Examination of Witness (Questions 660
TUESDAY 17 MARCH 1998
660. I am reminded, Lord President, that only
a few weeks ago there were witnesses in trouble before a Select
Committee in the Commons for refusing to give information.
661. Could I follow this up? We are nowhere
near the point of making up our minds as to exactly what our report
is going to contain, but I would like to come back to this same
point, particularly about corruption and the trigger of when or
who decides whether it ought to be totally dealt with through
the courts or through the House. In some cases it has been argued
that if it goes through the courts, it first has to go through
the House, so there is a double jeopardy effect if we are not
careful. Our problem is that if we arrive at a decision, whether
it is the Speaker that makes the decision or an independent body
that makes the decision or the Crown Prosecution Service, that
it should be dealt with by the courts and not the House, would
there have to be different legislation in respect of the Scottish
A. I think it would need to be made clear if
it applied, and I am not quite sure how it would be drafted, but
I think it would have to be made clear that it applied to Scotland.
I do not think that it would necessarily look very different in
respect of Scotland. I think one of the difficulties of seeing
it, if I may say so, in the way in which you envisage it is that
you envisage that one starts by identifying the MP as being corrupt
and Parliament looks at that and then decides whether to pass
it over to the prosecution authorities, but it might very well
not come out that way at all. You might start with some trail
of corruption which was somewhat distant and the police might
be investigating that and then it would lead in some way or other
to this, so it really might not always come in the kind of situations
you have envisaged and I find it difficult to see how one could
stop at the door, if that was where it led, and then leave it
to Parliament to decide whether or not to prosecute. I think that
would be rather untidy and I think myself, if I had to guess,
that the better thing might be just to decide one way or the other
that if it was corruption, then it should be prosecuted.
Mr Michie: How we decide and when we decide
is the big issue.
662. Lord President, we have been discussing
the Court of Human Rights. Parliament at the moment claims the
right to punish for contempt even when there is no clear statutory
basis and no codification as to what contempt is or what contempts
are punishable. Would the Court of Human Rights, do you think,
accept that position or is it an argument in favour of some degree
A. If I may say so, it is obviously an argument
which your Committee would wish to consider very carefully in
favour of codification. I am not sure whether it was an English
case or a Scottish case, but there certainly has been a case in
front of the Strasbourg Court when the question as to whether
or not something was defined in common law was in itself a reason
for saying that it was not sufficiently precise to meet the requirements
of the Strasbourg Convention and the answer to that question was
no, it was not in itself a reason to say it was sufficiently precise
and you could have a situation certainly where the law was sufficiently
clearly worked out in the common law for everybody to be aware
of what the rules were and, therefore, for people to be guided
by them. What I think, and again if I am wrong, I apologise for
my lack of knowledge, but what I suspect is that there may be
cases where the bounds of the law of privilege as applies, let
us say, to Members of Parliament in particular are rather uncertain
and that somebody then finds that they have actually committed
a breach, it is held that they are in breach of privilege, where
they might not have been sure about that in advance, and that
I think is something which would certainly be open to a Strasbourg
challenge if the person was then penalised for such a breach.
That is assuming that it was open to a Strasbourg challenge at
all, but I think that would be the sort of situation which would
be too unclear to meet the standards of the Convention.
663. In your personal view, should section 13
of the Defamation Act be repealed?
A. Well, it was obviously a rather ad hoc measure.
We have no experience of it at all. I do not know how it has been
found, whether it has been found to work. I would very much doubt
that it is the final solution to that particular problem.
664. I have just one question of guidance which
would be helpful. In one of the notes here, the wording of Article
25 of the Scottish Claim of Rights is different from Article IX
of the Bill of Rights, et cetera. The origin of the Bill of Rights
is 100 years of conflict between King and Parliament over rights
of taxation and one King was beheaded and so on. The Scottish
Claim of Rights, what is the origin of that?
A. It is the same, and that is what I said.
It is the same date, more or less, within a year and it comes
from exactly the same constitutional struggle, I think, so it
comes in just about William and Mary. So it is exactly the same
historical setting and that is why I said that I thought that
a Scottish court interpreting it would be, broadly speaking, interpreting
it against the same background, that it represented the sort of
triumph of parliamentary government rather than royal government,
so to speak, and, therefore, it would be interpreted in that way.
665. What is the Claim of Right if it is not
A. It is, strictly speaking, legislation. It
is the same as the Bill of Rights.
666. It is the same thing?
A. Yes, it is the same thing. The Claim of Right
is just what it happens to be called, but it is a piece of legislation.
Chairman: Lord President, thank you very much
for your written answers, for coming this morning and for giving
us a great deal of information, some very valuable views and some
very thought-provoking material. We are very grateful indeed.
Lord Merlyn-Rees: It has put us back ten weeks!