Examination of Witnesses (Questions 80
TUESDAY 16 DECEMBER 1997
MR W R MCKAY
80. The letter from a constituent to a Member
which prompts him to raise a question would be within Article
(Mr McKay) Not at the moment necessarily but I think
if you started from the beginning you might draw the line there.
I do not recommend it; I simply say it is possible, logical.
81. A possibility might be that Article IX or
its equivalent should be construed fairly narrowly, having in
mind, of course, that there is another sanction outside Article
IX attaching to conduct which is an improper interference with
a Member in the pursuit of his public duties. So challenges to
constituents who are writing letters like that should not be ones
which are regarded as flowing from interference in Article IX
terms but should be regarded as consequences which flow from interfering
with the wider principle of the orderly conduct of a Member of
his public duties?
(Mr McKay) I think it would be very difficult for
an individual letter to be regarded as improper interference.
You would have to be a pretty persistent correspondent and have
lots of friends before you really began to make yourself a contempt
case. In other words, the House's self-imposed restriction on
what was contempt would probably dismiss that abusive letter or
even a lot of abusive letters. There would be no conflict, as
I see it, between the possibility of the House punishing someone
for a letter and a letter in the same vein being protected because
it is used in a proceeding.
82. But when we come back to what is the underlying
purpose of Article IX, it is to prevent Members from being inhibited
in freedom of speech and communication. How does failure to put
the Article IX mantle over the letter we have been talking about
conflict with the Member's right to freedom of speech?
(Mr McKay) I think there is a connection, admittedly
tenuous. There is a constructive inhibition in that I, being now
a constituent, think I had better not write to the Member and
blow the whistle on some particular fact which I know about, which
he might raise in the House. I shall not do it, because he cannot
protect me if I do. Thereby the Member is limited in participation
in the proceeding; but it is a tenuous connection.
83. I have an uneasy feeling we have not yet
got to the bottom of the principle. You are suggesting, as I understand
it, the difference is one of degree, the closeness or distance
of the connection?
(Mr McKay) Yes.
84. So how would that work in respect of other
types of communication? A Member writes to a minister: that is
(Mr McKay) There is a choice, it seems to me, whether
you take the view that a Member writing to a minister is, on the
balance of probability or till you can show that he is not, doing
so by right of his membership of the House. That is a different
set of considerations from those applying to the constituent,
because the Member has a position in the House, in the constitution.
His or her writing to a minister is more likely to be on the affairs
of Parliament than that of a constituent writing to a Member,
but the controlling consideration in both instances is, is it
about that set of duties which a Member, as a Member of Parliament,
has to the constitution, to his constituents and to the House.
85. The Article IX right was amended by the
Defamation Act of 1996?
(Mr McKay) Not in terms but effectively.
86. Have you any comments to make on that particular
amendment in terms of its consequences?
(Mr McKay) Chairman, I think we say in paragraph 17
of our paper that there are problems unresolved arising from that
section of the Defamation Act. These include problems of the person
who is not a Member of either House who waives the privilegethe
privilege of a petitioner or a witness - against the wishes of
Members of either House who are concerned in the same activity.
There is the question of the two Members who are alleged to be
jointly part of a conspiracy of a corrupt character, one of whom
waives his or her privilege and the other does not. There is the
issue of the Member who waives his privilege on one occasion but
not on the next. These are practical problems. The problem of
principle is that the Houses have always understood parliamentary
privilege to be a collective right, and this statute turns a part
of it into an individual right.
87. If we could tackle it from the other end
for a moment and look at it as a collective right, should the
House be able to waive that right?
(Mr McKay) The House has frequently waived, or rather
not insisted on, its non-statutory privileges. Indeed, as we mentioned,
there is an anomalous case where an individual Member does not
insist on his or her privilege.
88. Should that be so for the statutory rights
(Mr McKay) I think that is a decision which the Committee
must take. All we can do is point to the practical problems which
may arise if a Member does it. It would be for the judgment of
the Committee whether, taking those into account and giving them
proper weight, it is still right to go ahead and allow the Defamation
Act provisions to stand.
89. One possible difficulty which might arise
is that if the House were given power to waive the Article IX
protection in respect of defamatory statements made by one Member,
then a Member, contrary to his wishes, might find himself exposed
to court proceedings?
(Mr McKay) That is so. That is simply, it seems to
me, Chairman, an articulation of the difficulty of principlecollective
90. That might suggest that it could only be
done by the House with the consent of the individual. Have you
any comments to make on that type of approach?
(Mr McKay) That would perhaps dispose of the point
of principle. The practical points would probably remain.
91. Is "not insisting upon" the same
thing as "waiving"?
(Mr McKay) I do not know, my Lord. I think I prefer
"not insisting upon" because it does not answer the
Lord Mayhew of Twysden
92. It does not add to the body of certainty,
does it, if a Member may find that the House has pulled the rug
from under him? On what principles would the House direct itself
in approaching that discretionary power?
(Mr McKay) I suppose on the principle of transparency,
the point that Lord Waddington has made. "Some offence may
have been committed. We should not stand in the way of its trial."
93. Lord Waddington's point avoids this, as
I understand it. Lord Waddington is saying, "Here is a discrete
area which we are going to block off and it will not work,"
and that is much more certain in its consequences than what we
are at present discussing?
(Mr McKay) But then Lord Waddington, as I understood
it, made that proposal in the context of corruption and bribery.
We are now perhaps thinking in terms of defamation.
94. In your memorandum you have drawn attention
to the distinction between privilege and contempt and the two
Houses now are, as you have already pointed out, much more tolerant
than perhaps they once were of perceived offences against what
certainly in the past could be called their dignity in express
terms and now is used rather differently. Is there, in your view,
a need for retaining the notion of a parliamentary offence of
(Sir Donald Limon) I do not mind what it is called.
That is an old-fashioned phrase and I would be quite happy to
try and think of another one, but I think the concept does probably
still remain valid. In recent cases the House has exercised great
restraint in this area, having adopted the recommendations made
by the Privileges Committee in 1977, and I think that has worked
quite well actually. But if people do not like the phrase "contempt"
I think we could think of a better one. "Privilege"
itself is an unfortunate word, but these are the words which we
have been left with. We might be able to think of something which
was more in accord with the way people think and work nowadays.
I do not think it would make very much difference but if people
were unhappy with the language no doubt other words could be thought
of, but I think the offence of contempt in extreme cases should
probably be retained.
95. On that, I think of things like our Select
Committees, where we are asking for evidence from people outside
Parliament. If you did not have the concept of contempt and if
people were not afraid of being charged with contempt, is it not
likely that the veracity of witnesses might be considerably undermined?
(Sir Donald Limon) Indeed. I think that is a good
96. In your memorandum I thought I detected
some doubt on your part on the ability of the Committee on Privileges
to deal satisfactorily in all cases with the exercise of its punitive
functions. Do you have any alternative procedure that you would
(Sir Donald Limon) The Committee itself is addressing
that very problem at the moment, I think, and I prefer to leave
it to them to come to a judgment on their own affairs to start
with. Whether that proves to be acceptable to the House generally
if it is put to the House I do not know but I think on that particular
issue, which is acute at the moment, brought about by the fact
that the first case under the new procedure proved to be an exceptionally
difficult one, I would prefer to allow the Committee to see if
it can think of a way out of that but I think it will be very
difficult indeed. Again I go back to what Lord Mayhew said at
the last meeting. The same applies to that. If they are going
to purport to hear a great deal of evidence day after day after
day in very complicated cases, I think it is not a bad proposition
for Members to undertake that sort of work plus other duties.
97. But without pressing you, therefore, on
the detail, do you think it is acceptable today for either House
to fine or imprison, punish in any way, a non-Member without that
person having the procedural safeguards which are available to
defendants in court proceedings?
(Sir Donald Limon) I think people outside would find
it very difficult to accept that the House should do that. I think
that is probably one of the things which inhibits it. There is
nothing to stop them trying it now. They have not done so and
there are all sorts of considerations which apply there, not least,
I imagine, the power of the press, which is one of the things
we have not mentioned in these proceedings but, of course, it
is extremely important in this context actually.
98. Do the procedures of the Standards and Privileges
Committee give defendants, so to speak, in those circumstances
the same protective safeguards as are available in court?
(Sir Donald Limon) No, not the same at all. One of
the problems is that the investigatory side of this was envisaged
at one stage to be done by a Sub-Committee of the Committee, leaving
the Committee to act as a court of appeal. That is not the way
in which the Committee has, in fact, been working. Nevertheless,
the thought of having three investigations, one by the Parliamentary
Commissioner, one by a Sub-Committee and another by the Committee,
is very daunting, especially since that final one still did not
99. Before we leave that, on a point of clarification,
could we have it made clear that, as I understand it, the abandonment
of the idea of a Sub-Committee was not a decision of the Standards
and Privileges Committee itself? That was a decision of the House
of Commons. It is just so that we do not draw the wrong conclusions.
(Sir Donald Limon) I do not believe that is so.