Examination of Witnesses (Questions 280
TUESDAY 3 FEBRUARY 1998
MORRIS QC AND
280. I seem to recall, at an early stage in
your evidence, that you said there was a head of steam behind
the demands for the change in the law, in making Members of Parliament
subject to a general law of bribery. I wonder if you would like
to amplify your comments in that regard because many of us in
this Committee have referred, from time to time, to the paucity
of evidence as to the number of cases that arise.
(Mr Morris) The very fact that there are so few cases
hopefully would undermine my argument. I concede that as regards
the head of steam. But I do not think in this day and age that
there is any support for any concept that a Member of Parliament
who behaves disgracefully, or is alleged to have behaved disgracefully,
should be put in a better position than a contractor to a Government
Department or indeed any other ordinary citizen. I have been a
Member for quite a few years, and certainly there is no support
for treating a Member differently. Whether the members of the
public, given that the instances are, thank God, so few, would
support my contention, that may well be arguable. I concede that.
Certainly, if the message came from this Committee or any other
Committee, that a Member of Parliament should retain a particular
privilege, where he has manifestly been bribed, and should be
put in a special position, that would weigh very badly indeed
with the general public.
Lord Mayhew of Twysden
281. I was not surprised to hear you say that
if the courts were given jurisdiction over Members of Parliament
in bribery cases, they would doubtless want to see whether the
conduct complained of was permitted by the rules of the House,
the Code of Conduct of the House. Can one envisage a bribery offence
being established in a court of law, in circumstances where what
is complained about is okay under the Code of Conduct? Should
it be formulated in such a way? Is it realistic to suppose that
you would never get a conviction? If it is difficult to envisage
that, may we not be driven back to saying that perhaps we should
give statutory authority to the Code of Conduct, or the rules
of each House; that you cannot practicably go beyond those when
you are formulating a criminal jurisdiction which will catch the
"corrupt" Member of Parliament.
(Mr Morris) That certainly is a way of doing it. I
would not dissent from that. What I did say, Lord Mayhew, was
that I would expect maybe that I was unduly optimistic. The courts
would take account of our procedures in defining what is corrupt,
in the same way that the courts take into account, in my experience,
the word "dishonest". The reluctance of judges to spell
out what is understood by ordinary people as being dishonest or
not, it is a difficult theme. I would be the first to concede
that. The current situation I envisage is this: A member undoubtedly
has accepted £1,000 for doing this, that, or the other; and
it is obviously prima facie, a clear giving and a clear
receiving. You will be as familiar as I am, if not more so, regarding
the presumptions in ordinary offences of corruption of public
officers. The Member, if it needed a proof that he had done something
by way of shoring up the charge of corruption, he might want to
say, "I was doing this for ten years, asking the same kind
of questions, doing the same kind of activity long before Mr X
gave me the £1,000." That is the kind of issue that
I envisage. It is very much simplerand I think some jurisdictions
have been able to look at thisjust to have the giving and
the receiving. That is enough. But I can see very practical difficulties
in that and I can see a defence counsel, even if the Crown did
not, opening up a whole field of previous conduct. Although I
say what I would hope might be done, I would be less than frank
with the Committee if I did underestimate the practical difficulties
of going along this road. They are considerable and need a very
close examination. This is where I would valueand I am
sure the Home Secretary wouldthe views of this Committee.
282. We keep being told this. We have to break
into the circle of who puts his opinion down on the line. May
I ask you, with all your great experience, whether you think that
a criminal court of law is an apt, an appropriate forum, in which
to consider exactly the kind of defence that you have just envisaged?
Is it appropriate? And, perhaps as a subsidiary question to that:
do you think the courts, the judiciary, would welcome being brought
right into the inner workings of Parliament? Investigating why
Members of Parliament took a particular course: not only those
who are alleged to have committed a particular offence, but those
whom they call in, in their own defence, for example.
(Mr Morris) I cannot speak for the judiciary, but
Mr Justice Buckley certainly did not have any inhibitions in ruling
that in common law it was an offence. That was not appealed because
there was no reason to appeal it. This is because the case did
not go much further forward, if I recall correctly. Our courts,
in the criminal jurisdiction in which I spent my lifefortunately
professionally, not in any other wayare used to dealing
with examinations in some detail. Let us move corruption out of
the way and deal with honesty. They will examine in some detail
and evidence will be produced as regards previous conduct. That
is the kind of thing the juries would be asked to consider, at
the end of the day, using their commonsense. Forget about Parliament,
Lord Mayhew, let us look at activities within a large corporation.
There can be, in my experience, (I have come across it), extensive
spot-lighting of conduct within the corporation, and attempts
to prove consistency or inconsistency, as the case may be. There
is nothing particularly magical because the fount of this particular
part of the evidence is the House of Commons. It is common to
many other large corporations and organisationssome public,
many privatethat have to be examined in the course of allegations
of this nature.
283. Mr Attorney, in favouring the view in respect
of the charges of bribery, that Members of Parliament should be
treated the same as other citizens, do you envisage a single criminal
offence covering everybody, including Members of Parliament and
Peers, or do you think it is preferable for there to be a separate
offence targeted at Members of Parliament and Peers because of
their different and possibly unique functions?
(Mr Morris) In principle, on my original theory it
should be the same for everyone. The Home Officeif there
is a collective view of colleagues on thiswould want to
examine the form and the way it is done. I do not think I can
advance on that any further than the general principle of trying
to put Members in the same position as ordinary citizens. As to
what is the best way of doing it would need a lot of further consideration.
284. Could I take this a little further, because
a possible problem for a single offence for everyone is that then
it is not sufficiently specifically targeted to give a clear answer
on some parliamentary practices such as holding consultancies,
and that inevitably there is going to be a lack of clarity if
one seeks to apply to an MP that which is clear and wholly appropriate
if applied, say, to the chairman of a company or maybe a local
(Mr Morris) Yes. It is not my job, my Lord Chairman,
to ask for legislation, it is for the Home Office to consider
these matters. I certainly would not dissent from your analysis
that it needs a lot of consideration. I am very conscious of the
problems, and I think that naturally, at the end of the day, it
would be for the Home Office, with the machinery and the backing
which it has, which I certainly do not have, to examine which
method is appropriate. I do not think I can carry the matter any
further; it is not really my bailiwick.
285. A primary purpose of Article IX is to promote
freedom of speech, is it not?
(Mr Morris) Yes.
286. Do you think your preferred option regarding
bribery might inhibit freedom of speech in either House?
(Mr Morris) Of course it is possible, but I would
hope not. In a most bizarre case, if a Member of Parliament is
given £1,000 in order to raise a matter and if he does so,
following that, of course, he is in danger of losing his particular
freedom of speech on that particular issue. He might complain
bitterly, "I was raising this matter 10 years ago, before
I had the £1,000." Yes, to that extent it is an inroad
on freedom of speech, because the conduct of a Member following
a bribe is dangerous driving, to put it at its lowest.
287. But not for honest members?
(Mr Morris) Not for honest Members at all. I emphasise
that the overwhelming majority of Members of Parliament would
know this a mile away.
288. If your preferred option were followed,
the House presumably would retain self-regulation in respect of
the same matters. For example, I suppose it might be that if a
Member is charged and acquitted by the criminal courts, matters
could have come to light which none the less were regarded as
offending the code of conduct; or if a Member is charged and convicted,
the punishment given by the court might, in particular circumstances,
be not particularly severe, but the House itself might wish to
take steps. Do you think that your preferred option would impair
self-regulation by the two Houses in either of those respects
or in any other respect?
(Mr Morris) The answer is no, my Lord Chairman. There
are parallels in other bodies which probably apply. I say "probably"
because I have not gone into it in any depth. Take the police
force where they are liable to criminal proceedings for a dishonest
act and, I suspect, also for disciplinary proceedings within their
force. I would expect as a matter of justice that if the matter
came back to the House for separate adjudication, and they were
cognisant perhaps of a much wider area, they would have regard
to any punishment already meted out as a matter of justice and
double jeopardy. The answer is yes.
289. Do you agree that if we do not go down
the road of making MPs subject to a new offence of bribery, there
will remain no adequate way of dealing with the other party to
the offence of bribery, the House of Commons being singularly
ill equipped to try somebody who is not a Member, for having offered
a bribe to a Member of Parliament?
(Mr Morris) I would agree, that is one of the difficulties.
I would agree with you 100 per cent, with respect, on that, because
there is the giver and the receiver, and that certainly is an
initiative which needs attention.
290. I was proposing to pass from bribery, unless
any other members of the Committee wish to pursue aspects of that.
Can I turn to another type of proceeding which is far more frequent
than the serious offence of bribery, and that is defamation. Section
13 of the Defamation Act 1996, as you know, enables a member of
either House to waive his privilege, does it not?
(Mr Morris) Yes.
291. We are now considering what recommendations
should be made in this area of the law. Do you think that as the
law now stands in this regard the law is satisfactory?
(Mr Morris) I am biased, in that I spoke against the
292. You have not had second thoughts?
(Mr Morris) I have not changed at all, but I am not
aware of any proposals to change it. I have re-read my speech
on that occasion. I thought it was the wrong way of proceeding,
but it is there. I think the realistic thing is that we have to
look at the position as it now stands, and we are stuck with it,
certainly unless there is a great radical reforming head of steam
to go back to square one. It was very unusual the way that this
procedure was adopted, rather late at night, if I recall correctly.
All sorts of people came from all sorts of places.
293. I do not have the advantage of having read
your speech on that occasion, which is a disadvantage I will make
good very shortly. At the risk of going over some of the ground
already covered, first of all would you favour the House being
able to waive privilege in the type of situation which at the
moment is covered by section 13?
(Mr Morris) Yes, I do not see any difficulty there.
That is why I recommended that it was odd, bizarreif I
might say sofor a Member to be able to waive the privilege
of the House. I was very conscious of the unsatisfactory position
of a Member wanting to take whatever appropriate action he required
or which was necessary to defend himself or to clear his name.
That was a real, serious problem. What I suggested was that if
a Member found himself in difficulty, then he should apply to
the Committee of Privileges (as it then was) or some other appropriate
committee, and that committee would consider, with all the difficulties
appertaining, whether or not the House should waive its privilege
in that particular regard. I confess, it was not an original thought.
Lord Simon of Glaisdale, whom I remember as a very distinguished
law officer in this House and a very helpful one, as I said on
that occasion, conceived the idea. That was a much more respectable
way of doing it. The curious thing is that this need has never
arisen, or at least there is no evidence of it ever having arisen
for 300 years or more, but it certainly is there. I certainly
would not object to that kind of approach being considered. However,
it is there, we are stuck with it now, that is the law. The distinguishing
feature between the action a Member might take in defamation is
that the Defamation Act now allows the Member to take that action,
whereas how I conceive bribery, which perhaps is also of importance,
is that Parliament as a whole would by statute resolve that problem,
which is a rather different thing. I found it rather odd that
a single Member could do it.
294. If the law were changed and for the future
the Member did not have that right, but the House did, there is
at any rate in theory the possibility that a Member, contrary
to his wishes, could find himself deprived of the protection of
Article IX by the House waiving the privilege in a particular
case. I think of a rather extreme example of an extremely unpopular
member of the House saying something quite outrageous in the House
regarding a respected public figure. The House could, in theory,
waive the privilege, with a consequence adverse to the Member
in court proceedings. Do you have any comment on that?
(Mr Morris) That is why I objected to the House reaching
a view late at night, as I think it was. I think I spoke at about
six, but the debate went on, and in your Lordships' House I think
the amendment was introduced, if I recall correctly, at the report
stage, which does not show Perhaps I should not say it.
I shall leave it in that way. I did believe that most sincerely,
despite the particular problems of this particular Member with
whom I sympathised in this particular regardand I said
so most sincerely. Some of the problems which you have touched
on could arise where two Members were involved in defamation and
one wanted to lift his privilege and the other did not or might
not be able to afford to take on the case. We all know of the
high costs of defamation litigation these days. Many people would
be loath to go into the courts, given the possibilities of what
they might be deprived of ultimately, whatever their pleas are,
or whether they are right or wrong. So I think it is a matter
which should be looked at with care and all these difficulties
looked at properly, for the very same argument that Lord Simon
adduced in your Lordships' House on this issue.
295. Can I turn to a different aspect of parliamentary
privilege, the ability of the two Houses to punish for what they
consider to be a contempt. At the moment the position is that
each House decides whether or not particular conduct constitutes
a contempt, and what action, if any, should be taken. Do you think
that what constitutes a contempt should nowadays be more precisely
(Mr Morris) I think there will always be a category
of conduct which is so damaging to the interests of Parliament
that it should be treated as contempt. I think there is a case
for codification. Some of the cases involving indignities and
reflections, those kinds of matters, need to be brought up to
date. I think it might be possiblethough I have no expertise
in thisto draw up some general code of what constitutes
contempt, but I suspect that it would not be exhaustive, that
there would always be a residual area which could not be dealt
with. When one compares the courts, there is no exhaustive list
of contempt, as I understand it, and of what constitutes a contempt
of the court. Therefore, I think that codification would be a
help, but it would not be exhaustive and there would be a residual
number of things which were not yet covered.
296. Do you envisage that the proposed incorporation
of the European Convention of Human Rights into United Kingdom
law will have any impact on the procedures which Parliament should
follow in contempt cases, particularly involving outsiders?
(Mr Morris) There is a grey area here. I applied my
mind at the early part of this session to a particular instance
which had been drawn to my attention. Whilst one could give advice
on precedent and as to what had happened in the pastI am
not going to go into the instance, if you will forgive methere
was a grey area so far as the European Court is concerned, which
could not be predetermined with any degree of accuracy. So the
answer very simply is that it could.
297. In your view, should the House of Commons
have power to fine?
(Mr Morris) I think it would be very difficult to
persuade the general public, given that our procedures are so
limited, to fine. It has not needed that power. It has not had
it, as I understand it, for hundreds of years, if at all, and
I do not think it is necessary. It may sound rather wet that Parliament
can summon someone, can reprimand someone who is not a Member,
and that there are no particular sanctions, as far as the House
of Commons is concerned, by way of fine or imprisonment. I believe
that the very fact of being summonedand people have in
the past accepted the summonsand the power of the House
of Commons to reprimand, is quite a serious matter. It is a very
serious matter to be reprimanded by the House. I have seen a Member
at the Bar of the House, but that is going back a long, long time
ago. I think it must be even before my time that an editor of
a national newspaper was summoned to the Bar of the House. In
my experience the Committee of Privileges was extremely loath
to punish, and considered very carefully any punishment it attached
to a Member. In my experience it got a consensus before doing
so, which was a very valuable and very persuasive factor. If one
were to extend this to the public, I think there would be considerable
dismay, and I doubt whether it is necessary.
298. Should the House have power to fine its
(Mr Morris) It has, by way of loss of paywhich
we did in the cash for questionsof a month, if I recall
correctly, certainly in one instance, and suspended a Member from
attending the House. I think it is an advantage. The serious matter
is the reprimand and the degree of force of that reprimand. I
do not think I was on the Committee when the case of the former
Member for Winchester was dealt with, therefore there was a gap
when I was not on the Committee, but I believe the House took
a very severe view then, and the Committee of Privileges used
to consider with extreme care before they formulated the exact
terms of the dissatisfaction of the Committee to a Member.
299. Can I finally turn quite quickly to the
question of codification. In their evidence, as you know, the
former Clerk and the present Clerk of the House of Commons concluded
reluctantly that it might now be necessary to codify in statute
the rights and immunities of the two Houses. Such a course would
have obvious advantages, and there are certain equally obvious
disadvantages. On balance, where do you think the advantage liesin
some comprehensive or partial legislation to clarify parliamentary
privilege, or not?
(Mr Morris) I think I have referred on a side wind
to some of these issues, in my earlier evidence. There would be
advantage to some degree in codification. I repeat, it would not
be exhaustive. I have given instances as regards the commercial
aspect. Of course, Article IX in itself is drafted and it speaks
for itself in a somewhat different way to the way that the modern
parliamentary draftsman would, therefore it is uncertain in a
number of respects. One of the matters which I think calls for
legislation follows the decision in Rost v Edwards regarding
whether to provide a definition of proceedings in Parliament to
make it clear that the registration of Members' Interests is included.
That decision at the moment to the contrary stands, and I think
it is a matter to which we should return. I repeat, I have given
two instances. There may well be, in the views of very experienced
Clerks of the House, other instances as well, but it will not
be exhaustive; it will be of assistance. One cannot cope with
a whole host of eventualities which may arise in the future and
perhaps could not be spelt out in hard enough language to deal
with them even on present knowledge.