Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 720 - 732)



Mr Tyler

  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 important?

  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 Chair—be it the Chairman of Ways and Means or the Speaker—can 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 drafting—or should have been.

Mr Williams

  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 time—although 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 done—that 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 rests?

  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.

Mr Michie

  727. I think there is a "not" missing somewhere.
  (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.

Mr Tyler

  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 actual practicality.
  (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 discuss—it is not quite the same point—is 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 or workable.

  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.

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