Parliamentary Privilege Minutes of Evidence


Examination of Witnesses (Questions 260 - 279)

TUESDAY 3 FEBRUARY 1998

THE RT HON JOHN MORRIS QC AND MR JONATHAN JONES

Sir Patrick Cormack

  260. But surely Madam Speaker is able to invoke the sub judice rule in Parliament and she can in fact stop a Member if he or she raises something which is before the courts? In my time in the House, which is not quite as long as yours, I have heard of this happening on a number of occasions where the Speaker has intervened and said, "That cannot be debated or discussed here because it is sub judice".
  (Mr Morris) I think I said that in the opening lines of my answer. If the matter is still in issue before the courts, the sub judice rule would apply. I think my Lord is referring to after the court has completed its deliberations and the order has been made or is continuing.

Chairman

  261. There has been certainly at least one case where a disclosure was thereafter made in the House.
  (Mr Morris) There could be a tension.

Lord Wigoder

  262. In the rather extreme cases that we have just been discussing, is the House of its own motion able to waive its privilege under Article IX?
  (Mr Morris) No.
  (Mr Jones) I do not think it would be open to the House to waive the application of Article Ix which would operate as a statute. I see no reason why the House could not exercise a kind of self-denying ordinance or indeed have its own rules of procedure controlled by the Chair that would prevent the debate of matters that are subject, say, to a court order. That I think would not amount to a waiver of Article IX but it would amount to a kind of self-imposed restraint on debate.

  263. Would it have the power to waive Article IX if it wished to in a particular matter?
  (Mr Morris) Article IX is part of statute law and would need another statute to amend it.

Chairman

  264. Still on freedom of speech, can I ask for your assistance on another area? It concerns the boundary. I have in mind two particular aspects of the boundary which are thought to be uncertain or controversial. One is the question of correspondence between Members of Parliament and ministers or heads of executive agencies and the like; on the other hand, correspondence between constituents and their members. Where do you think the boundary should be drawn in relation to those two particular matters? I am not asking for your interpretation of Article IX but, simply as a matter of general principle, where do you think today the boundary should be drawn and on what principle?
  (Mr Morris) First of all, I would be wary of extending Members' privilege. A Member of course is protected on the grounds of qualified privilege when he writes to an appropriate body on behalf of a constituent. That appropriate body would include a minister, an agency or the local chief constable or whatever. Provided there is no malice and it is done in good faith, he will be protected on the grounds of qualified privilege. The case of Strauss, which was heard forty years ago, if I recall correctly, sought to canvass the issue whether it should be fully privileged, as in one of the privileges of the House, in which case it would be an absolute privilege. As far as a Member is concerned—I will come to the second part of it in a moment—it would be very odd indeed, just because material is put on House of Commons paper which could be of the most vitriolic kind, if that were in itself protected. I would not propose extending it to cover automatically that kind of situation. So far as a Member is concerned, it is well established that on the grounds of qualified privilege he is protected when he acts on behalf of his constituent. If you were to extend that to the constituent himself, I cannot see any advantage in that because it would put the constituent, in writing to a Member, in a better position than if he were to defame his neighbour by writing to a third party. I certainly would be very much against extending it in that way. The present system works well. There are no practical difficulties that I am aware of and I certainly would not seek to extend qualified privilege, or any other privilege, in this context.

  265. Can I just ask you to help me a little further on that? One is concerned that the absolute parliamentary privilege which attaches to what is said in the chamber should equally attach to steps which are taken, intended to have the same overall effect, but a different route is adopted for convenience, so parliamentary privilege will attach to written questions and written answers and the like. As I understand it, from time to time—indeed, regularly now—it is considered appropriate for Members, rather than raising a question of a minister formally, to write to the minister informally.
  (Mr Morris) Yes, dozens of times a week!

  266. Which side of the line for parliamentary privilege do you put such communications, bearing in mind that that particular route may be followed simply as a matter of sensible, convenient practice, rather than putting down a formal question?
  (Mr Morris) What is the mischief? The present situation is one of qualified privilege, although one is drawing something to the attention of the minister in a different way, whether one is standing on one's feet in the House or by way of a written question and answer or by writing to the minister. In one case, I agree there is absolute privilege, if you do it in the House. There is only qualified privilege if you do it by correspondence. It seems to work and I think that is the acid test. I suspect, wearing my political hat as opposed to the law officer's hat, there would not be a great deal of enthusiasm for extending Members' privileges.

Mr Williams

  267. It can be argued that writing to the minister is being more considerate to an individual in that you are giving an opportunity for facts to be established before, say, any public statement is made, in view of the fact that everything you say on the floor of the House is televised now.
  (Mr Morris) Yes.

  268. Secondly is something our Chairman has raised at previous meetings. What about the situation where Members of Parliament have a constituency week? What about the situation where staff in the offices of the House of Commons may sign on their behalf a letter to the minister? They are not writing in their own right but signing a letter that has been dictated by the Member? What is the position for staff in such a situation?
  (Mr Morris) I have not explored that particular one and I have not got the perfect answer, but I suspect and hope—but I do not know the answer—that if an authorised person is acting as an agent of a Member of Parliament he is covered in the same way as a Member. You and I know one or two of our colleagues who have and continue to do all their correspondence by way of recording it on a tape machine, sending it out to the constituency to be typed and, in many cases I have known, almost invariably, if not invariably, having it signed on their behalf. I do not think it makes an ounce of difference.

  269. With so many Select Committees which do a fair amount of international travelling now, Members of Parliament are often on a Parliamentary Committee away from their offices and yet their work has to continue, so it may be that we do need a wider interpretation of the protection than we have had in the past.
  (Mr Morris) I do not have the answer but I would hope that the existing situation is covered. If it is not, it is a matter which your Committee would want to look at. Perhaps we could look at that again to see if there is something more concrete. You mention the instances of Members who are travelling to distant parts and may be away for a long time. You and I do know of particular instances where former Members—and maybe even present Members—who have all their correspondence done, for convenience sake, in their constituency. Rather than send it all back to London to be signed, probably a preferable way of doing it, I have known instances where most correspondence is signed on their behalf. It may not be a perfect way but this is the real world. If there is doubt about this, it is a matter which certainly I will look at to see if I can assist and I am sure the Committee will want to look at it. What I want to emphasise is, if there is doubt, let us hope we can clarify the situation in one way or another.

Lord Mayhew of Twysden

  270. I think the Committee may very well adopt the test: is something which, by tradition or practice, is a privilege needed for the protection of constituents or, more widely, for the public good? I take it that you would support that general approach?
  (Mr Morris) Yes.

  271. Just coming back to the illustration that was suggested by the Chairman of a Member of Parliament in the House naming a child in respect of which the court has made an order, I do not know whether an approach might not be along these lines: that it is Parliament that has legislated to empower a court to order anonymity and here is a Member of Parliament flouting an order in those circumstances. Might it be established as a contempt of Parliament rather than something which makes the Member of Parliament necessarily amenable to judicial sanction of some kind?
  (Mr Morris) That may well be an interesting way of tackling it. Of course it will have a wider application. Let us go back to the period when the matter is still sub judice. The Member blurts out that which he should not have done. Not much can be done about it if the House is being televised at that time and the matter is on the air. I would suspect that the Speaker would take action because it certainly would have flouted Parliament's rules in that context. What you say now may well be the means of tackling the unusual case—unusual in the sense that I have no experience of it ever happening—of anonymity being breached in the House after the case is over, which was a point which we canvassed earlier. The very fact that it has never happened of course does not mean it may not happen in the future, but it is a matter that should be looked at and this may be a way of tackling it.

  272. What seems to face this Committee is how to formulate something which provides clarity, which I think we all agree is necessary for the public to know, for a number of reasons, and a test of what is necessary. It is hard, in the instance which we are just looking at, to see how it could conceivably be necessary in the interests of a constituent to name a child in those circumstances. On the other hand, if you look at the Official Secrets Act and the kind of case that can arise there, it can very well be argued, as I think Duncan Sands did argue, that it was in the public interest that the inadequacies he saw should be exposed. The Official Secrets Act now, following the Ponting case, of course is very much more tightly drawn and requires damage in every instance, except of a former member of the Security Services, but that is not absolutely on a par.
  (Mr Morris) Yes, I agree.

Chairman

  273. Can I return to the principle of the House having exclusive cognisance over the conduct of its own internal affairs? You will recall a few minutes ago the A P Herbert case was mentioned. As I understand it, it is really from that principle that we have the established corollary that statutes are not regarded as applying to the conduct of the two Houses themselves unless they have expressed a special provision to that effect. Do you think that is a satisfactory state today or do you think really the presumption should be reversed?
  (Mr Morris) I begin that Parliament should always need the power to control its own internal affairs. It should continue. As regards particular statutes, we have to start from the point of ascertaining where we are now and look at each individual piece of legislation, and form a view whether it is necessary to apply to Parliament. We have traversed the ground of the Herbert case. I am not aware of any great scheme to change that. I mentioned the employment law which does apply and I have mentioned a personal view, that the Health and Safety legislation should also apply. One has to look at each case on its own, and to see whether Parliament should incorporate the application of a particular statute to its own affairs and reach a judgment on that.

  274. Certainly that is inevitable with existing legislation, but looking ahead, are you suggesting that it should continue to be the policy that is applied, as distinct from in future reversing the presumption; so that in future new legislation should apply to the work of the two Houses themselves, unless the contrary is specifically provided for?
  (Mr Morris) It is a fine distinction, whether it should apply unless anything is said to the contrary; or whether it needs a specific application for new legislation to apply. On balance, I would prefer the latter because one is changing the rules, as it were, and Parliament should look at the matter politically and reach a view in each particular case. That would be my personal approach, but I do not think there is any legal basis for preferring one, as opposed to the other.

  275. May I turn to the separate topic of bribery. Two weeks ago the Home Secretary made it clear to us in evidence that currently he favours bringing Members of both Houses within the scope of an amended statute on the law of corruption. Although he has not finally decided, his inclination is to hand over bribery cases involving Members and Peers to the courts, following a criminal investigation conducted by the police in the normal way and with the same prosecution procedures as apply in general. That change would obviously make inroads into the absolute right of Members to freedom of speech in debate, because parliamentary conduct would be capable of being scrutinised in the courts, and Members required to explain why they behaved in the way they did and said what they did. As Attorney-General, what is your appreciation of the difficulties involved, or the desirability in bringing Members of Parliament and Peers within the scope of legislation regarding bribery and corruption?
  (Mr Morris) Let me deal first with the desirability because that is primarily, I would think, a political question. I read the Home Secretary's preferred view, subject to the observations of this Committee and, of course, subject to the views of colleagues. I would tend to agree with the Home Secretary that Members of Parliament, as far as possible and practicable, on matters I have already canvassed, should be dealt with on the same basis as ordinary citizens. That is my view—again, subject to argument and subject to consideration—and I qualify that in the same way as the Home Secretary has. However, I do not, in general, differ from his approach. I have thought a great deal about this because I sat on the Privileges Committee for all the difficult cash for questions cases; and I had the unfortunate task of having to cross-examine colleagues, I fear, at some length. I also sat on the Privileges Committee involving the then Editor of The Guardian, regarding (unhappily) the letter which was sent to the Ritz Hotel in Paris; so I am not unaware of that aspect of the problem. I think it is inappropriate and anachronistic for Members of Parliament and Peers to receive special treatment. Indeed, that was suggested by Nolan, that the matter should be clarified, which covers a multitude of sins. I fear that the Select Committee on Standards in Public Life, of which I was a Member, like the President of the Council here, endorsed that recommendation but it did not carry all that far. There is a lot of steam behind putting Members of Parliament in the same position as ordinary citizens. The Home Secretary has spelt out his concerns. As your Lordship, I am sure, is aware, the present law is unsettled. Sir Nicholas Lyell presented a memorandum to the Privileges Committee and I do not dissent from his analysis. I put it firmly, I agree with it. Perhaps this is the way I should put it. The position at common law is unsettled, although Mr Justice Buckley in the Greenway case has said that the common law offence of bribery covers the bribery of a Member of Parliament, and that a Member of Parliament would not be immune from prosecution in the criminal courts. However, it never went to appeal because the matter was disposed of before it went much further, for other reasons. Therefore, I certainly have not resiled from my view that the matter should be clarified: clarified by legislation and clarified by way of putting Members of Parliament in the same position as other citizens in the land. I do not know whether you wish me now to deal, as regards the first part of your question, with the practical implications. It would involve the courts in looking at what a Member of Parliament has said or done in Parliament; determining whether his words or actions formed part of a corrupt course of conduct—at least it could. Evidence might have to be heard about such matters, perhaps from other Members and officers of the House, as well as from the accused Member himself. The court might need to examine parliamentary documents; for example, Select Committee papers. I, for one, do not underestimate how radical a proposal that would be. Therefore, it is a matter for judgment. I certainly would value very much, in all sincerity, the views of this Committee, who are obviously extremely experienced in both Houses. It is a matter of judgment, whether this exposure of parliamentary proceedings to the scrutiny of the courts, is a price worth paying for subjecting Members to the criminal law. At present my view is that it is. There could be tension between the High Court of Parliament on the one hand and an ordinary court of law in that instance. Therefore, the law would have to be very carefully framed. I would expect, in any case, that the courts would take into account whether the conduct is permitted or prohibited by the rules of Parliament. In deciding whether the conduct was corrupt, for the purposes of the criminal law, any conflict would be kept to a minimum. I have gone over this ground in another context (I am sure I am right) in that the House authorities would be anxious about such an exposure because it is a radical change. However, I use by way of analogy what other public bodies, Government Departments, have to undergo in similar litigation. There is a revelation there of matters which are not ordinarily revealed. In some instances, perhaps the giving and the receiving of the bribe would be enough, but I suspect that in many other cases, in order to examine the motive of a Member our proceedings would be before the courts. It is a matter of judgment as to whether it is worth it or not. I suspect that it is. But that is a personal view.

Mr Michie

  276. May I make a point here. I share the Attorney-General's concern that we cannot have the present system as it is. I have shared membership of the Privileges Committee with Mr Morris, Mr Williams and Mrs Taylor for many years, and I believe that the present position is not a satisfactory situation. My worry is where the trigger is going to start. How are the courts going to deal with what basically looks like a straightforward cash for questions case, which basically is contempt of the House rather than anything else. Would the courts, in those cases, say "I am not quite sure how bad the offence is. It is really a quid for asking a question to the Foreign Office about something or other, which is an indirect contractual possibility," and whether the court in that case would say, "This is basically something that we are not particularly qualified to deal with," and put it back to the House itself; in which case the courts could look to being discredited themselves by washing their hands of it. There could be the perception again that people would say, "Even the courts are not prepared to take on these people." It is a very difficult area to say when the courts actually do start making these judgments.
  (Mr Morris) I do not underestimate the difficulties. Hence I put it in that way: whether there is the need, on the one hand, to put a Member of Parliament, in respect of a blatant act of bribery, in the same position as an ordinary citizen; whether one should prefer that, as opposed to the difficulties that may arise and the tensions that you have outlined. But I think I did say that I would expect, as here we are in uncharted territory, the courts to take into account whether conduct was permitted or prohibited by the rules of Parliament in deciding whether that conduct was, in fact, corrupt for the purposes of the criminal law. If they were so to do, as I would hope so, then any conflict might be kept to a minimum. However, I am the first to concede that we are in uncharted territory.

Mr Williams

  277. I wonder if I can concentrate on a practical aspect of this. First of all, what has increasingly come to my mind is that perhaps we are wrong in dealing with bribery and corruption, trying to treat it as a special case, because it is really an example of cases which may be extremely complex. It is the complexity which is the problem. This is where I come to the practical question. As Mr Michie has said, Mr Michie and I served on the same Committee at the same hearings. These were relatively simple hearings. One individual, one set of witnesses, The Sunday Times Cash for Questions case, and the individuals concerned; so the Privileges Committee was able to deal with that. However, I think you will recollect the inordinate length of time it took to deal with it, and I think it would be foolish to pretend that there was not a political overlay in the whole of that Committee. Now, in your experience, when you come to more complex cases, as the Hamilton case tested us, you are inevitably dealing with longer cases; more hearings; more witnesses; and also external sources of information which we may not readily be able to tap as the House of Commons, which the police can tap in a normal inquiry. Since those hearings, the only change which has really taken place is the establishment of the new Committee, which I am also on, is that we have a Commissioner. Having gone through that inordinate problem of dealing with a couple of very simple cases in the Privileges Committee previously, and in your experience as a court lawyer, a QC—but not necessarily in your Cabinet role—and in view of your membership on the Privileges Committee, do you think that a parliamentary committee is actually capable—and this is the practical point—is it actually capable, whilst sustaining justice, to deal with very complex cases; bearing in mind that at the end of the day, even after its hearing and its recommendations, those recommendations then go to the floor of the House, where in a relatively discursive debate the House then has to make up its mind as to whether to accept those findings or not?
  (Mr Morris) It all depends on the kind of case. You put your finger on some. The cases we dealt with, the cash for questions, were relatively simple. The Committee was criticised strongly for delay. It is not easy to assemble Members to sit, and the Leader of the House of those days had very many other duties and did his utmost to ensure that the Committee met as frequently as possible. Some of the time was taken up, of course, by argument as to whether the Committee should sit in public or not. That was one matter on which views were strongly hold. Coming back to your point, the issue is isolating the case of bribery from any other much wider offence to Parliament. One can be in breach of privilege of the House for all sorts of reasons which are much wider than that. The question which I pose in reply is: is bribery such an offensive and indeed highly culpable offence that it should be isolated from the general tenor of offences, which might be frowned upon by the Select Committee? I take the view that there are strong arguments, at least, that it stands on its own. The consequences for the ordinary citizen of bribing a public officer are very, very serious indeed. As Lord Mayhew knows, I have to give my consent, as he did, to the prosecution of those offences, and it can be extremely complicated. With all due respect to the Committee that you and I served on, and the Committee you now serve on, it is not easy to ensure that there is general acceptance of the premise for the need for natural justice and having counsel to put your case on your behalf; and all the other considerations which apply in a criminal court. Hence, I would lean towards isolating that offence—hopefully, small in number, although when I read the evidence of the Home Secretary I did not think the size of the numbers appealed to Lord Mayhew, although the same could apply generally, so that is not an argument—but hopefully it would be small in number. However, whether they are many or small, the ordinary citizen (and that includes the Member of Parliament) needs the protection of the courts of law to ensure that the case is properly tried and properly proven. I attach very great importance to that. A Member of Parliament should not be put in a worse position than anyone else.

Lord Wigoder

  278. If we take the situation where criminal jurisdiction is given to the courts to deal with offences of corruption involving Members of Parliament, there will clearly be some cases that will emerge which will involve a detailed examination of proceedings in Parliament—not all, but some. There are then three situations, are there not, which will arise. One is that if the criminal courts are to be enabled to consider that sort of case, there will have to be a very, very drastic alteration to the Bill of Rights—a very drastic amendment indeed. The second alternative is that if there is no alteration to the Bill of Rights, those cases involving proceedings in Parliament would, in effect, be remitted back to the House of Parliament—whichever House it is—because the criminal courts would decline jurisdiction. That again might have some difficult consequences in relation to the complex cases, in particular, that have been mentioned. Is there a third alternative which is worth a comment? If a case turned out to involve proceedings in Parliament it would be possible, would it, for Parliament itself by statute to be able to decide whether or not to waive its privilege in that particular case. That would then enable the House of Parliament concerned to determine, as a very small number of cases which do involve legal proceedings, whether it is a case of such consequence in one way or another that clearly the criminal courts are better enabled to deal with it; or whether it is perhaps a relatively unimportant case, or a case involving the niceties of Parliamentary practice and procedure which might be better dealt with by the Commons itself. Would that be an approach worth looking at?
  (Mr Morris) Certainly it is worth looking at. The options canvassed by the Home Secretary and the two further options canvassed by the Clerk of the House, they are all in one way or another nuances of that kind of halfway house. One of the difficulties of a halfway house, whether it be that one or one of the other four, is that it would involve a preliminary adjudication by the House. The preliminary adjudication could split on party lines. It could prejudice a further trial if there had been considerable debate on that issue. Therefore, it could work to the detriment of the Member. All those arguments, one way or another, apply to the various options; short of keeping the position as it is or having the full all-or-nothing application of the criminal law. I spent quite some time looking at the objections to each of those. I will not weary the Committee by going through them, but they are in general along those lines and the Committee may want to consider them.

Lord Merlyn-Rees

  279. We are talking about bribery and amending the law on bribery. In my 35 years in this building, if I try to write down the number of examples of bribery, I find they are few and far between. So we may be trying to amend the law for an esoteric situation in general about bribery which, in Parliamentary terms, does not arise very often. What sort of examples are there? How can a Member of Parliament be bribed? It is much more likely to be false pretences than bribery.
  (Mr Morris) I think this ground has been gone over in the evidence of the Home Secretary; and that kind of comment was made, if I recollect correctly. Yes, in my experience I would regard this kind of allegation against a Member to be very few and far between. But if one is to change from the present situation, one has to have a good system which is just and is perceived to be just. That is the first point I make. Now, whether it is false pretences or bribery, of course, depends upon what view you take of the influence of a member. I think a member of a local authority—Sir Patrick Cormack took objection to comparing a Member of Parliament to a member of a local authority, but they obviously have very much more power—there have been some unhappy cases, such as in the planning world, of corruption, more than for ordinary Members of Parliament. That I would agree with. However, I took particular regard of the Select Committee responding to Nolan, as the President will recall, to the position of a Member being able to organise and to take a delegation to a Minister when he was in the pay of a particular corporation. Now, it may be that the Member in organising the delegation does not achieve very much, but it is perceived to be a worthwhile commodity for the exchange of certain favours which the Member receives. The House resolved to deal with that particular situation. The Committee accepted my amendment and I am grateful to my colleagues on both sides because I believe it was a unanimous recommendation—and most of them were—of the Select Committee. That is part of the resolution. There are other means of influence, or in perceiving to influence, so far as the donor of the gift is concerned. Although the case is hopefully—and should be, certainly with the new rules—few and far between, I take the firm view that this kind of issue should not be allowed to fester.


 
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