Parliamentary Privilege Minutes of Evidence


Examination of Witness (Questions 620 - 639)

TUESDAY 17 MARCH 1998

THE RT HONOURABLE THE LORD RODGER OF EARLSFERRY

  620. Do you agree that the courts and Parliament would be very astute to recognise their respective constitutional roles and to accept it as a fact that no court anywhere in the UK would challenge Parliament's right of free speech and control over its precincts?

  A. Very much so. If one looks too closely at the words, let us say, of the Claim of Right as opposed to the Bill of Rights, then one might say the conclusions would be different, but if one follows the approach of Lord Browne-Wilkinson in the Prebble case, which I believe would be the general approach which I am speaking of, then I think that is the kind of thing which would be the guidance which the court would apply. If one were looking to the sort of passage which a Scottish court would latch onto, it would tend to be the kind of passage which one finds in the advice of Lord Browne-Wilkinson. That would be quite consistent, if I may say so, with the general approach to the interpretation of pre-Union Scottish legislation which strictly speaking the Claim of Right is. The pre-Union Scottish statutes tended to be drafted in a rather less exact way, let us say, than the later statutes with which we are more familiar. Therefore, the courts have tended to give them a broader interpretation than the interpretation which has been used for United Kingdom statutes. Therefore, if one has a constitutional document like the Claim of Right, which anyway one might tend to think would be the kind of document which one would interpret broadly, marrying the traditional approach to pre-union Scottish legislation with the kind of approach that Lord Browne-Wilkinson is advocating there, one would come to the kind of view which he expresses. That is my opinion.

  Chairman: Before we move on, would any of my colleagues like to ask any further questions about the specifically Scottish dimension that we are discussing this morning?

Lord Mayhew of Twysden

  621. If I may, Lord Chairman. For a common lawyer, it is very reassuring to find from a civil lawyer such a reliance upon common sense and the broad drafting of such legislation as applies to situations which may arise of the kind that we are talking about. To go back to the first questions that you were asked about, citation of a witness clashing with parliamentary duties, am I right in thinking that you believe there will be less disquiet in practice if the question is left at large, rather than if it is sought to be resolved by legislation, because common sense will be used by the courts, for whom alone you can speak?

  A. Are we talking about the whole question with which you are concerned in this Committee?

  622. Yes.

  A. Then I do not think I would agree with that. Partly as a result of reflecting upon the questions which you have raised, I think that there are issues here of many kinds—for example, the power of Parliament to punish for contempt—which raise very real issues in the modern world to do with human rights and so on, where it may very well be that legislation is desirable.

  623. On calling a witness?

  A. With respect, I do not know exactly what the shape of your report is likely to be or exactly what your remit is.

Chairman

  624. Neither do we.

  A. If you are considering this whole area, you could certainly leave the citation of witnesses untouched and not amend the legislation. I do not think any particular problems would arise. If you are getting into this whole area, then I see no particular reason not to legislate on that particular matter to make the position clear.

Lord Mayhew of Twysden

  625. But you would not have any suggestions to offer us as to how legislation should be shaped on that narrow issue?

  A. I put in a suggestion on which I see that comments have been made, rightly. I suggested perhaps a certificate from the Speaker. I fully recognise that there could be a political element and the question of whether somebody should attend or not attend for a vote could obviously have an important political consequence in the event of a small majority. I cannot myself see anybody else who could give such a certificate. I think it would be precisely because it came from somebody who, by definition, would be regarded as impartial that the certificate would be respected by the courts, if that was the route down which one went. If it came from the Chief Whip of the party, I think that would be—

Sir Patrick Cormack

  626. It could come from the Clerk?

  A. Yes, it could, I do not know whether the Clerks would find that an invidious role for them to take or not.

  627. But it could?

  A. It could, certainly.

Lord Mayhew of Twysden

  628. Secondly, you have referred to Lord Browne-Wilkinson's speech in the New Zealand case, Prebble v Television New Zealand. What you are saying I think is that under the admittedly broader legislation in Scotland you would expect the same approach to be taken by a court in any area where the conflict is seen to be likely to arise?

  A. I have to bear in mind also that, if it were a civil case, it would certainly be possible for it to be decided along this corridor in the Appellate Committee of the House of Lords. If I look at it in that way also and see that Lord Browne-Wilkinson takes that approach, we have to take into account the kind of approach which would be likely to be taken by the House of Lords. If one sees the general approach of Lord Browne-Wilkinson, that is the general approach which is taken. One looks at these broad rights and so on and interprets them in a broad way, trying to identify the purpose. Looking at it in that way, that is my hunch as to what the Scottish courts would do; and indeed a hunch as to what the House of Lords would do in a Scottish case.

  629. I would suggest to you that what Lord Browne-Wilkinson said is enormously comprehensive. I am paraphrasing: it would be unlawful in any court for evidence to be received for the purpose of three things, (a), (b) and (c)—(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of proceedings of Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing or inviting the drawing of inferences or conclusions wholly or partly from anything forming part of proceedings in Parliament. It is enormously wide, is it not?

  A. You have to start off with what the constitutional basis is. I presume he draws that from his fundamental proposition?

  630. Yes.

  A. I was not wishing to adopt any particular inferences which Lord Browne-Wilkinson had put there. I was merely taking his general approach, using the words in a loose form rather than looking at the precise formulation. Once one gets a broad formulation, then the particular inferences or the particular doctrines which one draws out from that might be open to question. You can see that, if you take a broad view of freedom of speech in Parliament and so on, courts should not interfere with the freedom of speech in Parliament. There will be particular applications of that doctrine in individual circumstances, how best to apply it, if you are going to respect the substance of the doctrine.

Mr Tyler

  631. I have a layman's question on behalf of laymen. Is there not a real dilemma that, if the citizen in Scotland is, for example, misrepresented in the United Kingdom Parliament and there is a different treatment—the law as it applies to the UK Parliament is going to take that problem in a different way to the way in which it is going to be taken in the Scottish Parliament—there will be not only confusion but there will be no doubt some dissent about whether the two systems should work concurrently? The dilemma is that we are examining this at precisely the same time as legislation is going through to establish, recognise and celebrate the difference between the two legal systems, the Scottish Parliament and all that. I am concerned that, from the citizen's point of view, it would seem to be good sense to have the same treatment at both levels; and yet it may be that we are at this very moment examining this when everything is going in the opposite direction.

  A. Having received the letter from Lord Nicholls and having looked at these matters, I was very struck by precisely the point which you make, and I have already adverted to it. One has this Bill going through Parliament at the moment dealing with the setting up of a Scottish Parliament, where there is very little, on the face of the Bill at the present time, to deal with many of the kinds of points which are regarded as important for the United Kingdom Parliament. Indeed, as it is drafted at the moment, as I understand it—and I am open to correction on this—it would be possible for people to ask for interdicts of the court against particular motions being made in the Scottish Parliament, if they were thought to be ultra vires or whatever. That seems to me to be light years away from the situation which is here, and there does seem to me to be a lack of marrying up of the two areas of policy.

Sir Patrick Cormack

  632. That is, to coin a phrase, treating the Scottish Parliament more like a council than like a parliament, is it not?

  A. Yes.

Lord Archer of Sandwell

  633. Is it not inevitable, because the powers of the Scottish Parliament are going to be defined in a statute, that the courts will have to look at the boundaries of that statute, so you are going to get a difference, whatever happens, are you not?

  A. It is not for me to say where the line should be drawn but it is certainly the case that if, let us say, a statute comes out or an order, a regulation or whatever it is, which is ultra vires, then that must be able to be challenged. The more difficult question is whether or not, when the matter is actually before Parliament, the courts should be in effect invited to step in and stop it at that stage.

Sir Patrick Cormack

  634. Is not the most unfortunate aspect of this potentially that the elector represented in both Parliaments, the Scottish one and the United Kingdom one, is going to be very confused because the very fact that the Scottish Assembly is called a Parliament will make the ordinary layman feel that it is on all fours with the Parliament here; whereas in fact it really is a superior regional council in this respect?

  A. It is of course a legislative body. It is a matter for the government but it certainly seems to me that if you call it a Parliament a lot of people will expect it to have the kinds of immunities which this Parliament at Westminster has. As it is drafted at the moment, these other things are not there but it may be that these are yet to be drafted into the Bill for all I know.

Mr Benton

  635. Would it not be fair to say that, when you consider what this Committee is charged to do specifically, we have the advantage of looking at material that has prevailed over many centuries in some cases, so we are looking at an established thing? Would you not agree with me that, to consider at the same time what is envisaged in terms of the Scottish Parliament, it is a little unfair because it is an entirely new body? After all is said and done, it is anybody's guess what that might eventually evolve into. It may well be that they are adopting at some future date a system that might emanate from our deliberations but the point I want to make is this: do you see any great relevance, in terms of what this Committee is charged to do, in trying to effect comparisons of what has happened over many years and what is envisaged for the Scottish Parliament? Is it truly relevant?

  A. I do not think the two things are wholly irrelevant. My concern is that the position, let us say, for the Scottish Parliament should be clearly understood. There should be no delusions about the position and, for example, people should realise that if the bill goes through as it is at present there may be challenges to actions within the Parliament which would not be possible at the Westminster Parliament. If that is not understood now, then I think it will be likely to result in potential difficulties between, let us say, the courts and the Scottish Parliament. Now, because the situation has been built up over centuries, we now understand what the division is between the courts and the Westminster Parliament in broad terms. There was a period when it was not so well recognised and the courts came into conflict with Parliament. I think that is very undesirable and one should avoid that. I think it would be very desirable that when the Scotland Act comes into effect everybody should understand clearly what the position is there and, if it is the case that courts should be able to interfere, they definitely realise that from the word go.

Sir Patrick Cormack

  636. That is the point, is it not? It must be totally clear?

  A. Yes.

  Chairman: I do not think the existence of the Scottish Parliament is irrelevant in any way to what we are here to discuss. But I wonder whether it would not help if we did that on another occasion and had one or two working papers in front of us and a chance to think about it?

  Sir Patrick Cormack: I am sure you are right in one sense but I think that Lord Rodger has performed a very important service in what he has said today. I hope it will be taken note of by all of those who are concerned with the passage of the Bill, both in our House where it has almost completed its passage, and in your Lordships' House.

Lord Mayhew of Twysden

  637. Is there quite such a clear cut distinction between what you envisage with the Bill as drafted at present in the Scottish Parliament and our own, in the context of the European Communities Act when the jurisdiction of the courts could intervene to ensure that legislation, whether secondary or primary, is consistent with our obligations under the Treaties?

  A. Certainly in the European context there are limits. I may be wrong about this but I do not think that the courts would entertain proceedings for an injunction to stop the making of an order within Parliament on the basis that it was potentially in conflict with our European obligations. I suspect that they would wait until the whole thing had been passed.

  Lord Mayhew of Twysden: Or until somebody tried to enforce it.

  Lord Archer of Sandwell: There is no provision for that even under the Human Rights Bill. There is a declaration but it is a declaration ex post facto.

  Chairman: This is a very interesting and thought-provoking diversion.

  Lord Merlyn-Rees: We ought to look at the Scottish situation, quite properly, but there is another example that we ought to look at anyway to see if there are any lessons to be learned. For 50 years there was a Parliament in Belfast with two Houses, with an enormous amount of independence. In economic affairs, it is quite astonishing how independent it really was, with a fair proportion of members who, if they could have driven a coach and horses through any aspect of the law, would have done in Northern Ireland. There is an example of a Parliament that existed for 50 years with members here as well. We ought, in my view as part of our future consideration of the Scottish situation, to have a look and see whether there are any lessons to be learned and where did privilege lie in the old Northern Ireland Parliament?

Chairman

  638. Thank you. Let us go on to the general question of freedom of speech in Parliament and ask you whether, in your view, there should be absolute immunity from the courts for anything that a Member says in Parliament?

  A. I suppose part of the trouble is that I have been brought up on this doctrine so much that I do not question it particularly. I take the view that a very important part of our constitutional set-up is the freedom of speech of Members in Parliament. I start from that. I recognise that that carries with it disadvantages and risks. It carries with it the risk that people will abuse that right and that others will suffer from the abuse. Others will indeed suffer from the correct use of the right as well but any damage people suffer as a result must be where the constitutional balances are best thought to lie. I take that really as my starting point and I do not think that the disadvantages of that are such that we should cut down the right of people to speak freely in Parliament.

  639. To take an extreme and probably very unlikely case, if a Member of Parliament quite deliberately committed a gross breach of the Official Secrets Act before he could be stopped and it was of course simultaneously televised or broadcast, he might do the most enormous damage, in theory, to the welfare of the country. Should there be a way in which proceedings could be brought against him for breach of the Official Secrets Act?

  A. It is a very difficult case. I do not know whether that is a situation where the national interest is such that it should override. As far as I know that has not happened and no legislation has been required to deal with it. It may be that there are very limited exceptions but I cannot say that I have identified them and my broad stance is the one I have indicated.


 
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