Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 500 - 516)



  500. It certainly does not.
  (Professor Bradley) Equally it could not be taken away. Let us suppose an unpopular Member of Parliament has said defamatory things in Parliament and none of the parties wished to be identified with this, a majority of the House might wish to see this member stung for damages of hundreds of thousands of pounds but there is nothing the House can do about it.

Mr Williams

  501. Would not the House doing something about it be retrospective anyhow?
  (Professor Bradley) I would be very unhappy if there were retrospection.

  502. It would have to be because he has already said it.
  (Professor Bradley) Yes, it would have to be in that case. My Lord, I do not propose to take up time saying how much I concur with those many who spoke in Parliament against what is now section 13. I do believe a number—only one has been mentioned so far—of very important reasons have been passed by and I hope the Committee will give this priority attention.
  (Mrs Leopold) I think there is a problem because Parliament itself says to MPs, "Don't come bleating to us if people defame you, go to the courts." That was really the effect of the resolution in 1978, they are more or less saying, "Don't complain that the press are criticising you or saying nasty things about you", and then there is this difficulty. But then you could say, "That is really perhaps what you have to accept as an MP". Or, if you are going to keep it, it must not be for the individual member. There is the potential mess to be considered, and also the conflict. A potential conflict between Parliament and the courts, I think, is set up in section 13 because section 13 does not stop Parliament itself saying, "Actually, we think what this newspaper said about this MP is contempt of Parliament. We are going to bring our own investigation about it at the same time." Meanwhile the court action is brought. I think there is a great potential for conflict created there and that, I think, is what Parliament wants to avoid.
  (Professor Bradley) On my reading of section 13, it is not just a member who may waive this but any person, which would include Mr Ian Greer in the particular case of the Hamilton-Greer libel action. It seems to me extraordinary how a person outside Parliament can be entrusted by Parliament with waiving a privilege of Parliament.

Sir Patrick Cormack

  503. Never a better illustration of hard cases making bad law!
  (Professor Bradley) Absolutely!


  504. Before we come on to the slightly different area of exclusive cognisance or exclusive jurisdiction—I will skip that for a moment and come back to it, because it is important—there is the question of judicial review. Your memorandum, Professor Bradley, concludes that Parliament need not be concerned at developments in judicial review. Is there a risk that the courts and Parliament could find themselves considering the same matters from different viewpoints and reaching conflicting conclusions?
  (Professor Bradley) In my answer to your question, my Lord, I will endeavour to keep within the remit of this Committee and not get into this enormously interesting subject, for most of us who either practise or teach administrative law, of where the boundary should be drawn between courts and government. What I was trying to indicate in my paper was that in fact aspects of executive power are exercised in Parliament. When delegated legislation is being made, the court may look at the consequences of the procedure in Parliament or the content of the delegated legislation and find it is ultra vires because the procedures have not been properly followed. I did discuss in my paper the practice which I believe has been widespread certainly for 20 years or so, that if there are judicial review proceedings and if there is a statement in Parliament that is relevant to them, then the court may look at it. Before 1980 it was necessary for the party that wished to look at Hansard to petition Parliament to get special permission, but since 1980 it has not been necessary. So therefore while the aim of the judicial review proceedings is not to question what has been said in Parliament but to question the minister's decision, nonetheless the court may read what that minister has said in Parliament about that decision. I would find it very difficult to accept that given the development of administrative law we have, and indeed taking account of commonsense, the minister should be able to prevent a court from looking at something he has said in Parliament about a controversial decision. I cannot believe it would be in the public interest to have a technical barrier to that. This indeed has been confirmed by the House of Lords in Pepper v Hart. The question is whether Parliament and the courts may find themselves considering the same matters from different viewpoints. Well, indeed, my Lord, they can do. At great risk of taking the Committee into a complex area which I would prefer to remain outside, the Maastricht Treaty was an example of where Parliament for days or weeks had been debating the Maastricht Treaty and the variants of British adherence to that, and then that was followed by proceedings in the courts brought by Lord Rees-Mogg. My explanation of that is that nearly all the points which were relied on in those judicial proceedings were questions of Community law, rather technical questions as to whether the parliamentary proceedings in Britain had actually given effect to the required matters of Community law. Therefore you found that Parliament had been considering the Maastricht Treaty for weeks and then the High Court had to consider it. It did not take the High Court weeks because in fact they had to deal with three precise points upon which the application for judicial review was based and rejected them all. In that case there was not a conflict in the conclusions reached, but I can imagine situations in which the House as a political body may be happy with the decision a minister has made but, nonetheless, the court in judicial review may be unhappy on a particular point of legality. It seems to me, unless parliamentarians accept that and I believe they do, we would then be in at the making of a series of new conflicts between, shall we say, the elected House and the courts if the elected House wishes to say that the courts had no business to be ruling on the legality of ministers' decisions. This has to be accepted and it would be, I think, a very unfortunate step if there was a backward step taken.
  (Mrs Leopold) If we look at two of the most recent decisions—one in the Northern Ireland High Court in October 1997 in McGuinness13[72] and one on the Parliamentary Commissioner for Standards—we find that in both those cases the courts have very decidedly said that this is internal to Parliament; in support of the idea that there were areas they would not get involved in. I think the boundaries of judicial review are such that none of us can say exactly where they will be in ten years' time.

  505. Can we come to the exclusive jurisdiction of the House? It is the practice of the two Houses to ignore Health and Safety at Work statutes, licensing statutes, planning procedures and so forth. Is it right Parliament should be able to do that?
  (Mrs Leopold) I think ex parte Herbert16 [73] is wrong. I think the decision is wrong there. It is contrary to an earlier decision—Williamson v Norris 17[74]—on licensing. I think it is simply wrong and I think it is a shame that that

  506. There should be a presumption that the statutes apply to Parliament unless Parliament has expressly excluded itself?
  (Mrs Leopold) I think so, yes.
  (Professor Bradley) I would not go quite as far as Mrs Leopold in saying categorically that the Herbert decision was wrong. What I would point out is that it was taken by Lord Chief Justice Hewart who is not renowned, I think, among 20th century Lord Chief Justices for his brilliant legal analysis. Another argument which did arise in ex parte Herbert is, if I am right, is the Palace of Westminster a royal palace? It therefore may not, for that reason, be subject to a great deal of legislation. There is, as the lawyers here will know, a presumption that the Crown is not bound by legislation unless it is expressly enacted or by necessary implication bound, and it would seem to me one could justify the Herbert decision possibly on that basis. But I totally accept that this is in many ways out-dated and if, for example, health and safety problems arise because Health & Safety legislation does not apply in Westminster, I believe it should apply. On the question of the corporate officer and the problem the corporate officer has had in litigation over his contracts which have been entered into, I agree with Mrs Leopold that these are not related to essential interests for which Parliament should be exempt.

Lord Archer of Sandwell

  507. Would Mrs Leopold and Professor Bradley suggest that we legislate to say that or we leave each case to be decided by the courts as it arises? Or would we ourselves say that it is part of our exclusive jurisdiction?
  (Professor Bradley) I have mentioned the Zircon case already and an attempt was made by the Attorney General to get an injunction against the showing of the Zircon film in a Committee room in Westminster. The court had no difficulty in rejecting that application and saying that the matter was properly within the exclusive jurisdiction of the House. It was a Committee room of the House, and I imagine control over who can use rooms and accommodation is a matter exclusively for the House and I see no reason for the court interfering. If we think about other aspects of exclusive jurisdiction, it would be over such matters as what was the result of the vote on Second Reading last night and if there is a conflict of opinion as to whether some member was counted through twice or not. That must be a matter, surely, for the House to resolve in its own way? It would be quite wrong for anyone to go off to the courts and start seeking a declaration that a particular stage of legislation had not been properly carried through. Equally, and I know this is trespassing on ground already covered, in the disciplinary function. My answer I think about the implications of ex parte Herbert is that it is essential, surely, that Parliament should know which legislation applies to its premises and which does not? How you achieve that is a matter for some discussion. I am not certain whether it is necessary to declare each House has exclusive power over its own procedures and so on. That might be so well established in law and the custom of Parliament that it is not necessary to state it.

Mr Williams

  508. Just a clarification, you referred to the fact that certain situations may derive from the fact that this is a royal palace. We do distinguish already between royal palaces which are currently really royal palaces, the five occupied royal palaces, and the rest, which are the responsibility of the Department of Heritage, are historic royal palaces. Therefore, would it not be very simple in law at least to confine the damage of non-protected privilege of the law to just differentiate between the two of them in terms of protection from legislation?
  (Professor Bradley) I see no problem and it would be very easy to provide. I regret I am not an expert in what the licensing practices of Westminster are today but it would surely be possible to find a similar answer to that problem. I am bound to say that while it may be that the Herbert decision would not be made in identical terms today, I am not sure what was the harm which resulted from it.
  (Mrs Leopold) It certainly was not followed in Australia. Australia did not follow that case. The other area is, what is the position about European Community law?
  (Professor Bradley) We are not able to ask questions here except of a rhetorical kind!
  (Mrs Leopold) I apologise, my Lord!

Lord Mayhew of Twysden

  509. European Community law is part of our own domestic law.
  (Mrs Leopold) Indeed. Does it overrule Parliamentary law?

  510. It is part of our own domestic law under section 2. I suppose the broad answer is yes. I would like to ask one question apropos of that. Is it appropriate to require that the legislature should ask a branch of the judiciary for an extension to its licensing arrangements? Is there not here some built-in conflict between the judiciary and the reasoning, Hewart having gone as he did?
  (Professor Bradley) I do not believe it is a serious matter on which to base a more general discussion, and I say that as an admirer of Sir Alan Herbert and his writing.


  511. Mrs Leopold, are there any further matters arising from media and broadcasting issues on which you might be of help to us.
  (Mrs Leopold) They did make representations, my Lord, at the time of considering broadcasting. There were representations from the various media then. It may well be that the law is working satisfactorily. My point again—perhaps the answer is that it does not matter if it is all illogical—but a lot of it is illogical in terms of the protection which does exist. I mentioned the reporting of "criminal words", as a shorthand. We happen to have protection in the Public Order Act 1986 (s. 26) for criminal words: incitement to hatred said in the course of proceedings of Parliament. Those happen to have a statutory protection, partly because somebody only thought about this when the second Race Relations Act was going through, so protection was given. Is there any reason why they should have a statutory protection, but the reporting of what would amount to contempt of court does not? It seems that there was a statutory opportunity and that is the way our legislation works a lot of the time: an opportunity comes and you use it. However, there does seem a certain amount of illogicality in saying that this can be protected but for contempt of court we have to see whether the courts would produce a defence or not. I suppose, just drawing attention to that fact, that there are quite a lot of anomalies which have arisen because problems have been seen and have been dealt with at one point. Whether this Committee is the right place to try to put any of those right I am not sure, but I think there are a lot of anomalies that exist. If we take the position with the Early Day Motion and Re Z, I understand there was quite a lot of concern in newspapers that some newspapers took the opportunity to publish the names and said, "We are reporting Parliamentary proceedings." Other newspapers took the view that as a law was likely to stop them, they should not. I do not know whether the ones who did not were annoyed that there were no actions taken against others, but it is an uncertain situation.

  Chairman: May I say a word to my colleagues, please. We have two witnesses here, who are people who have obviously gone into great depth into almost everything we have been considering so far. If any of you have any further questions which you would like to raise, it would be a very good and rare opportunity to do it now.

Lord Merlyn-Rees

  512. May I raise an issue which is constantly on my mind, as I sit here learning. Parliamentary procedures are pretty esoteric and over the years people have absorbed them. I made it an aim in my life as an MP rarely to ask questions—if at all—one did it better by writing a letter to the minister and getting longer information. On one occasion I answered a question and I wrote two letters, one telling the truth and one not telling the truth. An airman's wife had written complaining that her husband never served near home. Why was it? I wrote one letter saying, "exigencies of service" and another letter saying, "This man always says, `I do not want to live near my wife ever again.'" So there were two letters: the question of letters from a minister, sent on via a Member of Parliament. I see that those ought to be covered by Parliamentary privilege. They are more extensive than questions. Therefore, they ought to be protected not by qualified privilege but by absolute privilege. Would you agree?
  (Professor Bradley) I believe there was a strong case for this in 1957 at the time of the Strauss case. Indeed, that was the view of the Committee of Privileges. That strong case is still there. However, we have had the last 40 years in which the qualified privilege of common law seems to have enabled members of both Houses to carry out their functions satisfactorily. In law there is quite a considerable difference because one would be very foolish to try to sue in a matter which is plainly covered by absolute Parliamentary privilege. However, if it is only covered by qualified privilege, then one might say that there is evidence of malice and one has a chance of succeeding. There is, in law, a very big difference between those two; but whether, in fact, Members of Parliament are subject to these types of action arising out of what they have done for constituents, I simply do not know.

  513. I spoilt my story just now by not saying that the Member of Parliament sent the wrong letter to the wife. Whether this is covered by privilege or qualified privilege I do not know. I strongly believe that much of what goes on in the House of Commons is false pretences rather than bribery or corruption. One pretends that one is important rather than actually being important.
  (Professor Bradley) Could I possibly add a qualification to the last answer I gave. So far we are discussing letters to ministers. With executive agencies one is in a somewhat different situation. Of course, as a result of letters from constituents, members may write to other public authorities; local authorities or whatever. I would be against extending proceedings in Parliament to letters to everybody. If one is writing to a minister who is a Member of Parliament and who could be expected to reply and deal with this question, then I see no reason why that should not have absolute privilege.

  Mr Williams: I want to follow on that. Since you challenged me, my Lord Chairman, to match Merlyn's story, I well recollect a situation where I had to enquire on behalf of a constituent whose deceased army husband had apparently not left her anything in his will. I had to send on a letter disclaiming all responsibility, while in the meantime I had a phone call from the administrators saying: "The truth of the matter is that he is a bigamist and he left everything to his other wife in Germany but we do not want to upset the poor lady." So one unconsciously perpetuated the lie in order to protect the individual.

  Lord Merlyn-Rees: That did not happen very often.

Mr Williams

  514. No, not in Swansea! Coming to this point I would disagree fundamentally, but I know I may have absolutely no constitutional reason for doing so. This question of letters. A Member of Parliament writes a letter, by virtue of his office, in the House of Commons. Therefore, it is as a part of Parliament that he writes this letter. Now, on writing to ministers, you have made the very point I was going to take up. We are facing a dwindling protection because regardless of the rights or wrongs, as you have the proliferation of quangos and agencies increasingly we are writing not to the minister but to chief executives. Also, where do we stand when we write to the local manager of a department of a minister? I should imagine that like most Members of Parliament, on a Saturday at my surgery I actually write the letters there and then, and then just post them off. Most of your letters are, in fact, not to ministers but they are in pursuit of your job as a Member of Parliament representing your constituents. We only deal with our own constituents. That is another in-house rule. I would, therefore, argue that the Member of Parliament's letter should be protected as long as he wrote it in his role as a Member of Parliament. It is not to whom it goes; it is a matter of his duty, as a Member of Parliament, on behalf of his constituents. Clearly, that is not a legal argument.
  (Professor Bradley) That may be the reason why this particular issue of letters to ministers is not seen as being of such importance, if in public administration the minister is playing a less significant role than possibly they did in the past. One might say that it would be somewhat going against the trend of developments in public administration if this Committee were to make a recommendation which encouraged or gave this incentive to members to write to a minister rather than somewhere else in the structure, for this reason. But beyond that, is Mr Williams suggesting that absolute Parliamentary privilege should extend to every letter written?

  515. Yes. We actually receive letters from ministers advising us that if we want full answers we should write to the chief executive, and they give us the addresses we should write to. Again, what happens if we send the letter to the minister and he sends it on, as he invariably does, to the chief executive? Have we written to the minister or have we written to the chief executive?
  (Mrs Leopold) And then, would their reply to you also be absolutely privileged?

  Mr Williams: Yes, because it is important that one should be able to publish the replies. Very often an individual constituent raises an issue with you. His particular situation may be the Child Support Agency or benefits question, but its implications are much wider because there are many other people in identical positions. Therefore, there is a matter of privacy between you and the individual, on behalf of whom you write, but there is a matter of public interest in the principles which are implicit in the reply you receive.

  Lord Merlyn-Rees: Ministers under all governments from time to time write and say, in effect, (and nicely), "Please do not bother me. Write to the local manager of the local benefits office." When I was an MP I had a constant stream of correspondence with the local benefits office. It was there I would call on a Friday sometimes and have a cup of coffee with the chap because we were constantly in touch with each other—not to the minister but the head clerk or whoever it was.

  Sir Patrick Cormack: I think there is a danger in what is being suggested because it gets ministers off the hook too much. I personally would be a little bit against making everything absolute privilege.

  Mr Williams: How does it get them off the hook? They are ministerially responsible themselves for what happens within their departments, so the reply which comes from one of their managers still is regarded as having come from the department; i.e. therefore is subject to ministerial responsibility. There is a logic in it. You can see that you cannot have 660 Members of Parliament sending every income support case to the minister in order to ensure that it is protected. You would be absolutely inundated. Therefore, for expediency, in order to get a quicker reply the logic is to go to your local office. The minister encourages that and your local office encourages that, because they hope that the minister will not find out what they have been doing wrong if you write to them and they can keep quiet.


  516. Have you any comments on Mr Williams' observations?
  (Mrs Leopold) Not that are helpful. I can see the problem but doubt if I can see the solution.

  Lord Archer of Sandwell: My Lord Chairman, I am not sure these are matters we can put to Mrs Leopold and Professor Bradley. I would like to put down a marker that my right honourable friend has said a number of things that when we come to discuss them I would like to challenge. I think it could be a very dangerous thing if we tried to extend privilege to the publication of letters we have received from ministers.

  Chairman: On that indication the Committee, at the moment, are not unanimous. However, may I say on behalf of us all that we are unanimous in saying thank you very much for coming here. You have helped us with your knowledgeable and stimulating replies to a variety of questions and we are very, very grateful. Thank you very much.

72   13 In the matter of an Application by Martin McGuiness for Leave to apply for Judicial Review, High Court of Northern Ireland (Kerr J), 3 October 1997. (Professor Bradley) I am grateful to Mrs Leopold for mentioning the fact that the Parliamentary Ombudsman's decisions have been judicially reviewed. The first occasion was ex parte Dyer where it was held that the court did have jurisdiction to review the legality of the Ombudsman's decisions, although that application did not succeed on the merits14 <fu14>. When Mr Al-Fayed attempted to seek review of the decision of the Parliamentary Commissioner for Standards 15 <fu15>, both Mr Justice Sedley and the Court of Appeal were in no doubt that this was an internal parliamentary matter in which the courts should not be concerned. The difference, plainly, between the Ombudsman on the one hand and the Parliamentary Commissioner for Standards on the other, is that the Ombudsman is exercising powers under an Act of Parliament and is concerned with the relationship between government and the individual citizen essentially, whereas with the Parliamentary Commissioner for Standards there is no statute, he was set up by resolution of the House and is exclusively concerned with matters going on within the House. That therefore seems to me an indication that judicial review is not going to press ahead into matters which should be properly within the internal cognisance of Parliament. Back

73   16 R v Graham-Campbell, ex parte Herbert [1935] 1 KB 594. Back

74   17 Williamson v Norris [1899] 1 QB 7. decision is able to influence things today. I think the extent to which the law should apply to Parliament is certainly an unclear area. I find it interesting that the Human Rights Bill is not taking any risks, it is excluding parliamentary proceedings, but we had the example some years ago of the mental health legislation and whether that applied to insane peers. Were they "other persons"? And of course we had a conflict of opinion there between the Attorney General who said he could not be sure whether or not they were "other persons" within the legislation, and three or four law lords who were saying, although not in a judicial decision, they thought they probably would. The Committee in the end decided they did not really know but they thought that peers probably would be covered and legislation ought to be introduced to make it clear. The idea that freedom from arrest for anything should be to prevent an insane peer just seems to be a nonsense-that was never the intention of it. So I think ex parte Herbert is wrong. I think, again, perhaps more consideration should be made on each occasion as to whether the Act of Parliament should apply to Parliament. The idea of how the law applies to parliamentary staff seems to me completely nothing to do with what we are talking about, the need for parliamentary privilege; they should not have these protections. Back

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