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Lord Simon of Glaisdale: My Lords, this amendment raises issues of high constitutional importance. The privilege of Parliament, the privileges of both Houses of Parliament, the privileges of individual Members of Parliament and the Bill of Rights are involved.

It is hardly possible to exaggerate the constitutional importance of this matter. The noble Lord, Lord Lester, indicated just now some of the qualifications that may be required. I hope therefore that the amendment will not be tendered for a Division or tendered to the vote at all to the collection of raised voices this evening. It would be highly inappropriate at this hour, in your Lordships' House, in an empty Chamber, to try to pass an amendment which is a starred amendment and which we only saw this morning, and to seek to get it passed into law. In my view, that would be quite inappropriate.

It is true that a somewhat similar amendment was tabled at Committee stage. But that again was at extremely short notice. Since then there has been the Recess. There has been no opportunity to canvass the views of the many others who are entitled to be considered, not least the Members of the other place. I hope that those who propose the amendment will withdraw it on this occasion. They will lose nothing by doing so because Third Reading will be on 7th May and that will give time for the proper consultation to take place which should take place.

I would make only one other point in relation to the terms of the amendment. It deals only with defamation actions. I should have thought it strongly arguable that, if the principle is admitted at all, it should apply to any action where it might be relevant. As I understand it, we are concerned with three constitutional issues. The first is the privilege of Parliament and of each separate House of Parliament. The second is the Bill of Rights. The privilege of Parliament does not depend on the Bill of Rights. One can easily ascertain that by looking at the famous case of Stockdale v. Hansard where the House of Commons was vindicating its privilege as it saw it to prevent the publication of its proceedings. It ended rather distastefully with the law courts committing to prison the officer of the Serjeant of Arms and the House of Commons committing the Tipstaff to prison. That case shows that the privilege of Parliament is independent of the Bill of Rights. There was a famous judgment by Lord Ellenborough which makes plain the foundation of the privilege of Parliament; namely, that Parliament could not properly carry out its functions unless it was free from the scrutiny of the courts of law or anyone else outside.

The third issue is the privilege of the individual Member of Parliament. That, I think, does depend on the terms of the Bill of Rights. But the Bill of Rights must now be scrutinised carefully in the light of the judgment in Pepper v. Hart. In my respectful submission, the proper procedure when it is desired to waive privilege for an individual Member of either House is to petition that House for waiver of its right to

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insist on its Members being under its own control. That happens time and again whenever a Member of your Lordships' House is requested to give evidence before a committee of another place. The other place then petitions your Lordships' House to allow that Member to give evidence. The same occurs the other way round.

That procedure by way of petition is not only a matter of everyday occurrence but it was expressly approved by Mr. Justice Pearson in the libel case of Dingle v. Associated Newspapers where I had the duty of intervening on behalf of the House of Commons and submitting that the proper procedure was by way of petition. Mr. Justice Pearson, as he then was--he was subsequently a most distinguished Member of your Lordships' House--agreed with that.

As I said, we lose nothing by not rushing inappropriately into this amendment. On 7th May the Bill will have its Third Reading, when the matter can if necessary be resubmitted in a proper form after consultations with all those who are entitled to be consulted.

Lord Kingsland: My Lords, I rise to support the views expressed by the noble and learned Lord, Lord Simon of Glaisdale. I do so in a sense with some regret because I am acutely aware of and greatly sympathetic towards the dilemma in which Mr. Hamilton finds himself. I think it most appropriate that the noble and learned Lord, Lord Hoffmann, should have tabled this amendment. However, I believe it raises questions that go beyond the scope of the Defamation Bill. Those have been well expressed by the noble and learned Lord, Lord Simon, and I do not propose to go into them in detail. I shall simply underline the two central points that he made.

The first is that this is a constitutional matter. The Bill of Rights is at the heart of our constitution and constitutional matters ought to be considered very seriously by both Houses, with plenty of time to do so. I do not believe that sufficient time has yet elapsed for us to be confident to incorporate an amendment in a Bill in this House at this stage.

The second point is that it goes beyond the scope of the Defamation Bill in a second sense--why should it not apply to other civil proceedings. If this important change in our constitutional arrangements is going to be made, it goes way beyond the scope of the Defamation Bill.

For those two reasons I ask the House to stay its hand on the amendment at the moment, to perhaps set up a committee to consider the matter, to listen to what the other place says and to come back to it at Third Reading. But I should like to say again how much I sympathise with Mr. Hamilton's difficulties and dilemma and that it should not be taken from what I have said that I necessarily oppose the amendment proposed by the noble and learned Lord, Lord Hoffmann.

Lord Williams of Mostyn: My Lords, on the last occasion I specifically disqualified myself since I act in the matter in question for Mr. Hamilton and Mr. Greer. I simply wish to say neutrally that I respectfully agreed with the approach of the noble and learned Lord the

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Lord Chancellor, in particular at col. 258 of Hansard that, whatever the occasion may be, this is an important issue which should be properly ventilated in debate in each House. I do not put on one side what was said by the noble and learned Lord, Lord Simon of Glaisdale. That it should be properly ventilated is beyond dispute. I do not think I can say more than that.

The Lord Chancellor: My Lords, I do not wish to repeat what I said on the last occasion. This is clearly an extremely important amendment and is at the very heart of the privileges that are associated with Parliament and with individual Members of Parliament. It is certainly a matter which requires very careful consideration. The noble Lord, Lord Lester of Herne Hill, mentioned some difficulties, as have my noble and learned friend and my noble friend.

On the question of other rights of action than those in defamation, I am not particularly clear as to how that might arise. But I am clear that this is a Defamation Bill and it is only in so far as these matters trench on defamation that we could properly deal with them in this Bill. The fact that that problem could arise in connection with other rights of action is of interest, but I do not think that that can determine the matter here.

On consultation, it is important that Members of your Lordships' House should be aware of what is at issue and should have an opportunity to consider the matter. The provision has now been on the Marshalled List twice. It may be that its appearance for a third time would ensure that everybody knew about it.

With regard to consulting the other place, I regard it as important that the other place should be consulted by a clause or an amendment to the Bill being discussed. I think that that is the proper way. I do not think that it is for us to ask the other place about its view on the matter. Obviously, if any Member of this House wants to discuss the matter with a Member or Members of another place, that noble Lord is free to do so. However, the constitutional procedure would be that it is for this House to decide whether it thinks that this amendment is appropriate as far as it affects this House and its Members--

9 p.m.

Lord Simon of Glaisdale: My Lords, I am most grateful to my noble and learned friend. Does he not think that a Joint Select Committee of both Houses would be suitable? That was what was done in the case of disclaimer of peerages which, like this, affects both Houses. That was not just passed by one House and laid on the plate of the other. I respectfully suggest that in a matter of such high constitutional importance it is most important that the other place should be closely identified at this stage with what is proposed.

The Lord Chancellor: My Lords, it is open to noble Lords to propose setting up a Joint Select Committee in connection with this matter. However, my noble and learned friend Lord Hoffmann has proposed this amendment, having considered the matter, and my noble friend has moved the amendment again this evening. Whether or not noble Lords want to pass the amendment

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is a question for the House. My view is that it is for Members of this House, the amendment having been tabled, to decide whether from their point of view it is an appropriate amendment to include in the Bill. If the amendment is incorporated into the Bill, the position in the other place would be that the Bill (with this amendment) would have to be considered there. I have no doubt that care would be taken in that consideration. Your Lordships have clearly expressed your view of the importance of this amendment and have stated certain of the difficulties implied by passing such an amendment. That matter would be before the other place. I think that that is appropriate.

The Government would not wish to take a view on this matter until the other place has had an opportunity to consider it. Therefore, the government view would be one of neutrality. I say that it is for the House as a whole to decide whether or not to pass the amendment. It may well be that the question of the extent to which the House has been consulted will be relevant in deciding what should happen tonight, but in my view it is right that the House should consider and decide its view on this matter before the Bill leaves this House--

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