Justice and Security Bill

Letter from Sir Robert Rogers, Clerk of the House of Commons, dated 28 January 2013 (submitted by Diana Johnson MP) (J&S 03)

Thank you for your letter of 23 January in which you ask for my advice about the establishment of a parliamentary committee, in the context of discussions on Part I of the Justice and Security Bill and the future of the Intelligence and Security Committee.

Your first question is whether it is possible to establish a parliamentary committee by statute. It is certainly possible to establish by statute a committee which is to be composed of members of one or both Houses of Parliament. The House Service supports a number of these: the Ecclesiastical Committee and the Speaker’s Committee on the Electoral Committee, which you mention, and also the Speaker’s Committee on IPSA. The Public Accounts Commission and the House of Commons Commission are also statutory bodies, supported by the House Service. The Intelligence and Security Committee (ISC), as currently constituted, is, similarly, a statutory committee composed of members of the two Houses, though it has, so far, been staffed by civil servants in the Cabinet Office rather than by staff of Parliament, and these staff have not been accommodated on the Parliamentary Estate.

To the extent that these statutory bodies are composed of members of Parliament, they may be considered to be ‘parliamentary’. But they are different from committees appointed by one of the two Houses of Parliament, under a Standing Order or resolution of the House, and parliamentary privilege does not attach to them. They have statutory powers, the exercise of which is reviewable by the courts. Members of the two Houses are not protected by parliamentary privilege when speaking in committees established by statute; nor are their witnesses protected by parliamentary privilege in giving oral or written evidence.

Your second question is whether it would be possible to confer parliamentary privilege upon a committee through an Act of Parliament. The answer to this is that it would be possible to make provision in an Act to confer parliamentary privilege, but this would be unprecedented and I believe it would be misconceived and potentially very damaging.

I say it would be misconceived because parliamentary privilege is asserted, not conferred, and attaches to Parliament itself and to its formal proceedings: it extends to the committees which either House appoints to carry out functions on its behalf, but it is not something that it can give away to third parties. It is wrong to see parliamentary privilege as a kind of stardust which the House can choose to sprinkle where it wishes.

I say it would be potentially very damaging because it would risk undermining the separation of powers between the legislature (Parliament) and the judiciary, which has been a central principle of our constitution for many centuries and is reflected in the Bill of Rights 1689. Interpreting statute is the business of the Courts. It is easy to envisage cases in which the courts would be asked to determine whether a statutory form of ‘parliamentary privilege’ applied to the proceedings of the ISC, and this could lead them to make judgments about questions of definition such as what constitutes a formal proceeding of the committee, or whether the committee’s process was fair in accordance with the standards of a public body established by statute and exercising statutory powers or, possibly, whether the committee’s decisions were rational. This would have knock-on effects on select committees, and on the House’s freedom to determine its own practices.

Your third question is whether it is possible to establish a select committee by statute. The answer to that is a simple no. Select committees are by definition appointed directly by one or other of the Houses of Parliament, or by them both jointly, to carry out functions on its, or their, behalf. Committees established by statute are a category apart.

Your final question is whether Parliament could itself establish a committee to perform the role of the ISC, and whether the Standing Orders of the two Houses could accommodate the particular requirements of a committee overseeing the security and intelligence services. The answer to this is yes, at least in principle. The House of Commons could, either on its own or jointly with the Lords, establish a committee to carry out the oversight functions which are now the responsibility of the ISC, and could impose on that committee whatever instructions were thought fit. While it would be for each House to appoint Members to the Committee, it could, if wished, resolve that only members approved by the Prime Minister should be appointed to the Committee. I am aware, however, that both the Government and the ISC itself have considered the select committee option and decided against, and there is doubtless a political judgement to be made about the balance of the arguments for and against. Needless to say, the House Service stands ready to draft possible Standing Orders for consideration if that is the direction in which the House wishes to go.

While the Bill is currently silent on the staffing and resourcing arrangements for the ISC, I note from the amendments tabled that this may be the subject of debate in the Bill Committee. The House Service has had informal discussions with the Cabinet Office about the possibility of transferring responsibility for staffing, and perhaps accommodating, the ISC to Parliament: I await a formal indication from Government that that is its wish and will then raise the matter with the House of Commons Commission.

You said that you would like to share my response with other Members. I would be happy for you to do so. If you wish to submit it as evidence to the Bill Committee, please let the Clerk of the Bill Committee know (this letter is copied to him) and he will make it available for tomorrow’s meeting.

My colleagues and I are of course ready to respond to any other questions you may have.

January 2013

Prepared 30th January 2013