Letter from the Home Secretary to the
Chairman of the Joint Committee
I am writing to you to ask if your committee
would consider whether it would be considered desirable to bring
at least some of the functions of Parliament within the scope
of the proposed Freedom of Information legislation, having regard
to the privileges of Parliament.
The White Paper (Your Right to Know-copy attached)
proposed that Parliament should be excluded from the Act. In its
report on the White Paper, the House of Commons Select Committee
for Public Administration criticised the proposed exclusion for
Parliament. In its response (also attached), the Government said
that it would be guided by the views of Parliament itself. I am
therefore asking you formally if your committee has any views
on this issue.
I should add that the Ministerial sub-committee
on Freedom of Information considers that it may be possible to
establish a clear dividing line between the Parliamentary functions
of both Houses and the purely administrative ones, with a view
to including the latter within the scope of the Act.
The Act will provide for an independent commissioner
who would regulate bodies covered by the legislation to ensure
their compliance with it. We would need to ensure that the role
of the Commissioner did not cause difficulties in relation to
Parliamentary Privilege, if the Act applied to any functions of
Parliament.
An alternative approach may be for Parliament
to resolve that it would be bound by the principles of the Act,
but for any complaints about non-compliance to be dealt with as
a contempt.
I expect to publish a draft Bill on Freedom
of Information early next year and it would be helpful to have
your views before then if at all possible. If you need any further
information about the proposals please let me know.
I have written in similar terms to the Speaker
of the House of Commons and may officials have written to the
Clerks of both Houses.
Jack Straw
30 November 1998
Reply from the Chairman of the Joint Committee
to the Home Secretary
The Joint Committee have asked me to reply to
your letter of 30 November on the proposed freedom of information
legislation.
As both the White Paper and the Report of the
Select Committee on Public Administration recognised, there are
good constitutional reasons for excluding "proceedings in
Parliament". Apart from inconsistency with the constitutional
principle enshrined in article 9 of the Bill of Rights, 1689,
at a practical level it would not be right if it was possible
to obtain through the Act such material as evidence which a select
committee had chosen not to report, or preparatory papers relating
to a speech or question. On the other hand it is difficult to
envisage a threat to parliamentary sovereignty if wholly administrative
matters such as the operation of Parliament's data network or
its catering facilities, or staffing or employment matters were
included.
The difficulty may be in drawing a line. "Proceedings
in Parliament" is the term used in ancient statute, Article
9 of the Bill of Rights 1689. It is not always clear today what
that undefined term includes and the courts and Parliament may
not always agree. For example, the House of Commons set up the
Register of Members' Interests in the belief that all matters
pertaining to that register were "proceedings in Parliament"
and therefore excluded from scrutiny by the courts. On the only
occasion this issue has come before a court (in Rose v Edwards),
Mr Justice Popplewell decided that they were not. We are sure
that Parliament would continue to contest this interpretation.
All conversations and correspondence between members and the Commissioner
for Standards relating to registration are clearly parliamentary
in character and ought not to be disclosed except on the authority
of the Select Committee on Standards and Privileges.
The constitutional implications of requiring
disclosure of other material directly connected with the duties
of a member of parliament to the public would also need to be
carefully considered. For example, it is unlikely that the affairs
of parliamentary bodies set up by statute, such as the Ecclesiastical
Committee, or the House of Commons Commission, would be considered
to be "proceedings" but we believe that their papers
should be subject to disclosure only when they relate wholly to
administrative matters. Member's correspondence, particularly
correspondence with constituents or with Minsters and others on
constituency matters, do not form part of proceedings. Nonetheless
correspondence of this kind is of fundamental importance to the
work of members and if often confidential. It should clearly be
excluded from the legislation. There are also other activities
closely connected with members' exercise of their parliamentary
duties, such as membership of party and backbench committees,
which it might be thought to be appropriate to exclude.
The Joint Committee have also noted that in
both Australia and New Zealand which have had freedom of information
legislation for some time, it has not so far been found possible,
despite much careful consideration, to find any way of including
any part of Parliament's activities satisfactorily.
Lord Nicholls of Birkenhead
Chairman of the Joint Committee
26 January 1999
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