TUESDAY 17 FEBRUARY 1998

THE RT HON LORD BINGHAM OF CORNHILL

  440. You suggest that before there should be a prosecution of a Member for corruption, the consent of the Attorney-General should be required. What particular reason prompted you to think that, and do you think there is any risk that the Attorney, being the holder of a political office, might be thought not always to be acting wholly without political considerations in mind?

  A. I would have total confidence in an Attorney-General to recognise that he was exercising a public interest role completely divorced from his political allegiance and in the presence of a former Attorney-General I say that with added confidence. I think that the public understand the Attorney-General does not make decisions in his field on the basis of party affiliation, but I think that his intervention is a valuable safeguard to make sure that any risk that may exist of an ill-judged prosecution is obviated. So I favour his consent as a high level safeguard.

  441. Do you think there would be pressure on him to lean over backwards in favour of permitting the prosecution because it is desirable that he should not be seen to be favouring fellow MPs?

  A. No. I think the Attorney-General would do his utmost to make a just decision on the merits of the case. If there were thought to be doubt about this, then I suppose it could be left to the Director of Public Prosecutions to give his or her consent, but I think I prefer the intervention of the Attorney.

  442. It is not unknown for the Attorney-General to be accused of partisanship, is it?

  A. No, it is not, but it is some years since any accusation has been made with any semblance of justification. I do not know which case you are thinking of. Is it 1929?

  Lord Wigoder: I am not sure I have not made the point myself in one or two cases!

  443. Of course, the Director of Public Prosecutions is "superintended", which is the statutory word, by the Attorney.

  A. Quite, which means that if one gives the power to the Director she is fully entitled to consult the Attorney. I think one either has to have confidence in the Attorney-General or abolish the office or change it. I have confidence in it and I think anybody who has any knowledge of the system shares that confidence.

  444. One of the matters which naturally causes some concern is that if the criminal legislation is to apply to Members of Parliament, one could have the situation where a criminal court is required to consider in detail not only what a Member said or did in the House but why he did it. One could have the situation where that could apply equally to other non-charged Members. For example, if it is suggested that Member A was bribed, in his defence he might wish to give evidence as to what he did and why he did it and, indeed, part of that might involve him having had discussions with other Members whom he also would wish to call as witnesses in his defence. In his evidence to us the Home Secretary said that he thought that if there were ever a case in which a Member was charged with corruption which involved activities in the House, then when the matter came to court the judge conducting the trial would ensure there was a very narrow frame or focus of the issue and would be alive to the need for there not to be a general excursion into the Member of Parliament's conduct. Do you think judges would be comfortable in seeking to control the width of investigation of parliamentary activities in the course of a criminal trial?

  A. I would not be entirely happy with what the Home Secretary has said, as summarised by you. In any trial, and most of all in a criminal trial, no evidence is admissible unless it is relevant, but if it is relevant, i.e. it tends either to establish the charge or rebut it, it is very difficult to exclude it and it can only be done on strong and recognised grounds. The decision as to what evidence is adduced in a criminal trial does not rest with the judge so far as the prosecution is concerned, it rests with those acting for the Crown. So far as the defence is concerned, it rests obviously with those acting for the defence. Of course, if one party or the other objects to certain evidence and says, "This is irrelevant and inadmissible", the judge will have to rule, but I do not think it would be safe to approach this matter on the basis that the judge will be deciding what evidence is called or what is relevant. Basically that rests with the prosecutor or the defence and, as I say, it is very difficult to exclude evidence which is relevant either to proving guilt or establishing innocence or throwing doubt on it. I do not think the Committee would be wise to go into this on the basis that the judge will be exercising a role different from that that he exercises in any other criminal trial.

  445. One of the suggestions that has been put before the Committee is that if charges of bribery were raised, then a Committee of one of the Houses should consider it initially and in certain circumstances decide, perhaps on the complexity, the matter should go to the criminal courts; in other less serious cases not. One of the comments made on that type of approach is: that for a decision to be made by a Committee or maybe by the whole House on whether a matter should be referred for further investigation to the police or whoever, it would be difficult for the Committee or the House to make a decision even at a prima facie level without running the risk of prejudicing the fair trial of the accused, if one ever were to take place. Have you any comment to make on the practicability of some sort of procedure of that sort having regard to the need to ensure a fair trial?

  A. Yes, I think there would be that risk. Presumably if the House were to investigate whether there was a case against the Member, it would have to pay attention to the reasons given by the Member as to why there was no case or why there was a case that should not be referred to the police, and this would involve a form of preliminary trial which could only be damaging, I would have thought, to the Member if the decision is that it should go to court. I think one has to distinguish very sharply between allegations of criminal conduct and allegations of misbehaviour falling short of that. One has a parallel in financial regulation where it is often said, "Why isn't this conduct or that conduct dealt with on a regulatory basis? Somebody could be disbarred from acting in a certain capacity and we could save great expense, time and effort at these human criminal trials that go on for months", which in my view is all very well up to a point but if the conduct is criminal then I think it should be dealt with in that way and I would feel the same in this particular context.

  446. Can I move on then to a different subject, namely, subpoenas. One view which is espoused is the one which you have favoured, that in general Members of either House should not be exempt from the obligation to attend and produce documents or give evidence as witnesses in the ordinary way. If that view is adopted, then one has to find some adequate practical procedure to ensure that when there is really a clash of commitments, the answering of the subpoena does not cause what might be quite serious consequences through the absence of the Member from the House or from a Committee. You might say, "Well, that is primarily a matter for the parliamentarians to solve", but have you got any suggestion as to how one can minimise the risk in practice of such clashes? I would anticipate that if there were such a difficulty, judges would be accommodating so far as they are able, but one is left, if the matter stays there, without any really satisfactory fall-back position whereby the Member without the consent of the court could find himself having to absent himself from what could be a critical Division.

  A. I would think it wholly inconceivable, if a Member of Parliament were subpoenaed to give evidence at a trial and wrote to the court to say, "I have pressing parliamentary business at such-and-such a time so please make arrangements so that I need not attend to give evidence at that period", that the judge would not accede. It is not an unfamiliar position. I simply cannot imagine that any judge would say, "Nonsense, you must attend at such-and-such a time or else." If a Member of Parliament were expected to be giving evidence for a very long period of days or even weeks, which on occasion I suppose could happen, then I would expect that to be drawn to the attention of the court at the pre-trial hearing and the hearing would be arranged during the recess or at some point when it would not conflict with attendance at Parliament. If it were desired to have some sort of formal procedure to deal with the problem, then I would think a request by the Speaker or the Lord Chancellor, asking that the Member in question should not be required to attend at a certain period because of parliamentary business, would be a satisfactory mechanism for dealing with this. As I say, I simply cannot believe it could ever be a practical problem.

  447. There is a difficulty in that one cannot always predict very far ahead when one is going to be needed here. Sometimes you are actually told on the day there is going to be a vital Division which really no one had foreseen. I can understand that a telephone message to a judge would normally lead to his saying, "Well, we can fit this one in tomorrow", but I can imagine a situation in which it is absolutely vital to finish the case today. I wondered whether the Lord Chief Justice would agree that there might be a case here for some kind of formal procedure and that it might have to be a formal procedure which involves the use of a telephone?

  A. Yes. I understand that a crisis could arise at very very short notice and a Member could suddenly find him or herself obliged to be in the House. Quite a lot of the hours during which the courts sit do not overlap with the hours during which Parliament sits or the hours on the nights on which governments fall are not those during the normal course of sitting. I do understand this and I have no objection to the telephone or a fax message or a telephone message saying, "I simply cannot be there".

  448. I was not thinking so much of the Royal Courts of Justice as a subpoena to attend in, say, Newcastle-Upon-Tyne.

  A. Again, I do not think it would be at all difficult to devise a mechanism for the Speaker to say, "Mr X, the Member for so and so, was required to be in the House at such-and-such a time. Please would the court not require his evidence during that period", and a fax through to the court would be effective and given effect.

  449. If we did have a situation where Members, unless they had a good excuse, would have to accept a subpoena, would the same apply to jury service?

  A. No, I would favour retaining the existing exemption from jury service.

  450. Can I move on to codification, with the advantages of accessibility, clarity and, one hopes, lack of technicality where at the moment there is much technicality, but with the disadvantages perhaps of inflexibility. On balance, as I understand it, you would favour an up-to-date modern code. The interpretation of statutes is, at any rate in general, pretty exclusively the role of the courts. If there were to be qualifications and if the Judicial Committee were to have the sort of role that you suggested, would you envisage that the interpretation of this statute should be made expressly the subject of jurisdiction in the Privy Council or not?

  A. I do not think the suggestion I make for involving the Judicial Committee of the Privy Council is in any way dependent upon the existence of a code or the absence of a code. My own view in every field of law really except one is against codification because of its constricting effect on the development of the law case by case. The one exception is criminal law because it always seems to me right that somebody should, if they want, be able to go to a document and look and see what conduct is prescribed as criminal, and the arguments that exist in favour of developing the law so that it accords with changing conditions do not seem to me to apply in anything like the same force to crime. Unless you can clearly discover at the time you do something whether it is criminal or not, it does not seem to me fair that a court after the event should say, "Well, unknown to you and despite the fact that this has never been so decided before, this was actually criminal all along". One could take as an example the Ladies' Directory case where my memory is the House of Lords decided by three to two that conduct was criminal and it would be very difficult for the defendant in that case to have known at the time that he did it whether it was criminal or not. We are not dealing in the case of contempt with criminal conduct but we are dealing potentially with cases that have a severe effect on those who are involved and may involve a penalty. For those reasons it seems to me desirable in principle that the rules should be made clear. If my suggestion concerning the Privy Council were to find favour then in the case of dispute it will be the Privy Council that would rule.

  451. So far as contempt of Parliament is concerned, I wonder how far a statute would be able to clarify the edges, because insofar as contempt of Parliament may be regarded as all forms of activity which improperly interfere with either House carrying out their functions, either one is more specific, in which case one is unacceptably limiting that which is the subject of a contempt of Parliament, or one would leave the statute drafted in a generalised form, in which case its application in any one particular set of facts might still give room for doubt. Are you envisaging that in that particular field something very detailed would be needed?

  A. I think I would envisage that certain specific acts such as the intimidation of witnesses who were giving evidence to a Select Committee or an attempt to interfere with witnesses should be specifically mentioned, but I would accept that there would undoubtedly have to be some more general sweeping up provision that would embrace kinds of conduct which were not the subject of specific mention. That, however, is a very familiar legislative technique and even if there were a general provision, it would be better than nothing.

  452. Let us move on to those situations where one or other of the Houses or officers on behalf of the Houses, either a corporate officer or others, may become involved in litigation. The litigation may arise out of contracts, contracts of employment, or the litigation may also arise in some circumstances in tort, personal injuries, which again may arise out of contracts of employment or not out of contracts. I think the general feeling would be that in litigation of those characters it is not satisfactory for the ordinary rules of the Supreme Court to be inapplicable, but that does mean, of course, that in some circumstances there might have to be produced in court documents or even oral evidence given of matters which plainly fall within Article 9, the content of the minutes of a Committee or evidence of what happened in a Committee; and so one again has to strive to find a boundary line between those types of claims which should not be within the scope of Article 9 and those which remain within. Such is the width of the possible ambit of litigation that it is very difficult to find an adequate dividing line. Can you help at all?

  A. I think that I would favour the test of relevance which is, after all, the test which is applied to disclosure in any civil proceedings. If the documents were not relevant then they would not have to be produced. If they were relevant it would seem hard to see why they should not be produced unless they fall within any established exemption.

  453. I did not make myself clear, I am sorry. In ordinary litigation between two members of the public a question might arise concerning something that had been said in the House. In the ordinary way if there were any question of looking into what was said and why it was said that would simply not be admissible in the court proceedings. So there is one type of litigation where Article 9 prevails. There are other types of litigation where the general feeling is that Article 9 should not prevail and I gave some examples. What I am concerned to do is to identify the boundary line between the types of litigation where, on the one hand, Article 9 would prevail and, on the other hand, exceptionally it will not.

  A. I do not know if this is very helpful, but I think I would draw the dividing line at the point where the proper functioning of Parliament is hampered. If it is, then something should be on the protected side of the line. If it is not, then it should be on the open side of the line. But I think that should be the test however difficult it may be in a given case to apply it.

  454. You were asked a general question about whether there were any areas of law or practice where you thought the existing relationship was unsatisfactory between the courts and Parliament and you mentioned just three areas. First, you expressed the view that the sub judice rule should possibly be clarified. Can you help us at all on what you had in mind?

  A. Yes, I think it is often understood too narrowly. I think there is quite often the view that if something is the subject of a pending trial it simply cannot be mentioned at all and the rule is that nothing should be said which could affect the outcome of the trial, in particular a review about the merits and the rights and wrongs of the matter. That should not, for example, prevent an account of where the action has got to and what the parties respectively are contending or what the issue is. I may be wrong about this but I think in the minds of many people there is an understanding that the rule is much wider than I believe it to be.

  455. And then you mentioned, if I may say so, somewhat elliptically that certain procedures affecting judges could perhaps be reviewed.

  A. Yes. From time to time, as you very well know, judges have to give decisions which they know will be extremely unpopular and the fact that they are unpopular does not necessarily mean that they are wrong and it certainly does not mean that they should not be giving that decision, but it does sometimes prompt motions, particularly in the House of Commons, that the judge should be removed and none of these motions I think progress but they do cause very considerable worry and anxiety to the judges involved until such time as the motion fades away. I distinguish, of course, an address of both Houses which is seriously concerned to remove a judge who has fallen down on his duty in a very serious way, but I think these brief efflorescences of criticism are undesirable.

  456. What do you suggest should be done about that?

  A. I would imagine that it would be perfectly possible for the House simply to have a rule excluding this kind of motion unless certain safeguards were satisfied. I know various judges who have been the subject of these motions and they have been very upset until somebody tells them they probably do not need to worry.

  457. It is rather a paradox because my understanding is that it is a rule of the House that you cannot criticise a judge in debate in the chamber on the floor of the House; and yet this does not appear to apply to an Early Day Motion, for example. You can achieve conformity and consistency either way when dealing with that. It is not altogether clear to me why elected Members of Parliament should not be able to express criticism of a judge from time to time. It would happen extremely rarely. There are considerable grounds for criticism which may have come to an individual Member of Parliament's notice on behalf of his constituent, i.e. if a judgment has been unduly delayed, to take a topical illustration. I am very against unfair criticism of anybody, but I am very wary of rules that prevent anybody in public life being criticised.

  A. I am inclined to support the existing rules on the basis that the system works best if there is mutual reticence. I have no doubt that, if Members of Parliament were more free in their criticism of judges, then judges would be tempted to become more free to criticise Members of Parliament. I think that is totally undesirable. I think a tradition of mutual reticence probably serves the country best.

  458. Lord Chief Justice, we are very grateful. We have asked you a lot of questions. Is there anything you would like to say to us either arising out of the questions or quite generally before you leave us?

  A. No. That is the shortest answer of the day!

  459. May I repeat our appreciation of you for coming here today and giving us your assistance this morning. Thank you very much.

  A. Thank you.