Parliamentary Privilege Minutes of Evidence


Examination of Witnesses (Questions 240 - 259)

TUESDAY 3 FEBRUARY 1998

THE RT HON JOHN MORRIS QC AND MR JONATHAN JONES

  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 an improvement?
  (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.

Lord Waddington

  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 privilege?
  (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.

Mr Benton

  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.

Mr Michie

  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 straightforward exposure?
  (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 means—nor would I desire it—to 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 that philosophy.

Chairman

  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.

Lord Merlyn-Rees

  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.

Chairman

  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 arises—and perhaps I would want to look at this further—in 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 view.
  (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.


 
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