Parliamentary Privilege Minutes of Evidence


Examination of Witnesses (Questions 540 - 559)

TUESDAY 10 MARCH 1998

THE RIGHT HONOURABLE THE LORD WEATHERILL

Sir Patrick Cormack

  540. We are of course in a new era in that we have this continuous feed cable television and for a modest subscription people in many parts, if not most parts, of the country can see everything that happens, certainly in the House of Commons as it happens and a great deal of what happens in the House of Lords. It is with the continuous feed of the proceedings in Chamber that I am concerned here. Do you think that there is a case for our recommending to the House that we should pass resolutions that would strengthen the hand of the Speaker in these instances on a line with the resolution that we already have which governs the sub judice law? Do you think we ought to move in that direction?

  A. Given that we have got cable television and the Parliamentary Channel, and I perhaps should declare an interest in that I am Chairman of the Parliamentary Channel, I think that the BBC is also likely to put on at least a sound broadcast and maybe when we get digital television it is quite likely that we shall have a channel specifically devoted to parliamentary proceedings. This of course does open up this whole question as you have so rightly said. I think your Committee is going to have an extremely difficult task in deciding what kind of resolution you would need to pass to protect the Official Secrets Act, bearing in mind the right of a Member to speak freely in Parliament. It is a terrible dilemma. At this stage I must say to the Committee that my belief is that the Members' right should take precedence.

  541. And of course there is another thing we have to consider. Only yesterday, Lord Weatherill,—you may not know this—the Modernisation Committee of the House of Commons produced a report and among the recommendations in the report is that we should do away with the device of "spying strangers". We know why they are recommending that, because it is a procedural device that has been so often abused, and they are suggesting a substitute. But the fact is that the proper use of "spying strangers" enables the House to go in camera and therefore shut off any transmission, and if this recommendation by the Modernisation Committee were accepted that would go from the House.

  A. That would go. I understand "spying strangers" was in operation in the last war. On several occasions that is how the House went into secret session. I only once saw it done in my time, I think by Sir John Wells, on a Friday morning to demonstrate to some of his constituents what actually happened when you did "spy strangers". I think it did not do him much good. In a way, "spying strangers" is a kind of mumbo-jumbo which the general public find very difficult to understand, so that I suppose you could have a motion on the order paper saying that the House would go into secret session, of course bearing in mind that all motions are debatable.

Chairman

  542. We have touched on the sub judice position. Did operating the existing rules cause you any difficulty whilst you were Speaker?

  A. Only on the Zircon affair really.

  543. A permanent injunction must have caused problems?

  A. Not in my recollection.

  Sir Patrick Cormack: Would it be helpful, my Lord Chairman, to Lord Weatherill if he dealt with the Zircon affair now?

Chairman

  544. Would you like us to go on to that?

  A. It touches on so much of what the Committee is putting to me that I think that perhaps we ought to deal with it now. I imagine the Committee has read the evidence of what happened at the time. If I may put it in my own words, the Government of the day took the view that a programme to be shown on television, "The Zircon Affair" I think it was called, was detrimental to our national security. Sir Michael Havers, who was then Attorney General, attempted to get an injunction stopping it being shown in Parliament. I think he did get an injunction stopping the television broadcast, but the judge concerned refused to give him an injunction regarding Parliament, saying that this was a matter for Parliament. Sir Michael came to see me, expressing the hope that I would uphold the prohibition in the House of Commons, to which I had to reply that I could not do that, specifically because of the Bill of Rights. Some few weeks before I had been talking to the Commonwealth Speakers' Conference on this very matter of the Bill of Rights, Article 9, so it was very much in my mind. It was a fortuitous coincidence. When I refused to do this he then asked, or told me,—asked me, I suppose, it would be fair to say,—if I would accept a Privy Council briefing on the matter. I suppose I could have said no. I can recollect times when I was a Whip when the leader of the party in opposition was offered Privy Council briefing and the view of the Whips' office was that he should not accept it, on the basis that if you do you are neutered. However, I thought that on this matter I should. As the Committee will know, I cannot possibly explain or tell you exactly what happened. In relation to what he had said to me, I agreed to stop this film being shown in one of the committee rooms. I think it was Robin Cook who was the Member who booked the committee room. Of course that would not have been a proceeding of Parliament, I have to say, what was shown in a committee room. However, I agreed to uphold this ban, pending a decision of the House. My recollection is that the Government put down a motion saying in effect that the Speaker was quite right to ban this offending video. I was very unhappy about it but I think Jim Callaghan first challenged me on this and then eventually Tony Benn asked me if I would accept a manuscript amendment on the basis that the motion had not been on the order paper in writing until the evening before and therefore could not be amended in writing, and I said that I would accept Tony Benn's amendment, which was to send the matter to the Committee of Privileges. It was my best example, I have to say, of a single Member's speech swinging the House of Commons, and I have many examples of that. It is one of the myths that speeches do not matter. During my 10 years in the Chair I used to keep a list of speeches that in my judgment had definitely changed things, but this was the best example. Tony Benn's motion was eventually carried and the matter went to the Committee of Privileges and it is a matter of record exactly what they said about it.

Lord Waddington

  545. But were matters raised on the floor of the House which could have amounted to a breach of the Official Secrets Act? Leave aside all the technical and procedural matters. Did somebody get up in the House and reveal what appeared to be secret information about Zircon?

  A. I cannot recollect that that happened.

  546. I think they did, in which case you are really fortifying what you said earlier, that that was an example where you did not intervene. Whatever you did about the committee room, you did not intervene when material relevant to Zircon was actually mentioned on the floor of the House.

  A. Unhappily I have not got the Hansard of that particular debate with me today. The matter, if I may put it bluntly, is engraved on my duodenum! It was for the House to decide and the House did so decide.

Chairman

  547. Have you any further reflections you would like to make on that matter after the lapse of the years?

  A. I have refreshed my memory about what the Committee of Privileges said on this matter. It was highly contentious. It was probably almost a unique situation because there was not a precedent for it. The Speaker can always take refuge in precedents, but I could not on this particular occasion. I was comforted by the fact that on balance the Committee agreed with the decision I had taken.

  548. While we are considering your powers as Speaker, Lord Weatherill, you of course exercised on behalf of the House, with the assistance of Select Committees, a substantial degree of control over what went on in the precincts of the House of Commons and the services provided and so forth. At the moment all that is entirely free from scrutiny by the courts. Do you believe that this should continue?

  A. I do, yes, my Lord Chairman. I remember in my time there was a very considerable uncertainty as to what exactly constituted the precincts of the Palace. Could a Member be restrained as he entered St Stephen's entrance? I think in the end it was decided that the precincts of the Palace did include the pavements leading to the St Stephen's entrance. This was really on a matter of a Member being stopped from getting into a debate by the police when there was a heavy demonstration. I think yes, the answer is that I think the Speaker should continue to have control over that sort of thing.

  549. We were discussing the question of scrutiny by the courts. What do you feel about the degree of protection which the privileges of the House give in practice, first of all from interference by the courts, and, secondly, from interference by the Government?

  A. I am not a lawyer, of course. A Member cannot be arrested in the Palace of Westminster, but a Member is subject of course to criminal law. I cannot remember in my time that the question of a possible arrest in the precincts of the Palace ever really arose. I can remember cases where some Members were arrested for a criminal offence and there was no privilege concerned, except that of course the House has to be informed of the matter. I think that is also true in the House of Lords because some two years ago one of the cross-bench Peers was arrested on a criminal offence and I remember the Lord Chancellor advising the House of the fact.

Sir Patrick Cormack

  550. Perhaps the most notorious case during your time was the Stonehouse affair.

  A. I was not the Speaker.

  551. Of course, it was just before you became Speaker. Nevertheless, it was probably the most notorious case in the recent history of the House of Commons. Of course, John Stonehouse was at no time accused of any offences that directly related to his parliamentary activities. He was indeed arrested and in fact he was ultimately sent to prison for serious criminal offences. The Home Secretary is rather keen that we should recommend a degree of waiving of privilege when it comes to accusations of bribery. I wonder if you could address yourself to that question and tell us what you think on that particular issue.

  A. Does that need to be amended? After all, I recollect one Member of Parliament, I do not know whether he was arrested but he was certainly charged with accepting a bribe and the case went to court.

  552. That is the Greenway case which we have discussed in this Committee, and ultimately Mr Greenway was acquitted and charges were dismissed. But that was because the judge placed a certain interpretation on the events which led to the charges, which I think some members of this Committee feel was a controversial decision, and the Home Secretary certainly takes that line, and he would like to see the matter clarified beyond any doubt. He would like Members to be subject to the full rigours of the criminal law if bribery is the accusation. The counter view is that there should be a sifting process and that only after the House authorities have decided that the matter is too complex for them to deal with should a Member be handed over to the criminal courts. Even that raises all sorts of other problems as to who can and cannot be subpoenaed to give evidence and so on. I wondered if you had any views on what I would call the Home Secretary's proposal.

  A. I was Speaker at the time of the Greenway case, and I know the agony which Mr Greenway suffered as a result of this and the legal cost to him, which would have actually bankrupted him if he had not been acquitted. My reflection on that question would be that there would be a good case, in order to prevent similar agonies, for having this matter clarified.

  553. In which way would you like to see it clarified? Would you like to see it clarified so that there is no doubt that the Member should be handed over to the civil authorities, or would you like to see it clarified so that there is no doubt that Parliament should have its own specific process for dealing with it?

  A. I think your Committee is going to have a very difficult problem on this. Basically, I have to say that my instinct is that the House should decide on matters concerning itself. On the other hand you have already mentioned the other complications that would arise from that. I think it is an extremely difficult question to answer in a yes or no manner. I think it would need very careful consideration. Nevertheless, I repeat what I have said to the Committee. I think that a clarification would be wise today, given that we have had one case and others, sadly, although they did not actually come to court.

Chairman

  554. It is possible that if corruption charges were tried in the criminal courts, some modification of the Bill of Rights would be necessary. I do not think it is certain, but it is possible. May I ask you about your attitude to the Bill of Rights, because we have had really two schools of thought developing. At one end there are those who regard the Bill of Rights as something rather exceptional as a piece of legislation, obviously because of its historical connotations, and therefore an Act that is only to be modified if absolutely necessary and only to the very minimum extent necessary to achieve the purpose. At the other end of the scale I think there are those who regard the Bill of Rights as a statute just like any other statute which can freely be amended by Parliament if it chooses to do so.

  A. Of course it can be amended by Parliament if it chooses to do so. I think it would need very careful consideration. I understand that the Australian Parliament has codified the Bill of Rights and the extent to which it should operate. That seems to me to have a degree of merit. Given that we live in a society now which is much more open than has ever been the case in the past, I think what is extremely important from the point of view of Parliament is that it is always seen to be acting above suspicion and certainly not having rules which pertain only to itself in order to protect the rights and privileges of Members of Parliament which are not given to other people. I think there probably is a case for examining very carefully, to ensure that we do not to any major extent neuter a Member's undoubted duty to speak his mind in Parliament. I think there is a case for just looking very carefully at that, given the changed circumstances of today.

Lord Archer of Sandwell

  555. I follow that we need to protect Members' rights of free speech in order to ensure that Parliament's work is not impeded, but would it impede the work of Parliament in any way to protect people from allegations of criminal offences such as corruption?

  A. No. I think the public has an absolute right to know that Members of Parliament behave in the highest tradition. If a Member of Parliament were to do something which would be subject to the criminal law if he were a member of the ordinary public, I think that he should be subject to the criminal law if he is a Member of Parliament. My feeling is that if we pass laws which are binding upon members of the general public, it is not very principled to exclude ourselves.

  556. Then there would be no reason presumably why allegations of that kind should not be tried in the ordinary courts?

  A. I am not a lawyer, I repeat. Of course we have here the problem of some malicious constituents who might seek to get at their Member of Parliament. All of us who have been parliamentary representatives know that we have constituents who threaten legal action and want to take us to court. I think if we were subject to that sort of thing I would be very cautious about it, that this place might be very largely empty with Members spending most of their time in court.

Sir Patrick Cormack

  557. It is not just that. May I put a hypothetical case to you, Lord Weatherill, and I do not want to be thought to be referring to any recent incident. Let us suppose that the Member of Parliament for Barchester was accused of receiving a bribe. First of all, there is the question of the person who is alleged to have offered the bribe and how he is dealt with. Let us further suppose that the man who has offered the bribe then decides, the case having come to court, that he wants to subpoena, having read all sorts of wild allegations, a whole range of other Members of Parliament. Is it not a significant breach of parliamentary privilege if Members who have no connection with the Member for Barchester then find themselves summoned to appear in court to give evidence and be cross-examined on their parliamentary speeches?

  A. Absolutely right. It is a major danger. If you take again a hypothetical case, Lord Waddington and I were both Whips and we both know that Whips know a great deal about what goes on here. The Chief Whip has things regularly reported to him. In that case, does the Chief Whip get summoned to say what he knows about the allegation, who told him about these allegations, what he knows about them? It is a very dangerous situation. I think one has to be extremely careful in making these changes. I have to say to the Committee that I am not against changes but my view is summed up by something said by Frank Haines, that I am all in favour of progress as long as it does not mean change. Progress in this field would have to be extremely carefully thought out. Nevertheless, I think in equity, and I have to repeat what I said before, if we make the rules then we must keep them.

Mr Tyler

  558. I am not a lawyer either; I am my party's Chief Whip, so I entirely agree with the position you are commenting on. I am struck by this statement which was echoed by the Commons Privileges Committee in 1987, echoing Mr Enoch Powell. There was nobody more sensitive to the privileges of the House than Mr Enoch Powell, when he said that the precincts of the House should not be treated as a sanctuary from the operation of the law. I think that is what you are saying now in reflecting the concern that would be in the general public's mind if parliamentarians were given some privileged position in relation to the normal operation of the law as related to their personal conduct rather than their parliamentary duties. Is that a fair summary?

  A. I think that is a very fair summary indeed. I think we are all concerned, those of us who love Parliament and have a deep respect for it, about the allegations that have been current recently and the absolute requirement to repair the damage and to put Parliament back in the highest esteem amongst the general public. That is where I start. I spend a good deal of my time going round the country trying to encourage esteem for Parliament. Parliament is a searchlight which exposes exactly what is going on. We may not like it but that is what is happening. It would not be possible for a Speaker to change its direction or even neuter it, if he or she held a personal view on anything, but that is not the case. It is terribly important that the public should know exactly what is going on and the public has to date known exactly what is going on. I do not think we should have special privileges in regard to what would normally be considered criminal offences, but we have the right to speak our minds here.

Chairman

  559. If alleged criminal offences were investigated by the police so far as Member of Parliament are concerned, would any practical difficulties arise out of the police wanting to have access to the Palace to interview Members, to interview staff and so forth?

  A. I think Sir Patrick has made the point really, that if the police were investigating a case they would have to interview other people. Presumably, taking a hypothetical case, they would have to start with the Whips and so on. I really do think it is a very difficult matter. It is very difficult to say to the Committee that you could give a very clear yes or no to a question like this. It is bound to be qualified because there are other implications which arise.


 
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