Privacy and Injunctions - Evidence - Parliament

David Beamish, Clerk of the Parliaments, Peter Milledge, Deputy Counsel to the Chairman
of Committees, House of Lords, Robert Rogers, Clerk of the House of Commons, and
Michael Carpenter, Speaker’s Counsel—Oral evidence (QQ 988–1020)
been said and to what extent you do not agree. Perhaps I could start off by inviting you to
say a few words about how you see Article IX and whether it is absolute or whether it is
potentially subject to abuse, and whether there should be constraints on it in that way.
Robert Rogers: I think “abuse”, Chairman, is a bit of a loaded word, although in my
memorandum I quote the Enoch Powell dictum, “A privilege which cannot be abused is no
privilege.” Perhaps the best term would be “taking advantage” of the privilege, rather than
abusing it. I think also none of this is hard-edged and, as became clear in your questioning of
our predecessor witnesses, a lot is about judgment and the circumstances of an individual
case. I think that the public interest enters very largely into this, by whatever mechanisms
one chooses to regulate the business that we are talking about. I think the important point
to make about Article IX in these circumstances is that it is entirely for the two Houses to
decide whether or not something is proper or improper, and you cannot have an
intervention into that; otherwise, Article IX loses all its purpose and substance.
David Beamish: I support everything my opposite number has said. It is no privilege
if it cannot be abused, but equally it should not be abused; it should be used only in the
public interest, but that is a matter for the House and its members to decide.
Q989 Baroness Corston: Could I ask what you consider to be the effect on
Parliament and its reputation if court orders are disregarded for no discernible public
interest?
Robert Rogers: I think the legislature could be expected to uphold the law, and I
think that the essential element of comity is the Lord Browne-Wilkinson remark about each
being “astute to recognise” their separate roles and functions. The straightforward answer
is that it would be very bad for the reputation of Parliament. You have very carefully said
“for no discernible good reason”, and of course that takes us away from the area where a
public-interest motive or a public-interest quality could be discerned.
Q990 Baroness Corston: I did actually say “public interest”.
Robert Rogers: Yes, absolutely, but you said “no discernible public interest”.
David Beamish: Again, I agree with everything Robert has said. The Lords
members of the committee will be familiar with the fact that the House of Lords operates
by self-regulation, which assumes that its members are honourable and will act in the public
interest, and, therefore, we do not try to define that by rules, on the whole. That has
generally worked for centuries but that does not mean that we do not expect members to
say things that are not in the public interest.
Q991 Mr Buckland: I have read all the memorandums and I have read the Clerk
of the House of Commons’ memorandum, where he helpfully puts what I will call a draft
standing order relating to matters sub judice. Are there any precedents or direct
comparisons within existing standing orders for the sort of scenario envisaged; in other
words, a member having to seek advice before making a statement in proceedings?
Robert Rogers: In all these matters, we proceed very pragmatically, and I think that
is actually quite an important quality of the exchanges to hold on to. Sub judice: I can give
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