Examination of Witnesses (Questions 231
TUESDAY 3 FEBRUARY 1998
MORRIS QC AND
231. Mr Attorney General, the Committee is grateful
to you for coming to give us assistance in carrying out the review
of parliamentary privilege on which the Committee is engaged.
The questions that the Members of the Committee would like to
ask you will be directed primarily to you, but if at any stage
you and Mr Jonathan Jones think the answer can come more helpfully
from him, we would be very pleased to receive the answer from
whoever you consider can assist us most. Before I lead off with
the questioning, is there anything that you would like to say
to the Committee?
(Mr Morris) My Lord Chairman, may I say
something very shortly? As you have indicated, I have Jonathan
Jones, a legal adviser from my department, with me. I am sure
if I cannot satisfy you that he will do his utmost so to do. It
may be helpful, my Lord, for me to say a general word about my
role as an adviser to Parliament. The job of advising the Houses
of Parliament is one of a number of hats which I wear as Attorney
General. Others who have been Law Officers here know full well
what those functions are. That function is normally seen as covering
three areas. First, the constitution and conduct of proceedings
in the House, including questions of parliamentary privilege.
Secondly, the conduct and discipline of Members. Thirdly, the
meaning and effect of proposed legislation. As a parliamentarian
of quite a few years' experiencemore years than I care
to rememberI attach great importance to my role as an adviser
to Parliament. I am always at the House's disposal if my advice
is needed and it has been on a few occasions since I took office.
I am glad to say that my office has good working relations with
the House authorities so the system works well. As the Committee
will be aware, the Attorney may intervene in court proceedings
to assert the privileges of either House, either of his own motion
or, more usually, at the request of the House authorities or indeed
the trial judge. Such cases have usually arisen where parties
seek to question proceedings in Parliament contrary to Article
IX of the Bill of Rights. In that way, the Attorney performs the
important function of representing the interests of Parliament
in the courts and I would expect that function to continue. In
the past, the Attorney was a full Member of the Committee of Privileges
in the Commons and would generally lead the questioning of witnesses.
I was also a Member of the Committee as Shadow Attorney for many
years, as well as a Member of the Select Committee on Standards
in Public Life, dealing with the implementation of the Nolan Report.
My impression was that full-time membership of the new Standards
and Privileges Committee which now covered a considerably wider
area than the remit of its predecessor could sometimes represent
an excessive burden on the Attorney who, after all, has many other
responsibilities as a law officer and a member of the government.
I therefore argued successfully for the present arrangement, which
is that the law officers are not members of the Standards and
Privileges Committee but they may attend meetings, take part in
the deliberations, receive papers and give such assistance to
the Committee as may be appropriate. In my view, that is a satisfactory
arrangement which ensures that I am kept informed of matters which
come before the Committee and can give advice and assistance quickly,
if it is sought, without my needing to attend every meeting. I
should now be happy to do my best to answer any questions the
Committee may have. I hope that, if there are any detailed questions
of law which I am unable to deal with here, the Committee will
allow me to go away and give considered advice at a later date.
I am in your hands.
232. Let me start with a very wide ranging question.
Do you think that there are any aspects of parliamentary privilege
which have become outdated?
(Mr Morris) Obviously, there is scope for refining
the matters covered by privilege. I come immediately to a matter
which I have some knowledge of regarding a commercial contract
in regard to the corporate officer of the House of Commons. The
issue of what kind of evidence could be adduced arose. Some of
the documents which were relevant to the case in which there was
an action against the House would need to be disclosed under the
ordinary rules of litigation. Those documents were covered by
parliamentary privilege. It was therefore necessary for the President
of the Council to table a resolution seeking the agreement of
the House to their disclosure. It is an issue involving litigation
regarding what is termed agreeably the "fenestration"
of the HouseI suspect putting in windows of some kind or
another! I think there is a strong case that parliamentary privilege
should not apply to the activities of the House when acting through
the corporate officer in a contractual or commercial capacity.
It is difficult to see how that needs to be covered by the protection
for freedom of speech, which rightly applies to the House in a
legislative or deliberative capacity. Indeed, I thinkand
I agree with the authoritiesthat it could be positively
damaging to Parliament and its commercial interests if privilege
were to be prayed in aid on that kind of occasion, whereby it
would be positively disadvantageous, at least in theory, to a
contractor, compared with any other organisation than Parliament.
Therefore, it might be difficult for the House to make ordinary
contracts for such things as "fenestration". It is not,
in my viewthis is the point I really want to makeappropriate
in those circumstances to have to rely on resolutions to disapply
privilege in those cases. I say so advisedly because, first of
all, it is an inconvenience; secondly, it is a waste of parliamentary
time. On this occasion, the President put her resolution down
and it was disposed of on the nod, as I recall, but it had to
be explained to those who might be concerned in other parts of
the Houseand I say no moreso that the issue might
be understood. Parliament can, and has in my experience, use such
occasions for a great deal of mischief making. I have rather a
long memory of these matters, but there is an obscure procedure
whereby the planning decision of a minister can actually be debated
in the House. That kind of provision has only been used, I think,
twice, something to do with dockyards on our eastern coast and,
secondly, to my dissatisfaction, regarding a major planning decision
involving a regeneration of industry for Ebbw Vale. 500 Members
stayed down until two or three in the morning in order to cause,
I fear, as much disturbance to the government of the day as possible,
including the then Leader of the House who happened to be the
constituency Member as well. It is those occasions which can be
abused, if some Members of the House are so minded. I do not complain
at all; I say this as a fact. If you are dealing with fenestration
or something of that kind, it is rather odd that it should be
at the mercy of a parliamentary resolution and the difficulties
that might be caused if a demand is made, as it can be made, for
a debate. Therefore, this is an anachronism. While it would not
be easy to define the boundaries of the activities of the House
acting in a commercial capacity, I think one should attempt so
to do and amend the relevant and fairly recent Act in order to
deal with that. That is one point in order to bring our proceedings
up to date. The other perhaps I can mention it in passingis
freedom from arrest. This privilege is limited to civil cases.
In practice, it is of exceedingly limited application and I think
there is a case for doing away with it.
233. Can I take the first stage a little bit
further? As I understand it, in very broad terms, you would favour
a general exception in respect of activities carried out by the
House in a contractual or commercial capacity?
(Mr Morris) Yes.
234. One consequence of such an exception would
seem to be that, in certain circumstances, papers of committees
or subcommittees of the House would be discoverable in commercial
litigation by the courts?
(Mr Morris) Yes.
235. Do you have any comment on that?
(Mr Morris) I have very little difficulty there. We
may return to this problem as regards what might be done regarding
bribery as well. The same kind of problem could well arise. This
is ordinary, civil litigation, my Lord. Government departments
have long experience of having to disclose documents. Now of course,
under Public Interest Immunity, that should be used in more limited
circumstances than formerly. Both sides of the House have agreed
to the harm test, as opposed to a class test. If such an issue
arose, then of course that could be considered and claimed in
appropriate circumstancesI hope these days in exceedingly
limited circumstances. If government departments from former Prime
Ministers down have had to be party to the revelation of important
documents which perhaps, in the ordinary course of things, might
not see the light of day, although I understand the sensitivity,
I suspect, of the House authorities, I cannot understand for the
life of me how they could be in a different position than perhaps
major government departments; or even in my timethose who
have been law officers will have longer experience than myselfI
have had to disclose documents in accordance with the ordinary
rules of discovery. This is the caveat I enter, my Lord: provided
that the field is clearly defined. That is of the utmost importance,
as to where the commercial activity line is drawn. It will not
be a perfect line, but I do not see any difficulties, although
I recognise the sensitivities. I do not see the documents being
in any different class. It could well arise in this case.
236. That would involve a pro tanto amendment
to the effect of Article IX, would it not?
(Mr Morris) Obviously that is what, in substance,
it would amount to but the mechanics of doing it would be to amend
the recent Act.
(Mr Jones) The Parliamentary Corporate Bodies Act
(Mr Morris) It is a very recent Act and it is basically
an amendment of that, I suspect, that needs to be considered.
237. It may perhaps go wider than that in that,
as I understand it, certainly in the House of Lords and possibly
in the House of Commons as well, at times contracts are entered
into but not with the corporate officers. One would think that
the same considerations as those you have mentioned would apply
if unhappily there were any litigation. For example, officials
may be employed under contracts of employment or employment other
than formally with the corporate officer or the House of Commons
Commission. If disputes were to arise about unfair dismissal,
wrongful dismissal, it could be that an issue could come to the
fore about what happened in one of the committees and therefore
again the question of discovery would arise.
(Mr Morris) Yes.
238. It may be that to handle the point that
you are mentioning would need more than just an amendment.
(Mr Morris) It may well be so. I am not in any way
indicating precisely the mechanics of it and how it should be
done. I would stop at this point: that all I would emphasise is
the need for clarity. I think the Employment Acts do apply to
Parliament now. Strangely, the Health and Safety Acts do not apply.
When one has long experience of the kind of cubby holes that Members
occupy as officesand lucky they are to have them compared
with when I first came hereperhaps there is a strong case
for the Health and Safety Acts to apply. It could not be done
overnight. It would have to be looked at very carefully. That
is the kind of field. Yes, I would not dissent from that, with
239. As you have indicated, what is needed is
clarity and drawing the boundary line is important and difficult.
I am not asking you to produce a watertight phrase in Committee.
I think, if you have any particular thoughts about how the boundary
line could be most helpfully expressed, the Committee would be
grateful. The phrase I used was "for contractual or commercial
capacity" which is very loose, but if you do have any more
precise formulation which, on reflection, you think would assist
the work of the Committee, we would be grateful.
(Mr Morris) May we look at that?