---

Lord Peyton of Yeovil: My Lords, if I may be forgiven after an hour and 34 minutes of listening to this interesting debate, I should like to make just one or two observations. At the start, I felt a great deal of sympathy for Mr. Hamilton, who is a friend of mine. Having heard the noble and learned Lord, Lord Hoffmann, move his amendment, I must say that I was wholly convinced by it. That conviction has only been mildly shaken from time to time by those who have opposed it. If it comes to a Division, I shall therefore vote for it.

What seems to me to be odd, unpalatable, and very hard to accept, is that a privilege which was designed originally for the protection of Parliament and its Members should now have the wholly unintended effect of barring the access of one Member to the courts, that Member believing himself to have been seriously libelled. I need not go into that more than to say that he was obliged, as a result of the publication of that accusation, to resign as a Minister of the Crown. I know that sympathy for Mr. Hamilton has been expressed even by those who oppose the amendment, but I feel, nevertheless, that perhaps rather too much has been made of a minor change to a law which has stood for over 300 years. It does not seem too much to suggest, in the interest of justice to an individual, this modest change, which does not give him anything save that which is the right of every citizen of this country who feels he has been wronged.

Lord Pearson of Rannoch: My Lords, perhaps I may intervene briefly to support the amendment and to underline what has just been said by my noble friend Lord Peyton. I do so by asking a very simple question: what happens if we put ourselves in the position of those who drafted and passed the Bill of Rights, and ask whether they would have intended Mr. Hamilton to find himself in his present predicament thanks to their otherwise worthy endeavours? May I suggest that they would have been very disturbed? Those who drafted the Bill of Rights cannot have envisaged the public climate in which we live today. I hope that your Lordships will not think me flippant if I go further and suggest that they could not conceivably have been able to foresee the existence of the Guardian newspaper, or indeed of the rest of our modern media. It is perhaps for that reason that Mr. Hamilton's case, if not the first, is certainly one of the very early cases after 300 years of history.

I am not a constitutional expert, but the amendment does not seem to me to go against the fundamental principles of the Bill of Rights. Indeed it appears to go with the wider implications and intentions of the Bill itself. It does not go against its priceless principles. I have listened to all the arguments put forward this afternoon by noble Lords who oppose the amendment, and I have to say that they strike me as somewhat administrative when set against the principles that we are debating. I have had the impression that some noble Lords who have spoken against the amendment have been standing the Bill of Rights on its head.

I am left with the letter which I received from Mr. Hamilton; indeed, I am sure that many noble Lords have received the same letter. I have heard nothing which goes against the urgency and obvious justice of his case, which is merely the right to have it heard before the courts. Therefore, I shall conclude by quoting to your Lordships what Mr. Justice May said when he very reluctantly stayed the case. He said:

"I am acutely conscious that staying the actions may be perceived as a profound denial of justice to the plaintiffs. The ability of all persons to come to the courts to have their disputes tried and determined fairly and according to law is a cardinal right upon which freedom under the constitution depends".

I support the amendment.

5.30 p.m.

Lord Campbell of Alloway: My Lords, I came to the House to support the amendment, but having heard the debate I am unable to do so, largely for the reasons given by the noble Earl, Lord Russell. I feel keenly about the manifest injustice of the situation and that is why I came to support the amendment. However, if by statute one starts to interfere with the privileges of Parliament, one is starting something which is of even greater consequence than an injustice.

Lord Beloff: My Lords, in supporting the amendment I wish to make one point. It is that we should remember the circumstances in which the Bill of Rights was drafted. It was intended to protect the two Houses of Parliament against the Executive. People could not then have forecast a time when we should suffer from a yellow press. Surely it is more important to look at how we protect citizens. Indeed, the noble Baroness, Lady Turner, reminded us that not only are Members of the two Houses involved and seek such protection. To impute some principle of non-intervention in the affairs of Parliament to the authors of the Bill of Rights is to go very far from historical truth.

The Lord Chancellor: My Lords, I am sure that all noble Lords are grateful to my noble and learned friend Lord Hoffmann for tabling the amendment, the way in which he moved it and the balance with which he presented it. All of us would expect that of him.

There is no doubt that the issue is difficult. As the noble Lord, Lord Richard, said, this is a House of Parliament legislating but it is a House of Parliament legislating as part of the parliamentary process. What we decide today is subject to the approval of the House of Commons before it becomes law. I believe that discussion of this matter in the House of Commons will be greatly assisted by the breadth of our debate today. I am sure that that was one of the purposes my noble and learned friend had in mind in presenting the amendment.

My noble friend Lord Campbell of Alloway confessed to having been swayed to change his mind by the speech of the noble Earl, Lord Russell. Therefore, perhaps it would be worth my while to say a word or two about that. The noble Earl made clear that it is impossible to remove the obstacle which Mr. Justice May and the Privy Council felt existed in cases of this kind without amendment of the Act of Parliament because the Act of Parliament creates the obstacle. No resolution of either House of Parliament of itself could do that. Therefore, the noble Earl, Lord Russell, towards the end of his remarks accepted that proposition and said that some form of parliamentary intervention is required in order that the court should be able to remove the obstacle.

As regards the amendment the Government are neutral; it is a matter for the House as a whole to consider. We would regard it as vitally important to have the opinion of the House of Commons, which is principally, although not solely, affected by the amendment, before reaching a view about it. I believe that the House of Commons would be able to consider the matter carefully if it came forward as part of a Government Bill. There is no intention whatever on the part of the Government that there should be anything other than a free vote on the matter in the House of Commons.

For the purposes of our discussion I assume that the decision taken was the correct one. The noble Lord, Lord Lester of Herne Hill, was moved to suggest that Mr. Justice May may have got it wrong and that an argument which was not put before the Privy Council might have affected its view. I believe that your Lordships must work on the basis of the judgments before you; namely, that of Mr. Justice May and of the Privy Council.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. Will he agree that, since Mr. Hamilton has not pursued his appeal to the Court of Appeal or to the House of Lords and since the Prebble case plainly does not deal with allegations of bribery but rather misleading statements in the House, it must be at least an open question as to whether the House of Lords would give as broad an interpretation to the Privy Council as did Mr. Justice May?

The Lord Chancellor: My Lords, it is always a question, which is why rights of appeal are granted, and these days only a fairly brave lawyer would forecast with 100 per cent. confidence a decision of a higher court. I am speaking about the decision for the purposes of our debate today. I am not saying that Mr. Justice May's judgment will stand for ever. A similar judgment was made in another case at about the same time by Mr. Justice Owen, but even two High Court judges would not necessarily determine the law for the future. Your Lordships will know that the House of Lords has not professed to do that. There is always a degree of the provisional in such matters. But for the sake of the present debate your Lordships must assume that the judgment of Mr. Justice May was correct, as was a similar judgment of Mr. Justice Owen in a similar case. That is my assumption in looking at the matter.

If those judgments are correct, the Act relating to England and Wales which created the obstacle to doing justice was created to protect the parliamentary process and that has turned out to be an obstacle to a Member of Parliament obtaining access to justice. That may be inevitable and certainly under the present law it appears to be inevitable. The question is whether Parliament should intervene to change it. All noble Lords have agreed that if the law has that effect the only way it can be changed is by the intervention of Parliament.

I accept immediately that the privilege created by the Bill of Rights as regards this aspect is a privilege of Parliament. It is not a privilege of individual Members of Parliament; it is a privilege of Parliament. However, the consequence of the existence of that privilege is the interposition of an obstacle to protecting themselves in the face of individual Members of Parliament. That may be a consequence of the privilege of Parliament, but it is an obstacle that the individual faces in seeking access to the courts in order to clear his name from what he believes to be a defamation.

The question is whether Parliament should do something about that. Two courses are open to your Lordships today. The first is to send the whole matter to a joint committee of both Houses, which of course would require the agreement of the other place. The second is to consider whether this amendment should be passed. Of course, there is a third possibility of doing nothing, but in the face of such an injustice your Lordships might not feel moved to do nothing. Therefore, the question is: what should be done?

To send the matter to a joint committee is not a solution but is a way of having the matter considered further by your Lordships, and there has been a fairly full debate today. I have no doubt that the whole of this debate will be available for all Members of the House of Commons who wish to take an interest in it.

If the amendment comes forward in a government Bill, it will have come forward as a result of an amendment moved by a noble and learned Lord from the Cross-Benches without the Government having a view upon the matter, and there will be a free vote.

It is said that resolutions of each House of Parliament are important in that connection. I agree entirely with that. It will be necessary for both Houses of Parliament to agree to the amendment before it becomes the law of the land. Therefore, it seems to me perfectly correct that the views of both Houses are taken independently and that the refusal of either House to agree to the amendment will cause it to fall.

And then it seems to me that it is right that the individual in whose path this obstacle to justice is placed in consequence of this particular immunity or protection should have the right to say that he does not wish that obstacle to remain in his path, if that is his wish.

Various points have been made in relation to this; for example, that pressure could be put on one Member to waive his privilege. At present there is the familiar invitation to a Member who makes a statement that he should come outside and make it again. That is a matter for the Member's discretion.

---