Examination of Witnesses (Questions 41
TUESDAY 16 DECEMBER 1997
MR W R MCKAY
41. Sir Donald and Mr McKay, welcome back. What
we have in mind this morning is to have your assistance in particular
on the first part of your helpful memorandum. I invite both of
you to respond to our questions in whatever way you believe will
be of most assistance to the Committee. Before I start, is there
anything, Sir Donald, you wish to add at this point?
(Sir Donald Limon) No, sir. I would like to carry
on from where we left off last time.
42. May I first ask for your help on a very
general question? The law of parliamentary privilege is to be
found today in one or two statutes and in an accumulation of precedentssome
very olddecided in very different times. Have you any overall
view on the suitability of those as a source today for the special
rights and immunities (the privileges) of the two Houses?
(Sir Donald Limon) I think this is the
real difficulty; that there are many precedents which you can
look at and say "We would not do that now; they would not
put up with that". Either the House would not or the public
would think we had taken leave of our senses. But they are still
all there. So there are a lot of difficult precedents which we
carefully ignore, but there are other jewels knocking about which
we still like to adhere to. Nobody has codified this and there
is quite a strong case for saying "Do not codify it".
The whole subject is now so shrouded in mystery however that we
probably owe it to somebody to try and attempt some form of codificationwhether
it be legislation, an authoritative report from this Committee
or both. I would not like to lay the law down about how it is
done but I do feel that privilege has got into a position now
in the modern world where people are in need of some advice about
it and, while we are about it, perhaps it needs a little bit of
trimming here and thereor perhaps rather a lot. I gather
that you are going to take evidence from overseas countries and
I think that would be very valuable to you. One or two other senior
Commonwealth countries have attempted this. I am not suggesting
that what they have done would fit in exactly here. It would not
because they have not all done it the same way. Having looked
at what other countries have attempted to do in this exercise,
however, you would, maybe, start to come to views about performance
and how codification might take place. Our memorandum really was
tended to stimulate thoughts on that kind and nothing much elsenot
in the way of detail. I think when you are beginning to form your
own views about what should happen, you will probably need to
come back (fortunately not to myself but to Mr McKay, whose announcement
as my successor has now been made) and he will help you further
it. I feel that this session and the last one are part of the
stimulation processprobably not too necessary given the
sharpness of your questions last time: you have been stimulated
quite enoughbut we are ready to help further today if you
43. So is the law relating to parliamentary
privilege, in your view, concerned as you have been with the administration
of it for a long time, in a satisfactory state?
(Sir Donald Limon) No, I do not think it is. It is
all right for experts to find their way around but there are not
many experts left and I feel, as I said last time, the ordinary
Member of Parliament needs to be brought more into focus on what
privilege is all about (or what it should be about) and I do not
think there is much focus at all on it in the House now. I would
not like to speak for the House of Lords but I should imagine
it is not all that different there. Our feeling is that, having
lost the opportunity last time there was a big Committee on this
because the House did not take it up, we have gone further down
the road of people not understanding things any more. It is dangerous
if you go too far down this road and this is an opportunity to
focus people's minds more about what privilege now means, what
are its limitations, where it might possibly need bolstering to
learn from experiences of other countries to try and get it on
a better footing than it is now.
(Mr McKay) If you focus on Article IX, as an example
of the point you are making, Article IX (until I think the middle
of this century) was never construed by the courts. All the great
19th century cases barely mention it and, to the extent they do,
they give it a life limited to the circumstances which gave rise
to it. They say "This was a way of dealing with an instance
when the courts proceeded against the Speaker for something he
did in Parliament". So Article IX was part of a constitutional
wish list; it did not begin life as a statute. Now however, without
a secure basis in the kind of statute we are used to, without
a secure basis in commentary by the courts, we are faced with
Article IX as the principal defence of freedom of speech because
everybody wants to see rights in black and white. The courts fall
to interpreting Article IX and ask themselves "What is a
proceeding? What is impeaching or questioning?". But the
intent of Article IX and its interpretation has not proceeded
on that basis at all, until this century, so our main bulwark
in cases of freedom of speechwhich, as we say in the memorandum,
is the centrepiece of privilegeis a very frail one.
44. The uncertainty surrounding the subject,
of course, has been with us for a long time. Is there any particular
reason why now, rather more than in the past, something needs
to be done?
(Mr McKay) I am not sure it is true to say the uncertainty
has been with us for a long time. It has been with us only since
what the House of Commons in particular represented and was able
to put before the courts became something open to contest. The
19th century cases, as I said, are full of echoes of Blackstone
and the "dignity of the House". The House of Commons
had an unchallenged place in the constitution. The courts were
anxious to preserve that. You did not get litigants who picked
over words. Nowadays that is the way, it seems to me, both litigants
and the courts behavequite properly. That is the change.
That is the uncertainty. It is a modern uncertainty.
Mr Alan Williams
45. Can I follow up on that? At the last meeting,
I made clear my view that we should abandon the legalistic approach
and start from scratch on what we need and how we get there. To
avoid just going around and around with legal arguments on precedent
and so onand may I say your document was extremely helpful
both in terms of information and also in making us aware of the
confusion of the situationwould it not save time if we
begin, not by looking for end products right at the start, but
by identifying processes and asking "How do we get where
we want to go?". Rather than asking "Where is everyone
else?", and "Where are we now?", we should ask
"What are the processes?" What would you recommend if
you were in charge of this Committee? How would you structure
the development of our proceedings in the most expeditious way
(Sir Donald Limon) That is quite a difficult question
but I think I would like to look at things which are really out
of date; things which are nowadaysit is an unkind wordreally
dross and which can confuse people. There is a little bit of that
lying around. Freedom from arrest I would certainly say is one
of those. Freedom of access to the Sovereign is another historic
privilege, and we know the position when the House is going to
address Her Majesty the Queen. All that is very well but there
are other areas where, certainly, we are in need of guidance and
probably of legislation. One of the ones I mentioned at the last
meetingand there has been a development since the last
meetingis that the House of Commons is involved in litigation
(at least I am as the corporate officer which amounts to the same
thing really) and the House passed a motion last Friday, without
debate in fact, in which it allowed the legal process of the discovery
of documents to be done with full freedom for the court to see
certain papers which we would not normally have given to the House.
Now that has happened because, in very recent times, the House
of Commons in its wisdom has taken on some executive functions.
It took over the running of this building; it is about to build
an enormous new modern building. Formerly this would have been
dealt with by the Department of Environment on our behalf and
all these problems would not have arisen. However, they have and
it is quite unreasonable, now that we have entered that arena,
to expect the courts to say, "Because this is a House of
Commons building we cannot possibly look at any of the minutes
of any meetings which took place in the House about it which might
be relevant to the case". No respectable judge would put
up with that in that sort of field. Getting the right boundaries
of what can and cannot be done in cases of that sort is something
which is better done, I think, by giving some thought to the general
issue and deciding what should be done in all cases rather than
having piecemeal court cases where some sort of a solution eventually
emerges. We have had to take an individual decision in this case
because it is exceedingly urgent. We were about to be held in
contempt, so we had to do something. That is a severe practical
problem with which we are faced. It probably should have been
faced at the time the Corporate Bodies Act was passed some years
ago but it was not anticipated at that time and we were left with
this difficult position which we have had to resolve piecemeal
for the time being. That is a perfect example of the sort of thing
where this Committee could have taken an early view and say, "This
must be sorted out in an orderly fashion". I think that would
not be too difficult but it would almost certainly mean an amendment
to the Corporate Bodies Act.
(Mr McKay) But it would not get you round your problem
of not being legalistic. As the Clerk of the House is saying,
I am sure that these problems can only be satisfactorily solvedalmost
finally solvedby a clearly thought out statement of law.
46. Can I make it clear that I am not saying
we should not end up on a legalistic basis. What I am saying is
that we should not be misled into paying undue attention to the
existing, rather ambivalent, legalistic basis of parliamentary
privilege. We want to get something that is sustainable but in
the process we have to abandon the view that the position at present
(Mr McKay) Then you not only deal with the issues
which the Clerk of the House has raised, you also deal with central
issues like what do Members and Lords need to preserve their freedom
of speech. Do you, for example, need to cast the mantle of freedom
of speech over some of your correspondence with constituents?
Do you need to cast the mantle a little further over constituents'
correspondence with you? When you solve that problem, I suspect
you have probably solved 80 per cent of the issues before you.
47. Since you are so familiar with the morass,
and we are still struggling with it, how unfair would it be to
ask the two of you to draw up the type of analysis that you are
talking about at the moment and also to draw up a fool's guide
for this Committee on how we best go about achieving the end product
we have set out to achieve?
(Sir Donald Limon) That is something which could be
done earlier or laterthis is really up to you. I am sure
colleagues in both Houses (because it does, of course, involve
both Houses) would be happy to make the attempt and I think you
are seeing the Clerk of the Parliaments quite soon and his co-operation
would be necessary. It is no good pretending that these things
apply to one House: they apply to both. He may have a line of
his own. I have not had deep discussions with him about this but
it is probably best at this stage for each of us to say our piece
early on in order to help you and then to put in a joint memorandum
if something of that kind might be desirable. Certainly if that
is the way you would like to tackle it we are in the Committee's
hands but, no doubt, a paper of that sort could be prepared.
(Mr McKay) You will want to adjust it when you see
the Commonwealth Parliamentary evidence because they will have
problems that we have not seen.
48. When Mr McKay talks about a clear statement
of law, does he exclude (as I very much hope he does) this Committee
suggesting any amendments to the Bill of Rights itself?
(Mr McKay) My Lord, to be blunt, the Bill of Rights
is, as I said, a frail bulwark. What might be done is for you
to recommend a statute which set out what you thought the Bill
of Rights meant and for you to include in it a clause which the
Australians have saying: "Look, none of this is intended
to abridge but only to re-state Article IX". It is Article
IX as it stands, however, which gives rise to all the legal morass
that Mr Williams is talking about.
49. Can I go back to the beginning of your evidence
where you said that probably the time had come for some sort of
codification and that there were two ways of doing it: either,
one could set out in a report of this Committee or some other
Committee what was thought now to be the present state of parliamentary
privilege or one could pass legislation. At the end of your evidence
you referred to the need to amend the Parliamentary Corporate
Bodies Act 1992. Leave that on one side, because that is one discrete
subject which could be dealt with by amendment. Which of the two
alternatives would you think at present would be the more appropriate
and easier way of dealing with the wider problems?
(Sir Donald Limon) I think some fairly authoritative
report from this Committee would be needed to set the ball rolling,
as it were. I do not think it is a question really of persuading,
very probably, the Government of the day that legislation is necessary
and should then be drawn up. The extension of preliminary talks
(and that is why we are all here) is to get a pronouncement from
this Committee which is regarded as sufficiently modern, if I
may use that very much in phrase, to enable progress to be made
in the codification in some formnot necessarily legislation.
We have tentatively concluded that legislation might be the best
but it could be the Committee will feel differently after taking
50. You are not suggesting it would be necessary
to have legislation outside specific problems like the Parliamentary
Corporate Bodies Act?
(Sir Donald Limon) No, I am not. I think that is a
matter for you to weigh up when you have seen how other people
have got on in doing this and, as Mr Williams said, have decided
roughly the kind of scenario you want to end up with.
Mr Bill Michie
51. Can I go back to the Parliamentary Corporate
Bodies Act? Whilst that may now mean that the minutes and other
documents of domestic committees can be seen by a court, if that
is necessary, it does not really mean that we cannot find a way
of protecting Members and their privileges. There is a difference,
surely, between contracts and buildings as opposed to the freedom
of speech of a Member in the House?
(Sir Donald Limon) That is absolutely right. There
is a side issue but it is quite important and it is one which
has hit us very hard indeed amidships in the last few weeks. The
question of privilege of the House as it affects Members is a
much more important subject intrinsically but, nevertheless, there
is this difficulty which has arisen and it needs to be resolved
in a sensible way. I completely agree with you about this.
(Mr McKay) It seems to me that the solution to the
problem will have to ensure that this hit amidships does not sink
the ship. In other words, the change that is made in the Corporate
Bodies area is not usable by others to flood the ship of privilege
and sink it. The ship has got to be compartmentalised.
52. So what is the real problem, then, as far
as the Parliamentary Corporate Bodies Act is concerned? Does it
really cause a leak to the ship? All it basically means is that
officers of the House are now more vulnerable than Members.
(Mr McKay) What it does mean is that, in the terms
of the resolution passed by the House of Commons on Friday of
last week, Committee papers, minutes of Committee meetingsdiscussions
by Membersare now available to the courts if they are related
to the particular contract and are in the hands of the Corporate
Officer. Now, the courts are not permitted by the Bill of Rights
to draw inferences from them, but it is a step to have made them
available. These are not what officers said, but what Members
(Sir Donald Limon) And the whole point about having
done that is that I really do not believe myself that the court
will be able to prevent itself from drawing some inferences. That
is why the parties want it. The drawing of inferences is a very
difficult areathis drawing inferences business. Once you
have got something you do not say "Thank you very much"
and take no notice of it. Obviously you have got it for a purpose.
53. Can I follow on this particularly narrow
but important point involving the corporate officers? As I understand
it, what we are focusing on are court proceedings involving the
corporate officers. The question is whether the ordinary principles
applicable to litigation in the case of court proceedings involving
the corporate officers should take precedence over Article IX.
That is a specific, on the face of it a self-contained, point.
Do you see any reason why they should not? Do you see any difficulties
arising from it if they are?
(Mr McKay) There are two things here. The first is
that I suspect the precedence of the normal rules of litigation
is not so much over Article IX but over the more shadowybut
realclaim of both Houses to exclusive cognisance of their
proceedings. Because that is not down in black and white it is
more difficult for us to argue it in court. The second but principal
issue, the real problem, is not so much making these papers available
and obeying the normal rules, it is what happens next. What are
the papers which next you will, in the normal course of litigation,
be expected to disclose. What happens if, in any such caseI
do not have particular regard to the one before the courts nowwe
make them available and then, in a sense, can be represented as
having withdrawn them by saying, "We make them available
but you must not draw any conclusions from them". That really
puts the House in a difficult position. It would be necessary
to draw the line in advance, whether by the conclusions of the
Committee or in any other way, just exactly how far we go; where
the line of compromise is between the normal rules of litigation
and the normal rules of the House.
54. Does there need to be a compromise? If one
follows through the ordinary principles, all those documents in
the House which are relevant would be produced and the court would,
of course, draw from those documents whatever inferences were
appropriate. Just help me on why that should not be so in the
case of the two Houses where you have litigation involving the
corporate officers so you are really dealing with commercial activities?
(Mr McKay) My Lord, we are devising two forms of Select
Committee: one form whose deliberations are entirely secret, never
reported, where Members' freedom of speech is absolutely unlimited.
The other Select Committee (apparently indistinguishable from
the first) is where it is possible for deliberations to come into
55. That follows, but maybe, now that the House
is getting involved in this type of activity, that is a distinction
which also must arise in Parliament. Is that right?
(Mr McKay) It may be but, as the Clerk of the House
says, it hit us amidships on this occasion.
Lord Archer of Sandwell
56. I am trying to think of an example in the
commercial field where we would not want inferences to be drawn
from what was said in a Committee. I can understand it when we
are talking about defamation or something of that kind but, if
the House ventures into the commercial field, in what situation
would you say, "Well, it would certainly interfere with the
workings of Parliament if we draw inferences from that"?
(Sir Donald Limon) I am in this dilemma in answering
that question in that I can think of an absolutely perfect example
which relates to the case which is before the courts now and I
do not think it would be right for me to allude to that. I can
assure you however that there could be in these documents which
we have given, or there could have been, entries which would have
had very material effect upon the case. We rather hope and believe,
having read them ourselves, that that is not the case but you
could easily see if you read them that there could have been inferences
drawn from the deliberations of these committees which could have
very material effect on this particular occasion, but I do not
think I should be drawn on detail.
57. Perhaps we could move to examples which
are not immediate and going on at present. There could be no reason,
if the House decided to enter into a contract, why it should not
be liable on the contract in the ordinary way?
(Sir Donald Limon) Yes, that is right and there is
a lot of EC law on contracts and tendering processes and that
sort of thing which we have to take into account. I do not think
there is any suggestion that Parliament is exempt from them, certainly.
If it ever went to European Court, I do not see our case standing
up very well.
Lord Mayhew of Twysden
58. If you were to produce the paper that has
been suggested by Mr Williams, could you visualise yourself approaching
it by saying that one has really got to start at the beginning
and ask what Parliament needs as a legislature to be able to do
its job effectively in the modern world, in modern conditions.
We all know how conditions have changedeven in our own,
quite short limited experience. When you have done that, look
by all means at what other Commonwealth countries consider that
they need, because that will be helpful; but then and only then
should you get into the business of looking at the vehicle by
which you actually deliver what is needed. It seems to me that
that is how you have to do it. Then again, when you start to look
at the question of how it is to be delivered, of course you look
at the body of law that has been built up, both Parliamentary
and statutory, and you also look at what Commonwealth countries
have achieved and then you are in a position to produce a final
report. But first of all, it seems to me, you have probably got
to get practitioners and House officers to contribute to the first
question "What actually is needed today?"
(Sir Donald Limon) I think that is a perfectly legitimate
way of looking at it and, as is our duty, we will make a very
serious attempt to help in that direction by producing a further
paper. If that does set you off in the right direction, that will
be all well and good. It may be that you would find the direction
we suggested was not going to work after you have taken other
evidence, but there is no harm in that: at least it will help
you further focus your minds as to where you want it to go and
then you can explore ways of doing it, as you say, by taking evidence
in other jurisdictions and then thinking how that should be fitted
into our own body. This exercise that is being done now is very
welcome because I think there has been a danger in this difficult
period we have been in since this last report that we have been
just reacting to events as and when they happen in a rather piecemeal
way, which is not how this should be done.
59. Does it seem to you that it is probably
impossible in the practical world to come up at the end of this
process with a code which every conceivable and foreseeable set
of circumstances is likely to be able to be dealt with? A sort
of template into which every set of circumstances can be forced?
It seems to me that there is great value in doing what I have
suggested because we have an opportunity to approach this extraordinarily
important and very difficult subject from the beginning and have
a comprehensive look right over the whole spectrum. But there
is always going to be, I should have thought, areas which are
new and have not been foreseen. The business about the House adopting
executive functions and your being taken amidships by a demand
for discovery of documents is probably a good example. There has
got to be, therefore, some forumwhether Parliament or the
courtsby which, in which, those unexpected future cases
are going to be decided. You cannot hope to have a lovely great
code with everything cut and dried for ever. Does that seem sensible?
(Sir Donald Limon) I agree entirely with everything