Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 733 - 739)




  733. Lord Chief Justice, may I welcome you and say how grateful the Committee is to you, first, for the full and careful views you have already expressed in writing and, secondly, for coming here today to help the Committee further on any points arising. Before I put questions, is there anything you would like to say to the Committee?

  (Sir Robert Carswell) Thank you, my Lord Chairman. If I may just say two very brief things: one, I think I have refined the views that I expressed to you in writing a little, in considering the matter, especially in the light of the response from the Committee to my memorandum, and I can bring that out during questioning. Secondly, I have tried to look at this broadly as a lawyer and from the point of view of the courts. I do not profess to have the detailed knowledge that some of the witnesses before the Committee have, and I hope the Committee will forgive my deficiencies.

  734. May we start at the basic fundamentals so far as Northern Ireland is concerned, because we are, at the start, particularly interested in your views on the Northern Ireland angle. In your letter to me of 23 March you stated quite clearly that Article IX of the Bill of Rights applies in Northern Ireland and the courts in Northern Ireland recognise that each House of Parliament has exclusive cognisance of its internal affairs. Some have questioned whether the position is quite as clear as that, and I wonder whether you can, in a sentence or two, expand on your reasoning. Is this a matter of legislation, or common law? What is, in short, the basis on which you reach that conclusion?

  A. I am aware of the dispute that has taken place in some learned publications. I think, to some extent, it is academic. It certainly had its origin in an academic dissertation by Dr Donaldson[1]. Looking at the Act itself, or the Bill of Rights, I would not have much doubt that it was intended to apply to Ireland, because the questions of succession certainly did, and I would find it rather extraordinary if the other matters were not intended to apply. Our courts have held, quite recently, in the matter of Martin McGuinness, that the Bill of Rights, Article IX, did apply to it, and there is that much authority in favour. The reason why I say it is academic is that if there were any doubt as to whether the Bill of Rights, Article IX, did apply in Northern Ireland, I think it is not a serious one in practice. There is also the common law privilege which is referred to in Halsbury, and I cannot suppose, for a moment, that the courts would dispute the privilege of Parliament. I think it is so unlikely that one can dismiss it as, really, an unfounded possibility.

  735. So as a matter of common law, if not as a matter of statutory provision, Northern Ireland courts would apply similar considerations?

  A. I am quite confident of that, my Lord Chairman.

  736. Section 18 of the Government of Ireland Act, 1920, as you know, provided for the Northern Ireland Parliament to have the same privileges as the Parliament at Westminster. Are you aware of any case law that applied to the Northern Ireland Parliament that would be relevant to our enquiry in relation to Westminster?

  A. My enquiries show that litigation was threatened a couple of times—most notably towards the end of the Stormont regime when Dr Paisley was concerned in some dispute, but none of them reached the courts. That is the best information I have been able to obtain. So there are no decisions.

  737. Just before we leave the particular position of Northern Ireland, is there anything in relation to your Northern Ireland experience that you think we should particularly have in mind?

  A. I think it will arise again if it is desired to set up a Northern Ireland Assembly, but that is, possibly, a matter that this Committee may not wish to concern itself with. When the Stormont Parliament was in existence it had, under the Government of Ireland Act 1920, the same privileges for the House of Commons as were held in Parliament here, and the same was enacted in respect of the Assembly in the 1970s. Whether it would be proposed to do the same again, I do not know, but if it were then, it would preserve symmetry.

  738. Moving on to the basic question of the relationship of Parliament and the courts, I have noticed that you caution whether it would be wise to upset what you have described as the "cautious equilibrium" between the courts and Parliament. Can we just, for one moment, pause and see what that equilibrium is at present? In England the position would be that if, for example, a question of the scope of parliamentary privilege arose in ordinary civil litigation—let us say, a defamation action between a non-member and a Member, and the Member was seeking to say "What I said was said on privileged occasion covered by parliamentary privilege" and that was the matter of dispute—the ordinary civil courts in England would decide whether parliamentary privilege did or did not apply in that particular circumstance (for example, a letter to a constituent). I would imagine that if the same point arose in Northern Ireland, the Northern Ireland courts would be likely to take the same approach. Would that be a fair assumption?

  A. They would, I am quite certain. Apart from the fact that they are bound by decisions of the House of Lords, it has been their practice to follow the decisions of the Court of Appeal in England. I have no doubt that they would approach it in the same way. I used the phrase "cautious equilibrium" because I have the impression that the courts are very anxious to avoid deciding such questions where they possibly can, and I think it should be said that Parliament, on its side, is anxious not to get into any conflict. One can, of course, see areas where there is room for conflict, but on practically every occasion in recent years the courts, when they come to the point, have said "We do not need to decide this and we are specifically not going to do so". That was in the In Re Parliamentary Privilege Act 1770 case, if I remember correctly. I think my instinct tends towards the old adage "If it ain't broke, don't fix it".

  739. It is with that sort of consideration in mind, that if the issue had to be decided in the way I have just exemplified—an ordinary civil court deciding—that I have to say instinctively I have some reservations about the desirability of introducing a new procedure—appellate or otherwise—of a body specially arranged for the purpose, whether it is the Judicial Committee, Privy Council, perhaps with lay members, or not. Can you comment on that? Do you think this is something that would be desirable?

  A. I have thought quite a bit about this. If you have an appellate or reviewing body it has got to have its terms defined, and you immediately get into definitions and construction of definitions. Naturally, the first thing a lawyer does when he has a definition is to pull at it to see if things come within it and if they might be taken outside, and so on. Then you get into potential conflict. If you codify, naturally, that potential is increased. I think that has always been the strongest argument against codification. If there is an appellate body, or if there is a definition of proceedings in Parliament in any legislation, then it will have to be picked at. Speaking for myself and our own courts, we would not welcome having to do it. If it is there in legislation, of course, we must.

1   AG Donaldson, The Application in Ireland of English and British Legislation made before 1801 (Doctoral thesis, Queen's University of Belfast, 1952). Back

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