HOUSE OF COMMONS

LONDON SW1A OAA

Tel. No. 020 7219 13 10
Fax No 020 7219 3727
E-mail : sandsrb@parltament uk

From the Clerk of the House of Commons

R B Sands
24 September 2003

L2 /~ rl,_ //f,~eS,

In my letter of ls` September I said that the House was not minded to make a formal submission
to Lord Hutton in advance of the second stage of his Inquiry. But I expressed the hope that the
Inquiry would be sympathetic to any need which might arise to put in a submission at a later
stage.

In the course of the Inquiry's proceedings last week some attention was directed at the actions of
Mr Gilligan in sending suggested questions and background material to members of the Foreign
Affairs Committee for use when they took evidence from Mr Kelly . In light of this, I thought
that it might be belpful to Lord Hutton to know that this issue was raised with Mr Speaker, both
privately by correspondence and publicly in the House (Hansard, 8 September, 2003, cd 55) The
Members who raised the matter were, in effect, alleging that Mr Gilligan's actions amounted to a
contempt of the House. If the Speaker so decides, a well founded allegation of contempt is
submitted to the House for debate at the earliest opportunity, as a matter of privilege (Erskine
May, 22`a edition, page 144) . Having reviewed the relevant precedents, the Speaker declined to
give this particular complaint priority in this way. The precedents are those set out in pages 121-
125 of Erslane May, relating to improper influence and the obstruction of Members in the
discharge of their duty (a copy is enclosed for ease ofreference) .

In drawing this point to Lord Hutton's attention, I am not, of course expressing a personal
opinion on the appropriateness of Mr Gilligan's behaviour in the particular circumstances of this
case, nor am I seeking to deter Lord Hutton from expressing such an opinion . But whatever view
is taken of the merits of his particular conduct, it is not fundamentally improper or contrary to the
rules of the House to send unsolicited information to Members of Parliament in connection with
actual or potential inquiries by Select Committees. It would, I suggest, be contrary to the wider
interest,; of the House if, as a result of the publicity surrounding the evidence given to this
Inquiry, the contrary impression were to be created in the minds of the public .

Mr Lee Hughes
Secretary, The Hutton Inquiry
 Obstructing Members of either House 121

warrant,' or slighting an order of either House= has been similarly con-

demned Otber examples are representing oneseif to be a parliamentary
agent (see p 976) without possessing the necessary qualifications,'
The crowned portcullis has for many years been used as the emblem of
the House of Commons . In 1997, its use by the House was formally licensed
by Her Majesty The Speaker has indicated that it is important for the
dignity of the House that the emblem should not be used where its
authentication of a connection with the House is inappropriate or where
there is a risk that its use might be wrongly regarded or represented as
having the authority of the House °

OBSTRUCTING MEMBERS OF EITHER HOUSE IN THE

DISCHARGE OF THEIR DUTY

The House will proceed agamst those who obstruct Members in the
discharge of their responsibilities to the House or in their participation in
its proceedings . Not all responsibilities currently assumed by Members fall
within this definition Correspondence with constituents or official bodies,
for example, and the provision of information sought by Members on
matters of public concern will very often, depending on the circumstances
of the case, fall outside the scope of 'proceedings m Parliament' (see pp 95-
97) against which a claim of breach of privilege will be measured (see p 65).

Arrest
An attempt to infringe the privilege of freedom from arrest m civil causes
enjoyed by Members of both Houses is itself a contempt and has been
ptuusbed ` When a Member oP the House of Commons was arrested it,
error . the House regretted the indignity offered to him, but considering the
arrest to have been a mistake, did not think it necessary to proceed further .'

-Qolestation, reflections and indrttidatiott

(t is a contempt to molest a Member oC either House wMe attending the
House, or coming lo or going from it and in the eighteenth century both
Houses roundly condemned 'assaulting, insulting or menacing Lords or
Members' going to or coming from the House' or trying by force to
rn8uence them it, their conduct m Parliament e Members and others have
been pumshed for such molestation occurring within the precincts of the

1 LJ (1660-56) 91, C7 (1806-071 288 296

2 L) (166(t-56) 1,31
3 HC Deb t1948-49) 464, c 1669
d Authr,nzauon 1,as been Snvan for display of the emblem on official stationery and pub-
luaiauns en futvrture and furnislvngs used w¢nin the Palace of Westmtnste : and ceriam
Other goo¢s (RC Deb (1996-47) 288, c 21 See also mid (1980-81) 3, c 789_ and tbtd (1993-
94) 236 c 632)
3 LJ (1810-11) 58, 69, ibrd (1828) 15, 21, 34, CJ (1722-27) 504, mid (1809) 210, 213 and Par1
Deb (M9) 14, c 31
6 C1 (1888i 30 and ParF Deb (1888) 322 c 262
7 The Metropolitan Police Act 1839 (s 52) is the pnnctpal means by which Parhamen, is
currently protected from tumultuous assemblies (see p 109)
R Ll 0765-67) 209 CJ (1732-37) 115, And C1778-80) 902
House, whether by assault' or insulting or abusive language,' or outside the
precincts.' The Commons took no action on an incident where a stranger
endeavoured to dissuade a Member from entering a room where a Standing
Committee was me-amg.°
To molest Members on account of their conduct m Parliament is also a
contempt Correspondence with Members of an insulting character m
reference to their conduct m Parliament or reflecting on their conduct as
Members,' threatening a Member with the possibility of a trial at some
future time for a question asked in the House,° calling for his arrest as an
arch traitor,' offering to contradict a Member from the gallery,' or proposing
to visit a pecuniary loss on lum on account of conduct m Parliament' have
all been considered contempts The Committee of Pnvlieges has made the
same judgment on those who incited the readers of a national newspaper
to telephone a Member and complain of a question of which he had
given notice" Analogous to molestation of Members on account of their
behaviour m Parliament are speeches and writings reflecting upon their
conduct as Members"
Written imputations, as affecting a Member of Parliament . may amount
to contempt . without, perhaps being libels at common law, but to constitute
a contempt a libel upon a Member must concern the character or conduct
of the Member in that capacity "
Reflections which have been punished as contempts have borne on the
conduct of the Lord Chancellor in the discharge of his )udicial duties in the

I CJ (1688-93) 348 354, 355, ibid (1824-25) 483 and Parl Deb (1824) 11 c 1204, and CJ
(1946-47) 54 91 In the last case, it was decided that the contempt committed by the
Member concerned, who struck the frrst blow was greater than that of the other who
retaliated (Report of the Committee of Privileges . HC 36 (1946-47))
2 CJ (1646-48) 42, tbtd (166(t-67) 186, ibid (1688-93) 78- ibid (1877) 144 and Part Deb
(1877) 233, c 951, ane CJ 11887) 377 389 and Par] Deb (1887) 317 c 1167, 1631
3 Officials of the Liberty of westmmster were wmmttted m 1751 for having apprehended,
insulted and abused a Member and refusing to discharge him except upon an assurance of
his silence (CJ (1750-54) 175-176)
4 HC Deb (1948-49) 470, cc 1535-138
5 Ll (1830-31) 285 335, CJ (1863-64) 80, 84 ibid (1890-91) 481 aria Part Deb (1891) 365,
c 419 Challenging Members to fight on account of their behawour m the House (CJ
(17811-82) 535, 537, Pail Deb (1814) 74, c 286, CJ (1845) 589 and inc (1862) 64) or of
remarks made outside the House touching proceedings in the House (CJ (1883) 232 238)
has been considered a conteapt
6 Report of the Commrttee of Pnvilee_es, HC 284 (1959-60)
7 Report of tne Committee of Privileges, HC 462 (1966-67) ann CJ (1966-67) 415
8 CJ (1826-28) 395 399 and Part Deb (1827; 17 cc 282, 343
9 CJ (1898) 381
10 Report of the Committee of Privileges HC 27 (195CST, CJ (1956-57) 31 50
11 The Commons Select Committee on Parliamentary Privilege recommended in 1967 that a
Member who considered that he had been defamed should seek a remedy m the courts,
and not be permitted to invoke the penat jurisdiction of the House in lieu of or in addition
to that remedy (Third Report, HC 34 (1967-68) para 42; Subsequenliy, the Commtttee of
Privileges took the vim that it would be unsausfac .ory for the House to appear to rely on
action ny an individual Member in the eonits as a sub.,tr " ute for its own pena :lunsdtctton
It therefore recommended that the Sneaker snould take into account the possibility of
other remedies when deetdm¢ on whether to give preredence to a complaint that a contempt
might have been committed (see pp 114 145) (Third Report, HC 417 (197t-77) para 5, CT
(1977-781 170)
12 See the action taken by the House, Par] Deb (187,5) 224, cc 1185-t?Oa c.` also Parl Detr
(1888) 329, c 1251 ibid (1890) 341 c 43 ibid (1893) E c 159_ For more recent caves m
wh.ch this question was considered, see HC 247 (1963-64) and HC 269 (1964-65)

~-Ss ~4'1Q0C)s
 Obstructing Members of either House 123

House of Lords' or that of the Chairman of Committees.' In the same way,

reflections on the character of the Speaker or accusations of partiality in
the discharge of his duties' and similar charges against the Chairman of
Ways and Means" or Chairman of a standing colnnuttee5 or a select
committee have attracted the penal powers of the Commons .
Imputations that a Member nominated to a select committee would not
be able to act impartially 1n that servtoe,' and similar reflections on Members
serving on private big committees' have been considered contempts An
individual who claimed that he could control the decision of a private b111
committee (and offered to do so for a corrupt consideration) has been
punished, along with another who assisted him' More general reflections
on Members accusing them of corruption in the discharge of their duties,"
challenging their motives or veracity," or describing their conduct as
`inhuman' and degrading" have also been found objectionable and pro-
ceeded against .
To attempt to intimidate a Member m his parliamentary conduct by
threats is also a contempt, cognate to those mentioned above. Actions of
this character which have been proceeded against include impugning the
conduct ofMembers and threatening them with further exposure ifthey took
part in debates," threatening to communicate with Members' constituents to
the effect that, if they did not reply to a questionnaire, they should be
considered as not objecting to certain sports,'° publishing posters containing
a threat regarding the voting of Members in a forthcoming debate,"
informing Members that to vote for a particular bill would be regarded as

1 LJ f,1834) 704, 737, 743, Part Deb (1834) 24, cc 892, 941, 1006, 1065,
2 L7 (1867) 31, 33, 46, 72
3 CJ (1772-74) 452, 456, Part Deb (1887) 313, e 371, CJ (1888) 385 and Part Deb (1888)
329, c 48, CJ (1890-91) 481 and Part Deb (1890-91) 356 c 419 CJ (1893-94) 123, 408, 416
and Part Deb (1B93-94) 9, c IB66, Par) Deb (1B93-94) 14, oe 820, 1094 ; CJ (1911) 34, 36
and HC Deb (1917) 27 or 1435, 1551, HC Deb (1911) 29, c 34, and CJ (1937-38) 213
4 HC Deb f1909) B, c 31, CJ (1928-29) 50. 156, 159, and Ctnd (1950-51) 319 and Report of
the Comavttee of Privileges, HC 235 (1950-51)
5 C3 (1924) 180 and Report of the Commtttec of Pnvttcges, HC 98 (1924)
6 Cl (1874) 181, 189 and Part Deb (1874) 219 cc 752, 755 and CJ (195i1-51) 299 In a case
in 1968-69, the Committee of Privileges considered that an assertion that a Member cvno
was Chairman of a sub-cotnauttee of a aelect committee wouid not be able to form a
sufficiently fair and dispassionate view of events when hearing evtdence in her own
Constituency was not a contempt (HC 197 (1968-b9)1
7 C) (190o) 178
8 CJ (1831-32) 278, 294 )bid (1857-58) 189 . 196 201 end Part Deb (1857-581 150, cc 1022,
,063, 1198 ete, HC Deb (1909) 7, c 235, Pail Deb (1921) 145 . c 831 : and C1 (1932-33) 141
9 CJ (1978-79) 326, 366, Parl Deb (1979) 244, cc 1866 and 1956 and ibid 248 cc 602 . 633,
9"+i, 110Q and Report of the Select Committee on Privilege (Tower High Level lindge
(ivletropoths) Committee), HC 294 (t878-79)
10 CJ (1667-871 88, 95, ibid (1732-373 245, ioid (t836) 658, 676 and Perl Deb (1836) 35, cc
167, 225, Cl (1893-94) 631 and Part Deb (1893-94) 20, c 112, C1 (1901) 414, 418, Report
of the Conmmtctee o` Privileges, HC 138 (1946-47) and CJ (1947-48) 22 . See also CJ ( .935-
36l 203 and HC Deb (1935-36) 311, c 1349-1351
11 C (190l) 355 ibld (1926) 99, Report of the Commettee of Privileges, HL 55 (1926) First
Report of the Comrruttee of Privileges, HC 302 (1974-75), aad see also Report of the
Commwttee HC 112 (1947-48)
12 C1 (1880) 46~ 54 and Pail Deb (1880) 250, cc 797, 1108
13 CJ (1873) 60 and Put Deb (1873) 234, c 733
11 CJ (1934-35) 20! and HC Deb (1934-35) 301, c 1545 .
15 R(port of the Commtttee of Privileges, HC 181 (1945-46)
124 8. Contempts

treasonable by a future adnurmstratlon ;' surnmoning a Member to a disci-

plinary hearing of his trade union in consequence of a vote given in the
House,' and threatening to end investment by a public corporation in a
lblernber's constituency, if the Member persisted m making speeches along
lines of those in a preceding debate' When a Member stated his intention
of influencing. a local authority to the detriment of other Members . a
complaint was referred to the Committee of Privileges which concluded
that the words spoken constituted a threat but recommended no further
action 4

Improper influence
Attempts by improper means to influence Members in their parliamentary
conduct may be considered contempts One of the methods by which such
influence may be brought to bear is bribery ; and it is as culpable for an
individual to offer a corrupt consideration to a Member of either House
with a view to influencing his conduct ID that capacity as it is for the
consideration to be accepted For a detailed treatment of contempts of thls
character, see pp 112-115
A committee of the Coons concluded that `pressure' involved a
positive and conscious effort to shift an existing opinion in one direction
or another; and premeditation was not an essential precondition Thus, the
committee considered that the chairman of a select committee (on Members'
Interests) had exceeded the bounds of propriety in participating in a
conversation with a government whip about matters within that comrmttee's
remit, and the whip ought not to have raised with the chairman a matter
critical to the deliberations of the committee.'
Conduct not amounting to a direct attempt improperly to influence
Members m the discharge of their duties but having a tendency to impair
their independence in the future performance of their duty may be treated
as a contempt . An example of such a case is the Speaker's ruling that a
letter sent by a parliamentary agent to a Member informing him that the
promoters of a private bill would agree to certain amendments provided
that he and other Members refrained from further opposition to the bill
constituted (under the procedure then in force) a prima facie breach of
privilege 6
Influence by private solicitation m certain circumstances has also been
found objectionable The Lords have resolved that the private solicitation
of Members on matters of claims to honours or other judicial proceedings
was a breach of privilege' Upon the same principle, ]t would be a contempt,

1 Second Report of the Commtttee of Privileges HC 228 (196a--65)

2 HC Deb (1974) 877, cc 466, 673 Tne complaint was not pursued fotiowmg a letter of
apology
3 Report of the Commtttee of Privileges HC 214 (19g0-81) Although the Committee was
unable to establish the facts alleged, it observed that `such an allegation, if established,
would certainly reveal a serious affront to the privilege of freedom of speech
4 Report of the Committee of Pmileges, HC 564 (1983-84) See also HC Deb (1993-94) 238,
c 21
5 Select Committee on Standards and Privileges, First Report, HC 88 (199(-97)
6 CJ (1962-63) 251 The Member concerned, having received an apology, did not submit a
motion to the House
7 IJ (1802-03) 227

PS 1) d~- 1 0 00Y
 Obstructing officers of ecl0aer House 125

lscl- when Members are acting in a judicial or quasi-judicial capacity, eg when

the serving on committees on private bills, to attempt, by letters, anonymous
in a or other, to influence them in the discharge of' thetr duties,'
long
ltuan
rs, a
uded Misrepresenting Members
r:her A select committee has commented on an allegation that a third party sent
a letter purporting to be from a Member,' and a Member has made a
personal statement to the House, apologizing for having tabled amendments
to a bill m the name of another Member but without his knowledge or
consent'
utar
suc'_
or an
louse
tr the
if this
OBSTRUCTING OFFICERS OF EITHER HOUSE
ved a
ectlon Obstruction or molestation
is, the It is a contempt to obstruct or molest those employed by or entrusted with
nbers' the execution of the orders of either House while in the execution of their
m a duty Contempts of this character have included assaults,' insulting and
uttee's abusive behaviours or threatening language,' resistance to those acting in
atatter execution of the orders of either House,' aiding the escape of an individual
from the order for his custody or committal," refusal of civil officers
3uence to assist in executing the orders of cither House' and the discharge
uvpatr out of custody by a magistrate of a prisoner arrested by order of either
reated House 't'
that a Both Houses will treat as contempts, not only acts directly tending to
1at the obstruct their officers in the execution of their duty, but also any conduct
ov'tded which may tend to deter them from doing their duty in the future
he Y
ach o> i LJ t1810-11) 332, 341, CJ t1884) 167 and Part Deb (1884) 287, c 11, and HC Deb {1921)
145, c 831 See also Select Cornnrtttee on Standards and Privileges, First Report, HC 88
o been (1996--97)
2 Commttme of Privileges, Report HC 351 (1994-95)
aiatlOfl 3 HC Deb (1994-,95) 260, c 612
eedlngs 4 Poi assaults on officets, see LJ (i718-2t) 190, CI (1667-87) 193, ibid (1718-Z11 366, 370,
ltempt, and LJ ()805-06) 125 For assaults on others entrusted with the execution of the House's
arders, see Ld (1787-9U) 649,tbid (179a-93) 665, ibid (1794-961 241, C1 (1732-37) 308,
ibid (1750-54) 900, 904, tbtd (1761-64) 126, l28 and see CJ ()667-87) 678 for the
letter of punishment of a person who assaulted another for seeking the assistance of a constable tra
securing a deltnquent whom the Commons had ordered mto custody
5 In the case of officers, see LS (1805-06) 332 340 608, 610, told (181t1--12) 370 399, CJ
uttee wa9
,abhshed (1722-27) 185, and of other persons, LI (1783-87) 613, 647, ibid (1787-90) 338
6 CJ (1693-97) 512, 514
7 Resisting or Lundertng officers in the execution of their duty, see CJ (1660-67) 222. ibid
',_941 238,
(1667-87) 341, tbcd (1930-31) 335, 338 resesetng or htudertng others, see CI (1699-t702)
E25 . ,bid (i732-37) 308, 508, 511, ibtd (1761~4) 128, 130
submrl a 8 Li (1718-21) 190, CJ (1667-87) 193
9 C.1 (166G-66) 134, CS (1667-87) 193, 587
10 CS (1770-72) 263 285, 289
 HOUSE OF COMMONS
LONDON SW1A OAA
Tel No . 020 7219 13 10
Fax No 020 7219 3727
E-mail . sandsrb@parbament .uk

From the Clerk of the House of Commons

RB Sands

Lee Hughes Esq 7 October 2003

Secretary to the Hutton Inquiry
2nd Floor
81 Chancery Lane
London WC2A 1DD

Posted and faxed to: 020 7855 5299

&.~Pa~ ' {z Qt'PS,

I am writing to draw to your attention two matters which arose on Thursday 25th
September during the closing submissions to Lord Hutton's inquiry into the circumstances
surrounding the death of Dr David Kelly. Both occurred during the speech of Counsel for the
Kelly family . Having studied the transcript, I thought that I should set the record straight in order
to avoid a potentially misleading impression being inadvertently given to the inquiry .

The first point relates to Mr Gompertz's assertion at page 26 (lines 17-20) that Dr Kelly
was "denied" the opportunity. which he had requested, to be accompanied at the witness table
during his appearance before the Foreign Affairs Committee.

It was not clear at the time whether this allegation was intended to refer to decisions taken
within the Ministry of Defence or to the actions of the Committee itself. Subsequently Mr
Gompertz confirmed to Nigel Plemutg QC, Counsel for the House of Commons, that the use of
the word "denied" m this context was not meant to imply that Dr Kelly had been prevented from
bringing a colleague with him. But, given this ambiguity , I should perhaps point out for the
record that the Clerk of the Foreign Affairs Committee, in discussions with MoD officials about
the arrangements for Dr Kelly's appearance, raised no objections to his being accompanied, but
he pointed out, quite properly, that by sitting at the witness table a supporter might be regarded as
a witness and could thus have questions put to him or her . As the Clerk of the Committee stated
in his clu-onology of events . which has been submitted to the inquiry, his impression from talking
to Dr Kelly on the telephone was that it was Dr Kelly's own decision to appear alone .

The second matter relates to Mr Gompertz's allegation at page 26 (lines 1-10) that the
steps taken by MoD officials to prepare Dr Kelly for his appearance before the FAC amounted to
the improper "schooling" of a witness

1 "~l 1 IO0 v . .
 The first point to be made here is that some degree of preparation by witnesses,
particularly departmental officials, is assumed by Select Committees to take place and that, so
long as the aim is to provide complete and accurate answers to Members' questions, this can be
beneficial in enabling an evidence session to be as productive and informative as possible .
Provided it falls on the right side of the line in terms of co-operation rather than obstruction, there
is nothing intrinsically improper about such a practice . It would be for the Committee itself to
take up directly with the relevant Department, in the first instance, any concern it had that a
witness had been briefed with the intention of hampering the Committee's inquiry.

Roger Sands
Clerk of the House of Commons
 HOUSE OF COMMONS 16 October 2003
LONDON SWIA OAA
Tel No . 020 7219 13 10
Fax No . 020 7219 3727
E-mail sandsrbCaparitament uk

From the Clerk of the House of Commons

R B Sands

FINAL SUBMISSIONS

1. Thank you for your letter of 13 October 2003 in which you ask whether I have any
objections to the posting on the Inquiry's webstte of the parties' written submissions . The
House did not submit any final (or interim) submissions to the Inquiry and I am content to
leave the question whether the submissions of other parties be posted on the Inquiry's
website to Lord Hutton's discretion. There is, however, one matter m this connection
which I need to draw to your attention

2. In the final written submissions on behalf of the Kelly family, it is argued that the conduct
of two Members of the FAC is open to criticism It is said that Mr David Chidgey asked a
question on a false and misleading basis and that certain questions asked by Mr Andrew
Maclunlay were of a lamentably hectoring nature . The Government's final submissions
refer at paragraph 6(6) of page 9 to the rudeness of at least one member of the Committee
(an apparent reference to Mr Macktnlay).

These two Members of the House are not, as such, parties to the Inquiry and, in
accordance with the express wishes of Lord Hutton, we have not disclosed to the two
Members the relevant passages of the final submissions so as to maintain their
confidentiality

4 It would, however, be unfair to the two Members concerned if these allegations were put
into the public domain without forewarning the Members who might then be caught
totally by surprise by questions based on allegations of which they were unaware .

5. You may think it appropriate to draw, these submissions to the attention of the two
Members yourself m advance of publication on the webstte; if not, I would be grateful
for at least 48 hours notice of your intention to post the relevant submissions on the
w ebstte to enable me to inform the Members ofthe allegations made against them.

Mr Martin Smith
Solicitor
2"a Floor, 81 Chancery Lane
London WC2A I DD

FS~I4~o~9~