Legal Beagle by Graeme Edgeler


Parliamentary Privilege, and the summonsing of Crown legal advice

The Epidemic Response has apparently resolved to call on the Director-General of Health, Commissioner of Police and Solicitor-General to provide it copies of relevant material, including legal advice prepared for the government. It is not clear whether summonses have been signed, and served on them, but this appears to be the case and a number of interesting legal questions arise.

This is going to be a long post, so I am going to start with a summary of my view:

  1. The House, and its Committees have the power to call for papers from any person.
  2. The House has the same powers and privileges that the House of Commons had in 1865.
  3. In 2018, the House of Commons exercised a power to require the government of the United Kingdom to provide it legal advice that had been prepared for the Government.
  4. The House of Commons treated the failure of Government to comply with that order as a contempt of the House.
  5. While care should be taken before directing the production of government legal documents to the House of a committee, there is a clear justification for the Epidemic Response Committee to seek the material it has sought, and there a no major concerns around comity with the Courts.
  6. The practice of the government providing the House or its committees with advice from the Law Officers is not unknown in the New Zealand Parliament, but there is an 1875 ruling of Speaker Bell that, if applied, would mean that neither the House, nor its committees could order official opinions of the Law Officer to be produced.
  7. It is not clear whether this does apply, or whether the assertion is correct, especially in light of that the UK direction, and other inroads into government legal professional privilege (including eg the Official Information Act).
  1. If summonses have been served on the Director-General of Health, Commissioner of Police and Solicitor-General, those persons should comply with them, unless or until their effect is stayed, or they are set aside.

This is one of those occasions where the distinction between the House of Representatives and the Parliament of New Zealand matters, so I will endeavour not to stuff it up, but it is useful to begin with the question of where the House gets its powers. In short, it gets them from Parliament. The House acts in a multitude of ways. Parliament acts in one way: enacting legislation.

And, both helpfully, and unhelpfully, the powers of the House are recognised in statute. At least two sections of the Parliamentary Privilege Act 2014 are relevant, although neither wholly answers the question. First is section 8(1):

8 Privileges exercisable and part of laws of New Zealand, journals as evidence

Privileges, etc, exercisable

(1) The privileges, immunities, and powers exercisable by the House, committees, and members are every privilege, immunity, or power that complies with both of the following:

(a) it was on 1 January 1865 (by parliamentary custom or practice and rules, statute, or common law) exercisable by the Commons House of Parliament of Great Britain and Ireland, its committees, or its members; and

(b) it is not inconsistent with, or repugnant to, the New Zealand Constitution Act 1852 of the Parliament of the United Kingdom as in force on (the date of the coming into operation of the Parliamentary Privileges Act 1865, namely) 26 September 1865.

The principal question is therefore: what powers did the House of Commons have on 1 January 1865 that still apply in New Zealand? To answer this, we turn to McGee’s Parliamentary Practice in New Zealand:

The power of the House to inquire into anything that it sees fit has long been held to imply a concomitant power of compulsion to obtain information necessary to carry out an inquiry. These powers—the power to inquire and the power to obtain evidence coercively—have often been regarded as synonymous. However, the House of Commons never claimed a privilege to administer an oath in aid of its inquiry power; and it is not always the case that a body with a power to inquire also possesses a power to order production of evidence. It is preferable, therefore, to regard these as separate powers. The power to secure evidence by requiring the attendance of witnesses and the production of documents is viewed as supporting the power to inquire, and is usually (but not always) co-extensive with it.

The question about whether the House can require the administering of an oath is resolved by the Parliamentary Privilege Act:

24 House or committee may administer oath or affirmation

The House or a committee respectively may, for the purpose of taking evidence on oath or affirmation from a witness examined before the House or that committee, administer an oath or affirmation to the witness.

Importantly McGee notes that:

The New Zealand Bill of Rights Act 1990 is binding on the House and controls any coercive exercise of the power to obtain evidence. Persons against whom the power is exercised have the right to be free from unreasonable search and seizure.

McGee also notes that the power to order witnesses to attend, or for documents to be produced may be delegated by the House to Committee. It has done this in standing orders 196 (which deals with committees with the power to send for person, papers, records) and 197 (which deals with committees without that power). Under the resolution adopted by the House creating the Epidemic Response Committee, the Epidemic Response Committee has the power to send for persons, papers, and records, so I quote only SO 196:

196 Exercise of power to send for persons, papers, and records

(1) A committee with the power to send for persons, papers, and records may order that a summons be issued to any person—

(a) to attend before that committee to be examined and give evidence:

(b) to produce papers and records in that person’s possession, custody or control to that committee.

(2) Every summons issued under this Standing Order—

(a) must state the time and place at which it is to be complied with by the person to whom it is addressed, and

(b) is signed by the Speaker and served upon the person concerned under the Speaker’s direction.

Importantly there is a disjunction between a summons that requires a person to attend to answer evidence, and one that requires production of documents.

This is because of section 25 of the Parliamentary Privilege Act:

25 Privileges and immunities of witness giving evidence on oath or affirmation

(1) A witness examined before the House or a committee and giving evidence on oath or affirmation has, in respect of that evidence, the same privileges and immunities as has a witness giving evidence on oath or affirmation in a court.

(2) This section is subject to any contrary enactment.

A look through the historical antecedents to this section suggests this is mostly directed at the privilege against self-incrimination, but I see no reason why this would not cover oral evidence touching on material that is protected by legal professional privilege. I wondered whether it may be an oversight in the process that adopted the Parliamentary Privilege Act that this extends only to evidence on oath or affirmation, but have concluded it was the intention.

Prior to 2014, the legislated basis for parliamentary privilege was contained in the Legislature Act 1908. It had a more extensive section on witness immunity. A person required under oath to answer questions of either House, or any committee or joint committee, could argue that requiring an answer might incriminate them. If the Committee still felt in needed answers to satisfactorily deal with the issue it was considering role, it could apply to the house for a resolution requiring answers. If such a resolution was issued, answers were then required, but the witness was provided with a certificate of immunity which could be used to stay any civil or criminal case against them for anything they revealed in their answers.

Why would this apply to oral evidence and not documents? Because there’s isn’t a privilege against incrimination in pre-existing documents. A search warrant can be used to obtain them, and a production order can be used to require a person to produce them. That simply isn't what the privilege against self-incrimination means in New Zealand.

The Legislature Act even included a near-identical immunities section to that contained in section 25(1):

(5) Every witness sworn and examined under this or the last preceding section shall have, in respect of the testimony given by him when so sworn, the like privileges, immunities, and indemnities in all respects as are possessed by or belong to any witness sworn and examined in the Supreme Court.

What does this mean? The same thing it means now. Mostly, it is about not being sued, but it too could arguably apply to allow a witness to refuse to answer questions directed at piercing legal professional privilege.

But this doesn’t get us much further toward the question of whether the House (and by extension. Its committees) has the power to require production of government documents protected by legal professional privilege. To advance this further we can look at the experience of both the New Zealand Parliament, and the United Kingdom Parliament.

In respect of the United Kingdom, the position is admirably simple. On 13 November 2018 the House of Commons adopted a resolution requiring “… that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.”

The Government refused and on 4 December 2018 the House adopted a motion: “this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.”

The Government published the material the following day.

My research hasn’t been exhaustive, but there appear to have been no substantive law changes between 1865 and now that would have created a power for the House of Commons that it could exercise in 2018 that it did not also possess in 1865. Certainly, there is a long-standing convention that advice from the Law Officers is not disclosed outside Government. Erskine May (the United Kingdom’s equivalent of McGee) records:

By long-standing convention, observed by successive Governments, the fact of, and substance of advice from, the law officers of the Crown is not disclosed outside government. This convention is referred to in paragraph 2.13 of the Ministerial Code. The purpose of this convention is to enable the Government to obtain frank and full legal advice in confidence. Therefore, the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence before a select committee, and their production has frequently been refused; but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the rules of the House are in no way involved.

But in light of the 2018 experience, that “usually” only gets you so far, as Erskine May notes, footnoting the events listed above:

Although the opinions of the law officers of the Crown given to Ministers have generally been withheld from Parliament (see para 21.27 ), the failure of the Government to comply with a resolution calling for the production of the Attorney-General's legal advice to the Government has been judged to be a contempt.

The experience in New Zealand is not nearly so recent, but also not as non-existent as the Attorney-General suggested in his recent Facebook address. This debate has in fact come up before, and the arguments were remarkably similar. In 1875, the Public Petitions Committee of the House of Representatives was considering a petition in relation to land grant made in Wanganui for an industrial school. One member noted during the debate “that the Committee had over and over again been supplied with opinions from the Attorney-General”. Another member noted that this was the first such request he had known to be refused.

But importantly, the debate was over a motion in the following form:

Motion made, and question proposed, “That it is desirable that the Public Petitions Committee should be furnished with a copy of the Attorney General's opinion on the case of the Wanganui Industrial School Grant.”—(Mr. T. Kelly.)

This is not a motion like that in the United Kingdom House of Commons in 2018. It is more in the nature of a request, with Hansard recording the following exchange with the Speaker:

Mr. MACANDREW asked if the Committee had exercised due diligence, and used the power with which it was invested, to call for persons, papers, and reports. In this case it appeared to him that the Committee had ample power to call for papers.

Mr. SPEAKER said the Committee had not the power to order papers which the House could not order to be produced. The House could not order official opinions of the Law Officer to be produced, and therefore the Committee could not.

While the House voted in favour of Mr Kelly’s request, and the motion recording the view of the House that it was desirable that the opinion be made available, this ruling from Speaker Bell may resolve the issue: if the House of Representatives (for some reason unlike the House of Commons), lacks the power to direct the official opinion of a Law Officer to be produced, then neither can the Epidemic Response Committee.

Of course, in light of the United Kingdom experience, it is not clear that it accurately reflects the privileges of the House of Commons, at 1865 or since. And given that there are public indications that summons have already been issued, there appear to be some indications that the current Speaker, Rt. Hon. Trevor Mallard, may not be following this precedent, so it is useful to consider other matters.

First, there is the question of waiver. The Attorney-General’s Facebook address was remarkable for a number of reasons, but most pertinently that he may have gone so far in his explanation of the government’s legal advice, that he waived privilege in it. He went well beyond what might normally occur, which might include a statement that the Government had obtained legal advice, and was confident of its position. Rather the address included statements such as “on the advice we have received from Crown Law there is no gap in the legality of the powers of enforcement under levels 3 and 4.” The government’s legal position is expanded upon at some length:

I consider that subsection is apt to cover a direction to all New Zealanders for isolation and quarantine, with exceptions as mentioned and is not limited to use only in relation to specified individuals. The provision is that persons can be isolated or quarantined (with no statutory pre-condition that they may have or carry the disease), so there is no stretch of language; and this is entirely consistent with the purpose of these powers – which is to prevent the outbreak or spread of infectious disease.  I observe that the powers set out in s 70 may be contrasted with the powers in Part 3A of the Health Act, which apply to the conduct of an “individual” considered by a medical officer of health to constitute a public health risk.  In cases under Part 3A, the directions in question are directed to the “individual” concerned.

If your position is that the advice is confidential, it is odd that you would decide to publicly air so much of it. I cannot go so far as to say that this amounts to a waiver, or even partial waiver, but if the question is raised at the Epidemic Response Committee, it is something the Chair would properly consider when ruling on an objection being raised over a summons.

The Attorney-General also argued that there was no need for the Committee to see the advice, and that in investigating the legality of the Government’s response to the epidemic, it was potentially trampling on the role of the Courts. I cannot accept this.

It is the role of parliamentary committees to report to the House of action it might wish to take. If a committee considers that there is need for legislative action, it need not wait for a Court to rule that the Government behaved unlawfully.

Parliament passes more validating legislation than we would hope necessary, and while some of it arises because of Court decisions, much of it does not. Neither of the times Parliament validated the swearing-in of Police officers was its decision to do so preceded by a Court decision, and a submission I made to the Government Administration Committee on the Members of Parliament (Remuneration and Services) Bill saw the committee recommend changes to the legislation to validate several years of payments to mid-term replacement list MPs. Waiting for the Courts to rule on any challenge to the lockdown is one possibility, but it does not impinge upon the role of the Courts for a committee, or Parliament itself to form its own view.

Equally, the legal advice available to the Government when it made the decision not to request Parliament to provide new laws for the level four lockdown is relevant to the question of whether the House should maintain its confidence in the Government. Depending on the advice, the decision may have been reckless, or may show ministers being insufficiently sceptical of public servants’ assertions of power. I realise this is anathema to our political system with its very strong whip to actually imagine the House withdrawing confidence, but one option available to a Committee in the right circumstance might be to recommend that the House withdraw confidence, if for example, the committee determined the government had substantially over-reached.

I’d call this highly speculative, but of course it isn’t. We *know* that even if this was recommended, it wouldn’t happen. But the thought experiment establishes the principle. The Government’s legal advice may be relevant to the House’s decision of a matter, or relevant to a committee’s business. And this is something the House has been clear about since at least 1875.

Finally, the concern that complying with a summons might affect the Government’s position in relation to court cases that are now on foot, and that it should be careful . Of course a committee should be careful, but that decision is not one that Parliament has left wholly to the Attorney-General. The Attorney-General noted that the Official Information Act recognised the importance of legal professional privilege, providing that it is a ground upon which release of information may be refused. He did not note, but we should, that it is a discretionary ground of refusal, where release of information must be weighed against the public interest in release. Parliament has entrusted the Ombudsman – an officer of Parliament – with over-ruling government decisions on release of legally privileged material. It is not ridiculous to think that in affording the House all of the privileges and powers of the House of Commons, it might have done the same.

Of course, the House should be careful, but there will times, as the House of Commons determined in 2018, that it’s interest in conducting its business outweighs the Crown’s interest in keeping relevant material from it. I would go so far as to say that if the law does not permit to House to require the production of advice from the Crown's lawyers, it should be extended to allow it.

The government’s expressed concern is that release of its advice may jeopardise legal proceedings that are now before the Courts. I would first note that the Committee’s original requests pre-date the Court proceedings now on foot, but more importantly, in light of the new Parliamentary Privileges Act, I do not see that it would necessarily follow that acceding to a summons would require a waiver in Court. A litigant may be able to see the advice, but that is not the same as being having a right to adduce it in Court. Much Parliamentary material is protected from being used in Court, even though Parliament broadcasts it on live television. I think there is every chance that even if the Solicitor-General’s advice was provided to the Epidemic Response Committee under a summons, a Court will still find the material entitled to the protection of privilege for the purpose of court proceedings.

What next?

Well, the simple point is that three people have (apparently) been served summonses. Those summons require the production of documents. The summons may be beyond the power of the House, but that is first a question for the Epidemic Response Committee (whose chair might rule, for example, that any claimed privilege was waived), and then the House to decide.

I have seen it suggested that the Government should take the “safe” course, and decline to release the material. That course strikes me as anything but safe. Realistically, with the Privileges Committee split evenly between government members and opposition members, the risk isn’t a contempt finding, but two of those who have been summonsed currently occupy roles as the Solicitor-General and the Police Commissioner. People who hold such positions should not consider themselves free to ignore a summons issued by a body with a clear power of summons.

If you have been served a summons, and especially if you are the Solicitor-General or Police Commissioner, there are basically two proper courses of action available to you:

(1) make your best efforts to comply with the summons;

(2) challenge the validity of the summons, and while that challenge is being determined, apply for, and obtain, a stay of the summons pending the determination of a challenge to it.

I see no reason for this to be different because the summons emanates from a committee of the House of Representatives, instead of a Court, except that the process for applying for that stay is a little more opaque. McGee notes that: “The House has established procedures to be followed if individuals object to the use of the power to send for persons, papers and records.” Although it doesn’t specify what these are, and they are not obvious what processes there may be other than consideration of a possible contempt.

The Attorney-General has requested the Speaker refer the question of whether a summons directing the provision of Crown legal advice is in order the Privileges Committee, but such a reference would not automatically stay the effect of any already issued summons. Standing Order 2 provides that, where standing orders do not provide for a rule around something, the Speaker decides the issue, guided by previous Speakers’ rulings and the established practices of the House. It may be that the Speaker can stay the effect of the summons, pending consideration, or it may be that the Privileges Committee forms the view that any question of that nature is a matter for it, or even for the Committee that issued the summons, or the House.

But, assuming they have been served facially valid summonses (ie signed by the Speaker, etc.) I do not think it proper for the Solicitor-General and Police Commissioner to even technically risk being in contempt. It is not enough for them to do nothing while the Attorney-General seeks a solution, if the summons exists, has been served and has not been stayed, they should comply.

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