Parliamentary Privilege Minutes of Evidence


Examination of Witnesses (Questions 460 - 479)

TUESDAY 24 FEBRUARY 1998

PROFESSOR ANTHONY BRADLEY AND MRS PATRICIA LEOPOLD

Chairman

  460. Good morning, Mrs Leopold and Professor Bradley. We are grateful to you for coming to help us and we are grateful for your memoranda and the supporting papers which we have read. Thank you very much for the trouble you have taken in preparing those. There are a number of questions that we would like to ask you. I would propose that we put the questions to both of you and that whichever one feels it appropriate to start should start and the other one should follow. The first matter which we would like you to help us with is this: there appear to be two broad alternatives which we could adopt in our report and the question is which ought we to adopt? One approach which has been emerging in the course of our discussions is to see what is wrong with privilege at present and to put it right, which I think has been described as "pruning the dead wood". The other approach is a much more fundamental one and a much lengthier operation, which would involve trying to define the privileges and powers which Parliament needs today in order to carry out its responsibilities to the public. Which of those two lines of approach you would consider more desirable and more helpful?

  (Professor Bradley) I do not see these as necessary alternatives, in the sense that I think the Joint Committee should be looking to see what the problems are and, if necessary, pruning away dead wood, as there undoubtedly is. I also believe that that needs to be seen in the context of why parliamentary privilege exists and what purposes it should be serving. Therefore, I do not see these two as necessarily opposed. Indeed, in the thinking of the Committee, both need to be reflected in the way in which the Committee approaches its task. However, as I indicate in my paper, I do not believe that the Committee would be well advised to have the aim of rewriting, in legal terms and in institutional terms, the whole of parliamentary privilege. I do not believe that to be necessary. I believe it would be attempting to write down, as it were, an important aspect of the unwritten Constitution. We have managed without having to write it down over the years. Therefore, while I might respectfully suggest that it would be appropriate for the Committee, in its report, to indicate the fundamental purposes which parliamentary privilege serves, it should not be incumbent on them to turn that into a draft Bill which would put the whole of parliamentary privilege on a completely new legislative basis.
  (Mrs Leopold) I would be inclined to agree with that. I think it is very difficult to decide what the dead wood is until you decide what it is that parliamentary privilege is seeking to do in today's context. In the light of that, you then decide how to go about it. I think the first question is really what do we see as the purpose of free speech in Parliament. We then see if the present procedures are helping to fulfil that purpose. Probably in the light of what you decide, you see whether pruning and putting anomalies right will do, or whether you need to do something a little more radical. I would agree with Professor Bradley. I think to try to change the whole thing and put it in statutory form probably would not be in Parliament's interest, or even possibly in the courts' interests.

  461. There are a number of obviously rather esoteric areas which are of theoretical interest perhaps, rather than practical interest, and perhaps of no interest at all to the general public. Ought we to seek to get involved in those?
  (Professor Bradley) I think one difficult, and interesting to some people, theoretical question is how one resolves the fact that, as has been said by Lord Bridge a few years ago, there are two sovereignties in the Constitution, the sovereignty of the courts, interpreters of the law, and the sovereignty of Parliament.[61] This would be an extremely difficult one to resolve. In my paper, I try to set out why I think that that relationship has existed. It may not be very satisfactory as a matter of logical theory, but nonetheless the main institutions in the United Kingdom system of government have managed to live with this double sovereignty for a good long time. To try to resolve it theoretically would be very difficult and I think not necessary. It would be unrewarding. Of course to some extent it might beg questions if one is in fact using legislation by Parliament to resolve this question.
  (Mrs Leopold) I do not have anything to add to that.

 Lord Waddington

  462. From time to time, cases arise in the courts where a claim under parliamentary privilege is made or where a question arises as to whether there is parliamentary privilege or not and the court has to rule on the matter. Is it not right that we should consider seriously setting out in our report what we believe to be the position, for instance, so far as proceedings in Parliament are concerned. If we spell it out, then when these matters arise again in court there is less likely to be any conflict between the courts and Parliament because it is that much more likely that the courts will actually come to the conclusion that we got it about right when we defined the boundaries of parliamentary proceedings in the way in which we did?
  (Professor Bradley) Indeed, my Lord. I see the duty of the courts, if they are confronted with a case in which there are those outside Parliament who are affected by (shall we say) Article 9 of the Bill of Rights, as being to enable justice to be done between the parties to determine whether or not the matter in question is a proceeding in Parliament. I would wish to go further than that. This is not a process that the courts should tackle unaided. It is surely the case that each House of Parliament is in the best position to know what is essential to the conduct of its duties and enables its Members to carry out their duties. Therefore, they are in the best position to know what, from the parliamentary side, is going to be regarded as a proceeding in Parliament. This Joint Committee is obviously able to speak, to some extent, for both Houses. If we look at one issue which has been accepted for the last 40 or so years, this was the ruling that the House of Commons gave after the case of Mr George Strauss and the London Electricity Board when the House of Commons, narrowly overturning the recommendation from the Committee on Privileges in the House of Commons, ruled that a letter by a Member to a minister is not a proceeding in Parliament.[62] As this Committee will know, that resolution of the House of Commons would not in every circumstance be binding upon the courts, but I would suggest that, so long as it stands as the considered view of the House of Commons, then it would be directly relevant to any issues that might be before a court in considering whether Article 9 extended to a letter from a Member to a minister. If it were the case that the House of Commons ruling in 1958 is no longer considered appropriate—and I believe there was a strong case indeed 40 years ago as to why a letter to a minister in those circumstances from a Member should be regarded as a proceeding in Parliament—there seem to be two possibilities. First, the House of Commons could discuss the matter again and adopt a different resolution. Secondly, the House of Commons could as part of the legislature promote legislation or contribute to legislation to have it declared that, in simple terms, a letter in such circumstances is a proceeding in Parliament. The second of those two courses of action would of course be definitely binding upon the courts. To do it by a new resolution would still leave the matter open to the possibility that the court might reach a different view. All I would say is that, within the last 40 years as far as I know, this particular point has not caused a problem in the courts. I would therefore go on to say that if, by resolution, a letter to a minister were deemed by the House to be a proceeding in Parliament, then this is surely something that the courts would wish to take notice of and, in most cases, wish to give effect to.

  (Mrs Leopold) If I could just add to that, for example, you have the decision in Rost v Edwards[63]3 that the registering of members' interests was not a proceeding in Parliament. There is also a dictum, interestingly enough, in that case, which suggests that a letter from a Member to a minister should be a proceeding in Parliament, which of course is contrary to the House's own decision. This is the potential problem in determining what is a proceeding in Parliament. The matter could come before the courts. The courts could take a decision, for example, the decision in Rost v Edwards was certainly not a decision that Parliament, I suspect, liked at all, so there is this potential problem in the present situation.

Sir Patrick Cormack

  463. Have you both read the evidence that the Home Secretary gave to this Committee?
  (Professor Bradley) I have endeavoured to.
  (Mrs Leopold) Yes.

  464. You will know therefore that he, believing there to be a real problem with regard to corruption, although not seeking to exaggerate it, believes that the problem is so real that we should take a course which would in effect mean abandoning Article 9 of the Bill of Rights in large measure. How do you view that?
  (Professor Bradley) If Sir Patrick is referring specifically to the proposal that the law of corruption and bribery should extend to Members of Parliament, I would respectfully venture to say that I am not sure that that involves dismantling all of Article 9. I would however agree that, if the criminal law is to be clarified and if offences of bribery or whatever are to be applied to Members of Parliament in legislation, then it must follow that there must not be an evidentiary or privilege bar resulting from Article 9.

  Chairman: I was going to raise this topic at a much later stage but, as we have got on to it now, can we pursue it for a few moments? In order to deal with the very small number of cases of corruption, which did directly involve proceedings in Parliament, one way of dealing with the situation would be, as I think you have suggested, that a House of Parliament should have the statutory power to waive its own privilege. First of all, giving a House the right to waive its privilege under Article 9 would not in itself be perhaps quite as drastic an amendment of Article 9 as would happen if we took the alternative course of giving the criminal courts jurisdiction in every case of corruption. It would mean that a small residue of cases would go to the Commons where they would then have to decide whether to waive their privilege or not. If they waived their privilege, the matter would go to the criminal courts; if they did not, if it happened to be a matter they felt they were competent to deal with, then they would go ahead and deal with it. That would avoid the problem which concerns some of us, I think, as to the apparent necessity of a drastic amendment or a rewriting of Article 9. When we discussed that earlier, I think three objections were made to the possibility that a House of Parliament, on that basis, might decide not to waive its own privilege and try a case themselves. There was firstly the point that was made that the public perception of that might be offensive, that it might be placing Members of Parliament in a privileged position in relation to what might be a serious criminal offence. There was secondly the fact that a House of Parliament might find it difficult to have the appropriate machinery to investigate such an offence or indeed the appropriate machinery to try such an offence. There was thirdly the objection that, it being in general terms desirable as a matter of common sense if a person is charged with giving a bribe and a person is charged with receiving a bribe, it is right that they should be tried together. It might be difficult to see how a House of Parliament could try one of its own members for an offence without involving a person who was not a Member of Parliament. Whether that House should have jurisdiction over that other member as a contempt, I suppose, is a matter of some difficulty. Could you help us, please, as to whether those objections, or any other objections you can think of, appear to you to be so formidable as to make the course of letting each House decide whether to waive its privilege or not in a small residue of cases an impractical suggestion?

Mr Michie

  465. Was not there also a problem with waiving the privilege of one individual member where perhaps another member or two other members also involved were not of the same persuasion as to waiving their privilege? There could be real difficulty in that sense.
  (Professor Bradley) I would prefer a general resolution on the back of legislation that would not require a case by case decision, because there are difficulties in a decision, as my Lord indicated, that the person outside the House who maybe has originated the bribe or the corruption should be dealt with by the criminal courts and the Member of Parliament inside should not. That seems to me unsatisfactory. I would however add what is meant to be a very positive comment. Given the present scheme for declaration and registration of interests and given the existence of the Parliamentary Commissioner for Standards, it seems to me very difficult to imagine that a Member who has diligently complied with all those requirements, if that scheme is being properly policed as I believe it to be, could conceivably be at risk of a charge of corruption. Therefore, one would be in a situation where there had been some concealment or failure to disclose. In that event, one needs, I would respectfully suggest, the criminal law to back up the parliamentary scheme for regulation of this matter. I would hope very much that this back up would be very seldom needed but if it were needed then I would prefer to see the authority of the House already having been given, for such purposes as may be necessary, to evidence being given about proceedings in Parliament.

Chairman

  466. Where you talk in your memorandum about the approach of a waiver of privilege, you are saying really, are you, that that would be a practical course but it would only be a practical course if the House of Parliament invariably exercised it whenever the rare case arose?
  (Professor Bradley) In effect. I suppose there are a variety of situations. There might be one case where the matter is prosecuted and where, for one reason or another, there is insufficient evidence and there is an acquittal or maybe there is insufficient evidence to justify a prosecution. That does not, in my view, prevent the House dealing with it through its own mechanism, just as any other employer may have to deal with problems of breach of trust by an irresponsible employee when there have been criminal proceedings taken or threatened which do not lead to conviction and the person's post is nonetheless in jeopardy. Therefore, I see no problem. I cannot speak for Mrs Leopold on this but I see no fundamental problem of a freedom of speech kind, which is at the heart of parliamentary privilege, that would be against this. I am thinking of the United States Supreme Court decision in Brewster in 19725[64] which held, in effect, that the freedom of speech in Parliament is not about enabling there to be corruption of Members and that the independence of the legislature, which is a phrase used in the American constitutional context, is not about protecting senators from being prosecuted for bribery and corruption etc. With adaptation to the constitutional scene in this country, I think the same applies. I do not see that the intention behind Article 9, either then or as it need be now, is intended to protect Members who have in such a way failed to perform in line with the trust that electors have vested in them.

Sir Patrick Cormack

  467. But it is Members' unfettered freedom to speak without fear or favour. I think that there are two slightly dangerous strands in the argument that you and the Professor have been advancing. Professor Bradley made a passing comment about employment law and almost seemed to imply that Parliament was the employer of Members of Parliament. That was implicit in what he said. It may not be what he intended to say, and certainly that is not the case. There is a very special and, using the word correctly for once, a unique position when it comes to Members of Parliament and freedom of speech which pushes me in the direction of saying that Parliament should not give up what is its own.
  (Professor Bradley) May I immediately say it was not my intention to suggest that MPs were employees of Parliament. Far from it. However, I was using the employment analogy to indicate that there may be situations in which, often in life, a criminal process may be needed to go alongside another scheme of regulation. That could apply to professional regulation. For example, doctors and dentists, where again an important degree of double jeopardy is there. I wonder if I could make my own position clear? I have restricted what I have said so far to the Home Secretary's proposal in respect of bribery and corruption, where I think there is an extremely important case to be made which takes it out of the general area of immunity from the criminal law that consists of spoken words. For example, I am strongly of the belief that the Privileges Committee in 1987 in the Zircon case and earlier in the Duncan Sandys[65]6 case correctly affirmed that there can be no question of prosecution for breach of the Official Secrets Act for what members say in the course of debates in Parliament. One can think of other examples. Sedition was the 18th century example of the same kind. If we are looking at the law of defamation, it must be absolute freedom of speech there. I hope I have clarified that what I was saying was confined to bribery and corruption. That is where in fact I had the liberty to differ from Sir Patrick in his statement about the extent of the changes to Article 9 that would be made. One might further add that, as I say in my paper, the decision by Mr Justice Buckley in 1992 in the case of the prosecution of a Member of Parliament, saying that there was jurisdiction at common law over Members of Parliament for breach of public office, was a thoroughly justifiable decision. Indeed, I think it was the right decision for the judge to make, if I may say so, when he made it and therefore, to that extent, although legislation may be needed now to make clear the liability that MPs have, it is not necessarily a change as extensive as might otherwise be thought.

Lord Mayhew of Twysden

  468. Could I come back to your two sovereignties, which undoubtedly exist? The trouble about two sovereignties is that the ordinary person has very great difficulty in determining which sovereignty is going to prevail in circumstances which affect him. I think one of the purposes for which we have been set up is to help the ordinary person and also to help the ordinary Member of either House of Parliament. When you said, Professor Bradley, that you found it difficult to see how, if there had been diligent conformity with codes of conduct or internal rules, there could be a case of bribery, I think you drew from that the feeling that there ought to be some special legislation. May I say that I agree with that? I do not think it is impossible to have the kind of certainty that we are looking for, or greater certainty, without legislation. That is my personal opinion and it is the foundation for the question that I ask you. Why, if that is the case and you agree with that—you may not—do you sheer away in your very first answer to the Chairman from the notion of writing down the solutions to these problems as seems best to us? That seemed to me to be a conflict. I think your feeling is: do not write down these things. Set out the purpose and then leave it to the courts, leave it to the two sovereignties to decide, in the individual case, what comes out in the wash.
  (Professor Bradley) "Two sovereignties" is a phrase that is a difficult one. It can create difficulties. It is not a phrase that I would necessarily have proposed myself. One has the sovereignty of the legislature, which is undoubtedly the sovereignty of Parliament in that sense. When legislation is enacted, that is the supreme law of the land. It is then the courts' duty to interpret and apply it. I detected in some of the earlier evidence given to this Committee the feeling that each House alone could be the interpreters of a phrase like "proceeding in Parliament". If that claim is being made, a House is seeking both to make the law and to apply it, it seems to me. That is not a position which has held, in my view, for at least 150 years. Indeed, privilege, while it creates a special position for Members of Parliament and those working at Westminster, is not an exemption from the law. It is part of the law and there can be many situations in which the courts have to determine these matters. If it were to be said therefore, in Lord Mayhew's suggestion, that whenever a case involving an aspect of parliamentary privilege arose in the courts the matter had to be adjourned, so that the opinion of the House or the Privileges Committee had to be taken, that, to me, would be quite unacceptable. If I could go back to the heart of the question, why am I not in favour of writing down this part of the unwritten Constitution, it certainly could be done. The United Kingdom could certainly acquire a written Constitution. There is nothing, in my view, in the sovereignty of Parliament to prevent that being done but, even with the present Government's programme of constitutional reform, it appears that the Government and presumably the two Houses want to stop short of that. They do not want to depart from the sovereignty of Parliament as being the ultimate basis of the British constitutional system with the rule of law supporting it. Therefore, for this Committee to attempt to resolve the $64 question which has not had to be answered for 100-plus years, and which appears not to be causing practical problems, it could be done but would it be justifiable if there are other pressing problems which might need to be addressed first?

  469. If we were to conclude that the ordinary statutes relating to bribery and corruption should apply to Members of Parliament, could one marry the two jurisdictions by stipulating in the statute proceedings that, in the first instance, those things which are permitted to be done in the codes of conduct shall not per se constitute evidence of corruption; and secondly that, in any criminal proceedings, Article 9, in its relationship to proceedings in Parliament, shall be interpreted in the light of whatever the House of Commons shall have decided generally, not in that instant case? Would that be a means by which one could marry the two jurisdictions and try to meet the sensitivities?
  (Professor Bradley) My Lord, it is the case that in several areas of law codes are used as a source of standards which may be relevant to the decision by the court—things like the Highways Code, the Code of Practice on Industrial Relations and so on. If there were this very important code or set of rules for the behaviour of MPs, it seems to me inconceivable that this would not be taken into account by the court. It would surely go to the honesty of the conduct in question as to whether or not there had been full compliance with it. Certainly a statute could include a provision of that kind. I am not thinking precisely at the moment as to how, but one might say even that a statutory provision might not be necessary, because I do not see how a judge could ever ignore such a source of authoritative guidance for the court.
  (Mrs Leopold) I slightly differ from Professor Bradley in that I do think the definition of proceedings in Parliament would be a good idea, not a watertight definition, but I think you would then avoid the problem that there is a risk that courts can take a different view. It is not only proceedings in Parliament that might need a definition. There is the word "questioning". What does it mean if you are not going to allow courts to question proceedings in Parliament? In Prebble, we have by implication the meaning of questioning. It has been implied into our law by Lord Browne-Wilkinson7[66]. * You need to look at that and see what it is that you are, and are not, going to allow the courts to do, if you are going to allow them to use proceedings in Parliament as part of the evidence, because it is the "questioning" in proceedings in Parliament that is one of the issues. What do you do with the proceedings in Parliament? I do not think it is just a matter of defining proceedings in Parliament; it is a matter of deciding what you are going to do with them.

  470. That has been done, has it not, in one of the Australian states, setting out very fully what is meant by Article 9 of the Bill of Rights, which I think was applied, but it says that you shall not use what has been said in Parliament to cast doubt upon the integrity—
  (Mrs Leopold) By implication, Lord Browne-Wilkinson has said that is the law in England, in Prebble.

  471. The suggestion is it should be made statutory so that everybody knows.

Lord Archer of Sandwell

  472. If questioning proceedings in Parliament may include using what is said in Parliament as evidence to establish the commission of an offence, let me just look again at corruption. I think my question may be marginal to what we are trying to do but I think it is one we may have to solve. It relates to criminal law probably rather than constitutional law. Last week, we were reminded of a line of cases in the American Supreme Court where they were saying that the establishment of an offence of corruption relates to making and accepting a corrupt bargain, not whether you carried it out. Therefore, in order to establish the offence, you do not need to prove that something or other was done in Parliament. The implication was that Article 9 would not arise very often in that context. I wondered whether you could help us on that?
  (Mrs Leopold) I agree. I think it will not arise very often in that context. In a way, it is a tail that is going to be wagging the dog if we are not careful, but it might arise. If it did arise, if we are talking about public perception, and it suddenly looked as though on this occasion MPs were getting away with it because Parliament has done nothing about it—I think what we are talking about and what the Home Secretary talked about is going to be a very limited occasion when you are going to need to question proceedings in Parliament. One answer is: you ignore it, but if you are talking about public perception that looks jolly bad; the other is: you produce a procedure which you are not going to like very much perhaps, but you cross your fingers and hope that it does not actually come to the fore.

  473. Possibly, where it does arise, it may arise in the context of the defendant, the Member of Parliament, wanting to show what he said in the House in order to show, for example, consistency before the bribe was given?
  (Mrs Leopold) Yes.

Chairman

  474. Before we leave the bribery and corruption aspect, can I make one comment by way of completeness for the record? When I was outlining to you the objections we had heard about a case by case basis, I omitted to mention, as I should have done, that there is the objection that has been raised that that must involve some form of preliminary investigation by a House of Parliament and that that in itself is liable to be prejudicial to a defendant.
  (Mrs Leopold) We saw that at the time of the Poulson affair when the Committee procedure was put on hold until after the criminal investigation8[67]. That is a fair point.
  (Professor Bradley) I understand that. One of the difficulties would be whether this preliminary investigation has to be carried out in the full light of day with the press and television cameras present; if it is to be done in the whole House, it presumably does.

  That is why I was going through other possibilities in my mind. Would the House be willing to trust a sensitive decision of this kind to maybe Madam Speaker assisted by one or two senior parliamentarians who could deal with the thing in a non-public way. Otherwise there would be very great difficulty indeed, even if the case arose very seldom. I fully understand what Lord Archer has said.

  475. You will remember that at our last meeting the Lord Chief Justice suggested as a possibility, where a dispute arose about a right, as to whether it was a right to be claimed by Parliament or by the courts, that the Judicial Committee of the Privy Council might in some way be involved.
  (Professor Bradley) I did read the oral evidence that the Lord Chief Justice gave. I have not in fact read the memorandum that he submitted to this Committee. It is certainly a scheme that could work. I believe the Lord Chief Justice made comparison with the professional rights of appeal that dentists, doctors and others have to the Judicial Committee. What I am not seeing clearly at the moment is whether this relationship between the courts and Parliament is such that it needs the setting up of this more elaborate procedure. In so far as court proceedings will normally give rise to a right of appeal, one is ultimately maybe going to get to a more senior court and possibly ultimately to the House of Lords as a final Court of Appeal in any event. Whether the need to have a shortcut to the Law Lords in the form of the Judicial Committee is necessary I am not persuaded about at the moment. Nor, I suppose, am I totally persuaded that if, for example, the House of Commons resolved that a member should be expelled because of disgraceful conduct, such a member should have the same right of appeal as a dentist or doctor has to the Judicial Committee. That seems to be a matter which should be exclusively within the decision of the House of Commons. Therefore, I am not totally clear as to when this mechanism would be triggered. Plainly, it could be there to be used in difficult cases. One thinks of the Strauss case in 1958 when in fact the Judicial Committee were asked for an advisory opinion by the House of Commons on a specific point of law,9[68] but that mechanism is already there. I am not at the moment persuaded, simply because I have not seen the full arguments, that it would be necessary to set up this mechanism for this particular purpose.

Lord Mayhew of Twysden

  476. Why should a member of this profession of politics be denied any right of appeal on expulsion from it by his peers when that expulsion has contravened, for example, the Convention of Human Rights? I do not understand why you should suppose that it should rest entirely with the House of Commons.
  (Professor Bradley) I make two comments on that, my Lord. The first point is that such a member may have been denied natural justice in the sense in which we regard it in English law. I am not certain that he would have been denied rights under the European Convention of Human Rights. He might or might not have been. Secondly, the House cannot prevent the member from restanding for election. If an injustice has been done, he or she can be nominated, if necessary, and selected by his or her party and the electorate may decide again. That might be the remedy which a member has if he or she is certain that he or she has been badly treated.

Lord Waddington

  477. This is very interesting territory. Can we examine what might have been at the back of the Lord Chief Justice's mind? If you have a situation where you leave open the possibility of a case of bribery being dealt with by the House rather than by the courts because the House has decided, in its wisdom, not to waive privilege under one mechanism which was floated as a possibility, and the House then decides to try the person itself, whether the member who has been bribed or the person who has offered the bribe or both, you immediately run into the problem as to whether the procedure being adopted by Parliament accords with natural justice. You immediately run into the problem as to whether he is going to have an appeal to the European Court of Human Rights. We now have before Parliament the Human Rights Bill which soon will be the Human Rights Act. What enormous scope there is going to be in the future for clashes between Parliament and the courts if Parliament persists in punishing people itself and those people then appeal to the courts of the land on the ground that there has been a breach of their rights under the European Convention for Human Rights.

  478. No, but with respect, was not there at the back of the Lord Chief Justice's mind the feeling that, if the position be that there was not an appeal to the courts because of the provisions of the Human Rights Act, natural justice required that there should be some right of appeal and a right of appeal in a court of one sort or another against a determination by Parliament? Therefore, you do get into the position, whether you like it or not, of a potential clash between the courts and Parliament, to a far greater degree than there is the possibility of a clash today?
  (Mrs Leopold) I absolutely agree.

Lord Archer of Sandwell

  479. But this is not a clash between the courts and Parliament, is it? It is going to be a clash between the courts and one of the Houses of Parliament. It is not the sovereignty of Parliament we are talking about.
  (Professor Bradley) My Lord, if we did nothing and a member was disciplined, such a member would get nowhere in the English courts because the disciplining of Members of Parliament is firmly and exclusively within the cognisance of each House. In my view, long may that remain so, but that does not exclude the difficulties that my Lord, Lord Waddington, has been talking about if one is in this situation where a decision has been taken to protect the member from ordinary, criminal law. That is why I have doubts as to whether there should be this requirement for the House to waive its privilege in a particular case or whether it should, in advance and through the legislation and any necessary general resolution, have said that, if it is necessary for criminal proceedings to be instituted against a member, so be it.


61   In X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, 48, Lord Bridge of Harwich said: "The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. In our society the rule of law rests on twin foundations: the sovereingty of the Queen in Parliament in making the law and the sovereignty of the Queen's courts in interpreting and applying the law". Back

62   Reports of the Committee of Privileges, HC 305 (1956-67) and HC 227 (1957-58); HC Deb, vol 591, col 208 (8 July 1958). Back

63   3 Rost v Edwards [1990] 2 QB 460. It is plain, in my view, that an amendment in effect to Article 9 would be required. How extensive it might be is a matter for opinion. In that case, if the legislation applies, there is an important decision to be made as to how the effects of that are to be worked through in the system, because nothing would be worse than to have a new statutory offence which in fact proves to be unworkable because of some obstacle of parliamentary privilege which had not been foreseen. Could I make one point which relates to what my Lord, Lord Wigoder, said to the Joint Committee in his categorisation of four situations?4<fu4> There might be three categories of bribery which would not involve affecting Article 9 in any way, save possibly to have Hansard produced as evidence of a fact. It was the fourth category that my Lord, Lord Wigoder, had in mind that would cause the difficulty. It would seem to me that the legislation would need to make some provision for this so that the status of Article 9 was not left in doubt; and it would therefore be possible for evidence of parliamentary proceedings to be used, if necessary, as proof of such guilt under the new offences. Some statutory provision to that extent is needed. Going beyond that, whether the matter is left for the House to resolve on a case by case basis or whether it would be sufficient for the House, by a general resolution, to indicate that for the purpose of all investigations the House authorities would cooperate with the police or whoever, my mind is not made up. One would certainly need legislation to make it clear that Article 9 was not to stand in the way of the investigation and prosecution of new offences. I share the Home Secretary's doubts as to whether the whole House, on a case by case basis, could agree to waive Article 9 in a particular case. It might be possible to find some way that would not involve a decision by the whole House-possibly by the Speaker, assisted by a small group of senior parliamentarians who could be expected to deal with these matters possibly less in the light of open day and to give the necessary authorisation. Essentially, I hope, Sir Patrick, that I am agreeing with you that there would be a significant amendment to Article 9 and, without that, to seek to introduce a new offence would run the risk of being nugatory. Back

64   5 US v Brewster 408 US 501 (1972). (Mrs Leopold) This is why I suggest that the Committee really needs to decide what parliamentary privilege is needed for. I think we would all agree it is not needed to protect people from being prosecuted for offences such as bribery. Also, within the prosecution process, there are various provisions to prevent prosecution where there is not sufficient evidence. Remember: decisions have to be taken on whether to prosecute, not only as to whether there is evidence but as to whether it is in the public interest. You must assume that the prosecution authorities will be looking to weigh up the interests. A lot of this is about weighing up public interests. There is not going to be an easy answer as to the public interest versus free speech in Parliament. I think there is a very real interest in free speech in Parliament, but there is also the public interest in having MPs acting honourably and in accordance with the law. You are going to have a variety of public interests. They are going to be hard decisions, but there are hard decisions taken all the time about weighing up interests. That is why I think you should direct your minds as to what are the interests that you are weighing up and decide then how to draw the line. My view is that it was never the intention of Article 9 to protect Members from this sort of thing, looking at it historically. Back

65   6 * HC 365 (1986-87) (Zircon) Back

66   7 Prebble v Television New Zealand Ltd [1995] 1 AC 321 at page 333. (Mrs Leopold) It is now in effect part of our law, but what I am suggesting is that perhaps this is something you ought to look at to see whether you are happy. It is a very interesting provision. We are saying that English law does not tell us what questioning means. The Australians have done it by legislation and provided a definition. Lord Browne-Wilkinson, has said that he thinks that this is a true indication of the meaning. We have adopted into English law some Australian statute law. Back

67   8 HC 490 (1976-77) and HC Deb, vol 936, col 332 (26 July 1977). Back

68   9 Re Parliamentary Privilege Act 1770 [1958] AC 331. (Mrs Leopold) The European Convention, under the Human Rights Bill as drafted, does not apply to parliamentary proceedings. Parliament has been excluded from the definition of a public authority, which means it is even more complicated than that. I am not well enough versed with the procedure but you would have to then try to make a complaint through the European channels. You could not go to the English courts. Back


 
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