Examination of Witnesses (Questions 240
TUESDAY 3 FEBRUARY 1998
MORRIS QC AND
240. May I mention also the other point that
you touched upon, freedom from arrest, and move to the related
area of subpoenas? I think you would agree that what we need here
is a workable procedure which, on the one hand, is going to make
it possible for the administration of justice by the courts not
to be thwarted unnecessarily by a Member failing to respond to
a subpoena to attend as a witness or to produce documents with,
on the other hand, the execution of such a court process not interfering
with the work of the House or a Committee. Do you think the present
system is satisfactory and, if not, what do you think would be
(Mr Morris) I am not aware of any problem. The ability
to refuse a subpoena is probably more important in practical terms
than the other freedom from arrest in a civil suit. I think I
was consulted by one Member during the course of the election
and I confess I was not aware of the ability of a Member to refuse
a subpoena but I was told about it and I did not have on the hustings
Erskine May with me. Members have in the past responded
and given evidence. They have not relied upon their rights. I
am not aware of any practical difficulties so far, but it could
arise if the government of the day's majority was very small and
the actions of a Member might cause practical difficulties of
that kind. But I suspect in practice that the courts would be
tolerant and would try to arrive at a solution which was convenient
to the Member.
241. What we have at the moment, as I understand
it, is a system whereby, if the Member wishes to insist on not
responding, he is able to do so?
(Mr Morris) He is.
242. That leaves it open to a Member, for good
or bad reasons, to decide not to respond, which is not a position
that everybody finds satisfactory, as far as the courts are concerned.
(Mr Morris) In general, a Member should not be treated
differently to any other citizen on a subpoena. But I do recognise
the practical implications, having been in administrations which
have a majority of one or less than one and which are fighting
on to maintain their position. Having a Member summoned to a court
in Carlisle might cause difficulties. I am not aware of any practical
difficulty, my Lord, that has arisen in recent years or at all.
What it needs is some tolerance on both sides. The Member has
the ultimate sanction of refusing and I would defend that. In
this day and age, I do not think they should be treated any differently,
but I am very conscious of the practical difficulties when there
is a small majority.
243. What we are trying to do is consider whether
there is a practical via media whereby, on the one hand,
the Member does not retain it entirely within his own control
in deciding whether or not to respond and, on the other hand,
to cope with potential difficulties in Parliament that you have
mentioned. Can you help us at all?
(Mr Morris) Not without further thought. I applied
myself to the problem. I could not, at first blush, reconcile
the two needs. All I would say is that I am not aware in recent
times of any practical consequences. If you would allow me, as
you have suggested, I will go back and consider if there is any
middle way. I am not sure that there is. I do not want to raise
false hopes on that.
244. Members of Parliament of course do from
time to time suffer from vexatious serving of subpoenas. That
of course is not a misfortune that is peculiar to Members of Parliament.
It happens to other public figures. In respect of that, others
have to rely on such protection as the court gives them. They
can apply without attending in person to have a subpoena set aside.
Is there any reason in principle why the same protection should
not be adequate in respect of Members of Parliament?
(Mr Morris) Not in principle, save for the practical
difficulties I have already gone over.
245. May I leave that further point with you?
(Mr Morris) Yes, but I am not too confident I can
produce an answer to it which is credible.
246. We have to produce recommendations and
I am sure we would be assisted by whatever help you can give us.
(Mr Morris) I certainly will do what I can.
Sir Patrick Cormack
247. I speak as one who has been the victim
of such a subpoena and who had to go to the Clerk of the House
for the necessary dispensation. Have you talked to the Clerk to
discover how often this problem has arisen?
(Mr Morris) No.
248. Before you come back to this Committee
with written comment or whatever, would you please do that?
(Mr Morris) Yes, and I am sorry about the difficulties
you have had, Sir Patrick.
249. What is the basis for Parliament being
exempt from the Health and Safety at Work Act? Is it really because
of parliamentary privilege? I want to know what we mean by parliamentary
privilege and how wide our deliberations are going to go.
(Mr Morris) I think it is because the Houses of Parliament
are a royal palace. There are all sorts of things, my Lord, that
you will remember regarding Members not dying in this place and
all sorts of things of that kind. The reasoning other than that
I cannot help the Committee with. I believe myself, provided you
can get clarity of the application of the legislation, there is
a strong case in this day and age for ensuring that for both the
staff of the House and Members. Over the last weekend, a piece
of masonry fell unhappily far too near to the government front
bench. I do not regard that as a good thing.
250. I am concerned as to whether we should
be bothering our heads with these problems, which brings one again
to the licensing laws. Has that any connection with parliamentary
privilege or again is that something that we can safely ignore,
any exemption having a completely different basis from parliamentary
(Mr Morris) This issue was litigated in the case of
Herbert many years ago. It was found that the Licensing
Acts did not apply. I do not know of any great head of steam to
change the position but that is a matter for this Committee, as
to whether it wants to give up that particular privilege. That
is a matter of policy. It is not for me.
251. The line of questioning from the Chairman
has revolved around subpoenas but we are not just interested in
subpoenas. What are your personal feelings about the public's
perception about Members of Parliament. They do appear in the
minds of the public to be treated differently from the ordinary
citizen. I would like to know how you feel about that perception.
Obviously, the purpose of this Committee is to look at that perception.
We are formally charged to do that. We have to consider public
perception. I would like some comments from you as to how you
see the public's perception. Do you think it is right in terms
of natural justice, for example, that Members of the House of
Commons and indeed Members of the Lords should be privileged in
this particular way? Are you sympathetic? It is not quite clear
to me whether you are sympathetic to us doing something in this
regard. A fortnight ago, we had the Home Secretary here who sounded,
if I am putting the right interpretation on it, quite enthusiastic
about change to take account of public opinion. Do you share that
enthusiasm or have you got a more deeply reserved position than
the Home Secretary expressed?
(Mr Morris) I have had the advantage of reading the
Home Secretary's evidence. He put forward his tentative view as
regards bribery of a Member, on which the law is still not clear.
If there is to be a change, that ultimately will be a matter for
the Home Secretary and other colleagues, including myself, to
consider as a matter of policy. There is no final view on that
matter. My own personal view is that, so far as possible and practical,
Members of either House should be in the same position as members
of the public. It is unfortunate that the word "privilege"
stems from long back in the interstices of history. It is not
a privilege of a Member; it is a privilege of the House. That
is not always understood. That is why I made my earlier observations
on commercial contracts. It is first of all in the interests of
the House; it is certainly in the interests of a litigant that,
in a commercial matter, the House should be treated in exactly
the same way as others are. I was involved in managing the latest
stages of the case of Arthur Andersen in referring to the
De Lorean investment many years ago in Northern Ireland. I was
in at the very tail end of that. Government departments have to
reveal in that instance matters of considerable secrecy unless
there is a difficulty on PII. My bottom line is that Members of
the Houses should be treated, as far as is practical, just like
any other citizen. I think in this day and age, as a matter of
policy, anything else is not acceptable.
Sir Patrick Cormack
252. Do you think that the freedom of speech
that Members of Parliament have is an essential attribute of a
free Parliament and that it is crucial that Members are free to
say anything within Parliament without fear or favour?
(Mr Morris) Yes. I agree entirely. Now we come to
the nitty gritty. I did use the words in reply to Mr Benton "so
far as practicable". Article IX has been the shield for Members
of Parliament to be able to exercise their rights under the Bill
of Rights. I regard that as very important indeed. One of the
reasons why I spoke on the amendment to the Defamation Bill 18
months or two years ago was that I regarded the procedure of changing
a law which had been in existence for 300 years or more, doing
it almost through the back door by way of an amendment to a Defamation
Bill, as the wrong way of proceeding. In my speech, I set out
the way that kind of issue could be tackled by reference to a
committee such as this, not for the individual Member to be able
to erase his privilege but rather for him to make an application
to a committee such as this and for the committee to decide to
do so. I thought that was a better way. I do not resile from what
I said there. Sir Patrick, I think it is of fundamental importance.
We could not function. Despite all the evidence and all the disadvantages
for some citizens, I think for the overwhelming majority of our
electors it is a privilege which we should fight to maintain.
253. Many years ago, if someone said something
inflammatory, it might have trickled out by people reading it
somewhere. With the introduction of radio, then someone would
hear it. Now of course people see it on television and it is very
high profile stuff indeed. Obviously, we have to consider if there
is any possible legal redress for someone who has been embarrassed
in this way, particularly now that Parliament is so high profile
on the television. Do you think there is any way that citizens
should have some redress in order to stop abuse rather than just
(Mr Morris) I have thought long and hard about this.
Of course, privilege began at a time when, if I recall my history
correctly, the proceedings of the House could not be reported.
Once you maintain the bulwark of Article IX which is necessary
for freedom of speech, despite the growth of means of making the
general public aware of what is said in Parliament, I do not think
there is any practical meansnor would I desire itto
have some special procedure to deal with the kind of issue where
there is much greater publicity than there would hitherto be.
We could not operate. If my Lord Chairman invited me to find some
way round it, there is no way that I am aware of. It is of the
utmost importance that Members are able to say their piece. Of
course the Chair has certain powers. It has powers certainly as
regards matters which are sub judice before the courts
and the Chair of course will rule on matters which are not parliamentary
expressions. Erskine May is full of these matters. Things
have changed over the years. In my few years here, I have had
every confidence in the Chair being able to do that which is necessary
to control the situation, but I have not been able to find, despite
thinking long and hard in the last few days, any means of limiting
254. Is there an analogy, do you think, between
in this regard the conduct of proceedings in one of the Houses
on the one hand and the conduct of proceedings in court on the
other hand, where in respect of what is said in court by a witness,
however defamatory it may be of somebody outside, there is no
right of redress, for the same sort of reasons that you have just
been outlining in relation to proceedings in Parliament? Is there
an analogy, do you think?
(Mr Morris) I think there would be an analogy. I am
grateful. It is of course the high court of Parliament exercising
its powers as a court. The reasoning behind arriving at broadly
the same state of affairs is a somewhat different road, but it
comes basically to the same conclusion, I suspect. I have not
looked at the reasoning behind the procedures in the courts for
that protection, but I do not think that anything that I am aware
of would resile from the need to protect freedom of speech in
the interests of our constituents.
255. You said just now that the Attorney has
good relations with the House authorities. Who are these authorities?
(Mr Morris) Obviously in the first instance Madam
Speaker and the Clerk of the House. Then there is the President
of the Council in matters that have to be discussed when a resolution
has to be considered and put before the House. There is obviously
my relationship with this Committee, my relationship with the
Committee on Standards and Privileges. I can be called upon to
advise the House as regards matters which the House demands the
presence of the Attorney so to explain. My Lord, you will recall
in your early years, when we were in opposition in the sixties,
the cry used to be "send for the Scottish law officers".
That was done night after night. I do not think there was a Scottish
law officer at the time; hence the call. I think it underlines
the need for the Attorney to be available to the House, to advise
and to take part in committees. Even though I believe one would
not have voting rights, I think one can speak to the Committee.
256. Could an individual Member in either part
of the House consult the Attorney on a matter of privilege?
(Mr Morris) I would have thought that he would. He
is a Member of the House; I am an adviser to the House. It has
not actually happened in my time. Lord Mayhew, I am sure, will
be able to assist you in regard to that matter. There is no reason
in principle why not.
Lord Mayhew of Twysden: I agree with that. Law
officers have always regarded themselves as available to all Members
of the House of Commons. It has not arisen in the case of the
House of Lords, to my knowledge, but all Members of the House
of Commons, regardless of party, on any matter touching the law
or conduct which they wish to consult them on. Obviously, it is
treated wholly as a matter of confidence.
257. Still on the question of freedom of speech,
in your view, should Members be immune from, for example, prosecution
under the Official Secrets Act in respect of what is said in one
or other of the Houses?
(Mr Morris) If it arisesand perhaps I would
want to look at this furtherin the course of proceedings
in the House, I think there could be difficulty, save for the
fact that it has been said. There was a case, your Lordship may
recall, where Mr Duncan Sandys in 1939 was a Territorial Army
Officer and a Member of the House. He was questioning rather strongly
the unsatisfactory nature of the defences of London, as I recall.
I believe he was prosecuted at the time, but I cannot recall whether
it was what he said outside the House or whether it was what he
said in the House. I suspect outside. Generally, Article IX would
remain as a matter to exclude a great deal. Whether it could be
prayed in aid as part of a prosecution as a fact of something
having been said I have not been able to apply my mind to. May
I look at that?
258. Yes. On the face of it, the mere fact that
it is said might be thought to be capable of being proved without
breaching Article IX. On the other hand, if a Member were prosecuted
for having made a statement in the chamber, it might seem to be
flatly contrary to what Article IX is intending to protect, because
an individual would then be subject to a penalty for something
that he had said. The Committee would welcome your considered
(Mr Morris) That is the logic of the case of Article
IX. I hesitate a little. Although the case of Sandys came to me,
I think yesterday, I was not able in the time available to look
it up and see precisely what happened. It was a very important
case in my younger days studying constitutional law. I should
have looked at it again. The principle remains.
259. Can I mention one other area that happily
does not arise very often? It is the relationship with the courts.
Take the case of a child whose identity has been ordered by the
court to remain confidential. The identity of the child is then
disclosed in the chamber. On the face of that, it is a contempt
of court, the same problem. Have you any assistance you can give
the Committee on how that unfortunate clash should be resolved?
(Mr Morris) It would not arise in the course of court
proceedings because the matter would be sub judice. I can
see the difficulty thereafter. I am generally concerned about
anonymity, as I told the House some ten days ago. Whether it be
anonymity of a victim in the case of an alleged rape or whether
it be in any other case, particular a child as a defendant, technology
itself has caused a great sea change, I fear, which nobody yet
has taken on board. I have put steps in train to look at that
issue. Coming back to the burden of your comment, it would seem
that there is a tension there between the court order and Article
IX. Article IX would allow such disclosure in the Chamber. It
would seem to me that a Member would have full liberty so to do.