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Lord Renton: My Lords, I am sure that we have all heard what the noble and learned Lord, Lord Hoffmann, said--

The Lord Chancellor: My Lords, I ought now to call, as an amendment to Amendment No. 4, Amendment No. 5.

Lord Simon of Glaisdale had given notice of his intention to move, as an amendment to Amendment No. 4, Amendment No. 5:

Line 3, after ("may") insert (", with the consent of both Houses of Parliament,").

The noble and learned Lord said: My Lords, I thought that I had withdrawn Amendment No. 5. I did not want an already complicated issue made more complicated. It seemed to me in every way more satisfactory that your Lordships should have to decide whether to accept the amendment in the name of my noble and learned friend Lord Hoffmann or to let the matter be decided primarily in the other place but subject to review by your Lordships.

There can be no question but that the amendment raises matters of the highest constitutional importance. As the noble Lord, Lord Kingsland, said at Report stage, the Bill of Rights is at the very heart of our constitution. The amendment seeks to tamper with the Bill of Rights. Your Lordships will be grateful to my noble and learned friend Lord Hoffmann for having brought the matter before your Lordships and set it out in such an attractive manner today.

I have every sympathy with Mr. Hamilton, who is not the only one concerned. As my noble and learned friend said, in effect he has been denied recourse to the courts of justice. That has been inherent in the Bill of Rights for over 300 years. Any statement or proceeding in Parliament is immune from scrutiny and whoever wishes to challenge it, equally with Mr. Hamilton, has been throughout without recourse to the courts of justice. The difference this time is that there is a backlash so it is the Member of Parliament who is not immune but who seeks relief. It is the reverse of what has obtained until now. It is implicit in the Bill of Rights and will remain implicit after the amendment passes into law, if it is agreed to, that a party is inhibited from recourse to the courts of justice.

Before turning to major matters, perhaps I may take up three points to which my noble and learned friend referred. He described the present situation as giving free licence to anyone to defame, without any danger and without redress, a Member of Parliament. I do not accept that for a moment. Parliament itself has its own machinery for ensuring that that kind of injustice is not perpetrated.

The second point to which my noble and learned friend referred was the liability to partisanship if the matter were to depend on the vote of either House of Parliament. Again, I am afraid that I do not accept that. A number of noble Lords were Members of the other place and I hope that they will bear me out when I say that the Privileges Committee of the House of Commons acts judiciously and fearlessly. Moreover, although its recommendations are generally, but not invariably, accepted by the House, I cannot accept that the House itself is liable to unfair partisanship.

There was the notable case in 1947 of Mr. Garry Allighan, who behaved disgracefully. There was a large Labour majority in the House at the time, he was a Labour Member and he behaved so disgracefully that the Leader of the House brought a Motion proposing that Mr. Garry Allighan should be suspended without pay for six months. However, the House went further than that. The House, being predominantly of Mr. Allighan's party, accepted an amendment that he should be expelled and so he was. So I am afraid that I do not accept the argument that the House of Commons is incapable of judging such matters fairly, that it will always be warped by partisanship.

The third preliminary matter which my noble and learned friend mentioned was the position of my noble friend Lord Tonypandy. Unfortunately he cannot be here today as he is in hospital, but we share an office and I discussed the matter with him after the Report stage. He agreed strongly that the matter should be primarily the concern of the House of Commons and should be left to it for the initial decision. I telephoned him in hospital only last Thursday to ensure that he was of the same opinion. He is and he authorised me to say so.

So much for the preliminary points made by my noble and learned friend. I hope that he will not press the amendment. In the first place, it needs much more consideration and consultation than it has received, particularly consultation with the officers of both Houses and with Commonwealth parliaments. The matter has arisen in both New Zealand and Australia and there are already rumblings of concern from the Antipodes at the amendment moved by my noble and learned friend.

Secondly, it seems to be highly unsatisfactory that such a constitutional point should be implemented as a by-blow in a defamation Bill. Thirdly, it seems to me primarily a matter which should be left for the initial consideration of the other place. The events which led to the Bill of Rights were exclusively those in the House of Commons. The two current cases, one of which is Mr. Hamilton's, are both in the House of Commons.

There is a further reason why it seems that the matter should go untrammelled to the other place. If your Lordships were to inscribe this amendment on the Bill, it would form part of the Government's Bill and, I surmise, be the subject of a running Whip. However, if it is left to be independently advanced in the other place, the Government having proclaimed neutrality, there would be a free vote. Surely, on a constitutional matter of this kind, that is in every way preferable. So I hope that my noble and learned friend will not press the amendment. There are grave difficulties anyhow. The assumption behind it is that there is an individual privilege of a Member which he himself can waive. But that is not so. It is universally agreed that it is stated by Erskine May and all the other authorities that the privilege is that of the House or, in some cases such as with the Bill of Rights, of Parliament. If a Member, by implication--and it is no more in this amendment--is able to waive his own privilege, in so far as he has one as a Member of the other place or this place, there remains the privilege of the House as a whole. That means that the House as a whole can take cognisance of the conduct or words in question.

In the most recent case that reviewed this matter, Pickin v. BR some 20 years ago, it was emphasised that it would be quite intolerable if there were two inquiries going ahead simultaneously or overlapping, one by the courts of law and one by the House of Parliament. The amendment would land us in a whole number of respects in precisely that situation.

A number of very difficult expressions would fall for interpretation in the courts, the most important being "proceedings in Parliament". There is every reason to think that that might be differently interpreted by the courts and by the House itself.

Then there is the difficulty to which my noble and learned friend referred, whereby our two Members are in a similar position. They are accused jointly of being corrupt. One waives privilege and sues; the other stands on his rights. What is to be done? My noble and learned friend mentioned that but did not offer any solution. I can see no solution that would be consonant with justice. In fact, the sensible thing now would be for the House to conduct its own inquiry, taking no notice of any pretended waiver by one Member; but he would have a statutory right by implication to have that waiver.

There are three different sources of privilege which have different scope and different incidence. There are the privileges that are asked by the House of Commons of the Queen at the Opening of Parliament--the three requests that are made. The most important of them is freedom of speech, which is largely merged now, I believe, in the Bill of Rights. That is a privilege of the House of Commons alone, although this House probably has similar privileges.

Then there is the privilege of the Bill of Rights as to words, conduct and proceedings in Parliament. As my noble and learned friend said, there is a far wider scope of privilege. The privilege of the Bill of Rights is the privilege of the whole of Parliament alone and cannot, I believe, be waived by either House. I am glad to see the noble Lord, Lord Richard, a distinguished constitutional lawyer, nodding his acquiescence. I hope he will intervene in this debate. He has had ministerial experience of both Houses and his service abroad gives him a comparative outlook.

There is a third group of privileges which I believe belong to each House separately. They go very wide. Noble Lords may remember that A. P. Herbert, before he became a Member of Parliament, pursued a campaign against the restrictive licensing laws. A prime target was Parliament, which enacted those laws but did not obey them. He took out a summons against the refreshment manager of the House of Commons. The Chief Metropolitan Magistrate dismissed that and it was dismissed on appeal by the Lord Chief Justice. Even the opening hours in the bars in Parliament are covered by privilege--not by the Bill of Rights, but by the wider privilege. So the House will see how far we can go from defamation.

That brings me to defamation itself. On Report, my noble and learned friend the Lord Chancellor was inclined to doubt whether there would be any cases of tort other than defamation. But, considering A. P. Herbert's case, can one be so sure? In any case, assault and battery is a tort as well as a crime. Let us suppose that two Members come to fisticuffs on the Floor of the House. Who has the right to claim that the other is the aggressor and that he is engaged in no more than self-defence? Let us suppose, for instance, that a campaigning journalist comes face to face with his victim, a Member, in the Lobby. What is the position then? There arises the sort of question that examiners like to set: "Supposing there was that sort of scuffle in the gateway between New Palace Yard and Parliament Square ...". It simply cannot be assumed that this is a defamation problem only and whatever is important can be dealt with by a defamation Bill.

The fifth point of difficulty was mentioned on the last occasion by the noble Lord, Lord Lester. I shall leave him to deal with it. If this amendment were passed, it would require something further; namely, the availability of qualified privilege by the newspaper or other organ of the media.

There is another very important point; namely, what about public opinion? Public opinion regards Parliament somewhat askance. In Committee, my noble and learned friend Lord Hoffmann mentioned "saloon bar opinion" and "saloon bar cynics". What would they say if this House were to approve a measure that allowed a Member to pick and choose: to stand on his privilege when it suits him but to waive it when that suits him? Noble Lords may think that Parliament should have regard to the likely repercussions on opinion.

There are two more short points. First, what about Scotland? One of the many doubtful points in this branch of the law is whether the Bill of Rights applies to Scotland. In fact, the Bill of Rights was passed before the Act of Union, and Scotland has its own declaim of rights. It is by no means in the same terms as the Bill of Rights; but that, again, is a matter that requires investigation.

Finally, there is the matter I mentioned of Commonwealth repercussions. It is for those reasons that I put down the Motion which is to be taken immediately after this Bill and which has been discussed along with it. As at present advised, I do not propose to move that Motion because I feel that the whole matter should go to the other place completely untrammelled and with a clean slate. I shall listen to what your Lordships have to say about that. In the meantime I suggest that on a matter of such constitutional importance this amendment ought not to be accepted.

[Amendment No. 5, as an amendment to Amendment No. 4, not moved.]

4.30 p.m.

Lord Richard: My Lords, I never cease to be amazed at what is said in this place. Coming from such a great constitutional lawyer as the noble and learned Lord, Lord Simon of Glaisdale, to be classed as a distinguished constitutionalist is an accolade of which I am very proud. Perhaps I should increase my fees somewhat. Not as a distinguished constitutional lawyer but as someone trying to approach this difficult question with a degree of common sense, let me put certain basic propositions to the House. I shall do it in very short order.

I start by saying that I have considerable sympathy with Mr. Hamilton. This is a situation in which, because of the nature of parliamentary privilege in this country, prima facie a case which would have gone through the courts in the normal way is now not capable of doing so. As I understand it, whatever happens to this amendment does not defeat the case. The case is not statute barred. As I understand it, it is stayed for the time being.

The noble and learned Lord, Lord Hoffmann, did the House a service in setting out at some length the background to the argument. It was notable that, in the course of his argument, he conceded that there was an effect on Article 9 of the Bill of Rights of 1689. He said that what we should be doing in this House is providing the other place with a text. With great respect, I do not believe that that is the function of this place. We are supposed to be legislating. We are supposed to be considering adding a clause to a Bill which in due course will go to the other place for its consideration. We are performing our legislative function and not providing the other place with a text which they might or might not wish to consider.

Let me put to the House what I hope are relatively simple propositions. First, does the proposed amendment go to the issue of the privilege of Parliament and Members of Parliament? The answer is clearly yes. Secondly, whose privilege is it--the individual's or Parliament's as a whole? The answer is also clear: it is the privilege of Parliament as a whole and not of one individual Member. My third proposition is: if the amendment is accepted, does it alter the privileges as expressed in the Bill of Rights of 1689? The answer is clearly yes. If it does and if there is a case for altering the privileges of Parliament or of individual Members of Parliament, as expressed in the Bill of Rights of 1689, how should Parliament go about altering that Bill of Rights? I venture to suggest that an amendment tacked on to the Third Reading in your Lordships' House of a Bill on defamation is, frankly, not the way in which a constitutional issue of such importance should be considered.

However one looks at the matter and however much sympathy one has for Mr. Hamilton, and indeed the other defendant in this affair, it goes to the root of the constitutional relationship between Parliament and the British public. We are talking about a privilege that is attached to Parliament. With great respect, I do not believe that one should deal with the matter in this way.

If the matter should not be dealt with in that way, how should one do it? It seems to me that there is here an issue that is worth considering and that should be considered. Who should consider it? In my submission, it should not be done by this House on its own in the course of passing legislation. It should be done as the noble and learned Lord, Lord Simon of Glaisdale, proposed in his Motion; namely:

"That it is desirable that a joint committee of both Houses be appointed to consider the issues raised by the proposed new clause",

as set down in the name of the noble and learned Lord, Lord Hoffmann. I believe that that is right.

Should the matter come to a Vote, let me make my position clear. If the noble and learned Lord, Lord Hoffmann, insists on the new clause, I shall oppose it. I shall do so on the basis that, if his amendment is to fall, the House will be prepared to accept the Motion in the name of the noble and learned Lord, Lord Simon of Glaisdale.

I said that I would be brief and I have been. It seems to me that this is too important an issue to be dealt with in legislation in this way. It requires detailed consideration by a Select Committee of both Houses of Parliament. If the result of that consideration is that we should amend the Bill of Rights of 1689, so be it, and that can no doubt be done in a proper way.

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