House of Lords House of Commons Joint Committee on Parliamentary Privilege Parliamentary Privilege Oral and Written Evidence The Joint Committee on Parliamentary Privilege The Joint Committee on Parliamentary Privilege is appointed by the House of Commons and the House of Lords to consider and report on the Green Paper on Parliamentary Privilege (CM8318). Membership HOUSE OF LORDS HOUSE OF COMMONS Lord Bew (Crossbench) Sir Menzies Campbell (Liberal Democrat) Lord Brabazon of Tara (Chair) (Conservative) Mr William Cash (Conservative) Lord Davies of Stamford (Labour) Thomas Docherty (Labour) Baroness Healy of Primrose Hill (Labour) Tristram Hunt (Labour) Lord Shutt of Greetland (Liberal Democrat) Mr Bernard Jenkin (Conservative) Baroness Stedman-Scott (Conservative) Mrs Eleanor Laing (Conservative) Powers The committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the Internet via www.parliament.uk. Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at http://www.parliament.uk/business/committees/committees-a-z/joint- select/jcpp/new-committee-publications/. Committee staff The staff of the Committee were Christopher Johnson (Lords Clerk), Liam Laurence Smyth (Commons Clerk), Eve Samson (Commons Clerk), Anthony Willott (Lords Clerk), Christine McGrane (Committee Assistant) and David Burrell, (Committee Support Assistant). Contacts All correspondence should be addressed to the Clerk of the Joint Committee on Parliamentary Privilege, Journal Office, House of Commons, Palace of Westminster, London SW1A 0AA. The telephone number for general enquiries is 020 7219 6615. Parliamentary Privilege 1 List of evidence Page Oral evidence 3 US House of Representatives [Charles W Johnson III] (QQ 1-27) 3 Cambridge University, Counsel [David Howarth and Nigel Pleming] (QQ 28-59) 17 Former Clerk of the House of Commons [Sir Malcolm Jack] (QQ 60-70) 30 John Hemming MP (QQ 71-94) 39 Press Association and BBC Editorial Legal Department [Mike Dodd and Sarah McColl] (QQ 95-122) 46 Clerk of the New Zealand Parliament [Mary Harris] (QQ 123-158) 55 Clerk of the Australian Senate and Clerk of the Australian House of Representatives [Rosemary Laing and Bernard Wright] (QQ 159-190) 68 Clerk of the Parliaments, Speaker’s Counsel, Counsel to the Chairman of Committees and Clerk of the House of Commons [David Beamish, Michael Carpenter, Peter Milledge and Sir Robert Rogers KCB] (QQ 191-237) 78 Lord Chief Justice of England and Wales and Lord Justice of Appeal [Lord Judge and Lord Justice Beatson] (QQ 238-286) 98 Written Evidence 113 Richard Gordon QC 113 Sir Malcolm Jack KCB PhD FSA 117 The Newspaper Society 122 Mr Bernard Bibby 126 Archerfield Partners LLP 128 Lord Lester of Herne Hill 134 Robert Whitfield 139 Simon Cramp 144 Sir Robert Rogers KCB Clerk of the House of Commons 146 David Beamish Clerk of the Parliaments 157 President and Clerk of the New South Wales Legislative Council 166 Sir Robert Rogers KCB Clerk of the House of Commons (further submission) 179 Rt Hon Tom Brake MP, Deputy Leader of the House of Commons 184 David Howarth and Nigel Pleming QC 193 Rt Hon Kevin Barron MP, Chair, Committee on Standards 197 Parliamentary Privilege 3 Oral evidence TUESDAY 29 JANUARY 2013 Members Present: Lord Brabazon of Tara (Chairman) Lord Bew Sir Menzies Campbell Mr William Cash Lord Davies of Stamford Baroness Healy of Primrose Hill Tristram Hunt Mr Bernard Jenkin Baroness Stedman-Scott Lord Shutt of Greetland US House of Representatives [Charles W Johnson III] (QQ 1-27) Examination of Witness This evidence was taken by video conference. Q1 Chairman: Mr Johnson, thank you very much indeed for agreeing to appear before our Committee. Charles Johnson: Good afternoon. Chairman: I gather that you gave evidence to our predecessor Committee back in 1998- 1999. You have probably seen the Green Paper at which we are looking at the moment. Would you like to say anything at the beginning or go straight into questions? Charles Johnson: Thank you. May I address you as Mr Chairman? Chairman: You may. Charles Johnson: I am honoured to be here. My successor in office as Parliamentarian, Mr Tom Wickham, has recently visited the House of Commons, as did his predecessor John Sullivan. We have developed a wonderful relationship, but none better than my relationship with Sir William McKay, former Clerk of the House, currently Chairman of the West Lothian Commission. I imagine you are familiar with him. He, hopefully, will be available to your Joint Committee at some point. This is really his area of expertise. We wrote a book called “Parliament and Congress”. We co-authored it several years ago; the second edition is now available. Thank you for holding it up; thank you for having that. It goes into excruciating detail upon most of the questions that I can anticipate you will ask, but I don’t want to totally anticipate your questions. I would commend it to your reading, at least as bedside reading if you are having insomnia. But, otherwise, it does go into some of the questions that Ms Samson has been kind enough to suggest you may want to pursue. With that, I am honoured to be with you and hopefully I can be helpful. Q2 Chairman: Thank you very much indeed, Mr Johnson. I will kick off, if I may, with the first question. Parliamentary privilege has been described as “the rights and immunities Parliamentary Privilege 4 which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary functions effectively”. Can you summarise the rights and immunities which it is considered Congress and its members need? Charles Johnson: Yes. To some extent, the term “privilege”, as used in Congress, is much broader, and my testimony in 1998 made that distinction. I will not go into the various notions of privilege as they relate more procedurally, but, as far as privileges and immunities of members are concerned, as you may know, our Article 1 Speech or Debate protection derives from the Bill of Rights of 1689, almost verbatim, but not exactly. Yours, I think, says “questions outside of Parliament”; ours uses the term “in any other Place”. It is Article 1, section 6 of the Constitution. From that has derived much jurisprudence, because under our system, as you know under separation of powers, from 1789 and forward, the federal courts have been given jurisdiction, at least as they have assumed it, to look at Congress as far as its compliance with the Constitution is concerned but in the context of cases or controversies. The courts are not sitting as an advisory body; they are not giving anticipatory rulings or advice on issues of parliamentary privilege. For those questions to be cognizable in the courts, they have to arise in the context of a case or controversy. Having said that, the rights and immunities that members enjoy derives primarily but not exclusively from the Constitution . The other basic immunity that members derive is the right of freedom from arrest, which is specifically stated in the same section of article 1, but which has the major exceptions stated there—except for commission of a felony or a breach of the peace. That is a broad exception. Members can be arrested during sessions of Congress if they have allegedly committed felonies or even a misdemeanour breach of the peace. But the real protection enures to civil litigation, which members assume and have been advised protects them during sessions of Congress from having to appear either as witnesses or as the party defendant in civil actions so as not to remove them from their primary responsibility, which is to attend sessions of Congress. Clearly, the privileges and immunities that inure to the individual members are primarily protections for the Congress as an institution. I will be speaking more often, I suppose, about House responses to these issues, but I think you can assume for the most part that I will be speaking broadly for House and Senate responses. But the need to protect members, to confer on them those two immunities—Speech or Debate and arrest—inures to the protection of the legislative branch as a separate coequal branch, not to be interfered with by the Executive or Judicial branches any more than is constitutionally permissible. Beyond those two basic constitutional immunities, there are the impowerments of each House of Congress to make its own rules and to judge the elections and conduct of its members, but you also have some statutory protections that are afforded to members. There is what is called the Westfall Act, which derives from the notion of sovereign immunity that members of Congress, beginning in 1988, when that statute was amended to include members of the Executive and legislative branches as well as the judicial branch, cannot be sued. They enjoy a sovereign immunity against lawsuits because of their official positions. Parliamentary Privilege 5 Recently, there have been federal cases which suggests that members can seek immunity from prosecution which the Justice Department, under the law, enforces on their behalf. The Justice Department has, on several occasions, refused to waive an immunity from civil process for members who have spoken outside the precincts, as you might say, of the House of Representatives. So, if their statements are connected with the legitimate legislative function of a member, press releases and comments in the press or republications outside a Committee report may enjoy a statutory protection of sovereign immunity if the Justice Department seeks to impose them on a member’s behalf and does not seek to waive it.