Examination of Witness (Questions 760
TUESDAY 31 MARCH 1998
760. Sometimes we have to write things down,
because otherwise no one is sure sufficiently what the boundary
is. For example, we have already a problem in relation to contracts
with corporate officers and other representatives of the two Houses.
There may be a practical problem in Westminster on our hands at
the moment. The documentary material which might need properly
to be produced to deal with litigation arisingfor example,
to take the narrowest example, in relation to a contract of workscould
include Minutes of Committees, which are, plainly, within Article
761. So that in any satisfactory arrangement
for the future regarding litigation on such matters it looks as
though, inevitably, we are going to have to put something in writing,
and it will involve an encroachmentif that is the right
wordinto Article IX as it is at the moment. Have you any
comment on that?
A. I have thought about this quite a bit. If
one goes back to the mischief, I think that in a modern approach
one would regard it not so much as repeating what was said in
the House or in committees (unless they are sitting in cameraif
that occurs), it is questioning; it is the courts getting into
the situation of having to pronounce upon something on which the
House might have to pronounce, and the two decisions being in
conflict. That was the point in the case where Mr Justice May
stated, in the case of Neil Hamilton, that was the risk. I think
some of the commentaries have failed to express this or to follow
it through as clearly as they might. They have said "What
is the difficulty about reporting something said in committee
or in the House?" The difficulty is not the reporting, it
is setting one possible decision against the other; questioning
the decision. If one follows that through, I think that the Houses
might feel that repeating something that is said in committee
is not something that harms the privileges of either House, looked
at properly. It is questioning that could. Merely getting the
evidence, as you have said, for litigation about corporate services
(I have not been able to think of situations in which the House's
decisions would be questioned, it would merely be the material
obtained), if the Houses regarded it that way, then I think they
need not feel there is a breach of privilege that should concern
them. I do not know if that is an approach that may be helpful.
762. Do you think there might be circumstances
where, of course, what is produced is something that is said and
then decided in committee, and the reasoning behind that decision
is being challenged in the litigation? What is being said is "Yes,
you decided you would not undertake certain work, it was not necessary.
Now I want to probe with you what you considered when you reached
A. That undoubtedly would be questioning.
763. That would be questioning. That type of
situation, I suppose, could arise in litigation in respect of
personal injuries sustained in the House as a result of decisions
made by committees.
A. Yes. If a committee concerned with safety
decided not to put up a handrail in a certain place because it
was said that nobody needed it and it was rather ugly, and then
the courts were asked to say that decision was wrong, it was unsafe,
I could see it arising there. I think it is a matter for the Houses
to decide whether they are prepared to say, in the greater public
interest, that that part of their privilege can be waived. It
is very much a matter for them.
764. One of the matters that this Committee
is going to have to consider is whether we can devise a satisfactory
formula for indicating in respect of certain types of case that
the litigation requirements must override the established Article
IX position. Contract is one obvious example, but when one thinks
about it there are others, too; there are not only contracts of
works, there are contracts of employment and there may be cases
where persons are on the premises and injuredand personal
injuries where there is no contract. One can think of all sorts
of examples where that applies and where it would seem quite extraordinary
if today a claim in proceedings could be thwarted by a plea of
privilege and documents not produced. Your suggestion, and I am
not saying this at all critically, is the performance of a legislative
function. In saying that I do not imagine for a moment you were
intending to leave out the work of committees or the like.
765. So one has to try and find some formula
which is perhaps rather wider than that but sufficiently precise
to have meaning. I do not have one in mind. I do not know whether,
on further reflection, you have a suggestion.
A. No. My further reflection really leads to
the conclusion that I did not get it right in my answer to that
question. I have looked at it further and I feel it would be rather
inadequate for the reasons, my Lord, that you have explained.
I do not profess to have an answer. I can just see the problem.
766. One of the matters we are having to consider
is what report to make to the two Houses in respect of the Government's
proposals to introduce legislation in relation to corruption and
bribery. We have already touched upon that. As I understand it
your own preferred solution, very loosely,and I am, please,
not trying to put words in your mouthis that where criminal
legislation applies to the world at large it really is not very
satisfactory if Members of the two Houses are not themselves to
be subject to the usual investigatory and prosecution and judicial
processes. Is that a fair summary or how would you like yourself
to put it?
A. I do not see that any of the other possibilities
is any better. As a citizen I think I would have to say that I
think the public would not regard it as right if Members were
not subject to the ordinary criminal law. I can see obvious difficulties
but, looking at it from the public point of view, I do not say
that any of the compromises suggested would be satisfactory or
workable, so I come back to that.
767. Could you safely leave it to Parliament,
as the previous witnesses were discussing, to decide whether to
waive its own privilege under Article IX?
A. In respect of prosecutions?
768. In respect of prosecutions or, indeed,
in respect of the contractual cases or the personal injury cases.
A. The proposal which was made for an amendment
to section 13 of the Defamation Act was that the House should
have the decision of waiving privilege which ended up as a personal
waiver by a Member. That is possibly one way of dealing with it.
Again one has the difficulty of perceptions, I think, the risk
that the public would regard that as the House having the power
to protect its own. It may be quite unjust, and I am sure that
in most cases it would be entirely unjust, but these perceptions
do exist and I feel that if you are to avoid them there is not
much choice but to say that the criminal law should take its course
in criminal prosecutions.
769. Section 13 of the Defamation Act is not
a very happy precedent in some ways, is it?
A. I respectfully agree.
770. Does it go beyond perceptions, Lord Chief
Justice, in that if the House is to have a power to waive that
is a way forward, then it would mean that there is a debate in
the House about whether or not a pending charge or a pending allegation
should be taken further or not? The Member would no doubt wish
to speak. Maybe others would. Is that a satisfactory prelude to
then going on, if the House waived its privilege, and having a
A. I can see very unsatisfactory features about
that. I could also see if they decided not to that there would
be considerable criticism, as indeed I think the Court of Human
Rights in a rather different context said when a member of a legislature,
not the Houses of Parliament, voted in matters concerning his
own liability, that it was not a proper compliance with Article
6 of the Convention.
771. The Maltese case?
A. Yes, the Maltese case.
772. I am very grateful for your assistance.
I have no further questions. I do not know whether other members
of the Committee wish to pursue any further matters, but is there
anything, Lord Chief Justice, that we have not touched upon this
morning that you had it in mind you wished to amplify?
A. As my counterpart said, sir, no.
Chairman: We are most grateful to you for coming
this morning and for sending us your written comments in advance.