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Lord Finsberg: As a non-lawyer, perhaps I may dare to say something about this proposed new clause. Perhaps I may say--and I hope not too frivolously--that having listened to the noble Lords, Lord Williams of Mostyn, and Lord Lester of Herne Hill, it reminded me a little of Box and Cox. If I ever require two lawyers, I could not do better than to have both of them because during the evening they have agreed to disagree with each other on many occasions.

I thank the noble and learned Lord, Lord Hoffmann, for taking up the point which I raised on Second Reading and for tabling the amendment which has been clearly couched with expert advice and moved with great elegance and eloquence. It seems to me that this provides the remedy for the injustice which I think has been done to my ex-colleague, Mr. Neil Hamilton, and, indeed, to my long-standing friend, Mr. Ian Greer.

I have looked at the amendment and I have listened to what the noble and learned Lord, Lord Hoffmann, said. I ask my noble and learned friend the Lord Chancellor to confirm that this applies to cases which have not been what I would call in layman's terms "ended" because for reasons adduced by the noble and

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learned Lord, Lord Hoffmann, it has not been possible for certain things to happen. That reassurance is needed and I very much welcome this proposed new clause.

Viscount Tonypandy: Perhaps I may follow the brave example of the noble Lord, Lord Finsberg, because I have been fascinated by listening to the legal profession as it has spoken in the Chamber.

The House of Commons feels deeply about its freedom of speech. The noble and learned Lord is absolutely right about that. But I never had the impression, throughout all the years that I served as Speaker, that it would somehow punish a Member, as it has clearly done in the case of Mr. Neil Hamilton, by not allowing him to defend himself properly. I hope that when the Lord Chancellor replies to the debate, he will make it clear that, whatever else he does, there will be no attempt to interfere with that complete protection of honourable and right honourable Members in another place when they speak.

I may say to the noble and learned Lord and to your Lordships that when an honourable Member defames someone outside the House, no one is more watchful or, sometimes, angry than the House itself. The House has its own way of punishing any honourable Member who defames someone who cannot answer for himself in the House. I believe that the noble and learned Lord the Lord Chancellor, as we all love the institution of Parliament, realises that, ever since the Bill of Rights, a cornerstone has been freedom of speech, with no harm to any honourable Member who speaks in the House. The House will deal with him if he goes too far.

9.45 p.m.

Lord Williams of Mostyn: I specifically disqualify myself from saying anything on this matter. The reason is plain: I have notified the noble and learned Lord the Lord Chancellor of the reason I acted for Mr. Hamilton and Mr. Greer and Mr. Greer's company. The only observation I am entitled to make is that it seems, objectively, a suitable reform for another place to consider.

Lord Lester of Herne Hill: The noble and learned Lord, Lord Hoffmann, is to be congratulated on his attempt to tackle a complex and very sensitive problem raised by the decision of the Privy Council, as he said, in Prebble v. Television New Zealand Ltd. in 1994, as subsequently applied in this country.

The problem is sensitive and complex for a number of reasons: first of all, it is part of the ancient, fundamental principles of the British constitutional system of parliamentary democracy that whatever arises in either House of Parliament ought to be examined, discussed and judged in that House to which it relates, and not elsewhere. That means that each House of Parliament, Parliament itself and the courts have to be astute in order to recognise and respect their different constitutional roles, and they do.

Secondly, it is sensitive because, as the noble Lord has indicated, it is part of the ancient privilege of Parliament enshrined in Article IX of the Bill of Rights that freedom of speech in debates or proceedings of

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Parliament ought not to be impeached or questioned in any court or place outside Parliament. That is a vital protection of parliamentary democracy.

Thirdly, it is sensitive because it is well established that Article IX stops any court from entertaining any action against a member of the legislature seeking to make him legally liable in criminal or civil law, so members of either House may freely defame their fellow citizens in the exercise of their right to free speech and remain immune from libel proceedings. Although one does not wish to encourage it, one would add, "and rightly so". That is a vital protection, going back to 1689.

Fourthly, it is delicate because the parliamentary privilege protected by the Bill of Rights is a privilege of Parliament as an institution and it cannot be waived by an individual Member of either House. As I understand it, there is an absolute prohibition, even when it is the MP himself who brings libel proceedings.

I agree with the noble and learned Lord, Lord Hoffmann, and the other noble Lords who have spoken, that the result of the Prebble case and its progeny has been to create a real injustice. It would be unfortunate, however, if this amendment were seen in some way to be especially for the protection of the rights of Mr. Hamilton or any other MP currently engaged in legal proceedings. We must deal with this, I suggest, as a matter of principle.

There is an element of rough justice about the present position. An MP is immune from being sued for libel for what he says in the House and, on the basis of the Prebble rule, he cannot sue for libel if he depends upon anything which would question proceedings in the House. Therefore there is a kind of reciprocity there, but it is not a fair one. My view is that MPs should be able to sue to vindicate their parliamentary reputation provided that it cuts both ways. Under the amendment of the noble and learned Lord, Lord Hoffmann, as I read it, it would cut both ways because if the MP did not waive the protection, then he would not be able to proceed with his action against the newspaper because the newspaper would not be able to defend itself and therefore the proceedings would be stayed.

The immunity of the MP under the Bill of Rights is a further reason for supposing that the common law might adjust the burden of proof in such cases through qualified privilege. That is not a matter that now concerns the Committee. There is, I think, the problem in the amendment of the notion of an individual waiver. It has been dealt with with great delicacy and rightly not mentioning the Bill of Rights and Article IX as such. But I can envisage problems that may arise where one MP exercises waiver and another MP does not and yet they are both in some way involved as parties or witnesses in the same or related actions. That may cause great difficulty.

It is admirable that the amendment has been introduced and it ought to be passed by this Chamber, but the place where it really needs to be carefully considered is in another place where, as I have indicated, their own position and privileges will be very

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much in the fore when this is considered. I hope that it can be considered in a way which quite transcends any individual case, any individual Member of Parliament and any individual political party. Having said that, I very much welcome the amendment.

The Lord Chancellor: I wish to express my gratitude to my noble and learned friend Lord Hoffmann for bringing forward this new clause and for--if I may quote my noble friend Lord Finsberg--the elegance and eloquence with which he did so. It has given the Committee a valuable opportunity to reflect on the substantial issues which the clause raises. Of course, as has been said, it is a matter of great importance for the other place but it also affects this place and the privileges of this Chamber.

As my noble and learned friend has explained, the clause would allow a person whose conduct in Parliament is in issue in defamation proceedings to waive protection such as that of Article IX of the Bill of Rights so as to enable evidence to be given in court, and findings made, about his conduct in Parliament. At the same time, the clause preserves the essential protection afforded by the Bill of Rights to Members of both Houses and others such as witnesses before parliamentary committees from any legal liability for anything they may say or do in the course of parliamentary proceedings.

As my noble friend Lord Finsberg reminded the Chamber at Second Reading, the matter has been focused because the learned judge stayed an action for defamation brought by Mr. Neil Hamilton and Mr. Ian Greer against the Guardian newspaper. The judge did so because he decided that the case could not be tried properly without hearing evidence about Mr. Hamilton's conduct and motives in tabling Parliamentary Questions which were the subject of the newspaper's allegations; and that evidence could not be heard because of the prohibition (by virtue of Article IX) on the questioning or impeaching by the courts of proceedings in Parliament. As has been said, that followed the earlier decision of Prebble v. Television New Zealand Ltd before the Judicial Committee of the Privy Council, in which, because of the provisions of Article IX, the committee found that the defendants could not use parliamentary materials to establish the truth of allegedly defamatory allegations made by them.

As the noble Lord, Lord Lester of Herne Hill, has said, this raises a matter of principle quite independent of any particular case. The case I mentioned is just an illustration of the situation in which it might arise. The case for the new clause is, in essence, that it would enable justice to be done in defamation cases such as that brought by Mr. Hamilton. Provided Mr. Hamilton waived his protection, which the clause would allow him to do, the defendants would be able to call evidence to justify their publication and the issue between them and the plaintiffs could be tried by the court. If the plaintiffs went on to win their case they would be able to recover damages which they could not do if they were forced to resort to the machinery which exists within Parliament for dealing with such cases by way of a complaint of privilege.

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Therefore, there is a substantial case to be made for the amendment. On the one hand, any interference with the Bill of Rights is a matter of great importance which both Houses will be anxious to assess with the utmost care. I am particularly glad that the noble Viscount, Lord Tonypandy, was able to take part in the debate. His knowledge and experience of the privileges of Parliament in both Houses is very great. I am grateful that he has been able to be with us on this occasion and to contribute to the debate.

The particular way of proceeding which has been proposed inevitably involves an element of one-sidedness. A Member of Parliament would be able to put his conduct in Parliament before the courts when it suited him, but whether it suited him to do that, he would continue to enjoy absolute protection from liability if he so wished. I am sure Members of the Committee would agree that it is essential to preserve, as the clause does, the core privilege of protection from liability in respect of proceedings in Parliament, without which the exercise of free speech in Parliament cannot be fully upheld. But it must be admitted that there is a certain awkwardness in allowing the courts to question parliamentary proceedings only when it is to the advantage of the Member concerned--or, as he sees it, to his advantage.

Finally, I should make what is perhaps a slightly technical point--it has been referred to by my noble and learned friend Lord Hoffmann--that the privilege of either House belongs first to the House rather than to individual Members. In the words of Erskine May,

    "it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members".
That is essential, in my submission.

That being the case, it may be remarked on that the clause envisages the waiver of privilege by an individual Member, without the House having any say in the matter. But giving the House a say in the matter--by making the waiver dependent on a resolution of the House--could conceivably lead to a greater mischief: a partisan parliamentary majority might decide capriciously to refuse a waiver--or worse, it might impose a waiver on a Member who did not wish to waive the privilege. That is the real question: whether it would be a matter for Parliament to decide, whatever the wishes of the Member, that the privilege in respect of a particular Member should be waived.

Those are among the considerations which the Committee will need to weigh. There is the point about other Members being involved either in that Member's conduct, or closely with it. The noble Lord, Lord Lester of Herne Hill, gave as an example a case where two Members seemed to be in almost exactly the same position. Their position in Parliament could be the subject of adverse comment if one waived the privilege and the other did not.

As I understand the clause--my noble friend will correct me if I do not have it right--it enables a person whose action had been stayed, for example, to waive the immunity and in consequence for the stay to be lifted to

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enable the action to proceed. If the clause were passed, it would have effect in respect of actions already stayed on grounds such as we have been discussing.

These are among the considerations which the Committee will need to weigh. Speaking as I do on behalf of the Government, their position is one of neutrality. Those are matters for the House rather than the Government. Ministers' concern is that this important issue should be properly ventilated in debate in each House. The Government will want to hear the views of another place in due course before taking a decision on how best to proceed. The debate in the Committee this evening will, I am sure, be of great assistance to Members of another place when they consider the question.

There is the problem of what we should do now. It is a matter of fundamental importance which has only recently been published in the sense of being added to the Marshalled List of amendments to the Bill. So that the whole House may have an opportunity of considering the matter fully before an amendment is made, it may be that my noble and learned friend will feel that the best course to take this evening is, having had the discussion, to withdraw the amendment. Then it can be moved again on Report, giving anyone who may read the debate but who did not have an opportunity to contribute the possibility of studying the subject before the House takes a final decision and the Bill goes to another place.

It must be right for this House to decide, one way or another, before the Bill passes whether it should adopt this clause or any amendment or refinement of it. As I said at the outset, it is a matter for both Houses of Parliament. There are particular sensitivities in the other place to which the noble Viscount referred. However, we too have an important interest in this aspect. Therefore, it is right that the House should decide whether the clause should be added. My noble and learned friend may feel that it is such an important issue that before it is added to the Bill it is considered again at Report stage. Other Members of the House who may not have fully appreciated its importance will then have an opportunity of considering the proceedings in this Committee.

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