Examination of Witness (Questions 733
TUESDAY 31 MARCH 1998
733. Lord Chief Justice, may I welcome you and
say how grateful the Committee is to you, first, for the full
and careful views you have already expressed in writing and, secondly,
for coming here today to help the Committee further on any points
arising. Before I put questions, is there anything you would like
to say to the Committee?
(Sir Robert Carswell) Thank you, my Lord
Chairman. If I may just say two very brief things: one, I think
I have refined the views that I expressed to you in writing a
little, in considering the matter, especially in the light of
the response from the Committee to my memorandum, and I can bring
that out during questioning. Secondly, I have tried to look at
this broadly as a lawyer and from the point of view of the courts.
I do not profess to have the detailed knowledge that some of the
witnesses before the Committee have, and I hope the Committee
will forgive my deficiencies.
734. May we start at the basic fundamentals
so far as Northern Ireland is concerned, because we are, at the
start, particularly interested in your views on the Northern Ireland
angle. In your letter to me of 23 March you stated quite clearly
that Article IX of the Bill of Rights applies in Northern Ireland
and the courts in Northern Ireland recognise that each House of
Parliament has exclusive cognisance of its internal affairs. Some
have questioned whether the position is quite as clear as that,
and I wonder whether you can, in a sentence or two, expand on
your reasoning. Is this a matter of legislation, or common law?
What is, in short, the basis on which you reach that conclusion?
A. I am aware of the dispute that has taken
place in some learned publications. I think, to some extent, it
is academic. It certainly had its origin in an academic dissertation
by Dr Donaldson.
Looking at the Act itself, or the Bill of Rights, I would not
have much doubt that it was intended to apply to Ireland, because
the questions of succession certainly did, and I would find it
rather extraordinary if the other matters were not intended to
apply. Our courts have held, quite recently, in the matter of
Martin McGuinness, that the Bill of Rights, Article IX, did apply
to it, and there is that much authority in favour. The reason
why I say it is academic is that if there were any doubt as to
whether the Bill of Rights, Article IX, did apply in Northern
Ireland, I think it is not a serious one in practice. There is
also the common law privilege which is referred to in Halsbury,
and I cannot suppose, for a moment, that the courts would dispute
the privilege of Parliament. I think it is so unlikely that one
can dismiss it as, really, an unfounded possibility.
735. So as a matter of common law, if not as
a matter of statutory provision, Northern Ireland courts would
apply similar considerations?
A. I am quite confident of that, my Lord Chairman.
736. Section 18 of the Government of Ireland
Act, 1920, as you know, provided for the Northern Ireland Parliament
to have the same privileges as the Parliament at Westminster.
Are you aware of any case law that applied to the Northern Ireland
Parliament that would be relevant to our enquiry in relation to
A. My enquiries show that litigation was threatened
a couple of timesmost notably towards the end of the Stormont
regime when Dr Paisley was concerned in some dispute, but none
of them reached the courts. That is the best information I have
been able to obtain. So there are no decisions.
737. Just before we leave the particular position
of Northern Ireland, is there anything in relation to your Northern
Ireland experience that you think we should particularly have
A. I think it will arise again if it is desired
to set up a Northern Ireland Assembly, but that is, possibly,
a matter that this Committee may not wish to concern itself with.
When the Stormont Parliament was in existence it had, under the
Government of Ireland Act 1920, the same privileges for the House
of Commons as were held in Parliament here, and the same was enacted
in respect of the Assembly in the 1970s. Whether it would be proposed
to do the same again, I do not know, but if it were then, it would
738. Moving on to the basic question of the
relationship of Parliament and the courts, I have noticed that
you caution whether it would be wise to upset what you have described
as the "cautious equilibrium" between the courts and
Parliament. Can we just, for one moment, pause and see what that
equilibrium is at present? In England the position would be that
if, for example, a question of the scope of parliamentary privilege
arose in ordinary civil litigationlet us say, a defamation
action between a non-member and a Member, and the Member was seeking
to say "What I said was said on privileged occasion covered
by parliamentary privilege" and that was the matter of disputethe
ordinary civil courts in England would decide whether parliamentary
privilege did or did not apply in that particular circumstance
(for example, a letter to a constituent). I would imagine that
if the same point arose in Northern Ireland, the Northern Ireland
courts would be likely to take the same approach. Would that be
a fair assumption?
A. They would, I am quite certain. Apart from
the fact that they are bound by decisions of the House of Lords,
it has been their practice to follow the decisions of the Court
of Appeal in England. I have no doubt that they would approach
it in the same way. I used the phrase "cautious equilibrium"
because I have the impression that the courts are very anxious
to avoid deciding such questions where they possibly can, and
I think it should be said that Parliament, on its side, is anxious
not to get into any conflict. One can, of course, see areas where
there is room for conflict, but on practically every occasion
in recent years the courts, when they come to the point, have
said "We do not need to decide this and we are specifically
not going to do so". That was in the In Re Parliamentary
Privilege Act 1770 case, if I remember correctly. I think
my instinct tends towards the old adage "If it ain't broke,
don't fix it".
739. It is with that sort of consideration in
mind, that if the issue had to be decided in the way I have just
exemplifiedan ordinary civil court decidingthat
I have to say instinctively I have some reservations about the
desirability of introducing a new procedureappellate or
otherwiseof a body specially arranged for the purpose,
whether it is the Judicial Committee, Privy Council, perhaps with
lay members, or not. Can you comment on that? Do you think this
is something that would be desirable?
A. I have thought quite a bit about this. If
you have an appellate or reviewing body it has got to have its
terms defined, and you immediately get into definitions and construction
of definitions. Naturally, the first thing a lawyer does when
he has a definition is to pull at it to see if things come within
it and if they might be taken outside, and so on. Then you get
into potential conflict. If you codify, naturally, that potential
is increased. I think that has always been the strongest argument
against codification. If there is an appellate body, or if there
is a definition of proceedings in Parliament in any legislation,
then it will have to be picked at. Speaking for myself and our
own courts, we would not welcome having to do it. If it is there
in legislation, of course, we must.
1 AG Donaldson, The Application in Ireland of English
and British Legislation made before 1801 (Doctoral thesis,
Queen's University of Belfast, 1952). Back