Parliamentary Privilege First Report

Letter from the Attorney General to the Chairman of the Joint Committee

  Thank you for your letter of 19 October, and for sending me draft paragraphs on the application of Article 9 to tribunals and inquiries. I am sure you will understand that I am replying in my capacity as adviser to Parliament. I have not consulted Ministerial colleagues, and I am not expressing the Government's view.

  So far as I know, the Law Officers have never formally considered the meaning of the "any court or place out of Parliament".

  Paragraph 91 of the draft comments that the interpretation of the expression has never been the subject of any court decision. While it is true that there is no authority directly on the point, I regard Prebble v Television New Zealand [1995] 1 AC 321 as quite helpful. Lord Browne-Wilkinson expresses the view at page 333E that section 16(3) of the Parliamentary Privileges Act 1987 (Australia) declares the true effect of Article 9 of the Bill of Rights. And as you record in paragraph 94, that statute replaces the troublesome phrase in Article 9 with the more straightforward "any court or tribunal".

  For my part, I agree with you that Article 9 would almost certainly apply to a tribunal of inquiry established under the tribunals of Inquiry (Evidence) Act 1921. I see no difficulty in legislation putting this point beyond doubt. I also agree that legislation applying Article 9 to any body with the power to examine witnesses on oath would probably be doing no more than clarifying the existing position.

  The position is a little less clear for other, non-statutory inquiries where a person is appointed by a Minister to investigate a matter and report its conclusions but has no statutory authority or power to enforce the attendance of witnesses. My view is that Article 9 probably does not apply to such inquiries. I do not recall, for example, any perception that Sir Richard Scott was or should have been governed by Article 9. I believe that if the matter arose for decision, the courts could reasonably be expected to strain against the application of Article 9 in a context such as this. Again, I see no problem in legislating to put the matter beyond doubt.

  Finally, I note the proposal to give Parliament the power to waive Article 9 in respect to a particular tribunal appointed under the 1921 Act. I would only make two comments. First, it should not be assumed that the proposal would lead to a greater use of the 1921 Act, as opposed to other forms of inquiry. Ministers may have other reasons for favouring a non-statutory inquiry. Second, I wonder whether the proposal would lead to pressure for Parliament to have a similar power of waiver for other tribunals and inquiries where Article 9 applies. Whether this possibility should be canvassed in the report will be a matter for the Committee's judgement.

  I hope this is helpful. Please feel free to consult me on any other issues which may arise.

Rt Hon John Morris QC MP

27 October 1998

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