COMPLAINT OF PRIVILEGE (Hansard, 8 March 1951)

§ Mr. Sydney Silverman
With your leave, Mr, Speaker, I desire to raise a matter of complaint which, subject to your Ruling, the House may have to deal with as a question of Privilege.
The matter arises in this way, and I think that, perhaps, I can put the House in possession of the facts best by reading two short extracts from a letter which I have received. The letter comes from the Crockham Hill Vicarage, Edenbridge, Kent, from the Rev. O. Fielding Clarke, Master of Arts, Bachelor of Divinity, and, without troubling the House with the whole of the letter, I shall read two very short extracts. The first is this: A letter of mine"— says Mr. Clarke— to my own Member of Parliament, protesting against German re-armament, was sent on, without my being asked, to my Bishop, who wrote me an impossible letter, saying that he thought I should resign. The other extract, which I would like to read, is this one, and it is equally short: The way is open for endless victimisation of people who write to their Members of Parliament if this is not tackled firmly. In considering whether or not these facts disclose a prima facie case of privilege, I would direct your attention, Mr. Speaker, to this extract to be found at page 109 of the 15th Edition of Erskine May, which says: It may be stated generally that 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 may be treated as a contempt, even though there is no precedent of the offence. I must confess at once that I can find no precedent of an offence of this kind, but, nevertheless, I submit to you, Sir, for your consideration, that it comes within the general principle therein stated by Erskine May, because it tends to lower the authority of the House and to bring it into contempt in undermining, or tending to undermine, the confidence between constituents and their Members, upon 676 which the authority of the House must ultimately rest and because, on the other hand, Members of Parliament could not possibly discharge their duties to the House or to their constituents unless they were kept constantly in touch with people's opinions and people's feelings and people's grievances, and constituents would not, of course, write to their Members with the freedom and security which they ought to feel if Members were to treat their letters in the way this Member treated this letter. I therefore ask for your Ruling.

§ Mr. Speaker
The hon. Member will please bring the extracts from the letter to the Table.

§ Mr. Speaker
I believe that no precedent exists for this complaint, but I cannot say that there is no prima facie case of Privilege. As there is no precedent, I must leave the matter as it is now to the House to decide. I wonder if the hon. Member for Sevenoaks (Mr. Rodgers) would like to say anything about it, as he is entitled to do?

§ Mr. John Rodgers
With your permission, Mr. Speaker, I should like to say, first, that I was given no prior notice that this question was going to be raised.

Hon. Members
Oh!

§ Mr. Silverman
I hope that hon. Members opposite, and the hon. Member himself, will acquit me of that at once. I did everything in my power to give the hon. Member notice, and I must tell the House exactly what I did, so that the House may judge whether I acted fairly or not. I had to do the thing quickly. [HON. MEMBERS: "Why?"] Matters of Privilege have to be raised at once. I sought advice upon the subject, and, having obtained that advice, I wrote a letter to the hon. Member yesterday afternoon, which I marked "Private" and "Urgent," and handed it in the ordinary way to a Messenger of the House of Commons. I could not give more notice, and I shall say exactly why. I shall tell the House what happened, because I was under directions to raise the matter today, and, therefore——

Hon. Members
Whose directions?

§ Mr. Silverman
Mr. Speaker's directions.

§ Mr. Eden
I only want to get this matter clear. [Interruption.]The hon. Gentleman has given way to me so that I may put my question. If the hon. Gentleman had been in communication with Mr. Speaker, why could he not get in communication with the hon. Member himself?

§ Mr. Silverman
I think that I acted in a way that any other hon. Member of the House would have done, and I am quite certain that the right hon. Gentleman who has asked me the question would, in the same case, have acted in the same way—[HON. MEMBERS: "Nonsense."]—because, under the Rules of Procedure of the House, there is no other way in which one can act. The overriding consideration is to act at once. The most frequent ground on which a case of Privilege is ruled out of order is that the matter has not been raised immediately. As soon, therefore, as I had this information, I took what I hope are the proper steps to find out what was the proper course to take. After seeking advice, I was told that the proper thing to do was to raise the matter after Questions today, and, in the meantime, to give the hon. Member concerned notice of it. I therefore submit to the House very respectfully that I did everything that anyone could be expected to do.

Hon. Members
No

§ Mr. Rodgers
With all due respect, Mr. Speaker, I have been in this House since two o'clock today and have been sitting opposite the hon. Member for Nelson and Colne (Mr. S. Silverman) for an hour and a half, and he has made no attempt to communicate with me. Secondly, he might have inquired from the postal authorities of the House where my mail was sent so that he could ensure that I received the letter.

§ Mr. H. Hynd (Accrington)
Did you give the clergyman notice?

§ Mr. Rodgers
The House will realise that I am caught in a very difficult situation. The action I took——

§ Mr. Hopkin Morris (Carmarthen)
On a point of order. Since the hon. Member 678 for Sevenoaks (Mr. Rodgers) has had no notice, and since the matter has now been put in the possession of the House and in your possession, Mr. Speaker, I suggest that this discussion should be adjourned.

§ Mr. Speaker
There is no actual discussion at the moment. What I mean by that is that, later on, the House can say what it wishes, but a Motion has got to be moved. I was merely asking the hon. Member, who is entitled to say something as his conduct is challenged, whether he wished to give an explanation, and I think we ought to hear it.

§ Mr. Eden
On a point of order. Surely, there are matters here which affect all Private Members. I am not blaming anybody because the communication did not arrive, but on a matter of such a personal character as this, surely, Sir, now that you are satisfied that the hon. Gentleman did not even know that the matter was going to be raised—[Interruption.]He did not know.

§ Mr. Snow
Has he got the letter?

§ Mr. Eden
The hon. Gentleman had received no intimation until the hon. Member for Nelson and Colne (Mr. S. Silverman) got up. Am I not right?

§ The Lord President of the Council (Mr. Herbert Morrison)
Further to that point of order. It is undoubtedly the case that if a complaint of breach of Privilege arises, the complaint must be made at the next sitting of the House. There is an implication that my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) did not do his duty. If I may say so, that is a grossly partisan and unworthy suggestion. My submission to you, Sir, is that my hon. Friend took the usual course, wrote a note to the hon. Member and left it with the messenger, and the messenger, no doubt, has either delivered it, or the hon. Member will collect it. If this matter is now adjourned it would be an implication, as, indeed, has been made, that my hon. Friend did not follow the usual practice. Moreover, I submit that the action which the House takes does not depend entirely on what the hon. Member for Sevenoaks (Mr. Rodgers) says. It depends, surely, on the contents of this letter?

§ Mr. Speaker
I do not think the House quite understands the business at the moment. The position is that the hon. Member for Nelson and Colne (Mr. S. Silverman) has raised a matter of Privilege. He has brought it to the Table and I have said that I cannot say there is no prima facie case, and have left it to the House. Then, in courtesy, I asked the hon. Member for Sevenoaks (Mr. Rodgers) if he had anything to say. He merely said that he had not had notice, and I do not know whether he wants to say anything more. But, at the moment, there is nothing before the House in the form of a Motion. The matter cannot be adjourned because we have no Motion to adjourn. Eventually, when the hon. Member has had his say-to which he is quite entitled—then, naturally, he withdraws. We then have the Motion before us and we decide and do what we like.

§ Mr. Rodgers
I merely want to reiterate what I said earlier, that no communication has yet been received by me in this matter and that I prefer to reserve any other statement.

§ Mr. Speaker
It is customary for the hon. Member when these matters are brought before the House to withdraw. That is the normal custom.

§ Mr. Eden
As there is so much hubbub, we should very much like you to repeat that, Mr. Speaker. We cannot believe our ears.

§ Mr. Speaker
It is the ordinary custom. When an hon. Member's conduct is criticised, the ordinary custom is that he withdraws from the House. It is not a reflection of any kind on the hon. Member, but it may be that somebody in debate might make personal attacks and might go out of order. It always has been the custom, and we have always enforced it.

§ Mr. Eden
With all respect, Mr. Speaker, is there any precedent for placing a Member of this House in that position without his ever having received the communication on which he is indicted? I would say, with all respect, that has never happened since the days of Charles I.

Hon. Members
Hear, hear.

§ Mr. Speaker
I suppose hon. Members would like to hear me, but I do 680 not seem to be able to make myself heard. I was going to say that we are all getting rather heated. I do not accept the right hon. Gentleman's point of view. I think it has happened before. But, in any case, if he thinks that, a Motion has now, I presume, to be put before the House, and the right hon. Gentleman can move "That the debate be now adjourned," when he will have his opportunity. There is nothing I can do at the moment, because there is no Motion before the House.

§ Mr. Silverman
I understand that, as the complainant, it is my duty under your Ruling, Sir, to move a Motion for the consideration of the House. I proceed, therefore, to do so, but may I give for one minute only, because I do not want to detain the House, my reason for the Motion I propose to move? First of all, I would like to say to the hon. Member for Sevenoaks, that I profoundly regret that he has not received the notice I sent him. I really must ask him to acquit me of any responsibility. [Interruption.]
The hon. Member quite rightly, and quite fairly, says that I have been sitting opposite to him for an hour and a half and that I could easily have told him. I think that was a perfectly fair point to make, and I am not complaining. But my reply to it is that until he was on his feet, I had no reason whatever to suppose that the letter I handed in yesterday, which I marked "urgent" and expressly asked should be delivered as quickly as possible, had not, in fact, been delivered to him. How could I possibly know that? I submit to the House that it was not an unnatural thing to suppose that the quickest way of reaching a Member of this House was not by post and not by telephone, but to suppose that, some time between yesterday afternoon and this afternoon, the hon. Member would receive a letter handed in for him here.
I was not asking the House to form any judgment upon this matter at all, and I am bound to say at once that I have not formed any judgment myself. I do not know whether the facts indicated in this letter are true or not. I do not know whether the hon. Member admits them or denies them and I am not complaining that he stands on his defence that he has had no letter. What I say is that on a prima facie case this is a 681 matter best considered not in a heated or feverish or hasty way in the House of Commons in this way, but that it should be submitted to the Committee of Privileges for consideration by them and that the House may then consider their report. The House will, I am sure, especially in relation to one of its own Members, not wish to prejudge any of the issues involved at this stage, or any issues that might be involved at any stage.
I am saying, however, that if it were true—and I am not saying it is true— that these things happened they must necessarily reflect upon the authority of the House. It is quite true that a Bishop has no authority to cause a clergyman to resign, but the principle involved of receiving a letter from a constituent and then, without notice to the constituent at all of what one is doing, sending it to a man who might be the employer of the constituent, is to produce a situation——

§ Earl Winterton
If I may say so, I do not dissent from much that the hon. Member for Nelson and Colne (Mr. S. Silverman) has said about this matter being referred to the Committee of Privileges. But I wish to point out, with the greatest respect, that it places the members of the Committee of Privileges in the greatest difficulty if the hon. Gentleman proceeds to argue the merits. Surely all he is entitled to do is to claim that there is a prima facie case.

§ Mr. Speaker
I agree with the noble Lord. There is a lot in what he has said. We do not want to argue the conduct of the Bishop. If the House chooses, it can refer the matter to the Committee of Privileges to make an impartial decision.

§ Mr. Churchill
Do I understand you to say, Mr. Speaker, that you would be glad if the Motion to refer this matter to a Committee of Privileges could be adjourned?

Hon. Members
No.

§ Mr. Speaker
No, I said it was a matter for the House and that once a Motion was before the House, it was a matter for the House.

§ Mr. Churchill
I am very glad indeed to receive your Ruling. It is a matter for the House to decide, no doubt after 682 debate and if necessary after a Division, whether this matter should be proceeded with immediately or not.

§ Mr. S. Silverman
I have not moved it.

§ Mr. Churchill
I am only endeavouring to ascertain what the Rule is on the matter. If the hon. Member for Nelson and Colne moved a Motion it would be open to anyone else to move that the debate should be adjourned in order that the House may decide.

§ Mr. Speaker
Once the hon. Member for Nelson and Colne has moved a Motion it is open for the House to debate it or to move that it be adjourned or to do anything the House likes.

§ Mr. Silverman
I have not moved it. [HON. MEMBERS: "Move it."] I was not seeking to discuss the merits at all, but only seeking to explain why in my opinion—[HON. MEMBERS: "Move it."] I beg to move, "That the matter of the complaint be referred to the Committee of Privileges."

§ Mr. Paton
I beg to second the Motion.

§ Mr. Paget
Is it not now the custom for the hon. Gentleman who is the subject of the complaint to withdraw?

§ Mr. Speaker
If he does not choose, I think perhaps there will be another Motion.

§ Mr. Churchill
I wish to follow the line you have indicated, Mr. Speaker. I beg to move, "That the debate be now adjourned."
It seems to me that it will be in harmony with our general way of dealing with these matters. The Motion to adjourn the debate, is a matter which can be debated upon and divided on by the House. It seems to me that in all the circumstances it would be very sudden to remit this matter to the Committee of Privileges and to order the hon. Member for Sevenoaks (Mr. John Rodgers) to withdraw, when he has not been given any of the customary notice. I think that is not the way in which a matter of this kind should be dealt with.
Therefore, I hope the House will consider whether this debate should not be adjourned. In a few days time, or at some convenient opportunity, the House can address itself to the subject and decide whether it is the kind of question 683 that should go to the Committee of Privileges or not. I am bound to say it does seem to me a very odd thing that it should be said to be a breach of Privilege for a Member of Parliament to send a letter which has been sent to him, to somebody else. I am sure that many of us must have sent many letters that have been sent to us by our constituents or some other people to somebody else. I have never heard that that was any ground for complaint of misconduct.

§ Mr. S. Silverman
On a point of order.

§ Mr. Speaker
I was about to rise before the hon. Member for Nelson and Colne rose. We do not want to debate the merits of the case now.

§ Mr. Churchill
Another point which seems to me to make it important that the debate should be adjourned and that the House should consider precedents before they submit the complaint to the Committee of Privileges is that a member of another place is involved. The Right Reverend Bishop of Rochester is a peer. Surely it would be only reasonable and decorous for us to be sure that we had not in any way infringed the privileges of another place before we decide offhand to remit the matter to the Committee of Privileges in which the conduct of a member of another place will be directly involved.
At any rate, that is a point of substance, and although I could easily expatiate on the subject I have no wish to stand between the House and the Secretary of State for War whose statement everybody is waiting with so much eagerness. Therefore, I will content myself with moving—[Interruption.]—I will do it much quicker if hon. Members will keep quiet—that the debate be adjourned.

§ Earl Winterton
On a point of order. In view of the unprecedented nature of these proceedings—at any rate unprecedented in recent years—and with the greatest respect, Mr. Speaker, I feel I am entitled to ask you for advice as a member of the Committee of Privileges, advice which no doubt other hon. and right hon. Gentlemen will be anxious to hear. It is as to whether or not members of the Committee of Privileges should vote if there is a Division. With the greatest respect, 684 I have never before heard of the House being asked to decide.
Without any reflection on the Chair, if I may say so it has hitherto been decided by the Chair. Perhaps you can advise as to whether we should abstain from voting.

§ Mr. Speaker
I should like to think of that and give advice later.

§ The Attorney-General (Sir Hartley Shawcross)
I am very much impressed by what the noble Lord the Member for Horsham (Earl Winterton) has said. I find myself in exactly the same position as he is in; I am also a member of the Committee of Privileges. I had only sought to intervene—and, Mr. Speaker, I would gladly have your Ruling as to whether it is proper for me to do so or not—to make an appeal to the right hon. Gentleman the Member for Woodford (Mr. Churchill), who has moved the adjournment of these proceedings, that he should reconsider the matter and follow what has been, as far as I know, the invariable practice in these cases in the past.

§ Mr. Eden
There never has been any case.

§ The Attorney-General
One has only to appreciate the atmosphere that exists in the House at the moment, which, I am afraid, must exist again if the matter comes up for debate before the whole House in a few days' time, to realise that it would be very difficult to approach the problem which has been raised by the Motion in a detached impartial and judicial way.
I speak with great diffidence on this matter, because I have been a member of this Committee for only six years. I think that when the right hon. Gentleman and I were both on the Committee together we took very much the same view about the matters we had to discuss. We were both agreed that we must discuss them, and we did discuss them, in as dispassionate and judicial way as we possibly could. I remember that one of the cases we had to discuss at that time—I think he was on the Committee then—was the case of a Member of Parliament who was alleged to have disclosed improperly to an outside person a matter which had come to his knowledge as a Member of Parliament.
685 I think I am right in saying, because I have studied, as no doubt other Members have, the whole of the precedents extending over scores and scores of years in the past, that in a case of this kind— and it has been the practice and tradition in the past, certainly within my knowledge within the last six years—if the question of Privilege is raised, the House decides without debate whether it shall go to the Committee for a report. All that then happens is that the Committee, in a judicial way—and I hope that it will discharge that function on this occasion, as it has in the past—considers precedents, hears statements, and what are the facts, and then makes its report to the House on the basis of which the House freely discusses the matter. I think that in the last case the House rejected the report of the Committee of Privileges and adopted some slightly different procedure from that which had been recommended.
I should have thought that it was to the great advantage of the House and the great dignity of our proceedings that we should not discuss this matter in a heated political atmosphere, but that it should be discussed quietly and dispassionately, so that the facts can be ascertained and the precedents explained and the whole matter reported in that way to the House, leaving the House free either to reject the report or to arrive at a different conclusion, or to do whatever it thinks right. It would seem to me to be quite unfortunate and contrary to our traditions that we should have a general discussion on the matter in the kind of atmosphere that exists now.

§ Mr. Churchill
I can only speak again with the indulgence of the House. I would point out that there are many precedents for matters of Privilege having been discussed in the House before being remitted to the Committee of Privileges.

§ Mr. Duncan Sandys
The Attorney-General has appealed to the House to accept the Motion without debate because he has said this is the invariable practice. I should like to ask whether it is really true that this is the invariable practice. It seems to me that the invariable practice, as far as I can remember in my own comparatively short experience of this House, is that you, Mr. Speaker, rule that there is a 686 prima facie case of a breach of Privilege and it is then customary for the House, without debate, to accept that the matter be referred to the Committee of Privileges. We are today in an entirely different position. You have said that you are not prepared to rule that this is not a breach of Privilege, which is quite a different thing. Therefore, I submit that we are put into some difficulty and it does not follow that we are under an obligation to accept the Motion without debate.

§ Sir Ian Fraser
It seems to me that there are two elements in this matter, one of which is time, that a Member must bring a matter to your notice, Mr. Speaker, at the earliest possible moment. The other is prima facie evidence. I call to mind a case within recent months when a Member came to you, Mr. Speaker, and said, "I have not the full prima facie evidence available, but I have heard that such and such has appeared in a paper. May I raise the matter today?" And you said, "Yes. You may raise it today, and we will then adjourn discussion until tomorrow, when you can get the paper."
I suggest that here is a case where, although the prima facie evidence produced by the hon. Member for Nelson and Colne (Mr. S. Silverman) has been put before us, we have not had an essential element in the matter, namely, a reasoned statement by the hon. Member for Sevenoaks (Mr. John Rodgers). Therefore, I submit that there is no adequate material before us for a prima facie judgment and, that being so, it is reasonable and within precedent to adjourn.

§ Mr. Speaker
It is within precedent, but we have the Motion before us, and we cannot get away from it. In reply to the question put by the noble Lord, if it does come to a vote Members, whether they are members of the Committee of Privileges or not, can use their discretion and vote. After all, they are not prejudging the matter, because it is a question of whether we adjourn the debate or not.

§ Sir Jocelyn Lucas
If it is necessary to give notice to an hon. Member before any charges are made and no notice has been received, should we not have some evidence that the letter was actually handed over and that the hon. Member for Nelson and Colne (Mr. S. Silverman) 687 has not forgotten it and put it in his pocket?

§ Mr. Speaker
The hon. Member for Nelson and Colne (Mr. Silverman) has stated what he has done, and we must accept it.

§ Mr. Hopkin Morris
Some confusion seems to have arisen through the procedure which has been adopted this afternoon. The hon. Member for Nelson and Colne (Mr. S. Silverman) has raised what he submits to be a prima facie breach of Privilege, and he has been asked to bring the letter to the Table. It would be normal, as I understand the procedure, for you, Mr. Speaker, to decide whether there is a prima facie breach of Privilege or not and, that having been decided, for a Member from the Government Front Bench then to move that the matter be referred to the Committee of Privileges, in which case the judicial and impartial atmosphere of the Committee which has been described by the Attorney-General could then be preserved and a heated debate on the Floor of the House avoided.
That is the only way that the Committee of Privileges, which is composed of Members of the House, who must have their party views, can preserve an atmosphere of independence and judicial impartiality; but they can only hope to do that if there is no heated debate on the Floor of the House. That is the reason why it is important that a decision shall come from the Chair as to whether or not there is a prima facie case. That procedure seems to have become a little confused. I am submitting that what should be done is that consideration of whether or not there is a prima facie case should be adjourned by you, Mr. Speaker, and that when you have considered it you can rule whether or not it is a subject to go to the Committee of Privileges.

§ The Attorney-General
I would ask, if I may, that you should adopt that course, Mr. Speaker. It does put us in great difficulty if we do not have the assistance of your Ruling on the matter. The point is, to some extent, a new one. It has been raised inevitably at very short notice, but if you can find it possible to give further study of the matter and then, in the course of the next few days, rule whether or not there is a prima facie case, 688 we shall be able to remove this difficult matter from the arena of party controversy.

§ Mr. Speaker
A request has been addressed to me by the Attorney-General, and I am quite willing to comply with that request. If the matter could be raised next Tuesday or some such day, I should then have time to give a definite ruling one way or the other, and it would not be a bar to the letter not being produced at the earliest possible time.

§ Mr. S. Silverman
I wish to leave myself in the hands of the House. This is primarily a House of Commons matter; it is for the House to decide, and I shall have no complaint whatever it decides. I submit that these matters are for the House unless the Chair is in a position to advise the House that no prima facie case has been disclosed. I thought that was what had happened. If the House thinks it is preferable that a Ruling should be given in a positive rather than a negative form, I am content to leave it in that way.

§ Mr. Speaker
Perhaps the adjournment Motion can be withdrawn and then the other Motion can then be withdrawn.

§ Mr. Churchill
I shall be quite willing to withdraw the Motion for the adjournment of the matter on the understanding that the Motion of the hon. Member for Nelson and Colne (Mr. S. Silverman) is also withdrawn. Then, Mr. Speaker, we shall await your Ruling on the subject.

§ Mr. S. Silverman
I am perfectly prepared, on the understanding which we have been discussing, to withdraw my Motion—it being understood that it is without prejudice to my right to raise the matter as soon as you indicate that you are ready to give your Ruling, Mr. Speaker.

§ Mr. Speaker
I understand that the hon. Member now withdraws his Motion and will move it again later if I rule a prima facie case, say, on Tuesday next.