QUESTION OF PRIVILEGE (Hansard, 20 January 1953)

§ Mr. Wigg

Mr. Speaker, when I raised a question of Privilege on the day the House adjourned for the Christmas Recess, the concluding words of my statement were: …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. Pritt is no longer in jeopardy, for the Kenya Supreme Court has ruled that he was not guilty of contempt of court, but it still remains to be settled whether a breach of Privilege occurred when Mr. Pritt was placed in jeopardy for sending a cable to Members of this House.

In my submission, now that the Kenya Supreme Court has given its decision, the personality of Mr. Pritt and the court proceedings in Kenya can be eliminated from the consideration of the principle which I suggest the Committee of Privileges in the first instance should consider. This does not mean, of course, that references to the charges against Mr. Pritt or the circumstances surrounding their formulation can be avoided. But it does mean that the principle I am advancing is not concerned with the protection of an individual nor the institution of punitive action against an individual.

In my submission, the principle requires consideration because it concerns every Member of this House and every citizen of this country. Let us consider for a moment the circumstances in which this matter first arose. It began when my hon. Friend the Member for Gravesend (Sir R Acland) put down a Question about the conditions of the trial, and when he received an answer he was told that only one complaint had been received and the chief defence counsel had said that he was satisfied with the arrangements.

A similar Question could have been put down by any hon. Member about trial arrangements in his constituency and the answer which the Minister gave would surely have required a Member to do what was done by my hon. Friends and myself when we sought to obtain confirmation from the individual mentioned by the Minister. It is my submission that in such circumstances the actions of a Member seeking to confirm statements 44 made by the Executive are a part of the proceedings of this House, especially when it is borne in mind that in this instance the responsible Minister based his statements to the House on a statement made by a person who was not even mentioned in the original Question.

I want again to make it clear that in raising this matter I am not concerned in the slightest with the protection of an individual, nor am I seeking to extend Privilege beyond what in commonsense terms are matters arising strictly from the proceedings of the House. In my submission, if this House, or a Member of it engaged in the proper business of Parliament, seeks confirmation of a statement by a Minister from a member of the public resident in an area for which the House is responsible, then that inquiry and the reply are part of the proceedings of Parliament, and are accordingly privileged.

In seeking to establish this principle, I am, I suggest, well within the scope of the Report dealing with the Official Secrets Acts. In that Report the proposition was advanced that: A measure of protection is thus afforded to any person who communicates information to a Member of Parliament. It is true that this statement was related, as was the Report itself, to matters connected with the Official Secrets Acts, but I suggest that it is a reasonable inference that the Report set out to give a greater protection to individuals communicating information to Members of Parliament than I am now seeking to establish.

Having stated the general principle, I must once again turn to matters as they were on 19th December. You described the position, Mr. Speaker, as: … this, as yet uncompleted. story … and said: No action has been started against Mr. Pritt, if is not known whether any action will be taken against him, and we are not entitled to assume that any action will, in fact. be taken against Mr. Pritt. Your decision was no doubt influenced by the Attorney-General, who said: …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."—[OFFICIAL REPORT, 19th December, 1952; Vol. 509. c. 1814–18.] 45 I submit that in one material matter the Attorney-General's statement is incorrect, and it may well be that there is some doubt on a second matter. When the Attorney-General stated that if action was taken it would have to be taken by the Attorney-General, he was certainly incorrect. On the 6 o'clock news on 20th December, a statement was made in the Home News Bulletins and, so that I should be precise, I asked the B.B.C. for a copy of that statement, which they were kind enough to give me. It reads as follows: The Registrar of the Kenya Supreme Court told our correspondent today that the Chief Justice had examined papers sent to him by the Magistrate, Mr. Thacker, who has been hearing the case of Jomo Kenyatta and five other Africans at Kapenguria, in the Northern Province. Some days ago, Mr. Thacker decided to adjourn the hearing until December 30th, so that another court might decide whether counsel leading the defence, Mr. D. N. Pritt, had committed contempt of court in a cable he had sent to four British Labour M.P's. The Registrar said that the Chief Justice had made a decision on the question whether or not the Supreme Court was ready to take any action of its own. The decision could not he publicly disclosed until it had been communicated to Mr. Thacker. This statement is confirmed by the opening statement of the proceedings in the magistrate's court in Kapenguria on 2nd January. Again, in order to be exact, I should like to read from the court proceedings, of which I have a transcript. The statement was made by the magistrate, Mr. Thacker, and is as follows: Up to this minute I have not received any communication from the Registrar of the Supreme Court as to the result of the contempt of court proceedings. I am quite ignorant, as far as the Registrar is concerned, of the result. The only communication I have is a letter from the Registrar dated 20th December. Later, in the course of further remarks, the magistrate made it clear that he had received yet a second letter, dated 29th December, which asked him not to take any action on the letter of 20th December as, because of the proceedings in the Supreme Court, there was no need to do so. It is, therefore, clear from those statements that the reference from the magistrate's court was considered by the Supreme Court quite apart from any action taken by the Attorney-General. The court's decision was conveyed in a letter to the magistrate dated 20th December, which the magistrate was asked to communicate to Mr. Pritt.

46 So I submit that, in the case against Mr. Pritt, action did not depend, as the hon. and learned Gentleman the Attorney-General informed the House on 19th December, and which clearly must have influenced you, Sir, exclusively on action by the Attorney-General of Kenya, and that the hon. and learned Gentleman was incorrect in making that statement. I should also have thought that this fact underlines the assertion made by a number of my hon. Friends that the proceedings against Mr. Pritt really started when the magistrate decided that the cable sent to my hon. Friends and myself must be considered before he could proceed with the case.

The second point in the Attorney-General's statement to the House to which I wish to draw attention arises from the doubt which he cast upon the tape message which originated from a message received by the Exchange Telegraph Company's correspondent. In view of the doubts cast by the Attorney-General's statement, I approached the editor of the Exchange Telegraph Company and asked him if he would be good enough to tell me what authority he had for the tape message of 18th December that proceedings against Mr. Pritt had been started. The editor of the Exchange Telegraph Company has been kind enough to write to me in the following terms: The answer to your inquiry regarding the message from Nairobi published at 3.8 p.m. on 18th December, is that the information was received by the Exchange Telegraph correspondent from the Court authorities. In view of this statement, I hope the Attorney-General will tell us the source of his information, and that, if this statement to the House was based on sources other than inquiry from the court authorities, he will give us some explanation, for, as I have already said, I think the House is entitled to an explanation, because it is not unreasonable to say that, but for the Attorney-General's statement, you might have taken a very different view on 19th December, Mr. Speaker, from the one which, in fact, you did take.

Turning from the information supplied to the House by the Attorney-General, it is quite clear that, on 22nd December, it was doubtful whether any further proceedings would be taken against Mr. Pritt, for on that day I received an answer to my cablegram which was sent in the names of my hon Friends and myself 47 to the Registrar on 18th December. The terms of our cable appear in column 1813 of HANSARD of 19th December, and I do not think it is necessary for me to repeat them here. The reply I got from Nairobi was: Up to date no repeat no proceedings have been instituted against the person named in your cable. That was signed "Registrar, Court, Nairobi."

On 24th December, however, a further cablegram was received which stated that, in fact, proceedings had been started against Mr. Pritt. This meant, of course, that Mr. Pritt was once again in jeopardy, but this time on different grounds. The Supreme Court, having considered Mr. Thacker's observations in the Kapenguria Court, and having reached its decision, the Attorney-General of Kenya decided to pursue this matter, at least as far as his Notice of Motion is concerned, on the issue of the publication of Mr. Pritt's cable to the "East African Standard."

When I came to the House on 19th December, I was aware that the argument might be advanced that Mr. Pritt's fault rested, not in sending the cable to hon. Members of this House, but in the publication in the Kenya Press. Hon. Members will find in column 1813 of HANSARD of 19th December, that I addressed myself to this point of view, and pointed out that the magistrate did not raise the question of publication in the Kenya Press. I also pointed out that the fact that measures were not in contemplation against the Kenya Press was, in itself, evidence that the question of publication did not arise. The Attorney-General of Kenya, I suggest, was out to get his man, and by 22nd December he was aware of what had been said in this House on 19th December, and he framed his Motion accordingly.

It is clear that, whatever the Attorney-General of Kenya put in his Notice of Motion, he did not take the matter very far in the arguments he put to the Court. For example, he said: …there is one phrase, my Lord, which is the heart of the matter. It is quoted verbatim in the notes of the transcript: 'It amounts in all to a denial of justice.' At the conclusion of the Attorney-General's submission to the Kenya Supreme Court, he said: 48 The defendant has never been asked as yet this question, which I submit he should be asked: 'Do you allege that your clients are being denied justice in these proceedings at Kapenguria?' If his answer to that is 'Yes,' then he is guilty of contempt. If his answer is 'No,' then, my Lords, he should be asked to withdraw those words—' It amounts to a denial of justice'—to withdraw them word by word, syllable by syllable, and comma by comma. If he refuses to withdraw them, then your Lordships, in the exercise of your powers and duties, should punish him accordingly. Mr. Speaker, if the complaint of the Attorney-General of Kenya against Mr. Pritt was honestly concerned with the publication of the words— It amounts to a denial of justice"— then the withdrawal of those words would not affect the issue except in mitigation. But, on the other hand, if, as I suggest, the complaint of the Attorney-General of Kenya rested on sending a message containing those words to hon. Members of this House, then their withdrawal, whether it happens to be— word by word, syllable by syllable, comma by comma or not, would have a direct interest for the Executive, because it would tear out the substance of the criticism which Mr. Pritt, by his message to us, had levelled at the Executive.

I should like to turn for a moment to the views expressed by the Chief Justice in giving judgment. I put it mildly when I say that the Supreme Court were not impressed with the argument of the Attorney-General in relation to the question of publication, because, and here I quote from the Chief Justice's remarks: We have read the words 'denial of justice' in their context. They clearly appear to us to mean, and in our opinion could not be understood by any reasonable person otherwise than to mean, not that justice was being denied or would be denied by the Resident Magistrate, but that justice was being denied in the sense (a) that the defence was handicapped because of the distance of Kapenguria from Nairobi and because certain counsel had not been allowed to join in the defence, and (b) because, 'the public is being virtually excluded from the trial'. In his summing up, the Chief Justice added: To sum up, nothing was said about the magistrate, the prosecution, the accused, the witnesses, the procedure or the evidence at the trial. In what was said, there is nothing calculated to interfere with the ordinary course of justice in the criminal case at Kapenguria or to prejudice a fair trial. All the cases cited by the Attorney-General are concerned with 49 serious instances of matters plainly intended and calculated to interfere with and prejudice a fair trial. Then, the Chief Justice, having read the Notice of Motion, having heard the arguments of the Attorney-General, asked this question: In this case, how can the cable be said to have such an effect? If it has not had such an effect, there is no contempt. Having answered the question in that way, the Chief Justice made it plain what the Supreme Court thought of the Attorney-General's case by awarding costs against the Crown.

In my submission, Mr. Speaker, the judgment of the Supreme Court makes it quite clear that, in their opinion, the arguments of the Attorney-General of Kenya were directed to show that the words It amounts to a denial of justice"— contained in the cable to my hon. Friends and myself—amounted to contempt of court. When the Chief Justice found that the cable could not be held to have the effect which the Attorney-General asserted it had, the Attorney-General's case collapsed in Kenya, but it left him exposed to the charge that he had deliberately and wantonly, and despite warnings contained in the proceedings in this House on 19th December, proceeded against Mr. Pritt on grounds which, as the Chief Justice of Kenya said, no reasonable person could hold.

In conclusion, there is one more comment I wish to make. The proceedings of the Supreme Court stand out as a shining example of the integrity of British courts. In saying this I have, I hope, some understanding and certainly sympathy with those called upon to administer justice in the difficult circumstances 50 which exist in Kenya today. But when one bears in mind trials in other parts of the world, the fact that the integrity of the Kenya Supreme Court, despite all the difficulties, cannot be challenged, is something of which we as British people can be proud.

In my opinion this is not due to the fact that British people have a greater share of virtue than other races, nor that they have less than their share of original sin. The integrity of British justice exists because our forefathers had the foresight to insist upon the separation of the judiciary from the executive, and we, in our time, must hold fast to the same principles so that those who come after us may possess, as we do, a society based upon the rule of law. Therefore, because I uphold the rule of law, I ask you, Mr. Speaker, to rule that a prima facie case of breach of Privilege has been made out.