Appendix 4: Letter from Kevin Barron to
Nadine Dorries |
In your responses to the Commissioner and in oral
evidence last week you raised the confidentiality agreements which
attached to some of your contracts. The Committee has received
the attached advice from Speaker's Counsel on the interplay between
confidentiality and proceedings in the House.
The Committee will consider the Commissioner's memorandum
further at its meeting on 5 November, but wish to share this advice
with you to give you the opportunity to respond or reconsider
your earlier responses if you wished to do so.
22 October 2013
The Rules relating to the Conduct of Members and Parliamentary
Ms Dorries's evidence raised several issues relating
to parliamentary privilege including:
- The interplay between the law
of confidence and the House's power to determine its own proceedings,
including the registration requirements for Members;
- The interplay between contractual duties of confidence
and the right of the House, its Committees and the PCS to information.
At the Chair's request I have asked advice from Michael
Carpenter, Speaker's Counsel, and Liam Laurence Smyth, Clerk of
the Journals. Both have seen the transcript, in confidence.
A contractual obligation undertaken by a witness cannot be used
to displace a duty to answer questions put by a Committee, and
the right of the House and its committees to seek information
Erskine May (24th ed p.823) notes that a witness
is 'bound to answer all questions which the committee sees fit
to put to him'. The witness cannot excuse himself on the grounds
he may thereby subject himself to civil action (Parliamentary
Oath (Mr Bradlaugh) Committee, HC 226 (1880)) or because the matter
was a privileged communication, such as that protected by legal
professional privilege. The duty on the witness is one which is
owed to Parliament, rather than one owed under the general law.
Unless the evidence is given under oath, the courts
in the United Kingdom will have no basis on which to consider
whether such evidence should be given, or whether it is truthful
or complete, for to do so would be to question or impeach proceedings
in Parliament contrary to Article IX of the Bill of Rights. It
is therefore not possible for a witness to invoke a legal ground
for refusing to answer a question, or to question its relevance
or 'pertinence'. The question for the committee and the House
is whether, in refusing to answer, the witness had 'reasonable
excuse', a matter which is solely for the House to determine.
I am afraid that Ms Dorries is simply wrong in stating
that a reply to the Committee would make her liable to an action
for damages or other remedy for breach of contract. No such action
could be sustained in the courts of the United Kingdom, and this
by reason of the constitutional principle reflected in Article
IX of the Bill of Rights.
The Clerk of the Journals concurred with this advice,
and added that there was of course a wider public interest in
preserving confidentiality which the House took into account as
appropriate, for example in the way the Guide to the Rules not
insist on the naming of clients if this would breach legal or
professional duties of confidentiality.
I also attach an advice note, agreed by the Committee
on Standards and Privileges last year, which touches on confidentiality
agreements. [not printed]
Clerk of the Committee
on Standards 16 October 2013