Privilege (Hansard, 15 January 2004)

§ Mr. A. J. Beith (Berwick-upon-Tweed) (LD)
I beg to move, That the First Special Report from the Constitutional Affairs Committee (House of Commons Paper No. 210) be referred to the Committee on Standards and Privileges.
I am grateful to you, Mr. Speaker, for confirming that the report raises an important matter and for giving it precedence over all other business today. I hope that we can deal with it expeditiously, so that right hon. and hon. Members can go on to deal with the Bill set down for debate this afternoon. However, the report is important because it concerns the freedom of witnesses to give evidence to the House and its Committees without fear of penalty or punishment. That freedom has been reasserted by the House on many occasions.
The Constitutional Affairs Committee conducted an inquiry last year into the Children and Family Court Advisory and Support Service—a non-departmental public body whose board was appointed by the Lord Chancellor. Ms. Judy Weleminsky, a CAFCASS board member, submitted written evidence on her own behalf, much of it critical of the management of CAFCASS. She received advice that she was protected by parliamentary privilege when giving evidence to the Committee.
Ms. Weleminsky's evidence, along with evidence from many other witnesses, greatly assisted the Committee in reaching its conclusions—which were severely critical of CAFCASS management, of the organisation's failure to meet its responsibilities to vulnerable children affected by court proceedings and of aspects of the Lord Chancellor's dealings with CAFCASS.
One of the Committee's recommendations was that a fundamental review of the board of CAFCASS should be undertaken. The Government accepted that and other recommendations and commissioned a review. The chairman of CAFCASS had already resigned. Following the review the Lord Chancellor asked all the remaining board members to resign. Ms Weleminsky declined to do so.
In December, Ms Weleminsky received a letter from the Lord Chancellor that suspended her from duty as a board member and indicated an intention to dismiss her, on grounds that included an allegation that she had failed to behave in a corporate manner". Accompanying the letter was a document to which the letter referred—a review by a senior civil servant in the Department of Constitutional Affairs, Mr. David Crawley, of a dossier submitted by the former Chairman of the CAFCASS board, Mr. Hewson, before he resigned. The first of the six specific allegations set out in the document that accompanied the Lord Chancellor's letter was that Ms Weleminsky presented separate evidence to the Select Committee looking into CAFCASS, in a manner which undermined the organisation. The document concluded that that evidence was (and was intended to be) in conflict with the evidence that CAFCASS itself had previously submitted to the Committee". The document goes on to list other allegations, which Ms Weleminsky disputes but which are not part of the Committee's concern in relation to today's motion. Our 976 concern is that the words to which I have referred, even if they are combined with other allegations, could amount to a serious case of interfering with a witness.
As soon as that matter came to my notice I wrote to the Lord Chancellor expressing grave concern and asking for an explanation. After taking advice, the Lord Chancellor replied that his decision to suspend Ms Weleminsky did not depend wholly, or in part, on the fact that she had given evidence to the Select Committee…I make it clear that no disciplinary action can be based on the fact of giving evidence to the Select Committee but further added that having regard to the reference in Mr. Crawley's dossier to this allegation, I should have made this clear". He went on to give his view that even ignoring this allegation, suspension was clearly justified". The Lord Chancellor's letter to Ms Weleminsky also reveals that he was considering her dismissal on the basis of allegations in the dossier before the review and before the decision to ask the entire board to resign. That correspondence is set out in appendices to the Committee's special report.

§ Mr. Douglas Hogg (Sleaford and North Hykeham) (Con)
Even if the Lord Chancellor is correct when he says that he did not take any account of the evidence given to the Select Committee, it is deeply worrying that a senior civil servant—no doubt reflecting the general understanding within the civil service—should have thought that giving evidence to a Select Committee was a proper subject for disciplinary action.

§ Mr. Beith
That is one of the reasons for the Committee's wish that the matter should be considered by the Committee on Standards and Privileges. Personally, I am not at all surprised that any witness receiving the Lord Chancellor's original letter together with the document containing the allegation should form the impression that they were being punished, at least in part, for giving evidence to a Committee of the House. Having considered the Lord Chancellor's reply, my Committee concluded that the process of disciplining Ms. Weleminsky, starting with the dossier prepared by Mr. Hewson, continuing with the review of the matter by Mr. Crawley and ending with the letter from the Lord Chancellor to Ms. Weleminsky and the supporting document might be regarded as a prima facie breach of privilege. Committees of the House that seek to carry out effective scrutiny depend on being able to assure witnesses that they can give evidence freely, without fear of penalty. It needs to be clearly understood in Departments, public bodies and elsewhere that if that freedom is found to be threatened, it will be protected.
The Committee on Standards and Privileges has the power to establish whether a breach of privilege has taken place and, if so, to make whatever recommendations it believes appropriate. Accordingly, I ask the House to refer the matter to the Committee on Standards and Privileges.

§ The Leader of the House of Commons (Mr. Peter Hain)
I congratulate the right hon. Member for Berwick-upon-Tweed (Mr. Beith) on the typically even-handed manner in which he moved the motion.
977 I want to make my position clear at the outset. With the leave of the House, I am happy to respond to any appropriate points that are made in the debate. The Government fully support the motion because it is right for the House to refer possible breaches to the Committee on Standards and Privileges and we welcome its scrutiny in this case.
The Government fully respect the privileges of the House and we will uphold them to the end. They are crucial to the independence of Parliament and the strength of our democracy. We are strongly committed to Select Committees. We have taken steps to increase their independence and effectiveness and we fully accept the need for witnesses to be able to speak out to Select Committees without fear or favour under the protection of parliamentary privilege.
The Government regard any possible breach of privilege with the greatest seriousness and look to the Committee on Standards and Privileges to establish whether such a breach has occurred in this case.

§ Mr. Hogg
I hope that the right hon. Gentleman will tell the House what directions will be given to the civil service to ensure that never again will a senior official regard giving evidence to a Select Committee as an appropriate ground for disciplinary action.

§ Mr. Hain
Although the right hon. and learned Gentleman has raised a point that is important to him, it would be wrong of me to anticipate the Select Committee's report.
It is not appropriate for me to deal here with the substance of the case. I simply draw attention to the statement that the Secretary of State for Constitutional Affairs made in his letter to the Committee. It appears as appendix 3 of the Committee's special report and states that it would be quite wrong to discipline someone in her position for having given evidence to the Committee, and I would not do so…I completely understand that individuals must feel free to give evidence to Select Committees …the fact of her giving evidence cannot form part of any action against her.
My right hon. Friend would welcome an investigation by the Committee on Standards and Privileges to clarify the matter and will, of course, provide whatever further information it requires to reach its conclusions.

§ Mr. Oliver Heald (North-East Hertfordshire) (Con)
I thank the Leader of the House for the welcome assurance that the Government will support the motion. I join his tribute to the Chairman of the Select Committee, the right hon. Member for Berwick-upon-Tweed (Mr. Beith), for his presentation of the motion.
As the Leader of the House said, it would be wrong to prejudge the outcome. However, in supporting the motion, I emphasise that the allegation that Lord Falconer threatened a witness with dismissal for giving evidence to Parliament under the protection of a Select Committee is serious. It should therefore be referred for investigation. The ministerial code makes it clear that Ministers should require civil servants who give evidence before parliamentary Committees to be as helpful as possible in providing accurate, truthful and 978 full information. It cannot be said that threatening someone's job for giving evidence to a Committee fulfils that standard.
The allegation would be serious if it were made against any employer, but it is doubly so when it involves a Minister who is also the most senior legal figure in the country. It is worth recalling that the Lord Chancellor has a parliamentary role in that he is the occupant of the Woolsack—the presiding officer of the House of Lords.

§ Mr. Speaker
Order. I like to give Front-Bench spokesmen leeway but we must be careful. We have a motion to put the matter before the Committee on Standards and Privileges. It is for the Committee to judge it and talk about the individuals involved. The matter will then revert to the House, when the hon. Member for North-East Hertfordshire (Mr. Heald) and every other hon. Member will have the freedom to argue the case about who was right and who was wrong. We must be careful at this stage.

§ Mr. Heald
I fully accept your ruling, Mr. Speaker. The reason for setting out the seriousness of the allegation is simply to emphasise that it should be referred—

§ Mr. Clive Soley (Ealing, Acton and Shepherd's Bush) (Lab)
On a point of order, Mr. Speaker. I welcome the way in which the right hon. Member for Berwick-upon-Tweed (Mr. Beith), who chairs our Committee, put the case. It is important to get the case right. There are issues about the civil service and there may be matters about Ministers to consider. However, we should not judge them now. It is for the Committee on Standards and Privileges to determine the matter and we should debate it subsequently if necessary. Frankly, the less said the better at the moment. I ask you, Mr. Speaker, to rule that we simply refer the matter and get on with the business.

§ Mr. Speaker
I have already ruled on the matter. Again, I plead with the hon. Member for North-East Hertfordshire and others who are seeking to catch my eye to be very careful.

§ Mr. Heald
I fully accept that, and I pay tribute to the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) for his conduct of the matter in Committee.
I want to make two other points. First, as the right hon. Member for Berwick-upon-Tweed said, the Committee and the Government accepted the points that were presented. Consequently, CAFCASS, which provides important services to vulnerable children, could be reformed in the manner for which the witness had campaigned for a considerable time.
The lady has been suspended on the ground that she was not corporate enough and that confidential information was breached. The Committee will have to explore that because the Nolan rules on the conduct of members of public bodies are clear and include nothing about having to be corporate or to respect information. 979 They are about independence, openness, accountability and sticking up for one's views as a member of a public body. On that basis, we strongly support the motion.

§ Sir Patrick Cormack (South Staffordshire) (Con)
rose in his place and claimed to move, That the Question be now put, but MR. SPEAKER withheld his assent, and declined then to put the Question.

§ Keith Vaz (Leicester, East) (Lab)
I shall be brief, but I speak as a member of the Constitutional Affairs Committee. I fully endorse the words of the Chairman, who put the case very even-handedly. It is important that the issue does not distract from the excellent report on CAFCASS that the Select Committee produced. It showed the huge failings in that body's operation and resulted in a rare example of the Government doing what a Committee wanted it to do, in this case changing the way in which the board operated and making a fresh start.
To counter the point that the hon. Member for North-East Hertfordshire (Mr. Heald) made, the Lord Chancellor's letter of 8 January, which is published in the documents, makes it clear that the fact that the matter has come before the House has nothing to do with the way in which the witness gave evidence. He states that three times.
I hope that the Committee will consider confidentiality. When witnesses sign confidentiality clauses or appear in a confidential relationship and subsequently give evidence to a Committee, it should be clear that Parliament overrides that confidentiality. It has not been clear in the past, and the referral gives the Committee an opportunity to pronounce on that.

§ Mr. Eric Forth (Bromley and Chislehurst) (Con)
In deliberating on whether I should support the motion to refer the matter to the Committee on Standards and Privileges, I inevitably have to make some judgment about the contents of the report. It would be difficult for any hon. Member to make a decision about the relevance of referring the matter without making at least some judgment about elements of the report.
Several matters are involved, but two of the most salient are the political aspect, which is the Lord Chancellor's involvement, and the one that my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) raised concerning the conduct of a senior civil servant.
My plea, which I hope it is legitimate to make in this debate, is that when the Committee on Standards and Privileges comes to examine the matter―I hope that it will, as, on balance, I think I support the motion—it will feel free to examine the political aspects involving the Lord Chancellor, notwithstanding his own phrase in the document before us, that I completely understand that individuals must feel free to give evidence to Select Committees", for which I suppose we must be grateful. I also hope that the Standards and Privileges Committee will spend as much time as it feels is necessary examining the role of 980 the civil servants involved and, as has already been touched on, the perception that civil servants have of the role of this House and its Select Committees. Surely that is what is really at stake here, and we should therefore be grateful to the Committee chaired by the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and to you, Mr. Speaker, for allowing us to pursue the matter.
If the examination shines a light on the attitude of senior civil servants to members of the public, or of public bodies, giving evidence to Select Committees, that will be a matter of the utmost gravity. It is very important for the Committee on Standards and Privileges to take all the time it needs, and to go as far as it needs, in examining the ramifications of the case. It might look like just one case, and it might or might not be isolated, but it sets the alarm bells ringing over the attitude of the Government, in political and administrative matters, to the Committees of this House and to the relationship between the Executive and the legislature. This case has the potential to be that important, so I urge the Committee to treat it with the utmost gravity and to go into it in whatever detail is necessary.

§ Mr. Richard Shepherd (Aldridge-Brownhills) (Con)
I want to express my gratitude to the right hon. Member for Berwick-upon-Tweed (Mr. Beith) for making such a succinct and powerful case in moving the motion. I agree with him, and with the Leader of the House and my hon. Friend the Member for North-East Hertfordshire (Mr. Heald), that this matter is important. It touches on something essential to the functioning of this House as a corporate body, if I may pick out language from the report. We have to be assured that any witness coming before a Select Committee is protected, and I recognise, as did the Government when they supported the Public Interest Disclosure Act 1998, that the concept of whistleblowing is important.
The circumstances clearly laid out in the report show that the right hon. Member for Berwick-upon-Tweed and the Constitutional Affairs Committee have grasped that, because they have brought the matter to the House to ask for it to be referred to the Standards and Privileges Committee. Like everyone who has spoken so far, I support the motion, which is in the interests of this House and important for those who do not understand the mysterious word "privilege". Privilege enables people to give their knowledge freely and honestly, without retribution, better to inform us in our judgments. Privilege in this instance is a protection not of our vanity but of the wider public interest. I know that the Government have always recognised that, in this and in the preceding Parliament, and that they work closely with Public Concern at Work. The issues surrounding that public interest that are raised are fundamental to privilege in this House.

§ Peter Bottomley (Worthing, West) (Con)
Judy Weleminsky and the others who gave evidence to the Constitutional Affairs Committee when it was considering the Children and Family Court Advisory and Support Service will know that what they said was 981 important not only to the Committee's report but to the way in which the Government are taking forward the important work that CAFCASS is doing. We should recognise, as have others, that the Government have paid attention to that report, which was important to the children whose interests are supposed to be represented by CAFCASS, and to their futures. That is the underlying point from the Constitutional Affairs Committee.
From the point of view of the House, the issues have been well spelled out. I should like to pick up on the question, posed by the hon. Member for Leicester, East (Keith Vaz), of when confidentiality agreements can be overridden in the public interest and in Parliament's pursuit of information. This time, that is an issue not for the Standards and Privileges Committee but for the Public Administration Committee or some similar Committee. I would ask that Committee to consider the very tight rules that the new Ofcom board is laying down for its members. I do not want to criticise that board, but that is an illustration of how tightly some such rules are now written. Being corporate and acting in solidarity can matter, but there are times when that needs to be overridden. It is worth having a serious investigation into that, which goes beyond this investigation into privilege.
There are some interesting questions on this issue. For example, from what board meetings has this board member been suspended, if that board has resigned? That takes us somewhat into Alice in Wonderland territory. We need to ask one simple question. If that lady had not refused to resign, would the House have known that evidence in the Department had come from the former chairman of CAFCASS—whom some of us believe should have resigned when our first Committee report came out—that showed that people were fingering her for the act of making information available in giving evidence to the Select Committee?

§ Keith Vaz
Before the hon. Gentleman strays into the details of the case, may I ask whether all the other members of the CAFCASS board have resigned?

§ Peter Bottomley
I cannot confirm that. I know that the board members have agreed to resign, but I am not competent to say whether the board no longer exists, and it is not relevant to the debate. I am in line with those who do not want to go into the detail, but I want to make the broader point that unless Ms Weleminsky had refused to resign, the House would not have known that the evidence was available, had been given by the outgoing chairman, was in the hands of officials and was listed as point No. 1 by the reviewing official from the Scotland Office. It is only because she declined to resign that we know that. She deserves praise for making it possible for us, as a House, to know what was going on. That is important because every week, officials, members of public bodies and others have to consider whether to make information available. Despite some embarrassment and difficulty, they have to overcome their fears. That is why the point about privilege is important.

§ Mr. Soley
The hon. Gentleman is not helping the situation, although he did a very good job with the rest of us on the Constitutional Affairs Committee 982 yesterday. It is the job of the Standards and Privileges Committee to go into this sort of detail. It is for the House to debate that when the Committee has reported, if we think that that is appropriate. To go into such detail now is in effect to put on trial other people as well as the lady concerned. That is just not fair.

§ Peter Bottomley
At the risk of upsetting the hon. Gentleman, I think, bluntly and flatly, that he is completely wrong. I do not care whether I am the only person in the House who makes this point, but unless that lady had refused to resign, we should not have known what was disclosed in the documents. That is the point that I am trying to make, and on that point I shall end my speech. We actually depend—[Interruption.] This might be a laughing matter for some, but that does not serve this House.
We relied on that lady to give evidence in the original inquiry, and we would not have known what evidence against her was being accumulated if she had not refused to resign. My point is no greater than that, and it is not partisan. The hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) will recognise that I have not mentioned the Lord Chancellor or gone into details about him. I have made the sole point that we have this information because of her actions.

§ Kevin Brennan (Cardiff, West) (Lab)
I want to make a few brief remarks as a member of the Public Administration Committee. On the remarks made by the hon. Member for Worthing, West (Peter Bottomley) and my hon. Friend the Member for Leicester, East (Keith Vaz) on confidentiality clauses, the Public Administration Committee is taking forward an inquiry into inquiries, and this matter may fall within its ambit.
One of my constituents approached me about the Chairman of the Committee's inquiry because she was giving evidence. She wanted to ask my advice as her Member of Parliament about how she should approach giving evidence to the Committee on the CAFCASS inquiry. I told her that she should give her evidence truthfully, without fear and in the knowledge that there would be no repercussions for her professional career. I am sure that every hon. Member would have given the same advice to any constituent who approached them on this matter. That is why I welcome the statement from the Leader of the House that the Government support the reference to the Standards and Privileges Committee. At this point, it would be inappropriate for us to explore in any further detail the minutiae of the case.

§ Mr. Clive Soley (Ealing, Acton and Shepherd's Bush) (Lab)
I had not intended to speak and it is perhaps a pity that people have spoken to the degree that they have, but I now feel the need to say that an important, central and narrow point was dealt with by the Committee on Tuesday and to tell the hon. Member for Worthing, West (Peter Bottomley), who was helpful in my view and absolutely right in that Committee to argue the cases that he did, that that narrow and specific point is that no citizen of the United Kingdom should face any fear or favour over giving evidence to a Select Committee. That is the core point.
983 Around that central point in this case, there are many arguments about what was happening in the background. It is the job of the Standards and Privileges Committee to highlight what needs to be said there and to produce the report. It may be right to say many of the things that are being said now, but to say them about other people who are not in a position to answer for themselves at this stage, when we have not had the benefit of the report, is wrong.
That is why, very simply, we should refer the matter on this narrow issue knowing—I have full confidence in the Standards and Privileges Committee in this respect—that the Committee will do all the background work necessary to focus on the underlying factors, including the other members of the board, civil servants and the Minister. When the Committee has done that and produced its report, it may be important and necessary to have a debate in the House. If so, that will be the time to speak. This is not the time to finger other people or to start putting them on trial. That is wrong.

§ Sir Patrick Cormack (South Staffordshire) (Con)
All I want to say is that, clearly, this is a serious matter. I have every confidence in my right hon. Friend the Member for North-West Hampshire (Sir George Young) and his Committee, but I want to express the hope that they will be able to deal with the matter not only thoroughly, but expeditiously, so that the substance can be debated at the earliest reasonable date.