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Parliamentary Privilege First Report

Letter from the Home Secretary to the Chairman of the Joint Committee

  I am writing to you to ask if your committee would consider whether it would be considered desirable to bring at least some of the functions of Parliament within the scope of the proposed Freedom of Information legislation, having regard to the privileges of Parliament.

  The White Paper (Your Right to Know-copy attached) proposed that Parliament should be excluded from the Act. In its report on the White Paper, the House of Commons Select Committee for Public Administration criticised the proposed exclusion for Parliament. In its response (also attached), the Government said that it would be guided by the views of Parliament itself. I am therefore asking you formally if your committee has any views on this issue.

  I should add that the Ministerial sub-committee on Freedom of Information considers that it may be possible to establish a clear dividing line between the Parliamentary functions of both Houses and the purely administrative ones, with a view to including the latter within the scope of the Act.

  The Act will provide for an independent commissioner who would regulate bodies covered by the legislation to ensure their compliance with it. We would need to ensure that the role of the Commissioner did not cause difficulties in relation to Parliamentary Privilege, if the Act applied to any functions of Parliament.

  An alternative approach may be for Parliament to resolve that it would be bound by the principles of the Act, but for any complaints about non-compliance to be dealt with as a contempt.

  I expect to publish a draft Bill on Freedom of Information early next year and it would be helpful to have your views before then if at all possible. If you need any further information about the proposals please let me know.

  I have written in similar terms to the Speaker of the House of Commons and may officials have written to the Clerks of both Houses.

Jack Straw

30 November 1998

Reply from the Chairman of the Joint Committee to the Home Secretary

  The Joint Committee have asked me to reply to your letter of 30 November on the proposed freedom of information legislation.

  As both the White Paper and the Report of the Select Committee on Public Administration recognised, there are good constitutional reasons for excluding "proceedings in Parliament". Apart from inconsistency with the constitutional principle enshrined in article 9 of the Bill of Rights, 1689, at a practical level it would not be right if it was possible to obtain through the Act such material as evidence which a select committee had chosen not to report, or preparatory papers relating to a speech or question. On the other hand it is difficult to envisage a threat to parliamentary sovereignty if wholly administrative matters such as the operation of Parliament's data network or its catering facilities, or staffing or employment matters were included.

  The difficulty may be in drawing a line. "Proceedings in Parliament" is the term used in ancient statute, Article 9 of the Bill of Rights 1689. It is not always clear today what that undefined term includes and the courts and Parliament may not always agree. For example, the House of Commons set up the Register of Members' Interests in the belief that all matters pertaining to that register were "proceedings in Parliament" and therefore excluded from scrutiny by the courts. On the only occasion this issue has come before a court (in Rose v Edwards), Mr Justice Popplewell decided that they were not. We are sure that Parliament would continue to contest this interpretation. All conversations and correspondence between members and the Commissioner for Standards relating to registration are clearly parliamentary in character and ought not to be disclosed except on the authority of the Select Committee on Standards and Privileges.

  The constitutional implications of requiring disclosure of other material directly connected with the duties of a member of parliament to the public would also need to be carefully considered. For example, it is unlikely that the affairs of parliamentary bodies set up by statute, such as the Ecclesiastical Committee, or the House of Commons Commission, would be considered to be "proceedings" but we believe that their papers should be subject to disclosure only when they relate wholly to administrative matters. Member's correspondence, particularly correspondence with constituents or with Minsters and others on constituency matters, do not form part of proceedings. Nonetheless correspondence of this kind is of fundamental importance to the work of members and if often confidential. It should clearly be excluded from the legislation. There are also other activities closely connected with members' exercise of their parliamentary duties, such as membership of party and backbench committees, which it might be thought to be appropriate to exclude.

  The Joint Committee have also noted that in both Australia and New Zealand which have had freedom of information legislation for some time, it has not so far been found possible, despite much careful consideration, to find any way of including any part of Parliament's activities satisfactorily.

Lord Nicholls of Birkenhead

Chairman of the Joint Committee

26 January 1999

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