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Lord Lester of Herne Hill: My Lords, during the brief debate on the Bill at Report stage I expressed sympathy for the aim of the amendment in the name of the noble and learned Lord, Lord Hoffmann, which was tabled only shortly before the debate. After further reflection, I am now convinced that the amendment is flawed and would infringe fundamental principles of the constitution. I hope that your Lordships will bear with me if I explain why. It is for several main reasons.
First, contrary to the view of some of your Lordships, I believe that Mr. Neil Hamilton, whom the amendment was devised to assist and who has not pursued an appeal to the higher courts, would have reasonable prospects of success, as I shall explain. Secondly, the amendment is, as your Lordships have indicated, at odds with the protection given to parliamentary privilege by Article 9 of the Bill of Rights. Thirdly, it would operate arbitrarily. Fourthly, I believe that it would extend parliamentary privilege in a manner that would unnecessarily interfere with free speech. Fifthly, it would create new conflicts between Parliament and the courts of the kind we thought dead and buried a century ago. Lastly, it would authorise conduct that would infringe the European Convention on Human Rights.
In approaching the amendment I respectfully suggest that we would do well to heed the wise warning in the maxim, "Hard cases make bad law", to which I would add, bad constitutional law and bad constitutional practice. The fact that Neil Hamilton's case is a hard case should not lead us to act in a hasty way. In the Prebble case the noble and learned Lord, Lord Browne-Wilkinson, explained,
- "The basic concept underlying Article 9 is the need to ensure as far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts".
He made it clear on behalf of the Privy Council that:
- "The privilege protected by Article 9 is the privilege of parliament itself. The actions of any individual Member of Parliament, even if he has an individual privilege of his own, cannot determine whether or not the privilege of Parliament is to apply".
It is significant--and it has not yet been mentioned--that nowhere in the Commonwealth has any other legislature or any member of any other legislature, so far as I am aware, sought to tamper with Article 9 in the wake of the Prebble case in the manner contemplated by this amendment. In my view it is most unfortunate that Mr. Hamilton did not appeal against the application of the Prebble case in the circumstances of his particular case because there is strong persuasive authority, not considered by the Privy Council, suggesting that the Law Lords might hold, if he did appeal, that he could pursue his libel action notwithstanding Article 9.
Without taxing the patience of noble Lords unduly, perhaps I may give one example. I have in mind the decision of the American Supreme Court in United States v. Brewster (1972) where it upheld the validity of an indictment of a former US senator alleging that he had accepted a bribe to be influenced in the performance of his official acts. The Supreme Court decided that although the American equivalent of Article 9 of the Bill of Rights protects members of Congress from inquiry into legislative acts or the motivation for the performance of such acts, it does not protect all conduct relating to legislative acts or motivation. The Supreme Court said that it was the taking of the bribe, not the act which the bribe was intended to influence, which was the subject of the prosecution. The court held that the "speech and debate" clause, which is equivalent to Article 9, imposed no obstacle for that type of prosecution. Chief Justice Burger observed that in Canada, as well as in Australia, courts have held that parliamentary privilege does not bar the criminal prosecution of legislators for bribery.
In my view it is very strongly arguable that if Mr. Hamilton had pursued an appeal, the Law Lords would have been persuaded by this reasoning--not only in the American case, but in others--to decide that Article 9 interposes no obstacle to an action based on a particular libel of which he complained since an allegation of accepting cash for asking questions in Parliament is quite different from the allegation in the Prebble case of making misleading statements to Parliament. In other words, I believe that Mr. Hamilton's case can readily be distinguished from the Prebble decision.
Noble Lords may think that if that is correct Mr. Hamilton should be pursuing his remedy in court rather than that we should have to consider such a grave and weighty constitutional amendment. In addressing the merits of the case, I believe that the amendment of the noble and learned Lord, Lord Hoffmann, goes much wider than the particular circumstances of Mr. Hamilton's case. In my opinion the amendment is plainly inconsistent with Article 9. It seeks--the noble Lord, Lord Renton, made the point--legislative authority for Parliament to surrender its vital collective privilege to any individual Member or anyone else who is a witness in defamation proceedings and whose conduct is in issue in those proceedings. It leaves entirely to the discretion of that Member or witness, or other individual, to decide whether to waive the protection given to Parliament by Article 9. I venture to doubt whether such a course can constitutionally be taken in accordance with Article 9 and in accordance with the law and custom of our constitution as observed over the past three centuries without the House itself deciding in each particular case whether or not to waive the collective privilege. However, that is what the amendment seeks to do by means of what is really a parliamentary equivalent of a sweepingly broad Henry VIII clause--ourselves acting in this sense as Henry VIII.
I believe that the amendment is also inconsistent with the central purpose of Article 9 in another important way. Its very existence would mean, if it were enacted, that a Member who has been defamed will be under pressure to waive the collective privilege to vindicate his reputation. Furthermore, although the amendment purports to leave it to the discretion of the individual without affecting the operation of parliamentary privilege in relation to another person who has not waived it, that is not how it will work in practice, as several noble Lords have said.
Let us take the case, to which the noble and learned Lord, Lord Hoffmann, referred, of several Members being involved in the same matter. One decides to waive the collective privilege so that he can pursue a libel action. He is able to proceed with the action in that case only if he can persuade the others to waive their privilege; otherwise the court would stay the action on the ground that there cannot be a fair trial unless the relevant evidence, including the evidence of the other Members, is made available. That means that pressure will be brought to bear by one Member on another Member to waive privilege. Pressure of that kind undoubtedly undermines the collective protection of parliamentary privilege, and the very existence of the possibility of waiver by any one Member would deprive all Members of the confidence, at the time they speak, that they could be certain that there could not subsequently be a challenge in the courts to what they are saying.
I am sorry to say that I also think that the amendment would operate arbitrarily in several ways. In the first place, its operation would be entirely at the discretion of the individual Member or witness. Secondly, it could be waived entirely to further his own particular interest as a party to litigation. I take as an example the case of the Church of Scientology v. Geoffrey Johnson-Smith, as he then was. The plaintiff in that case sued Geoffrey Johnson-Smith for defamatory remarks made during a television interview outside Parliament. Geoffrey Johnson-Smith pleaded fair comment and privilege. To defeat that plea, the Church of Scientology pleaded that the MP had acted with malice, and it sought to adduce evidence, including extracts from Hansard, of what the MP had done and said in Parliament. The court refused to permit that because it would breach parliamentary privilege.
However, if the amendment were passed, a defendant would retain the option to use parliamentary privilege to shield himself in libel proceedings not only in respect of what he had said or done in Parliament, but also, as in the Johnson-Smith case, of what he had said or done outside Parliament. On the other hand, he would be given the new right, an entirely novel right, at his sole discretion, to waive privilege whenever it suited him, whether as plaintiff or defendant, in defamation proceedings. That would surely strike the other party to the libel proceeding, and the public at large, as an unfair extension of parliamentary privilege, inconsistent with its origins and primary purpose and arbitrary in its operation.
It would also unjustifiably interfere with free speech since a newspaper seeking to criticise an MP would have no way of knowing whether, or upon what basis, parliamentary privilege might be waived so as to permit the newspaper to establish the truth of fair criticisms of the conduct of elected Members in the performance of their legislative duties. That would have a serious impact on what the noble and learned Lord, Lord Browne-Wilkinson, described as,
- "a most important aspect of freedom of speech, namely the right of the public to comment on and criticise the actions of those elected to power in a democratic society".
The amendment is arbitrary in another way, not yet referred to. It applies only to defamation proceedings, yet the reputation of an MP or other witness may be at stake in other proceedings, such as a criminal conspiracy trial, as in the Australian case of Hunt. I can discern no rational basis for permitting an individual waiver only in libel proceedings. If it were right to permit waiver by an individual, he should surely be permitted to waive the privilege to clear his name in the course of a criminal trial, say, for bribery or corruption.
As several noble Lords have said, the amendment would plainly result in the very vice, to which the Privy Council referred in Prebble, of reviving conflict between the courts and Parliament by allowing it to be suggested in cross-examination or submission that a Member or witness had lied to the House.
As it stands, the amendment would also unnecessarily chill free speech by allowing Members to pursue libel proceedings without there being qualified privilege, unlike the position in the United States, Australia, India, Pakistan, and Trinidad and Tobago. However, I recognise that that matter falls outside the scope of this amendment.
If this matter is to proceed further--I very much hope that it does not--I respectfully agree with the noble and learned Lord, Lord Simon of Glaisdale. However, I very much hope that after this debate the noble and learned Lord, Lord Hoffmann, will seek leave to withdraw the amendment. I believe that Mr. Hamilton should be left to pursue his legal remedies before the courts by way of appeal out of time. I also suggest that we should not subvert ancient and wise constitutional principles for the sake of a particular personal or political interest in litigation, however hard the case.
The immunities written into Article 9 were not included simply for the personal or private benefit of Members of either House but to protect the integrity of the legislative process by ensuring the independence of individual legislators. It was the culmination of a long struggle for parliamentary supremacy. I submit that it is as important as ever in protecting the independence and integrity of Parliament and should not be permitted to be undermined to meet the personal and private needs of particular individuals, however much we may or may not sympathise with the case.
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