Examination of Witnesses (Questions 260
TUESDAY 3 FEBRUARY 1998
MORRIS QC AND
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.
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.
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.
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 concernedI
will come to the second part of it in a momentit 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
timeindeed, regularly nowit 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'
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 hopebut
I do not know the answerthat 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
(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 Membersand maybe even present Memberswho
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
(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
(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 caseunusual in the sense that I
have no experience of it ever happeningof 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
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.
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 viewagain, subject to argument and
subject to considerationand 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 conductat
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.
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.
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 QCbut not necessarily in your Cabinet
roleand in view of your membership on the Privileges Committee,
do you think that a parliamentary committee is actually capableand
this is the practical pointis 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
(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 offencehopefully,
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 argumentbut 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
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 Parliamentnot 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 Rightsa 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 Parliamentwhichever
House it isbecause 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.
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 authoritySir
Patrick Cormack took objection to comparing a Member of Parliament
to a member of a local authority, but they obviously have very
much more powerthere 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 recommendationand
most of them wereof 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 hopefullyand should be, certainly with the
new rulesfew and far between, I take the firm view that
this kind of issue should not be allowed to fester.