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Mr. Bill Michie: Does the hon. Gentleman agree that sometimes when Members of Parliament have to be disciplined, it is better to hit their pocket than to give them a day off?
Sir Patrick Cormack: That is a valid point of view and we discussed it in Committee, as the hon. Gentleman well knows. I subscribe to the report, but, as he knows, I had reservations on that issue, as did some others. When a Committee seeks to arrive at a generally accepted conclusion there are always some aspects of the report with which individuals agree more strongly than others. I was merely picking up the point made by the Leader of the House and saying that I understand her reservation and, to an extent, I share it.
I am surprised that the Bill to reform the law of corruption appears to have been put on the back burner. The Home Secretary strongly pressed the Committee to hurry its findings. Perhaps the Leader of the House or the Minister who winds up will tell us whether the final version of the Bill has been drafted. The Law Commission produced a draft Bill at the beginning of last year--indeed, we included it in the report. Where do we stand now? The report accepts that in cases of alleged bribery it is appropriate that Members should not have the benefit of article 9 of the Bill of Rights. I am glad that the Leader of the House accepts the Committee's unanimous recommendation that in such cases the Attorney-General's consent must be given before a prosecution can be brought. The Committee, which included two former Attorneys-General and two former Home Secretaries, came to its view, conscious of the fact that Members of Parliament are vulnerable to malicious or misguided allegations.
A key recommendation of the report, to which the right hon. Lady referred, is the repeal of section 13 of the Defamation Act 1996 and its replacement with a broader power of waiver to be exercised by the Speaker, advised by a small Committee of senior Members. To recommend the repeal of a provision so recently enacted requires justification. My hon. Friend the Member for Altrincham and Sale, West (Mr. Brady) expressed some concern about that. I shall try to explain why the Committee came to its view.
The intention of section 13 is to remedy an accepted unsatisfactory situation. Article 9 of the Bill of Rights prevents a court from examining those actions that form part of proceedings in Parliament--speeches, questions, motions and investigations of Select Committees. Before section 13 was enacted, article 9 prevented a Member from calling evidence about proceedings to demonstrate that an alleged libel had been committed and prevented a defendant from calling evidence about proceedings to prove that his allegations were true. Where a case was dependent on such evidence, either the parties did not proceed, or if they did, the judge stayed the proceedings of the court. That has always been so, but, in this litigious and media-dominated age, that has rightly been perceived to be intolerable.
Section 13 was intended to allow an hon. Member to waive part of the House's protection from the scrutiny of proceedings by the courts to allow proceedings relating to him to be examined in court in a libel action. However, section 13 was drafted and enacted quickly in the charged atmosphere of a particular case. The House will know the history and it is summarised in the report from paragraph 60 onwards.
I am tempted to quote the aphorism, "Hard cases make bad law", but I am not concerned with the Hamilton v.Al Fayed action. If I were, you would doubtless stop me, Mr. Deputy Speaker, because the case is set to begin on 15 November and our own current sub judice rule prevents us from discussing it today. I am concerned not with that case, but with section 13 itself.
The section has a number of defects. It does not extend just to present or past Members of either House. It could be used by a witness, a petitioner, an Officer of either House, the adviser to a Select Committee or perhaps a lobbyist--any of them could in certain circumstances waive his privilege in a libel action without the House having any opportunity to judge whether Parliament would be damaged by the case continuing. Section 13, therefore, undermines the very concept of parliamentary privilege, which belongs not to any one of us, but collectively to the House. Our privileges have grown up on the basis that they are collective; they are the privileges of Parliament and not the perquisite of individual Members. It is also anomalous, as the report points out in paragraph 61, that under section 13 a waiver applies simply to defamation and to nothing else.
The Committee sought an alternative that would maintain the merits of section 13, but present fewer legal difficulties and would ensure that the privilege that belongs to Parliament is controlled by Parliament. We therefore recommended that section 13 should be replaced by a power for each House to waive article 9 for the purpose of any court proceedings, and not simply for defamation, where the words spoken or acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the act to legal liability. That was a key point.
In order to keep decisions outside the political arena, the Joint Committee recommended the appropriate machinery for determining whether a waiver should be given might in this House be the Speaker assisted by the advice of a small Committee. It suggested that the Committee might include the Leader of the House, the shadow Leader of the House, the Attorney-General and one or more representatives of other parties with the
power to co-opt Members either generally or for a particular case. The presumption would be that a waiver would be granted unless there were overriding parliamentary reason for not so doing and some examples of where a waiver might be refused are set out in paragraph 80 of the report.
I emphasise that a waiver is not a total waiver of article 9 any more than section 13 is. There would be no question of legal liability for anyone for what he said or did in Parliament. The only exception where the operation of article 9 would be totally removed would be on a criminal charge of bribery under the proposed corruption Bill to which I referred a few moments ago.
The report contains many detailed recommendations. I shall deal with just two and then briefly summarise some of the rest. There is a good case to be made in principle for defining proceedings in Parliament in a statute to include Members' correspondence with Ministers and constituents. Previous Committees, including the Select Committee on Parliamentary Privilege in 1967 and the Privileges Committee in 1977 recommended such a change.
The issue is difficult, and the reasons for the Joint Committee's rejection of the idea are set out in the report. We were impressed by evidence on the extent to which the development of qualified privilege in law protects hon. Members who are acting without malice pursuant to their parliamentary duty.
There are certainly strong arguments in favour of absolute protection. We should take careful note of the subject in this debate and those that may follow. I would be interested to hear whether colleagues think that we have got it right or that privilege should be extended.
I was concerned by the Committee's conclusions on subpoenas and I needed a great deal of persuasion before I accepted them. The recommendation is that the two Houses should no longer claim the absolute right to refuse to answer a subpoena, but that subpoenas should not be issued without a judge's consent. Again, the case is carefully set out in the report, but, again, I would be interested to hear what both Government and Opposition Members have to say about the proposal.
Mrs. Beckett:
I did not flag up the matter in particular in my speech, but let me return the hon. Gentleman's earlier courtesy by saying that I have some sympathy with his observations. I well recall occasions in recent years when members of the previous Government were threatened with being called to give evidence in various cases. I do not recall the individual circumstances, but it was clearly a ploy. I recognise that the Committee has made the important safeguard that a judge would have to agree, but--I hope that I am not in breach of any of the obligations of the House in saying this--I am not as confident as I would like to be that every judge would see things in quite the way that we do here.
Sir Patrick Cormack:
I am very grateful to the right hon. Lady for reinforcing my reservations.
The Leader of the House referred to future legislation, but there are many recommendations that do not involve legislation. This is a matter for the House, as she rightly said, but I should be grateful if she or the Parliamentary Secretary, Privy Council Office would tell us whether the
Government are prepared to find time for those recommendations to be debated or are sympathetic to them.
Paragraph 14 is concerned with ensuring that
Paragraph 15 is concerned with the implementation of a new sub judice rule as set out in paragraph 202. That is a very important matter. I do not in any way challenge the Chair, but, time and again over the past year, the Speaker has felt obliged to prevent our discussing a long-running case because of our current sub judice rule. I should be interested to hear the Government's reaction to the possibility of a change.
Paragraph 18 advocates the production of advisory guides for Members of both Houses on the exercise of the privilege of freedom of speech. We have had some worrying examples of hon. Members perhaps too lightly using the freedom that the Chamber gives them to make all sorts of unsubstantiated allegations to which people can have no adequate and proper response. The report dismisses the idea of giving some sort of reply via Hansard. We did not think that that was practical or sensible, but we believe that the onus is therefore all the greater on the Member to realise just what a privilege freedom of speech is. We hope that that recommendation will find favour.
Paragraph 20 says that it should be made clear in every new statute that it applies to Parliament unless Parliament has been specifically excluded.
Paragraph 22 calls for the drawing up of a clear statement of parliamentary rights and powers, and urges that this, together with a statement of their own rights, should be given to all potential witnesses coming before parliamentary Committees. Paragraph 23 asks the Procedure Committee to examine and report on the desirability of maintaining the conventions that one House cannot compel the attendance of a Member of the other.
Paragraph 28 is concerned with the disciplinary powers of the House over its Members, and with the exercise of those powers by the Select Committee on Standards and Privileges, of which the right hon. Member for Ashton-under-Lyne (Mr. Sheldon) is such a distinguished Chairman. His views on that matter will be particularly interesting.
We made a clear recommendation on leaks, to which the Leader of the House referred. Here is the one occasion when I cannot find myself able to applaud what she said, as I believe that our recommendation is particularly pertinent in light of recent events. Some of us will have found her reply not only disappointing but, frankly, inadequate. I hope that she will think again, and that the Minister will deal with the subject when he replies to the debate.
One final legislative point has urgency. One consequence of the two Houses taking charge of their own affairs was the Parliamentary Corporate Bodies Act 1992, establishing the Clerks of the two Houses as corporate officers to make contracts on behalf of the two Houses. Circumstances could well arise--and, in one recent case, very nearly did--where, because the relevant proceedings on contracts are sometimes considered in domestic Committees, which are Select Committees, article 9 of
the Bill of Rights prevents the court from considering the Committee's proceedings. This could seriously prejudice the case put by the House, and could be financially costly in some cases. Perhaps the Minister could indicate whether the Government plan any action to remedy this situation by accepting our recommendations.
"rules and conventions concerning standards of conduct are in readily accessible form capable of being understood"
by the public.
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