Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 231 - 239)




  231. Mr Attorney General, the Committee is grateful to you for coming to give us assistance in carrying out the review of parliamentary privilege on which the Committee is engaged. The questions that the Members of the Committee would like to ask you will be directed primarily to you, but if at any stage you and Mr Jonathan Jones think the answer can come more helpfully from him, we would be very pleased to receive the answer from whoever you consider can assist us most. Before I lead off with the questioning, is there anything that you would like to say to the Committee?

  (Mr Morris) My Lord Chairman, may I say something very shortly? As you have indicated, I have Jonathan Jones, a legal adviser from my department, with me. I am sure if I cannot satisfy you that he will do his utmost so to do. It may be helpful, my Lord, for me to say a general word about my role as an adviser to Parliament. The job of advising the Houses of Parliament is one of a number of hats which I wear as Attorney General. Others who have been Law Officers here know full well what those functions are. That function is normally seen as covering three areas. First, the constitution and conduct of proceedings in the House, including questions of parliamentary privilege. Secondly, the conduct and discipline of Members. Thirdly, the meaning and effect of proposed legislation. As a parliamentarian of quite a few years' experience—more years than I care to remember—I attach great importance to my role as an adviser to Parliament. I am always at the House's disposal if my advice is needed and it has been on a few occasions since I took office. I am glad to say that my office has good working relations with the House authorities so the system works well. As the Committee will be aware, the Attorney may intervene in court proceedings to assert the privileges of either House, either of his own motion or, more usually, at the request of the House authorities or indeed the trial judge. Such cases have usually arisen where parties seek to question proceedings in Parliament contrary to Article IX of the Bill of Rights. In that way, the Attorney performs the important function of representing the interests of Parliament in the courts and I would expect that function to continue. In the past, the Attorney was a full Member of the Committee of Privileges in the Commons and would generally lead the questioning of witnesses. I was also a Member of the Committee as Shadow Attorney for many years, as well as a Member of the Select Committee on Standards in Public Life, dealing with the implementation of the Nolan Report. My impression was that full-time membership of the new Standards and Privileges Committee which now covered a considerably wider area than the remit of its predecessor could sometimes represent an excessive burden on the Attorney who, after all, has many other responsibilities as a law officer and a member of the government. I therefore argued successfully for the present arrangement, which is that the law officers are not members of the Standards and Privileges Committee but they may attend meetings, take part in the deliberations, receive papers and give such assistance to the Committee as may be appropriate. In my view, that is a satisfactory arrangement which ensures that I am kept informed of matters which come before the Committee and can give advice and assistance quickly, if it is sought, without my needing to attend every meeting. I should now be happy to do my best to answer any questions the Committee may have. I hope that, if there are any detailed questions of law which I am unable to deal with here, the Committee will allow me to go away and give considered advice at a later date. I am in your hands.

  232. Let me start with a very wide ranging question. Do you think that there are any aspects of parliamentary privilege which have become outdated?
  (Mr Morris) Obviously, there is scope for refining the matters covered by privilege. I come immediately to a matter which I have some knowledge of regarding a commercial contract in regard to the corporate officer of the House of Commons. The issue of what kind of evidence could be adduced arose. Some of the documents which were relevant to the case in which there was an action against the House would need to be disclosed under the ordinary rules of litigation. Those documents were covered by parliamentary privilege. It was therefore necessary for the President of the Council to table a resolution seeking the agreement of the House to their disclosure. It is an issue involving litigation regarding what is termed agreeably the "fenestration" of the House—I suspect putting in windows of some kind or another! I think there is a strong case that parliamentary privilege should not apply to the activities of the House when acting through the corporate officer in a contractual or commercial capacity. It is difficult to see how that needs to be covered by the protection for freedom of speech, which rightly applies to the House in a legislative or deliberative capacity. Indeed, I think—and I agree with the authorities—that it could be positively damaging to Parliament and its commercial interests if privilege were to be prayed in aid on that kind of occasion, whereby it would be positively disadvantageous, at least in theory, to a contractor, compared with any other organisation than Parliament. Therefore, it might be difficult for the House to make ordinary contracts for such things as "fenestration". It is not, in my view—this is the point I really want to make—appropriate in those circumstances to have to rely on resolutions to disapply privilege in those cases. I say so advisedly because, first of all, it is an inconvenience; secondly, it is a waste of parliamentary time. On this occasion, the President put her resolution down and it was disposed of on the nod, as I recall, but it had to be explained to those who might be concerned in other parts of the House—and I say no more—so that the issue might be understood. Parliament can, and has in my experience, use such occasions for a great deal of mischief making. I have rather a long memory of these matters, but there is an obscure procedure whereby the planning decision of a minister can actually be debated in the House. That kind of provision has only been used, I think, twice, something to do with dockyards on our eastern coast and, secondly, to my dissatisfaction, regarding a major planning decision involving a regeneration of industry for Ebbw Vale. 500 Members stayed down until two or three in the morning in order to cause, I fear, as much disturbance to the government of the day as possible, including the then Leader of the House who happened to be the constituency Member as well. It is those occasions which can be abused, if some Members of the House are so minded. I do not complain at all; I say this as a fact. If you are dealing with fenestration or something of that kind, it is rather odd that it should be at the mercy of a parliamentary resolution and the difficulties that might be caused if a demand is made, as it can be made, for a debate. Therefore, this is an anachronism. While it would not be easy to define the boundaries of the activities of the House acting in a commercial capacity, I think one should attempt so to do and amend the relevant and fairly recent Act in order to deal with that. That is one point in order to bring our proceedings up to date. The other— perhaps I can mention it in passing—is freedom from arrest. This privilege is limited to civil cases. In practice, it is of exceedingly limited application and I think there is a case for doing away with it.

  233. Can I take the first stage a little bit further? As I understand it, in very broad terms, you would favour a general exception in respect of activities carried out by the House in a contractual or commercial capacity?
  (Mr Morris) Yes.

  234. One consequence of such an exception would seem to be that, in certain circumstances, papers of committees or subcommittees of the House would be discoverable in commercial litigation by the courts?
  (Mr Morris) Yes.

  235. Do you have any comment on that?
  (Mr Morris) I have very little difficulty there. We may return to this problem as regards what might be done regarding bribery as well. The same kind of problem could well arise. This is ordinary, civil litigation, my Lord. Government departments have long experience of having to disclose documents. Now of course, under Public Interest Immunity, that should be used in more limited circumstances than formerly. Both sides of the House have agreed to the harm test, as opposed to a class test. If such an issue arose, then of course that could be considered and claimed in appropriate circumstances—I hope these days in exceedingly limited circumstances. If government departments from former Prime Ministers down have had to be party to the revelation of important documents which perhaps, in the ordinary course of things, might not see the light of day, although I understand the sensitivity, I suspect, of the House authorities, I cannot understand for the life of me how they could be in a different position than perhaps major government departments; or even in my time—those who have been law officers will have longer experience than myself—I have had to disclose documents in accordance with the ordinary rules of discovery. This is the caveat I enter, my Lord: provided that the field is clearly defined. That is of the utmost importance, as to where the commercial activity line is drawn. It will not be a perfect line, but I do not see any difficulties, although I recognise the sensitivities. I do not see the documents being in any different class. It could well arise in this case.

  236. That would involve a pro tanto amendment to the effect of Article IX, would it not?
  (Mr Morris) Obviously that is what, in substance, it would amount to but the mechanics of doing it would be to amend the recent Act.
  (Mr Jones) The Parliamentary Corporate Bodies Act 1992.
  (Mr Morris) It is a very recent Act and it is basically an amendment of that, I suspect, that needs to be considered.

  237. It may perhaps go wider than that in that, as I understand it, certainly in the House of Lords and possibly in the House of Commons as well, at times contracts are entered into but not with the corporate officers. One would think that the same considerations as those you have mentioned would apply if unhappily there were any litigation. For example, officials may be employed under contracts of employment or employment other than formally with the corporate officer or the House of Commons Commission. If disputes were to arise about unfair dismissal, wrongful dismissal, it could be that an issue could come to the fore about what happened in one of the committees and therefore again the question of discovery would arise.
  (Mr Morris) Yes.

  238. It may be that to handle the point that you are mentioning would need more than just an amendment.
  (Mr Morris) It may well be so. I am not in any way indicating precisely the mechanics of it and how it should be done. I would stop at this point: that all I would emphasise is the need for clarity. I think the Employment Acts do apply to Parliament now. Strangely, the Health and Safety Acts do not apply. When one has long experience of the kind of cubby holes that Members occupy as offices—and lucky they are to have them compared with when I first came here—perhaps there is a strong case for the Health and Safety Acts to apply. It could not be done overnight. It would have to be looked at very carefully. That is the kind of field. Yes, I would not dissent from that, with respect.

  239. As you have indicated, what is needed is clarity and drawing the boundary line is important and difficult. I am not asking you to produce a watertight phrase in Committee. I think, if you have any particular thoughts about how the boundary line could be most helpfully expressed, the Committee would be grateful. The phrase I used was "for contractual or commercial capacity" which is very loose, but if you do have any more precise formulation which, on reflection, you think would assist the work of the Committee, we would be grateful.
  (Mr Morris) May we look at that?

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