QUESTION OF PRIVILEGE (Hansard, 19 December 1952)

§ Mr. George Wigg (Dudley)
I wish to raise a question of Privilege.
On 10th December my hon. Friend the Member for Gravesend (Sir R. Acland) asked the Secretary of State for the Colonies the following question, whether he has considered the protests by defence counsel in important trials in Kenya against the lack of proper facilities for the defence; and what action he has taken thereon."—[OFFICIAL REPORT, 10th December, 1952; Vol. 509, c. 449.] The Secretary of State for the Colonies replied—I am not going to read all of his reply but only part of it.
Mr. Pritt had made only one protest about lack of facilities and had said that he was satisfied with the arrangements … In the course of supplementary questions and answers, the Secretary of State for the Colonies again referred to Mr. Pritt. He said: The views of the hon. Baronet are not shared by Mr. Pritt. 1799 And finally: Mr. Pritt said he was satisfied with the arrangements which have been made as a result of his protest. I would draw your attention, Mr. Speaker, to the fact that my hon. Friend's Question dealt with the defence arrangements at Kapenguria covering the whole of the trial and concerned all the defence counsel, and that he did not introduce the name of Mr. Pritt. Mr. Pritt's name was introduced for the first time by the Secretary of State for the Colonies— [HON. MEMBERS: "Speak up."]—I am sorry, I am speaking as loud as I can, but I have a cold.
On 4th December the Secretary of State for the Colonies, when questioned about the exclusion of counsel from Kenya, said: If it gives the hon. Gentleman the slightest satisfaction, I am willing to say here and now that I accept full responsibility …"—[OFFICIAL REPORT, 4th December, 1952; Vol. 508, c. 1774.] In view of the reply of the Secretary of State, I, in conjunction with my hon. Friends the Member for Cannock (Miss Lee) Bristol, South-East (Mr. Benn) and Gravesend sent a telegram to Mr. Pritt, which I read last night and with which I do not wish to weary the House again. The telegram contained the words quoted from the Secretary of State's reply: Mr. Pritt had made only one protest about lack of facilities and had said that he was satisfied with the arrangements made as a result … That is a direct quotation from the Secretary of State. We then went on to add these two words, "Please confirm."
May I now turn to "The Times" of 17th December which contained a report of the proceedings at the trial, and is dated 16th December from Kapenguria. It starts off with these words: Mr. Thacker, the magistrate before whom Jomo Kenyatta and others are being tried, today adjourned the trial until December 30, on the ground that Mr. D. N. Pritt, Q.C., Defence Counsel, had used words that the magistrate regarded as contempt of court, in a cable sent to four M.P.s in England, and published in the Kenya Press. It is clear that the report of that cable was published in the Kenya Press and a report of it appeared in the British Press last Saturday morning; that is to say, it was published before I received Mr. Pritt's cablegram. I think that it would be 1800 proper to read the whole of Mr. Pritt's cablegram. It was addressed to "Lee, Acland, Wigg or Benn." It said: Statement unfounded. Causing much amusement here. Am protesting continually firstly against inconvenience hearing in remote region where must send 280 miles to Nairobi to look up authorities on the frequently arising points of law or to get documents or witnesses and there are no facilities for research or study nearer than Nairobi and no means even of eating nearer than Kitale 24 miles; secondly against trial inclosed district virtually constituting exclusion public from court; thirdly against inexcusable exclusion some counsel from colony and of others from district of trial although accused have asked for them. All this makes proper preparation defence case almost impossible greatly increases expenses and wastes time. Amounts in all to denial of justice. Feel so strongly on this that undertaken to remain without further fee however many weeks case lasts. Only point whereon I have expressed satisfaction is that District Commissioner provided better facilities interviewing accused and secured for K.A.U. official whose services essential defence entry permit previously refused by Nairobi. My accommodation Kitale good. My colleagues accommodated by friendly private citizens under conditions making work difficult but they refuse to complain. Original application supreme court covered not only venue but also circumstances appointment magistrate and unsuitability summary procedure for long complex serious case …

§ Major Tufton Beamish (Lewes)
In order that the picture may be complete, would it not be better that the House should be reminded that Mr. Pritt also complained at one period that his letters were being opened and telephone calls tapped and that, on being informed that this was not the case, he then complained that his letters were not being opened and his telephone conversations were not being tapped?

§ Mr. Speaker
Order. The hon. Member for Dudley (Mr. Wigg) is making a submission on Privilege.

§ Mr. Wigg
I am trying to confine myself in as moderate a fashion as I can to the facts as I know them, giving all the facts to the House and holding back nothing.

§ Mr. Speaker
I think that the last part of the cablegram was lost in that interruption. What were the last words?

§ Mr. Wigg
I will read the last part again: Original application supreme court covered not only venue but also circumstances appointment magistrate and unsuitability summary 1801 procedure for long complex serious case. Please publish all this. Pritt. As I have said, these facts had been published in the Kenya Press. The published reports of Mr. Thacker's observations on the matter confined themselves to the fact that a cable had been sent to four Members of Parliament in England and published in the Kenya Press. The magistrate did not say that he was taking any measure or suggesting any measure against the Kenya Press. Therefore, it seems to me that the question of publication in Kenya did not arise. That point of view is borne out by the message that appeared on the tape yesterday evening and which I quoted to the House last night. I should like to read again the last sentence of that statement. It said: At Kapenguria on Tuesday Mr. Thacker the magistrate adjourned the hearing for 15 days on the ground that Mr. Pritt had used words in a cable to four British Labour M.P.s which the magistrate regarded as contempt of court. That message on the tape was reporting the measures which were being taken in the Supreme Court yesterday. But in an endeavour to elicit the facts, the night before last we sent a reply-paid cablegram to the Registrar of the Supreme Court in Nairobi. It read: Since question of privilege may arise through any proceedings for contempt of court taken against Mr. Pritt Q.C., in that he has replied to a cable sent to him in the course of Parliamentary duties by the undersigned M.P.s we ask you inform us by cable at earliest convenience the text of any motion for contempt or other proceedings in relation to cablegram sent by Pritt to us at House of Commons. If we raise point of privilege we should naturally put before House any explanation of court proceedings which you care to offer. So far—that is, up to the sitting of the House today—no reply to that message has been received.
Those are the facts of the case. My submission is that the issue before the House is the same as that which confronted the House in connection with the hearing under the Official Secrets Acts arising from a Question asked by the present Minister of Supply. The Report of the Commitee on that case says: Your Committee desire at the outset to emphasise the great importance of the questions referred to them, which directly affect not only Members of Parliament in the discharge of their duties, but which indirectly concern every individual citizen whose right 1802 it is in the last resort to have his grievances ventilated by speech and question on the Floor of the House of Commons. Their inquiry, therefore, though largely concerned with what are known as the privileges of Parliament. is, in fact, connected with questions of freedom of speech and the protection of the individual from pressure by the executive, which lie at the very roots of our democratic system. It is my submission that the case on which I am asking your Ruling, Mr. Speaker, is clearer even than the case of the right hon. Gentleman the Minister of Supply. In his case he approached an officer in order to gather information which would subsequently be the basis of a question which he intended to put on the Order Paper. In this instance, the Question was on the Order Paper and it concerned the generality of the defence facilities at Kapenguria. Mr. Pritt's name was not mentioned by my hon. Friend. It was mentioned for the first time by the Secretary of State. We were trying to elicit information from the Secretary of State and to fasten on him responsibility, which he had previously accepted, for one of the points made by Mr. Pritt, namely, the exclusion of counsel from the Colony and the trial.
Therefore, in this case the proceedings in this House started with a Question, and we were subsequently required to go to Mr. Pritt as a result of an answer given by the Secretary of State. Mr. Pritt answered our question—which, I must again emphasise, ended with the words, "Please confirm"—in such a way as to criticise the Executive but not to criticise the judiciary. We are concerned here with the rights of Members of Parliament and the general public, not in their relation to the judiciary, but in their relation to the Executive.
For that reason, I submit that there is a prima facie case of breach of Privilege in that Mr. Pritt has been placed in jeopardy as a result of supplying information to myself and my hon. Friends.

§ Mr. Speaker
Do I understand that the hon. Member for Dudley (Mr. Wigg) has received no reply from the Registrar?

§ Mr. Wigg
That is correct, Mr. Speaker.

§ Mr. Speaker
So we do not know what has been happening. Can the Government tell me?

§ The Attorney-General (Sir Lionel Heald)
I think it might be for your convenience, Mr. Speaker, and that of the House, if I were to state the result of certain inquiries I have made.
When this matter was brought to my attention yesterday evening, actually before the hon. Member for Dudley (Mr. Wigg) raised it in this House, I said that I thought it would be right and proper that information should be sought with regard to this statement that appeared on the tape yesterday. It bore the time 3.8 p.m., the date line "Nairobi, Thursday Afternoon," and the heading "Kenya Supreme Court Considered Alleged Contempt."
I thought it was right that inquiries should be made with regard to them, and the result of my inquiries is that there were no proceedings taken in the Supreme Court at all yesterday, and my information is that it is quite uncertain whether any proceedings will be taken in the Court. If they are taken, they will have to be taken by the Attorney-General, and not in any way by Mr. Thacker. All that has happened so far, and the only statement in this tape report that appears to be confirmed, is that a record of the proceedings in the Kapenguria court has been delivered to the Registrar of the Supreme Court. I thought that information might be of assistance to you, Sir, and the House.

§ Mr. Speaker
I understand that no proceedings have actually been started against Mr. Pritt, and that it is not ascertained whether they will be.

§ The Attorney-General
I have no information as to whether any proceedings will be brought, but I can say that no proceedings have yet started.

§ Mr. Aneurin Bevan (Ebbw Vale)
Although proceedings may not have started against Mr. Pritt, nevertheless Mr. Pritt and the defence have now been placed by the magistrate under very considerable disabilities. The trial having been postponed on the grounds of an alleged contempt of court for 15 days, does that not constitute at any rate a most unusual punishment for an offence which has not been proved?

§ Mr. Sydney Silverman (Nelson and Colne)
Is it not clear from what the learned Attorney-General has said that, 1804 although it may be the case that no actual proceedings have, in fact, been instituted, nevertheless, proceedings are quite clearly threatened? The presiding magistrate in the trial court has expressed at any rate a tentative view, and it is clear that the record has been sent to the Registrar of the Superior Court, so that proceedings may at least be considered. I would submit to you that, supposing you were of a mind to rule a prima facie case on the matter of my hon. Friend's complaint, it is not necessary for you to wait until proceedings have actually started, when there might be a conflict between the House and the courts; it is sufficient that proceedings are threatened.

§ Mr. Wedgwood Benn (Bristol, South-East)
May I ask you, Mr. Speaker, to press the learned Attorney-General further on this point? His intervention, as I understand it, has been very unhelpful to the House. [HON. MEMBERS: "No."] My hon. Friend raised, as he most properly should have done, the question of a message which appeared on the tape yesterday afternoon, and which we had sought to confirm 24 hours earlier by cable to Kenya. The learned Attorney-General comes to the House this morning with information which he himself had gathered and which seems at first to contradict what was on the tape. Although the hon. and learned Gentleman has, as it were, destroyed in part our submission from the tape, he has not indicated the fact, which he must know, whether proceedings are being contemplated against Mr. Pritt. I therefore ask you to press him to give us a full account of what he knows.

§ The Attorney-General
I am not in a position to say what proceedings are being taken or contemplated by the Attorney-General of Kenya. I have no control over the Attorney-General of Kenya, and it would be entirely improper for me to interfere with what he is doing. I was asked to state the facts for the information of the House, and the fact that those facts are inconvenient for certain hon. Members of the House is not a matter for me.

§ Mr. C. R. Attlee (Walthamstow, West
As I see this submission on the point of Privilege, the effective point is that, on account of a statement made in a letter to hon. Members of this House, 1805 action has been taken by a judge with regard to a trial, which has been put off for a number of days with a view to possible action. I think the submission that I would make is that, at the present moment, the question of Privilege arises on this as to action having been taken owing to a letter written to Members of Parliament.

§ Mr. Speaker
The hon. Member for Dudley (Mr. Wigg) has made his complaint, and I have had the advantage of hearing contributions from other hon. Members on this matter. It is not my duty, and it never is the duty of Mr. Speaker, to say whether or not a breach of Privilege has been committed. That is a question, and must always be a question, for the House at large, but the hon. Member for Nelson and Colne (Mr. S. Silverman) has mentioned a matter which I think is very relevant and should be borne in mind by the House. It is that, if the matter is pursued, we may be engaged in a conflict with the courts, and I think the House will agree with me that, before we take such a step, if it is necessary, we ought to proceed circumspectly and on very sure ground.
The facts, as put before me by the hon. Member for Dudley, arise out of a report on the tape which he read last night and has read again this morning, and it now appears, from the best information at our disposal, that no proceedings have, in fact, been taken against Mr. Pritt. The mere fact that the trial has been postponed for a question of the municipal law of Kenya to be decided does not, I think, come within the category of any action against Mr. Pritt. No action has been started against Mr. Pritt, it is not known whether any action will be taken against him, and we are not entitled to assume that any act will, in fact, be taken against Mr. Pritt.
As action against Mr. Pritt must form the basis of the hon. Member's complaint, in consideration of this matter of the question of principle, I do not think myself that a prima facie case is established, and that, therefore, the position rests thus. Until something is done which, in the opinion of the House, might be considered to be a breach of Privilege requiring examination, I think we cannot go further with the matter, but that, of course, does not in any way prejudice the 1806 right of the hon. Member for Dudley or of any other hon. Member of this House, should anything transpire in the course of this, as yet uncompleted, story, from raising the matter when we reassemble on the first day. That is my Ruling on the matter.

§ Mr. Wigg
I did not know what the learned Attorney-General was going to say. I spoke in the light of the information which I had when the House met, but had I known that the learned Attorney-General was going to tell us that no proceedings had been started, I would have drawn your attention, Sir, to the statement made by the magistrate when the matter was considered at Kapenguria last Tuesday. Mr. Thacker, having adjourned the court for half an hour while he considered the whole issue, was reported, when he resumed the hearing, as follows: On his return, he said he appreciated that there would be inconvenience if the trial was adjourned, but that was not all that mattered in this important case. As he saw it, a high question of principle had developed. It would have to be settled before he could agree to go on with the trial. The question of high principle here was the question of a submission of contempt of court by Mr. Pritt. Therefore, I respectfully suggest to you, Sir, that action has, in fact, been begun.

§ Mr. Speaker
No. I do not think that alters the matter. There is nothing which this House could properly do to prevent the consideration of a matter of domestic law by the courts of Kenya. That question arises when something is done against Mr. Pritt, and I must adhere to my Ruling that nothing so far has been done, and that we are not entitled to assume that anything will be done. For the House to proceed now with what might resolve itself, as the hon. Member for Nelson and Colne indicated, into a conflict with the courts, would, I think, be very unwise at the moment.
I have given that Ruling, and I have given the matter the best consideration in the time at my disposal. I have even read the case to which the hon. Member referred me and refreshed my memory, but that does not alter my mind. I drew attention to the fact that nothing will alter my Ruling, which is quite definite.
1807 As this Christmas Adjournment is a dearly-prized opportunity for hon. Members raising certain matters, I hope the House will now consent to pass to the Motion for the Adjournment.

§ Mr. S. Silverman
May I make one subsidiary point? It happens, perhaps a little unfortunately in the circumstances, that the House now adjourns and it might conceivably happen, though one hopes not, that before the House re-assembles something may happen which will tend to alter the attitude that you, Mr. Speaker, have so far expressed on an insufficiency of facts. Is there any way in which my hon. Friend the Member for Dudley (Mr. Wigg) will be able to get from you a Ruling as to whether such an event, should it occur, would amount to a prima facie breach of Privilege?

§ Mr. Speaker
I am afraid not, but the hon. Member will realise that most complaints of breaches of Privilege happen after the offence has been committed and it is then for the House to decide what it will do.

§ Mr. Bevan
I have one submission to make, Mr. Speaker. I recall very vividly the circumstances which led to the investigation by the Select Committee on Privileges into the alleged offence committed by the now Minister of Supply. In that case there was a possibility of an officer being punished for giving information to a Member of Parliament. In my submission, the question under consideration here is not merely whether proceedings will be taken against Mr. Pritt for alleged contempt of court.
My contention is that a person who has given evidence to four Members of Parliament, arising out of a debate in the House of Commons, arising again in its turn out of a statement by the Secretary of State for the Colonies, has already been punished, has already suffered disability and very considerable inconvenience.
In my respectful submission although it may be that no proceedings will be taken, at this very moment Mr. Pritt is suffering under physical disability because he has given evidence to the House of Commons. If that is not a breach of Privilege, are we to understand that, although a person may not be proceeded against in the courts, another citizen may punish a particular citizen because the 1808 latter has given evidence to Members of Parliament in the course of their duties as Members?

§ Mr. Speaker
I have considered all that and I see no general principle involved. I must adhere to my Ruling.

§ Sir Richard Acland (Gravesend)
I hope, with respect, Mr. Speaker, that no mistake is being made, because up to now—though this may not always be true—on the substantial point at issue out of which all these proceedings arise hon. Members on this side of the House, plus the tape, plus the newspaper reporters, have been shown to be right and the Government's information on this matter has been shown to be wrong—that is on the point of the protest being made. I hope that this matter again will not turn out to be another case in which we and the tape are correct and hon. Members opposite will be found to be wrong tomorrow morning, when it will be too late.

§ Mr. Speaker
I do not think that that affects the matter.

§ Mr. Benn
May I ask one question, Mr. Speaker? Suppose my hon. Friends and myself receive a reply to the cable sent to Kapenguria before the House rises this afternoon; will it be, as I think it, in order to raise that matter as a matter of Privilege and to ask for your Ruling on the basis of the evidence of the Registrar?

§ Mr. Speaker
If such a thing happens, perhaps the hon. Member will consult me again and I will do my best to help him.
Motion made, and Question proposed, "That this House do now adjourn."—[Mr. Buchan-Hepburn.]