Parliamentary Privilege Minutes of Evidence


Examination of Witness (Questions 760 - 772)

TUESDAY 31 MARCH 1998

THE RT HON SIR ROBERT CARSWELL

Chairman

  760. Sometimes we have to write things down, because otherwise no one is sure sufficiently what the boundary is. For example, we have already a problem in relation to contracts with corporate officers and other representatives of the two Houses. There may be a practical problem in Westminster on our hands at the moment. The documentary material which might need properly to be produced to deal with litigation arising—for example, to take the narrowest example, in relation to a contract of works—could include Minutes of Committees, which are, plainly, within Article IX.

  A. Yes.

  761. So that in any satisfactory arrangement for the future regarding litigation on such matters it looks as though, inevitably, we are going to have to put something in writing, and it will involve an encroachment—if that is the right word—into Article IX as it is at the moment. Have you any comment on that?

  A. I have thought about this quite a bit. If one goes back to the mischief, I think that in a modern approach one would regard it not so much as repeating what was said in the House or in committees (unless they are sitting in camera—if that occurs), it is questioning; it is the courts getting into the situation of having to pronounce upon something on which the House might have to pronounce, and the two decisions being in conflict. That was the point in the case where Mr Justice May stated, in the case of Neil Hamilton, that was the risk. I think some of the commentaries have failed to express this or to follow it through as clearly as they might. They have said "What is the difficulty about reporting something said in committee or in the House?" The difficulty is not the reporting, it is setting one possible decision against the other; questioning the decision. If one follows that through, I think that the Houses might feel that repeating something that is said in committee is not something that harms the privileges of either House, looked at properly. It is questioning that could. Merely getting the evidence, as you have said, for litigation about corporate services (I have not been able to think of situations in which the House's decisions would be questioned, it would merely be the material obtained), if the Houses regarded it that way, then I think they need not feel there is a breach of privilege that should concern them. I do not know if that is an approach that may be helpful.

  762. Do you think there might be circumstances where, of course, what is produced is something that is said and then decided in committee, and the reasoning behind that decision is being challenged in the litigation? What is being said is "Yes, you decided you would not undertake certain work, it was not necessary. Now I want to probe with you what you considered when you reached that conclusion".

  A. That undoubtedly would be questioning.

  763. That would be questioning. That type of situation, I suppose, could arise in litigation in respect of personal injuries sustained in the House as a result of decisions made by committees.

  A. Yes. If a committee concerned with safety decided not to put up a handrail in a certain place because it was said that nobody needed it and it was rather ugly, and then the courts were asked to say that decision was wrong, it was unsafe, I could see it arising there. I think it is a matter for the Houses to decide whether they are prepared to say, in the greater public interest, that that part of their privilege can be waived. It is very much a matter for them.

  764. One of the matters that this Committee is going to have to consider is whether we can devise a satisfactory formula for indicating in respect of certain types of case that the litigation requirements must override the established Article IX position. Contract is one obvious example, but when one thinks about it there are others, too; there are not only contracts of works, there are contracts of employment and there may be cases where persons are on the premises and injured—and personal injuries where there is no contract. One can think of all sorts of examples where that applies and where it would seem quite extraordinary if today a claim in proceedings could be thwarted by a plea of privilege and documents not produced. Your suggestion, and I am not saying this at all critically, is the performance of a legislative function. In saying that I do not imagine for a moment you were intending to leave out the work of committees or the like.

  A. No.

  765. So one has to try and find some formula which is perhaps rather wider than that but sufficiently precise to have meaning. I do not have one in mind. I do not know whether, on further reflection, you have a suggestion.

  A. No. My further reflection really leads to the conclusion that I did not get it right in my answer to that question. I have looked at it further and I feel it would be rather inadequate for the reasons, my Lord, that you have explained. I do not profess to have an answer. I can just see the problem.

  766. One of the matters we are having to consider is what report to make to the two Houses in respect of the Government's proposals to introduce legislation in relation to corruption and bribery. We have already touched upon that. As I understand it your own preferred solution, very loosely,—and I am, please, not trying to put words in your mouth—is that where criminal legislation applies to the world at large it really is not very satisfactory if Members of the two Houses are not themselves to be subject to the usual investigatory and prosecution and judicial processes. Is that a fair summary or how would you like yourself to put it?

  A. I do not see that any of the other possibilities is any better. As a citizen I think I would have to say that I think the public would not regard it as right if Members were not subject to the ordinary criminal law. I can see obvious difficulties but, looking at it from the public point of view, I do not say that any of the compromises suggested would be satisfactory or workable, so I come back to that.

Lord Wigoder

  767. Could you safely leave it to Parliament, as the previous witnesses were discussing, to decide whether to waive its own privilege under Article IX?

  A. In respect of prosecutions?

  768. In respect of prosecutions or, indeed, in respect of the contractual cases or the personal injury cases.

  A. The proposal which was made for an amendment to section 13 of the Defamation Act was that the House should have the decision of waiving privilege which ended up as a personal waiver by a Member. That is possibly one way of dealing with it. Again one has the difficulty of perceptions, I think, the risk that the public would regard that as the House having the power to protect its own. It may be quite unjust, and I am sure that in most cases it would be entirely unjust, but these perceptions do exist and I feel that if you are to avoid them there is not much choice but to say that the criminal law should take its course in criminal prosecutions.

  769. Section 13 of the Defamation Act is not a very happy precedent in some ways, is it?

  A. I respectfully agree.

Chairman

  770. Does it go beyond perceptions, Lord Chief Justice, in that if the House is to have a power to waive that is a way forward, then it would mean that there is a debate in the House about whether or not a pending charge or a pending allegation should be taken further or not? The Member would no doubt wish to speak. Maybe others would. Is that a satisfactory prelude to then going on, if the House waived its privilege, and having a criminal trial?

  A. I can see very unsatisfactory features about that. I could also see if they decided not to that there would be considerable criticism, as indeed I think the Court of Human Rights in a rather different context said when a member of a legislature, not the Houses of Parliament, voted in matters concerning his own liability, that it was not a proper compliance with Article 6 of the Convention.

  771. The Maltese case?

  A. Yes, the Maltese case.

  772. I am very grateful for your assistance. I have no further questions. I do not know whether other members of the Committee wish to pursue any further matters, but is there anything, Lord Chief Justice, that we have not touched upon this morning that you had it in mind you wished to amplify?

  A. As my counterpart said, sir, no.

  Chairman: We are most grateful to you for coming this morning and for sending us your written comments in advance.





 
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