Parliamentary Privilege Minutes of Evidence


Examination of Witnesses (Questions 220 - 230)

TUESDAY 27 JANUARY 1998

MR MICHAEL DAVIES AND MR DEREK RIPPENGAL CB QC

Mr Williams

  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.

Mr Michie

  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.

Chairman

  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 in litigation?
  (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 Bodies Act.

  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 not—as 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 in Parliament.

  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 ground.

Mr Michie

  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 with.

Chairman

  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.





 
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