§ That Standing Order No. 69 (Scottish Standing Committees) be amended, as follows : Line 7, leave out from beginning to 'Committee' in line 14 and insert 'Each such'.
§ Mr. Whitelaw
It may be for the convenience of the House, Mr. Speaker, if I start by outlining the way in which I suggest we handle these Motions today. You have indicated that you think that they might be taken together, and that would be my preference, but if any right hon. or hon. Friend wishes to put forward some alternative I shall be perfectly content. My sole purpose is to give the House this opportunity to come to some decisions on the important Report from the Select Committee which the House set up, and which reported some time ago. I believe that this is only proper recognition of the time and trouble which members of that Select Committee gave to this complex problem. I admit freely that the complexity of the subject tempts laymen like myself to leave it on one side as being too difficult. However, I have brought myself to the brink of the pool and now, with the indulgence of the House, I intend to dive in.
926 As you have suggested, Mr. Speaker, I propose that we discuss all the Motions together and decide on them individually at the end of the debate. As I have already made clear, I have no desire to push through any Motion if some right hon. and hon. Members have doubts about it. As far as possible, I wish to proceed by general consent of the House. Therefore, having introduced the Motions, I will listen carefully to the views expressed in the debate and then, with your permission, Mr. Speaker, and that of the House, I shall seek to indicate my proposals as to what we should on each Motion. I give the undertaking that if a Motion does not command reasonably general consent I will withdraw it and seek to reach an agreed solution in less formal discussion.
I turn to the Motions. It might also be for the convenience of the House if, in referring to the purpose of each of the Motions, I were to remind right hon. and hon. Members of its relationship with the corresponding Committee recommendations concerned, noting any difference between the Government's and the Committee's proposals and, finally, indicate those recommendations which the Government felt unable to accept or which for other reasons they were unable to bring before the House at this time.
I think that the general tenor of the Report may be fairly summarised as being that the scope of parliamentary privilege is in need of clarification and modernisation, that present procedures sometimes tend to draw undue attention to trivial complaints in a way that does damage to the general reputation of Parliament, and that there should generally be a greater reluctance on the part of the House to invoke its own special procedures in dealing with cases of alleged contempt, particularly when an hon. Member has an adequate remedy in the courts. The House will, I believe, wish to endorse these aims generally. I would only add that in altering our procedures we need to make sure that we do so in a way that preserves the flexibility of our existing procedures in the Privileges Committee, which has commanded the confidence of the House over the years.
The first of the substantive Motions in my name embodies the heart of the Committee's Report—a statement of its basic attitude, comprising its general rules 927 for limiting the exercise of penal jurisdiction set out in its second recommendation, the major recommendation concerning recourse to the courts, which is Recommendation 3, and the principal parts of Recommendations 4 and 5. If the main Motion is generally acceptable, I am quite willing to accept the alternative form of words proposed by the hon. and learned Member for Dulwich (Mr. S. C. Silkin) and his right hon. Friends in their Amendment to the Motion.
That the privileges of this House should be exercised only as is necessary for the maintenance of its authority and the efficient carrying out of its functions—no more, no less—is, I think, uncontroversial, but it needs saying all the same. Although I do not think we should get rid of the familiar name of the Committee, there is no doubt that "privileges" in the parliamentary sense is sometimes confused with "privilege". It is, in fact, nothing of the kind. All that the House will be restating here is, in effect, the time-honoured words used in Erskine May—that Parliament should use its powers to protect itself, its Members and its officers only to the extentabsolutely necessary for the due exercise of its powers.I recognise, on the other hand, that the Committee's proposal, which I also endorse in the Motion, that the House's penal jurisdiction should not normally be invoked when a Member has a remedy in the courts, is by no means as uncontentious. Like the Committee, however, I feel, on balance, that it is right that in cases of alleged libel, which essentially most of these cases are, a Member of Parliament should not generally be placed in a preferential position to that of any other citizen. But there may well be cases, particularly when the general interests of the House are at issue, where it would not be proper for a complaint to be dealt with by the courts. The Motion provides, therefore, that the House preserves its full discretion and reserved rights to deal with such matters within its own penal jurisdiction.
The second Motion concerns the reporting and publication of proceedings in the House and its Committees and implements Recommendations 14 and 16 of the Committee's Report. The old resolutions forbidding reporting have been 928 a dead letter for many years. I agree with the Committee that the time has come for theory to come into line with practice. I am sure that this clarification will be welcomed by the Press, and I believe that the distinction now broadly made between the position when proceedings are in public and unprivileged and when they in private and privileged will prevent any misunderstanding in the future.
The third Motion implements Recommendation 15 in the Committee's Report and confirms the right of Select Committees, subject to the authority of the House, to admit strangers to their hearings. This seems a useful clarification of practice that may now vary between Select Committees. I would draw attention to only one point. It is not entirely clear from the Committee's recommendations whether it envisages the public being admitted to deliberative as well as evidence-taking sessions. The House will have noted, as I believe is right, that the Motion is in terms only of hearings when witnesses are being examined. To admit strangers to deliberative sessions would, I believe, fundamentally alter the character of our Select Committees.
As regards the Amendments to the Motion tabled by my right hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), I have a completely open mind at this stage about whether, as he suggests, it should be necessary for a Select Committee to make a positive order before admitting strangers. I would therefore wish to hear what he has to say on his first two Amendments. His third Amendment—to leave out line 5 in the Motion—would surely have the effect of depriving the main Select Committee of the power to deny its sub-committees the right to admit strangers. I am not sure at this stage why my right hon. Friend should want to do that. I do not feel that T would, but perhaps he will explain his reasons and I shall be ready to listen to them.
The next Motion implements Recommendation 17 of the Committee's Report and, in effect, gives the Press carte blanche in respect of its publication of various voting particulars before the Division lists come out. I hope that the House will accept that this removes a further area of doubt, authorising publicly what I 929 believe—and, I might say, know from my past experience—has been tolerated in practice.
The next Motion is similarly uncontroversial. It merely gives most Select Committees and, in certain circumstances, you, Mr. Speaker, the power to authorise the publication, if necessary in advance of a report, of memoranda submitted to them. This implements Recommendation 18 of the Committee's Report.
The final Motion in my name concerning Recommendations 20 and 21 in the Committee's Report proposes changes in our procedure for raising complaints of contempt and differs, at least in detail, from the recommendations made by the Committee. On the central issue, I hope that we are all at one ; namely, that we need to devise a procedure which will give less publicity on the Floor of the House than at present to the occasional frivolous and unnecessary complaint while at the same time ensuring that the significant case receives the full attention it merits. Less publicity may, however, carry with it the risk that the Press, in particular, may unwittingly repeat alleged contempts which are under consideration but have not yet been reported to the House.
I believe that the House would think it right therefore that if the new procedure is adopted it would be reasonable for the Select Committee on Parliamentary Privilege to have discretion to inform the Press of any complaints of contempt as soon as they are raised if the complaint raised an issue in which the Press was involved.
I accept that the saving of the time on the Floor of the House by this weeding out of trivia is unlikely to be a great deal. Only about 16 hours have been spent on privilege cases in the House over the past 10 years or so. Unfortunately, the publicity given to alleged breaches of privilege is often in inverse proportion to their importance and detracts from the attention paid to cases where real issues are at stake.
Under the existing procedure, cases of alleged contempt are first raised on the Floor of the House at 3.30 p.m. for Mr. Speaker to rule, generally on the following day, whether there has been a prima facie breach of privilege for consideration.
930 Instead of this procedure, the Committee has recommended that complaints shall be initially raised through the Clerk of the House with the Select Committee on Parliamentary Privileges. A section of the Committee would then make a preliminary examination of the complaint and recommend to the main Committee whether it considered a full inquiry was justified. There would be an opportunity, on the tabling of a Motion signed by 50 Members, to overrule any decision that further inquiry by the main Committee was not justified.
Under the terms of the Motion which I now put forward, although the initial complaint would similarly be no longer raised on the Floor of the House but with the Committee, there would be no special provision for a section or panel of the Committee to undertake a preliminary examination of the case. Instead, it would be left to the Select Committee, acting within its existing authority, to arrange for this examination as it thought best. In this way, the Select Committee would be free to devise its own detailed procedures in the light of experience for dealing with the new preliminary examination of complaints.
These proposals would, moreover, I believe, have the merit of ventilating a complaint of contempt on the Floor of the House as soon as it had been acknowledged by the Select Committee to be one of substance. In this way, the House is involved and, indeed, is able to take an actual decision, as it does at present, on whether a full investigation by the Select Committee is justified.
Although, therefore, I readily accept the first of the Amendments in the name of the hon. and learned Member for Dulwich and his right hon. Friends, I hope that in the circumstances he will not feel it necessary to press his second Amendment.
The next stage of the proposed procedure is that if the Select Committee as a result of this preliminary examination, in the light of the principles set out in the first of today's Motions, considers that the matter deserves further consideration, it will so report to the House in the terms of the proposed Standing Order.
The proposed Standing Order then provides for a formal Motion for the 931 consideration of the report of the Committee. This would be moved after the end of Questions at 3.30 p.m., and the Question on this Motion would be put immediately without Amendment or debate being allowed.
The report in the name of the Chairman of the Select Committee being then before the House, Mr. Speaker would invite the hon. Member or right hon. Member who had originally raised the complaint to make a brief statement to the House. Following this, it would be open to the Leader of the House, who would normally but not necessarily also be the Chairman of the Select Committee, to move formally, if appropriate, a Motion that the complaint be referred to the Select Committee on Parliamentary Privilege. There would then be an opportunity for a Member to speak against the Motion, whereupon the Question would be put accordingly.
If, however, the facts were not in doubt, it would equally be open to the House to deal with the matter forthwith, as it has on occasions done in the past, when Mr. Speaker has allowed precedence to a complaint.
It will not be necessary under this procedure for Mr. Speaker to be called upon to rule whether a prima facie breach of privilege has been made out.
I should perhaps add also that if the Select Committee has recommended against further inquiry but there is nevertheless evidence of a general wish in the House for a Motion proposing further inquiry to be debated, I will undertake to arrange business accordingly ; and I have no doubt that this practice, once established, would be generally followed in future.
This completes my brief summary of the Motions I have tabled.
§ Sir Harry Legge-Bourke (Isle of Ely)
May I raise one question on sub-paragraph (1) of the second Motion? Has my right hon. Friend given thought to the somewhat cumbersome nature of this part of the procedure proposed, bearing in mind that it will mean calling on a number of Privy Councillors, some of them in the Government, all extremely busy ; whereas the procedure we have had up till now has involved only Mr. Speaker and those who advise him decide- 932 ing in the first instance whether a prima facie case has been established?
§ Mr. Charles Pannell (Leeds, West)
Before the Leader of the House meets that case, which I suggest with deference is a superficial one, may I point out that the present procedure involves the whole House, not only a few Privy Councillors? It often involves us, like an American grand jury, looking at things before we have any evidence at all.
§ Mr. Whitelaw
Both those interventions show one of the basic truths of life ; namely, that no procedure devised, or no change devised, will ever be without some disadvantages. The old procedure has its disadvantages and the new one would have, as my hon. Friend the Member for Isle of Ely (Sir H. Legge Bourke) fairly points out, what can be regarded as a disadvantage. There is no course in this matter which does not have some disadvantage. We have to weigh up the balance between the two.
§ Mr. S. C. Silkin (Dulwich)
On the point raised by the hon. Member for the Isle of Ely (Sir H. Legge-Bourke), as I understood what the right hon. Gentleman said earlier, in practice, though we do not put it formally on the Order Paper, it would be possible for the Select Committee to act through a quorum of its members which would be smaller than the full committee.
§ Mr. Whitelaw
That would certainly be true. I think I made it clear that I was suggesting that it should be left to the Select Committee itself to decide how best it would handle this matter. I should have thought that it would be reasonable on occasions, and depending on the case, for it to decide to look at the first inquiry with a limited number of its members. That would be for the Committee.
§ Mr. G. R. Strauss (Vauxhall)
On this small, but important point, the Leader of the House said that it would be left to the Select Committee to decide how to consider a preliminary point. When I have served on Select Committees in the past I have been told, on at any rate one important occasion, that the Select Committee had no power to set up a sub-committee to look into a minor matter. I do not know whether that applies 933 to the Select Committee on Parliamentary Privilege. If it does apply, the situation could be remedied. I hope that the right hon. Gentleman will look into the question whether this Select Committee has at the moment the power which other Select Committees do not have, unless specifically authorised by the House, to set up sub-committees.
§ Mr. Whitelaw
The right hon. Gentleman is perfectly right. Select Committees do not have that power at present. This Select Committee would have to decide whether it wished to come to the House, after practice, to consider such a prop-posal for the future, and to put it forward. It does not have that power at present. Therefore, naturally, as at present, under this procedure the whole Committee will have to be called together, but a decision can be taken by a quorum of that number if some of them cannot manage to be there.
I return now, having completed my brief summary of the Motions I have tabled, to the point where I should explain to the House that, although I think that the Motions cover all the most important recommendations of the Committee, there are a number of its 24 recommendations which I have not so far mentioned.
Of these, the majority would either themselves require legislation or are consequent thereon—in particular Recommendations 6, 7, 8, 10, 11, 13, 22 and 23. As regards Recommendation 22, the Government do not consider it right that special legal aid provision should be made in the case of hearings before the Select Committee on Parliamentary Privilege. I think this is a point on which the right hon. and learned Gentleman the Attorney-General in the last Government felt of a like mind.
The Government are also opposed to Recommendation 23 that the House should be empowered to impose fixed periods of imprisonment or fines. The complex legal issues involved in the redefinition of the scope of the defence of absolute and qualified privilege—Recommendation 6 -which would extend far beyond the field of parliamentary privilege must, I think, await the report of the present Phillimore Committee on the Law of Defamation.
§ Mr. Michael English (Nottingham, West)
The right hon. Gentleman is aware that in relation to Parliament the whole question of the legislation required on defamation and privilege was, after this Committee had reported, considered by a Joint Committee of both Houses, upon which the Chairman of this Committee also served. I take it that the Leader of the House has good reason, therefore, for saying that we must wait for yet another Committee to report before anything can be done about the recommendations in the report.
§ Mr. Whitelaw
I am getting into areas in which I am by no manner of means even vaguely an expert. I think, therefore, I would rather stay with what I have said, which I am advised is correct. If on subsequent investigation I find that what I have said is not correct I will bow to the hon. Gentleman, but I am advised that what I have said is reasonably correct ; but do not ask me why it is.
§ Mr. Whitelaw
In this instance. I have been rather away from it for a moment.
For the rest, this group of recommendations requiring legislation involve proposals for the removal of some minor archaisms. I cannot at this stage promise any legislative time for these, but none is, I believe, in any way central to the Committee's principal recommendations.
I hope I have assisted the House by this general survey and that members, of the Select Committee in particular will be reasonably content with the extent to which the Government have found themselves in agreement to their recommendations. I emphasise once again that these are matters which the Government recognise are pre-eminently a matter for the House to decide. I hope, however, that hon. and right hon. Members will share my view that this series of Motions forms the basis of a significant reform of procedure in this field which, whilst retaining the substance of traditional safeguards of the rights of Parliament, cuts out a good deal of dead wood and also focuses the notice of the House generally on those complaints of contempt which merit its attention and with which its procedures are best fitted to deal.
§ 12.53 p.m.
§ Sir Elwyn Jones (West Ham, South)
I must first make it clear that though I am speaking from a privileged place at the moment I am speaking entirely as a private Member of the House expressing my own personal views on the important matters which have been raised. I think I may on behalf of the whole House express the gratitude of the House to its Leader for having place these Motions before the House today. We last discussed the Report of the Select Committee on 4th July, 1969, and it is high time that these matters were discussed again and decided upon.
I begin by reiterating what has been said by the right hon. Gentleman, namely, that the basis of parliamentary privilege is not so much to protect Members of Parliament themselves, least of all to place them in a position above the law. Its purpose is to protect Parliament itself, its Members and its officers, to the extent, and only to the extent, absolutely necessary for the exercise of its powers. They are not privileges attaching to us as Members of Parliament in our personal capacities. They attach to the House in its corporate capacity, and they only attach to us personally by virtue of the fact that we are here to represent the citizens of our country to whom the existence of Parliament, operating without fear or favour or obstruction, is a fundamental protection.
Parliament should only have these penal powers to the extent absolutely necessary for their exercise, for they are powers which demand restraint in their exercise by reason of their nature and the machinery which exists to give effect to them. Use of the powers can be oppressive by reason of the unavoidable restriction our procedures impose in regard to the full protection of individuals who may be impugned, and they are procedures which, if used unnecessarily, could seriously disrupt the proceedings of the House. Accordingly I myself have full sympathy with the broad approach which is made in Motion No. 4 we are discussing.
As the right hon. Gentleman has indicated, the Motion does raise a real and a difficult problem which was highlighted during our debate in 1969 by my hon. Friend the Member for Liverpool, Walton (Mr. Heffer), who will, no doubt, 936 be seeking to catch your eye, Mr. Speaker, on this very point. It is this : do the terms of the Motion, as they stand, limit a Member of Parliament's power of action to taking his own proceedings in court, in a case which, while it affects him personally, and may concern only what he allegedly has done or not done, raises an issue of Parliamentary privilege? If the terms of the Motion do have that effect or are capable of that interpretation, I for one would oppose the Motion.
The Amendment which my hon. Friends have put down is obviously intended to limit the risk that that interpretation might hereafter be placed on the Motion. I think, with respect, that it is obviously desirable for that reason, for the fact is that libel actions, which would be the normal remedy which the terms of the Motion contemplate, are, first of all, extremely costly, and, secondly, are extremely complex. Few in the Temple would be ready to forecast their outcome with any degree of certainty. There is no legal aid in libel proceedings. Accordingly, a Member of Parliament without ample means or some well-endowed organisation behind him might well feel unable to take the risk of bringing a libel action. It is a real problem. The Amendment in the name of my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) and others of my hon. Friends does, I think, reduce the danger of a Member of Parliament's freedom of action being excessively restricted.
Even if the Amendment is made, however, there remains in the Motion the injunction that Parliament's jurisdictionshould not normally be invoked in cases where the Member complaining of a contempt has a remedy in the Courts nor so as to defeat any remedy available to any other person in the courts".It is implicit in the words of the Motion,should not normally be invoked in cases where the Member complaining of a contempt …that the circumstances contemplate the existence of a contempt. A contempt is—I quote from the Bible on the matter, Erskine May—any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results".937 If what is complained of amounts to a contempt should not the Member of Parliament concerned be wholly at liberty to decide what remedy he thinks it right to pursue? There may well be circumstances in which his first duty is to Parliament and to raise the matter in Parliament. If he chooses to raise it in Parliament, the normal consequences one would expect would be that he would not raise it in the courts as well. He would not be precluded from doing so, but it would be an unusual course of action if he were to seek the two remedies and an action which would not readily be contemplated.
§ Mr. C. Pannell
My right hon. and learned Friend and I were members of the Select Committee on Parliamentary Privilege on the Maxwell case. Is he laying down—I ask only for information—that an hon. Member having started a matter of privilege which is being heard by the Select Committee over a period should necessarily be precluded from raising the matter in the courts, or is he saying that that is undesirable?
§ Sir Elwyn Jones
I have not put it as high as my right hon. Friend suggested. I do not think he would be precluded, as a matter of law, from seeking a remedy in the courts as well, but it would be an unusual course of action, and I would expect the hon. Member to make his election as to which course to follow. If he felt that he had a prior duty to the House to raise the matter here for the purposes of the protection of the House he would thereby be forgoing in practice his right to sue in the courts and, in my personal view, he should take that attitude to the matter.
Therefore, I cannot say that I am entirely happy about the Motion, although, admittedly, it is much improved by the proposed Amendment. I have not formed any conclusion on the matter and it is of importance to hear the argument as adumbrated by my hon. and learned Friend the Member for Dulwich and his colleagues, who have obviously been giving the most careful thought to this issue, which is of great importance to the House and its Members.
As to the second part of the first Motion entitling a person against whom allegations are made to raise the plea of justification, I agree with what is pro- 938 posed in the Motion, carefully qualified as its terms are. It has always seemed to me to be undesirable that a person who may have a perfectly good justification in respect of what he has said should be precluded and prevented from saying, "I should have the right to come forward and justify that which I have said." To grant the opportunity for a plea of justification is however bound to have certain practical consequences. The person in question will presumably be entitled to call witnesses to support his case. We should rapidly be moving to a situation with which the House has not yet grappled, where the question of legal representation would arise. We came near the fringe of it in the case to which my right hon. Friend has just referred. So far legal representation has never been permitted, or at any rate has not been expressly raised or been allowed before the Committee of Privileges.
§ Mr. C. Pannell
I think my right hon. and learned Friend is wrong in that. In the Boothby case, by special Resolution of the House, representation was allowed. I had an altercation with the previous Law Officer about whether this procedure should be invoked, and it should be so invoked. Such legal representation was included in a play written by my hon. Friend the Member for Coventry, North (Mr. Edelman) I asked him where this precedent came from, and he said, "Boothby".
§ Sir Elwyn Jones
With great respect to my right hon. Friend, I think that was in a Select Committee and not in proceedings before the Committee of Privileges.
§ Sir Elwyn Jones
But it was not before the Committee of Privileges, and that is what we are discussing here. Legal representation has been allowed before many Select Committees of the House, there is no doubt about that. I see here the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), who presided over a Select Committee where legal representation was allowed. That is not the issue I am discussing ; I am talking about the Committee of Privileges.
§ Mr. John Boyd-Carpenter (Kingston-upon-Thames)
The right hon. and learned Gentleman is quite right. A few 939 years ago the Public Accounts Committee sought and obtained the authority of the House, which is necessary under the Standing Orders to enable persons implicated in the Bristol Siddeley case to be represented before the Committee by learned counsel.
§ Sir Elwyn Jones
I am grateful to the right hon. Gentleman. I think I am right in saying that legal representation has not been allowed in the Committee of Privileges. If it is allowed, it will call for a consideration of the machinery available to the Committee to deploy the House's side of the case. It will give rise to the question of whether additional legal assistance should be made available for the examination of witnesses and for the amassing of evidence, and for assistance to be given to the Committee itself in the investigation of the issue of justification and other issues.
I do not say this in any way to qualify or decry what is proposed in the second part of the first Motion, which seems to me to be absolutely right, but I feel that at an early stage the House should grapple with the practical consequences that may flow—
§ Mr. C. Pannell
On a point of order, Mr. Deputy Speaker. There is a noise like a ticket collector behind us. I cannot hear what is going on. If so many tickets need to be stamped, they had better be done outside.
§ Mr. Deputy Speaker (Sir Robert Grant-Ferris)
I must apologise to the House ; they are for me ; although that is no reason for the extra noise.
§ Sir Elwyn Jones
The privilege of the Chair must at all cost be preserved in our proceedings. Now that the ticker tape has stopped, I will proceed to Motion No. 5, which deals with publication, and which I am sure the House will readily accept.
§ Sir Elwyn Jones
Apparently not, but I accept it. Perhaps at this early stage in the debate I might put a specific question to the right hon. Gentleman? I take it that the publications of proceedings in private do not include reports of party meetings upstairs.
§ Sir Elwyn Jones
I see the wise head is nodding, and I assume from that that what I have said is right. Perhaps that should be checked, because it will be of considerable importance to the Press.
On the sixth item on the Order Paper, I am disposed to prefer the Motion as it stands in its first part, affirming as it does the principle of the publicity of proceedings but giving Committees the power to exclude strangers if they think fit. I do not think that the point is of great importance, but I am disposed to favour the Motion as it stands.
I find the next two Motions on the Order Paper fully acceptable. With regard to the important proposals for changing the procedure for dealing with complaints of breach of privilege or contempt, I have felt since I have been in the House that there ought to be a preliminary sieve in order to prevent what has happened on many occasions—the raising of trivia at 3.30, with the fullest glare of publicity ; with the fullest opportunity for obstruction of what might be the important business of the House.
I ventured, in a memorandum to the Committee, to make my own suggestions as to the machinery of the preliminary sieve. The proposals contained in this Motion seem to me to be practicable and sensible. I am disposed to agree also with the Amendments which are put to the proposals by my hon. Friends which do not affect the substance of the matter. This will be to the benefit of the House and will have the effect of limiting the occasions when privilege issues which may be of no moment or importance are raised in the House.
I have expressed my own personal view here on some of these difficult problems. I would again express my gratitude to the Leader of the House for enabling these matters to be discussed.
§ 1.12 p.m.
§ Mr. John Boyd-Carpenter (Kingston-upon-Thames)
I should first of all declare a possible interest as a member of the Committee of Privileges. I should like to thank the Leader of the House for the way in which he is handling this essentially House of Commons matter. I think the procedure of giving a fair amount of time for the discussion of these Motions and the attitude which he indicated he intended to adopt if doubts were expressed about them is the right 941 way to handle the matter, and as such is wholly consistent with the manner in which he always conducts his office as Leader of the House.
I am concerned, as is the right hon. and learned Gentleman the Member for West Ham, South (Sir Elwyn Jones) with the words to which he referred in the second Motion we are discussing. This is one of the main recommendations of the Select Committee which reported some three or four years ago. The words which will not be affected by the Amendment are the wordsand should not normally be invoked in cases where the Member complaining of a contempt has a remedy in the courts nor so as to defeat any remedy available to any other person in the courts.Those words are very important indeed.
I hesitate to accuse either my right hon. Friend or the hon. and learned Gentleman who sat in the Select Committe of naivety, but there is a certain simplicity in the suggestion that access to the courts is normally an easy matter for an hon. Member whose reputation may have been attacked. There was a wise saying the other day that the courts of law are—like the Ritz Hotel—open to all. It is true that no one can safety engage in litigation unless he is either very rich or very poor. The very rich can afford it, and the very poor can obtain legal aid.
§ Mr. Boyd-Carpenter
No, indeed—as is appropriate for the learned Recorder of Kingston-upon-Thames, he is helping me—and not for the first time. He has made the point that if the Member were involved in a claim for defamation—I think slander is also excluded from legal aid—even if he were poor he would be unwise to indulge in litigation. It is a fact that to start proceedings in the courts, particularly against powerful and wealthy corporations who are fully in a position to take matters on appeal to the House of Lords, is, like matrimony, not a thing to be indulged lightly advisedly and so on. It is a serious and dangerous thing to do. It is made the more so by the fact that even if one succeeds and obtains an order for costs, it is the experience of those of us who have any experience in the courts that costs, as taxed, never approach the full amount of the costs one has actually incurred. 942 For anyone not of considerable wealth to take a matter into the courts is a financially dangerous thing to do.
I must meet the point why a Member of this House should be given any particular advantage as compared with his fellow citizens. There is a reason for this in the public interest. Hon. Members are here to discharge a public duty, as they see it ; and by being here, they make themselves more vulnerable to public attack, and if they are attacked it attracts more attention. If it is said that Mr. X drinks like a fish it does not attract much attention. However, if it is said that the hon. Member—or indeed the right hon. Member—for X drinks like a fish, it attracts considerable attention and publicity. It is of the essence of public life that we are in the nature of things more vulnerable to attack. The matter is of more interest and gets wider publicity. There is the reason from the point of view of the proper functioning of Parliament for giving a special measure of protection against attacks of this sort to hon. Members.
I do not like the doctrine that Members should not be covered by the protection of privilege if they have a remedy in the courts. This is an unrealistic view—
§ Mr. Strauss
Is the right hon. Gentleman suggesting that if a newspaper says that a right hon. Gentleman drinks like a fish that would be an appropriate matter to refer to the Committee of Privileges calling witnesses and with arguments one way or the other? Is this not exactly the sort of case which the Committee suggests should go to the courts rather than to the Committee of Privileges?
§ Mr. Boyd-Carpenter
Let me follow up that argument, which is superficially attractive. If one stops simpliciter at the drinking habits of the hon. or right hon. Member, there is force in what the right hon. Gentleman says. But if it is suggested that the Chairman of a Select Committee is never sober when in the Chair and therefore the work of the Committee is not proceeding as effectively as it should, it surely is a matter of very great concern to the House. I am grateful to the right hon. Member for Vauxhall (Mr. Strauss) for raising this point.
We start on the basis of a Member, attacks upon whom can reflect on the 943 House as a whole, and then to the case of a Chairman of a Select Committee. As the right hon. and learned Gentleman pointed out, this is a question which arose in a recent case before the Committee of Privileges. It is not a particularly strong case from the point of view of my argument because, by pure chance, the Chairman of that Select Committee was a man or enormous wealth, to whom my previous argument does not apply. He was also an hon. Member who has shown no undue aversion to pursuing in the courts such rights as he thought he had. But to put an ordinary chairman of a Select Committee in the position that he must either accept a well publicised reflection on the way he is doing that job, on grounds of personal defects or personal weaknesses, or must face the risk of litigation in the courts, and at his own expense, is something that might, in certain circumstances, be damaging to the workings of the House.
§ Mr. A. E. P. Duffy (Sheffield, Attercliffe)
Is the right hon. Gentleman sure that such a reflection as he is now putting before the House receives the publicity that he describes because of membership of this House as such, or is it because it is known that many Members of the House are extremely sensitive about any suggested reflections on them, and the real issue, therefore, is not so much membership of the House, as opposed to non-membership, but the sensitivity? I would suggest, and will argue later, that there is a growing sensitivity on the part of Members of the House that one may think is inconsistent with a protection by those Members of freedom and freedom of expression.
§ Mr. Boyd-Carpenter
I do not consider that the issue is either. I agree with the hon. Gentleman's implication that we ought not to be too thin skinned. President Truman said, "If you are afraid of the heat, don't go into the kitchen." But, with respect, and unusually for him, the hon. Gentleman has missed the point. The point is not whether the Chairman of a Select Committee is over-sensitive or in-sensitive but whether the attack on him impedes his work in this House as Chairman of a 944 Select Committee and damages the standing of that Select Committee and therefore the House in the eyes of the public. That is the public issue. I am afraid that if we adopt the view that because, in the case I have predicated, obviously the Member concerned may have a remedy in the courts and, that therefore, he should be denied the protection of the law of privilege, this may hamper in greater or lesser degree the work of the House and its Select Committee system.
§ Mr. S. C. Silkin
As the right hon. Gentleman has raised this distinction between the Chairman of Select Committees, and Mr. Speaker, and other Members of the House, is he aware—I am sure he must be because he has read the Report—that the Select Committee itself raised the very same distinction and said that in its view this principle should be exercised very sparingly indeed in regard to Mr. Speaker and very sparingly indeed regarding Chairmen of Committees? But would the right hon. Gentleman not agree that the form of this Motion would cater for that? Let us suppose that a Chairman of a Select Committee is unable, for some reason, to perform his function properly, or is not doing so. Surely it must be right that the Press should be able to say this with no inhibitions if it is true?
§ Mr. Boyd-Carpenter
I agree that the Press should be able to comment fairly if it is true. But we are talking about the very class of case in which what is said may be untrue and in which, therefore, the remedy in the courts would arise. It would not if it were true, Yet it is because of this very remedy in the courts, which, as the hon. and learned Gentleman knows, would most clearly arise because of the untruth, that this Motion seeks to take away the protection of the law of privilege and drive that Member only to his remedy in the courts. That is the difficulty.
I am aware that the Select Committee, over which I think the hon. and learned Gentleman presided in its later years, recommended special provision for Select Committee Chairmen. With respect, that is not repeated in the Resolution. There is no specific reference to the specific position either of Chairmen of Select Committees or, for that matter, of Mr. 945 Speaker. I should be happier with this Motion if it were indicated that the word "sparingly" means the very opposite in the case of such people—less sparingly used in the case of those performing functions on behalf of the House. The Motion does not spell this out, although, as the hon. and learned Gentleman very fairly said, the Select Committee Report did. He has put his finger on one of my objections to the Motion. Therefore, I am not happy at the idea of denying any Member, in an appropriate case, the protection of privilege merely because he might be thought to have a remedy in the courts. I am even less happy at the denial of that protection for those who have special duties to this House, leading up to Mr. Speaker himself, as the hon. and learned Gentleman suggested.
There may be many circumstances in which it would be wrong to compel the Speaker of this House to vindicate his honour in the courts when some attack had been made on him in that capacity. It might be highly indecorous, highly inappropriate, and wrong to put Mr. Speaker in that position.
I understand the reasons for the Committee's recommendation, but it goes too far this way. Speaking as a member of the Committee of Privileges, I wonder whether it is necessary. Those who serve on the Committee—and the right hon. Member for Workington (Mr. Peart) knows this very well—know that the Committee has very properly in recent years been very chary of invoking privilege if it could find a good reason for not doing so. I do not know why it should be necessary to give it this further instruction, virtually excluding its operation if the Member concerned has a remedy in the courts. In that respect the present position is perfectly satisfactory. I should be much happier, if this Motion were not approved.
§ Mr. J. T. Price (Westhoughton)
I agree with much of what the right hon. Gentleman has said, but I wonder whether any thought has been given to the simple fact that has completely escaped the notice of my right hon. Friend and everyone else who has spoken that the Member of Parliament who may have suffered the defamation by a publication outside reflecting on his personal honour, character or capacity may not be raising the matter in the House as a 946 matter of privilege. Many of the cases of privilege on the record have been raised by other people. I cite two cases from memory, that of W. A. Robinson, which was raised by my hon. Friend the Member for St. Helens (Mr. Spriggs), and the case raised by Earl Winterton. The case raised on Wednesday of this week was not raised by those Members of the House who were being placed under a threat of financial penalties if they did not vote in a certain way.
Therefore, the whole situation of a Member placed in an invidious position, in the case of a personal idiosyncrasy, addiction to drink, or petty foibles of the individual, is one matter, but the serious matter is not the personal behaviour of a Member but whether he can function as an honest Member of Parliament if he is threatened that if he does certain things or votes in a certain way he will suffer certain penalties. The Member does not need to raise that matter himself. Someone else will raise it for him, as the hon. Member for Roxburgh, Selkirk and Peebles (Mr. David Steel) raised it in an impressive manner this week.
§ Mr. Boyd-Carpenter
There is great force in what the hon. Gentleman has said. I hope he will forgive me if I do not pursue that line of argument. One reason which will occur to the hon. Gentleman is that, as I have indicated, I am a member of the Committee of Privileges and it is possible that the case to which he has referred will come before us. Therefore, it would be wrong to indicate any view in that connection.
I turn briefly to three of the other Motions, first to No. 5, about publication. In abolishing any restriction on publication of what happens here and excluding any proceedings arising from that publication, would my right hon. Friend be excluding altogether any action in the case of a wholly derisory and contemptuous account of our proceedings, perhaps on the lines made famous by such publications as "Private Eye"?
I come, then, to Resolution No. 6, to which I have tabled three Amendments. I understand from Mr. Speaker's Ruling that those Amendments have been selected and will be put to the House. However, probably it will be convenient if I 947 speak to them now. They can then be put formally.
The proposal that I make by way of Amendment follows the recommendations of the Select Committee. The right hon. and learned Gentleman has indicated a preference for the form of the Motion. However, he will see that Recommendation 15(a) of the Select Committee is framed differently. It suggests that strangers can be admitted if the Committee so decides. The onus is on the Committee to decide to admit strangers. The point is clear and relatively small. But when one is dealing with Select Committees, the great advantage which in many cases results from their sitting in private, including the possibility of "sidelining" by witnesses and the greater confidence that witnesses will show in what they say to the Committee, is often very important.
In my recollection, the Public Accounts Committee has always sat in private. In my view, it has benefited from that. If it is desired to do the opposite in any case and sit in public, it should be the result of a conscious decision of the Committee to do so rather than the automatic operation of a rule under which members of the public are admitted unless the Committee consciously decides to exclude them. It might have some importance from the point of view of the chairman if a Committee were evenly divided. He would have a casting vote. If the onus were clearly defined this way and half the Committee thought it better not to sit in public, the chairman's position in casting his vote that way would be the easier.
On balance, therefore, I think that my first two Amendments make a modest improvement. I call in aid the fact that they follow the express words of the Select Committee's recommendation. My right hon. Friend indicated that he was unhappy about my third Amendment. On reflection and as a result of discussions which I have had outside this House, I have decided that he is right and I am wrong, and I shall not press it.
Finally, Motion No. 9 concerns the procedure when someone wishes to raise a matter of privilege. The right to raise 948 any matter as one of privilege on the Floor of this House is an ancient one. I am not disposed to abolish ancient rights of individual Members unless strong cause is shown for doing so. I am not aware that there is such strong cause. I know that the right hon. and learned Member for West Ham, South said that hon. Members may raise trivia and attract publicity. The trouble with that kind of value judgment is that one man's trivia is apt to be another's point of major principle. That is the kind of matter about which we in this House disagree, I have heard hon. Members raise as questions of privilege matters about which obviously they felt passionately but which I regarded as trivia. But that is not a conclusive reason for abolishing their right to do so.
My right hon. Friend indicated very fairly that little time has been consumed in this way. I wonder whether a case has been made out for this change. Certainly the procedure suggested as an alternative is somewhat cumbrous. I do not know whether the whole Committee of Privileges would have to be convened to consider giving a Motion precedence. My right hon. Friend pointed out that there is no existing authority for the Committee of Privileges to delegate this duty to a panel, nor am I sure that it would be good for it to do so. If one is put on a Select Committee by this House, one owes a duty to the House as a whole. I am not sure what would be the result of delegating such an important function to a small panel. If one did that, it is probable that the Committee of Privileges would have to have two bites at the same cherry, the preliminary question of precedence over the business of the day and the substantive hearing thereafter.
The Committee of Privileges is a large one which has a number of fairly senior Members serving on it. The alternative of calling the Committee at short notice hoping to get a quorum, but not necessarily getting the Members who can best contribute to the issue with which it has to deal, is not very satisfactory. On this proposal, I think that the Scottish verdict of "Not proven" perhaps would apply. At any rate, one needs a better argument for changing the established procedure than the one which has been brought forward.
949 These are important matters to the working of this House, even if they are mainly wholly incomprehensible to people outside. I am sure that it is right to debate them and, once again, I thank my right hon. Friend for having organised our debate in this way.
§ 1.37 p.m.
§ Mr. S. C. Silkin (Dulwich)
I know that the whole House is indebted to the Leader of the House for bringing forward these Motions for discussion and for the clarity with which he has explained them.
My colleagues on the Select Committee are to be congratulated on the fact that, after a prolonged period of time, the fruits of their considerable labours are being brought before the House in a form in which decisions can be taken. I say "after a prolonged period". I am not making any party point there. The time was divided between both Governments. In matters of privilege, it seems that different standards of time are adopted from those in relation to other matters. Motion No. 5, for example, seeks to rescind a Resolution of 3rd March, 1762, which has not been acted upon for the best part of 200 years. If that is the case, how can we complain bitterly about a mere matter of 3½ years from the publication of the report?
Motion No. 5 is illustrative of one of the matters which were a source of considerable criticism of the existing practice and procedure in relation to privilege. It is the uncertainty which exists and which is not rendered any the less when a series of Resolutions of this House are not acted upon for a prolonged period of time.
The other main criticisms were the degree of arbitrariness and the fact that the House, it is alleged, tends to rest upon precedents of long ago irrespective of the movement of affairs and the march of events.
We on the Select Committee felt that these criticisms had a degree of force and that it was right that the whole practice should be modernised. Furthermore, we took the view strongly that there had been a tendency, in dealing with individual cases, to lose sight of the basic concept of the penal jurisdiction of this House and why it is there.
That is why we attached a great deal of importance to the restatement of that 950 basic concept, not in any way departing from the concept as it has been recognised and set out in successive editions of Erskine May, but in such a way that in future there would be no danger of a departure from it in a way which the House has not envisaged as being right. It is for that reason that my right hon. Friends and I have put down an Amendment to Motion No. 4. We believe that the form of wording which we seek to insert is at the very heart of the concept of the penal jurisdiction. We think it right that it should be clearly and specifically stated.
I understand that that concept, as it has frequently been explained, is that we, as Members of Parliament, do not or ought not to expect some special privilege in the sense that one uses that word when talking about the privileged and the under-privileged in our society. It is not that kind of privilege for which we are asking. Indeed, it was because of the very danger that the public might think that we were asserting privilege in that wide sense of the word that we went to the length of suggesting that the term "privilege" should give place to "the rights and immunities of Members of this House." It is a narrower concept of "privilege" to which the House and its Members are entitled. It is a concept of privilege that, in the performance of the functions which his electorate has sent him here to perform, a Member should be able to do his duty fearlessly and independently and not be subject to improper pressures of any kind. It is from that, and only that, that he should be protected by the penal jurisdiction of this House.
If a Member is attacked in some other way, he has the same rights as an ordinary member of the public. He is not entitled to special privilege which takes him outside those rights. However, when such an attack is likely to prevent him doing his duty or exercising his conscience fearlessly and independently, that is when this House should intervene to protect not only him, but the House itself and, indeed, the electorate which sent him here. It is on that basis that we put forward our proposals which find their echo in the Motions before the House.
I now turn to Motion No. 4 in the light of that—
§ Mr. Arthur Latham (Paddington, North)
I should like some assistance before my hon. and learned Friend leaves the Amendment.
§ Mr. Latham
I am sorry. I thought that my hon. and learned Friend was going on to Motion No. 5 and that reference had been made to the Amendment to Motion No. 4. It is on the Amendment that I wished to address a couple of questions to my hon. and learned Friend.
§ Mr. Silkin
I am about to deal with Motion No. 4. I may very well deal with my hon. Friend's point. I certainly undertake to give way to him if he finds that I have not.
With the Amendment which we propose, with which the right hon. Gentleman has indicated he is in agreement, I believe that Motion No. 4 will be in the right form. It is not identical with the recommendation which we made, but it gives broad effect to the proposals which we made in the important paragraph of our report where we set out the general principles as we understood them. The Motion, in saying that itagrees with the Select Committee on Parliamentary Privilege … in their recommendations that that jurisdiction should be exercised as sparingly as possible and should not normally be invoked in cases where the Member complaining of a contempt has a remedy in the Courts",gives effect to the kind of reservations which right hon. and hon. Members have expressed in the debate. I have no doubt that the Select Committee, of which the right hon. Gentleman was a distinguished member, in seeking to interpret the Motion would look at the source referred to in the Motion ; namely, the previous recommendation of the Select Committee. Not every word of the recommendation is included by way of Motion—I should not expect that—but I should expect the Select Committee to give effect to the spirit of it.
§ Mr. Boyd-Carpenter
Would it not be better for the guidance of some future Committee on Privilege, if it is to be accepted, if there were some indication in the Motion of what the Select Committee of which the hon. and learned Gentleman was a member indicated it thought about the special position of 952 chairmen of Select Committees and others who perform functions for the House? There is none at the moment.
§ Mr. Silkin
I agree that there is no specific reference. There is a reference to agreement with our report. There is the use of the word "normally". There are many things which could be put in. One could have a very large resolution if all the reservations were put in. I hoped that this would be sufficient, but others might take a different view, which I well understand. However, I hope that the Leader of the House will accept that it is not necessary to add those specific words.
When we come to the existence of a remedy in the courts, we then come up against the way in which the principle which I enunciated should be interpreted. There are those who take the sincere view that a Member of Parliament, if he is libelled about something connected with his duties in the House, should be able to appeal to the penal jurisdiction of the House. We took the view that in that kind of case it should not be normal for him to be allowed to do so ; in other words, that it should be the exceptional cases where the House is closely and specifically involved, where there is a mixture of defamation of a Member and the kind of pressure about which I spoke earlier which might have the effect of cutting down the independence and ability of the Member to perform his duties.
§ Mr. Silkin
I will give way to my hon. Friend when I have finished this section of my speech.
I suggest that it is only in that kind of exceptional case where, notwithstanding a remedy in the courts, an appeal could properly be made to the penal jurisdiction. That was what we meant by "normally", and I imagine that is what the right hon. Gentleman means by that word.
Before giving way to my hon. Friend I should like to add one other point. My right hon. and learned Friend the Member for West Ham, South (Sir Elwyn Jones) accepted the second part of the Motion. Indeed, the Select Committee, in recommending what the second part 953 of the Motion proposes, did so very much as a result of the forceful, cogent and persuasive arguments which my right hon. and learned Friend, as the Attorney-General of the day, put forward in his memorandum which is printed as an appendix to the report. If it is right that an hon. Member or anybody else who is involved in the penal jurisdiction of the House should be able to express his belief in or his evidence of the truth of what he says, or if the Press, for example, having made an accusation, should be entitled to say "This accusation is true "—after all, if it is to exercise its function of fearless criticism it is right that it should—if it is maintained that even where there is a tribunal to deal with these matters, they should be referred to the Select Committee, the task is a mammoth one. One of our reasons for thinking that it should be abnormal when there is a remedy in the courts is the very factor that it would place a virtually impossible burden on the Select Committee to act as judge and jury.
§ Mr. Heffer
How does my hon. and and learned Friend answer the point of the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), that Members of Parliament are the collective voice of their constituents, that they raise more issues and make more speeches than any other type of person and are, therefore, much more vulnerable? What will happen to the hon. Member who may have a remedy in the House but who, because he has no money except for his salary and a bank overdraft, would find it difficult to go to the courts?
§ Mr. Silkin
I have said that Members of Parliament should not and would not expect, simply by virtue of being Members of Parliament, to have special privileges which other indigent people who may also be vulnerable do not have. That is why it is thought that only defamatory or other matters which cannot be remedied in the courts and which affect a Member's independence should be dealt with by the Select Committee. If my hon. Friend is saying that it is unfair to hon. Members and many other people that, through lack of means, they cannot seek a remedy for defamation in the courts since legal aid is not available, the answer is to improve the law and not to give a 954 special privilege to Members of Parliament.
The other side of the coin is important. We are seeking to keep within narrow confines the penal jurisdiction of the House. That is right. But the Select Committee thought that it should be done parallel with the creation of additional protection for hon. Members in the courts. An illustration of that is the case involving the London Electricity Board and my right hon. Friend the Member for Vauxhall (Mr. Strauss) in 1957, when the joint effect of the law of defamation and the rules of the House was to place a Member in personal danger if he carried out his duty of criticising—in that case—a public authority in a letter to a Minister.
We said that that was an impossible situation if a Member was to carry out his duties independently and fearlessly, so we recommended amending the law to give him absolute privilege in the courts in those respects. That recommendation was considered by a Joint Committee of both Houses, chaired first by Lord Pearce and later by Lord Donovan, which concluded that absolute privilege should be granted in those cases.
Some of our legislation may be relatively unimportant, but this is of great importance. I understand that the Government are awaiting the report of the Phillimore Committee on defamation generally. But if we are to confine the penal jurisdiction of the House in the way that I think right, we must ensure that Members are fully protected in relation to possible court actions where they are merely trying to do their duty.
The Motions up to No. 9 give effect to recommendations which are perhaps not so important, but No. 9 proposes a radical change in procedure—that at the initial stage of a complaint the matter should not be brought up in the full glare of publicity irrespective of whether it is trivial or important, or whether it damages an individual who cannot answer back, or whether a Member of the House is directly concerned.
The Select Committee took the view, not only for the reason given by the Leader of the House and my right hon. and learned Friend but also because we thought it utterly wrong that members 955 of the public should be in danger of that kind of publicity, however wrong-headed, that the first expression should be in private and that only if the Select Committee or a sub-committee thought that there was genuine matter to be considered should the case be publicly discussed. That was a wise proposal which the House should support.
The right hon. Gentleman has said that he is willing to accept the first Amendment, which would do away with the old rule which lays down that a complaint must be raised at the first opportunity but at the same time would ensure that it is raised with reasonable promptitude. I understand what he says about the second Amendment. I understand that the third Amendment is unnecessary and that Mr. Speaker already has this power. I am prepared to accept that, but it does seem to us desirable, if we are to set out in print the specific matters contained in the Motion, that it should be a complete statement rather than that part of it should be left to what is now traditional and the practice of the House. But that is perhaps a minor matter.
In general, I support the Motions, I believe that they go far towards the objective of the Select Committee—an objective with which I am sure no hon. Member will quarrel even if he quarrels with the way in which effect has been given to it. It is the objective that this House and its Members should not arrogate to themselves any special privilege unknown to ordinary members of the public but that at the same time they should be protected to the extent, and only to the extent, that enables them to do their duty fearlessly and independently.
§ 2.2 p.m.
§ Sir Harry Legge-Bourke (Isle of Ely)
The number of right hon. and hon. Members attending the debate does not fully reflect the importance of the issue we are discussing. I doubt whether many members of the electorate fully comprehend how enormously their own rights depend on these matters. Privilege was created much more with the interests of the electorate at heart than the interests of individual Members of Parliament, because unless a Member is given adequate opportunity, without fear of recri- 956 mination of a legal kind, sometimes he cannot do the duty he should do for his constituents. That is why privilege is of vital concern, to every single member of the electorate, even if he does not recognise it.
It is important, in particular, to realise the point put by my right hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) when he said that Motion No. 4 seems to over-emphasise reliance upon the courts. Reliance upon the courts is very dangerous for us to emphasise in this context. As has rightly been pointed out, there is no legal aid in these cases. We all know that a review is being conducted of what is the proper remuneration for hon. Members to enable them to do the job properly. We have all been invited to make our submissions to that new body. We also know horribly well that certain hon. Members, when they leave this place, can be in very grave financial difficulties. If this be the case, is it right for us to accept the Motion No. 4 unaltered and brought into our future Standing Orders as it is? I doubt it. I feel very strongly that we should reconsider it and the possibility of leaving out the last three lines of subsection (1) of the Motion, from the word "should". I had not realised the importance of this matter until I heard the arguments today.
My main concern is to speak to Motion No. 9. I have only once appeared before the Privileges Committee—the hon. Member for West Lothian (Mr. Dalyell) will realise what that was. Like him, I was appalled by the vast amount of time and the gathering of high calibre right hon. Gentlemen having to deal with what is certainly not one of the major issues before Parliament at any one time. That is why I asked my right hon. Friend the Leader of the House whether thought had been given to the waste of time by referring these matters to the Privileges Committee in the first instance. I am even more disturbed about this now that I learn that the Committee has not got the right to set up sub-committees. The idea that it is an obligation on every member of he Committee of Privileges to have to turn up to decide whether or not there is even a prima facie case, which is what it boils down to, is a cumbersome way of doing what Mr. Speaker and his advisers have managed to do for us perfectly satisfactorily over the years.
957 I have been here for 26 years and I think that there has only been one issue of privilege in that time that I could reasonably regard as frivolous to have been raised on the Floor for Mr. Speaker to rule upon. But certain cases stand out in one's memory—for example, the cases of Garry Allighan, of John Junor, then editor of the Sunday Express, and of the hon. Member for West Lothian. Other hon. Members will perhaps recall other cases of. perhaps to them, greater importance. We have to be very sure that we are going to do something better before we change the rules. There is a profound wisdom in a lot of what may sound archaic rules of this House. They have been tested by time. Although I would not always support Lord Melbourne's view—Pray, Sir, have the goodness to leave things alone "—I think that we should consider carefully whether that might not be the wiser thing to do in this case.
It is unfortunate that a case is pending at the moment because there are certain issues in it which I would have liked to refer to in principle. There are implications involving the risk of infringement of privilege when the question of payment to hon. Members other than their parliamentary salary is involved. Such payments do involve risks being taken and perhaps this makes it all the more important to get a salary scale commensurate with the job. Let us hope that Lord Boyle's Committee ensures such a salary.
Before we make changes, we must ensure that we are going to get something better. I see looming up before us quite as many new difficulties as we have ever experienced in the past, with the existing rules. The right hon. Member for Leeds, West (Mr. C. Pannell) loves this place and takes an immense interest in its procedure. When I interrupted my hon. Friend, he interrupted me on the question of bringing the whole House into the matter in the first instance. The times when immediate debate has followed the raising of an issue of privilege on the Floor of the House have been very rare.
We have had the advantage of Mr. Speaker and his advisers advising whether or not there is a prima facie case, and 958 the fact is that in quite a number of instances there has not been a prima facie case. This has saved time. I consider that to be a far better procedure than having the full majesty of a Committee of Privileges brought into the picture from the word "Go". It seems a most appalling waste of that Committee's time to have perhaps frivolous cases referred to it so that it may decide whether priority should be given. That procedure seems to me to be too cumbersome, the present machinery is better, and I hope that we shall adhere to it.
My right hon. Friend the Leader of the House in introducing the Motions spoke, if I may say so, in the classic rôle of the Leader of the House conscious of the need to have general agreement on both sides, because it is a House of Commons matter. But I think that I have made it clear that I, and I think the vast majority of Members feel that privilege is not given to us so much for our own benefit as to ensure that we can look after the interests of the electorate as well as we can possible be expected to. Any inroad into that position will damage the elector's rights, and I believe that they will be very angry if we let those rights go too easily.
§ 2.10 p.m.
§ Mr. Michael English (Nottingham, West)
If I may say so, I think that the right hon. Gentleman the Leader of the House has to an extent been wrongly advised in restricting us to this Report on Privilege alone. The Committee concerned sat for one and a half years—from 1966 until the end of 1967, when the Report was produced. Possibly for that reason, it was towards the end of its deliberations rather rushing things in order to produce the report before Christmas, 1967. Although I was a member of that Committee, I believe that there are several things which could legitimately be added to what is in the Report.
I believe that, archaic though it may seem, because it starts literally with Magna Carta, it is the case that the privileges of the House,—or whatever we call them, commence 40 days before a Parliament begins to sit and ceases, for hon. Members, at any rate, 40 days thereafter. It is a rather interesting thought that the type of case we are discussing could, at least theoretically, be raised in relation to matters occuring during 959 a General Election. The subject of the time of privilege is not mentioned in the Report at all.
In addition to this Report we had the Report of the Joint Committee, mentioned quite rightly by my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin). If one looks at the terms of reference of that Joint Committee one finds that it is directed to recommend… what changes in the law of defamation and of Parliamentary Privilege are desirable in relation to the publication of the proceedings in Parliament …It will be seen that there is a considerable overlap in the Reports of the two Committees. Many of the recommendations of the Select Committee were considered by the Joint Committee, and I can illustrate the importance of this as I go through the Motions.
I must say in connection with Motion No. 4 that I was not aware, although I was a member of both Committees, that individuals could not obtain legal aid in libel actions. I am sure that other members of the Joint Committee knew of this, because they were all lawyers, and the Select Committee was chaired by a lawyer.
There is another reason why Motion No. 4 is objectionable, and this is where the Joint Committee comes in. The Joint Committee agreed with the recommendation of the Select Committee that privilege should not be used… so as to defeat any remedy available to any other person in the courts …The Joint Committee recommended that a change could be made simply by a Motion designed to achieve the same result, because the principal users of the privilege of the House to prevent other people from obtaining their just remedy in the courts are the Government of the day.
The Joint Committee, on page 16 of its Report, refers to our procedure for Unopposed Returns. An Unopposed Return, is, to put it shortly, a technical Motion put to the House which is neither debatable nor opposable. Although it is called an Unopposed Return, it cannot be opposed. But once it has been technically passed, although it can be neither debated nor voted on, the Government 960 can obtain an Order of the House clothing a Command Paper with privilege. It is very doubtful whether in the law of defamation such papers are protected, or to what extent they are. Because of this, Governments tend to use the Unopposed Return procedure when a Report is produced which may be defamatory of an individual. They use the privilege of the House to protect themselves.
I do not suggest, nor did the Joint Committee, that this practice is undesirable—we dealt with it in much more detail than did the Select Committee—but we suggested a Resolution of the House instituting a short, simple procedure whereby, if the Government of the day sought to adopt the Unopposed Return procedure, an hon. Member could say : "No, you should not abuse the privileges of the House. You know perfectly well that you are trying to defame Joe Bloggs, and you should not be allowed to get away with it. If he can prove that some inspector in some department was malicious, he should be able to do so."
It is possible that the advisers of the Leader of the House have forgotten that the Report of the Joint Committee existed, because Motion No. 4 says that the House will not allow its privileges to be used… to defeat any remedy available to any other person in the courts …".It seems in logic that the Leader of the House should give an assurance that in the only case where this applies—the system of Unopposed Returns—he will adopt the recommendation of the Joint Committee, the Donovan Committee, and take the necessary action. It would be highly inconsistent to pass this Motion in its present form while not adopting the only recommendation relevant to it. I therefore ask the right hon. Gentleman for an assurance that if he intends to proceed with this Motion he will at the same time adopt the recommendation of the Donovan Committee.
Without the Amendment tabled by my hon. and learned Friend the Member for Dulwich, Motion No. 4 would be less good, but there is a connection, which that Amendment makes plain, between Motions Nos. 4 and 5. I suggest to the Leader of the House that if, as seems possible, he withdraws Motion No. 4 because of the remarks made by almost 961 every speaker so far—everyone dislikes something in it—he must also withdraw Motion No. 5. The reason was mentioned by the right hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter). He put it in a vague form, but, in effect, he said, "What about a publication like Private Eye which runs a persistent campaign against an individual?". When questioning witnesses in the Select Committee, I used the example of a former, now dead, Press Lord who had the habit of getting his publications to build up the reputation of certain people and to denigrate others. Hon. Members will be aware of the type of case which I have in mind. The Committee would describe that sort of thing as, technically, the wilful misrepresentation problem.
As long ago as 1875, Lord Hartington moved a Motion which was put before the Select Committee suggesting almost the same thing as Motion No. 5 but with the essential proviso that there should be no wilful misrepresentation. The Select Committee felt that those words were not needed, and the Leader of the House has followed its advice. It is, however, extremely important to note that in paragraph 121 of its Report the Select Committee said :In Your Committee's opinion it would not be right or necessary for the House to resolve in the terms of the latter part of Lord Hartington's resolution "—that is, the proviso about wilful misrepresentation.If misrepresentation amounts to such improper obstruction as ought to be treated as a contempt in order to provide reasonable protection for Parliament … the rules which Your Committee have proposed for the guidance of the House in paragraph 48 will enable the House to exercise its penal jurisdiction.It therefore follows that if the Leader of the House proposes to withdraw Motion No. 4, as well he may in view of the comments made on it, the Amendment falls. But the Amendment is essential, not only to Motion No. 4, but to Motion No. 5. We would then be left only with Motion No. 5 and with no way of dealing with the question of wilful misrepresentation. Therefore, if the right hon. Gentleman withdraws Motion No. 4, he must also withdraw Motion No. 5 until he can propose another Motion No. 4 because the two are intimately connected. As the Leader of the House said, the question of privilege is rather a maze, and 962 these interconnections constantly arose during the work of the Select Committee.
§ Mr. Whitelaw
The hon. Gentleman said that there would have to be a new Motion No. 4, but from his remarks it would seem that it could be a new Motion No. 5 amended by the sort of Amendment which has been tabled to Motion No. 4.
§ Mr. English
It could be dealt with in that way or by Lord Hartington's way of inserting the words "wilful misrepresentation". While the Amendment to Motion No. 4, in the name of my hon. and learned Friend the Member for Dulwich is satisfactory, if Motion No. 4 is withdrawn then the Amendment falls. Therefore, Motion No. 5 should be withdrawn until we have dealt with the whole problem.
§ Mr. S. C. Silkin
Would my hon. Friend agree that the intention of Motion No. 5—whether the wording gives effect to it may be a matter of argument ; I think that it does—is simply to provide that it shall not be a contempt only to publish and leaves out of account the nature of publication?
§ Mr. English
I accept that that would be a very good intention, but I do not see the words "only" or "merely" in the Motion. I am sure that, as the Leader of the House said, if any case comes before the Committee of Privileges which is relevant, the Committee will deal with it, as it has done in so many instances recently, and say "Technically, this is right but we are not bothered about it." In other words, it will deal with the matter in the spirit which my hon. and learned Friend has just mentioned. But Motion No. 5 states that… this House will not entertain any complaint of contempt of the House or breach of privilege in respect of the publication of the debates or proceedings of the House or of its Committees …".That is not even what the Select Committee meant when it decided not to adopt Lord Hartington's phraseology, and it is not what is intended by any hon. Member.
As I made plain in the Committee, I do not like Motion No. 6. It is quite contrary to what was requested of us by the members of the Press. They asked 963 that they should be able to report Committees which met in private on what is familiarly known as the lobby basis ; they would not be able to report them directly, but they would be able to report from day to day what was happening in them through the normal lobbying methods. As can be seen from the evidence, I asked every Press witness whether he would accept a compromise based on the ancient procedure of this House. Theoretically, the House can set up three sorts of Select Committee : one which meets in public, one which meets in private or one which meets in secret.
To deal with the point of the Amendment of the right hon. Member for Kingston-upon-Thames, I believe that every Committee should decide these matters by a majority. But that does not happen. Committees should make a positive, straightforward decision at the beginning of their proceedings or at some appropriate point in their proceedings about what they wish to do. That is not quite what the Amendment of the right hon. Member provides.
It would if we were to provide for the three possibilities which I have mentioned—that the Committee could decide whether it wanted to meet in public, in private, meaning that it could not be directly reported but could be reported on a lobby basis without the lobby reporter getting into difficulties with the law of contempt of the House, or in secret—every Press representative to whom I put the question said that he thought that this would be entirely satisfactory. For example, the Civil List Committee might agree that it was desirable to meet in secret rather than in private, which merely excludes strangers and not Members of the House.
Motion No. 6 could be a much broader motion to deal with the whole question of Select Committees. I suggest that we should give them as much power as possible to allow them to decide what they want to do. But I see no reason why the request of the lobby to be able to report at least some Select Committees on a lobby basis should not be acceded to, provided it was made clear that certain Committees could not be reported at all.
Motions Nos. 7 and 8 are entirely unexceptionable and I hope that nobody 964 will object to them. But I am a bit puzzled by part of Motion No. 9. Like most hon. Members, I agree entirely with the principle that publicity in advance of the event is undesirable and I therefore agree entirely with the principle behind the Motion. Broadly speaking, I agree with paragraphs (1) and (2) of the Motion. I do not know whether, when the Questions are put, the Motions will be put paragraph by paragraph, as sometimes happens. If so, it would be possible to retain the existing procedure in relation to the matters discussed in paragraph (3) but to pass at this stage paragraphs (1) and (2). I raise this point because of something that the right hon. Gentleman said. He said that it would be open to the House to adopt its existing possible practice of dealing with a matter of privilege straight away when the facts are absolutely clear. That is not the way I read paragraph (3) of the Motion, which says thatwhenever the Committee shall have reported that a complaint ought to have precedence, the question thereon shall be put forthwith, and, on consideration of the said report, Mr. Speaker shall call upon the Member who has made the complaint to make a brief explanatory statement and if thereafter a motion is made, that the matter of the complaint be referred to the Committee of Privileges, Mr. Speaker, after permitting a brief statement from the Member who makes and from a Member who opposes any such motion respectively shall put the question thereon forthwith.I am not entirely clear about the effect of paragraph (3) taken with paragraphs (1) and (2). I realise that the wordsif thereafter a motion is madeare there, but we are told that the question on the report from the Committee "shall be put forthwith". After the Member has spoken a Motion may be made, presumably by the Leader of the House, but I am not clear whether that motion is open to any amendment at that stage. I realise that it is not customary to amend a Motion of the Leader of the House, but I am not sure that there is any necessity for this procedure. If the Select Committee has decided that the matter should have precedence, would it not be better to say that the Committee should, like a court, decide whether jurisdiction exists and carry on? The real debate should be the debate discussing the report. I would not necessarily oppose it, but I am not 965 entirely happy with paragraph (3) of this Motion.
I want to mention a point made by the hon. Member for Isle of Ely (Sir H. Legge-Bourke). This Motion differs from what has been done in the past. In the past, with a single exception in the case of the previous Speaker, Mr. Speaker has ruled whether a prima facie case has been established. If Mr. Speaker thinks that a prima facie case has been established, it automatically gets precedence over the Orders of the Day. The single case under the last Speaker was where he did not so rule but ruled that it should not have precedence because it was clearly, although not given precedence, a prima facie case. We were advised in the Select Committee that this was probably a wrong decision. Certainly it was unique.
This Motion says that any complaint shall be referred to the Committee of Privileges, which shall decide whether the matter has precedence. The Committee is not deciding whether there is a prima facie case. The Leader of the House did not explain to the House why he is making that change. It is a matter of importance. There is a difference between saying, "A prima facie case of breach of privilege has been made out, but we do not want to waste the time of the House "and saying," A prima facie case has been established and, therefore, the House must give it precedence". The present situation is the latter.
The situation proposed by the right hon. Gentleman, without so far explaining it to the House, is to ask the Committee whether the matter should have precedence, not whether it is a prima facie case.
§ Mr. S. C. Silkin
My hon. Friend will recollect that the evidence before the Select Committee was that prima facie case had crept into this and had no historical basis and that it was an inapt use of words for Mr. Speaker to be asked to say whether there was a prima facie case.
§ Mr. English
I am aware of that. The history is most involved, but I have already spoken for a long time and I do not want to go into that. I am merely suggesting that the present practice is as I had stated it, however it 966 came about. Perhaps it should be changed. I am merely drawing the attention of the House to the fact that there is a change here and the Leader of the House might care to explain what exactly it is that the Committee would be doing when it considered these matters.
I have commented on all the Motions. I hope that the right hon. Gentelman will keep Motions 7 and 8, but I have some doubts about the others. It might be better if he reconsidered them, gave us time to discuss texts of them in private, and put them forward in a different form at a later date.
§ 2.35 p.m.
§ Mr. A. E. P. Duffy (Sheffield, Attercliffe)
My hon. Friend the Member for Nottingham, West (Mr. English) is right to remind the Leader of the House that Motion No. 4 has come in for such critical attention that he may well have to consider withdrawing it. I want to contribute to the criticism that has been made of the Motion, though, unlike the hon. Member for Isle of Ely (Sir H. Legge-Bourke), I do not believe that the Motion goes too far. I think that it is inevitable that some traditionalists in the House will be afraid that any relaxation of the present rules governing privilege will invite abuse ; because the story of the development of privilege is the story of the development of the House of Commons.
I take the other view, namely, that the suggested improvements, welcome though they are, do not go far enough. In former days there was undoubtedly a need for privilege. The problem nowadays, however, is not so much its breach as its abuse. From being the guardian of liberty. Parliament now is in danger of becoming first its custodian and, if we do not exercise the greatest restraint, its gaoler ; for there can be little doubt that what damages the House of Commons nowadays and what exposes it more than anything else as being out of tune with the mood of the times is when one of its Members raises in the High Court of Parliament cases of alleged contempt that would be brushed aside as trivial by the committee of a working men's club. Yet Mr. Speaker still claims theseancient and undoubted rights and privileges967 at the beginning of a new Parliament, and they are obviously required as necessary conditions of the freedom of speech and the freedom of attendance.
However, for the outside public a breach of privilege has sunk to the level of most of the complaints made in recent years. We are all well aware of what happens when such a complaint is made, how, Mr. Speaker may find that a prima facie case has been made and the complaint then goes to the Select Committee.
The person against whom it is made is not necessarily heard in his own defence and, even if he is, he cannot plead justification ; nor is he allowed to be represented by counsel. All this is quite contrary to natural justice. Equally important, the proceedings take place in such conditions of publicity as to suggest that some intolerable outrage has been committed against Parliament.
Yet from the record we know that in the overwhelming majority of cases the Select Committee on Parliamentary Privilege takes no action at all. My own research shows that 96 such cases have been raised in the House since the war. I have reason to believe that almost as many have been sought but have been discouraged by the Clerks or by Mr. Speaker. Of the 96 cases 35 have been referred to the Select Committee.
There is no evidence that the spate of post-war privilege cases as compared with pre-war experience is lessening. The pattern suggests that they are more likely to arise whenever the main parties are in close balance. The complaint, moreover, is almost invariably made by a Member opposite to the "defendant". If there are divisions they usually follow party lines. No one party is to blame. Rather, it is the result of the accumulation of precedent, in some cases going back centuries, in relation to words of controversy spoken outside the Palace of Westminster.
From these absurd situations the House of Commons has been rescued again and again by the wisdom of its own Committee of Privileges as well as by skilful handling of tricky situations by the usual channels in the House.
The question now arises whether the House of Commons is not, or has not become, unduly sensitive to words spoken in the ordinary play of controversial 968 debate outside, but no longer inside and there is an interesting contrast now developing between what is permissible inside the House—and we had an outstanding illustration of that earlier this week—and outside the House. Equally, there is no doubt that any robust speaker who attacks his political opponents may be hauled up on a contempt charge almost any Monday after weekend speeches.
Thus the danger arises that an excessive sensitivity to a slight, real or imagined, may blind Members to the real source of any public cynicism that may exist outside Parliament about the conduct of its Members. It is that some Members do not scruple to make use of parliamentary privileges for their own convenience and, of course, the historical record shows that there has never been any want of such Members. There was a time when hon. Members in this Palace of Westminster even sought privilege for their servants. As a result, Parliament seems to some people to have been showing a tendency in recent years to forget the purpose of its own privileges—the protection of free speech and freedom everywhere.
Hon. Members are given special rights not because they are special people, but to help them to protect the rights of others. Thus, if any hon. Member expresses concern about the erosion of such rights, I hope that he will specify what right or rights he thinks should go on and will show how the continued exercise or preservation of those rights will not detract from the enjoyment of rights by others outside as well as inside the House.
I recognise that it is not an easy balance to strike. One of the paradoxes of the relation between privilege, contempt and freedom of speech has always been that unless the rights of Parliament are exercised with great discretion, the risk is run of securing the reputation of Parliament only at the expense of some part of the liberty which it is Parliament's duty to defend.
Much interest was shown at the time of my own involvement in this matter in February, 1965, and much concern was expressed by my hon. Friends. A variety of advice was tendered. As the time grew between the case going before the Committee of Privileges and the Committee issuing its Report, so that advice 969 was addressed to me in more and more urgent terms : it was simply that I should stand up in the House and apologise—as simple as that. Those hon. Members who gave it, however much I appreciated their advice, did not increase their standing in my eyes, because it seemed to me that they were only recognising, however tacitly, that there was almost nothing that one could not get away with in the House if only one would get up in a jovial sort of way and throw oneself on the mercy of the House.
Only four of my hon. Friends, only four Members, raised with me what seemed to be a matter of fundamental importance, such as the freedom of speech of a Member, but also the freedom of constituents to receive reports from their Member, providing that that did not involve substantial obstruction with the work of that Member or his fellow Members. It is only right to say that those four are here today, and that is what has encouraged me to refer to them. Their presence today seems to confirm the interest they showed then in what had seemed to me an important issue—my hon. Friends the Member for Ebbw Vale (Mr. Michael Foot) the Member for West Lothian (Mr. Dalyell), the Member for Fife, West (Mr. William Hamilton) and, no longer in this place, the noble Lord, Lord Wigg.
The problem is to ensure that the Commons and its Members are sufficiently protected while large and indefinite powers to punish for contempt are not used in an oppressive or arbitrary way. This has raised the question whether the Commons ought so freely to avail itself of the privilege of punishing, to quote Erskine May—indignities offered to their House by words spoken or writings published reflecting on its character or proceedingson the ground thatsuch acts tend to obstruct the House in the performance of their functions by diminishing the respect due to themThere have been signs that the Committee of Privileges, which in recent cases has tried to perform its tasks in as liberal a manner as the traditional procedure allows, is itself embarrassed by a state of affairs as anachronistic as the Star Chamber, but this has not reduced the disturbing propensity of some hon. Members to reach out for the instrument of 970 parliamentary privilege in furtherance of their own ends. Though we have some Motions before us today intended to improve the situation, to reform it, we have to ask ourselves whether they are adequate, especially No. 4, whether they go far enough.
The two essential immunities of the House and its Members, freedom of speech and freedom to regulate its own affairs, are well established. The Commons undoubtedly needs such immunities and powers, but it also claims an indefinite residual power to punish for contempt, and would be doing so even if we accepted these Motions. Is this residual power necessary at all?
After all if the freedom of the people is paramount, what of their freedom to be informed about the doings of their elected representatives and to enjoy unfettered comment on those activities? If that is reduced or qualified in any way, the essential condition of a democracy is eroded. Parliamentary privilege should not be invoked so as to inhibit or discourage the formation of the free expression of opinion outside the House.
To quote Iain Macleod in one of his editorials in the Spectator on 26th March, 1965 :A free Parliament in a free country cannot cocoon itself against harsh or even unjust criticism. The play of ideas and opinions and judgments is indispensable to a functioning democracy and it is better to wince from stinging words than to seek to silence their source.If issues arise which can be argued only in the bluntest of language and in the knowledge that many people may be greatly angered by what is said, it should be possible so to argue without having to take into account the possibility of being rebuked by Parliament, only providing that the protagonist is prepared to defend what he has said. Those who feel strongly that they have been personally assailed, especially if they are Members of the House, have the right to reply and to be heard by the public. Membership of the House, after all, confers on them an unrivalled forum. There are also available to them the services of the usual channels.
§ Mr. English
My hon. Friend will be aware that the usual channels are sometimes used, I say with delicacy, to assist, possibly, Front Benchers rather than back benchers today.
§ Mr. Duffy
I am well aware of that, but I am also aware of how helpful the usual channels can be on occasions. I have no reason to believe that in matters of this kind they will not always strive to be. Beyond that, they also have their remedy in the courts, but we have heard today of the difficulties which might be involved in that.
What I want to say is that frequent invocation of privilege is more likely to harm than to elevate the reputation of Parliament. The right hon. Gentleman the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), for instance, referred to the vulnerability of Members of Parliament. Is he quite sure that this is not merely a cloak for self-esteem? What of the vulnerability of the citizens of this country who are not Members of Parliament and who in some cases also have to hold down positions of great responsibility and who are in the firing line just as much as Members of Parliament? There are some members of local authorities and other public bodies who fill much more controversial rôles and suffer much more criticism than, I suspect, three-quarters of the Members of this House of Commons. But they do not seek protection.
There is another matter. There are always some Members, I suspect—there have been in the past and I suspect that there always will be in the future—who will confuse the authority of this House with the dignity of this House : by dignity of this House they mean their own dignity and their own self-esteem. If the past is a guide there will always be Members of this House who will be deploring its decline. For example, some hon. Members may remember what the Duke of Omnium said in Trollope's novel, "The Duke's Children", when they were talking to him after dinner about the great old days in the House of Commons. "I hear men say," said one member, "that it isn't quite what it used to be." "Nothing", said the Duke. "will ever be quite what it used to be." It is occasionally said, and will, undoubtedly, be repeated in the future, that there are fewer gentlemen in Parliament and that, therefore, behaviour is not what it was. But this is an old complaint. Sir Timothy Beeswax did not please many of his Conservative colleagues in the House of Commons, and Lady Cantrip 972 exclaimed to the Duke of Omnium. "That England should put up with such a man is to me shocking. There used to be a feeling in favour of gentlemen."
The value of parliamentary privilege is that it is a safeguard of free speech. Whilst the House retains the residual power to punish for contempt, can any hon. Member be sure that it will never be invoked as a means of suppression? If it is too much to expect the House formally to renounce its residual power which might conceivably be useful in circumstances very different from our own, could it not be placed in abeyance? Or even left as it is—to rust in disuse? This is how we have always proceeded in the past. Ours is not a prescriptive constitution. I fear that its availability, in no matter how reduced a form, will make it prey to abuse by some inside and outside Parliament who, in my view, should not be so tempted, for I know from personal experience how corrupting it is of good faith and tacit understanding outside and destructive of standards and, therefore, of morale inside the House. On the other hand, even such an uncharted and sensitive area would not overtax the good sense of Members of future generations of membership of this House, and, despite the scepticism of my hon. Friend the Member for Nottingham, West, the soothing services of the usual channels.
If it is maintained that Parliament nevertheless requires all this power for its protection, I am moved to ask, finally, protection from whom? I commend again the view of Iain Macleod, thatcriticism of politics and Parliament comes often from those who most care for political causes and who value Parliament most highly. So far as privilege is concerned, Parliament may be more honoured in the national breach than in the deferential observance.
§ 2.57 p.m.
§ Mr. G. R. Strauss (Vauxhall)
I think everyone will agree that the speech by my hon. Friend the Member for Sheffield, Attercliffe (Mr. Duffy) was a very fine one and the fruit of much research and much thought. I think we have all appreciated that.
I want to speak briefly. I have a triple interest in this matter, as a Member for some years of the Committee of Privileges, as a Member of the Committee on Privileges which brought out 973 the report which we are discussing today with the proposals of the Government, and as one who was very intimately involved in a privilege case which took up a long time and caused very considerable concern.
I should like both to congratulate the Leader of the House, as others have done, and to thank him for bringing the matter before the House at last. Those of us who have been anxious to discuss the matter have been asking for years for the opportunity to discuss the report, and not only to discuss it but to pass certain key resolutions so as to bring about certain changes. I feared at one time that it was no use asking—that this was a question of this year, next year, sometime, never. Now we have it before us. But I am further worried because whatever is brought before the House, if it is of any importance, is bound to be controversial. There will be debate about it and Motions on the subject, and at the end of the day we may be no nearer a solution than we were at the beginning. I hope that will not happen today.
I repeat the congratulations to my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), which I offered on the last occasion we debated this subject, on his chairmanship of the Committee and for the fact that he with his own hand and his own brain spent a summer holiday producing this difficult report. It is a remarkable feat, the subject is extraordinarily difficult, and he has earned the gratitude of the House.
Naturally, the proposals which the Government have brought before us today cover only a part of the recommendations of the Select Committee. I realise that that is inevitable. Some of the proposals which we had in mind would require legislation, but I must mention one which I much regret is not here. We proposed that when an offender had been found guilty of contempt of the House there should be an option of fining him. The present situation is ridiculous. We say either that an offender is not guilty or is guilty and the offence is very small and does not matter, or the offender is brought to the Bar of the House and rebuked by Mr. Speaker or sent to prison. But we cannot bring a public limited liability company to the 974 Bar of the House for rebuke by the Speaker and we cannot get a company sent to prison. There is, therefore, no way by which the House can punish a newspaper or a public concern. I should have thought it was desirable that there should be the possibility of fining a body which was guilty of contempt of the House.
I will confine myself solely to Motion No. 4, which suggests that that jurisdiction should be exercised sparingly. The Committee of Privileges for years past, without prompting from the House but realising the opinion of hon. Members on both sides of the House, has automatically been reluctant to condemn anyone for breach of privilege or for contempt. Nevertheless, it is highly desirable that it should be stated by Resolution that the House today considers it undesirable, unless it is essential, to find anyone guilty of contempt of the House.
I know that in this I differ from some hon. Members on both sides of the House, but I emphasise my strong belief that a case where the remedy is for the courts should not normally—and "normally" is very important—come to the Committee of Privileges. The abnormal case in quite obvious. If Mr. Speaker or the Chairman of Ways and Means is libelled in respect of the duties he is carrying out in the House, plainly Mr. Speaker could not be expected to seek a remedy in a court of law, and he would have to go to the Committee of Privileges because the whole House had been insulted. Where, on the other hand, an individual is accused of a personal misdemeanour which, it is suggested, unfits him to be a Member of the House or hold any public position, when that individual is acting by himself and not on behalf of a Committee of the House it is wholly wrong that the Committee of Privileges should be regarded as a substitute for a court of law for remedying any damage that may have occurred.
It has been suggested that this is all very well, and that Members of Parliament who are wealthy are able to get a remedy for any abuse which is spoken or written against them ; they can go to the courts if they have the money to pay the lawyers. It is also suggested that this takes time, and one cannot get a remedy from the courts until perhaps 18 months later. This is all perfectly true.
975 but it is necessary to repeat the argument that it would be contrary to the public interest and damaging to Parliament if Members of Parliament asked for any privileges greater than those available to other members of the public who are equally exposed. As my hon. Friend the Member for Sheffield, Attercliffe said, councillors in big cities, and in the countryside too for that matter, are constantly subject to public criticism, to abuse and to being held in contempt, but they have no special remedy. Many other members of the community are in an exposed position—doctors, lawyers, clergymen—and they have no special remedy either.
It may be that there should be a provision for legal aid in the case of libel ; there is probably a very strong case for it ; but I suggest that there is a strong case for Members of Parliament not asking for privileges which no other members of the public have. But there are exceptions. We suggest in our report that Members may be able to bring to the Committee of Privileges cases where Parliament is involved and is being held up to ridicule. In those cases resort should be to the Committee of Privileges.
Important as I consider the Government Motion to be, I consider our Amendment to be even more important. The whole essence of the matter is that obstruction of Parliament, obstruction of a Member carrying out his duty to his constituents, must be an offence, and, indeed, is the only offence which should be brought before the Committee of Privileges. This relates to an offence against an individual. I am not talking about the sort of offences where somebody says that half the House are drunkards, since that is another matter. I am talking about an abuse of a Member of Parliament. The matter should go to the Committee of Privileges when the offender is trying to obstruct the Member in the course of his duty.
I want to remind the House of the case which my hon. and learned Friend has quoted involving the necessity of setting out the facts in black and white for approval by the House. This was the case in which I was involved. I wrote to the then Paymaster-General, who was 976 at that time in charge of the nationalised industries, pointing out to him what I believed to be certain serious deficiencies—indeed, inefficiencies—in the actions taken by a nationalised board. I did not mention anybody's name. My case concerned the London Electricity Board. I thought the matter was so serious that it ought to be looked into. That was all. The Paymaster-General, who is now Home-Secretary, sent my letter to the board, and the board threatened to issue a libel writ against me. This raised a considerable matter of principle because if it were to be allowed to issue a writ, it would mean that no Member of Parliament would be able to write to a Minister in charge of a nationalised industry, a hospital, or a prison to complain about the behaviour of some board of committee and ask the Minister to look into the matter.
The matter went to the Committee of Privileges, and it was there for a whole year. It also had to go to the Privy Council to consider certain aspects. The Committee of Privileges decided by a majority, with one dissentient, that this was a breach of privilege, The House, for political and other reasons that I will not go into, reversed the decision by a majority of three. The question at that time was whether my letter was part of the procedure of the House. If it was a part of the procedure, then I was all right and could not be sued for libel. If it was not part of our procedure, I could be sued.
The Committee of Privileges commented that this was quite ridiculous. There was only one thing which could have been the criterion in this matter : did the action of the London Electricity Board obstruct a Member of Parliament in the course of his duty? That should have been the only criterion. If obstruction takes place, or is threatened, the Committee of Privileges must stop it.
Even today I am constantly being asked by colleagues of mine—particularly newcomers to the House—who have heard about my case : "Will it be all right if I write to a Minister forwarding to him a complaint about the conduct of people in a hospital or some Government institution?" My answer has to be, "No, you are in danger if that letter should get 977 into the hands of the people against whom you are complaining. According to the decision of the House taken on this particular occasion, those people would be perfectly entitled to bring a libel action against you".
What the court would say and whether the court would hold it as qualified privilege, I do not know. But at present every Member is in danger of legal action being taken against him without being protected by full parliamentary privilege if he complains to a Minister about the activities of any of his officers in a nationalised industry or about the board of a nationalised industry. Therefore, it is essential to put in black and white, as the Amendment would, that obstruction of a Member carrying out his duties is an offence which should go to the Committee of Priveleges and which the Committee would be able to consider.
§ Mr. Boyd-Carpenter
It is true that the words of the Amendment appear to have that effect, but as the words at the end of the first paragraph which would follow those of the Amendment are not taken out, and as they include… nor so as to defeat any remedy available to any other person in the courts …",does it not seem to the right hon. Gentleman that even with his Amendment the Motion will still say that the Committee of Privileges normally ought not to intervene in that very class of case? In other words, with the Amendment but with the other words remaining, the result would be that with that class of case the Committee of Privileges would still be told that it was not to interfere.
§ Mr. Strauss
I take the right hon. Gentleman's point. I understand the doubt which he raises, and there may be validity in it. I am not a lawyer. But it seems that spelling out in our Amendment that… any form of improper obstruction, attempt at or threat of obstruction likely to cause substantial interference with the performance of their respective functionsmakes it clear to the Committee of Privileges, or to the inquiring Committee that has first to consider whether a case should go to the Committee of Privileges, that this is considered an offence which should be judged by the Committee of Privileges. I should have thought that that was 978 clear. If I am wrong I shall be corrected, but that is the intention and I think that it is right.
When my hon. Friend the Member for Attercliffe says that there should be no privileges, I go with him 99 per cent. of the way. But in the particular case which I mentioned he would, I am sure, agree with me. There have been many attempts to obstruct Members of Parliament, by, for instance, persistent telephone calls, making life intolerable, physical attempts, attempts to withdraw money which they receive, which obviously should go to the Committee. But, where there is any other remedy or where it is a trivial and unimportant case, I agree with what has been said. Privilege should not be invoked and Members should not put themselves in a special position above ordinary citizens. If they do that the result is that they bring Parliament and themselves into contempt.
§ 3.14 p.m.
§ Mr. Eric S. Heffer (Liverpool, Walton)
I feel strongly about this issue. I spoke in the debate on 4th July, 1969, expressing a contrary view to some of my right hon. and hon. Friends. I wish to express a contrary view on this occasion also. I want to make it clear that I am not in any way trying to suggest that Members of Parliament ought not to be subjected to the fiercest possible criticism by the Press or anyone else. I want that on the record because some Members of the House have implied that one is trying to protect oneself.
I give an example. I was personally attacked by Bernard Levin, who rather stupidly and nastily suggested that I should have two concrete blocks tied around my neck and be thrown into the River Mersey. I did not come crying to the House or to anyone else. I did not even discuss the matter with Mr. Levin until I had the opportunity two or three nights ago. I then expressed my opinions to him. I thought it was a pretty good chance to do so.
We are all subjected to continual criticism in the Press, and rightly so. But there is a fundamental issue involved which many hon. Members have failed to grasp. It is that, whether we like it or not, we are not special people but we are in a rather special position. It is suggested that, to an extent, local councillors are in the same special position. 979 Long before I came to this House, I was a member of a city council for many years. The argument there is not that privilege should be taken away from Members of this House but that consideration might be given to making the same privilege available to other elected representatives who are equally vulnerable.
I come from the working class. I do not apologise for that. I am proud to be one of a group of members of my class who have arrived in this House. We come with no wealth behind us. We have only our ability to express in this House the problems of those whom we represent. That is all we have. Many of my hon. Friends could well be placed in a position where, if they were subjected to any sort of campaign, their only recourse would be to go to the courts, assuming that we agree to these proposals.
The Committee made this point. It said in paragraph 44 of its report that it could not rule out the possibility of a case, however exceptional, where the constant repetition of an unjustifiable and improper attack by a powerful organ of the Press upon a group of Members might be pursued to the point of being a serious threat to the free expression of their consciences and of their free parliamentary action.
I could not take on any of the Press barons in the courts. I have not the money to do it. It would be a one-horse race from the moment that I got into the contest. I should not be the horse out in front ; it would be the Press baron. Hon. Members have spoken about the freedom of the Press. However, we are not living in the days of Wilkes, when the British Press comprised a number of small struggling organisations, when there was a correct demand for the freedom of the Press and the right for members of the Gallery to tell the world what was going on here. We are not in that situation any more. To day we have four or five big combines owned by the Press barons, who are very powerful people. There is no such thing as the absolute freedom of the Press.
§ Mr. Michael Foot (Ebbw Vale)
Although we are not in exactly the same position as that which existed in the days of Wilkes, there are still a lot of small newspapers. When my hon. Friend talks 980 about the rights of big newspapers and small newspapers, I remind him that it is the small papers which can be subjected to libel actions and, in many cases, overwhelmed by them. The big papers do not worry. As I understand it, at the moment there are more libel actions pending against The Times than there are against Private Eye. Private Eye might be put out of business by one such action. The Times, backed by the Thomson millions, can stand up to a libel action. My hon. Friend is not right that the issue of free speech which arose in the days of Wilkes no longer exists today.
§ Mr. Heffer
That does not invalidate my argument. Unfortunately, too many small newspapers are being gobbled up by the larger ones. It does not invalidate my point that if, as an ordinary working-class Member of Parliament, I am subjected to a sustained campaign by a certain Press baron through his newspapers and I have to go to the courts, I cannot win such a battle because I do not have the initial financial aid to get there.
Hon. Members on both sides have already pointed out that Members of Parliament are not entitled to legal aid. We might argue that it should apply to us; but, if it did, we should have the undignified situation that, instead of being able to come here and, as it were, throw himself on the mercy of his fellow Members, an hon. Member would have to apply for legal aid to contest an action in the courts. I do not regard that as an answer to the question or as anything I wish to see.
It is interesting that the aristocracy and the working classes understand one another. We always have. We speak the same language. We even say that glasses are glasses, not spectacles. It is the middle classes who never seem to understand the issues involved. There is nothing wrong with continuing practices which have been thoroughly tried and found to be good.
§ Mr. Heffer
It may be pure Burke. It may be pure conservatism, but conservatism with a small "c" on some occasions is not a bad thing.
§ Mr. Heffer
Trivial cases have been brought before this House whilst I have been a Member. Like other hon. Members, I have groaned, "Oh my goodness, fancy this being raised in the House." We have all done it. But, as has been pointed out, something which may be trivial to the rest of us is not trivial to the hon. Member concerned. Then Mr. Speaker can consider and decide whether there is a prima facie case and whether we should go any further.
My hon. Friend the Member for Sheffield, Attercliffe (Mr. Duffy) made a valuable point. He said, in essence, that on many occasions the good sense and intelligence of the Committee has saved us from taking silly decisions or recommending silly things. Anyway, in the last resort, the House would probably have chucked them out if they had been silly.
I ask hon. Members to be very careful about what they are being asked to do now. Privilege is a fundamental question which is allied to the rights of Parliament. It is allied to the right of free speech of hon. Members to fight for their constituents without fear or favour. That is what it is all about. I therefore ask hon. Members to think very carefully before throwing out that privilege.
I believe that Motion No. 4 should go. Motion No. 9 is the only other one about which I have any criticism. I will not make it a big issue. In the Committee an alternative was put forward by the Clerk of the Committee which was probably a better suggestion than that which has been proposed today. I again ask hon. Members to think very carefully before agreeing to get rid of the principle of raising privilege in this House. In my view, we are taking some very dangerous steps. I hope that the House will not accept the Motions.
§ 3.19 p.m.
§ Mr. Fred Peart (Workington)
I would first thank the Leader of the House for the manner in which he moved these Motions. Some of my hon. Friends were worried that we would never be able to decide on the Select Committee's Report. When I was Leader of the House we had only the "take note" debate, but there would inevitably have been proposals, and it has fallen to the right hon. Gentleman to introduce them. The right hon. Gentleman has been fair in saying 982 that he would listen to the views expressed and then decide whether or not to press this or that Motion.
I too would congratulate all hon. Members who have spoken. I am only sorry that there has not been a larger attendance to hear the speeches of my hon. Friends the Members for Liverpool, Walton (Mr. Heffer) and Sheffield, Attercliffe (Mr. Duffy), representing two different points of view, and the magnificent speech of my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), who was the Chairman of the Committee. But no doubt they will read them in Hansard—
§ Mr. Peart
—least of all my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot). I agree with him on many things, but not on this.
Perhaps I might remind the House what privilege is about. I can do no better than quote the dictum from Erskine May which the Committee quoted :Parliament should use its power to protect itself, its Members and its officers, only to the extent absolutely necessary for the due execution of its powers.I think that all hon. Members who have spoken, except my hon. Friend the Member for Attercliffe, would accept that. We believe that it is necessary to have privilege to enable Parliament to function efficiently. Nor must we be too precise—
§ Mr. Duffy
I thought that I had expressed my own recognition of this need and the ways in which I thought that it was indispensable to Parliament's freedom and the freedom of others. I agree with my right hon. Friend the Member for Vauxhall (Mr. Strauss) that 95 per cent. of privilege could be dispensed with but that it should be retained for cases like the one he quoted. Therefore, I hope that my right hon. Friend will withdraw that reference to me.
§ Mr. Peart
Then he argued that we are not going far enough today. If I misinterpreted him, I withdraw, but he did suggest a more extreme view of privilege than that of other hon. Members.
If he accepts Motion No. 4, then he must agree with the words in the first part of the Motion :… while reserving the right to exercise its penal jurisdiction to protect itself, its Members and its officers and all others who may be entitled to its protection so far as may be necessary for the support of its authority and the proper exercise of its functions…If we have to have Motion No. 4—I hope that there will be some withdrawal there, because I am critical of one other aspect of it—we would have to have the Amendment in the name of my hon. and learned Friend the Member for Dulwich.
On the other hand, I have my doubts, which I expressed in the "take note" debate, and I am worried about the decision to encourage members to seek a remedy in the courts. Here, I strongly support my hon. Friend the Member for Walton. I believe that he is right. It would be impossible for an average hon. Member to fight in the courts in certain circumstances. It would be absurd of him to plead poverty—virtually penury—and apply for special aid. This would lower the prestige of Parliament. Even though it has been recommended by the Select Committee, I hope that the Leader of the House will recognise the strong opinion on this matter on both sides of the House. But if he feels, despite that strong opinion, which is held on both sides of the House—it is not conservative opinion, even with a small "c" ; indeed, I would have thought that my hon. Friend the Member for Walton was being socialistic in this case in the best sense.
§ Mr. Peart
My hon. Friend the Member for Attercliffe disagrees. He has made his speech and he must let me make mine. My hon. Friend the Member for Walton made a valid point 984 and I and some of my colleagues would support him. However, if, despite the strong opinion on both sides, the Leader of the House feels that he must press Motion No. 4, I hope that he will accept the Amendment. But I would prefer him to withdraw the Motion.
§ Mr. Boyd-Carpenter
Surely, if the Amendment is accepted, the whole Motion becomes extraordinarily contradictory, because there is an inherent contradiction between the concept introduced by the Motion and the closing words of subsection (1). It would be a complete nonsense.
§ Mr. Peart
I trust that we do not get to the stage of having nonsense and for this reason I think that it would be better if the Motion were withdrawn. If the right hon. Gentleman insists on the Motion, I think he should take the advice of hon. Members who support it but wish the Amendment to be added.
§ Mr. C. Pannell
As one who has temporised as a Privy Councillor in allowing my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) to make that powerful speech of his, which was well worth making, I disagree with my right hon. Friend the Member for Workington (Mr. Peart) on the construction of Motion No. 4. Is it not the case that if the Amendment were accepted, as it should be, the general construction as to whether we should proceed or not, or whether the matter is one for the courts or the Committee of Privileges, would probably be a decision to be made by the Committee of Privileges itself?
§ Mr. Peart
That might well be so but my main criticism is on the point substantiated by my hon. Friend the Member for Liverpool, Walton. I know that my right hon. Friend the Member for Leeds, West (Mr. C. Pannell), who is an expert on parliamentary procedure, may be right and I am not dissenting. However, I hope that we will not quibble about this. I think that in the circumstances the right hon. Gentleman should withdraw the Motion.
On the subject of Motion No. 9, here again I expressed doubts in the "take note" debate of July, 1969. I was worried that if there were the change of procedure suggested by the Select Committee, there would be danger of delay.
985 I am not sure that the proposals put by the right hon. Gentleman will even meet the desire of the Select Committee.
§ Mr. Peart
Of course. I am speaking frankly and no doubt other right hon. and hon. Members will express themselves frankly. This proposal could present great difficulties and there could be delay. The Committee of Privileges has been a successful body and tribute has been paid to it. My right hon. Friend the Member for Leeds, West is a distinguished member of it. It has performed its functions admirably. No question of party has ever arisen in the Committee to my knowledge. I was its Chairman for two years and although in our discussions there were differences of view there was never any party opinion. Right hon. Members who sit on the Committee treat their responsibilities with the respect which Parliament expects. I pay tribute to all my colleagues on both sides. I am still a member of the Committee and I would hate to frustrate its work. But that is what I am afraid of. There is always a danger of trivia being presented on the Floor of the House, but, knowing the House, we must accept that. But by the time the matter has been considered by Mr. Speaker and by the Committee, I think that generally speaking the right result is arrived at.
I would be very anxious about many of the major changes in structure which are proposed. I know that the Committee will still be there, but I am thinking mainly of the mechanism by which the matter of privilege will be raised.
For those reasons, I dissent. On the other hand, the Motions dealing, in particular, with strangers, with Select Committees and with privileges (publication) can, I think, easily be accepted by hon. Members on both sides. We shall now hear the Leader of the House give us his views. We shall understand if he takes a certain attitude, though we will disagree with it. But I know that he has considered the matter, and has, of course, conducted himself perfectly properly.
§ 3.32 p.m.
§ Mr. Whitelaw
It may be appropriate if I now give my views on how we might proceed. I shall not seek to argue the various merits of those Motions which I propose to take back. It is better that I should take note of what has been said, consider it carefully, and see whether a solution can be found.
I must admit that I am very sensitive on one point made by the right hon. Gentleman the Member for Vauxhall (Mr. Strauss), and that is that we have to be careful if I proceed with my plan as I have stated, and which I wish to do ; and that one never faces the controversial point in the House at all. I do not wish to face controversy today, one reason being that it is a Friday, but I want to see whether we can resolve our difficulties and, by redrafting, make disputed Motions more generally acceptable. If that should subsequently prove to be impossible it will probably be right to face controversy and test the feelings of the House. As I say, I do not wish to do that now.
Various doubts on the drafting of Motion No. 4 have been cast by, among others, the right hon. and learned Gentleman the Member for West Ham, South (Sir Elwyn Jones), by my right hon. Friend the Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) and by the right hon. Gentleman the Member for Workington (Mr. Peart). There are also those who are absolutely outright in their opposition to the whole principle contained in the Motion, among them being the hon. Member for Liverpool, Walton (Mr. Heffer).
I should like to withdraw Motion No. 4, and see whether by redrafting I can reconcile views where they are reconcilable. Thereafter, however, the House may have to face the fact that because there are those who, like the hon. Member for Walton, are wholly opposed to it in any form, the Motion will have to be put to the test of the House, because there is a clear cleavage of opinion.
The hon. Gentleman the Member for Sheffield, Attercliffe (Mr. Duffy) made a speech which, if I may say so, I much admired. Having memories of his particular problems, I was very glad that he had the chance to make it.
§ Mr. Latham
The irreconciliability of views referred to by the Leader of the 987 House exists only in the way in which the last three lines of the first part of Motion No. 4 has been drafted. I understood that my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) to be arguing, and I agree entirely with him, that it would be wrong to define these matters of difference. If such matters were not dealt with as being dependent on whether there was a remedy in the courts, I suggest that it might not be quite so difficult to reconcile the right hon. Gentleman's views with those of my hon. Friend and myself, and other hon. Members.
§ Mr. Whitelaw
If that is the case, very good. I would be prepared to test that position in any redrafted Motion, and I undertake to do just that.
My own personal opinion is that it is important for us to try to reconcile this position, if we can, simply on the basis that we do not wish to seem to be giving ourselves special privileges of any sort which are greater than are needed for the proper exercise of our duties as Members of Parliament. That is the principle. The great problem is how to translate it into a Motion and a form of words. That has baffled everyone.
I thought at one time that somebody would suggest that we should have another Select Committee to see whether it could reconcile some of the problems which the previous Select Committee put forward. Fortunately, I do not think that anyone will suggest that course. But if we can find a form of words to meet the principle on which we all agree, we should try to do so. On that basis, I will propose to withdraw Motion No. 4 and try again.
The right hon. and learned Member for West Ham, South commented on Motion No. 5. He asked about proceedings in a party committee. I can give him the assurance that proceedings in a party committee are proceedings neither of the House nor of its Committees. I have taken special advice on that point, and I can confirm it.
As to the point raised by my right hon. Friend the Member for Kingston-upon-Thames about wilful misrepresentation, if there were such wilful misrepresentation it would naturally be treated like any other contempt. I hope that, despite the withdrawal of Motion No. 4 988 and the doubts of the hon. Member for e Nottingham, West (Mr. English), we may n proceed with Motion No. 5.
I accept the first two Amendments of my right hon. Friend the Member for Kingston-upon-Thames to Motion No. 6, but not the third Amendment, to leave out line 5. I know that the hon. Member for Nottingham, West has some doubts about his matter, but it is reasonable that Select Committees should decide what they wish to do. All that the Motion proposes to do is to give Select Committees the power to decide whether they should allow strangers to be admitted when they are examining witnesses. It is right for the House to trust its Select Committees. That is what we are doing in the Motion, and that is a reasonable proposition.
§ Mr. English
Perhaps the right hon. Gentleman misunderstood me. I wished to give Select Committees three powers : to operate on a gallery basis, with the public present and the proceedings reported ; to operate on a lobby basis, meeting in private with no harm being done if its proceedings are discussed ; and to operate on a completely secret basis behind closed doors and where the proceedings are not reportable.
§ Mr. Whitelaw
The hon. Gentleman raises a completely new type of activity for Select Committees. I, and I suspect many other hon. Members, find it very difficult to contemplate what he describes as the lobby system for Select Committees. I hope that he will allow us to proceed on the basis of what we propose, bearing in mind that his other proposition could be put at another time, although I would not find it easy to accept it.
I would wish to proceed with Motions Nos. 7 and 8 for the remarkable reason that no one has suggested that we should not do so. We should not congratulate ourselves too much, because neither Motion No. 7 nor Motion No. 8 is particularly vital. That is perhaps why there has not been much disagreement on them.
In accordance with the undertaking which I gave at the start of the debate, I could not, in view of the opinions expressed by my right hon. Friend the Member for Kingston-upon-Thames, by my hon. Friend the Member for the Isle of Ely (Sir H. Legge-Bourke), by the right 989 hon. Member for Workington and by the hon. Member for Walton, proceed with Motion No. 9. Very senior Members have expressed reservations about it and, therefore, I do not feel able to proceed with Motion No. 9. I should like to see whether we can find a better procedure. As the hon. Member for Walton suggested, I will look again at the evidence of the Clerk of the Select Committee and I will inquire of the members of the Select Committee why they did not feel able to proceed in the way suggested. No doubt they had good reasons for not doing so, and I should like to discover what they were. The House must face the fact that if we cannot agree on a different method of proceeding we shall have to accept the method we have. I think that it has some substantial disadvantages. I should like to see if we can remove them. If we cannot, we shall have to go on as we are.
On that basis I hope that the House will agree, if I may recapitulate, that I should withdraw for further consideration and a real effort to find a form of words to meet the situation we all want, Motion No. 4, that Motions Nos. 5, 6, 7 and 8 should be approved, and that I should withdraw Motion No. 9, again with the determination to see if a way can be found of changing the procedure. Equally, if on Motions Nos. 4 and 9 it becomes clear that we cannot reconcile the differences and that they are deeply held, it may be that at some future time it will be right to test the view of the House.
§ Mr. English
Will the right hon. Gentleman in the course of the reconsideration which he has kindly offered reconsider the question of the report of the Joint Committee? I know that this involves legislation in all respects other than the one I mentioned. I know that he said that it should wait for the report of the Phillimore Committee. It deals with broadcasting the proceedings of the House, with defining a proceeding in Parliament, and with innumerable things which I think are more appropriate for the House to discuss than for any Committee on the general law of defamation. I am sure that hon. Members as a whole will agree with that course. If the right hon. Gentleman will give us the assurance that he will include the report of the Joint Committee in his consideration of other things, we shall all be much happier.
§ Mr. Whitelaw
I will look into this. I am advised that the Phillimore Committee on the law of defamation takes all these matters into account as well as all the other matters it is dealing with and that it would not be possible to proceed before that. This is my present advice. When the hon. Gentleman very courteously questioned that advice, I went back, but I am still given that advice. Of course I am prepared to look into this question.
§ 3.47 p.m.
§ Mr. Charles Pannell (Leeds, West)
I did not attempt to introduce or get between the Leader of the House and other hon. Members who were not members of the Committee in putting their case today, though I feel -this matter as deeply as most. It has been a continuing study of mine. Through you, Mr. Speaker, may I warn the House that it is not capable of the simple solutions that the Leader of the House thinks?
§ Mr. Pannell
As I understood the right hon. Gentleman, he as good as said that there are well-informed Members of the House like the right hon. Members for Kingston-upon-Thames (Mr. Boyd-Carpenter) and the ex-Attorney-General who had grave reservations and that they were matters of weight. I understand that sort of thing. As I understood it, the right hon. Gentleman's position today is that he should not attempt to push these Motions through the House but that, if they were matters as deep and difficult as all that, we must have the vote of the House.
Matters affecting the whole House can be changed only with the general consent of the House. I think I am entitled at this stage to say how much effort there was to get agreement on this. When I came out of the Ministry of Public Building and Works in 1966, the then Prime Minister spoke to me about this Committee, though I was not on it in the early stages. My right hon. Friend the Member for Manchester, Cheetham (Mr. Harold Lever) was its extraordinarily able chairman. After a time my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) got the chair. I can only say what was wrong under those two chairmen : they should have 991 written the report first and taken the evidence afterwards. They had so much evidence that they did not know what to do. There was no shortage of opinion or of historical precedents.
It goes right back to the mists of unrecorded time. We did not need my hon. Friend the Member for Sheffield, Attercliffe (Mr. Duffy) to tell us this afternoon what Iain Macleod or somebody else said. Let hon. Members think of any figure in English literature who has ever commented on Parliament and they will always discover that he has the same answer—Dickens, Hazlitt, all commentators. We ought to remember that our ancestors were not mealy-mouthed or thin-skinned.
But the balance is rather different now. The exploitation of Parliament at the peak time of half-past three is often to the disadvantage of those humble people outside who are disadvantaged by all sorts of publicity before the evidence is produced. It was a mistake to withdraw Motion No. 9, because that would have meant that the Committee of Privileges, as a civilised body, would have considered the evidence before airing the indictment. The indictment would not have been bruited abroad in the evening papers and so on. There are always people who will see the original charge but will not read, or trouble to read, about the acquittal, and all of us in public life have suffered from that.
With great respect to all those who have criticised the Select Committee's Report, I doubt whether they have thought as deeply or as long about this matter as the Committee did. It spent 17 months considering all the alternatives. The practice of Mr. Speaker ruling that there is a prima facie case goes back to only 1934. The Committee of Privileges would have been given the task of sifting the truth from the lies and finding out what was behind the charge. We have to respect ourselves, and if we are to have that system back again, we have to respect Mr. Speaker. I am willing to believe that all Speakers suffer when they have to give this sort of ruling, and we ought not to make it more difficult for them.
§ Mr. Michael Foot
I agree with much of what my right hon. Friend is saying 992 about the disadvantage of the withdrawal of Motion No. 9, but when he says that in future we shall have to revert to the older system and must therefore accept without debate Mr. Speaker's Ruling on whether there is a prima facie case, he forgets that there may be cases in which the individual who is charged can best be protected by the House throwing out the proposal right at the beginning. If I have misunderstood my right hon. Friend, I apologise, but I thought he was suggesting that such a Motion should always go through automatically, but there might be many cases when the only protection would be to throw out a Motion to refer the matter to the Committee of Privileges.
§ Mr. Pannell
I had thought of that, too. It has to be borne in mind that it is a relatively modern nostrum for Mr. Speaker to rule that there is a prima facie case. It started in 1934 when Winston Churchill said, "Surely it is only a prima facie case." Before then there could be a Motion to refer a matter to the Committee of Privileges, which could be discussed at once, and an Amendment to it could be discussed at once, and the House could debate the issue there and then. I am all in favour of that. But as long as we have this prima facie nonsense and all the difficulties that go with it, we ought to abide by the practice connected with it.
I wanted to bring in Colin Jordan on a breach of privilege. One of the venerated figures of the House, the late Sydney Silverman, somehow thought I was attacking his right to free speech. He clearly misunderstood what the Committee of Privileges did. What I wanted was an honest examination.
I ask the Leader of the House in his researches to consider how we might get agreement on this. He might even recommend to the House that we go back to the old practice, and a good example of that was the Salter case, when someone could move that a matter was a breach of privilege and an Amendment to that was to propose that the matter be referred to the Committee of Privileges. Then it can be threshed out on the day on the merits properly, on the system as it is at present.
I am sorry to have detained the House
§ Question put and agreed to.993