Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 660 - 666)




  660. I am reminded, Lord President, that only a few weeks ago there were witnesses in trouble before a Select Committee in the Commons for refusing to give information.

  A. Yes.

Mr Michie

  661. Could I follow this up? We are nowhere near the point of making up our minds as to exactly what our report is going to contain, but I would like to come back to this same point, particularly about corruption and the trigger of when or who decides whether it ought to be totally dealt with through the courts or through the House. In some cases it has been argued that if it goes through the courts, it first has to go through the House, so there is a double jeopardy effect if we are not careful. Our problem is that if we arrive at a decision, whether it is the Speaker that makes the decision or an independent body that makes the decision or the Crown Prosecution Service, that it should be dealt with by the courts and not the House, would there have to be different legislation in respect of the Scottish courts?

  A. I think it would need to be made clear if it applied, and I am not quite sure how it would be drafted, but I think it would have to be made clear that it applied to Scotland. I do not think that it would necessarily look very different in respect of Scotland. I think one of the difficulties of seeing it, if I may say so, in the way in which you envisage it is that you envisage that one starts by identifying the MP as being corrupt and Parliament looks at that and then decides whether to pass it over to the prosecution authorities, but it might very well not come out that way at all. You might start with some trail of corruption which was somewhat distant and the police might be investigating that and then it would lead in some way or other to this, so it really might not always come in the kind of situations you have envisaged and I find it difficult to see how one could stop at the door, if that was where it led, and then leave it to Parliament to decide whether or not to prosecute. I think that would be rather untidy and I think myself, if I had to guess, that the better thing might be just to decide one way or the other that if it was corruption, then it should be prosecuted.

  Mr Michie: How we decide and when we decide is the big issue.


  662. Lord President, we have been discussing the Court of Human Rights. Parliament at the moment claims the right to punish for contempt even when there is no clear statutory basis and no codification as to what contempt is or what contempts are punishable. Would the Court of Human Rights, do you think, accept that position or is it an argument in favour of some degree of codification?

  A. If I may say so, it is obviously an argument which your Committee would wish to consider very carefully in favour of codification. I am not sure whether it was an English case or a Scottish case, but there certainly has been a case in front of the Strasbourg Court when the question as to whether or not something was defined in common law was in itself a reason for saying that it was not sufficiently precise to meet the requirements of the Strasbourg Convention and the answer to that question was no, it was not in itself a reason to say it was sufficiently precise and you could have a situation certainly where the law was sufficiently clearly worked out in the common law for everybody to be aware of what the rules were and, therefore, for people to be guided by them. What I think, and again if I am wrong, I apologise for my lack of knowledge, but what I suspect is that there may be cases where the bounds of the law of privilege as applies, let us say, to Members of Parliament in particular are rather uncertain and that somebody then finds that they have actually committed a breach, it is held that they are in breach of privilege, where they might not have been sure about that in advance, and that I think is something which would certainly be open to a Strasbourg challenge if the person was then penalised for such a breach. That is assuming that it was open to a Strasbourg challenge at all, but I think that would be the sort of situation which would be too unclear to meet the standards of the Convention.

  663. In your personal view, should section 13 of the Defamation Act be repealed?

  A. Well, it was obviously a rather ad hoc measure. We have no experience of it at all. I do not know how it has been found, whether it has been found to work. I would very much doubt that it is the final solution to that particular problem.

Lord Merlyn-Rees

  664. I have just one question of guidance which would be helpful. In one of the notes here, the wording of Article 25 of the Scottish Claim of Rights is different from Article IX of the Bill of Rights, et cetera. The origin of the Bill of Rights is 100 years of conflict between King and Parliament over rights of taxation and one King was beheaded and so on. The Scottish Claim of Rights, what is the origin of that?

  A. It is the same, and that is what I said. It is the same date, more or less, within a year and it comes from exactly the same constitutional struggle, I think, so it comes in just about William and Mary. So it is exactly the same historical setting and that is why I said that I thought that a Scottish court interpreting it would be, broadly speaking, interpreting it against the same background, that it represented the sort of triumph of parliamentary government rather than royal government, so to speak, and, therefore, it would be interpreted in that way.

  665. What is the Claim of Right if it is not legislation?

  A. It is, strictly speaking, legislation. It is the same as the Bill of Rights.

  666. It is the same thing?

  A. Yes, it is the same thing. The Claim of Right is just what it happens to be called, but it is a piece of legislation.

  Chairman: Lord President, thank you very much for your written answers, for coming this morning and for giving us a great deal of information, some very valuable views and some very thought-provoking material. We are very grateful indeed.

  Lord Merlyn-Rees: It has put us back ten weeks!

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Prepared 9 April 1999