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The Earl of Balfour: I am obviously happy to withdraw the amendment. One of the reasons I tabled it was that the position of the Secretary of State once the parliament is set up appears to me to be so very vague. That was one of the reasons why I felt that it was worth while to bring the amendment forward. However, after hearing what has been said, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 37 [Defamatory statements]:

Lord Mackay of Drumadoon moved Amendment No. 251:

Page 18, line 17, at end insert (", and
(c) any written or oral communication by a member of the Parliament to a member of the Scottish Executive, to the Presiding Officer or his deputies, or to a Minister of the Crown,").

The noble and learned Lord said: This amendment raises a very short point; namely, whether the provisions in Clause 37, which extend the concept of absolute privilege to statements made in parliament and publications made under the authority of the parliament, should also be extended to written or oral communication by members of the parliament to the various persons set out in my amendment.

It is important that members of the new parliament should be able to discharge their duties both within and without the chamber vigorously and responsibly without the fear of being sued. That is recognised in the clause as presently drafted. My amendment would take it one stage further. I hope that a constructive response will be forthcoming from the Minister. I beg to move.

Lord Thomas of Gresford: I find this a most interesting amendment because it raises a matter of historical and constitutional importance. The privileges of this House have long been protected. I hope that the Committee will forgive me, in the absence of my noble friend Lord Russell, for going back to the 17th century. In 1621 the other place declared that the privileges of parliament were the birthright and inheritance of the subject. Those ancient privileges were enshrined in the Declaration of Rights of 1688, which was given statutory form in the Bill of Rights of 1689, Article 9 of which stated that,

Notoriously, Members of both Houses abused their privileges in the 18th century in respect of immunity from civil actions and from arrest. It was said that many Members of Parliament had to flee when Parliament was not sitting and spend their time in France rather than

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face the bankruptcy court. And so by the Parliamentary Privilege Act of 1770, Members were rendered liable to ordinary proceedings for their normal private behaviour, together with their menial and other servants.

The question then arose as to the extent of their privileges and what was meant by the term "proceedings in Parliament" in Article 9 of the Bill of Rights. A resolution in 1837 stated that,

    "by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges and that the institution or prosecution of any action, suit or other proceeding, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, is a high breach of such privilege and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon".

But did it extend, as this amendment seeks to do, privileges to correspondence with Ministers? That was a matter which came before the other place on 8th July 1958. Your Lordships will forgive me for this tour through history but it helps to illustrate the extent to which the noble and learned Lord's amendment goes far beyond anything that we have ever known before.

On 7th July 1958, there was a debate in the other place which was concerned with a letter that Mr. George Strauss had written to the then Minister of Power concerning the London Electricity Board and its manner of dealing with scrap. That was passed by the Minister of Power to the chairman of the London Electricity Board, who then threatened a libel action, and the matter went to the Committee of Privileges and also to the Judicial Committee of the Privy Council. It was a most unusual proceeding that the Judicial Committee of the Privy Council became involved.

The Committee of Privileges said, yes, there had been a breach of privilege because that letter to a Minister--which is what this amendment is about--was privileged; it was part of the proceedings of Parliament; but that no action should be taken. Those are the circumstances in which the debate then took place.

The view was hotly contested, not least by the then Attorney-General, Sir Reginald Manningham-Buller, as he then was, who said:

    "The conclusion of the Committee of Privileges in this case that there was a breach of Privilege depends on the conclusion that the action of the right hon. Gentleman [in sending a letter to a Minister] was a proceeding in Parliament, within the meaning of the Bill of Rights".

He went on to say:

    "The Bill of Rights is a Statute, and the meaning to be attached to the words in that Statute, 'proceedings in Parliament', is a question of law. This House, of course, can put its own interpretation upon those words, but ... that will not be binding on any court of law, and it is because the courts may reach a different conclusion as to what are the Privileges of Parliament from what this House may reach that a conflict may arise.

    We are not here concerned with any Privilege based on any custom or usage, but with a Privilege enshrined in a Statute. In my opinion it would be wrong if this House sought to give a meaning to a Statute which that Statute does not and cannot have. I feel bound to advise the House, as I advised the Committee of Privileges, that in my opinion there cannot be the slightest doubt that the answer to the question whether the letter written by the right hon. Gentleman [to the Minister] was a proceeding in Parliament is 'No'".

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He was supported in that conclusion by Mr. Dingle Foot, who was, of course, from the Labour Party, and construed the statute in the same way. He said that the Bill of Rights was concerned with interference by the Crown, and added:

    "I imagine that they had in mind particularly the case of Sir John Eliot who died in the Tower as a victim of Royal vengeance for the words he had spoken in this House".--[Official Report, Commons, 8/7/58; cols. 250, 251 and 299.]

He came to the firm conclusion that correspondence by a Member with a Minister could not, save in the sort of circumstances where the draft of a Parliamentary Question was sent forward, be considered as a document entitled to absolute privilege, which is what this amendment seeks to secure for the Scottish parliament. After a lengthy debate and on a free vote, the House of Commons resolved that the letter of Mr. Strauss was not a proceeding in Parliament and was of the opinion, therefore, that the letters from the chairman of the London Electricity Board threatening libel constituted no breach of privilege.

So far as I am aware, the next thing that happened was what one might call the "Neil Hamilton Act 1996"--in other words, the Defamation Act 1996, which contains further definitions of what are "proceedings in Parliament". I shall not weary Members of the Committee with the various matters which were considered to be proceedings in Parliament. However, what the 1996 Act does not suggest is that a written or oral communication by a Member of Parliament to a Member of the Cabinet, to the Speaker or to a Minister of the Crown can be absolutely privileged. Of course it has "qualified privilege"; that is to say, a communication between a Scottish member to the Scottish executive, and so on, will be entitled to qualified privilege in a libel action, which means that an aggrieved plaintiff would have to prove malice. I see nothing wrong in the proceedings being challenged if there is malice, but I do not believe that we should have the absolute privilege suggested by the amendment.

I apologise for taking Members of the Committee so far through constitutional history. However, it seems to me that the amendment goes way beyond the privileges of this Parliament. I am sure that, on reflection, the noble and learned Lord will decide not to pursue it.

Lord Hope of Craighead: I should like to add just a few points to the very interesting comments made by the noble Lord, Lord Thomas of Gresford. It seems to me that the amendment raises a practical problem and an issue of principle. The practical problem arises in the following way. Written communications are subject to the modern disease; namely, proliferation by means of the photocopier. Although the amendment is carefully drawn to restrict itself to communications from a member of the parliament to certain persons, it is quite possible that copies of such documents may pass to other people by various means.

Similarly, in the case of oral communications, they may form the basis of a memorandum or a note which may then, in the same way, pass outside the files of the recipient. Recent experience I have had indicates that in

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various ways, either by discovery under the English civil process or by the disclosure rules which apply in the criminal process in England, substantial numbers of documents may pass well beyond the confines of the files to which they were originally consigned. It is quite possible that communications which the Member of Parliament thought would be personal to him and the person to whom he has written will find their way far beyond the original communication into the hands of someone who may feel aggrieved or defamed by what is contained in it.

That is the scale of the problem. There is certainly an issue to be addressed. I am bound to say that I take the same view in principle as the noble Lord. To give absolute privilege to these communications, whatever the circumstances--whether the communications are made outside Parliament or whatever else--goes further than is necessary. As has been said, there is the protection of qualified privilege. English law at least, and maybe Scottish law as well, is developing other mechanisms to protect people who are or may be affected by the release of documents by discovery and also by the release of documents in the criminal process. Those protections are available too.

On balance, I think that the amendment goes further than is needed despite the scale of the practical problem to which I referred.

9.45 p.m.

Lord Rodger of Earlsferry: Perhaps I may say, with respect, that I agree with what has been said by the noble and learned Lord, Lord Hope of Craighead. Nonetheless, I am aware, because I was summoned to give evidence before it, that there is a joint committee of this House and the House of Commons under the chairmanship of the noble and learned Lord, Lord Nicholls of Birkenhead, which is considering many of the issues concerning parliamentary privilege.

When I gave evidence I was struck by the fact that that committee was amazed that in considering questions of privilege, and so on, in relation to the parliament in Scotland, little consideration appeared to have been given to all the various pieces of evidence received about exactly the same matters in relation to the Westminster Parliament.

Like the noble and learned Lord, Lord Hope, I rather think that the amendment goes too far. I wonder what thought has been given to the possible recommendations--I do not think that any have yet been made--of the committee which has been set up. The committee has considered in great detail the complicated issues which arise, for example, in relation to communications between Members of Parliament and Ministers in relation to privilege. What consideration has been given to these issues in relation to the Scottish parliament?

It seems to me that although there is no reason why the Scottish parliament should ape the Westminster Parliament, equally there is no reason why the Scottish parliament should ignore all the experience which has been built up over the years and, in particular, all the consideration which has been given in recent months by

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a distinguished committee under the chairmanship of the noble and learned Lord, Lord Nicholls, which has great experience, both as regards the position in the Commons and the position in this House. I wonder what consideration has been given to all these matters in formulating what appear to me rather brief provisions in the context of the Bill.

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