Examination of Witnesses (Questions 200
TUESDAY 27 JANUARY 1998
RIPPENGAL CB QC
Lord Mayhew of Twysden
200. That was rather what was worrying me. How
do the police investigate this without calling into question or
impugning, which I think is the language, a parliamentary proceeding,
because they would need, in the case which I can envisage, to
go to the proposed defendant's or the suspect's colleagues and
say, "What about this?" Would he be thereby prevented
from saying, "I am not obliged to answer this sort of question.
It is a parliamentary proceeding". have I got that wrong?
(Mr Rippengal) I think it certainly does say that
freedom of speech and debates or proceedings in Parliament should
not be questioned or impeached in any court or place out of Parliament.
201. Or place, yes, that is what I had in mind.
(Mr Rippengal) It would cover the executive (they
had in mind the King in those days) but I think yes, the police
could not carry out this investigation without questioning or
impeaching what was said in Parliament.
Sir Patrick Cormack
202. Would you not agree that that really is
a very major constitutional change, that I could be subpoenaed
to appear to give evidence in court when I had had absolutely
nothing to do with the particular transaction, but merely to substantiate
a particular statement that I may have made or intervention I
may have made in Parliament? Is this not of profound constitutional
(Mr Rippengal) Yes, it would be an important constitutional
change to make any further inroad into Article IX, and we have
a little bit of it already in the Defamation Act. I think we have
said in the paper that we regard Article IX as a very important
article, even as respects its wider aspect.
Mr Williams: This is turning into being semi-deliberative,
but ideas are flowing and I think that that has not been a common
feature of our meetings in the past because we have all been somewhat
feeling our way around. What about, say, the Commissioner being
the trigger? It is the Commissioner who does the initial investigation
on behalf of the Privileges Committee, saying, "These I can
deal with and I refer them to the Privileges Committee. These
I cannot deal with adequately because I do not have the resources
or the power to carry out the appropriate investigation and, therefore,
rather than refer it down channel A, the Privileges route, I would
want to try and channel it through B, the court route". It
would mean revising the concept of the Commissioner as well possibly.
203. May I turn next then to other aspects of
parliamentary privilege which you may be able to help us on. I
am going first to one that you single out, freedom of speech,
as perhaps the single most important. Should ordinary citizens
have, in your view, any protection against that privilege in the
sense, for example, of having a right of reply or any other protection
or safeguard when they have been, so they say, defamed?
(Mr Davies) Well, I think this is a matter of hard
choices. My view is that a private citizen does not have any right
of reply to a defamatory statement in either House. If you are
going to preserve the freedom of speech intact, I think that has
got to stand by itself and that there can be no comeback, as in
a court. I believe, though I am not a lawyer, that in a court
of law, members of the public could be defamed in evidence without
any right of reply, or recourse to making a statement themselves.
I think that both Houses have got to be aware of their responsibilities
in this regard and ensure that outrageously defamatory statements
are not made just because they are protected by the privilege
of freedom of speech.
204. You said in your memorandum that maybe
a way around this would be for the citizen to have access to making
statements in Parliament, but you are not happy about that because
that might be defamatory or too negative. Surely there can be
a protection mechanism to make sure it is not abused in that way.
(Mr Rippengal) Yes, I think clearly one could have
a provision for a right to have a statement read out in the Chamber
or possibly published in the minutes of the House, some written
or spoken statement. I think we said in the paper that you would
need to take care over the provision to make sure it was not itself
defamatory and was indeed a fair representation. You could go
on for ever. A statement could come back against the Member who
had made the first statement and then
Sir Patrick Cormack
205. It is a dangerous path to tread, this one
(Mr Rippengal)The Member might say, "Well,
yes, but I don't agree with this statement". It is quite
a difficult area. I believe they have done it in one of the Australian
jurisdictionsI am not sure if it is the federal or one
of the statesbut I think it is quite a difficult sort of
provision to frame when you really get down to it.
206. That really brings us on to the next question.
Is it practicable to devise a workable system of a right of reply
given the sort of difficulties you have just touched on?
(Mr Rippengal) I have got my doubts. It might be possible,
but it is not easy.
207. Article IX draws a boundary line between
proceedings in Parliament and everything else, so that the boundary
line is drawn between certain communications, spoken but also
written, on the one hand, which are within Article IX and others
which are not. If you were writing today on a clean slate, and
forget the phrase "proceedings in Parliament", but if
you were today drawing on a clean slate a boundary line between
communications which should be the subject of parliamentary privilege
and others which should not, where would you draw the line, having
regard to the areas today where there is doubt and obscurity,
for example, communications with constituents, communications
with ministers and so forth? Where, in your view, should the line
(Mr Rippengal) Well, in the Lords of course we do
not have the problem of constituents, if I may put it that way.
We are really always talking about proceedings either in the Chamber
or one of the committees of the House and things said or written
for the purposes of any proceedings taking place there. I think
if you are asking us about what should happen in relation to the
208. Communications with ministers.
(Mr Rippengal) Well, communications with ministers
again, looking at a peer's function strictly in accordance with
his Writ, a peer does not have any particular function of writing
to ministers, though of course peers probably do sometimes write
to ministers in connection with matters in Parliament in which
they have got an interest. I would have thought that a line could
be drawn entirely around the proceedings in the House and its
209. So all proceedings?
(Mr Rippengal) Any proceedings in the Chamber or in
any of the committees of the House.
210. So the whistle-blower who writes to his
Member or to a peer would not be within the privileged area?
(Mr Rippengal) Well, I think there is a Bill going
211. No, leaving aside the qualified privilege
as a matter of law, but, as a matter of parliamentary privilege,
you would not include him or the Member's response?
(Mr Rippengal) Not within the absolute privilege accorded
to proceedings in Parliament.
Sir Patrick Cormack
212. But if the Member read out the letter in
Parliament, it would be covered, and that is the point. If I had
a letter from someone in my constituency alleging a malpractice
and I communicated on that matter outside of Parliament, it would
not be covered, but if I chose to stand up in Parliament and either
in an adjournment debate or another debate I read out that letter
or quoted from that letter, then it would be covered and covered
(Mr Davies) That is the privilege of freedom of speech.
(Mr Rippengal) Yes, it is a difficult line to draw.
Chairman: The publication in Parliament would
be the subject of privilege, but whether the writing of the letter
to the Member would be is the particular aspect that I am asking
Lord Merlyn-Rees: I choose my words carefully
in that I know of a case where research assistants write to ministers
and that would not be covered.
214. But you have answered the question in that
you would draw the parliamentary privilege protection tightly.
(Mr Rippengal) Yes, because it is such a powerful
215. Can I move on to another area, subpoenas.
On page 9, paragraph 16 of the memorandum, Mr Davies says in the
third line, "There have in fact been no cases in recent years
of which I am aware." Do I understand from that that no peer
has raised the point or it is thought that no peer has ever been
(Mr Davies) Well, I cannot believe that no peer has
ever been subpoenaed, but no peer has ever raised the point, or
not in recent times.
216. But the conflict that has to be resolved
here is, on the one hand, ensuring that the service of the subpoena
either to attend and give evidence as a witness or to produce
documents should not interfere with the work of the Member of
the House and, on the other hand, not permitting that need to
protect the workings of the House from interfering unnecessarily
with the administration of justice, so one is looking for a satisfactory
practical resolution. One possibility of course is that prima
facie the subpoena should stand and a Member should not be
able to avoid his obligations to assist in the administration
of justice by saying, "I am a Member and the House is going
to be sitting for the next six months". On the other hand,
one would not want to find that difficulties of time-tabling in
the law courts really did interfere with a Member attending the
House or a committee at an important point. Now, is a possibility
that prima facie the subpoena stands, but that the Speaker,
for example, or the Lord Chancellor or some other official in
the House should be able, when needed, to take steps to see that
the subpoena should not override the obligations in the House?
What is the best resolution of this conflict in practice?
(Mr Davies) I think in modern circumstances the interests
of justice and the court system probably take priority over the
availability at any rate of a Member of the House of Lords, to
be in his place on any particular day. As I have mentioned in
paragraph 14, there might be a case where a Member of the House
was actually serving on a Private Bill committee whose work would
be interrupted unreasonably, possibly at the end of its hearings,
and that perhaps the subpoena should be postponed for a short
time, while those proceedings were concluded. But I cannot believe
that in the circumstances of normal attendance in the House the
privilege against being served a subpoena should take priority
over the interests of justice.
Sir Patrick Cormack
217. May I take you further on that? Presumably
in the House of Lords the system is that if a peer wished to resist,
he would come to you as Clerk of the House?
(Mr Davies) Yes.
218. I have myself had to do this, to go to
the Clerk of the House of Commons. I had a particular constituent,
vexatious and litigious, and we all have them from time to time,
my Lord Chairman, and the argument would be that Members of the
House of Commons would be summoned right, left and centre to all
manner of cases if we did not have the provision of going to the
Clerk of the House of Commons and asking that he communicate that
the duties of Parliament take precedence. I just want to establish
that that system, although not used in your experience, exists
in the House of Lords and I want to put on record that I think
it is terribly important that it should continue to exist in the
House of Commons.
(Mr Davies) Well, I have had no experience of a Member
of the House coming to me and I believe my predecessors have had
no recent experience of that, so it is rather difficult to give
the Committee any advice from our perspective, but I think the
relationship of a Member of the House of Commons with constituents
remains different from membership of the House of Lords which
is a rather more fluid arrangement.
219. At present, Acts of Parliament which affect
the regulation of Parliament do not apply unless expressly so
provided. Do you think it would be better if the procedure were
the other way round so that Acts would apply to what happens in
Parliament unless expressly provided to the contrary?
(Mr Rippengal) Well, there is a case for that, I think.
There are very few modern cases on the matter. The Graham Campbell
case, which held that the House of Commons was not bound by the
Licensing Acts in the sale of alcohol, seem to have been a benchmark
and, as a result, I think the draftsmen of legislation affecting,
for example, employment have assumed that it would not cover both
Houses without express provision. When you get down to the details
of an Act, and, for example, we have been looking at the Health
and Safety At Work Act recently, you find that it probably does
not quite fit the parliamentary situation without adaptation,
so that a general presumption that Acts applied to either House
unless they said to the contrary could lead you into difficulties.
But I would have thought, and I think we said in the paper, that
this area is one which might be of some interest to the Committee
because it has gone a long way. There are people who doubt the
soundness, for example, of the Graham Campbell decision,
and it is not a bad question: why should either House be free
of the licensing laws in the sale of alcohol, and why should either
House be free of legislation protecting the interests of its employees?
That is certainly an area, it is the exclusive cognisance area,
the limits of which are probably not altogether clear.