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Madam Speaker: I can select only the new clauses and amendments that are in order and that relate to the Bill. As I said earlier, I cannot give reasons for the non-selection of some new clauses and amendments, but many of them did not relate to the Bill and were out of order. I cannot select amendments that do not directly relate to the Bill. I can take no further points of order on the subject.
Mr. Bottomley: I think I must explain--
Madam Speaker: Order. I think that the hon. Gentleman has just explained everything.
Mr. Bottomley: I am not challenging the role of the Chair; I spoke specifically in support of the role of the Speaker. How can the House consider judge-made law if it is not possible to move an amendment that is in order and if the new clause that has been tabled is out of order? That is the dilemma for the House.
Madam Speaker: The hon. Gentleman can vote on new clauses or amendments in any place, either in
Committee--I believe that he was a member of the Standing Committee--or on the Floor of the House. It is up to the House to make its decisions. Those are not points of order that can be resolved in this way. We must move on.Orders of the Day
Defamation Bill [Lords]
Mr. Paul Boateng (Brent, South): I beg to move, That the clause be read a Second time.
Madam Speaker: With this, it will be convenient to discuss the following: Amendment (a) to the proposed new clause, at end add--
'(4) This section does not apply where the cause of action arose before the section came into force.'
Amendment No. 21, in clause 13, page 10, line 32, leave out from beginning to end of line 17 on page 11.
Amendment No. 43, in page 11, line 17, at end insert--
Amendment No. 22, in clause 18, page 13, leave out line 2.
Amendment No. 44, in page 13, leave out line 15.
Amendment No. 23, in page 13, leave out line 31.
Amendment No. 24, in clause 19, page 14, leave out line 6.
Mr. Boateng:
New clause 9 and the amendments grouped with it arise as a result of a widespread concern in the House, which was reflected in Committee, at the proposals in clause 13. That clause, as drafted,
In his point of order, the right hon. Member for Worthing (Sir T. Higgins) outlined the dilemma that the House faces as a result of the Government's handling of the matter. We were told, both in the other place by the Lord Chancellor and in this House by the then Parliamentary Secretary, Lord Chancellor's Department, that the Government's stance on the subject was neutral. We were told that there would be ample opportunity to debate the matter on Report. Were it not for the fact that the Opposition tabled new clause 9 and for the action of other Opposition Members in tabling the amendments, we would not be having this debate.
The Government have been far from neutral on the matter. What we wanted at this stage of our deliberations was a full debate that enabled the House to determine what course of action it wished to take in relation to this fundamental constitutional issue. There should have been a range of options that we as a House could freely debate--it will be a free vote for the Opposition, and, I understand, for Conservative Members. Those options would have contained each of the elements now included in new clause 9, in amendment (a) to it, and in amendments Nos. 21 and 43.
New clause 9 enables a Member who is suing for libel to waive privilege, but only in narrowly defined circumstances and with the approval of the House. It is drafted to limit the capacity of the courts to rule on the extent of privileged proceedings of this House, and it reasserts the collective nature of parliamentary privilege as belonging to the House as a whole rather than an individual Member. That is central to our concerns--and, I hope, to those of some Conservative Members--about clause 13. Privilege is a matter for the House, not something that we would enjoy except as Members of the House. We enjoy privilege so that we can better carry out the democratic purposes of the House.
New clause 9 asserts the collective nature of privilege in a way that recognises also that there are hard cases. The hon. Member for Tatton (Mr. Hamilton) probably feels that his is just such a case. When hard cases arise, however, it is surely right that the whole House should determine whether someone's privilege should be waived; not the individual Member.
Amendment No. 21 deletes the whole of clause 13, which was inserted on Third Reading in the other place, leaving the law as it stands. The effect of amendmentNo. 43 and of amendment (a) to new clause 9 is to ensure that no change will apply retrospectively; in other words, they bring clause 13 or new clause 9--whichever the House determines to proceed with--in line with every other major provision in the Bill.
The dilemma outlined by the right hon. Member for Worthing in his important point of order is an exact consequence of how the Government have chosen to
proceed. The proper course would have been to produce a range of options for the House to consider. Then we could have held a free debate on them; the right hon. Member for Worthing could have chosen, for instance, to vote to remove clause 13 altogether. Then, if it fell, we could have debated whether the House, in certain circumstances, should be able to waive privilege to allow a Member to remedy a particular injustice. Thereafter we could have determined whether clause 13 met the requirements of the House in terms of privilege.
The Government have failed to give the House the right opportunity. Indeed, the whole issue has been mishandled from start to finish. There were absurd scenes in the other place, where Lord Hoffmann was "encouraged" to table an amendment. There had been an attempt, apparently, to table it earlier on, but it failed. So--exceptionally--the amendment was tabled on Third Reading, whereupon Lord Hoffmann proceeded not to vote for his own amendment.
So, at a late stage in the debate and by a side wind, as it were, this important clause was added. Not only did Lord Hoffmann not vote for it, but he has since made it clear that there are arguments for and against his clause and he does not regard himself as having any brief to support it.
That is no way to rewrite the constitution. The Government meanwhile claimed that they were neutral, but rejected attempts to refer the matter to a Joint Committee of both Houses, where it could have been considered with care, drawing on the expertise of outside disinterested constitutional lawyers. In that way, we could have benefited from their advice to the full. But the Government chose not to take this course; instead they pushed the measure through the House, and that is no way to change the constitution.
Mr. David Ashby (North-West Leicestershire):
Proceedings in the two cases concerning Members of the House were stayed on a procedural point. Procedural points are not points of law and they can be retrospective. Why is the hon. Gentleman supporting an amendment that would not allow the changes to be retrospective? Is that not an act of meanness by his party, aimed at our party?
'(4) This section does not apply where the cause of action arose before the section came into force.'.
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