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Mr. Boateng: I am sorry that I gave way. I had hoped that the hon. Gentleman would understand that both sides of the House want the matter to be regarded as separate from party politics and from the people concerned. We are worried about how it has been handled. A major constitutional change has, in effect, been brought in on the back of a couple of cases.
When the matter was debated in the other place, several Lords and Ladies took an unprecedented and sudden interest in issues of law reform. There was a massive turnout on the Government Benches, whereas one would not have expected to find such keen interest in their Lordships' House. One suspects that that turnout was not wholly unrelated to the special and personal interests of the hon. Member for Tatton, and with their Lordships' sympathy for it. That sympathy may or may not be misplaced, but it should not in any case determine how we deal with an issue that goes to the very heart of our constitution.
Article IX of the Bill of Rights has an important antecedent case history. It resulted from Sir John Eliot's case, from Sir William Williams's case, from Strode's
case and from the arrest of the five Members. It resulted too, from Peter Wentworth's persistent advocacy of the rights of Members of this House to freedom of speech against the great and mighty interests of the day. Is there to be added to those names the name of the hon. Member for Tatton? Is it really right that an article fashioned out of a desire to preserve and protect the privileges of this House, as a means of defending the interests of the people, should be subordinated to the special interests of the hon. Member for Tatton? Is that how we would wish to order our constitutional affairs? Of course not.
When we consider this matter, we must do so free from the special interests represented by the hon. Member for Tatton or the hon. Member for Torbay (Mr. Allason). Of course, understandably, they feel deeply about the injustice that they believe they have experienced. However, the privilege that they have--the privilege that they enjoy to say what they wish to say when they speak during the proceedings of the House--has its downside. The downside is that it is a privilege that may not be waived to enable them to preserve and to protect their special and personal interests.
Sir Peter Tapsell (East Lindsey):
The hon. Gentleman has cited famous and historic cases that led to the Bill of Rights--cases in which individual Members of the House were in danger of being persecuted or bullied by the King, the sovereign or the Executive of the day. We are currently discussing an entirely new situation--it did not exist in those days. Individual Members--they could be from any side of the House at any time--can be subjected to persecution, not from the Executive or from the sovereign, but from what many people regard as an over-mighty press that is owned, for the most part, by foreigners. We have to try to bring up to date the ideas that led to the Bill of Rights. We have to protect Members of Parliament, in a modern and new situation, from the sorts of abuses that the Bill of Rights sought to protect them from in the 17th century.
Mr. Boateng:
The abuse of power--whether it be by the Crown, the Executive, an over-mighty subject or group of subjects or an overweening power outside the House--is something that the House ought to take cognisance of. However, the complaint of many Labour Members and, I suspect, of some Government Members is that clause 13, as it now stands, hands over to the judiciary the power that the House should have to preserve and to protect the privileges of the House against such over-mighty and overweening powers. That power does not belong with the judiciary; it belongs in the House. New clause 9 and our series of amendments seek to enable the House to arrive at a decision in that regard.
When we examine the Prebble v. Television New Zealand case and the jurisprudence that lies behind it, we see that it is part and parcel of a series of cases that have addressed the issue of the extent and nature of parliamentary privilege. In the light of these cases, Hansard was opened up to the courts as an instrument by which it was possible for them to arrive at an interpretation of that which we have placed in statute. When we look at these cases, we see a greater willingness by the courts to define the extent of our privilege.
It is ironic that we should be holding this debate in the immediate aftermath of a statement that has been brought about as a result of what some Conservative Members
suggested was an unjustified usurping of our powers by the judiciary. Some of those hon. Members are now about to hand over powers in relation to the House to the judiciary to enable it to determine, through the instrument of interpretation, the extent of our privilege.
Those of us who are concerned about clause 13 believe that we ought to do that with great caution. If we allowed the courts to interpret privilege--in the way that clause 13 will do--we would be in danger of doing the House, its proceedings and the special role its Members play in a democracy a grave disservice.
Mr. Tim Devlin (Stockton, South):
Earlier, the hon. Gentleman made a disparaging reference to my hon. Friend the Member for Tatton (Mr. Hamilton)--I hold no brief for him or for any other hon. Friend. If, for whatever reason, an individual is unpopular, what the hon. Gentleman proposes is still likely to lead to injustice. If the House decides not to support the individual Member, for whatever reason, an injustice can be perpetrated, can it not? We are seeking to protect any Member--whether we like him or not--from injustice in similar circumstances.
Mr. Boateng:
The hon. Gentleman misunderstands our purpose in new clause 9 and in the other amendments tabled in the names of my right hon. and hon. Friends. We wish to give the House a series of options. One of my concerns about clause 13 is that, although it maintains the collective nature of the privilege that the House enjoys so that it can better carry out its democratic purpose, it might lead to the House as a whole being required to look into and to determine the rights and wrongs of a particular case. In those circumstances, there is a danger that considerations other than the interests of justice--considerations of a personal nature--will intervene in the process.
Because of my concern, my preference--there is to be a free vote and my colleagues will arrive at their own decision--is to delete clause 13. In that way, we would avoid the danger to which the hon. Member for Stockton, South (Mr. Devlin) referred. Equally important, we would avoid the danger that exists in relation to clause 13, which is dramatically illustrated not least by the very case in which the hon. Member for Tatton is involved. Under clause 13, as it is written, if one Member of the House is prepared to waive his privilege but another Member who is involved in the proceedings is not prepared to waive his privilege, what will happen?
Sir Terence Higgins (Worthing):
The hon. Gentleman has moved on from the point that I wished to address. If he wishes to remove clause 13, he has the option to do so--he simply does not move new clause 9--and we would knock out clause 13.
Mr. Boateng:
We have chosen not to proceed in that way, in the hope--[Interruption.] I hear laughter from the Government Benches. This is a serious matter. It would have been preferable if the Leader of the House had delivered on what the Government promised: if all hon. Members were able to make a free choice between three options. The Labour party recognises that there may be hon. Members who accept the argument that in certain
New clause 9 provides a halfway house in which it is possible--in certain circumstances where the House is so moved and accepts the injustice caused to one of its number by a particular action--for privilege to be waived by the whole House in relation to that hon. Member. We have tabled new clause 9 out of a desire to facilitate a debate and a free choice.
Mr. Rupert Allason (Torbay):
If the motive behind new clause 9 is to pass what I readily accept is an important constitutional issue for the whole House, what is the purpose behind amendment No. 43 and amendment (a) which seek to stop those cases that are already before the courts being affected by the Bill?
Mr. Boateng:
Those amendments have a simple purpose. It must be for the whole House to determine whether anything it does should have a retrospective effect. It must be for the whole House to determine whether the cases of any individual hon. Members should be subject to new clause 9 and the amendments.
Mr. Boateng:
The hon. Gentleman will have an opportunity to make a speech in due course. The proponents of clause 13 must answer, on the issue of injustice, the question of what happens when one Member waives privilege and another does not.
Mr. D. N. Campbell-Savours (Workington):
Does my hon. Friend agree that the new clause and the position of the Lords would make huge constitutional changes that would have formidable implications for the House of Commons? Less than 5 per cent. of the membership of the Commons is here tonight. Many of my hon. Friends and many other hon. Members are perhaps unaware of what is happening. Surely the only possible way to proceed would have been for the matter to be dealt with by a Committee of the House of Commons or a Committee of both Houses. It seems utterly ludicrous that we are discussing a matter of huge constitutional importance and that a handful of Members will take a decision that we may regret--or may not regret, I do not know the answer--well into the future.
5.45 pm
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