TUESDAY 28 APRIL 1998

SIR GORDON DOWNEY, KCB AND MR NIGEL PLEMING, QC

  880. Is there within the ordinary disciplinary processes that take place in the House a right to cross-examine witnesses?
  (Sir Gordon Downey) No.

  881. Would that not be regarded today as an essential part of a fair process which involved criminal sanctions even if it is disciplinary?
  (Mr Pleming) If it involves criminal sanctions you would then have to look through all the ingredients of a fair trial not only under Article 6, because Article 6 does not deal specifically with all aspects of a fair trial, as I would see them—I was thinking of the Scott Inquiry as an equivalent inquisitorial process which may or may not have led to criminal proceedings. There can be cases where non cross-examination is still consistent with a fair inquisitorial process.

  882. With the disciplinary process in the House which can involve ultimately expulsion, imprisonment possibly, I confess, I would be very surprised if the European Court of Human Rights did not take the view that that fell within Article 6(2) as something which for this purpose involved criminal sanctions.
  (Mr Pleming) If the view, first of all, is that this was a criminal process for Article 6(2) purposes then you would expect to see the equivalent protections of a criminal trial, including the right to cross-examine, the right to representation, the right to equality of arms with the prosecution, and that of course will involve an independent tribunal and also the appellate structure. So you would either have to create that structure to meet Article 6(2) compliance or you would have to say, "No, this is not for the House, this is for the criminal jurisdiction of the courts."

  883. So that is something else we may need to look at.
  (Sir Gordon Downey) It seems to me that the current procedures available for disciplinary cases work very well, if I may say so, for the general run of disciplinary cases. The investigation I think can produce a reasoned judgment and I think the Committee on Standards and Privileges is well able to exercise certain functions in an appellate capacity. What it can do is to satisfy itself that the investigation has been conducted with reasonable and appropriate procedures, for example, and it can satisfy itself that the conclusions of the investigation are supported by evidence and are not manifestly unsound, that sort of thing. I do not think, for some of the reasons I have mentioned earlier, that a Committee would be well placed to act in an appellate capacity if there was a need for a rehearing. In those circumstances I think the Committee is not well equipped, because a Committee never is, to handle a really complicated case and, also, I think it would be in a sense difficult in principle for an appeal to take place from an independent investigation to a party political committee. I think it is in those circumstances, either because of the seriousness of the offence or the complexity of the case, that there may need to be an alternative appellate arrangement bringing in a greater degree of independence. I would not want to say much more than that because, as you know, the Committee itself is examining these matters and given my relationship with the Committee I only throw that out as a first thought on the subject.

  884. Should the Register of Members' Interests fall within Article 9 as a proceeding in Parliament and therefore be immune from being questioned in any circumstances before the courts or not?
  (Sir Gordon Downey) I think if corruption were being examined by the courts then there really should be no barrier to its opportunity to satisfy itself on necessary evidence and if it is relevant for them to draw inferences from the Register then I would have thought the Register should not be exempt from that process. I think the answer more specifically is that it should not be covered by Article 9.
  (Mr Pleming) My Lord Chairman, could I respond on that because it seems to me that this may go to the heart of one of the problems, which is Article 9 of the Bill of Rights and the definition of "proceedings in the House". The question is whether or not material is excluded under Article 9 or the House decides that because the criminal process is engaged then there is no evidence that cannot be used, if it is relevant, for the determination of guilt or innocence. That question may then bring in Article 6(3) of the European Convention—otherwise there would be the prevention of the defendant bringing witnesses before the court.

  885. But leaving aside corruption for a moment, there may be other circumstances in which a member of the public might wish to refer to the content of the Register, either in terms of what is there or what is not there. It might arise, for example, in defamation proceedings. Do you have a view on whether the Register in that context should be immune from the questioning in the courts?
  (Sir Gordon Downey) As soon as one crosses the boundary from corruption to defamation my sympathies rather swing from one side to the other. I would be very concerned about any action taken which would enable the courts to question or challenge proceedings in Parliament in defamation cases.

  886. I have not made myself clear. If something is said outside Parliament and for the purposes of trying the defamation proceeding the non-member wishes to use not what was said in Parliament but the content of the Register, do you think the Register should or should not count as a proceeding in Parliament for that purpose?
  (Sir Gordon Downey) No, I do not think it should count as a proceeding in Parliament. I think the Register is a public document and I think the courts ought to be able to draw on that as a source.

  Chairman: If there are no other questions, may I thank Sir Gordon and Mr Pleming very warmly for their very considerable assistance this morning. You have both given us a great deal of food for thought on some of the difficult questions that we are having to grapple with. Thank you.