or, I suppose, against the Member of Parliament and say, "This is false". The person who is sued might say, "It is not false; it is true", but would probably be unlikely to make good that but would say, "Whether it was true or false, I genuinely believed it to be true and made the complaint to an appropriate person to be informed" and that would be, provided it was substantiated, a complete defence to the case, even if it proved that the statement was completely false and there was no truth in it whatever.

Mr Tyler

  414. May I take this a step further? Obviously, it is extremely important for Members of Parliament to receive that sort of protection because they cannot be expected to have investigatory resources or expertise, and one could imagine circumstances where they might be frightened from taking an initiative, making representations to the appropriate authority, and then of course subsequently be under attack for not undertaking that course of action. Are you satisfied that the present situation is the right balance?

  A. I think it is. When you say, am I satisfied, that is rather a difficult question because I would need, I suppose, to ask Members of Parliament for their personal experiences. I would be myself very wary of giving carte blanche to the malicious to make statements which they knew to be false and damaging. I do not think the Member of Parliament should be in an exposed position. As you say, the Member will not know whether it is true or false but would be fully entitled to say, "This ought to be looked into. If there is any truth in this it is monstrous and ought to be stopped". Therefore in the absence of some reason to believe that the complaint made to the Member was false or malicious, I think the Member would be as safe as houses in passing it on to the appropriate quarter.

Mr Michie

  415. You cannot shoot the messenger.

  A. No.

Mr Tyler

  416. The message might be more modest, my Lord Chairman, if I may say so. The example you take is one we would all recognise, that the Member of Parliament would have to take action. Perhaps a more usual set of circumstances is a neighbour dispute and somebody comes to the advice surgery of the Member of Parliament—I am sure we have all suffered from this—and says, "This is outrageous", "They have got legal aid", and so on. Probably the Member of Parliament writes to the appropriate authority, it might be the Legal Aid Board, it might be the local authority, with no comment, with no addition to the facts that have been put before him. If we are suitably careful about it we may well put a line in saying, "I am not in a position to judge this", but I am not sure all Members of Parliament would automatically have that on their standard letter. There clearly would be a problem if we were exposing ourselves in those circumstances to the attack from the other party to the neighbour dispute.

  A. Yes. I think so long as the Member of Parliament is an appropriate person to approach with a complaint and so long as the Member of Parliament handles the complaint in an appropriate way, which would be by passing it on to the local authority or whoever, I do not think there would be any risk to the Member.

Lord Archer of Sandwell

  417. What is the distinction for this purpose between a letter written to the Chief Constable or the Director of Social Services, which is subject to qualified privilege, and something said on the floor of the House which would be the subject of absolute privilege? I understand the force of the arguments of the Lord Chief Justice about this, but would you not apply them equally to something said on the floor of the House?

  A. No, I would not. It may be illogical but the absolute privilege enjoyed by Members of Parliament in both Houses for statements made on the floor is so old and so well entrenched and so universally observed all over the world that I would not want to disturb it.

  418. Really a matter of history and culture?

  A. Yes. I am not alive to the fact that any damage has ever been caused on any significant scale by according absolute privilege to debates in the House and I would think it very unfortunate if people had to sanitise what they said for fear of saying something which could lay them open to suit.

Lord Wigoder

  419. If we can imagine such a person as a totally unmalicious Member of Parliament, he would be completely protected by having qualified privilege from the results of any litigation.

  A. Yes.

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