Examination of Witnesses (Questions 720
TUESDAY 24 MARCH 1998
R R MACGREGOR
720. Is that not also true? If I am making a
detailed representation to a Minister, are we saying that it is
because people in the heat of the moment are likely to say things
rather more irresponsibly in the Chamber than they are when they
have carefully prepared it in a letter to a Minister, that we
need to protect one more than the other? I am generally agnostic
about this. That is the purpose of this Committee, to be agnostic.
(Mr MacGregor) I have never come across these cases
and I know so little about it that it is difficult to make a comment.
Have there been cases arising in ministerial correspondence where
that distinction between qualified and absolute privilege was
Lord Merlyn-Rees: Do I not recall, some time
ago, Mr Boyd-Carpenter, (as he was), possibly just before I came
in to the House of Commons, alluding to it? There was a famous
case in which he was involved. He was for ever raising the matter
on the floor of the House. It might be worth looking out something
under Boyd-Carpenter. I think there has been something.
Sir Patrick Cormack
721. I think Mr Tyler forgets that there are
very real differences between writing a letter and making a speech
in the House when, after all, the occupant of the Chairbe
it the Chairman of Ways and Means or the Speakercan put
out a Member. We have a lot of expressions which are deemed as
non-parliamentary and so on. There is a degree of control over
a public utterance in the Chamber and to qualify the freedom of
speech in any way would be a very retrograde step. I do understand
why the letter is the subject of qualified rather than absolute
privilege, because that presumably has been written with some
careful thought and draftingor should have been.
722. It is also the limitation of damage. The
televised thing has a much wider impact than a letter between
myself and, for example, Ann Taylor here.
(Lord Newton of Braintree) I do think, as is echoed
through the evidence from time to timealthough I do not
draw the conclusion that this is an argument against doing anything,
and we have already discussed one area which seems to be fairly
generally agreed that something needs to be donethat the
basic position about parliamentary privilege is that it has served
us quite well for 300 years, I would be very nervous indeed about
tampering with the existing rules of privilege for ordinary speech
or proceedings within the House, and to safeguard proceedings
in Select Committees and so forth. Nobody can be absolutely sure
what the consequences would be, partly because, I suspect, none
of us would quite know what would happen if a lot of qualified
privilege cases were brought, because they are not exactly frequent.
So I would put out all the signals of caution.
723. Questions 12 to 16 go on from there to
consider, apart from privilege of freedom of speech, the whole
area of "exclusive cognisance": of the right of the
House to have jurisdiction over legislative processes; the absence
of need to obey a statute unless it is specifically provided in
the statute that it does apply to the Houses of Parliament; the
exercise by the Houses of internal control within the precincts
of the Houses, and so on.
(Lord Newton of Braintree) Taking the sub-paragraphs
in order. It seems to me manifestly obvious that Parliament has
to maintain absolute jurisdiction over the processes of legislation
and its own procedures. On point 2, I actually was a long standing
opponent within the previous administration of Crown immunity.
I felt that the day had passed where things that Government did,
in one way or another, should be exempt from the legislation which
the Government had asked Parliament to pass. I would apply the
same thing here and certainly, as your question suggests, reverse
the presumption. That is to say, that legislation passed should
apply in this place, unless there was some specifically argued
reason why it should not and a specifically agreed exemption.
I would leave control over the building, the precincts, in pretty
much the same state as it is at present. You may want to press
me on that but I think that probably is right. I would not legislate
for rights of public access, partly because I do not quite know
what that means. For example, were you to give the public a right
of access to the Central Lobby, what on earth would you do when
the Lobby is several thousand strong, and with more outside Parliament
all wanting to get in the Central Lobby at the same time? This
would generate another endless lot of practical problems. I think
the subpoena point would probably be better dealt with in respect
of question 16.
(Mr MacGregor) I very much agree with everything that
Lord Newton has said. In nearly all of these cases there are issues
where I am not aware there is a problem. There is a problem in
not obeying statutes in relation to health and safety, data protection
and so on. I suspect that in the past the real problem here has
been that we have spent rather less on our building than we are
forcing other people to spend on their premises and it is taking
us time to update them and there has been a big expenditure issue.
In principle these sort of issues ought to apply to the House
of Commons just as much as to everyone that we are forcing the
legislation upon elsewhere. On the question of control exercised
by the Houses over the precincts of the respective Houses and
the rights of public access, I would very much keep the position
as it is now and there is one crucial reason and that is the security
question, because I think it is very important that we are able
to control the security difficulties that we face here, unfortunately.
On whether it would be better if Parliament's jurisdiction over
its own affairs was more closely defined on a statutory basis,
I must say that I am not aware in all my time as a Member or as
Leader that there has been a problem here and so I do not see
why we should create new legislation to deal with a problem that
has not yet arisen. That also applies to your question about the
precincts of the Palace not being statutorily defined. I have
to say that this never caused me any difficulty when I was Lord
President. So leave well alone.
Sir Patrick Cormack: Very common sense answers.
724. There were rather a lot of somewhat separate
issues included in those paragraphs.
(Lord Newton of Braintree) The answers really do all
come pretty closely down to saying that we do not actually see
that there is any problem in practice, so do not let us bother
to do anything about it.
725. In relation to the subpoena matter, which
is a matter that we have had a certain amount of evidence about,
have you any comments on the suggestion in paragraph 16 that the
Member should have an absolute right not to attend and the Speaker
should be asked to certify that his attendance is not desirable
at the court because he is needed for parliamentary work?
(Lord Newton of Braintree) Can I just ask one prior
question in relation to what is written in question 15. It says
that Members have the privilege of being able "to refuse
to obey a subpoena to attend a court, whether civil or criminal,
which is often used." I have to say, I was surprised by the
words "which is often used".
(Mr MacGregor) So was I, very much surprised.
(Lord Newton of Braintree) Do we know on what this
Sir Patrick Cormack: I think this must be a
mistake, my Lord Chairman.
Chairman: I think the evidence we have had on
the whole does not support those few words, you are quite right.
Sir Patrick Cormack
726. It has been used. Indeed, I have quoted
it on a couple of occasions. All the evidence we have had seems
to indicate that it has never been used in the Lords and rarely
in the Commons.
(Mr MacGregor) I thought I saw the Clerk nodding!
Chairman: I understand that, in fact, it has
been used only this week.
727. I think there is a "not" missing
(Mr MacGregor) I must say, I was not aware that it
was much of a problem, but I think the issue here is that there
may be situations where it is difficult for a Member of Parliament
to attend a court when the court requires. There was a case where
the government had a majority of one and I think that it is rather
important to have a mind to government business in those circumstances.
Sir Patrick Cormack: There is also the question
of the frivolous or vexatious constitutent.
Lord Archer of Sandwell
728. That is where it arises, is it not? Normally
a subpoena is not issued if a witness agrees to come to court.
It is normally only if the witness declines to come to court that
there is a subpoena. I am not aware of any case, I do not know
whether either of our witnesses are, where a judge has insisted
on a Member coming to court at an inconvenient time.
(Mr MacGregor) No.
729. It could be used as a form of pressure
on a Member of either House and that is as much a concern as the
(Lord Newton of Braintree) I speak with caution now
having been told that somebody has done it this week because I
have no idea what the circumstances are, but if Members of Parliament
started routinely to decline to assist courts of law when they
might manifestly be expected to have evidence or information material
to a case that would certainly cause trouble. It would be very
difficult to defend and I think you would have to devise some
procedure of this kind. Again, I am left wondering whether there
is really a practical problem here that needs to be addressed.
730. I respectfully agree. I think there is
an irrebutable presumption that judges are sensible!
(Mr MacGregor) It seems to me highly likely that if
these have been going on and there are a number of cases and they
have never hit the attention of the media or never been an issue
for Parliament and none of us is actually aware of them, it must
be that they are being satisfactorily resolved and there cannot
really be an issue of abuse or difficulty.
731. Can we move on to question 17 which is
a separate issue as to whether there should be rules governing
the conduct of Select Committees in order to deal with the way
that they cope with witnesses.
(Mr MacGregor) I am in some difficulty on this one
because I am now a member of the Neill Committee and I suspect
that it may be coming back to look at this and so I would like
to reserve my position. I have to say, I do not think that the
present situation is satisfactory in terms of natural justice.
One of the very simple things I am concerned about is the televising
of proceedings in certain circumstances which I think is not fair
on the Member being investigated.
(Lord Newton of Braintree) I share that view, as was
known to the Members of both the Committees that I chaired during
the previous Parliament in this field even though one of them
took a different view. I think I am right in saying that I heard
as part of the Home Secretary's statement on disciplinary procedures
of the police yesterday that he was strongly opposed to those
proceedings being held in public on the grounds that it would
put unfair pressure on the people involved. I think I would make
exactly the same point in respect of what can be seen in some
respects as disciplinary proceedings in respect of MPs and I remain
of the view that it would be better that they were conducted in
private and that the evidence is then published alongside a balanced
set of conclusions when all of that has been done, but I do not
wish to re-open old arguments. So far as the actual question is
concerned about having rules similar to those of a court, I do
not think I would go down that path because the plain fact is
that a Select Committee is not equipped to operate like a court.
It seems to me that if you go down the line of saying you are
going to have the same rules as a court you are actually going
to need to have a court to operate those rules. An inquisitorial
body like the old Privileges Committee of 17 people cannot operate
like a court. It is just not an appropriate set up for applying
the procedures of a court. So I do not think I would go down the
path that is implied here of having court-type rules for Select
Committees. What I think I would want to do is to look again at
some of the established rules and conventions of Select Committees
about how they would approach a matter. I think, for example,
the approach that you have adopted in this Committee of giving
us clear, straightforward indications of the areas you want to
discussit is not quite the same pointis very helpful
indeed and produces a better exchange from everybody's point of
view. I can certainly see the line of argument which says that
if allegations are going to be made against a Member of Parliament
he should be made aware of those allegations, they should not
just be dropped into the proceedings, as has happened on one or
two occasions. I can see ways in which it could be improved, but
I do not think the full panoply of court-type rules is appropriate
732. Shall we adjourn at this stage. There are
still some very substantial matters left, although they are much
shorter on our question paper than the matters we have got through.
We must not overlook the fact that we did start at question number
2 and have still to ask you about question number 1 which covers
a very very sizable area. It will also give us a chance to read
through the transcript to see if there are any matters we would
like to clarify among ourselves on another occasion. May I therefore
adjourn this meeting with deepest gratitude to both Lord Newton
and Mr MacGregor for the invaluable help you have given us so
far. Thank you very much.
(Lord Newton of Braintree) Thank you very much indeed.
(Mr MacGregor) Thank you very much.