Parliamentary Privilege First Report


Memorandum by the Attorney General

  I undertook to consider further a number of points which arose in the course of my evidence to the Committee on 3 February.

POSSIBLE EXCEPTIONS FROM PARLIAMENTARY PRIVILEGE

  I was asked (question 239) to consider what formulation would describe those activities of Parliament from which privilege (and Article 9 of the Bill of Rights in particular) might satisfactorily be disapplied.

  I agree with the Chairman that the phrase "for contractual and commercial capacity" might be rather loose. I suspect also that it would not cover those cases where the corporate officer is sued in tort (negligence, for example). Arguably, privilege should not obstruct litigation brought on that kind of liability any more than on liability pursuant to a commercial contract.

  Primary legislation would be needed to remove or qualify privilege in the way contemplated by the Committee, and the wording of the legislation would of course be a matter for Parliamentary Counsel. Counsel might, however, be asked to provide that privilege and Article 9 do not apply to anything said or done in the consideration of:

    any matter for which the corporate officers are responsible; or

    any matters relating to the employment of persons in the service of Parliament or of either House.

  I have also given some thought to an alternative possibility of defining those classes of legal proceedings in which privilege and Article 9 should have no effect. At first sight, this is an attractive option. For example, privilege and Article 9 might be excluded altogether from proceedings brought by or against the corporate officer; or proceedings brought by or against the House of Commons Commission.

  The difficulty, I think, is that parties to such proceedings could raise, as a tangential or collateral issue, a matter debated in Parliament in its deliberative or legislative capacity and one to which privilege probably should attach. My tentative view is that the absolute protection of Parliament's core dealings, assuming that is the intention of the Committee, cannot be safely achieved by reference to classes of legal proceedings.

SUBPOENAS

  I was asked (question 243) whether there might be a middle way whereby a Member's right not to respond to a subpoena is qualified, without obstructing Parliamentary business.

  The privilege could be limited to sitting days. Beyond that, a feasible middle way has not occurred to me. Defining what kind of evidence a Member may or may not be required to give would introduce a legal test on which the courts would have to adjudicate. That exercise would, it seems to me, be inconsistent with the principle of Members having an absolute immunity from the subpoena process.

  I was also asked (question 247) about the frequency with which the problem of subpoenas arise.

  I have consulted the Clerk of the House of Commons, as requested. He has very helpfully told me that, so far as he knows, there is no central record of all occasions on which Members are served with subpoenas. Nor does his office usually know when a Member who has received one succeeds in private negotiations and does not appear in court by agreement. He does have information on those occasions when the Speaker or the Clerk are approached so that it can be made clear formally to a court that the privilege exists and the Member in question wishes to assert it. Between September 1996 and the present, the Clerk knows of seven such cases: in one of them, the Member first claimed the privilege but later agreed to attend court.

  The Clerk believes that this figure is typical for such a period.

IMMUNITY FROM PROSECUTION

  I offered (in response to question 257) to look into the question of whether a prosecution could rely on the fact of a Member having said something in Parliament. In particular, I mentioned the case of Mr Duncan Sandys.

  I have had the opportunity of looking at my Department's file on Mr Sandys (which I have now returned to the Public Records Office, where its reference is LO/3/128).

  Mr Sandys was a territorial army officer and a Member of the House. He was not, as I had thought, prosecuted; but he complained that he had been threatened with prosecution for refusing to divulge his sources of information for a question he had put down about a shortage of anti-aircraft equipment. A Select Committee considered his case: HC 101 (1938-39), and its report was adopted by the House.

  If the House were to follow that precedent, it seems that a prosecution for words used in the course of Parliamentary proceedings would be regarded by the House as a breach of privilege and contrary to Article 9.

  Advice on this subject was given to the Committee by my distinguished predecessor Sir Donald Somervell in 1939: I have annexed to this memorandum a copy of Sir Donald's memorandum. I would respectfully agree with his conclusion at page 8 that a statement by a Member in the course of debate or proceedings in Parliament, which would otherwise amount to an unlawful disclosure under the Official Secrets Acts 1911 and 1920, could not be made the subject of proceedings in the courts. The same must be true, I think, for the Official Secrets Act 1989.

  The Committee will note that Sir Donald was unwilling to be dogmatic about a prosecution under section 6 of the Official Secrets Act 1920. Under that section, an offence is committed if a person fails to furnish information about a suspected offence under section 1 of the 1911 Act (spying). The question would arise where the evidence that a Member has the relevant information is contained in a speech he or she has made in Parliament.

  I cannot be any more certain than Sir Donald was in 1939; but I would make two observations. First, section 6 is not a much used provision. Second, the evidential difficulties described by Sir Donald on page 5 would, in my view, be formidable.

John Morris

24 February 1998



Annex

Sir Donald Somervell's memorandum (1939)

  I received from your Secretary a letter in which he gave me a general indication of the form which the Committee would desire this Memorandum to take. I have endeavoured to follow this direction. I set out first the main provisions and effect of the Offical Secrets Acts. I follow this with a statement as to the nature of Parliamentary Privilege and in particular the Privilege of Freedom of Speech. I then give my views as to the effect of Privilege on action by Members of Parliament which but for the existence of Privilege would render them liable to proceedings under the Acts.

  Summary of the provisions of the Official Secrets Acts, 1911 and 1920. I should make it clear that I set out below in general terms the main effect of the relevant sections, omitting a good deal of detail.

    (a)  Section 1 of the Act of 1911 as amended by the Act of 1920. Marginal note. "Penalties for spying." This section makes it a felony for any person to obtain or communicate secret documents or information for a purpose prejudicial to the safety or interests of the State, the documents or information being such as might be useful to an enemy.

    (b)  Section 2 of the Act of 1911 as amended by the Act of 1920. Marginal note. "Wrongful communication etc of information." This section makes it a misdemeanour:

      (i)  for those holding or having held office under His Majesty or for Government contractors or their employees to communicate without authorisation official documents or information in their possession.

      (ii)  for others to receive such information voluntarily if they have reason to believe it is being communicated to them in contravention of the Act.

      (iii)  for others having received information as in (ii) above to communicate it without authorisation to any person other than a person to whom it is their duty in the interests of the State to communicate it.

  Broadly speaking this section covers all cases of unauthorised disclosure of official information in which the espionage purpose is absent. It is of course possible to think of very serious cases connected with foreign affairs, financial or other secrets which would come under this section.

    (c)  Section 7 of the Act of 1920 makes it an offence to solicit or incite a person to commit an offence under the Act.

    (d)  Section 6 of the Act of 1920. Marginal note: "Duty of giving information as to commission of offences." This section imposes a duty on every person to give on demand to a Chief Officer of Police or other specified person any information in his power relating to an offence or suspected offence under the Acts.

      It provides for the attendance of persons on payment of their reasonable expenses and makes a failure to attend or to give the information a misdemeanour.

  The Acts, like the rest of the Criminal Law, apply to Members of Parliament apart from Privilege. Parliamentary Privilege is of course part of the law of the land. The disputes that have taken place between Parliament and the Courts have been as to the extent of Privilege and not as to its character as law. Cases involving Privilege may come before the ordinary Courts. They may also be decided and are normally decided by whichever House of Parliament is concerned, and punishment may in a proper case be inflicted by the House. In dealing with cases of Privilege the House is expounding and applying as a Court the law of Parliament as found in existing principles and precedents. The Law of Privilege is to be found partly in Acts of Parliament defining Privileges, partly in the declarations and decisions of Parliament dealing with Privilege, and partly in decisions of the Courts in cases involving points of Privilege. As long ago as 1704 a Resolution of the House of Lords was assented to by the House of Commons to this effect:

    "That neither House of Parliament have power, by any vote or declaration, to create to themselves new privileges not warranted by the known laws and customs of Parliament."

  The cases which I am asked to consider are those in which words are spoken or written which, if not protected by Privilege, would be punishable as an offence against the Official Secrets Acts. The relevant Privilege is that usually referred to as the Privilege of Freedom of Speech, though it does not merely apply to spoken words. It is a privilege which was asserted and recognised at a very early stage in the history of Parliament. Although older than the Bill of Rights it is declared therein as follows:

    "That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament."

  Parliament itself can of course control the exercise of the right in any way it thinks proper. "But, although by the ancient custom of Parliament and the law, a Member may not be questioned out of Parliament, he is liable to censure and punishment by the House itself of which he is a Member." (Erskine May p 107.)

  I will consider the case of a Member who in the course of debate or proceedings in Parliament made a disclosure which, apart from Privilege, would constitute an offence under the Acts. The hypothetical disclosure might, for example, be by a Member who was holding or had held office under the Crown, of information which he had obtained in that capacity. It might be by a Member who, without holding or having held such an office, had reasonable ground to believe that the information which he was disclosing had been obtained in contravention of the Acts.

  Such statements could not in my view be made the subject of proceedings in the Courts. To do so would I think be to question in a "Court or place out of Parliament" "debates and proceedings in Parliament".

  Issues of Privilege of a somewhat different kind might in certain circumstances arise under section 6. That section is only of course brought into operation if it is clear or thought to be clear, first that a person has information relevant to the investigation of an offence or suspected offence, and secondly that he is unwilling to give the information voluntarily. Assume that it was clear from a speech made by a Member in Parliament that he had information relevant to an offence which on inquiry he refused to volunteer. Would he be protected by Privilege from the operation of section 6?

  If he refused to answer and proceedings were taken to punish him for refusal the prosecution might fail to show that he had relevant information unless they could give evidence of his statement in Parliament. The authorities are not clear but it may well be that, without the permission of Parliament, there would be difficulty in getting this evidence before the Court. There is however a further point quite apart from this difficulty. Could it be said that such proceedings were precluded in principle by the Privilege of Freedom of Speech? It might be said on the one hand that the prosecution was not "impeaching" or "questioning" anything done in Parliament. It was proceeding against the Member for failing to fulfil out of Parliament the duty of giving the information which Parliament itself had directed should be given.

  It might be said on the other hand that the Member found himself interrogated by the Police and subsequently in the dock as a result, though an indirect result, of what he said in debate and that this was contrary to the principal of freedom of speech as formulated in the Bill of Rights and illustrated by the precedents.

  How the Court or either House might decide this question should it ever arise is a question on which owing to its difficulty I ought not to be dogmatic. If such a case should ever arise and the authorities felt that the Member was not or might not be protected by Privilege, I find it difficult to imagine the Police being authorised to interrogate unless the very gravest issues were involved.

  I have done my best to set out concisely the principle which appear to me to be applicable to this matter in a form which I hope is that desired by the Committee. There has so far as I know been no prosecution of a Member of Parliament under the Official Secrets Acts. The question might arise whether acts done by a Member contrary to the Statute but not protected by Privilege might be so related to his duties as to make a prosecution improper or oppressive. It would I think, for reasons which the Committee will appreciate, be inappropriate for me to propound hypothetical circumstances and then state what decision I think should be come to upon them. Assuming however that in such a case the machinery for the consideration of proceedings was set in motion, the consent of the Attorney-General in England or the Lord Advocate in Scotland would have to be obtained. It would be impossible to formulate in a precise form all the circumstances which would fall to be considered but should such an issue ever be placed before an Attorney-General, it would clearly be proper and inevitable for him to have due regard to the special position and duties of a Member of Parliament.

D B Somervell

Law Officers' Department

27 January 1939


 
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