Letter from the Attorney General to the
Chairman of the Joint Committee
Thank you for your letter of 19 October, and
for sending me draft paragraphs on the application of Article
9 to tribunals and inquiries. I am sure you will understand that
I am replying in my capacity as adviser to Parliament. I have
not consulted Ministerial colleagues, and I am not expressing
the Government's view.
So far as I know, the Law Officers have never
formally considered the meaning of the "any court or place
out of Parliament".
Paragraph 91 of the draft comments that the
interpretation of the expression has never been the subject of
any court decision. While it is true that there is no authority
directly on the point, I regard Prebble v Television
New Zealand  1 AC 321 as quite helpful. Lord Browne-Wilkinson
expresses the view at page 333E that section 16(3) of the Parliamentary
Privileges Act 1987 (Australia) declares the true effect of Article
9 of the Bill of Rights. And as you record in paragraph 94, that
statute replaces the troublesome phrase in Article 9 with the
more straightforward "any court or tribunal".
For my part, I agree with you that Article 9
would almost certainly apply to a tribunal of inquiry established
under the tribunals of Inquiry (Evidence) Act 1921. I see no difficulty
in legislation putting this point beyond doubt. I also agree that
legislation applying Article 9 to any body with the power to examine
witnesses on oath would probably be doing no more than clarifying
the existing position.
The position is a little less clear for other,
non-statutory inquiries where a person is appointed by a Minister
to investigate a matter and report its conclusions but has no
statutory authority or power to enforce the attendance of witnesses.
My view is that Article 9 probably does not apply to such inquiries.
I do not recall, for example, any perception that Sir Richard
Scott was or should have been governed by Article 9. I believe
that if the matter arose for decision, the courts could reasonably
be expected to strain against the application of Article 9 in
a context such as this. Again, I see no problem in legislating
to put the matter beyond doubt.
Finally, I note the proposal to give Parliament
the power to waive Article 9 in respect to a particular tribunal
appointed under the 1921 Act. I would only make two comments.
First, it should not be assumed that the proposal would lead to
a greater use of the 1921 Act, as opposed to other forms of inquiry.
Ministers may have other reasons for favouring a non-statutory
inquiry. Second, I wonder whether the proposal would lead to pressure
for Parliament to have a similar power of waiver for other tribunals
and inquiries where Article 9 applies. Whether this possibility
should be canvassed in the report will be a matter for the Committee's
I hope this is helpful. Please feel free to
consult me on any other issues which may arise.
Rt Hon John Morris QC MP
27 October 1998