Parliamentary Privilege Minutes of Evidence


Examination of Witness (Questions 740 - 759)

TUESDAY 31 MARCH 1998

THE RT HON SIR ROBERT CARSWELL

  740. One of the matters we are, obviously, concerned with on this Committee is to look to see to what extent, if at all, any of the existing privileges which are not in doubt really are appropriate for the beginning of the 21st century—for example, subpoenas. At the moment, a Member, in effect, has the option whether or not to respond to a subpoena. Do you think that is acceptable today?

  A. That is the one on which I think I would have the firmest view, because I think that, in principle, it is rather difficult to defend. I have no doubt whatsoever in practice that if it were represented to any court in which I have been concerned that a Member had to be in Westminster for important parliamentary business—whether or not a division—he would be accommodated. However, it is very difficult in principle to set a complete immunity from having to attend. One can think of possibilities of abuse—though I am quite unaware of any occasion on which it has even been suggested. I am trying to think if I have had a Member of Parliament, or Peer, giving evidence in any case. I can think of one, but he was a defendant in a motor accident claim. Certainly there was no question raised then.

  741. One of the established rules for demarcating the jurisdiction of Parliament, on the one hand, and the courts, on the other, concerns Parliament's abstention on talking about matters which are currently before the courts—the sub-judice resolutions and so forth. There are, at the moment, no specific comparable principles or rules in relation to matters which are the subject of injunctions which the courts have granted and where proceedings have otherwise finished. There has been some discussion as to whether this is wholly satisfactory, especially bearing in mind, of course, that nowadays once something is said in the Chamber it is open to being instantly televised nationwide. Do you think there should be similar principles now crystallised and adopted by the Houses in relation to matters which are the subject of injunctions by the courts?

  A. I am sure the Committee will be thinking very carefully about that, but I would, with respect, think that the Houses of Parliament ought to give very careful thought to this, because of the examples (and the Committee will be aware of them already) where if a judge is giving an injunction saying that something is not to be published he is then functus officio and, strictly, as I understand it, the parliamentary sub-judice rules do not apply. That is an area which the Houses might think it right should be extended to cover that. These difficult situations, such as where a court has said that a minor is not to be named—and I think Members will all be aware of a recent event where that occurred—if a Member were to name such a minor then the point of the instruction by the judge would be lost. I think all I can say is that I would recommend, respectfully, that the Houses of Parliament take a careful look at that and consider an extension of the principle of self-restraint.

  742. At present the two Houses exercise, as you know, complete control over their own internal affairs. That goes so far as this: that they decide if a Member is in contempt and, indeed, they decide if a non-member is in contempt. There is no form of appeal to any outside body against those decisions or in respect of any sanctions that the House may impose in respect of its decision. Do you think that is satisfactory today?

  A. I read the evidence given to the Committee on this topic with considerable interest, particularly from the Clerks of the Houses and from Professor Bradley. I think the former Clerk to the House of Commons expressed it very clearly when he said that you can look at all the possible ways of dealing with it—and I think he got up to six by the end of his evidence—and none of them is perfect. Looking at it from the point of view of a lawyer and of public reaction, I think I must agree with those who say that the public would not think it right that persons who are non-members should be subject to contempt proceedings in the House against which they have no appeal. It might be that people would regard it as somewhat different for Members: they have joined the club, they have to stick by the rules. However, I am aware of the difficulties which the Houses would have of investigating and constituting themselves into hearing tribunals. It cannot be an easy matter, and it may be that the Houses would feel that they are not ideally suited for it. As the Committee is very well aware, the limits of sanctions in respect of Members is a difficult matter. If a person has ceased to be a Member, how useful could the sanctions be against that person? I do not think that I can add anything to the evidence that has already been put before the Committee, except to say that if it remains with the Houses of Parliament I think, if I may say so, that the public would regard that as less than satisfactory in modern conditions, and that one, therefore, has to look, I believe, at a system of appeal which would have more of a reviewing function than a strictly appellate function. The model which has been suggested of the Privy Council reviewing the decisions of the General Medical Council might be an appropriate one. Whatever is done, it does, obviously, mean that the jurisdiction has to be construed, and one gets back to this problem which you mentioned to me earlier: somebody has to decide where the jurisdiction begins and ends. I think that is the one which I myself would favour most.

Lord Archer of Sandwell

  743. Lord Chief Justice, I have the impression from your reply to my Lord Chairman that you would be troubled if the courts were in a position of adjudicating upon parliamentary privilege and what Parliament had done about it. The Judicial Committee of the Privy Council is, of course, for all real purposes, a court, is it not? Do I take it from that that you would be happier if rather than conferring this jurisdiction—whatever it should be—on the Judicial Committee it would be conferred on some specially appointed body which might comprise, for example, members of the Judicial Committee plus other Members of Parliament, or something of that kind?

  A. That is a possible way of doing it. I would feel, myself, that the body must have members with parliamentary experience. In the old days it always had quite a few more than it does now, but I would say that is essential. Whether it is done by simply ensuring that the membership of the Judicial Committee for each case has Members who have served—preferably in the House of Commons, I would suggest—or whether it is done by bringing in other Members as constituent members, I have no strong views, but I entirely agree that it is an important matter.

  744. Are there not two separate arguments here? One, the argument that it would be helpful if it had people with parliamentary experience (which I understand) and the other (which seems to be a rather separate argument) that, in any event, it would be unfortunate if the courts found themselves passing judgment, and the Judicial Committee as normally constituted is really a court?

  A. It is, but, if I can put it this way, it is a rarefied one. I would not like to see the task entrusted to the regular courts of law who are dealing with all sorts of other things and whose expertise is limited, necessarily, in the field of privilege. They can learn it for the purpose, but I think that a body which dealt with it more regularly and which has had long experience (most members of the Judicial Committee have long judicial experience)—these factors all combine, I think, to make it better that it should be removed from the ordinary courts and entrusted to a deciding judicial body of that kind, or something of that nature. That is why I supported the suggestion. I think it was made by Lord Chief Justice Bingham in the first instance and I thought it sounded sensible.

Lord Waddington

  745. Lord Chief Justice, if one accepts that in this day and age the House of Commons itself is rather ill-equipped to punish members of the public for contempt, unless there is some sort of right of appeal, perhaps one should—before one starts worrying about what should be the composition of the body which is going to hear the appeals—look at the circumstances in which the House of Commons might be required to deal with people for offences. Should we not, in fact, start by trying to cut down the situations in which the House of Commons would be asking itself to carry out an impossible task rather than bothering too much about what should be the right of appeal for a person who has been subject to the treatment of the House of Commons carrying out this impossible task? Does it not take you straight away to questions like whether the House of Commons or the courts should try a person for offering a bribe to a Member of Parliament? If you can cut a lot of this stuff out and cut down the number of occasions on which the House of Commons is trying to mete out justice to somebody other than one of its own Members, then the need for an appellate body gets less and less, does it not?

  A. It is difficult to see. To take your own example, Lord Waddington, if somebody is trying to bribe a Member or influence legislation in an improper manner, in many ways the House itself would, I am quite sure, feel that it ought to have a considerable say in how the matter is approached. I would understand that entirely. When it comes to matters of abuse and things like that, it may be that the House would feel that it is better sent away altogether to an outside body. When it comes in, there are the other problems about what happens if it relates to a Member himself if a Member is accused of corrupt practices. For that to be adjudicated upon by the House, I think, becomes a sensitive matter in the public mind. The public mind, if I understand the general feeling correctly, is that as far as non-members are concerned it is the lack of appeal that is the problem; as far as Members are concerned, they might feel some worry that the House is the judge of its own people and that it would be better done by a body which could not be accused of protecting its own. Whether that can be approached in the way that you suggest, my Lord, I am not quite sure. I do not see the way forward. You may have some thoughts on that.

  746. Can I ask you to try and approach it in a different way? If you start from the proposition that, really, the House of Commons is singularly ill-equipped to carry out an investigation into the misconduct of a member of the public—ie, if you start by having a thoroughly bad body carrying out a trial of an individual—it hardly puts the matter right by giving the individual a right of appeal. The whole procedure is flawed from the beginning, and you do not really make matters very much better by having a poor tribunal to start with and hoping it is not going to do too much injustice because there is going to be an appeal. Logic tells me that you should not have a poor tribunal punishing people in the first place.

  A. I think this is mirrored in the ordinary law courts' treatment of contempt. In the old days if somebody committed a contempt in the face of the Court he was hauled down to the cells straight away; the judge would deal with him on the spot and he would be immediately punished. That does not happen now, as I am sure the Committee knows. The matter is adjourned, he gets Legal Aid, and it may be heard by another judge. The whole thing is much more formalised. It may be that that would give a model to the House of Commons or House of Lords in cases of contempt.

  747. At least it is a legally qualified person who is punishing for contempt in the first place. Here you are thinking of providing a right of appeal because a perfectly incompetent body is carrying out the initial punishment.

  A. Maybe the logic of what I am saying leads to the conclusion that the House might determine prima facie there is a contempt, as a judge does if somebody slanders him in court, and then refers it to an appropriate body (and I have not thought through as to what it might be) to determine the existence of the contempt. That might be a way forward.

Lord Wigoder

  748. Do you draw a distinction between Parliament dealing with a Member of Parliament and dealing with a non-member?

  A. What Lord Waddington said about the unsuitability of the procedure would apply in either case. I think as far as public reaction is concerned, it might feel that if a Member is disciplined by his own body, that is his own look-out. I respectfully agree that the difficulty in the procedure of adjudication may make it desirable to adjudicate on both outside the House itself in some fashion.

Mr Michie

  749. Lord Chief Justice, in your very helpful letter you come down very firmly that if there is a case of bribery and corruption it should be dealt with by the criminal courts. A discussion we have had in the past is "Where does the investigation begin?" Some would say it is best referred to the courts by the House, others would say that it ought to be the Crown Prosecution Service—or whatever—right from day one dealing with it, with the House completely washing its hands so that we do not have the problem of conflict between the House, the Member and the courts. Where do you stand on where it should start?

  A. I have not really given any detailed thought to that, but it might be that the suggestion I made in response to Lord Waddington is helpful—that if there is a declaration in some way, perhaps by the Committee on Standards and Privileges that a person, be it Member or non-member, is prima facie in contempt, it is then passed straight over for investigation. I would have thought that these things, in the first place, are fairly clear, subject to the allegation being proved. If an allegation is made against a Member that he has committed some corrupt practice in the conduct of his affairs, if it were true it would probably be clear enough that that was a breach of privilege—possibly a bad one. The question is whether it is true. If one had a machinery whereby the House could say "This is prima facie a breach of privilege, we do not know if it is true or not" and pass it over for investigation and trial, that might be a way forward. I have to confess, I have not thought about this in detail. I cannot help you more than that.

  750. It is just the argument that surely the Crown Prosecution Service, or whatever, have perhaps even more experience of coaxing out mischievous claims and accusations than we have in this place, or two places.

  A. The frivolous is always hard to deal with, whether it is in court, Parliament or anywhere else. Somebody has, at some stage, when frivolous claims or frivolous attempts to prosecute are brought in the courts, to take responsibility for filtering them out. There is no one model, I think, of who should do it, except to say that the courts have a fair bit of experience in that, and if that is something that we can do to assist the Houses, of course we shall. I cannot take it further than that, I am afraid. It is a difficult one.

Lord Archer of Sandwell

  751. What has been suggested in previous hearings, Lord Chief Justice, is that questions such as whether there is sufficient evidence to raise a prima facie case and whether there may be evidential problems in the course of the hearing are matters which can be dealt with by the Crown Prosecution Service. What may require an additional safeguard in the case of Members of Parliament is that they are peculiarly susceptible to frivolous allegations. That has been the suggestion. I think the suggestion was that some kind of screening process in the Houses themselves might be applied simply to ask that question. Do you have any comments on that?

  A. One would have to be careful, if such a procedure were adopted, that it would not appear to be the House forming a protective screen around its own. I see, in principle, a good deal to be said for that. I think the House is probably very well equipped—and Members from their own experience will be well-equipped—to see what are frivolous cases and to knock them out straight away. All I can say is that they would have to set it up in a way that would be open and acceptable and regarded by the public as being a fair way of doing it. If it were presented and run in a suitable way, my own feeling is that the public would recognise that Members have to be protected against these matters and that nobody can do it more usefully or effectively. It would take some care, I think.

Chairman

  752. To satisfy public concern on that, do you think there would need to be some non-member input on the screening body? However carefully one sets it out, if the only persons who decide are Members, is that satisfactory? Of course, increasingly, it is the case today that on all professional complaints bodies there is an outsider.

  A. Is there a case for getting the assistance of the Attorney General there, rather than bringing in an outsider? I can see the sensitivities of both Houses to that. The Attorney General has this independent role which might be of assistance in those circumstances.

Mr Michie

  753. Do you agree that whoever makes the decision here, it would have to be referred to the House and could be subject to challenge or debate, in which case it is back into the public arena and one has already, in a sense, started the proceedings. Then you have the problem that if it is finally decided that there may be a case to answer, some damage has already been done to the prospects of a fair trial.

  A. The Committee, like all committees, would not have made a final decision; it would report to the House. Forgive my ignorance, are there committees which do have the final say in any matters?

Chairman

  754. Not in theory, I am told.

  A. I think one would just have to accept that problem.

  755. Can I revert to the distinction you were drawing between non-members and Members and how, as far as Members are concerned, there may be a public reaction that "Well, they have joined the club, they must take the rules as they are". Today, increasingly, members of professions, or any other organisations, do have the ability to go to the courts to pray-in-aid at least the supervisory jurisdiction of the courts if they wish to say, for example, that what has been done is outside the powers of the professional organisation (or union, or whatever it is) or that what has happened cannot, in law, constitute a breach, etc. Is it satisfactory that a Member could be suspended, possibly fined (if there were such a power) or even expelled without any such recourse?

  A. I think that is very much a matter of policy, and public reaction. As a lawyer, I would have to say that I must agree that it is not satisfactory, but if the Houses of Parliament feel that their own privileges would be unacceptably eroded by allowing it, that is a matter for public decision and debate in Parliament. There are various models. We mentioned professional appeals. I had, on a number of occasions, to sit on appeals from the Solicitors' Disciplinary Tribunal, where the court has the power to determine whether the matter falls within the parameters of the complaint alleged, whether it is an offence, and it can go further and determine whether the evidence was sufficient (and it will not go further than that) or whether the penalty was too severe. These are all possible ways in which a reviewing body might look at it. It would be a matter of decision and policy whether it should be limited to some of them or whether it should incorporate all of those reviewing powers. I do not hold a strong view on that, because I think it is not, strictly, a legal matter, it is a policy matter.

  756. At the moment, as we have just mentioned, the final decision on whether there has been a contempt by a Member or a non-member is a decision of the House. There is no clear written statement that one can find on what does or does not constitute a contempt. Do you think that in either of those respects the present system could withstand a challenge under Article 6 of the European Convention on Human Rights?

  A. I would have my doubts, my Lord. I think there could be a fairly strenuous attack, and I have no doubt that it is one of the things that may come up when the Human Rights Bill becomes law.

Mr Tyler

  757. Lord Chief Justice, in that context I am troubled by the way in which you very properly and very helpfully spell out the Browne-Wilkinson judgment in Prebble. In your emphasis you say that the privileges relate to the performance of Parliament's legislative functions and established privileges. There may be a slight difference of interpretation if you put a comma in where I paused, after "functions", but otherwise that is an incredibly vague statement. In the explanation in your letter you go on to say that anything that is unconnected with the core function of legislation (I am paraphrasing) may fall outside the privileges to which we are referring. That is a very narrow definition. For example, a question to a Minister which did not directly relate to legislation but related to his administrative functions might fall outside that. So, if I am reading this right (and I am no lawyer, as may be apparent) Browne-Wilkinson, as amplified by your comment here, implies a very narrow definition of the functions of Parliament—ie, to what privilege relates—unless we take in "and established privileges", in which case it is incredibly wide.

  A. The context in which I was dealing with that was the question of performance of contracts. I think one would have to go into it a lot more carefully if it comes to the question of privilege in freedom of speech, or contempt, because I am well aware that a Member of Parliament's functions extend a long way outside his or her work in the Chamber. There is this very difficult question of whether, if a Member writes to a Minister about a matter concerned with the affairs of Parliament, he should have absolute privilege. There is quite a reasonable case for saying that he should and that he should not be attacked, and should be able to knock out an attack immediately, without having to go to court and all the expense and hassle of that. When you get out a little further from that, then the case is less strong, but I am not purporting to say—and I would not like to be thought to be saying—that the immunities, privileges, should be restricted purely to the work within the walls. What I was trying to say—and in looking at it again I do not think I put it terribly clearly—was that in relation to contracts there is a distinction there, but I would not put it beyond that. I hope that is of assistance to you.

  758. That is, very much. Can I go back to answer number 5 in your letter, where, again, I am somewhat troubled by the interpretation in the context of what you have just been saying. Yes, we are all clear, I think, that a statement made in the House is protected by absolute privilege and that, as you have just said, communications outside the House will be protected by qualified privilege. What I am unclear about is at what stage a statement made to a constituent or to a body of constituents can be differentiated from a statement via the media? You are implying here that there is no protection of privilege whatsoever to a statement made in the media. We have already, in this Committee, looked at the circumstances where a statement is made in the House—in the Chamber or in Committee—which is broadcast verbatim, the Member walks across the road to a television studio and makes the same statement and we have identified that he makes that same statement without the protection of absolute privilege. However, I had understood that he still would have qualified privilege. Similarly, if he writes a letter to a Minister on behalf of a constituent and the Minister replies, I understood that that too, if that was released through the media to a wider number of constituents and the general public, would still have qualified privilege. Am I wrong on that?

  A. We are getting into difficult territory. If a Member of Parliament has made a statement and then goes out and is interviewed on Panorama he—on the classic legal theory—is no longer protected by qualified privilege. However, if he has written to his constituent who has raised a matter, it is performance of his duty and qualified privilege applies. That is the classic theory. It gets grey round the edges. I have to agree that it is not an easy one. I have not ever had to decide the point, and I am quite pleased I do not have to.

  759. The point I am making is related to your previous answer that these are extremely complicated issues, some of which require both careful legal analysis and some also require—as Lord Waddington was saying earlier—very careful parliamentary experience being applied. Is that a fair comment?

  A. Yes, it is, and one goes back to the point I made to the Chairman earlier that once you write it down people are going to look for the cracks.


 
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