The Jeremy Hunt affair in Britain has shown that the problem with being governed by ex-policy wonks and PR men rather than politicians is that they tend not to be imbued with a sense of the great historical struggle for liberty and a Parliament free and independent from the monarchy that has culminated in placing them in the positions of power they enjoy today. As a result they play fast and loose with the British constitution and let those great freedoms drain away for the sake of political expediency.
Take Article 9 of the Bill of Rights of 1689 for example. It says: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
What Article 9 emphatically does not say is: “If the prime minister is in a tight spot and needs a bit of breathing space, he can pack his Culture Secretary off down the Road to the Royal Courts of Justice, there to hang him out to dry by having him cross-examined by Queen’s Counsel before one of her majesty’s most learned Lord Justices.”
Any such suggestion would be anathema to Prime Minister David Cameron’s forebears and it took several civil wars and the Glorious Revolution to ensure that, constitutionally, there should never be such a suggestion. Oddly, David Cameron himself is generally rather opposed to “unaccountable judges” second-guessing the decisions of democratically accountable ministers (as pointed out here). He has made a special exception for Hunt.
Article 9 not only enshrines the parliamentary privilege of free speech but is taken as one of the sources of parliamentary sovereignty. Thus, if a parliamentary bill passes all its stages in the House of Commons and the House of Lords and is signed by the Monarch, it is indisputably law – it cannot be “impeached”, meaning criticised, countered or judged, for example in a court of law.
Among the privileges of the Houses of Parliament is the exclusive right to determine their own proceedings – Lord Simon
Nor can the process that went into passing it be examined, even if incorrect procedure is alleged. So in British Railways Board v Pickin (where Pickin alleged a private bill had been secured for BR in part by misleading Parliament), one of the Law Lords hearing the case, Simon L, declared: “Among the privileges of the Houses of Parliament is the exclusive right to determine their own proceedings.” The courts could therefore not adjudicate on the matter.
But by sending Hunt off to wriggle uncomfortably in front of the Leveson inquiry, the constitutional principle has been thrown away to save the Prime Minister’s skin. It will take the spotlight off him in the hope that when it turns back onto him, Mr Cameron will have thought of some sort of wheeze to get himself (though not necessarily Mr Hunt) off the hook. Or else the fickle press will have turned its attentions to something more interesting – the first drug scandals of the London Olympics, perhaps.
But the constitutional position bears examination. Mr Hunt serves at the pleasure of the Prime Minister. Mr Hunt’s activities in considering the bid by Murdoch’s News Corp for the BSkyB shares it doesn’t own was, broadly speaking, part of the proceedings of Parliament. It follows that it is no part of the duties of a judge sitting (albeit for convenience rather than officially) in one of her majesty’s courts to examine Mr Hunt’s performance of those duties. This is why ministers’ behaviour (when doing official duties) is governed, not by legislation, but by the ministerial code, of which the Prime Minister is the guardian.
If there is an allegation that Mr Hunt has done some wrong in exercising his ministerial responsibility, his behaviour cannot “be impeached or questioned in any court or place out of Parliament”. It is for the Prime Minister and ultimately Parliament itself to deal with its own members through it’s own processes.
Lord Justice Levenson knows this; Mr Cameron’s adviser on ministerial matters, Sir Alex Allan, knows this; whether or not Mr Cameron knows it, he ought to.
So it was perfectly correct that the Speaker should summon Mr Cameron to answer an urgent question on the Hunt affair. For there is another hard-won constitutional tradition in Britain: that the Prime Minister has a duty to keep Parliament informed of significant matters, not keep Andrew Marr thus informed. It follows that, if the Prime Minister wished to undertake a damage limitation exercise by admitting he did indeed talk to Rupert Murdoch about BSkyB at Rebekah Brooks’s Christmas party, he should do it from the parliamentary despatch box, not from Mr Marr’s comfy chair.
It was in this interview that Mr Cameron denied any “grand bargain” between himself and Murdoch. Murdoch offered him no incentive, no bribe of political support in order to get the BSkyB bid through, he declared. His words bring to mind the Humbert Wolfe barb, now appropriate for the British politician though originally aimed at the impossibility of bribing a British journalist:
“But seeing what the man will do
Unbribed there’s no occasion to”.
Note: Lord Morris in Pickin said (albeit in the context of the passing of legislation):
“It would be impracticable and undesirable for the High Court of Justice to embark upon an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed.”