Parliamentary Privilege Minutes of Evidence


Examination of Witnesses (Questions 517 - 539)

TUESDAY 10 MARCH 1998

THE RIGHT HONOURABLE THE LORD WEATHERILL

Chairman

  517. Good morning, Lord Weatherill. Thank you very much for coming to help us this morning. As someone who was Speaker of the Commons for nine years, you are in a unique position to assist us, particularly on the practical side that sometimes we are in danger of overlooking. May we start by asking you about Article 9 of the Bill of Rights. The central privilege which it guarantees is freedom of speech in debate: what importance do you attach to the retention of that privilege?

  (Lord Weatherill) I think it is absolutely essential. I know you are going to ask me about the Zircon affair a little later on, but Article 9 was very much in my mind during the difficult decision I had to take in relation to Zircon. It does seem to me that a Member of Parliament (and, I suppose, a Member of the House of Lords too) must be unfettered in what they say in debate.

  518. Have we got the boundaries broadly right at the moment? How far should the absolute legal immunity which the privilege accords extend?

  A. I think anything that is said in the Chamber should be subject to the Bill of Rights. I also think that letters from Members of Parliament to Ministers should be subject to that. I think it is extremely important that a Member should be absolutely able to express the truth as he sees it in debate and also when approaching a Minister with a constituency problem.

  519. At the moment letters to Ministers only attract qualified privilege?

  A. Letters do attract qualified privilege.

  520. And the reverse situation, of letters from constituents to their Member of Parliament, would you regard them as being privileged?

  A. I am a bit rusty on that sort of thing, but my belief is that they are not subject to privilege.

Lord Archer of Sandwell

  521. Do you consider that letters from constituents to Members ought to be privileged? Should people be in some way discouraged from approaching their Member of Parliament or would it be too dangerous to allow anything, however malicious, to be totally protected?

  A. That is always the problem, is it not, Lord Archer, malicious accusations? Nevertheless, in terms of equity, if a Member has a right of absolute freedom of speech in Parliament, I suppose a constituent really ought to have the right of that privilege in addressing his Member of Parliament. Of course, the conundrum always is the malicious letters that all of us have over the years received.

Sir Patrick Cormack

  522. Do you really think, Lord Weatherill, that what you said is right? I am wholly with you on this privilege of a Member of Parliament and on his correspondence with Ministers and so on, but should any constituent be allowed to say absolutely anything and should privilege be conferred on that missive merely because it is addressed to a Member of Parliament?

  A. I suppose that is correct because of the malicious accusations that might well be made in a letter to a Member of Parliament. I think that all of us who have had these sorts of things sent to us would pass them on to the Minister with a qualification.

Chairman

  523. Your proposal is that the correspondence of a Member to a constituent should be absolutely privileged, but when it is from a constituent to a Member it should be qualified privilege, in other words if it was malicious it would be actionable?

  A. In replying to a constituent of course one passes on the letter that one has as a Member received from the Minister. I can only say in my case as the Speaker, and I think it was only since I was Speaker, that I sometimes received on some issues two letters, one that I would pass on to my constituent and the other which told me the reason why the Minister had come to that particular decision, which of course I would not have passed on to the constituent. I do not know whether that is common practice amongst other Members.

Lord Mayhew of Twysden

  524. Would parity of reasoning lead you to give the same privilege for letters from MPs to heads of agencies?

  A. I suppose yes. At least they are Government agencies?

  Lord Mayhew of Twysden: They are.

Chairman

  525. Should the absolute privilege extend to the broadcasting and reporting of debates?

  A. You cannot do anything about a broadcasting of a debate in Parliament, as for instance on a BBC programme, or on the Parliamentary Channel, which is a "Gavel to Gavel" programme of proceedings exactly as they go on. If the broadcasters put that sort of thing on a programme I do not think you could do anything about it because it is a proceeding of Parliament and is subject to the Bill of Rights. On the other hand, as I have understood it, broadcasters themselves do not have that privilege. If they extract what is said in a live broadcast and put it on to another programme, that would not be subject to parliamentary privilege.

  526. You have mentioned the continuous televising of debates, live televising in particular, that goes on at the moment. Should the privilege continue to be absolute in cases of breaches of the Official Secrets Act, breaches of court injunctions, and defamation of individuals? Would you deal first with breaches of the Official Secrets Act?

  A. It is an extremely difficult question. First of all, the Speaker would have to know in advance (and was not always told) that what a Member was saying was a breach of the Official Secrets Act. On the other hand, if the Speaker did know, then he or she could stop it. That is certainly true of course of breaches of court injunctions, because if you had knowledge of that you were able to stop it. Certainly it was so in cases of sub judice. I remember regularly being on my feet to caution Members about that sort of thing. As to the defamation of an individual, I can think of quite a number of occasions on which I have been on my feet to warn Members of Parliament that they should have regard to what they were saying about an individual who did not have the right of reply, but there was no way I think in which I could actually stop it.

  527. If a Member is determined to commit a breach of the Official Secrets Act, he could do so. He cannot be stopped by the Chair, can he?

  A. I do not think he could be.

  Sir Patrick Cormack: He certainly cannot be stopped in your Lordships' House because there is no Chair to stop him.

Chairman

  528. No.

  A. I think in the Commons the Speaker would constantly be on his or her feet warning the Member concerned, but I doubt very much if the ultimate sanction of naming a Member for saying something which was a breach of the Official Secrets Act would actually be accepted. That goes right across the right of Member to say what they want in the House of Commons.

Sir Patrick Cormack

  529. But, if I may interject, my Lord Chairman, Lord Weatherill I am sure would agree that in the Commons there is nothing really to stop the determined Member, unless a resolution of the House has previously been passed which the Speaker can then invoke.

  A. Yes.

  530. But unless he has something to invoke he really cannot stop the Member, can he?

  A. Correct.

Lord Mayhew of Twysden

  531. And whether something is or is not a breach of the Official Secrets Act, it really cannot be claimed that the Speaker acted judicially, I would have thought, and it would be quite wrong to impose that upon the Speaker; he would no doubt wish to follow whatever his good sense indicated. He could not, could he, fairly be invited to determine whether something that was going to be said would be a breach of the Official Secrets Act?

  A. I think he would be challenged by the House and then he would have to explain why he had done it and then the thing is blown wide open again. I think that puts the Speaker in an impossible position.

Chairman

  532. If a Member of Parliament did deliberately commit a blatant breach of the Official Secrets Act which was highly damaging to national security and was covered live by television at the time, which would obviously exaggerate the effect of it, should the Member be privileged so far as proceedings are concerned in the courts?

  A. I suppose the Member is privileged, but I think what I would do in a case like that would be—if the Member was absolutely persisting and I knew that this was a breach of the Official Secrets Act—to adjourn the House for 15 minutes.

Sir Patrick Cormack

  533. Suspend the sitting?

  A. And call the Member's Chief Whip to tell him to get hold of this Member and explain to him what his duty was.

  534. But the suspension of the House is something that can only be used in extreme cases, is it not, and even if the House were suspended, when it finally returned after the suspension, if you still had a totally determined Member of the House who is not in breach of a resolution of the House, the power of the Chair is very limited, is it not?

  A. Absolutely. The Members of the Commons will know that a Speaker with the House behind him can get away with almost anything. If the House is not behind him, he has no power at all. I think one would have to make a very quick and sage judgement in suspending the House as to whether that was the wise thing to do because the Speaker's authority really must remain absolute. He or she should not do something which puts him or her in danger of being repudiated by the House.

  535. There is the added complication, is there not, that if a motion is put down and signed by any number of Members criticising the Chair, that has to take priority in business the very next day and therefore the Speaker's conduct is subject to full debate on the floor of the House?

  A. That is absolutely correct.

Lord Archer of Sandwell

  536. Ought there not to be something like the equivalent of an interim injunction to preserve the situation? Is there not a conflict here between the right of a Member to speak freely and the right of all the other Members to prevent something happening which might be a national disaster? Although I can see that to put that on the shoulders of the Speaker is placing too great a burden on one individual, ought there not to be some procedure for preserving the situation until the House has taken a decision?

  A. At the moment there is no procedure. I am not really qualified to answer that. I think that your Committee is going to have to come to that very difficult decision.

  537. I wondered if you had a viewpoint.

  A. I stick to what I said at the beginning. I think it is extremely important that we should not qualify, to any major extent anyway, the right of a Member to speak as he wishes in Parliament.

Sir Patrick Cormack

  538. It is a very short step towards the executive having the power to muzzle a Member if you move in that direction, is it not?

  A. It is a very short step, Sir Patrick. We have not yet discussed this Zircon affair but this was very relevant to all of this because very considerable pressure was brought upon me as the Speaker at that time to do something which I was deeply reluctant to do.

Mr Williams

  539. Are we not getting into difficulties because we are confusing prevention with punishment? The reality is that a determined, experienced Member of Parliament can manage to say most things he wants to say before the Chair realises that he is committing an indiscretion and, secondly, it is impossible for any Speaker of the House to have a compendious knowledge of what is covered by the Official Secrets Act. In reality we are chasing a myth if we are talking about how to prevent. The only thing we are concerned with is, are Members then protected if Speakers do not act?

  A. I have already said at the beginning that the Speaker would not normally know unless previously told whether what was about to be said in that debate was subject to the Official Secrets Act. Nevertheless, I have found in my experience that the vast majority of Members are responsible. I cannot recollect a case in my time either as a Whip or as a Member of Parliament where this sort of thing has actually happened. I cannot think of any specific case where there was a terrible problem such as I had to face.


 
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