Examination of Witnesses (Questions 220
TUESDAY 27 JANUARY 1998
RIPPENGAL CB QC
220. And there have been cases where it works
to the grave disadvantage or the possible disadvantage of Parliament.
The Public Accounts Committee did an investigation into fire precautions
in public buildings and of course we are not covered by them.
We found that this building, and a lot has been done in the couple
of years since then, but this building was an absolute fire-trap
and no attempt had been made even to secure adequate egress from
the building. Doors had been blocked and so on and they have had
to be re-opened. We still would not qualify fully, I think, for
a licence because we would have to put all manner of fire barriers
down these corridors, but there have been occasions when Parliament
has actually suffered or potentially suffered because of it. There
was one part of the building where the way out at the time we
started the investigation consisted of climbing out of a window
on, I think, the second or the third floor and working your way
along the parapet until you got to a roof and then you had to
go across another roof and then you would get down. Now, these
things have been attended to, but it shows that the protection
from the law actually may endanger not just the Members of the
place, which is our own fault, but it may endanger the people
who work here.
(Mr Davies) I think it is the case that the Palace
of Westminster is now in possession of a Home Office fire certificate,
so to that extent the two Houses have acceded to the general law
in this area.
Mr Williams: There are two levels of fire certificate.
We qualified on the first one which is that people can get out,
but I do not think we qualified on the full one and, as a matter
of interest, when we were doing this investigation, we found that
the department of the Home Office which was responsible for licensing
did not even itself have a fire licence.
221. Do not health and safety moves here apply
to Crown properties generally?
(Mr Rippengal) The Health and Safety At Work etc.
Act does apply to the Crown, although there are certain qualifications
to that in the Act itself. It does not apply to either House of
Parliament, although there is a proposal that it should apply
to the two Houses.
222. The Clerk of the House of Commons expressed
some concern about the application of parliamentary privilege
in connection with his duties as the Corporate Officer of the
House. Have you encountered any problems in this regard?
(Mr Davies) No, my Lord Chairman. The House of Lords
has never insisted on an Order of the House to disclose documents.
As far as I know there has never been so far, since the passage
of that Act six years ago, any problem as far as the House of
Lords is concerned.
223. Simply because we have not been involved
(Mr Davies) That is the case.
(Mr Rippengal) Could I just add a word to that, Chairman.
The Commons case related to the discovery of documents. I think
there was some suggestion, I think from Members of the Committee,
that perhaps some amendment of the Parliamentary Corporate Bodies
Act was called for. All I would say about that is I think it would
have to be something more general. The Parliamentary Corporate
Bodies Act has provided us with bodies corporate which is very
convenient for entering into contracts and holding property. But
before that Act both Houses did enter into contracts. We had to
do that but it became a much bigger issue after the Ibbs reforms
and so on. The practice was for contracts to be entered into by
an officer of the House, normally, in the Lords, the Clerk of
the Parliaments. It had its inconveniences because we had to novate
the contracts when there was a change in the office holder. If
we are looking at this proposition that where the House is entering
into commercial contracts it should not be exempt from the ordinary
processes of discovery of documents and things that apply to other
litigants then I think that is something which goes beyond the
Parliamentary Corporate Bodies Act because in theory we could
still enter into contracts, not by using the corporate officer
but by simply doing it in the name of one of the Officers of the
House. This is a broader problem than just the Parliamentary Corporate
224. Addressing the broader problem, where would
you believe the lines should be drawn between that type of activity
which leads to the discoverability of documents of the House on
the one hand and other forms of activity which of course do not?
(Mr Rippengal) I suppose there is a good case for
saying that where one is dealing with what I would call the domestic
affairs of the House, provision of accommodation, employment of
staff and so on, the House should not be in a very different position
from other employers and contractors.
225. Codification. On balance do you think it
would be advantageous or not for a modern Code of Parliamentary
Privileges to be set out in an Act of Parliament?
(Mr Rippengal) Well, perhaps on balance yes. Certainly
there would be a big advantage of accessibility to the world at
large. It is not easy for persons outside Parliament to be absolutely
clear about the various distinctions and niceties of privilege.
Even Members and Officers of the Houses have to pore over Erskine
May a certain amount to be sure of their ground in difficult cases.
It would certainly improve accessibility. It would obviously remove
any obscurities that we have at the moment. At the same time it
would ossify the matter and you would get less flexibility once
the thing was embodied in an Act. Also it would give rise perhaps
to more possibilities of conflict between the Houses and the courts
because once privilege was embodied entirely in an Act it would
be presumably for the courts to decide whether a privilege was
breached or notas we have at the moment in the case of
Article IX, which is a statutory matter and it is in the last
resort for the courts to say whether the matter is a proceeding
226. At the moment as far as exclusive cognisance
is concerned that remains very much a matter for the House to
decide whether or not a particular type of activity constitutes
a contempt and whether indeed there has been a contempt in a particular
case. If it goes into the statute other considerations apply.
That would be quite a substantial shift of emphasis from Parliament
to the courts, would it not?
(Mr Rippengal) Yes, it would.
227. Would that be advantageous?
(Mr Rippengal) In some respects it would and in others
no doubt from the point of view of the two Houses it would not.
I think clearly the Houses must be left with some considerable
degree of control over their own affairs. They should not be left
in the position where, for example, someone could challenge whether
a Bill had been properly brought up from the Lords to the Commons
or vice versa. It seems to me in that sense the House must continue
to have complete control over its own internal proceedings. You
could certainly have a Code of Privileges set out in a statute
which perhaps did not cover everything but covered a lot of the
228. You discuss in your memorandum, page four,
paragraph seven, the possibility of having a qualified privilege
as opposed to absolute privilege, which you rule out as being
a dangerous step to take. Would you not agree that, if we are
trying to find a new modern Code of Privileges which is more acceptable
to the people outside the two Houses, in order to stop a Member
abusing a privilege, a qualified privilege means that someone
can in fact challenge a statement in the House if it is proven
that it is I cannot remember the word you used now.
(Mr Rippengal) Malice.
229. Malice, yes. It strikes me as being quite
reasonable. I can see some dangers if people decide to create
nuisances in that sense. Are you saying there is absolutely no
way that could be considered?
(Mr Rippengal) This was in the context of freedom
of speech and particularly freedom from attack from outside in
any sorts of proceedings, civil or criminal, in respect of what
you have said in the House. I stand by what the memorandum says
about that. Once you give any sort of derogation from absolute
privilege in respect of what you say in the House it does seem
to me that it will have the effect of inhibiting in some degree
what Members say or feel that they can say. I would have thought
that was pre-eminently something that should not be interfered
230. When the Clerk of the House of Commons
gave evidence, he was asked to assist the Committee by drawing
up an analysis of the rights and immunities which are needed today
and he indicated that he, or his department, would do that. That
analysis, of course, will affect the House of Lords as well. Is
that an exercise which you could carry out in co-operation with
the Clerk of the House of Commons for the assistance of this Committee?
(Mr Davies) Yes, of course, my Lord Chairman. I have
actually already been in correspondence with the Clerk of the
House and certainly will co-operate in producing such a paper.
Chairman: Unless there are any other questions
that any other Member of the Committee would like to ask on any
subject, may I thank you both for your assistance both in the
memorandum and in your oral answers today. Thank you.