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The Lord Chancellor: My Lords, the purpose of this clause is to prevent an injustice which was identified by the working group under the chairmanship of Lord Justice Neill. Where a convicted person seeks to challenge his conviction, he should of course do so by way of appeal in the criminal court. It would be wrong for him to seek an alternative route of appeal by using the law of defamation in the civil courts where the standard of proof is lower. But other considerations apply when the convicted person is someone other than the plaintiff. It is contrary to public policy that plaintiffs in defamation proceedings should enjoy the artificial advantage of the rightness of someone else's conviction being unchallenged so that the defendant may be prevented from pursuing a proper defence. The injustice would, of course, be particularly apparent in a case where the conviction was quashed after the conclusion of the defamation proceedings in which it had been unchallengeable.

It is important to recognise that Clause 12 does not set out to restore the position as it was before 1968, when the conviction was not even admissible as evidence that the convicted person had committed the offence. The conviction will be admissible evidence that that person committed the offence and any other person who disputes that, in defamation proceedings, will have to produce evidence to the contrary. Clause 12 will allow that evidence, if any, to be considered and weighed fairly. I hope that the noble Lord will feel able to withdraw his amendment.

Lord Williams of Mostyn: My Lords, I regret to say that I remain unconvinced that there is any justice in the

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proposition that a plaintiff who has been convicted of a crime is enveloped in the conclusive presumption that he has committed it but other parties or witnesses are not. On this occasion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Basis of entitlement to damages]:

Lord Williams of Mostyn had given notice of his intention to move Amendment No. 10:

Leave out Clause 13.

The noble Lord said: My Lords, I have had the opportunity of re-reading and reflecting further on the indications in column 250 which the noble and learned Lord the Lord Chancellor gave. I am satisfied in my own mind that the problem that I had contemplated is likely to be mitigated if judges follow the indications given by the noble and learned Lord at column 250. Therefore I shall not move the amendment.

[Amendment No. 10 not moved.]

Lord Finsberg moved Amendment No. 11:

After Clause 13, insert the following new clause--

Evidence concerning proceedings in Parliament

(".--(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.
(2) Where a person waives that protection--
(a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct, and
(b) none of those things shall be regarded as infringing the privilege of either House of Parliament.
(3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it.
(4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.
(5) Without prejudice to the generality of subsection (4), that subsection applies to--
(a) the giving of evidence before either House or a committee;
(b) the presentation or submission of a document to either House or a committee;
(c) the preparation of a document for the purposes of or incidental to the transacting of any such business;
(d) the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a committee; and
(e) any communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of members' interests.
In this subsection "a committee" means a committee of either House or a joint committee of both Houses of Parliament.").

The noble Lord said: My Lords, I shall move the amendment in the momentary absence of the noble and learned Lord, Lord Hoffmann.

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This is an issue that I raised originally at Second Reading. I thought that there was an injustice being caused because it was not possible to waive privilege in the case of individual Members of either House. I wanted to try to ensure in the legislation that it was possible for an individual Member of either House to waive his or her privilege in the case of legal arguments. I am glad to see that my noble and learned friend has now arrived. Perhaps he could put the more detailed arguments on this particular point. I beg to move.

Lord Hoffmann: My Lords, I apologise to the House for choosing to leave at precisely the wrong moment. I spoke at some length to this amendment at Committee stage and I therefore do not propose to repeat what I said at that time.

The purpose of the amendment is to redress what appears to be an injustice which was demonstrated by a recent case in which Mr. Neil Hamilton--a Member of another place--brought proceedings against a newspaper. He alleged that he had been defamed because the newspaper published an article which he said amounted to an allegation that he had accepted money in return for asking Questions.

The proceedings were stayed by the judge on the grounds that the jurisprudence which the courts developed, based upon the Bill of Rights, prevented the courts from investigating whether or not those allegations were true. The court held that the effect of a series of judicial decisions over many years since the Bill of Rights was passed in 1689 meant that the court had no right to inquire, even at the behest of a Member of Parliament, into anything that he had done in the course of his parliamentary duties.

The result was that the judge held that the newspaper was not in a position to defend itself by putting forward a plea of justification and it would therefore be wrong and unfair to allow the plaintiff to continue with his action. The plaintiff was therefore denied the opportunity which others would have, having been, as he alleges, libelled in a professional respect, to vindicate his reputation.

The historic privileges of both Houses contained in the Bill of Rights are of the greatest constitutional importance. I would not table the amendment if I thought that it in any way trenched upon the policy or the intention of that statute. But I see no reason why the preservation of those privileges should be inconsistent with the rights of a Member of either House to invite the court to investigate his conduct, and his conduct alone, within the House in order to clear his name from a libellous accusation. There seems to me to be no inconsistency in that at all. Justice requires that he should be able to do so. I am unable to detect any higher policy which should prevent that from being allowed. For those reasons I support the amendment.

8.45 p.m.

Lord Lester of Herne Hill: My Lords, there was a fairly full debate on this amendment at Committee stage. I reflected upon what was said during that debate. I agree with both noble Lords who have spoken thus far. The existing state of the law is absurd and unjust.

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However, the problem that has been created by the way in which the law has been interpreted now raises a complex and sensitive problem which was well understood by the noble and learned Lord the Lord Chancellor in his properly sensitive speech on the last occasion.

The key issue is whether the other place--the amendment primarily affects its Members--will agree to permit, through the statute, what has always been regarded as its collective privilege or immunity since the Bill of Rights was passed to be waived by an individual Member of Parliament to enable her or him to sue for libel while retaining the immunity from suit possessed by every Member of each House. That is the key issue and it is likely to affect another place more than this House, though it affects both.

I am not troubled by the one-sided nature of the position that will arise if the amendment is enacted, provided that the courts develop qualified privilege to cover the case where a Member of Parliament sues for libel. What I mean by that is this. At the moment Members of Parliament are immune from suit for what they say in Parliament. At the moment they are stymied in bringing libel proceedings to vindicate their parliamentary and public reputation. It is exactly that lack of reciprocity or mutuality which caused Mr. Justice Brennan in the American Supreme Court to decide that there should be a constitutional privilege for newspapers when they are dealing with an MP plaintiff.

It seems to me that there is no injustice, no real lack of equality of arms, provided that the courts adopt that approach, if MPs are to be permitted to sue for libel. What would be offensive to justice and any notion of equal treatment is if an MP, starting with Members' complete immunity for what they say in Parliament, was able then to waive that immunity on an individual basis and there was no corresponding qualified privilege. I agree that it must be on an individual basis, since, if it were on a collective basis, party politics might intervene in deciding whether or not an individual MP was to be permitted to take this action. That is why it is right that an individual MP should be able to waive what is regarded as a collective privilege but it would be an affront to justice if he were permitted to do that and then there was to be no qualified privilege in respect of that situation.

It is on that basis that I support the amendment. I remain troubled by the point I raised last time, which concerned what happened when more than one Member of Parliament was involved and one Member of Parliament sought to waive his privilege and the other did not and yet the conduct of the two was closely connected or they were closely associated with the alleged defamatory statement. I cannot see any answer to that. The courts will have to fashion their own answer in such a case. It might be that, if both MPs were unwilling to waive their privilege, the courts would have to stay the action at the behest of one of them. I am not sufficiently clever to be able to think of an answer and perhaps there is no answer.

I agree with what was said by the noble and learned Lord the Lord Chancellor on the last occasion. However, it may be sensible, before reaching any final conclusion,

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for this House to see what another place says about the situation. On that basis I support the aim of the amendment and the way in which it was moved.

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