As you may know, the Joint Committee on Parliamentary Privilege was appointed earlier this session to review all aspects of parliamentary privilege. We are now considering a draft report. One of the report's themes is that absolute privilege, which provides complete immunity from any action by the courts, should be no greater than is necessary for Parliament to function effectively.

  The Parliamentary Papers Act 1840 makes an important extension to parliamentary privilege by giving absolute privilege to any document published by order of either House. At present House of Commons printing orders are made as a matter of course for certain categories of document which departments are required to lay before Parliament. The Joint Committee is concerned to identify the criteria according to which the House of Commons should give or withhold its consent to such printing orders.

  One such criterion might be the public interest. The Joint Committee understands why departments might wish to give certain categories of document the protection of absolute privilege, for instance, to safeguard against suits for defamation. The Joint Committee also understands why departments believe that it is appropriate that certain documents which owe their existence to the House of Commons financial duties and constitutional status should be ordered to be printed by the House. But it is not clear why such documents need or should enjoy absolute privilege. Could absolute legal protection be safely removed from some of the categories of document or from all the documents which your department lays before the House? We also wish to identify any other criteria which departments believe are relevant to the House's decision to order a document to be printed.

  I ought to make it clear that the Joint Committee's enquiry relates exclusively to documents laid by your department directly or by ministers on their own behalf of agencies or non-departmental public bodies and which include accounts which you audit under statute. Material which you prepare for the Public Accounts Committee and reported by it to the House are proceedings in Parliament and clearly raise different considerations.

Nicholls of Birkenhead, Chairman

2 November 1998

  I am now writing in reply to your letter of 2 November. Thank you for inviting me to comment on the application of Parliamentary Privilege and the Parliamentary Papers Act 1840 to the published work of the National Audit Office.

  As background, I should emphasise that all National Audit Office reports which are given House of Commons printing numbers are presented to Parliament in discharge of the Comptroller and Auditor General's statutory duties to Parliament. They fall into two categories:

—  the reports on his examinations of accounts which the Comptroller and Auditor General is required to make to the House of Commons (or sometimes both Houses of Parliament), under the authority of the Exchequer and Audit Departments Acts 1866 and 1921, the Government Trading Funds Act 1973 and other body-specific statutes. These are required to be presented to the House alongside the accounts themselves; and

—  the reports which the Comptroller and Auditor General may make to the House of Commons on the examinations he has undertaken of the economy, efficiency and effectiveness (value for money) with which Government bodies have used their resources, under the authority of the National Audit Act 1983.

  My examinations of accounts, and of value for money, are therefore carried out on Parliament's behalf and complete the cycle of accountability for monies voted by Parliament. They are integral to the financial scrutiny and control of the Executive exercised by the House of Commons. It is for this reason that the National Audit Act 1983 formally confirmed the Comptroller and Auditor General as an Officer of the House.

  In your letter you suggest two possible sets of considerations which could be used to assess whether the House of Commons should give printing orders and absolute privilege to particular documents: those relating to the public interest and those to whether documents stem from the financial duties and constitution of the House of Commons. I consider that both are appropriate criteria for the House to apply to my reports, and I confirm that I find the privilege attaching to my published reports valuable in the effective discharge of my responsibilities to Parliament.

  The Committee of Public Accounts are able to take evidence on any of the Comptroller and Auditor General's statutory reports, and in that sense these reports are equivalent to memoranda received by select committees, which automatically attract absolute privilege as proceedings in Parliament. Where I report on matters of particular sensitivity I do so by means of a memorandum to the Committee. It would I think be anomalous if there were to be a difference in status between evidence to select committees, which can be published as a proceeding of the House and evidence, such as my reports, which are published as reports to the House of Commons before the Committee of Public Accounts consider them.

  I also believe that it is in the public interest that the Comptroller and Auditor General's reports to Parliament should continue to attract absolute privilege through the Parliamentary Papers Act 1840. Absolute privilege ensures that the Comptroller and Auditor General is able to make uninhibited reports of the results of his examinations. Such reports are often critical of departments and their performance and sometimes critical of individuals. Although generally they do not give names, it is frequently possible for such individuals to be identified. In drawing up my reports, I naturally exercise my rights responsibly and ensure that the views of those criticised are sought before submitting the report to Parliament for publication. But there could be serious delays and obstruction to the process of Parliamentary accountability if individuals were in a position to delay my reports or frustrate their publication.

  In short, I believe that Parliament's auditor should be able to speak freely and fearlessly to Parliament. An absolute privilege is the bulwark of that freedom, now as in the past.

  I am grateful for the opportunity to comment on this important matter and I should be happy to discuss the implications of these further if you wish.

John Bourn

27 November 1998