Examination of Witness (Questions 800
TUESDAY 7 APRIL 1998
800. But you are not seriously saying that Parliament
is on all fours with the Jockey Club or a trade union?
A. No, of course not. I am saying that disciplinary
matters are a category of things which the courts will, in many
cases, as with universities too, think should be left to universities.
801. But the courts themselves derive their
very authority from the Queen in Parliament.
A. Of course. That is true, but we are not talking
about Parliament exercising a disciplinary authority; we are talking
about either House of Parliament. That is why the courts have
said in the past that neither House can on its own change the
law. Although one cannot easily imagine such cases, when one thinks
of the Bradlaugh case, for example, the issue there was
that the House was misconstruing, allegedly, a statute which entitled
Bradlaugh to take the oath. If there are statutes which apply
inside the House or if there are legislative conditions which
the House has ignored, then in the last resort the courts presumably
will look at them. They will allow the House to interpret the
statute within the laws of Parliament unless some egregious error
is in their view made. I would have thought that would be the
principle. Of course one cannot think of easy cases because one
has to think of the House behaving in an absurd manner and denying
somebody a clear statutory right.
802. I am not sure it is an absurd manner. What
if a Committee of the House of Commons summonses a Member before
it and says, "A serious allegation has been made about your
behaviour and we are now determined to get to the bottom of what
actually happened"? Without affording the fellow the right
to be represented by anybody, they carry out a sort of inquisition
and, at the end, issue a statement saying, "Bloggs MP behaved
appallingly". That has actually happened. In those circumstances
surely there is a clear breach of Article 6 of the European Convention
of Human rights. Although the Human Rights Bill says that Parliament
is not a public authority, presumably an MP who had been treated
in that way could go direct to Strasbourg for a remedy, could
he not, whatever we say in this House?
A. That was one of the sorts of cases I had
in mind when I said that the non-reviewability of the internal
proceedings might be more complex in constitutional cases where
somebody invoked the European Convention. One can think of other
things. Committees demanding names of Freemasons or something
might be thought conceivably by somebody subjected to that demand
to be something that went against his rights under the human rights
legislation or the Convention. Now we have a Bill of Rights, there
might be other procedural matters involving resolutions of the
House. Someone now might say under the new Human Rights Bill that
a remedial resolution introduced by a minister into the House
did not in fact do the job that the court, in making a declaration
of incompatibility, had said that it should do and wanted to contest
the resolution. There are a number of constitutional issues that
you can think of as arising but these are wider issues than the
disciplinary point. I think on the disciplinary point the courts
would not want to get into it and, except in cases of the kind
you have mentioned, would not see any constitutional ground for
entering into it.
803. I am not for one moment saying that I have
come to the view that, when a Committee of the House exercises
some sort of disciplinary role or when it punishes somebody for
contempt, there must be an appeal to a higher court, but are we
not now in such deep water that we should seriously consider how
we can cut down rather than increase the number of cases when
Parliament exercises that sort of authority, either over Members
or over individuals, because it is getting more and more likely
that, if the House of Commons does start getting a little vigorous
in its punishment of people, for contempt for instance, then we
are going to finish up with cases finding their way to Strasbourg.
Is that right?
A. Yes. I draw a distinction between control
of its own Members and enforcing punishment for contempt over
non-Members. It is in relation to the second that I think there
is a case for transfer and using the judiciary more, but over
the Houses' own Members I think that the House ought to be the
primary enforcer of that discipline. When people become Members,
they know what the conditions are and the House is I think entitled
to enforce its own discipline, subject to judicial review in the
extreme case, but I would not want routine transfer of disciplinary
cases to any court outside of Parliament.
Sir Patrick Cormack
804. Could I ask a little bit more along the
lines of a question I put to you a minute or two ago, Dr Marshall?
I understood you to be saying that you would look for the same
supervisory jurisdiction in the courts that exists in the case
of the professionssay, the General Medical Council. If
that is not right, please correct me but, if it is right, that
is really denying any point of principle that separates Parliament
from that field of judicial supervision. Do you think that is
right? I do not quite understand what you were saying a moment
or two ago, that you would not wish to see any right of regular
transfer, as you put it, from the House of Commons in a disciplinary
role to the courts. I am not quite clear where you stand on this,
but I am sure it is my fault.
A. I come to this because 30 years ago I helped
to put in some evidence to an earlier select committee on parliamentary
privilege saying that the whole contempt jurisdiction of the House
should be transferred in cases where the House wants to punish
someone for a contempt against the House. We took the view and
tried to argue that that should be transferred to the courts routinely,
along the lines of the precedent for disputed election petitions
in 1868. I now think that that is too general. First of all, it
should be an opportunity which the House had. If I had a statute
to transfer jurisdiction to the courts, I would make it one which
the House could utilise in cases where it thought it was useful
to have a judicial arbitration against outsiders, and there could
be such cases. I would expect that that would work by the House
asking the Attorney General to refer a contempt case to a court
as happens in the United States in the federal courts. In fact,
it happens almost everywhere other than here because the House
is unique in taking the view that it does about contempt. I think
that over its own Members one would not want to see that happening.
One would want to have the House exercising its powers over its
own Members in the first instance. If they then wish to say, "There
is a constitutional or legal point which involves judicial review
and I want to invoke that", whether under the Convention
or the ordinary law, that would have to happen, but I simply want
to distinguish between enforcing powers over the House's own Members
and enforcing contempt powers over outsiders.
805. I would not wish to begin to challenge
your very properly renowned academic expertise and knowledge of
these things, but do you really think that change along these
lines is actually necessary? Do you really think it is going to
make the situation better?
A. I do not know. It is one of these points
that I mentioned at the beginning. I think that there are priorities
for consideration of privilege and I am quite clear that this
is not one of the major priorities. If you start thinking about
exclusive cognisance and the powers of the House, it is a matter
of principle which is worth consideration, but I take the view,
though I think it is justifiable in principle, that I would not
be at all distressed if this Committee thought that there were
better things to do than legislate in this area. My answer is
yes, I think it is justifiable in principle but, in the second
place, it is not a priority.
806. There is not a great wrong that needs putting
A. It is quite different from 1967. In 1967,
a lot of people were worked up about the House's exercise of its
contempt powers over newspapers and all kinds of things, the Suez
cases and the John Junor case, dragging people to the bar of the
House. Since 1967, nothing of that kind has happened and no one
could say that the House has abused its contempt power, so there
is no urgent case for acting on a matter of principle to take
it away. I put this into the class of matters of principle which
academics like to think about but I would not urge the Committee
to legislate in this particular way.
807. Doctor Marshall, I should tell you that
this Committee has not come to a conclusion even that bribery
cases should be tried in the criminal courts. It has been suggested
by some Members of this Committee that that is just not a desirable
way to go forward. Surely, the arguments that you have advanced
are the very strongest arguments in favour of dealing with bribery
cases in the courts, because if indeed you were to try and punish
within Parliament somebody for offering a bribe to a Member, then
as sure as eggs are eggs you would be in trouble under the European
Convention if you did not give that person a right of appeal to
a properly constituted court. Is that not right?
A. Yes, I think that is a different matter.
I was confining my views to the House's enforcement of its contempt
powers against outsiders.
Lord Waddington: I appreciate that, but I am
jogging back now to what we had earlier said about bribery. The
arguments that you have advanced, whatever force they may have
in the area of contempt, are really conclusive arguments for leaving
it to the criminal courts rather than Parliament to deal with
cases of bribery of Members.
Sir Patrick Cormack: They may or they may not
808. Is that not right?
A. Yes. I think it is a matter of priority.
There is a tangle to be cleared up that the courts in this country,
in Australia and in New Zealand have made of the indirect consequences
of Article IX and there is a tangle about bribery. Those two things
I think are matters of practical concern that need to be cleared
up. The abolition of absolute privilege and the transfer of the
contempt jurisdiction to the courts are matters of principle which
I do not put on the same level of urgency. That is all I am saying.
Sir Patrick Cormack
809. There are certain specifics that need clarification?
810. You have given us food for thought when
we consider whether the position at the moment regarding the disciplining
of Members and the exercise of penal powers over non-Members is
satisfactory. It is a matter we will have to consider. If it is
not, what should be done about it? As I understand it, Dr Marshall,
you have more than once indicated that you would not regard the
transfer of jurisdiction, certainly in the latter of those casesI
am not sure about the formerin relation to judicial review
to the courts as your top priority. What are your top priorities,
as you see parliamentary privilege at the moment?
A. I think they are what I mentioned just at
this moment, namely clearing up the ambiguity. It is quite clear
that Article IX as it stands, massively respectable as it is as
a constitutional landmark, has become hopelessly unclear. I think
that is a priority. It is quite clear that the phrase "any
place out of Parliament", for example, cannot be given the
meaning that it obviously seems to have. It does not include the
newspapers; it does not seem to include tribunals of inquiry.
Nobody said at the time of the Scott Inquiry that there would
be an inquisition of Members and a questioning of what had gone
on in Parliament. There was some quite fierce questioning of ministers
and Members involved in parliamentary proceedings. Nobody thought
that was an infringement of the Bill of Rights, so the literal
wording of the Bill of Rights needs to be brought into some form
of clarity. The difference between its direct application to prevent
the penalising of Members for what they have said in the House
has to be distinguished from its indirect application where evidence
of proceedings is needed in cases that have nothing to do with
that purpose of protecting Members' speeches in the House. I think
those are the matters, clearing up that tangle about the direct
and indirect application of Article IX and having some clear understanding
of what the ambit and scope of parliamentary proceedings is, and
a consideration of whether parliamentary proceedings could not
be widened to take in more of the functions of Members, rather
than confining it simply to the business of the Houseas
happens in some other countries.
Sir Patrick Cormack
811. You deal really with the first point in
your very helpful memorandum, do you not, when you say, "Whatever
Article IX may have been intended to mean in 1689 ...", but
can you help me as to what your own opinion is as to what was
meant in 1689? The language we know, but do you think the authors
would have been surprised by the comprehensive grasp that subsequent
decisions have given to it? Do you think they may never have intended
it to be quite as comprehensive, even then, as it has subsequently
A. I think history suggests that it was enacted,
as you can see from the preamble of the 1689 Bill, because the
King had gone about prosecuting Members for their speeches. All
the argument that goes on in the United States about the purpose
of the Bill of Rights and the Speech and Debate clause under the
Constitution of the United States, which is modelled on it, suggests
that it was a protection for the legislature against the executive,
and against particularly criminal actions penalising them for
speeches. I think that was the primary intention. The implications
for all kinds of other actions that have arisen over the last
200 years I think were not contemplated at all. If you look at
discussion of this in the United States, you find a clear inclination
of constitutional lawyers in the United States to draw a distinction
between criminal proceedings by the executive on separation of
powers grounds, protecting the legislature against the executive,
and civil actions which they think raise the constitutional issues
of citizens' rights and should not be sealed off from the courts.
In history, you can get a clear inclination about the primary
intention. Of course, that is the interpretation that was given
to the Bill of Rights in the Australian case of Murphy
before Prebble and the Australian Parliamentary Proceedings
Act 1987. In Murphy, Mr Justice Hunt said that what the
Bill of Rights was intended to prevent was the making of proceedings
in Parliament the direct objective of criminal or civil proceedings.
It was not to prevent evidence of matters in Parliament being
given in other sorts of cases involving events outside Parliament.
That I think was a quite sensible interpretation of the Bill of
Rights, as was the exclusion in Pepper v Hart of the press
and so on from counting as places outside Parliament. In Australia,
that was rejected by the Federal Parliament and it was rejected
by the Judicial Committee of the Privy Council in Prebble.
I think my view is that those interpretations have gone against
the original intention and have also gone against a sensible 20th
century interpretation of the ambit of Article IX. Those are the
matters that raise practical issues needing urgent consideration.
812. Would this mean that, instead of what we
have at the present moment, if someone believes a Member, for
example, is taking a bribe or is corrupt, instead of the Member
writing to the Standards and Privileges Committee sitting at the
moment, they would write or give their information to the Crown
A. Sorry; I am not quite sure who is being considered.
813. I am thinking about cases in the past where
problems have been brought to light by the press or a Member and
the Member will write to what was the Privileges Committee for
consideration, alleging bribery.
A. By another Member?
814. Yes, in which case are you suggesting that
we have a slight change in the law so that the Member who is bringing
the allegation actually writes to and communicates with the Crown
Prosecution Service rather than the House?
A. If a Member wanted to make an accusation
of bribery, I suppose that it would be the same as making an accusation
against any other person. It would not be, I suppose, ruled out
that you could ask a committee of the House to consider it first
and give a prima facie view to confirm your view, but I
suppose anyone can attempt to lay an information if they take
the view that it is necessary to do so. I would have thought the
natural thing, if it is a matter raised by Members against other
Members, would be to refer it to the Commissioner for Standards
in the first instance or something of that kind.
815. If I may take this further, there is a
mood among some commentators and the present Home Secretary that
bribery should be dealt with in the courts and not dealt with
by Parliament. If we were to go down that line, the Crown Prosecution
Service and the DPP would have to be involved at some stage?
816. It is that point I would like to pick up.
What are we talking about when we talk about bribery? Someone
like yourself, with your long involvement in this matter, far
longer than many of us round this table, may be able to tell us:
there is concern about bribery. Why? Is there a lot of it going
A. I think it would be impossible to give an
empirical or sociological answer about the incidence of bribery.
It worried people in the late 19th century. That is why the 1889
Act, the 1906 Act and the 1916 Act were passed. There were some
clear worries about corruption in public life at that time. I
would not myself have thought that, apart from a few spectacular
examples, one could say that bribery was rifer now than it was
50 years ago, but I am not a sociologist and I am not at all certain
whether this would be true or not. I do not know how one would
ascertain this. In the nature of bribery, it is clandestine and
one does not know what the general level of it is.
817. Someone like me believes there is precious
little of it. I have reached the point of going around saying
to people, "Do you know of any bribery that is around?".
A. I think it may depend on the circles one
moves in. I have had the same experience as you.
818. Dr Marshall, you have given us a great
deal to think about, both in your evidence this morning and in
your written memorandum. If there is anything you would like to
mention now that we have not touched upon, anything that, as you
said earlier, you have had second thoughts about, and you would
like to mention, please do. If you prefer instead to let us have
any further thoughts of yours in writing, please follow that course.
It is entirely as you wish.
A. There is just one small point. At the end
of my evidence, not because I was a great expert on it, I looked
at the standard works on French immunity of Members and I was
rather struckthis is what I was saying earlierby
the greater ambit of the protection given to the MP. Although
the French do not claim any general power of contempt and so on,
they do give a rather wider protection. If one wanted a wider
definition of proceeding, one might look at that kind of definition
which says it is to do with the function of the Member even when
he is en mission, which I take to mean that, if he is outside
Parliament but carrying out some function of a Member, that would
not be protected by proceedings in Parliament here, but there
is quite a case for saying that one should attach privilegein
my view, qualified privilegeto a wider range of activities
when Members of Parliament are en mission or carrying out some
function. The Strauss case was one such example where it
would be perfectly reasonable to include that. It is worthwhile
looking at both the American and French definitions of the breadth
of immunity of deputies and Congressmen if one is thinking of
a rather broader spread for the notion of proceedings in Parliament.
Chairman: Dr Marshall, thank you very much for