Examination of Witness (Questions 604
TUESDAY 17 MARCH 1998
604. Lord President, good morning. We are grateful
to you for submitting in writing your answers to the written questions
that we sent to you. It seems to me that there are really two
roles that we are asking you to play here this morning. One is
as Lord President of the Court of Session; you will know more
about the Scottish legal system than most of us here, and you
will therefore be able to help us on whether there are any possible
difficulties, when we consider parliamentary privilege from the
English point of view, if matters were to come before the Scottish
courts for adjudication. Your second role this morning is as a
former Law Officer, able to help us on some of the more general
matters which we have to consider. So far as the Scottish aspect
is concerned, can I just give you one or two examples of the sort
of difficulties I have in mind, and leave other Members of the
Committee to suggest other examples? First, there is the situation
where, if a Member of Parliament is subpoenaed to attend as a
witness, an English court would accept that he need not comply
with that subpoena because of the prior claim of his parliamentary
duties. How would a Scottish court react in that situation?
(Lord Rodger of Earlsferry) If I may,
I would start with a general comment as a background to anything
I say about this matter or indeed most of the other matters. As
far as I am aware, very few, if any, of the issues which you raise
have arisen, certainly in the recent past, for consideration by
the Scottish courts. Therefore, to a large extent, what I say
is based on my best guess at what I think the position would be.
Having made that remark, I believe that in broad terms the Scottish
courts would tend to follow the general approach which would have
been followed by the English courts in this matter. I do not understand
there to be any particularity about the Englishness of the proceedings
which would affect matters in relation, for example, to subpoenas.
In the case of subpoenas, in Scotland, it would be what is called
a citation for somebody to appear as a witness or indeed as an
accused person. The same principle would really arise for decision
and that would be whether or not, in that situation where there
was a conflict between the terms of the citation, that should
give way to the requirement to be present at Parliament. My belief
is that the courts would in an appropriate case recognise that
a Member of Parliament could refuse to attend in answer to a citation
on the basis that he or she was required to be present in Parliament
for some particular parliamentary business. That is my general
605. The Lord Chief Justice of England suggested
to us that, as a matter of common sense, any judge worthy of the
title would be able so to arrange his proceedings that the Member
of Parliament could be accommodated without difficulty.
A. Indeed so. I think this is, in many senses,
a very academic question. For example, if it were a criminal trial
where he was likely to be required as a witness, one might schedule
the trial at a time when Parliament was not sitting. In any event,
nowadays with modern communications, even from Scotland, it would
be perfectly possible for somebody to be present at court during
the day and to be present to vote if he were required to vote
in a parliamentary division at ten o'clock the same evening. I
do not believe that there is likely to be, in reality, a clash
in these situations. Partly because of that, one does not come
across the issue as a live issue. If you are asking it as a theoretical
question, then the answer and my view are what I have given.
606. On a similar line, if a Scottish court
were to issue an order that, let us say, a child's name should
not be disclosed and a Member of Parliament chose to disclose
it in the course of a debate in one of the Houses of Parliament,
would the Scottish court think it appropriate to take action or
A. Again, this comes back to the wider issue.
Article IX is actually an English statute which does not apply
in Scotland. There is an equivalent, a Claim of Right, which is
not in precisely the same terms. If one thinks about the general
background to both, they both were enacted at the same time, out
of, roughly speaking, the same general, historical developments;
both were designed to secure supremacy of parliamentary government
and so on. Therefore, if one takes that as the general background,
I believe that the general understanding in Scotland would be
the same as in England. In other words, that the courts do not
question proceedings which go on in Parliament. The same rules
apply that you cannot question the enactment of an Act of Parliament
by reference to some supposed defect in the internal procedures
of Parliament. Generally speaking, the approach would be the same.
Therefore, in answer to the particular question, my belief is
that in the same way the courts would take the view that the right
to freedom of speech in Parliament would prevail in that situation,
however unfortunate it might be.
607. Can I just go back to the original point?
It does not give me a lot of confidence to hear you say that it
has never arisen? That does not indicate, if it did arise, what
would happen. Are we saying that because it has not arisen, it
never will or never can and, if it does, what is your suggestion
as to how it would finish up?
A. It has not, to my knowledge, arisen. Therefore,
I cannot point to a decision which gives us the answer. All I
can therefore do is to give you my best judgment as to what the
result would be. If we are talking about the subpoena/citation
case, that is my estimate. On the other hand, I think that the
courts would look quite scrupulously to see whether or not there
was in fact a reason for the person not turning up at the particular
time. I do not think, for example, the fact that you had to be
present to vote at ten o'clock that night or the following night
would be reason not to attend court at ten o'clock the previous
day. That would not be enough, but if there were an actual clash
then I think the courts would yield to Parliament in that situation.
608. One particular question that occurs in
relation to Scotland is this: you know that it has been strongly
suggested that corruption of a Member of Parliament should be
made a criminal offence, triable by criminal courts?
609. Clearly, if the act of corruption took
place in Scotland, the Scottish courts would have jurisdiction
over the proceedings. In what would probably be the very, very
rare case in which the corruption relates directly to proceedings
in Parliament, we have had a good deal of assistance from various
sources as to whether or not it would be desirable to amend the
Bill of Rights or whether the courts would feel inhibited by the
Bill of Rights from proceeding with a prosecution in such a case.
You have not the Bill of Rights but the Claim of Right which is
in somewhat less specific language. In the event of a prosecution
coming before the courts in Scotland in which it was necessary
to prove directly as part of the case what had gone on in proceedings
in Parliament, and if the Claim of Right remained unamended, how
would you see the Scottish courts resolving that issue?
A. If Parliament were to legislate to bring
in a crime of corruption of a Member of Parliament, I think it
would be most desirableand in my view really virtually
necessaryin order to remove any doubt about the matter
that there should be specific legislation dealing with precisely
the issue of allowing the courts to investigate what goes on in
Parliament in so far as is necessary for dealing with the prosecution.
I really think that anything else would be undesirable. One might
get it by inference. One might, for example, say that the fact
that Parliament had enacted that this was a crime meant therefore
that someone should be prosecuted and that by implication Parliament
had said that it should be possible to investigate the allegation
efficiently and in all ways necessary for the prosecution to be
effective. That might very well be a construction which would
be put on it, even by implication, but I think that to remove
any doubt about the matter there should be legislation. If it
were not amended, there would be at least a question which might
be raised by anybody who was defending people as to what extent
it would be proper to get involved in matters relating to the
internal questions or whatever it was raised in Parliament. I
think that would be something which should be resolved if any
legislation in this matter is to take place.
Sir Patrick Cormack
610. Would you favour legislation?
A. To be honest, I am not sufficiently familiar
with the question as to whether or not corruption of Members of
Parliament is something which is so prevalent that it is felt
to require legislation. That seems to me to be a substantive policy
issue about which I am not sufficiently well informed, but if
it is felt that there should be such prosecutions and that legislation
should be made, then I do believe that it would be appropriate
for the legislative position to be the same throughout the United
611. The Committee is faced with a dilemma here.
I think it is generally accepted that corruption is not a major
problem and that there have been very few cases, thank goodness.
One hopes there will be even fewer in the future. The decision
that this Committee will ultimately be faced with is whether we
recommend that we go down the legislative route and, in effect
therefore, have a complete waiver of privilege under Article IX
so far as corruption is concerned; or whether we recommend that
Parliament should continue to deal with its own, only waiving
privilege in specific instances if the case appears, on the face
of it, to be very serious and very complex and beyond the competence
of Parliament to deal with in an appropriate manner, by giving
an appropriate punishment, for instance. As between those two
alternatives, do you have a favoured option?
A. I think the answer I have to give you is
that I do not, because I am not sufficiently familiar with the
degree of the problem. I think I would be speculating.
Lord Mayhew of Twysden
612. Arising out of that, in your answer to
the eighth written question, where you say you would prefer United
Kingdom legislation as a whole, you go on to identify a possible
problem, namely the Lord Advocate, who is the head of the prosecuting
arm in Scotland; and you suggest there might be a different political
base to the executive in Scotland to Westminster. I was a little
perturbed by that. Do you really see that as a danger, because
the Lord Advocate, like the Attorney General, will always act,
will he not, impartially and without any regard to partisan concerns
in prosecuting matters?
A. I agree entirely, if I may say so, with that,
but I thought it right to identify the question because the difference
would be that any prosecution in England and Wales would of course
be a matter for the independent judgment of the Attorney General
or the DPP and, in Scotland, for the independent judgment of the
Lord Advocate. Nonetheless, the Attorney General would be the
person who would be ultimately responsible to Parliament and could,
to whatever extent, be asked questions by the House of Commons.
All I was identifying was that, in the case of a devolved Parliament
for Scotland under the Scotland Bill, the person who would be
ultimately responsible for the prosecution and who would of course
deal with itI accept, in an entirely apolitical mannernonetheless
would be somebody who would not be ultimately responsible either
to the House of Lords or to the House of Commons here but to a
different body. There is a sensitivity obviously about prosecutions
in relation to Parliament and therefore I simply identify that
the person here who would be responsible would not be a person
who was responsible to the Westminster Parliament but to the Scottish
613. I can quite see that and I think I am in
danger of making too much of a rather small point. There was a
reference to a different political hue. The point about accountability
is a very important one. It seems to me that the different political
hue of the Scottish executive or the Westminster government was
not something that was likely to be a practical consideration.
A. It should not be and I am certain that in
practice it would not be. There are sometimes of course questions
of perception which arise in these situations.
614. I do not have the background knowledge
of a former Attorney or a former Lord Advocate but, in the reply
we had that the Lord Advocate might well be a member of an administration
of a different political hue, given the job of Lord Advocateand
I accept fully it would be because of the result of an electionI
have never thought, down this end, of any Attorney General being
a member of the administration.
A. I think they are. They are in different ways
because, if I may say so, you are absolutely right. In their prosecution
role, they are entirely independent of the government. There is
no Cabinet or government responsibility for them. On other aspects,
they are bound up more with the government.
Lord Mayhew of Twysden: When the list of the
government is printed, there is a line drawn under the Cabinet.
Then there are two of the law officers and they are of Cabinet
rank, not members of the Cabinet. They are answerable to the House
of Commons for all matters connected with the law. The Attorney
General is the principal legal adviser to the government. He also
has now administrative responsibilities of a very considerable
kind with the Crown Prosecution Service, the Serious Fraud Office
and others, but there is this dualism. He is technically a member
of the administration. There is a distinguished Solicitor General
sitting opposite. That is right, is it not?
Lord Archer of Sandwell
615. Certainly. Before we pass from this, I
wonder whether you see any similar questions arising in relation
to the Scottish Parliament? Is there likely to be a claim of privilege
by the Scottish Parliament when it exists and are the same kinds
of questions likely to arise?
A. If one looks at the Scotland Bill, it is
interesting just how little of this is there. I am not sure whether
it is in its final form. I do not know whether there may yet be
some more material put in. At the present time, there is almost
nothing. There are various things relating to the absolute privilege
of statements made in Parliament, in the case of defamation and
so on, but for the rest there is virtually nothing there at present.
Whether that will be the final position or not I do not know.
616. If it were, the question of accountability
which you have just raised could operate in reverse presumably?
If for some reason it was suggested that a member of the Scottish
Parliament should be prosecuted in the English courts, then you
would have the English law officer not accountable to the Scottish?
A. That is right.
Sir Patrick Cormack
617. But the Scottish Members of the United
Kingdom Parliament would continue to be operating under this?
A. Yes, and they could raise the matter.
618. Lord President, to come back for the moment
to the question of corruption, if it were decided that all cases
of alleged corruption of a Member of Parliament were to be tried
in the criminal courts and that that did necessitate therefore
some fundamental amendment of the Claim of Right and the Bill
of Rights, would there be the same degree of controversy in Scotland
over fundamentally amending the Claim of Right as there might
be in England over fundamental amendment of the Bill of Rights?
A. If the overall reform were thought to be
desirable, I do not think there would be a particular sensitivity
over it. There are sensitivities, for example, over the Act of
Union. I know governments go around it rather than amend it directly,
but I am not aware of any such particular sensitivity in the particular
case of the Claim of Right. It would obviously depend on the general
view of the overall effect of the legislation, whether it was
seen as beneficent or not.
619. Can I move on to ask you whether the Scottish
courts would accept that Parliament has the exclusive right to
decide what constitutes a contempt of Parliament and exclusive
right to punish such a contempt?
A. It is very difficult to be sure about this
matter because there is no authority on it. My overall feeling
is that they would accept the general line which there has been
up to now. I do not think they would depart radically from that.