QUESTION OF PRIVILEGE (Hansard, 26 July 1956)

§ Mr. E. Fletcher
I desire to raise with you, Mr. Speaker, a question of Privilege, which was referred to at Question Time yesterday by my hon. Friend the Member for Pembroke (Mr. Donnelly) and which you allowed me to defer until today.
The question of Privilege arises out of a communication which I have received from a resident in the Seychelles. During recent weeks I have received a number of communications from both residents in and visitors to the Seychelles, complaining of the maladministration there. Those complaints have had particular reference to the conduct of Mr. M. D. Lyon, the Chief Justice of the Seychelles.
Therefore, acting, I hope, with a due sense of responsibility, I tabled a Question for Answer yesterday by the Secretary of State for the Colonies, asking him what action he has taken regarding the petition sent to him, signed by 50 leading citizens of the Seychelles, pleading that Her Majesty's Government will refrain from appointing Mr. M. D. Lyon for a third term as Chief Justice of the Seychelles."—[OFFICIAL REPORT, 25th July, 1956; Vol. 557, c. 418.] A somewhat similar Question appeared on the Order Paper in the name of my hon. Friend the Member for Rugby (Mr. J. Johnson) and there were also other Questions referring to the Seychelles.
On Monday afternoon, I received a letter from one of my correspondents in the Seychelles, Mr. Mullery, in which he told me that his house had been searched and his correspondence had been taken away from him pursuant to a search warrant signed by Mr. M. D. Lyon, the Chief Justice of the Seychelles. It may or may not be a pure coincidence that that episode occurred at the time, or very shortly after, my Question appeared on the Order Paper.
I will hand you the letter, Mr. Speaker, which I received from Mr. Mullery, which is dated 12th July, but for the convenience of the House perhaps I could be 648 allowed to read the relevant extracts from it. Mr. Mullery says: Dear Sir, Copies of the letter and the typewritten documents enclosed with it, that I sent to you last month, have been seized and removed from my house by the police acting on a search warrant signed by M. D. Lyon…. Captain Michel, assistant superintendent, and Lieut. Ah-Yave, of the Seychelles Police, came to my house in a police van driven by a constable. Captain Michel showed me a search warrant, signed by M. D. Lyon, authorising search and removal 'upon sworn information of contempt of court'. Details were not given of what was alleged to constitute the contempt of court, nor of the specific article or articles to be removed…. They asked me various questions—had I a typewriter, where I kept my papers …&c. They made a search of my house, showing interest in only manuscript and typewritten letters…They had already run rapidly through the documents in my files. When they came across the carbon copies of the typescript I sent you, I told them what these were. They then removed my three files… papers, notes…. It seems to me that here is a case of a deliberate interference by the Chief Justice in the Seychelles with a Member of Parliament, having received a communication from a resident in that island, in trying to bring before this House a matter specifically within the cognisance and jurisdiction of this House.
I pause to observe that, as far as my researches have gone into the laws in force in the Seychelles, there is no authority whatever which justifies a Chief Justice or anybody else issuing a general search warrant on the ground that there has been a contempt of court. As far as I can discover, the law of the Seychelles is similar to that in this country. If there has been a contempt of court, appropriate proceedings can be taken if anything justiciable arises, but it is not in any circumstances a matter which justifies the issue of a general search warrant.
As my hon. Friend the Member for Pembroke pointed out yesterday, I desire to submit that, prima facie, it would look as if the Chief Justice of the Seychelles, because of communications sent to Members of this House calling in question the propriety of his conduct, has not only abused his judicial functions in any respect, but has abused them in such a way as to interfere with the proper discharge by Members of the House of their constitutional obligations.
649 I need only trouble you, Mr. Speaker, with two short quotations from Erskine May about the relevant precedents. The general proposition is stated in page 109 of the Fifteenth Edition, where it is written: 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 cannot find any precise precedent for an offence of this kind. That is hardly surprising, because surely it must be the first time in which a Chief Justice of a Colony administered by the Colonial Office has sought to abuse judicial powers entrusted to him in a way calculated to interfere with Members of this House in the discharge of their constitutional duties. There is, however, a passage in page 131 of Erskine May which, I respectfully suggest, has a bearing on the matter. That passage states: To tamper with a witness in regard to the evidence to be given before either House or any committee of either House or to endeavour, directly or indirectly, to deter or hinder any person from appearing or giving evidence is a breach of privilege. As I read the authorities referred to in the appendix to that paragraph, the references to "a witness" are not limited to witnesses in proceedings actually pending before this House or a Committee, but are capable of being applied to anybody who, as a result of proceedings in this House, might naturally be expected to give relevant evidence about matters to be raised in this House.
The only other comment I would add is this. As you are aware, Mr. Speaker, this House has always been particularly jealous about any interference with its Members by the courts, either of this country or, ever more so, of a colonial country. This House has been particularly jealous also of any interference with its privileges by any holder of any Crown appointment. I submit to you, Mr. Speaker, on these facts that there is a prima facie case of breach of Privilege which justifies the reference of this matter to the Committee of Privileges.

§ Mr. Speaker
The hon. Member for Islington, East (Mr. E. Fletcher) was 650 good enough to inform me yesterday evening of the ground of the submission which he has just made, and I have, therefore, had an opportunity of considering the matter with much more care than I could have done yesterday, when it was first raised. My duty in these cases is procedural. It is not for me to decide whether there has been a breach of Privilege or not: it is for the House. I have to decide whether the hon. Member has made out a prima facie case of breach of Privilege, as would justify my giving his Motion precedence or priority over the Orders of the Day.
For the purpose of my Ruling today I assume that the letter from which the hon. Member has read extracts to us is a true statement of fact, and I also assume that the inference which he made about the correspondence between the dates of the appearance of his Parliamentary Question on the Order Paper and the events complained of was a valid inference. Of course, I do not know these things, but for the purpose of what I am going to say I assume them to be true.
The gist of the hon. Member's complaint, as it seems to me, is that action has been taken against his correspondent in the Seychelles because that gentleman had written prompting the hon. Member for Islington, East to ask a Question in this House. The hon. Member claims that this amounts prima facie to a breach of Privilege by whoever took that action.
On Friday, 18th March, last year, I had to deal with a case similar in principle, which was submitted by Mr. Driberg, who was then, as hon. Members who were Members in the last Parliament will remember, the hon. Member for Maldon. Briefly, the case was that a chaplain to the Forces on Salisbury Plain wrote to the hon. Member giving some details about a cocktail party held in an officers' mess; the hon. Member, Mr. Driberg, raised the matter in the House; whereupon the superior officer of the chaplain intervened, reprimanded the chaplain for taking this step and threatened him with certain consequences if he continued his correspondence with the hon. Member.
There was, in that case, a question of time. It was not submitted at the earliest opportunity. That question does not 651 arise in this case, because it was submitted yesterday, as I rule, at the earliest possible time.
In Mr. Driberg's case, answering points that arose, I made these observations, among others: There is this further point that had there been any question of an attempt to threaten the hon. Member for Maldon with any unpleasant consequences if he fulfilled his duty as a Member of this House in bringing the matter before the House, then the case would have been clear. But it seems to me a novel doctrine to rule on such short consideration"— this was a Friday morning, I may say— that the Privilege of Parliament, as distinct from legal privilege, extends to every letter written by a member of the public to his Member of Parliament. That has never been, so far as I can find out in the time available to me, the doctrine of Privilege of this House."—[OFFICIAL REPORT, 18th March, 1955; Vol. 538, c. 1610.] Later, I said: I would say that hon. Members who raise Questions in this House about their constituents are absolutely privileged. I have never heard it stated that any member of the public who writes to his Member of Parliament is himself covered by Parliamentary Privilege. That, I think, would be a new doctrine, and one which I could not give on a prima facie Ruling."—[OFFICIAL REPORT, 18th March, 1955; Vol. 538, c. 1614.] I then advised the hon. Member to submit this matter for the judgment of the House, because the House is the final judge, by putting down a Motion for the consideration of the House, which the hon. Member did, and the House accepted the Motion, and the matter was referred to the Committee of Privileges.
I have before me a copy of the Report of the Committee of Privileges, and as the matter is of some importance to hon. Members, perhaps the House will permit me to read from it. It said: The Committee of Privileges, to whom was referred the Complaint of the honourable Member for Maldon, regarding the action of the Deputy Assistant Chaplain General, Salisbury Plain District, in threatening the Reverend J. P. Stevenson, one of his subordinate chaplains, with a view to influencing proceedings in Parliament:—Have agreed to the following Report: —

1. Your Committee have investigated the complaint referred to them and have come to the conclusion that no question of privilege or of contempt of this House is involved. The term 'breach of privilege' is often now used as synonymous with 'contempt', and while it is for the House to determine the limits of its jurisdiction, the House acts so 652 far as possible in accordance with precedents in deciding whether or not certain conduct constitutes a breach of privilege or a contempt.

2. Your Committee can find no precedent where an attempt by one individual to influence another individual (not a Member of Parliament) as to the nature or content of the latter's communications with a Member of Parliament has been treated as a breach of privilege or as a contempt of the House."
The Committee went on to mention the importance of maintaining the practice whereby people in the Forces can write freely to their Members of Parliament and said it was a matter for the Ministers concerned.
Therefore, though I had to give the first Ruling on a negative basis, that I could not remember a case, I found that the Committee of Privileges, when it discussed the matter with far more time than I had at my disposal, came to the same conclusion.
Therefore, I must rule that the conduct of a person in influencing a correspondent of a Member of Parliament is not a question of Parliamentary Privilege, and that the case which the hon. Member has narrated to us is one for the responsible Minister.
The hon. Member said there was no law in the Seychelles which justified this search warrant. That, of course, I do not know, but I accept his word for it: but if so, that is a matter for the courts to determine. In the famous case of Wilkes, in the eighteenth century, which was of constitutional importance for this House, it was the courts which decided that a general warrant was illegal—against, perhaps I may say, the wish of a large number of Members of this House at the time. It is a matter for the courts. In so far as this has been a fault of administration, it is a matter about which the House can deal with the Colonial Secretary. I understand that it is to be debated next week.
I am clear on this, that it would be wrong of me, giving a prima facie Ruling today, to extend Parliamentary Privilege to cover the correspondents of hon. Members. If hon. Members consider what might be the result of that, they will see that more evil consequences might flow from that than the incident which the hon. Member has related. So, bound as I am by the findings of the Select Committee of Privileges on what, I think, is exactly the same point, I have to rule that the 653 hon. Member has not made out a case prima facie which would justify me in giving his Motion now precedence over the Orders of the Day. Therefore, I suggest to him. as I did to Mr. Driberg on that occasion, that his proper course is—and I shall not in the least resent it, of course—to put down a Motion on the matter for the consideration of the House.

§ Mr. Bevan
Do I understand you to say, Sir, that you admitted that there was a valid inference that there was a connection between the search warrant and the correspondence of my hon. Friend?

Hon, Members
No.

§ Mr. Speaker
I assume that for the purpose of my Ruling. I was careful to say I did not know whether it was true or not, but that I assumed it.

§ Mr. Bevan
I understand, Mr. Speaker, that your subsequent remarks were based on the assumption that there was a connection between the actual searching of the correspondent's premises and the Question on the Order Paper of the House. I understand you now to say that you consider that the search warrant—the action of the Chief Justice—must, therefore, be considered as an administrative action by the Colonial Secretary and must be debated from that point of view. Therefore, if there is contempt it is the Colonial Secretary who has committed it.
Do we now understand from what you have said, Sir, that an action taken by a Chief Justice, in furtherance of what he considers to be his duty as a judge, in signing a search warrant can be regarded as an administrative action by the Colonial Secretary? Does it not carry the matter to an extent that is almost without precedence, that an action by a member of the judiciary in the discharge of what he considers to be his work and functions as a member of the judiciary can now be regarded by the House of Commons as an administrative act by the Minister himself?

§ Mr. Speaker
I made no such statement. What I said was that the hon. Member for Islington, East has said that his researches led him to believe that the issue of the search warrant was illegal. I said that that was a question of law and not a question for this House, and in so far as there were complaints about 654 administrative actions which followed the issue of the warrant that was a matter on which the Colonial Secretary could be challenged in so far as he was responsible for it.

§ Mr. Bevan
That is the point I am making. [HON. MEMBERS: "Oh."] This is a very serious matter. I am not at the moment raising the legality or illegality of the action of the Chief Justice of the Seychelles in signing a search warrant in respect of what he considered to be contempt of court.
The point that I am raising concerns your Ruling, Sir, that a prima facie case has not been made out of any interference with any member of the public writing to Members of Parliament. If, in fact, the Chief Justice of the Seychelles acted in this way, legally or illegally, it is not in your judgment a judicial act but an administrative act by the Colonial Secretary. If that be the case, we are reaching a point where actions by the judiciary in the discharge of what they may, rightly or wrongly, consider to be their judicial functions can be construed as administrative acts by the Minister concerned.

§ Mr. Speaker
If my language has not been clear, I am sorry for it. All I meant to say was that this action that has been complained of, by the Chief Justice or by officers of the police, whatever else may be wrong with it, was not a breach of the Privilege of this House. I could not agree so, on account of the cases which I have quoted. It was not a breach of the Privilege of the House—that is, in my opinion, because it is for the House to decide a matter like that. Therefore, I could not give the hon. Member for Islington, East the precedence for which he asks.

§ Mr. Swingler
Further to that point of order. Have we in the House no immediate means of protecting citizens against reprisals taken against them on account of complaints made to Members of the House about maladministration? Like my hon. Friend the Member for Islington, East, I and a number of other hon. Members have received correspondence from citizens in the Seychelles alleging gross maladministration and incompetence, with innuendoes of graft and corruption, supported by copies of the Press of the Seychelles which are full of such allegations at the moment, many of 655 them based on the report of the principal auditor on the accounts of the Seychelles. There is a prospect of other actions against other citizens who have communicated with Members of the House. Short of a question of Privilege, have we, as Members, any immediate means of protecting the citizens who have quite legitimately communicated to Members of the House complaints against the Executive in the Seychelles? Have we any means of protecting them against reprisals taken on that account?

§ Mr. Speaker
All I have to say is that what happened in the case of the chaplain was that the Secretary of State for War took some action administratively to correct the matter. It may be that if some injustices have been perpetrated on those who have corresponded with the hon. Member and other hon Members, that can be put right either by legal or administrative action. All that I am saying is that it is not a breach of the Privilege of the House for such things to happen. Other remedies are open to the men. I ask the hon. Member to consider what would happen if every letter written to Members of Parliament were protected by Privilege. It would be a serious departure.

§ Mr. Bevan
We would wish to clear our minds for the debate next week. Are we to understand that it is not, in your judgment, Sir, an intimidation of a potential correspondent with a Member of the House if he is given to understand that if he sends a letter to a Member of the House, making allegations against an Executive anywhere at all, he may be liable to have his house searched? Are we to understand that that is not a deterrent to correspondence with the House of Commons?

§ Mr. Speaker
The right hon. Gentleman is trying to involve me in the merits of this case. It may be, as was suggested by the hon. Member for Islington, East—and the right hon. Gentleman appeared to agree with him—a very bad case, but that has nothing to do with it. That is not for me. Whatever the remedy is, it is not Privilege. That is all I have to say.

Mr. J. T. Price
Further to that point of order. With very great respect, Sir, to the advice which you have given to 656 the House, with regard to recourse to legal action if a citizen of the Seychelles is being unjustly treated. we in the House, as democrats, have always recognised that the ultimate defence of liberty is in the inviolability and independence of the judiciary. But if, in this case, the fountain head of the law is corrupt, how can there be an appeal to the judiciary?

§ Mr. Speaker
Again, it is not a question for me. Hon. Members will have an opportunity of debating the matter next week and of hearing both sides; and there are generally two sides to all questions.

§ Mr. Gaitskell
There is one point in your Ruling, Sir, which, if I may say so with respect, I find rather difficult to follow. You pointed out that it was not a breach of Privilege if a third party interfered with a member of the public who was trying to communicate with a Member of the House. You instanced a case where a member of the Forces was stopped or prevented from doing so, and you told us that in that case our right course was to hold the Secretary of State for War responsible in the House in the ordinary way.
The particular point raised here is an act of the Chief Justice of the Seychelles in issuing a general search warrant. Is the issue of that search warrant an administrative act for which the Colonial Secretary takes responsibility, and for which he is, therefore, answerable to this House, or is it something which the Chief Justice did in his judicial capacity and, therefore, something for which the Colonial Secretary cannot be held responsible?

§ Mr. Speaker
That is a question which I cannot answer, because I do not know the full circumstances of the issue of the warrant. I know only as much as the right hon. Gentleman about that, namely, what I have been told by the hon. Member for Islington, East. I cannot tell in what circumstances the warrant was issued. I presume that if it was issued in a judicial capacity there exists a court of correction whereby a wrongful judicial act could be recalled and quashed if necessary.
If, on the other hand, it is an administrative act by the police, or something of that sort, then it would be a question 657 for the Colonial Secretary to answer. I do not know how the warrant was issued, or whether it was a police matter. A warrant may be issued on the instance of a judge no doubt, for contempt of court or something of that sort. On the other hand, it may be issued at the instance of the police, who lay an information of some sort before a competent court and get a warrant signed, but without knowing the circumstances I cannot possibly answer the right hon. Gentleman's question. The debate will probably clear the matter up.

§ Mr. E. Fletcher
I thank you for your Ruling, Sir, which naturally I accept, but may I take it that there is nothing which you have said to the House that debars us in any way, in the debate next week, from criticising the activities of the Chief Justice, both in relation to this matter and to his general conduct in the Seychelles, which has been the subject of so much complaint?

§ Mr. Speaker
With due regard to the language that is Parliamentary and proper in this House, I do not see that there is any bar in advance that I can suggest to hon. Members. I may not be right about this, and I should like some assistance. Colonial judges are sometimes in two different categories, as I understand. Some are appointed by Her Majesty, in which case the normal rule is that a Motion is put down if hon. Members seek to attack them. Others are merely appointed by the right hon. Gentleman the Secretary of State for the Colonies. I do not know into which category this gentleman falls.

§ Mr. Lennox-Boyd
Perhaps, Mr. Speaker, I could assist you and the House in this case. The appointment of the Chief Justice is made by Her Majesty's Government, I understand. I have understood, but I may be wrong, that, following the practice of this House, no charges can be made against a number of people, including judges of the High Court, unless a substantive Motion is put down; and that by a statement made by Mr. Speaker, in, I think. 1912, it was held that this also extended to judges in the phrase "in other parts of the Empire".
Yesterday, I was not sure whether that was so. Had I been certain of it, then I would have ventured to intervene in the 658 course of the discussion, suggesting that perhaps the hon. Gentleman the Member for Islington, East (Mr. E. Fletcher) was not entitled to make those charges without having put down a substantive Motion. I still must confess that I am a little uncertain of the position, and I should be glad if my doubts in that way could also be put at rest.

§ Mr. Gaitskell
May I ask the Colonial Secretary one question, Sir? Could the right hon. Gentleman tell us whether the issue of a general search warrant would be made by the Chief Justice in his judicial capacity, or administratively?

§ Mr. Lennox-Boyd
That is the first time that this particular question has been put. I will communicate immediately with the Governor of the Seychelles on that point and, I hope, be in a position to answer any question of fact that any hon. or right hon. Gentleman may ask during the discussion on Wednesday. I understand that the search of this gentleman's house was made on a warrant issued on the application of the police without Government direction but, as I say, I will get all the details I can in order to be able to enlighten the House.

§ Mr. C. Pannell
On a point of order, Mr. Speaker. If the point here is that the judge was appointed by Her Majesty, is it not time that the Colonial Secretary withdrew the remark he made yesterday about this official being appointed by the Labour Government.

Hon. Members
Hear, hear.

§ Mr. Speaker
Order, order. If the House will bear with me for a moment, let us not anticipate the debate. I must make inquiries, first, as to the precise status of this gentleman. I do not know what it is. I do not know the terms of his appointment, whether he holds the appointment as a High Court judge, or whether he can be removed by the Governor. I must find that out. I shall be able better to advise the House when I know the facts. I do not like to advise without knowing the facts.

§ Mr. Bevan
It is necessary, Mr. Speaker, that we should know the facts in order to be guided as to how we are to have the debate next week. If it is a Crown appointment, and we are, in fact, considering a judicial decision—which is a 659 point I made earlier—it has a bearing on your statement that it is an administrative act by the Minister. If it is a Crown appointment, and if this act by the Chief Justice was done in the course of his duty as Chief Justice, then, obviously, it is not an administrative act by the Minister, in which case to raise it we must put a Motion on the Order Paper; a Motion which, in that case, would embrace both the Chief Justice and the Minister, because there are other questions to be raised apart from the judge.
It is of great importance to us to know whether, in your Ruling, Sir, in the separation of the administrative responsibilities of the Minister for what happened, and the judicial responsibilities of the judge, there was a valid distinction at all. If there was no valid distinction there, we are faced with allegations of improper conduct by a judge and not necessarily in this respect, and only in this respect, improper conduct by the Minister.

§ Mr. Speaker
We must clear up that matter. I must say that how I know about judges is that when an hon. Member has put down Questions about the conduct of a judge, they are submitted to the Table, and they are not accepted if they are questions about the conduct 660 of a judge that ought to be raised in a Motion. The fact that this one was accepted by the Table—I have no doubt after consultation with the proper people—led me to believe that this was not an appointment of the kind that needs a Motion; but we will find out.

§ Mr. Lennox-Boyd
On your last observation, Sir, may I say that I think the terms in which the Question was asked yesterday could not have been held to be in any way a reflection on the Chief Justice, and so no doubt properly passed the Table as being couched in language which was appropriate, even though it referred to a Chief Justice. It was a supplementary question that introduced quite different thoughts into the discussion, and it was on that question that I was anxious for elucidation.