Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 280 - 299)



Lord Waddington

  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 simpler—and I think some jurisdictions have been able to look at this—just 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 value—and I am sure the Home Secretary would—the 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 life—fortunately professionally, not in any other way—are 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 organisations—some public, many private—that 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 Office—if there is a collective view of colleagues on this—would 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 council.
  (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.

Lord Waddington

  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 Bill.

  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, bizarre—if I might say so—for 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 regard—and 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 defined?
  (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 possible—though I have no expertise in this—to 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 past—I am not going to go into the instance, if you will forgive me—there 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 summoned—and people have in the past accepted the summons—and 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 own Members?
  (Mr Morris) It has, by way of loss of pay—which we did in the cash for questions—of 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 lies—in 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.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1999
Prepared 9 April 1999