Examination of Witness (Questions 740
TUESDAY 31 MARCH 1998
740. One of the matters we are, obviously, concerned
with on this Committee is to look to see to what extent, if at
all, any of the existing privileges which are not in doubt really
are appropriate for the beginning of the 21st centuryfor
example, subpoenas. At the moment, a Member, in effect, has the
option whether or not to respond to a subpoena. Do you think that
is acceptable today?
A. That is the one on which I think I would
have the firmest view, because I think that, in principle, it
is rather difficult to defend. I have no doubt whatsoever in practice
that if it were represented to any court in which I have been
concerned that a Member had to be in Westminster for important
parliamentary businesswhether or not a divisionhe
would be accommodated. However, it is very difficult in principle
to set a complete immunity from having to attend. One can think
of possibilities of abusethough I am quite unaware of any
occasion on which it has even been suggested. I am trying to think
if I have had a Member of Parliament, or Peer, giving evidence
in any case. I can think of one, but he was a defendant in a motor
accident claim. Certainly there was no question raised then.
741. One of the established rules for demarcating
the jurisdiction of Parliament, on the one hand, and the courts,
on the other, concerns Parliament's abstention on talking about
matters which are currently before the courtsthe sub-judice
resolutions and so forth. There are, at the moment, no specific
comparable principles or rules in relation to matters which are
the subject of injunctions which the courts have granted and where
proceedings have otherwise finished. There has been some discussion
as to whether this is wholly satisfactory, especially bearing
in mind, of course, that nowadays once something is said in the
Chamber it is open to being instantly televised nationwide. Do
you think there should be similar principles now crystallised
and adopted by the Houses in relation to matters which are the
subject of injunctions by the courts?
A. I am sure the Committee will be thinking
very carefully about that, but I would, with respect, think that
the Houses of Parliament ought to give very careful thought to
this, because of the examples (and the Committee will be aware
of them already) where if a judge is giving an injunction saying
that something is not to be published he is then functus officio
and, strictly, as I understand it, the parliamentary sub-judice
rules do not apply. That is an area which the Houses might think
it right should be extended to cover that. These difficult situations,
such as where a court has said that a minor is not to be namedand
I think Members will all be aware of a recent event where that
occurredif a Member were to name such a minor then the
point of the instruction by the judge would be lost. I think all
I can say is that I would recommend, respectfully, that the Houses
of Parliament take a careful look at that and consider an extension
of the principle of self-restraint.
742. At present the two Houses exercise, as
you know, complete control over their own internal affairs. That
goes so far as this: that they decide if a Member is in contempt
and, indeed, they decide if a non-member is in contempt. There
is no form of appeal to any outside body against those decisions
or in respect of any sanctions that the House may impose in respect
of its decision. Do you think that is satisfactory today?
A. I read the evidence given to the Committee
on this topic with considerable interest, particularly from the
Clerks of the Houses and from Professor Bradley. I think the former
Clerk to the House of Commons expressed it very clearly when he
said that you can look at all the possible ways of dealing with
itand I think he got up to six by the end of his evidenceand
none of them is perfect. Looking at it from the point of view
of a lawyer and of public reaction, I think I must agree with
those who say that the public would not think it right that persons
who are non-members should be subject to contempt proceedings
in the House against which they have no appeal. It might be that
people would regard it as somewhat different for Members: they
have joined the club, they have to stick by the rules. However,
I am aware of the difficulties which the Houses would have of
investigating and constituting themselves into hearing tribunals.
It cannot be an easy matter, and it may be that the Houses would
feel that they are not ideally suited for it. As the Committee
is very well aware, the limits of sanctions in respect of Members
is a difficult matter. If a person has ceased to be a Member,
how useful could the sanctions be against that person? I do not
think that I can add anything to the evidence that has already
been put before the Committee, except to say that if it remains
with the Houses of Parliament I think, if I may say so, that the
public would regard that as less than satisfactory in modern conditions,
and that one, therefore, has to look, I believe, at a system of
appeal which would have more of a reviewing function than a strictly
appellate function. The model which has been suggested of the
Privy Council reviewing the decisions of the General Medical Council
might be an appropriate one. Whatever is done, it does, obviously,
mean that the jurisdiction has to be construed, and one gets back
to this problem which you mentioned to me earlier: somebody has
to decide where the jurisdiction begins and ends. I think that
is the one which I myself would favour most.
Lord Archer of Sandwell
743. Lord Chief Justice, I have the impression
from your reply to my Lord Chairman that you would be troubled
if the courts were in a position of adjudicating upon parliamentary
privilege and what Parliament had done about it. The Judicial
Committee of the Privy Council is, of course, for all real purposes,
a court, is it not? Do I take it from that that you would be happier
if rather than conferring this jurisdictionwhatever it
should beon the Judicial Committee it would be conferred
on some specially appointed body which might comprise, for example,
members of the Judicial Committee plus other Members of Parliament,
or something of that kind?
A. That is a possible way of doing it. I would
feel, myself, that the body must have members with parliamentary
experience. In the old days it always had quite a few more than
it does now, but I would say that is essential. Whether it is
done by simply ensuring that the membership of the Judicial Committee
for each case has Members who have servedpreferably in
the House of Commons, I would suggestor whether it is done
by bringing in other Members as constituent members, I have no
strong views, but I entirely agree that it is an important matter.
744. Are there not two separate arguments here?
One, the argument that it would be helpful if it had people with
parliamentary experience (which I understand) and the other (which
seems to be a rather separate argument) that, in any event, it
would be unfortunate if the courts found themselves passing judgment,
and the Judicial Committee as normally constituted is really a
A. It is, but, if I can put it this way, it
is a rarefied one. I would not like to see the task entrusted
to the regular courts of law who are dealing with all sorts of
other things and whose expertise is limited, necessarily, in the
field of privilege. They can learn it for the purpose, but I think
that a body which dealt with it more regularly and which has had
long experience (most members of the Judicial Committee have long
judicial experience)these factors all combine, I think,
to make it better that it should be removed from the ordinary
courts and entrusted to a deciding judicial body of that kind,
or something of that nature. That is why I supported the suggestion.
I think it was made by Lord Chief Justice Bingham in the first
instance and I thought it sounded sensible.
745. Lord Chief Justice, if one accepts that
in this day and age the House of Commons itself is rather ill-equipped
to punish members of the public for contempt, unless there is
some sort of right of appeal, perhaps one shouldbefore
one starts worrying about what should be the composition of the
body which is going to hear the appealslook at the circumstances
in which the House of Commons might be required to deal with people
for offences. Should we not, in fact, start by trying to cut down
the situations in which the House of Commons would be asking itself
to carry out an impossible task rather than bothering too much
about what should be the right of appeal for a person who has
been subject to the treatment of the House of Commons carrying
out this impossible task? Does it not take you straight away to
questions like whether the House of Commons or the courts should
try a person for offering a bribe to a Member of Parliament? If
you can cut a lot of this stuff out and cut down the number of
occasions on which the House of Commons is trying to mete out
justice to somebody other than one of its own Members, then the
need for an appellate body gets less and less, does it not?
A. It is difficult to see. To take your own
example, Lord Waddington, if somebody is trying to bribe a Member
or influence legislation in an improper manner, in many ways the
House itself would, I am quite sure, feel that it ought to have
a considerable say in how the matter is approached. I would understand
that entirely. When it comes to matters of abuse and things like
that, it may be that the House would feel that it is better sent
away altogether to an outside body. When it comes in, there are
the other problems about what happens if it relates to a Member
himself if a Member is accused of corrupt practices. For that
to be adjudicated upon by the House, I think, becomes a sensitive
matter in the public mind. The public mind, if I understand the
general feeling correctly, is that as far as non-members are concerned
it is the lack of appeal that is the problem; as far as Members
are concerned, they might feel some worry that the House is the
judge of its own people and that it would be better done by a
body which could not be accused of protecting its own. Whether
that can be approached in the way that you suggest, my Lord, I
am not quite sure. I do not see the way forward. You may have
some thoughts on that.
746. Can I ask you to try and approach it in
a different way? If you start from the proposition that, really,
the House of Commons is singularly ill-equipped to carry out an
investigation into the misconduct of a member of the publicie,
if you start by having a thoroughly bad body carrying out a trial
of an individualit hardly puts the matter right by giving
the individual a right of appeal. The whole procedure is flawed
from the beginning, and you do not really make matters very much
better by having a poor tribunal to start with and hoping it is
not going to do too much injustice because there is going to be
an appeal. Logic tells me that you should not have a poor tribunal
punishing people in the first place.
A. I think this is mirrored in the ordinary
law courts' treatment of contempt. In the old days if somebody
committed a contempt in the face of the Court he was hauled down
to the cells straight away; the judge would deal with him on the
spot and he would be immediately punished. That does not happen
now, as I am sure the Committee knows. The matter is adjourned,
he gets Legal Aid, and it may be heard by another judge. The whole
thing is much more formalised. It may be that that would give
a model to the House of Commons or House of Lords in cases of
747. At least it is a legally qualified person
who is punishing for contempt in the first place. Here you are
thinking of providing a right of appeal because a perfectly incompetent
body is carrying out the initial punishment.
A. Maybe the logic of what I am saying leads
to the conclusion that the House might determine prima facie
there is a contempt, as a judge does if somebody slanders him
in court, and then refers it to an appropriate body (and I have
not thought through as to what it might be) to determine the existence
of the contempt. That might be a way forward.
748. Do you draw a distinction between Parliament
dealing with a Member of Parliament and dealing with a non-member?
A. What Lord Waddington said about the unsuitability
of the procedure would apply in either case. I think as far as
public reaction is concerned, it might feel that if a Member is
disciplined by his own body, that is his own look-out. I respectfully
agree that the difficulty in the procedure of adjudication may
make it desirable to adjudicate on both outside the House itself
in some fashion.
749. Lord Chief Justice, in your very helpful
letter you come down very firmly that if there is a case of bribery
and corruption it should be dealt with by the criminal courts.
A discussion we have had in the past is "Where does the investigation
begin?" Some would say it is best referred to the courts
by the House, others would say that it ought to be the Crown Prosecution
Serviceor whateverright from day one dealing with
it, with the House completely washing its hands so that we do
not have the problem of conflict between the House, the Member
and the courts. Where do you stand on where it should start?
A. I have not really given any detailed thought
to that, but it might be that the suggestion I made in response
to Lord Waddington is helpfulthat if there is a declaration
in some way, perhaps by the Committee on Standards and Privileges
that a person, be it Member or non-member, is prima facie
in contempt, it is then passed straight over for investigation.
I would have thought that these things, in the first place, are
fairly clear, subject to the allegation being proved. If an allegation
is made against a Member that he has committed some corrupt practice
in the conduct of his affairs, if it were true it would probably
be clear enough that that was a breach of privilegepossibly
a bad one. The question is whether it is true. If one had a machinery
whereby the House could say "This is prima facie a
breach of privilege, we do not know if it is true or not"
and pass it over for investigation and trial, that might be a
way forward. I have to confess, I have not thought about this
in detail. I cannot help you more than that.
750. It is just the argument that surely the
Crown Prosecution Service, or whatever, have perhaps even more
experience of coaxing out mischievous claims and accusations than
we have in this place, or two places.
A. The frivolous is always hard to deal with,
whether it is in court, Parliament or anywhere else. Somebody
has, at some stage, when frivolous claims or frivolous attempts
to prosecute are brought in the courts, to take responsibility
for filtering them out. There is no one model, I think, of who
should do it, except to say that the courts have a fair bit of
experience in that, and if that is something that we can do to
assist the Houses, of course we shall. I cannot take it further
than that, I am afraid. It is a difficult one.
Lord Archer of Sandwell
751. What has been suggested in previous hearings,
Lord Chief Justice, is that questions such as whether there is
sufficient evidence to raise a prima facie case and whether
there may be evidential problems in the course of the hearing
are matters which can be dealt with by the Crown Prosecution Service.
What may require an additional safeguard in the case of Members
of Parliament is that they are peculiarly susceptible to frivolous
allegations. That has been the suggestion. I think the suggestion
was that some kind of screening process in the Houses themselves
might be applied simply to ask that question. Do you have any
comments on that?
A. One would have to be careful, if such a procedure
were adopted, that it would not appear to be the House forming
a protective screen around its own. I see, in principle, a good
deal to be said for that. I think the House is probably very well
equippedand Members from their own experience will be well-equippedto
see what are frivolous cases and to knock them out straight away.
All I can say is that they would have to set it up in a way that
would be open and acceptable and regarded by the public as being
a fair way of doing it. If it were presented and run in a suitable
way, my own feeling is that the public would recognise that Members
have to be protected against these matters and that nobody can
do it more usefully or effectively. It would take some care, I
752. To satisfy public concern on that, do you
think there would need to be some non-member input on the screening
body? However carefully one sets it out, if the only persons who
decide are Members, is that satisfactory? Of course, increasingly,
it is the case today that on all professional complaints bodies
there is an outsider.
A. Is there a case for getting the assistance
of the Attorney General there, rather than bringing in an outsider?
I can see the sensitivities of both Houses to that. The Attorney
General has this independent role which might be of assistance
in those circumstances.
753. Do you agree that whoever makes the decision
here, it would have to be referred to the House and could be subject
to challenge or debate, in which case it is back into the public
arena and one has already, in a sense, started the proceedings.
Then you have the problem that if it is finally decided that there
may be a case to answer, some damage has already been done to
the prospects of a fair trial.
A. The Committee, like all committees, would
not have made a final decision; it would report to the House.
Forgive my ignorance, are there committees which do have the final
say in any matters?
754. Not in theory, I am told.
A. I think one would just have to accept that
755. Can I revert to the distinction you were
drawing between non-members and Members and how, as far as Members
are concerned, there may be a public reaction that "Well,
they have joined the club, they must take the rules as they are".
Today, increasingly, members of professions, or any other organisations,
do have the ability to go to the courts to pray-in-aid at least
the supervisory jurisdiction of the courts if they wish to say,
for example, that what has been done is outside the powers of
the professional organisation (or union, or whatever it is) or
that what has happened cannot, in law, constitute a breach, etc.
Is it satisfactory that a Member could be suspended, possibly
fined (if there were such a power) or even expelled without any
A. I think that is very much a matter of policy,
and public reaction. As a lawyer, I would have to say that I must
agree that it is not satisfactory, but if the Houses of Parliament
feel that their own privileges would be unacceptably eroded by
allowing it, that is a matter for public decision and debate in
Parliament. There are various models. We mentioned professional
appeals. I had, on a number of occasions, to sit on appeals from
the Solicitors' Disciplinary Tribunal, where the court has the
power to determine whether the matter falls within the parameters
of the complaint alleged, whether it is an offence, and it can
go further and determine whether the evidence was sufficient (and
it will not go further than that) or whether the penalty was too
severe. These are all possible ways in which a reviewing body
might look at it. It would be a matter of decision and policy
whether it should be limited to some of them or whether it should
incorporate all of those reviewing powers. I do not hold a strong
view on that, because I think it is not, strictly, a legal matter,
it is a policy matter.
756. At the moment, as we have just mentioned,
the final decision on whether there has been a contempt by a Member
or a non-member is a decision of the House. There is no clear
written statement that one can find on what does or does not constitute
a contempt. Do you think that in either of those respects the
present system could withstand a challenge under Article 6 of
the European Convention on Human Rights?
A. I would have my doubts, my Lord. I think
there could be a fairly strenuous attack, and I have no doubt
that it is one of the things that may come up when the Human Rights
Bill becomes law.
757. Lord Chief Justice, in that context I am
troubled by the way in which you very properly and very helpfully
spell out the Browne-Wilkinson judgment in Prebble. In
your emphasis you say that the privileges relate to the performance
of Parliament's legislative functions and established privileges.
There may be a slight difference of interpretation if you put
a comma in where I paused, after "functions", but otherwise
that is an incredibly vague statement. In the explanation in your
letter you go on to say that anything that is unconnected with
the core function of legislation (I am paraphrasing) may fall
outside the privileges to which we are referring. That is a very
narrow definition. For example, a question to a Minister which
did not directly relate to legislation but related to his administrative
functions might fall outside that. So, if I am reading this right
(and I am no lawyer, as may be apparent) Browne-Wilkinson, as
amplified by your comment here, implies a very narrow definition
of the functions of Parliamentie, to what privilege relatesunless
we take in "and established privileges", in which case
it is incredibly wide.
A. The context in which I was dealing with that
was the question of performance of contracts. I think one would
have to go into it a lot more carefully if it comes to the question
of privilege in freedom of speech, or contempt, because I am well
aware that a Member of Parliament's functions extend a long way
outside his or her work in the Chamber. There is this very difficult
question of whether, if a Member writes to a Minister about a
matter concerned with the affairs of Parliament, he should have
absolute privilege. There is quite a reasonable case for saying
that he should and that he should not be attacked, and should
be able to knock out an attack immediately, without having to
go to court and all the expense and hassle of that. When you get
out a little further from that, then the case is less strong,
but I am not purporting to sayand I would not like to be
thought to be sayingthat the immunities, privileges, should
be restricted purely to the work within the walls. What I was
trying to sayand in looking at it again I do not think
I put it terribly clearlywas that in relation to contracts
there is a distinction there, but I would not put it beyond that.
I hope that is of assistance to you.
758. That is, very much. Can I go back to answer
number 5 in your letter, where, again, I am somewhat troubled
by the interpretation in the context of what you have just been
saying. Yes, we are all clear, I think, that a statement made
in the House is protected by absolute privilege and that, as you
have just said, communications outside the House will be protected
by qualified privilege. What I am unclear about is at what stage
a statement made to a constituent or to a body of constituents
can be differentiated from a statement via the media? You are
implying here that there is no protection of privilege whatsoever
to a statement made in the media. We have already, in this Committee,
looked at the circumstances where a statement is made in the Housein
the Chamber or in Committeewhich is broadcast verbatim,
the Member walks across the road to a television studio and makes
the same statement and we have identified that he makes that same
statement without the protection of absolute privilege. However,
I had understood that he still would have qualified privilege.
Similarly, if he writes a letter to a Minister on behalf of a
constituent and the Minister replies, I understood that that too,
if that was released through the media to a wider number of constituents
and the general public, would still have qualified privilege.
Am I wrong on that?
A. We are getting into difficult territory.
If a Member of Parliament has made a statement and then goes out
and is interviewed on Panorama heon the classic legal theoryis
no longer protected by qualified privilege. However, if he has
written to his constituent who has raised a matter, it is performance
of his duty and qualified privilege applies. That is the classic
theory. It gets grey round the edges. I have to agree that it
is not an easy one. I have not ever had to decide the point, and
I am quite pleased I do not have to.
759. The point I am making is related to your
previous answer that these are extremely complicated issues, some
of which require both careful legal analysis and some also requireas
Lord Waddington was saying earliervery careful parliamentary
experience being applied. Is that a fair comment?
A. Yes, it is, and one goes back to the point
I made to the Chairman earlier that once you write it down people
are going to look for the cracks.