PARLIAMENTARY PRIVILEGE ACT, 1770

HC Deb 04 December 1957 vol 579 cc391-488

3.55 p.m.

The Secretary of State for the Home Department and Lord Privy Seal (Mr. R. A. Butler) rose—

Mr. Herbert Morrison (Lewisham, South)

On a point of order. Mr. Speaker. The Motion which the Secretary of State is about to move is in quite limited terms and is probably so limited and so legal in character that it might leave a large number of hon. Members in some difficulty about discussing it at all. Is it not difficult to keep this Motion from the very wide implications of the Report of the Committee of Privileges? The point I want to put to you, Sir, is whether it would not be convenient if observations of hon. Members could be somewhat wider in scope and cover certain aspects of the Report beyond the strict terms of the Motion.

Mr. Speaker

The Motion itself, I would point out, is definite enough. It is a Motion for an Address to Her Majesty for the services and assistance of the Judicial Committee of the Privy Council to decide a question of law then for that advice to be communicated to the House, and for the House to consider in the light of that opinion. That is the way the matter stands on the Order Paper, and by that I am bound. Anything that is relevant to that will be in order.

Mr. Kenneth Pickthorn (Carlton)

With respect, Mr. Speaker. I am not sure about this, but is the use of the word "decide" in this connection correct? It surely is a flatter of some importance whether any advice given by the Privy Council would or would not be decisive. Secondly, Mr. Speaker, may I ask you this? I am hoping not to make a lone speech today, you will be glad to know, but is there, in fact, any consideration relevant to this Report which would not he relevant to the question whether or not the House ought to take the very unusual course of referring to the Privy Council a matter arising out of the Report? The first question is: is the word "decide" accurate in this connection?

Mr. Speaker

I do not know which word the hon. Member refers to.

Mr. Pickthorn

It is the word "decide".

Mr. Speaker

Did I say "decide"? I thought I said "advise".

Mr. Pickthorn

You said "decide" Mr. Speaker.

Mr. Speaker

It should have been "advise".

Mr. Sydney Silverman (Nelson and Colne)

Further to the point of order raised by my right hon. Friend the Member for Lewisham, South (Mr. H. Morrison). While I appreciate that it is impossible to ask you to give Rulings on hypothetical arguments that have not yet been used, Sir, nevertheless the Motion asks us to do something which was one of three recommendations which the Committee of Privileges included in its Report. Some of us may well be inclined to argue that while we would have been prepared to vote for a Motion of this kind, on its own merits or not, it is impossible to approach it without having in mind the other recommendations which the Committee made.

The point that I am putting is whether it would be regarded as out of order to say, for instance, that one was not prepared to vote for this Motion in the circumstances in which the Motion comet before the House, namely, having a hearing upon a particular inquiry and other recommendations that were made.

Mr. Speaker

As the hon. Member has pointed out, it is not easy to give decisions in advance on these matters. But, taking the natural meaning of the words that the hon. Member for Nelson and Colne (Mr. S. Silverman) has used, I would say that it is perfectly in order.

Mr. F. Blackburn (Stalybridge and Hyde)

Further to that point of order. Mr. Speaker. I think you would agree that it would be impossible to oppose the Motion without referring to other aspects of the Report, because hon. Members' arguments would be based on the other section of the Report.

Mr. Speaker

That is why I said that anything relevant to the Motion before the House would be in order.

Mr. G. R. Mitchison (Kettering)

Further to that point of order, Mr. Speaker. The Motion before the House does not mention any Report. The Motion has not yet been moved and it is in completely general terms. It does not refer to any particular case. In those circumstances, while no doubt the case could be taken as an instance, any one case would appear to be as relevant as any other.

Mr. Speaker

I have no doubt that the right hon. Gentleman who rose to move the Motion will explain to the House its necessity and how it arises. That, I imagine, would be the normal procedure.

Mr. R. A. Butler

I will now endeavour to explain the Motion, Mr. Speaker.

I beg to move, That an humble Address be presented to Her Majesty praying that Her Majesty will refer to the Judicial Committee of the Privy Council for hearing and consideration the question of law, whether the House would be acting contrary to the Parliamentary Privilege Act, 1770, if it treated the issue of a writ against a Member of Parliament in respect of a speech or proceeding by him in Parliament as a breach of its Privileges, in order that the said Judicial Committee may, after hearing argument on both sides (if necessary), advise Her Majesty thereon; and further praying that Her Majesty, upon receiving the advice of the said Judicial Committee, will be pleased to communicate such advice to this House, in order that this House may take such action as seems to it proper in the circumstances. The House will remember that on 8th April the case of the right hon. Member for Vauxhall (Mr. G. R. Strauss) was remitted to the Committee of Privileges. If hon. Members will turn to the Report, they will see at the bottom of page xix and the top of page xx that the Committee divided: Ayes 6, Noes 3, on the Motion: That the opinion of the Judicial Committee of the Privy Council should he sought on the question referred to on the Order Paper. If hon. Members look back to the earlier part of the Report, they will find in the conclusions of the comparatively brief Report made by the Committee which ends in page viii, that conclusion 20 (c) of the Select Committee reads: The opinion of the Judicial Committee of the Privy Council should be sought on the question again referred to on the Order Paper.

That is one of the conclusions at the end of the Report of the Select Committee. I will not go into too much detail, because I, too, do not wish to be long. I propose to confine my remarks solely to the issue of putting to the Judicial Committee of the Privy Council a matter of law upon which there is dubiety or, in simple English, doubt.

I ought to give the background so that hon. Members will understand what they will be voting on. First, the Government consider, in looking at this matter, and I consider, in my almost separate capacity as Leader of the House, that there certainly should be an opportunity for a wider debate than is possible upon the Motion when we have received this Report of the Judicial Committee of the Privy Council. That is borne out by the opinion of the Committee of Privileges when it used these words: We recommend that when the opinion of the Judicial Committee of the Privy Council has been received the matter should again he referred to the Committee of Privileges. I will go further and say that if the House should wish to discuss this matter fully before sending it back to the Committee of Privileges, according to the wishes of the Committee expressed in the Report, the House has a right to do so and has a right not to accept the advice of the Committee of Privileges in sending it back to that Committee. The House is absolutely free today either to accept or reject this Motion to send a point of law to the Judicial Committee of the Privy Council. It is also at liberty, and we will give it the opportunity, to discuss this matter when we have the Report of the Judicial Committee. In my humble opinion, subject to what you say from the Chair. Mr. Speaker, we are dealing with a comparatively restricted point today, although it is a point of very great importance.

Mr. R. T. Paget (Northampton)

Is the right hon. Gentleman saying that if we accept the Motion and receive the advice of the Judicial Committee of the Privy Council, that advice will be binding on us? [HON. MEMBERS: "No."] If it is not binding on us, why cannot the advice be obtained simply by asking judges to give evidence before the Committee, just as any other expert question is settled?

Mr. Butler

That is a matter of opinion, but I have been advised—and it is the view of the majority of the Committee of Privileges on an intricate matter, which is one of the most difficult that has arisen in the last three hundred years of parliamentary procedure—that it is the right course to ask for the opinion of the Committee of the Privy Council. I am moving this Motion, according to what I believe is the correct procedure, in order to give the House the opportunity of saying whether or not it wants that course to be followed.

The answer to the specific question of the hon. and learned Member for Northampton (Mr. Paget) is to refer to the terms of the Motion, which, by implication, answer his question. If he will look at the Motion he will see that it says, at the end: and further praying that Her Majesty, upon receiving the advice of the said Judicial Committee, will be pleased to communicate such advice to this House, in order that this House may take such action as seems to it proper in the circumstances". I would like to endorse that by saying, that when we receive the advice of the Judicial Committee it will be up to us to take what action we consider necessary.

Mr. S. Silverman

I apologise to the right hon. Gentleman for interrupting him, but may I put to him a hypothetical question? Supposing that the House passes the Motion and it goes to the Judicial Committee, and that Committee decides that to take the action described in the Motion would be in conflict with the Act of 1770, would not the House be precluded from doing anything whatever, on the old-established principle that we cannot at this time extend our privileges? Would not we, to that extent, be bound by the decision?

Mr. Butler

I think that we should wait and see what the result of the appeal to the Judicial Committee will be on this matter. I take the view that the House is always master of its own privileges. I have always taken that view, and I take it now as Leader of the House. It is important that when the House decides upon its privileges, and the way it should exercise them, it should be certain about the state of Statute Law which affects our privileges. It was during the discussion of this case that the Act of 1770 was brought to our attention, rather to the surprise of some of us.

As there is doubt about the terms of the Act, as I shall explain shortly, it is surely valuable to the House, in making up its own mind about the exercise of its privileges, that it should be aware of the interpretation of the Statute as given by the highest legal body in the land, namely, the Judicial Committee of the Privy Council. Therefore, I do not think that in sending this matter to the Privy Council the House can regard itself as being in any way wasting its time. It will obtain an up-to-date legal opinion as given by the Judicial Committee on what exactly the Act of 1770 means.

Before I describe the position regarding this Act and why we have to send this matter to the Privy Council, I want to make two observations. First, I would not like to prejudge the issue before it goes to the Judicial Committee. Therefore, I do not propose to come down on one side or the other. The matter is to go on a point of law to the Judicial Committee. Secondly, I presided over the Committee of Privileges for about nine months. We had a very difficult and arduous time in reaching these conclusions. I have been acting as the impartial Chairman of the Committee, which is according to the tradition of the Committee of Privileges.

I should like to reserve my position regarding anything that may happen in the future. I think that is legitimate because I have to exercise, not only in my position as Leader of the House, but also in so far as I am Chairman of the Committee of Privileges, a certain degree of independence in seeing that the questions are fairly put. I hope that hon. Members who were members of this Committee will feel that the questions were fairly put, and that the House will feel that it has before it the evidence, the details and the whole of our proceedings, so as to see how we reached these conclusions.

The only other general observation I have to make is that hon. Members must feel themselves at liberty to vote on this matter as Members of the House of Commons. This is a House of Commons matter and it should be treated as a House of Commons matter. It is natural that I should desire to propose that the advice of the Committee of Privileges should be taken, and I should like, with all the authority at my command, to press this Motion upon the House and to ask hon. Members to support it.

I now want briefly to explain the background—and I shall keep my history to the minimum. If people want an essay in history I would ask them to read the report of the right hon. and learned Member for Montgomery (Mr. C. Davies), which is very learned and which has many great merits in it. I should advise them also to obtain all the other information they can upon the background of this matter before we come to our next debate, when we have received the Report of the Judicial Committee.

Until the beginning of the eighteenth century Members of Parliament and their servants enjoyed immunity from being sued in civil action while Parliament was sitting, and for 40 days before and after the Session. That was the position. After the Revolution, when the intervals between the Sessions of Parliament became short, this privilege became a cause of hardship to suitors—not to Members, but to suitors. I may say that I am not referring to the question of love, but to civil actions.

Therefore, in 1701, 1703 and 1738 Acts were passed which restricted the privilege of hon. Members. These were followed, as we discovered in our researches, by the Act of 1770, which recites that the several Laws heretofore made for restraining the Privilege of Parliament, with respect to Actions or Suits…are insufficient to obviate he Inconveniences arising from a Delay of Suits by reason of Privilege of Parliament; whereby the Parties often lose the Benefit of several Terms. Section 1 of the Act states that any Person or Persons shall and may, at any Time, commence and prosecute any Action or Suit in any Court of Record, or Court of Equity, or of Admiralty, and in all Causes Matrimonial and Testamentary, in any Court having Cognisance of Causes Matrimonial and Testamentary, against any Peer or Lord of Parliament of Great Britain, or against any of the Knights, Citizens and Burgesses, and the Commissioners for Shires and Burghs of the House of Commons of Great Britain for the Time being, or against their or any of their mental or any other Servants, or any other Person entitled to the Privilege of Parliament of Great Britain; and no such Action, Suit, or any other Process or Proceeding thereupon, shall at any Time be impeached, stayed, or delayed, by or under Colour or Pretence of any Privilege of Parliament. To make clear why there was doubt in the minds of the Committee of Privileges, I will now shortly sum up the two rival points of view.

There are differing opinions as to the proper interpretation to be placed upon this Section and upon the Act in general. On the one hand, it is said that the effect of the Act is to permit the institution of prosecutions and actions against Members of Parliament irrespective of the subject matter of such actions, and that it would be contrary to the Act, which provides that no such action shall be impeached by or under colour of any Privilege of Parliament, for the House to treat the institution of such an action as a breach of Privilege. That is one view—and a very serious view.

Mr. James Callaghan (Cardiff, South-East)

I am sorry to interrupt the Lord Privy Seal, but some of us are anxious about this matter and want to be clear about it before we vote. I want to take up the point raised by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman). Let us suppose that the Judicial Committee upholds this view. Is it then the view of the Lord Privy Seal that the House would be entitled to put the matter right if it thought fit by making letters from Members and Ministers privileged in future?

Mr. Glenvil Hall (Colne Valley)

By Act of Parliament.

Mr. Butler

We want, first, to get the answer of the Privy Council upon this point of law, namely, whether a suit can be impeached. That is the point about the Act of 1770. We also have to consider, at the same time, the rest of the conclusions of the Committee of Privileges on the subject raised by the right hon. Member for Vauxhall, which is a separate issue and which is affected by the attitude taken by the Judicial Committee on the subject whether it is possible for a suitor to sue a Member of Parliament without a question of a breach of Privilege arising.

We must look at the whole picture when we have our main debate on the report of the Privy Council itself.

Mr. Glenvil Hall

Some hon. Members will be voting in the dark unless they know in advance whether, by Act of Parliament, the present Privilege which we all thought we enjoyed is continued if the Judicial Committee says that we have not that Privilege under the Act of 1770.

Mr. Butler

All I am claiming is that the House of Commons must know what the position on the Statute law is in regard to suits against Members of Parliament. Until we know that we cannot decide what action we should take. There may be a variety of actions we might take, as a House, and if the House felt inclined to remit this to the Committee of Privileges again we should give advice on the best action to take. But I maintain—and I think that this is a view that any Leader of the House would take—that until we have the interpretation of Statute law it is impossible for the House to define its privileges. As there is dubiety about this aspect of Statute law, I think that we should get a clear interpretation of what it means.

It is, for example, quite possible even for an amateur who is not a lawyer to understand the Bill of Rights of 1689 and the Declaration of Rights of 1688. We understand what they mean, but there is dubiety about this Act of 1770, and that is why we want to clear it up before making up our minds.

I now want to put the other side of the picture in regard to the 1770 Act. It is contended, on the other hand, that the Act was not intended—and on a proper interpretation is not effective—to prevent the House treating as a breach of Privilege the institution or prosecution of an action against a Member of Parliament in respect of a speech or proceeding by him in Parliament. Those who share that point of view say that it is unnecessary and, indeed, wrong, to construe the 1770 Act in a manner which would involve a drastic restriction of the privilege of freedom of speech and debate or proceedings in Parliament, as declared in the Bill of Rights, to which I made reference just now, and of the jealously guarded right of the House to exercise exclusive control over its own proceedings. That is the alternative view.

As there is this doubt about the law I think it is right for the matter to be sent to the highest judicial body we can find for the purpose of getting an interpretation of the Statute law involved.

Mr. Paget

I want to follow what the right hon. Gentleman is saying. He says that we are masters of our Privilege. In that case we are the highest judicial authority upon this issue. We always have been on questions of Privilege. That is why it seems so odd to refer the matter from a superior court to an inferior one.

Mr. Butler

It is not quite so easy as that. When we examine the relationship of Parliament, with its Privilege, to the courts, it is vital—as anyone who has had the honour of going into this matter in great detail must realise—to understand how the courts would themselves construe an Act.

That there is doubt about it is shown by the two points of view. It is important, before Parliament decides what action or attitude it will take, that Members should be absolutely clear and that we should know how the matter will be construed in the courts. That we can obtain only by referring the matter to the Judicial Committee of the Privy Council.

Mr. Eric Fletcher (Islington, East)

The Lord Privy Seal says that there is doubt about the matter. Will he be good enough to confirm that for the last 120 years or so there has been no doubt whatever and that it has been recognised almost universally that anything said in Parliament is not cognisable by any court in the land?

Mr. Butler

That, again, is an oversimplification. If we go into the history of the Privilege of Parliament, ever since the period of the Revolution, we find that there have been occasions when there have been clashes between Parliament and the courts. It is important, in the interests of the body politic, so far as we can and while preserving our undoubted rights, to try to see that we are certain what a Statute means. We are not certain what this Statute means, as is shown the fact that when the matter was referred to a body appointed to examine it, the Committee of Privileges, we decided by such a majority, not on party, but on House of Commons lines, that we thought there was doubt which it was worth clearing up. That is the case I am putting to the House.

Mr. Paget

I thank the right hon. Gentlemen for giving way. He has given way on several occasions and I am most grateful to him, but on this sort of issue it is better to get clarification. Is he suggesting that, if we got this opinion on an abstract question from the Judicial Committee, that would be binding on the courts when a specific issue was raised by an individual citizen? I can assure him that that would not be the case.

Mr. Butler

As the hon. and learned Member is so sure of his opinion, I will not try to disabuse him.

Mr. G. B. H. Currie (Down, North)

Does my right hon. Friend agree that a distinction should be drawn in the advice given to the House between a matter which arose out of the ambit of the exercise by a Member of Parliament of his Parliamentary duty and a matter which arose as between citizens of this country outside the ambit of Parliamentary duty?

Mr. Butler

That was one of the doubts about the interpretation of the Act of 1770. Putting it in a simpler form, the distinction arose between those who thought that the Act of 1770 was passed to enable Members of Parliament to be treated as ordinary citizens outside their Parliamentary duty—which we all agree is common sense—and those who did not. Here, in answer to certain statements in the Press, I say that it is not the desire of hon. Members to be treated exceptionally outside their Parliamentary duties.

There is a much more serious question which the House will have to decide on the next occasion, that is, when we get this point of law cleared up. It is whether we should be protected when honourably pursuing our own activities as Members of Parliament, dependent on proceedings in Parliament. That does not arise on this issue of a reference of the point of law to the Judicial Committee.

I want to refer to another ambiguity which arose in the course of discussion. That was the question of Resolutions of the House as opposed to Statute Law. In 1810, a Select Committee was appointed to consider what course should be pursued with regard to the actions brought by Sir Francis Burdett against a predecessor of yours, Mr. Speaker—I tremble to say it—and the Serjeant at Arms. This is a notorious case.

After considering the provisions of the Act of 1770 and the relevant Acts passed in 1701, 1703 and 1738, the Committee concluded, but without elaborating its reasons, that the Acts merely apply to proceedings against members in respect of their debts and actions as individuals, and not in respect of their conduct as members of parliament; and therefore they do not in any way abridge the ancient law and privilege of parliament so far as they respect the freedom and conduct of members of parliament as such. I may well be asked by the hon. Member for Nelson and Colne (Mr. S. Silverman) why that does not settle it. It is because it appears that the House has never adopted that Report. If I am wrong, I am open to challenge, but that is the opinion given by all the authorities whom I consulted before the debate. While we may hope that that weighty Committee, in coming to its opinion, may have cleared up the position from the point of view of the House of Commons, it has not cleared up the dubiety in respect of Section 1 of the Act of 1770. I mention that to remind hon. Members that if things were a little clearer we should not have had to trouble the House this afternoon.

Mr. S. Silverman

Is it not true that the opinion to which that Committee came, even though never formally adopted by the House of Commons, has never been challenged from that day until questioned by the Attorney-General in the course of these proceedings?

Mr. Butler

I could not say for certain whether it had never been challenged, but I can say that a specific challenge was made in the manner suggested by the hon. Member.

That is as far as I can go if I am not to prejudge the situation, but I want to remind hon. Members, so that they may make up their minds whether they want to refer this to the Privy Council, that there have been only two matters referred to the Privy Council on more or less the same basis as this, and they were not questions of Privilege. They were matters regarding the composition of the House and the qualification or disqualification from membership of the House. I thought that I ought to make that clear, because it is my business to put the case and then to ask the decision of the House, while recommending that we get this point cleared up.

I remind the House that the first case was in 1931, when the House presented an Address praying that certain transactions which had taken place between Samuel Montagu and Company, in which firm Sir Stuart Samuel, M.P., was a partner, and the Secretary of State for India in Council, as reported by a Select Committee, which had been appointed to consider whether Sir Samuel had vacated his seat in consequence of those transactions, disabled Sir Samuel from sitting and voting in the House. That was put to the Judicial Committee.

The second occasion was in 1950, when the House voted an Address praying that the question whether the provisions of the House of Commons (Clergy Disqualification) Act, 1801, disqualified Mr. MacManaway from sitting and voting in the House might be referred to the Judicial Committee of the Privy Council.

As we are all being learned, perhaps may use Latin and say that those cases were not in pari materia, or on the same level as this case. In making up their minds on this case, hon. Members will be deciding on something very important for the future Privileges of the House.

I have attempted to put both sides of the case and to state what the Committee of Privileges decided, by a majority of six to three, should be done. Hon. Members have the whole of the proceedings before them and can see how that decision was reached. I maintain that it would be wiser not to make up our minds on the specific case, or to attempt to define the present position, until we are absolutely clear how lawyers today would read the Statute of 1770.

Mr. Frank Bowles (Nuneaton)

The Lord Privy Seal will remember that in the MacManaway case Mr. Geoffrey Bing appeared for Mr. MacManaway's point of view and the Attorney-General for the opposite point of view. In this case, no doubt the Attorney-General will appear—or might appear. Has the Lord Privy Seal thought of an equally eminent counsel to appear for the point of view of the other side?

Mr. Butler

Yes, Sir. I do not think that I am abusing a confidence when I say that I was approached by the right hon. Member for South Shields (Mr. Ede), who has taken a great interest in this matter. I sent him a message this morning to say that I was informed that it would be for the Treasury Solicitor to appoint counsel. I now understand that the matter derives from the Attorney-General and that my right hon. and learned Friend—as I have ascertained this morning—will take care to see that a suitable person, agreeable to the Judicial Committee and to hon. Members who take an alternative view and of a status similar to the Attorney-General's, shall state the case on the other side.

The Attorney-General has, on the one hand, duties as a member of the Government, and, on the other, duties which are legal duties. He has given me his personal assurance that it is his intention that a person of status similar to his, or, perhaps we should say, even greater than himself, shall be present to put the case upon the other side; and that is an assurance from the Attorney-General, which, I know, will be carried out, and I hope it will be satisfactory to hon. Members. I have also been informed by my right hon. and learned Friend that it will he his intention to put the case in which he believes before the Judicial Committee himself.

Mr. S. Silverman

Has the right hon. Gentleman considered the fact that the Attorney-General is himself a member of the Select Committee of Privileges and took part in all these discussions? In these circumstances, is it really proper that he should appear before the Judicial Committee and advance before the Judicial Committee a view which was contrary to the view ultimately arrived at by the Committee of Privileges?

Mr. Butler

I am not quite sure that the latter part of the hon. Member's statement is quite correct, that it was a view contrary, because there was a majority of the Select Committee in favour of referring the question to the Judicial Committee. I do not think it at all improper for the Attorney-General to put the case on the one side provided that the case is put equally strongly on the other side. I think it is essential that it should be so put. I will consult my right hon. and learned Friend and see whether there is any impropriety, but I shall mention to him that my initial reaction is that there is no such impropriety.

4.33 p.m.

Mr. Ede (South Shields)

In many ways this is a day of great humiliation for the House. For the first time in its long history it is asserting that it is not sure what its privileges are, and the Lord Privy Seal will have the distinction of being the first person to move that the House collectively should seek a view outside the House as to what exactly its privileges are.

I do not propose to discuss the case of my right hon. Friend the Member for Vauxhall (Mr. G. R. Strauss), because this is a general issue which might have arisen under the same Attorney-General at any time on any other case where a Member was threatened with the issue of a writ. Therefore, I think it is better not to introduce the case which my right hon. Friend submitted to Mr. Speaker, who, at any rate, is a lawyer of great distinction himself and who found that there was a prima facie case of a breach of Privilege.

That was on 8th April. I hope that the House will note from the Fifth Report of the Committee of Privileges that it was not until the eighth meeting of the Committee that we heard my right hon. Friend or saw the documents about which complaint was made. Such a delay is unparalleled, I believe, in the history of the Committee of Privileges.

I am not anxious to say anything which would be contrary to the rules of the Committee, but the right hon. Gentleman said that in the Committee we occupied a lot of our time in researches. Of course, when the Committee reports that it deliberated I suppose it may be thought that we were undertaking researches, but as soon as the Committee met the Attorney-General, without having given any consideration to the specific case which was submitted to us, submitted a document in which he said that there was no need for the Committee to consider the matter at all because the Act of 1770 made it quite clear that it was not a breach of Privilege to serve a writ on a Member. It is true that some of the arguments he advanced in favour of that course described in the first paper vanished with it amid some of the later papers which the Committee received, but his draft report was rejected by the Committee by eight votes to one.

Mr. S. Silverman

The one being himself.

Mr. Ede

I voted for my opinion. I expected the right hon. and learned Gentleman to vote for his. That was his opinion, and he had a perfect right to vote in favour of it, even though all the other members of the Committee disagreed with him. I have been in a minority of one too often—

Mr. S. Silverman

So have I.

Mr. Ede

I am sorry for my hon. Friend. Sometimes I have had to come along to make it two.

I think the Lord Privy Seal will agree with me that that is' a summary of what our proceedings were.

This House in its long history has had to protect its privileges against great monarchs and has even had to protect itself against Attorney-Generals. Take the case of the attempted arrest of the five Members. That is usually dealt with as though one morning unexpectedly Charles I strode into the House and asked the loan of Mr. Speaker's Chair. But the day before the Attorney-General of that day, one Sir Edward Herbert, on the instructions of His Majesty King Charles I, went to the Lords to impeach them for treason, and the Lords, being a rather different body in those days from what it is in these, decided to refer it to a committee, and the next day the King came to get the five Members from the House. What happened then was owing to the resource of Mr. Speaker of the day, although he is alluded to by some of the historians as not a very courageous man. The answer given to the King on that demand was an answer of the House itself, "whose servant," Mr. Speaker Lenthall said, "I am." And when the matter had been finally settled after the return of the five Members to the City, the House of Commons took up the case of the Attorney-General and sent him to the Tower for fourteen days.

Let us be quite certain that this question of Privilege if taken outside the House means the end of Parliamentary democracy as we know it. I accept the interpretation of the Act of 1770 given by the right hon. and learned Member for Montgomery (Mr. C. Davies). I think that the later paragraphs of his draft report which were deleted from the Report, when we were considering it, by a majority, amply deal with the contention that was quite fairly put forward by the right hon. Gentleman the Leader of the House that that Act deals with those wrongful acts which Members of Parliament may do in their private capacities outside this House. It does not protect, and we should not ask it to protect, the man who does not want to pay his tailor's bill. It does not protect the man who, being left the trustee of an estate, wrongfully uses that position to the detriment of the beneficiaries of the trust.

When, after the Revolution of 1688, Parliament met, the Members were people who had an experience of Parliamentary life very different from that which we enjoy. They were living within three or four years of a time of Members of the House being heavily fined for their actions in Parliament, under litigation commenced by James II. And the Bill of Rights is entitled An Act declaring the rights and liberties of the subject and settling the succession of the Crown. Among the enormities alleged in the Bill of Rights against James II was that By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parlyament and by divers other arbitrary and illegal courses… The Bill of Rights, before accepting William and Mary as the joint Sovereigns, then enacts that these proceedings are illegal, and it says that William, the Prince of Orange, had agreed with this view. It follows that up by declaring William and Mary to be the Sovereigns of the country.

The experience of the House of the attitude of the Crown caused the House to adopt the line That the freedom of speech and debates or proceedings in Parlyament ought not to be Impeached or questioned in any court or place out of Parlyament. Those are the words of the Bill of Rights, and they represent the bargain made by the Convention of Parliament of 1688–89 with the Crown, on the conditions of which the Crown was settled on William and Mary.

The right hon. Gentleman the Leader of the House alluded to the fact that the Committee of 1810 did not have its Report either confirmed or rejected by the House. It was not considered, but, after all, the Members of the House who constituted that Committee were a very formidable group of lawyers. Their names are set out on page xxvii of the Fifth Report from the Committee of Privileges. The offices which they held are also enumerated. They were: Sir William Grant who was Master of the Rolls; Sir Vicary Gibbs, then Attorney-General and afterwards Lord Chief Baron and Lord Chief Justice of Common Pleas; Sir Thomas Plummer, the Solicitor-General; Mr. Campbell-Colquhoun the Lord Advocate, and also Mr. Spencer Perceval, who had been Attorney-General was then the Chancellor of the Exchequer and later became Prime Minister. They did not have the benefit of the advice of the present Attorney-General, but from that day to this, so far as I can discover, no one has ever questioned their decision.

They were living only forty years after the passing of the Parliamentary Privilege Act, 1770. The circumstances in the minds of Parliament in enacting the Act of 1770 must have been known to them, just as we today have some knowledge, although think there is only one hon. Member remaining who was a Member in 1917, of what happened in 1917.

I believe that if we were to pass this Motion today we should be destroying the fundamental principle on which our security rests. I believe that our experience of the past and what we have seen happen in other countries in recent years make it a reprehensible thing to neglect the safeguard that was given us by the Bill of Rights in 1688. This matter was very nearly considered—and the considerations were very largely parallel with those which we are discussing today—in the Select Committee on the Official Secrets Acts which reported in 1939 and of which you, Mr. Deputy-Speaker and the hon. Member for Carlton (Mr. Pickthorn) were members.

I know that there are some people who hanker after a precise and exact definition of Parliamentary privilege. To arrive at it would be such a feast for lawyers that I can say only that I view it with great terror. It was said in The Times this morning that this debate would be a "paradise for lawyers." As I have never recognised the company of lawyers as being one of the entrances into paradise, I thought that I had better speak in the debate before any such atmosphere was destroyed. I hope the House will allow me to read two of the recommendations from the Report of the Select Committee on the Official Secrets Acts, paragraphs 22 and 23: Your Committee think it would be inadvisable to attempt by legislation or otherwise to define with precision the extent of the immunity from prosecutions under the Official Secrets Acts to which members of parliament are or ought to be entitled. It would be extremely difficult, if not impossible, to draw a line between acts which are or ought to be permissible and acts which are or ought to be criminal. The privileges of parliament, like many other institutions of the British constitution, are indefinite in their nature and stated in general and sometimes vague terms. The elasticity thus secured has made it possible to apply existing privileges in new circumstances from time to time. Any attempt to translate them into precise rules must deprive them of the very quality which renders them adaptable to new and varying conditions, and new or unusual combinations of circumstances, and indeed, might have the effect of restricting rather than safeguarding members' privileges, since it would imply that, save in the circumstances specified, a member could be prosecuted without any infringement of the privileges of the House. 'The dignity and independence of the two Houses,' says Sir William Blackstone with great force, are in great measure preserved by keeping their privileges indefinite. If all the privileges of parliament were set down and ascertained, and no privilege to be allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harass any refractory member and violate the freedom of parliament.' Your Committee would emphasise a point mentioned in the Report which they made to the House in the last session of parliament, namely, that the privilege of freedom of speech enjoyed by members of parliament is in truth the privilege of their constituents. It is secured to members not for their personal benefit, but to enable them to discharge the functions of their office without fear of prosecutions civil or criminal. The Commons in their famous protestation of 1621"— which, after all, is regarded as so important in our history that we keep the journal in which it was inscribed and from which it was torn in the Noe Lobby so that hon. Members can show it to constituents when they are conducting them round the Palace of Westminster— declared the privileges of Parliament to be the birthright and inheritance of the subject. There are, no doubt, dangers even in the limited immunity from prosecution under the Official Secrets Acts secured to members by parliamentary privilege. But they are dangers which must be run if members are to continue to exercise their traditional right and duty of criticising the Executive. 'Parliaments without parliamentary liberties,' said Pymm, are but a fair and plausible way into bondage,' and it remains as true today as it was in 1610 that freedom of debate being once foreclosed, the essence of the liberty of parliament is withal dissolved.'

Mr. J. A. Leavey (Heywood and Royton)

I am interested in the question, but is the right hon. Gentleman suggesting, therefore, that in this case and in these circumstances the more we blur the edges of this the more we ensure the protection about which we are so deeply concerned? Is not there a marked distinction here between the danger that hon. Members of this House may suffer at the hands of the Executive and any challenge or danger they may suffer by challenge from a member of the public?

Mr. Ede

The point put by the hon. Gentleman does not arise in my mind. After all, when the present Minister of Defence was interviewed by the Attorney-General of the day with regard to something that it was said he was doing contrary to the Official Secrets Acts, that was something which had been conveyed to him by a constituent or, if not a constituent, at any rate a person with whom he was closely associated.

Mr. Piekthorn

I am sure the right hon. Gentleman would not wish to mislead the House. Although I do not trust my memory entirely in these things, surely it was information which had come to the Minister in his capacity as a military officer and nothing to do with constituency work?

Mr. Ede

That was why I corrected what I said after having said "constituent" in the first place. As a matter of fact, I knew the father of the officer who told the Minister of Defence, the present Minister of Defence, of the matter on which the Question that he wanted to put was based.

I think that any attempt in this House to secure a precise definition of these privileges from an outside source is something that would be very detrimental indeed. I cannot think that in 1957 we should for the first time—and this is the amazing thing—express doubt as to our privileges arising from an Act that was passed 187 years ago. After all, the Report of the Committee of 1810 was not confirmed by the House. The Committee of 1837 did have its Report confirmed by the House, and they had no doubt on these matters.

This issue goes back even before our period of history, for I find that Euripedes, who is supposed to have died about 407 B.C., according to Milford's translation, said: This is true liberty, when freeborn men, Having to advise the public, may speak free; Which he who can, and will, deserves high praise: If hon. Members of this House are put in the position where for a speech in the House—

Mr. R. A. Butler

May I interrupt the right hon. Gentleman? I think that he is misleading the House. I had the honour of serving with him on this Committee, and I am indebted to him for his service. But all we are asking is a legal interpretation particularly of Section 1 of the Act of 1770. There is no question of questioning the Bill of Rights or the rights of hon. Members under the Bill of Rights, or anything else.

Mr. Ede

I have the utmost respect for the right hon. Gentleman, with whom I have served in more than one capacity. But if the Judicial Committee of the Privy Council gives one answer to the question that is being submitted to it, it will he possible for any member of the public who feels that he has been affected by a statement made in the House or by a proceeding in Parliament to start an action. A writ may be issued, and while it is true that the Attorney-General does not think anyone would get very far with the proceedings, hon. Members would be put to some expense, not all of which would be recoverable, in taking preliminary steps to defend themselves.

I venture to say that if it had been put to any hon. Member of the House on the morning that the Attorney-General submitted his paper to the Committee of Privileges that it was possible to start an action against an hon. Member of this House for something he said in the House, it would have been treated as something not worth paying attention to. That is the issue at stake as I see it. Why should the House be the party to the dispute to stick its neck out and ask for an opinion which may be very inimical to its interests.

Mr. Marcus Lipton (Brixton)

Might I put it to my right hon. Friend that there is a further embarrassment involved in that many, if not all, members of the Judicial Committee of the Privy Council deciding the matter will be Members of another place?

Mr. Ede

I do not think that their membership of another place is likely to influence members of the Privy Council very much. Let us be certain of this, that if it is not our privilege it is not the privilege of the Lords either. This is a privilege of Members of Parliament irrespective of the House in which they sit.

I hope that the House of Commons will not today set the precedent that the passing of this Motion would be. I hope that we shall retain as much as we possibly can questions of the privilege of Parliament in our own hands and not defer them to any other body, no matter how distinguished it is.

5.2 p.m.

Sir Lionel Heald (Chertsey)

As a former member of the Committee of Privileges, I feel some delicacy about this matter. I want to make it clear that I shall certainly not, willingly or intentionally, say anything derogatory or discourteous about my former colleagues on that Committee. I also want to make it clear that nothing that I shall say must be taken to reflect in any way upon the right hon. Member for Vauxhall (Mr. Strauss), who has his remedy whatever way this matter eventually goes. The right hon. Gentleman has the qualified privilege that any citizen has in defending himself against proceedings, and if he acted, as I have not the slightest doubt he did, in good faith in the matter, he is adequately protected.

When I heard my right hon. Friend say that there was to be a free vote of the House upon this Motion, I was rather relieved, because it seemed to me a matter which needs very careful consideration and which ought to be considered in the light of the opinions which are expressed in the debate today. I must say that so far I have found myself in some difficulty in making up my mind as to any conclusion, and I do not suppose that I shall be able to do so until I have heard the whole debate. I must frankly say that the result upon my mind so far has been that after I had heard my right hon. Friend move the Motion I thought I should find difficulty in supporting it, but when I had heard the right hon. Member for South Shields (Mr. Ede) I was quite convinced that the Motion was a right one.

Perhaps I might follow that up, first, by explaining the reasons why I felt difficulty about my right hon. Friend's presentation of the matter, and, secondly, by explaining why my difficulty was somewhat removed by the right hon. Member for South Shields. I felt to begin with that there was a difficulty about the question of precedent. I had studied the matter as best I could. I found that there were only the Samuels case and the MacManaway case, and those were not cases of privilege. I thought at first, as the right hon. Gentleman apparently thought, that there was something in that, but when I came to consider it a little further I found that there was something very much in common in the three cases. They are all cases in which this House has been in doubt on a difficult matter of law. The House took the advantage of getting an opinion on those cases, and that is what I understand the House is being asked to do today.

I am sure the right hon. Member for South Shields would not be under such an impression, but there may be some hon. Members who really would feel that the opinion of the Judicial Committee of the Privy Council would in some way be legally binding on this House It would, indeed, be nothing except advice. It might very well be that when that advice had been given this House would then decide that certain action was required. As I understand the position, what we are being asked to do is to obtain an authoritative judicial opinion, and the need for that and the justification for that is surely confirmed by the fact that the right hon. Member for South Shields is not even prepared to admit that there is a legal question. He and the right hon. and learned Member for Montgomery (Mr. C. Davies) think that, because they have their own view, there is no legal question at all. Is it not a very good reason for us to obtain an impartial and proper judicial opinion if we are otherwise to have people saying, "That is what think. Therefore, that is the law."? Therefore, on that point I feel that my doubts were rather resolved.

Another thought went through my mind, and it bears on what the hon. Member for Brixton (Mr. Lipton) said. He referred to the fact that some of the members of the Judicial Committee—indeed, probably almost all of them—would be Members of another place. If the hon. Member has a chance to speak later on, I think there would be an even better argument for him. Let hon. Members imagine what would have happened if anyone had said in 1770 or 1670 "We propose to refer the privileges of the House of Commons to the Privy Council." What would have been said then? That is purely a debating point. Does anyone think that today by asking the Judicial Committee of the Privy Council to advise us on a difficult question of law we are destroying our sovereignty? I would suggest that that is a very bad point indeed.

There are one or two matters upon which I should like to have the assistance of my right hon. and learned Friend the Attorney-General in due course and of any other hon. Member who can assist in our consultation today. I feel difficulty about the reference to the Privy Council for this reason. We are asked to refer a question of law, a question as to whether under the Act of 1770 certain consequences follow or do not follow. However, it has not yet been mentioned, except very indirectly, that there were two points of law involved and not one point of law.

The other point of law was whether the right hon. Gentleman was engaged in a proceeding in Parliament when he wrote the letter, and if he was not, then the whole of our discussion today is completely irrelevant, because under the Bill of Rights privilege can arise only if there is a proceeding in Parliament. Therefore, I suggest that we still require an answer to this question: Does not this Motion really put the cart before the horse? Have we not, first of all, to decide whether there is any proceeding in Parliament at all?

After all, the Committee of Privileges is considering a particular case. It is not considering an abstract reference. There is no reason at all for giving the right hon. Gentleman absolute protection—as I have said, I sincerely hope he does not need it. He has either got it or not got it under the Bill of Rights. We must decide that first and not last.

However, as things stand, this is the point of view from which I am worried about it. Let us suppose that we get a certain answer from the Privy Council. Will it not then follow that there is no need, in one alternative, for us to consider the position at all as to whether the right hon. Gentleman was in a proceeding in Parliament? Where are we then? We are then left with the decision of the Committee of Privileges, which, I venture to say with the greatest respect, no lawyer with whom I have discussed it can really understand.

In the particular case, the right hon. Gentleman wrote a letter to a Minister, the Paymaster-General, but he wrote it in connection with a nationalised industry. It was admitted, and everyone can read it in the evidence, that it would have been precisely the same on that argument if the right hon. Gentleman had written direct to the nationalised industry. It has, in effect, been decided by the Committee of Privileges, so far, that a letter written by a Member of Parliament to a nationalised industry or to anyone connected with it, no matter how libellous it is, in what bad faith it is written, or how malicious it is, it is absolutely protected. That is the decision. Surely, the first thing in which everyone in this House is interested is whether that is really the position. If this reference goes to the Privy Council—

Mr. S. Silverman

I wonder if the right hon. and learned Gentleman would help me? He is making a very important point if he is right. Would he say where in the Report he is relying for his contention that the Committee would equally have decided that this was a proceeding in Parliament if my right hon. Friend had written not to the Minister but to the industry itself?

Sir L. Heald

May I read to the hon. Gentleman Question 439, on page 42 of the Report, in answer to Captain Waterhouse? It asks: Suppose some Member was aggrieved about Customs and Excise, he would write to the Financial Secretary of the Treasury and he would air his grievance to him?—Yes, I have known of such a question. Would that remain privileged?—I should have said yes, because, as an alternative, he could have put a Question on the Paper. Very well. Then a private trader could write to the Coal Board direct on a matter of day to day administration, because you said that this is quite a proper thing to do to a nationalised industry?—Yes. And if he were a Member of Parliament, that would he covered by Privilege?—In my view, yes. Whatever he said?—Yes, I think that is so

Mr. S. Silverman

I am much obliged to the right hon. and learned Gentleman for giving way once again. He has read out an answer given to a question by a witness before the Committee of Privileges, but where did the Committee decide that?

Sir L. Heald

The Committee of Privileges—as I have said, I would never say anything to the contrary—is composed of very intelligent and logical people, and if that answer is given, that answer is a perfectly logical consequence because—

Mr. Silverman

No.

Sir L. Heald

The hon. Gentleman never likes information if it does not suit him, but I am going to give it to him.

Mr. Glenvil Hall

The right hon. and learned Gentleman stopped short in reply to my hon. Friend. I think the witness goes on to say at the end of the answer to which he referred that it all depended on whether he could raise the matter in Parliament. If it was a matter which he could raise in—

Sir L. Heald

I am much obliged to the right hon. Gentleman. I knew that he was going to be helpful: that is why I gave way to him.

The point is that the answer given was "because the right hon. Gentleman was a Member of Parliament," and if he writes to a nationalised industry and is a Member of Parliament he is protected.

I apologise for being lengthy, but I must get it right. May I add that the matter went further in Sir Edward Fellowes' evidence on page 42. The question was taken further and the point driven home in this way. The test is whether it is a matter which a Member of Parliament could raise in the House of Commons. Then the question was asked on page 44, and answered very rightly by the learned Clerk, that there is no matter which a Member cannot find a way of raising and that, therefore, everything a Member writes in a letter to anybody would be privileged on the decision of the Committee.

It ought to be emphasised—

Mr. R. A. Butler

May I interrupt my right hon. and learned Friend? I think that he has been very clear in all he has said with this one exception. My right hon. and learned Friend is quoting from the evidence given by the Clerk of the House at the end of the Report of the Committee of Privileges, but I do not think that he must take that as representing the Report of the Committee. The Report of the Committee in reference to this matter is clear. On page viii, paragraph 20 (a) and on page xix it states: Tuesday, 30th July, 1957. Members all present. The Committee deliberated. Motion made, and Question put, That the letter dated 8th February, 1957, written by Mr. Strauss to the Paymaster General was protected by the Privilege of Freedom of Speech of a Member of Parliament. The voting on that was eight to one. That is the conclusion. I do not think that my right hon. and learned Friend ought to draw a conclusion from the evidence of the Clerk of the House.

Sir L. Heald

I do not want to draw any conclusions from the evidence, I would like the House to draw conclusions from the Report. If I am right about paragraph 11, I think, with the greatest possible respect, that my right hon. Friend may want to amend what he has just said. Paragraph 11 says: Where a Member of Parliament writes to a Minister concerning a Nationalised Industry and criticises the administration of that industry or the conduct of the Minister, the Statutory Authority or its subordinate Board and is not satisfied with the reply he has from the Minister, the Authority or the Board, it is a fair presumption that he will seek an opportunity to debate the matter in the House.

Mr. S. Silverman rose—

Sir L. Heald

I wish the hon. Gentleman would let me read it. I do not mind him interrupting my speech, but I would prefer him not to interrupt when I am reading the paragraph. That debate would certainly he a debate or proceeding in Parliament. The basis of the argument is that the reason why something is a proceeding in Parliament is, apparently, because it might be a proceeding in Parliament. At any rate, it is not right that we should debate that matter now.

That is my understanding of it, and I am quite convinced that the point is a bad one. But that does not prove anything. I am in the same position as the right hon. Member for South Shields on the other point. Therefore, I should have thought that it might be said that both these Statutes might be referred to the Privy Council, both the Bill of Rights and the other one. It is certainly a little difficult to see why we should put the cart before the horse. Indeed, those who accepted the argument on the 1770 Act and rejected the one that I have been putting on this one might be said to be straining at a gnat and swallowing a camel.

That is a position on which I still feel considerable difficulty. We are in danger of putting on the record a decision which I believe to be thoroughly bad. That is said to follow a proceeding that took place on the Official Secrets Act, 1939. What the Committee of Privileges did was, rightly or wrongly, to accept the opinion of the Attorney-General as given to the 1939 Committee. It did not accept the opinion of the Attorney-General as given to the 1957 Committee. That may be right or wrong, but that is the position.

If this present matter goes to the Privy Council and comes back again in such a way, as it might do, as to dispose of the whole of it—that is what the right hon. Member for South Shields was afraid of—it might be said that there is no privilege at all. It then becomes entirely irrelevant.

I ask the House to consider this other most important point which I have been trying to explain, I must apologise, at length, but it is a difficult point. I should like to hear from the right hon. Gentleman when he replies some kind of assurance that we shall be able to put the matter right and are not going to find that we are faced with the position that there is nothing more to discuss and that there is yet one more precedent for those who want to support this extreme extension of the privilege of Parliament.

I believe that we ought in this House to go with the greatest care on the matter of privilege. I thoroughly admire the exaltation of privilege that we had from the right hon. Member for South Shields, but he and others should realise that there are a great many people—certainly a number of my constituents—who think that we are being far too pompous and touchy about privilege in this House. We must be very careful what we are doing about it.

If I could be given some explanation concerning how this other point is to be handled—I think it is a more important point from the practical point of view than the one with which we are concerned now—I should be prepared to accept the reference, having regard to the controversy and the difficulty of the point, provided we recognise that all we are doing is to ask for an authoritative legal opinion on a difficult point.

I feel, however, that the time has come when we must seriously consider how we can put our House in order in relation to privilege. That is expected of us by the country. By all means let us retain the guardianship of our privilege, but let us be very careful that we are not led mistakenly into extending it. Though it might be said that the example I have given can be described as a construction or interpretation of privilege, who could really doubt that it would be an extension of privilege to find that there would be absolute privilege for a false, libellous and malicious letter written by a Member of Parliament in a matter which only by the remotest likelihood would come before the House at all?

Mr. R. A. Butler

May I seek clarification of what my right hon. and learned Friend wants, so that I may put it to my right hon. and learned Friend the Attorney-General, who is shortly returning to the Chamber? My right hon. and learned Friend, I understand, wants to be quite certain that whatever the decision of the Judicial Committee, whether it be, so to speak, a liberal decision or a strict decision on the interpretation of the Act, this House is still free to take what action it likes on the remains of the findings of the Committee of Privileges. Is that correct?

Sir L. Heald

And, might I add, will have the opportunity of doing so.

Mr. Butler

Not only should I like to discuss that with my right hon. and learned Friend the Attorney-General, but on my own authority, on behalf of the Government in regard to Parliamentary time, for example, I should like to make it quite clear that when we have this Report, we must give the House an opportunity not only of discussing it, but also of reserving its rights when it receives the advice for which it has asked.

5.23 p.m.

Mr. Herbert Morrison (Lewisham, South)

Like other hon. Members who have spoken, I have been a member of the Committee of Privileges and, like my right hon. Friend the Member for South Shields (Mr. Ede), was Chairman for a time. I greatly enjoyed the work.

We are dealing, and the Committee have been dealing, with a subject in which, generally speaking, there is no Statute law, although we have come up against Statute law this afternoon. There are no Standing Orders, so to speak, on the matter; there are no regulations. Over the years, therefore—and very many years they have been—not only the Committee, but the House itself, has had to find its way into doing the right thing to the best of its ability.

In a great democratic Assembly of this sort, it would have been perfectly easy for the House to have got into a muddle and to have engaged in illogical and inconsistent decisions; but as a whole, I think that the work of the House and of the Committee of Privileges in the realm of Privilege stands up as being exceedingly good work indeed. That makes it all the more important that we should be careful in the handling of the Report, which presents the House with exceedingly difficult and, in some ways, new matters.

I have no violent feelings as to whether the legal question should go to the Judicial Committee. I should have been disposed to think that there should not be any great harm if that were done, because when the matter comes back here I should have thought that the House could do what it liked about it. In any case, oven if the Judicial Committee were to say. "This is what the Statute law means," although it might be difficult for the House of Commons perhaps to say, "We do not care what the Statute law means, even in relation to us," presumably the House could amend the Statute law if it wanted to do so. I should have thought, therefore, that there was a remedy.

What I am anxious about is to know what is going to the Judicial Committee. It seems to me that the biggest question raised by the case of my right hon. Friend the Member for Vauxhall (Mr. G. R. Strauss) is not the question of the right to speak freely in Parliament, but the question of the right to write freely outside Parliament. That is the question which arises, but that is not going to the Judicial Committee. I really cannot understand—I am, of course, subject to correction and the Attorney-General will be replying—why that question is not included in the terms of reference under the Motion to the Privy Council. When one reads the Report, there are all sorts of arguments about this particular point, both the one way and the other.

I would have been a bit happier if the Committee, in addition to hearing at length our very able Clerk of the House of Commons who gave the most valuable evidence, had also heard at greater length my right hon. Friend the Member for Vauxhall. No doubt he had an opportunity for going on longer than he wanted, but I agree with him that I do not think there was much point in so doing. I should have thought that the other parties to this trouble—the London Electricity Board or its Chairman—might conceivably have been called in by the Committee and that the Committee might have heard what they had to say.

The other thing that I could not follow about the proceedings was that before the correspondence was produced in relation to the examination of the Clerk of the House, there emerged the fact that he had not seen the correspondence.

Mr. Ede

Nobody had seen it.

Mr. Morrison

That makes it all the worse. I really cannot understand how a Committee can adjudicate on a matter of this kind, in which the letters, and, indeed, the language of the letters, are a point of material importance, without their being produced. Whoever was responsible for holding up the correspondence, I do not know. I do not think it was fair either to the members of the Committee or to the witnesses.

Mr. Charles Doughty (Surrey, East)

If the Report is correct the whole way through, what difference would it make what was in the correspondence? If the Report is correct, it is absolutely privileged. Therefore, even if it contains offensive and obscene expressions, it is still absolutely privileged.

Mr. Morrison

One of the questions that the House will have to consider—it will come up, incidentally, today—is whether the Committee was right in conceding absolute Privilege to that correspondence, and secondly, whether the actual terms of the letters or of the correspondence have a relevance on the question of whether absolute Privilege should be given in a case of that sort. My point, therefore, still stands.

I entirely agree with my right hon. Friend the Member for South Shields that the House must be jealous about guarding its privileges. It is important that we should be able to function freely and without fear of anybody in all our proceedings of debate and speech, in the House, in Committee, and so on. It is a new question that arises about correspondence with Ministers.

We not only have to consider our own rights and the liberties of Parliament—and, of course, it is the collective liberties of Parliament with which we are concerned rather than the rights of individual Members—but we have to be careful about extending our privileges. We keep on saying that we will not do it, though I think we are coming to the edge of doing so in this Report. It is often said that we would not extend them, but we are on the verge of it today.

We must consider not only our rights and privileges and our freedom as Members of a great Parliamentary institution, as it is vital that we should, but we really must consider the rights of people outside, also. I am a little alarmed that, in recent years—it may have happened before, for all I know, not the House as a whole but some Members of the House have become a little too touchy. After all, we are politicians. Being politicians, we have knocked a lot of other politicians about.

There have been constant wars between the politicians and the newspapers and the newspapers have often waged war against the politicians. I think that nearly all of us have enjoyed every minute of the combat which has gone on. We must take account not only of protecting our own rights but of protecting the rights of people outside, the rights of the ordinary citizen. He, also, has rights.

What worries me, and what I wish were going to the Judicial Committee also, if it can be considered within the ambit of the meaning of the Statute law, is the question whether, in the circumstances, correspondence outside Parliament of this nature and wording is affected by the Statute law, and how. I should have liked the Judicial Committee to consider, also, what, if any, was the effect of the Statute law upon that.

If a Member of Parliament writes to a Minister, he is entitled to sympathetic consideration as regards his rights, and I should not be disposed to take the view that in no circumstances should Privilege be granted. But it depends on what is written. The letter of my right hon. Friend the Member for Vauxhall could have been a little stronger than it was, but it was fairly strong for all that. It said that he considered the behaviour of the London Electricity Board a scandal which should be instantly remedied. Those words are to be found at the foot of page viii if the Report, and at the top of the next page my right hon. Freind's letter goes on to say: It is considered a scandal in the sense… and so on. Then he goes on to talk about "strong suspicion". It is perfectly true that my right hon. Friend could have been more violent in his language and could have attacked the Board in terms for moral imperfection, for being crooks, and so forth. But he is on the way to doing that.

Mr. E. L. Mallalieu (Brigg)

Why not, if he believes it?

Mr. Morrison

It is all very well for my hon. and learned Friend to say, "Why not?". If he is going to say that, any Member of the House can write to any Minister of the Crown saying anything he likes about private citizens outside the House.

Mr. Mallalieu

He is saying it.

Mr. S. Silverman

Assuming that what my right hon. Friend—

Mr. Morrison

Some of my hon. Friends are having a good afternoon. I find that my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) gets value for his money in the way of interruptions, and the chances are that he will make a speech as well later.

It is all very well to ask why someone should not be free to say what he likes. Are we to lay down the doctrine that any Member of Parliament can write to any Minister and say anything he likes about a person outside? The come-back to that has been to say that he can say it here. That is true, of course, and, if I may say so, this is the right place to say it, because, if it is said here, somebody can answer back. Either the Minister or an hon. Member familiar with the subject can answer. It is quite different when it goes to a Minister by correspondence.

Mr. Paget

Will my right hon. Friend permit me to say that it seems to me that—

Mr. Silverman

My hon. and learned Friend the Member for Northampton (Mr. Paget) is having a good afternoon.

Mr. Paget

—we are dealing much less with our privileges than with the privilege of constituents. What we normally have to deal with in this kind of thing is not a letter which a Member himself writes but the letter he receives and forwards, and unless that is absolutely privileged—as think it is, or ought to be—we are endangering the democratic channel whereby the individual can go to the fountainhead of government.

Mr. Morrison

I do not agree that Parliamentary Privilege is the privilege of the constituent. It is the privilege of this institution, functioning as an institution. My hon. and learned Friend the Member for Northampton (Mr. Paget) has gone very far, even farther than my hon. and learned Friend the Member for Brigg (Mr. E. L. Mallalieu). He is now asserting that a constituent can write to a Member of Parliament anything he likes about any other citizen, of the most unfair, libellous, or abusive character, and that is to be privileged.

Let us suppose that a constituent writes to a Member of Parliament about a workman employed by, for instance, one of the nationalised industries, by the Post Office, or by somebody else. He may be actuated by malice and spite and he may say the most terrible things about that workman, about the quality of his work, alleging laziness or dishonesty, reflecting upon his morals—heaven knows what.

This person writes to the Member, and the Member writes to the Minister. The Minister may pass on the letter to the nationalised industry, or whoever it may be. I must say that, from the point of view of the liberty of the citizen and the rights of the ordinary, common or garden man-in-the-street, that is a bit "hot". As a Member of Parliament, I will claim all the privileges to which this House collectively is entitled, but I will not claim privileges that deny the reasonable liberty and rights of the ordinary citizen outside. I am afraid that we might be doing that.

Mr. W. R. Williams (Manchester, Openshaw)

That seems to be giving the whole case away.

Mr. Morrison

I can express my own opinion. The Whips are off, and we can all say what we like. Hon. Members can say something different later if they wish.

The rights of the citizen matter. Let us take the case of a teacher. Suppose someone is spiteful about a teacher or, perhaps, not necessarily spiteful, but reckless in what he says, accusing a teacher of doing something wrong in the course of his professional duties, or, even apart from his professional duties, alleging that the teacher is immoral, a homosexual, or dishonest. That letter may be passed on to the Minister of Education. If the Minister is careful, he may not send it to the local authority, but on the other hand, the letter may reach the local authority.

While it may be argued, in the new circumstances, that correspondence with the Minister about nationalised industries shall have its right and proper degree of Privilege, I doubt whether the right to Privilege should extend to language which is spiteful, malicious or careless. Therefore, I believe that there is a duty on the Member of Parliament, as there would be a duty on the constituent of my hon. and learned Friend the Member for Northampton, to be rather careful in his language, being considerate and restrained in what he says, while making clear what he means. It is for these reasons that I am a little doubtful whether the reference to the Judicial Committee, if it is to go at all, goes far enough.

My right hon. Friend the Member for Vauxhall was quite entitled to take the matter where he took it. He was quite frank in saying that he had an interest in the matter, as he so declared when it was brought before the House. I am concerned not in any way to derogate from the reasonable privileges of this House. I again insist that it is this House, in it; corporate capacity, with which we are concerned. The free functioning of the parliamentary institution is the thing that matters. We have all been taught that, and I think that it is what we all believe.

I think, however, that we want the House to take into account the rights of the ordinary, common people outside, even the rights of the chairmen of nationalised industries. They are God's children, too. They have to be taken into account, and I think that the House would be unwise, in asserting its own undoubted rights and privileges, to run the risk of M.P.s in the future, being unjust and unfair to the ordinary citizens outside.

5.41 p.m.

Mr. Kenneth Pickthorn (Carlton)

I hope that the House will forgive me if I make some reflections in a rather scattered way on the point immediately before us. I will explain to the House why.

It would, I think, be possible, as I think the speech of the right hon. Gentleman the Member for Lewisham, South (Mr. H. Morrison), which I much admired, has demonstrated, to argue the main question upon this Motion, but on the whole I think it undesirable to do so, upon the assumption that we are bound to have a full debate sooner or later upon the main question—should like the Front Bench to listen to this sentence—and that when we do have a full debate on the main question, there can be no suggestion then of anything being precluded from the debate that would have been admitted had this debate not taken place.

I think that it is most important that we should all be assured from our leaders and, with respect, from the Chair, that that is so. If that is so, then I think that as far as possible we had better confine ourselves to the preliminary question immediately before us. I do not mean strictly, but mainly.

I have some delicacy in this matter, too. People spoke of their delicacy because they were lawyers, and because they were not lawyers, and because they were members of the Committee of Privileges. My delicacy is partly because I was a member of the Sandys Committee. Looking back upon it, I do not feel certain that it was altogether right, in its conclusions or reasons, and, also, I have some delicacy because for a long period of my life I was paid what were to me considerable sums for speaking as an expert on the history of Privilege. I should not like those who then paid me to observe the state of my mind upon the subject now and to suppose that they were swindled then; because I have, in fact, forgotten all about it, and have not properly swotted it up, I beg the House to believe through no fault of my own.

I thought that the right hon. Gentleman for Lewisham, South, if I may begin by saying something unkind, but not meant unkindly, had not perhaps read the Report so often or so attentively as he might have, because I also thought—and this is the kind part of my comment upon him—that in his speech there was much more common sense than in almost if not quite any of the speeches before: and his main commonsense argument was this, that the Motion before us speaks of proceedings in Parliament and says nothing about writings outside Parliament. He did not hesitate over the fact that if the Report is right then writings outside Parliament are literally as a matter of course proceedings inside Parliament. I entirely agree with the way his subconsciousness worked.

I think that when a series of syllogisms makes it possible to reject a piece of obvious pantomime nonsense, it is the syllogisms one should reject, and not accept the pantomime nonsense at the end. I think that most of the reality so far was brought into this debate by the right hon. Gentleman for Lewisham, South. I agree with him on this also, with the utmost respect for the Attorney-General and for the learned Clerks who serve this House, that I think that it is a pity that in such a matter, the litigation, so to speak, should be by way of examination and to some extent cross-examination of what are called witnesses, who are really a sort of expert witnesses and not at all or very little witnesses of fact. I think that it is a pity in such litigation means should not be found of having, so to speak, an advocatus diaboli. No doubt the Attorney-General is the devil of an advocate, but he cannot properly play the part of an advocatus diaboli, and I think it would have been easier if that had been possible.

I began by saying that I was once an historian and have now forgotten it all. I do not know whether the right hon. Gentleman the Member for South Shields (Mr. Ede) was ever an historian, but he has evidently remembered it all. He put it in a report which the Committee has cut out and he gave most of it to us this afternoon.

Mr. Ede

I did not put any of it in the report.

Mr. Pickthorn

I apologise. I should have put it in the passive. It was put in, but not accepted. I do not think that it is true that this is the first time, as he said earlier in his speech later he said that it was the first time arising out of the 1770 Statute, which is another matter—I do not think that it is the first time that the House has admitted uncertainty about definition of its own privileges or even has sought advice from outside, although I willingly admit that it is a very long time since that was done.

My main objection to his history—I did not think that it was all very good, but that might be professional jealousy—is that it assumes that the House was always a democratic body though every Member until, historically speaking, the day before yesterday, treated a democrat as a term of abuse. Secondly, that his history stops just before it begins to be interesting. It all reposes on the assumption that this House is and always was directly concerned all the time in fighting against the Executive and that if any man is to be called upon to shed his blood the right hon. Gentleman will be the first to leap into the breach. But, of course, in this matter, it is the Executive that is trying to extend its powers—make no mistake—because what the Committee is doing is basing this Report, for what I think in common sense cannot be denied to be an extension of Privilege, upon extending the power of Ministers. It is based surely on the assumption that Ministers may not only, as we all know they may, refuse to answer any particular Questions, but may—I use the words in no kind of disrespect to the Chair or to the Table, but in more or less co-operation with the Chair and the Table—cut out any category of Questions, and have, in fact, cut out the whole category of questions on day-to-day administration of the nationalised industries. That is what the thing is based upon.

What the Committee is trying to do is to extend the power of Privilege, with a lot of heroic drum and trumpet stuff about standing up to the Executive, in order to increase the power of the Executive. That is what this House is trying to do this evening. Let us be clear about it. That is first of my points.

Mr. Gerald Nabarro (Kidderminster)

Will my hon. Friend permit me one question? He mentioned a statutory responsibility, but Ministers also have a statutory responsibility in requiring that he nationalised boards should pay their way, taking year with year. That is written into all the statutes. If a Member of Parliament considers that by a particular commercial transaction no contribution is being made by a particular board to pay its way, taking year with year, is it not the responsibility of that Member to draw the attention of the responsible Minister to the fact that the board is not conducting its affairs in a statutory fashion?

Mr. Pickthorn

I am not proposing to define the responsibilities of Members or, at this minute, to recommend alterations in the rules about Questions. All I am saying is that effectively three things are being asked by the Committee. They are: (a) it shall be allowed to assume that writings outside Parliament are proceedings inside Parliament; (b) it shall be allowed to assume that Ministerial arrogance of the right to exclude a lot of public business shall be effective for the protection of Ministers but, at the same time, (c) shall operate to expose members of the public to the sort of letters which we have now before us. I do not say that the letter was not a proper one but other letters, even if they had the same intention, might be extremely improper.

My right hon. and learned Friend the Member for Chertsey (Sir L. Heald), who is sitting on my right, said that what we ought to get from the Privy Council was nothing but advice. The point of order to Mr. Speaker which I temerariously ventured upon in an interruption was, "Let us understand: decide or advise, and advice upon what? Upon the meaning of a Statute?" Hon. Members have talked, and my right hon. and learned Friend slipped into talking, of destroying our sovereignty if we demanded too much privilege or did not get enough privilege. Our sovereignty, in so far as there is any real sense in which the House of Commons has sovereignty, consists in what has become a legal fact, the omnicompetence of statute and what has become the political fact that if 51 per cent. of the House of Commons wants something to be statute it is statute, and if not, not.

It is statute that the Privy Council is being asked to comment upon. It will not do to talk, as some hon. Members have, I think, and as I thought, reading the Report, some members of the Committee obviously thought, that the Bill of Rights is something over and above statute. It is not. It is at least arguable that it is something a good deal less than statute. How could there be a Parliament if it were not summoned by the Crown? I do not want to go into that point now. Nobody in this House has suggested—and if it were suggested, it would be the easiest way to get the unicameral constitution that some people want—that a Resolution in this House on a matter of Privilege could do no less than alter the meaning of statute.

I understand that that is not now proposed. If it is not proposed and we are to ask advice, it is a queer, curious, paradoxical think, as we will realise if we stop to think of it, that the House of Commons, led by one or two of Her Majesty's principal Ministers, the executives most unmistakably, is to ask the Crown to ask the Privy Council, that is to say, historically the most executive and still, in a real sense, the most, so to speak, vestigially executive of all possible legal authorities, to give advice about what a statute means. Suppose the Council says, "We are not going to give advice unless we know first whether it will be taken". It will not, but would that be improper? It seems to me that the Council is being put into a very difficult situation if it is not. I suppose, that, in effect, the House must consider itself morally precluded from rejecting advice given by such an authority on such a topic. Suppose that is it. Then, if that is it, ought the House not first to have faced the difficult question which it ran away from?

Mr. Walter Elliot (Glasgow, Kelvingrove)

Suppose we say that, all the same, that is not it.

Mr. Pickthorn

I do not know what "it" is.

Mr. Elliot

My hon. Friend used the word "it" and said "that is not it".

Mr. Pickthorn

It will be extremely difficult if we are to begin by assuming that we are precluded from disagreeing. Yet I cannot see any way by which I personally could think it right to ask the Privy Council to offer an interpretation of a Statute and afterwards think it right to say, "We shall pay no attention to that". I should have thought that the Committee of Privileges might have decided that if the Statute of 1770, which, I think, has gathered a disproportionate importance in this matter, has the meaning presumed by the Attorney-General, then so-and-so; if not, then so-and-so else. The House might well say, "This is a legal and not a privelege question and we shall ask the Privy Council about it". I see great objection to doing it the present way round.

There are one or two other things that I wanted to say. I have said the things I think it most important to say at this stage. "The Acts which restricted privilege," said my right hon. Friend the Leader of the House. He quite rightly described certain statutes as Acts which restricted privilege, but later on he said that there was no question of touching the Bill of Rights. That Bill is a statute, like any other. We have to face the fact that statute is the highest authority which this House is capable of participating in and, therefore, that is no longer true.

In the old days this House was fighting for its privileges in order that it should become, first a part of the governing machinery, then, the part of the governing machinery. In the course of those fights—I hope that I shall not have to go to the Clock Tower for this—I incline to bet that at least seven times out of ten at the important crossroads this House made what was historically and legally speaking at the time the wrong decision, but what has, in fact, been the law of Parliament ever since. The House should not any longer be under that temptation. The House now is in a position to do anything it likes by statute. If it is to say it is in a position to do anything it likes by Resolution and that anything which it chooses to describe as proceedings in Parliament is proceedings in Parliament, I am quite sure it is going to get in wrong.

On the whole, I think that I shall not vote on this particular Motion, but I am not quite sure. I am not quite sure which tendency it would have to pass it or not to pass it, but I am quite certain that no one in the House should take for granted the natural reaction we all have, "I am for the House of Commons," like being Cambridge on Boat Race Day, and so on. I am quite sure that we should avoid that temptation like the devil, or, even more than the right hon. Member for South Shields.

6.1 p.m.

Mr. R. T. Paget (Northampton)

I can understand, after having heard the speech of the hon. Member for Carlton (Mr. Pickthorn), the residuary confusion which leaves him uncertain as to which way he should vote.

As far as I am concerned, I wish to say very little indeed with regard to the important point which I congratulate the Committee of Privileges on having had the courage to decide. I think it was right to decide it, and I think it decided it rightly. That is, that this letter was a procedure in Parliament—

Mr. Pickthorn

A "proceeding in Parliament", not a "procedure".

Mr. Paget

A "proceeding," which is what I said and what I meant.

Mr. Pickthorn

No, it was not.

Mr. Paget

There seems a certain nervousness with regard to privilege because some unworthy privileges have been claimed on occasion by hon. Members who have been far too sensitive to Press criticism. I think all of us recognise that and wish profoundly that some hon. Members would show more sense, but this is something wholly different.

The purpose of privilege is to enable Parliament to do its job. One of the essential jobs of a democratic Parliament—indeed, this is the justification for geographical constituencies—is that each individual voter in the country shall have his own Member of Parliament and that Member of Parliament should be the conduit pipe by which he is the representative to go to the source of Government, and it is essential that that conduit pipe shall be kept open. That is essentially what we are discussing here today. If my constituent writes to me and says the Coal Board is a gang of twisters who have delivered him a sack of rock instead of coal, it is my duty to pass that on to the Ministry of Power, or, if it be more convenient, to side-track it to the Coal Board itself. That is a proceeding which must be absolutely protected.

Sir Hugh Lucas-Tooth (Hendon, South)

Supposing the constituent says to the hon. and learned Member that a particular employee of the Coal Board is a twister and ought to get the sack, would he think he would have no responsibility then?

Mr. Paget

I would take precisely the same action. Where we create public authorities, it is the public's right to make its criticism and be free to do so. It is not the slightest use to say that it can be qualified by saying, "It is all right, it is done without malice, as long as it is done believing the charge to be entirely true." If I pass on that charge, I do not believe it to be true, but it is none the less my duty as a Member of Parliament to publish it to the Minister, to bring it to the Minister. I would not be protected by qualified privilege because I do not believe it to be true. I merely pass it on as is my duty, and that is my constituent's privilege.

If I do not do that, how can I or any other Member of Parliament, or, indeed, my constituent himself whenever he wishes to get his complaint against Government off his chest, be prepared to face the absolutely ruinous cost of a libel action? It is no liberty at all if the bottomless pocket of the State or of a State board can be marshalled in the courts against one. That is ruin, and it is the ruin of the effective working of Parliament. I say that this is the most valid and most valuable form of privilege because it is not primarily the privilege of a Member; it is the privilege of the public to have a Parliament that works properly, and there is not a Parliament that works properly otherwise. It is the right of the individual to "blow his top" against Government and have his complaint—reasonable or unreasonable, wild or sober—brought to the fountainhead of Government. That seems to me to be of the essence of democracy.

Mr. Angus Maude (Ealing, South)

I wonder if the hon. and learned Member remembers—whatever he thought of the decision of the House then—that some years ago, after a debate in which the argument turned precisely on this question of whether privilege was for the protection of constituents or for the protection of Parliament, the House of Commons, in a Division which included a great deal of cross-voting, deciding that privilege did not extend to the letter of the constituent in the case of the hon. Member for Seven-oaks (Mr. J. Rodgers) and the Bishop of Rochester?

Mr. Paget

I remember that case particularly well. The decision there was that a Member of Parliament did not commit a breach of privilege by referring the letter he received from a constituent to that constituent's spiritual chief.

Mr. Maude

If, in fact, it follows, if what the hon. and learned Member is suggesting is true, that the privilege of Parliament exists to protect the communications of constituents rather than the privilege of this House, then it must be as true of the case of the hon. Member for Sevenoaks and the Bishop of Rochester as of this one.

Mr. Paget

No. With great respect, that does not apply at all. What privilege exists to do is to protect the working of the House. The working of this House is a need of the public, it is a requirement of the public and the thing is privileged whilst it is within those channels—whilst it is a proceeding of this House, as the Committee found here—coming from the constituent, through the Parliamentary machinery of the Member, to the board or the Minister responsible. If, in fact, the Member passes it on to somebody else, that to some of us may seem rather a peculiar view of an hon. Member's own duty taken by himself, but it takes it outside what I have described as the conduit pipe, which is privileged.

I have been pulled a little further on this by interruptions, but that does not seem to me the question we are discussing here. That is the question which the Committee of Privileges had the courage to decide for itself. Having had the courage to interpret for itself—I think quite rightly—the Bill of Rights, why does it then proceed to funk what seems to me the lesser obstacle and say, "We will pass the decision on the 1770 Statute to somebody else"?

By doing that we seem to be surrendering our prerogative and our rights, for in this issue it is we, the House of Commons, who are the supreme court, not the Judicial Committee of the Privy Council. Indeed, if we get a decision from the Judicial Committee of the Privy Council it will only be passed back to us, as a court of appeal sitting above that Committee, to take the final decision. That does not seem to me to be a wholly respectful way to treat the Judicial Committee of the Privy Council, which on other matters is the highest court in the Empire.

Major H. Legge-Bourke (Isle of Ely)

Would the hon. and learned Member go a little further and say that if a Statute which may have been intelligible in days gone by becomes unintelligible in the changed circumstances of today, this House has a perfectly clear duty to change the Statute so that everybody understands it?

Mr. Paget

Frankly, that is irrelevant to the present issue because when my right hon. Friend wrote his letter the Statute had not been changed. We have to consider things as they are, not as they might be in future. That is what we are deciding here. It is our duty as the supreme court on the question of privilege to take that decision, and my right hon. Friend the Member for South Shields (Mr. Ede) was perfectly right in saying that this is the first time in our history that we have ever lacked the courage to take that decision. It is true that in the MacManaway case and in the Burdett case the House referred the question to the Judicial Committee, but those were questions as to who, according to the law, was a Member of this House, and the last word in that question is something which the House has not claimed and which indeed it expressly repudiated when it rescinded the Resolution in Wilkes' case.

After the conclusion of the Wilkes case this House said. "It is for the law and the courts to settle who is and who is not privileged to sit here," but it has never said, "It is for the law or the courts to settle what are the privileges of this House, necessary for its working," because that is a question which is quite unfitting for the courts. What is necessary for the proper working of our House is something which we alone can understand and which we alone can judge, and it has always been our prerogative to judge it.

Mr. Walter Elliot

The hon. and learned Member is not addressing himself to the question just asked by my hon. and gallant Friend the Member for the Isle of Ely (Major Legge-Bourke). It is absolutely fundamental and crucial to the issue which we are discussing. If this Statute lays down certain things, it is then surely for us to define in another Statute what is our conception of those things, but it is not for this House to claim that it is above Statutes. It is the privilege of the House to define its privileges and to have them laid down, but it is surely by no means a privilege of this House to override statutes.

Mr. Paget

Certainly it is not the privilege of this House to override Statutes, but it is our judicial function to interpret the Statutes upon this issue. In the same way as we have interpreted the Bill of Rights, so it is our judicial duty to interpret the Statutes. With regard to privilege, the Committee of Privileges performs a judicial duty on behalf of the House. It is a judicial duty in which we are the supreme court, and in the process of that judicial duty we have to interpret the Statutes. If it were decided to have evidence other than that of the Attorney-General, who usually advises the Committee upon these matters, and of the other considerable lawyers who serve upon the Committee, it would be perfectly open to the Committee to call the Lord Chief Justice and any other judge before it to ask his views on the Statute, and indeed to ask him to consult his brother judges before he gave evidence before us. But the decision of the Judicial Committee and of any judge who came before the Committee would be evidence and no more than evidence. The decision must ultimately be taken by us. It must be a decision interpreting the Statute. On that we may need help, guidance and evidence, but we cannot shelve off the decision to somebody else, which it seems to me we propose to do here.

Mr. Elliot

Would not the hon. and learned Member agree that if, as my hon. and gallant Friend said, the Statute is unclear, then it is much better that the Statute should be put down in clear terms than that there should be a dispute about it?

Mr. Paget

Precisely. But if the Statute is unclear now, we have now to interpret it. The question is whether we interpret an unclear Statute or whether the Judicial Committee interprets an unclear Statute. It happens to be our job to do so and not the Committee's job. That is all there is to it. It is for the Government to decide later whether they want a better Statute. Let them put it down. I am all for it. But that point does not arise here.

Mr. Elliot

That is exactly the Motion. The Motion suggests that if it requires to be clarified, it should be clarified. It is precisely and exactly that point.

Hon. Members

Clarified by us.

Mr. Paget

I give up. I will not try to explain again.

Mr. Elliot

So do I.

6.17 p.m.

Mr. Charles Doughty (Surrey, East)

In rising to support the Motion, I should explain that to a large extent I disagree with the hon. and learned Member for Northampton (Mr. Paget) and to a large extent I agree with the right hon. Member for Lewisham, South (Mr. H. Morrison), whom I should like to congratulate on his robust speech.

In addressing to the House the few remarks which I propose to make this evening, I want to make it clear that nothing I say has any particular revelance to the conduct of the right hon. Member for Vauxhall (Mr. Strauss), whatever the contents of his letter may have been. It has often been said, I think rightly, that we in this House are inclined to be a little too touchy about what is said about us collectively and individually. One thing is certain: it ill becomes a nationalised industry to be any more touchy. Like hon. Members, they are people who are shot at and criticised individually and collectively, and they should take it in the way that we take it, whatever may be the rights and wrongs of the absolute or qualified privilege which a Member of the House enjoys.

At the commencement of every Session, Mr. Speaker, you on our behalf send a Resolution to Her Majesty claiming that our ancient privileges shall be maintained, and a Message comes back, I think from the Lord Chancellor, that they will be so extended for the present Session. They are renewed again at the beginning of the following Session. I hope that nothing I say this evening will lead anybody to believe that I think any of those privileges should be curtailed, cut down or not exercised. I am equally firmly of the opinion, however, that when in the early part of the eighteenth century, 1702 or 1703, a Resolution was passed That neither House of Parliament, have power, by any vote or declaration, to create to themselves new privileges, not warranted by the known laws and customs of Parliament. the right course was taken. We should be wrong to give an interpretation to our ancient privileges which in my view would not be borne out by the Acts.

A good deal of reference has been made to the Bill of Rights, and one always imagines that this was the commencement of the privileges which the Committee of Privileges was discussing in its Report. I need hardly remind the House that the words were: The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament. In fact, that only reinforces the earlier Privilege of Parliament, because in 1512 Richard Strode, a Member of this House at the time, had proceedings taken against him in the Stannary Court for introducing a Bill in Parliament, something which is frequently done nowadays.

In 1667, the Commons resolved that this was a general Act declaratory of the ancient privileges of Parliament. So, like so many of our privileges, it started only to protect one particular Member improperly attacked in the court, and then, by Resolution, was declared to be a general privilege of Parliament.

The words that I have read out were limited to proceedings in Parliament, and here I should like to express my disagreement with the views of the members of the Committee who said that a letter written to a Minister is a proceeding in Parliament. It is not; it is a proceeding out of Parliament. No one knows exactly what a proceeding in Parliament is. The 15th Edition of Erskine May, in page 61 says: An individual Member takes part in a proceeding usually by speech, but also by various recognised kinds of formal action, such as voting, giving notice of a motion, etc., or presenting a petition or a report from a Committee, most of such actions being time-saving substitutes for speaking. All those things relate to proceedings in Parliament; to proceedings in this Chamber or in the Standing Committee rooms, and cannot, in my view—though I know that other hon. Members take a different view—be held to include a letter written by a Member to a Minister, very likely from the Member's private house or office, and the reply being sent back to that address.

It is no answer to that to say, "Oh, well, if he was not satisfied with the answer, he could, if he had so wished, have raised it by some means in Parliament." It may be a method of convenience—it clearly is—that instead of raising every single constituency question we get—whether or not a constituent has a telephone, or is satisfied or dissatisfied with some particular action—we should be able to put down a Question or apply for an Adjournment debate. That is a convenience of Parliament. As a habit it is increasing daily, but, because that habit is increasing, it does not make it a proceeding in Parliament. By extending the definition so that proceedings out of Parliament are included in proceedings in Parliament we are going against the Resolution of 1702 whereby we must not extend our privileges—

Mr. E. Fletcher

Would the hon. and learned Member agree that whichever is the right view, that reached by the Committee of Privileges or that expressed by himself, as to whether a particular proceeding is in Parliament or is not, would he agree that it is a matter for this House to determine, and is not a question which should be referred to the Judicial Committee for advice?

Mr. Doughty

I certainly agree. That is why it is not being referred. There is no reason why we should not form a Committee to decide that very point. But the point that we are being asked to refer today is quite a different one, and, that is why I support the Motion. We are referring only the question of the 1770 Act. Why should we not? The wording of that Act is obscure, but, if it is any consolation to the members of the Committee who drafted their excellent Report, I agree with their view that it does not in any way detract from the Bill of Rights.

The wording of the 1770 Act is not very clear, and if one put on it a strict or very legalistic interpretation it might, perhaps be held, as a subsequent Statute, to overrule the Bill of Rights. If it does, what does it matter to us? How long would it take us to put through an amending Act simply repealing that Statute? It could be done by a Private Member's Bill. There is not the slightest difficulty in that at all. But we should know exactly where we are, and at present we do not. Why should the Government introduce a Bill now to amend the 1770 Act when such a Bill might be entirely unnecessary—

Mr. R. A. Butler

I think that my hon. and learned Friend is referring to the Committee's Report. Does he accept paragraph 18 of the Report, in page viii: …when the matter comes before the Court,"— that is, assuming what I call the strict interpretation of the 1770 Act to be right— he can then claim that the Court has no jurisdiction to entertain the proceedings as he is entitled to the protection of the Bill of Rights of 1688. Does he accept that?

Mr. Doughty

I would certainly accept that as being correct because, if an action is commenced, the Member, of course, would put in a defence, and that court might then have to decide whether or not the Member's defence was correct. But I do not think that it is a proper matter to refer to the Judicial Committee of the Privy Council for advice, because if any objection were put forward, whether statutory or on fact, before any court, that particular court would have to decide whether or not it was a valid defence—

Mr. A. J. Irvine (Edge Hill)

The hon. and learned Member has mentioned that there can be amending legislation if the opinion of the Judicial Committee is, so to speak, adverse. Would he agree that, pending that amending legislation, there will have been a reduction or restriction suffered by Members of this House in what it believes its privileges to be, and that that reduction of privilege, albeit temporarily, will be determined by an outside body. Is that fact agreeable to him?

Mr. Doughty

It is not a question of reduction of privilege at all. The word "privilege" will not come into it. It is simply a question of the correct interpretation of the 1770 Act. That is the only question. If, in the interim, an hon. Member has an action brought against him we can, in this House, pass an Act of Indemnity, as, indeed, we do when Members sit who are found to be disqualified. As to the reference to the Judicial Committee, may I remind hon. Members that only a few months ago we passed the House of Commons Disqualification Act which gave any third party the power to bring hon. Members before the Judicial Committee to decide whether they were, in fact, properly elected, according to law, as Members of this House.

The House has always been jealous of its composition and of its privileges, and if it passed that Act without any discussion—or certainly without any opposition—I can see no reason why it should not merely ask the advice of the Judicial Committee of the Privy Council—it is no more than that—as to whether or not the 1770 Act applies to the provisions of the Bill of Rights—

Mr. Ede

Does not the hon. and learned Gentleman agree that the House of Commons Disqualification Act was in substitution of the old position whereby a common informer could bring a case before the courts against someone whom he thought not to be a Member, with the possibility of the Member being fined £500 for each proceeding in Parliament in which he had participated, of which sum, I believe, the common informer got half?

Mr. Doughty

No, it was in substitution for the action for damages brought by the common informer simply to get money. As the common informer cannot now get money, as the right hon. Gentleman knows well—we sat on the Committee together—no question of such penalties now arises and the common informer has drawn his last breath. The action was taken to see whether or not the Member was properly elected, and the Judicial Committee was the body chosen as most suitable to decide what amounts to a constitutional question, if it was only a question of fact it would be referred by the Judicial Committee to the appropriate High Court for decision.

That is all we are asking here, and Parliament is not derogating in any way from its rights or privileges. We are only to have an opinion for our assistance, that is all, although I am sure that all hon. Members, when they receive that advice, will treat it with the respect due to a body of such legal eminence. But it goes no further than that at all.

This is only a preliminary run. When we come to the real debate, or the lengthy debate, when our privileges are discussed and, who knows, voted upon, in this House we shall have had the assistance of what must be the most eminent judicial opinion in this country in deciding what our future course of action should be, whereas now we are somewhat vague about what our future course of action should be.

Let us guard our privileges jealously, but do not let us try to extend them—certainly not by giving to words a meaning which they do not have. We shall not increase the respect which is our due outside the House if we attempt to do that. Let us, at any rate, pass this Motion so that we may have the advantage of opinion upon this not easy point of law, and so that we may decide upon our next course and what we shall do after we have had that opinion.

6.31 p.m.

Mr. G. R. Mitchison (Kettering)

I am not going to say anything about the two first conclusions reported in what is really the interim Report of the Committee of Privileges. The question that is sought to be put to the Judicial Committee is a perfectly general one. It does not, as I see it, relate only to the particular case in which the question arose; it does concern the future of the House and of its Members. I suggest that it would be right to recommend that the advice of the Judicial Committee should be sought.

There are three things that I should like to make quite clear. First, I entirely agree that this is a House of Commons matter. It is a matter for individual opinion and judgment, and I personally respect the views of those who differ from me, while, at the same time, hoping that they will accept that my views are, at any rate, sincere.

Secondly, I entirely agree that the House is right to be jealous of its own privilege and powers in dealing with privilege.

Thirdly, I think that deep in the minds of many of us is a very simple consideration, namely—without going into this particular case—that nowadays the business of Parliament is different from what it was in the seventeenth and eighteenth centuries. We had a report from a Committee of Privileges not so long ago about pestering an hon. Friend of mine by means of a telephone, and there was not such a thing in those days. What we have to seek to do is to apply the principles of freedom of speech to different circumstances and to business which has perhaps not fundamentally differed, but certainly differed in its forms.

Having said that, I suggest that it is both proper and advisable that this question should be put to the Judicial Committee. I start with the matter of propriety. It is perfectly true that a question in this sort of form—that is to say, a question arising in the Committee of Privileges as to the effect of a Statute—has not been put to the Judicial Committee before, but we have been very near it.

In the MacManaway case there was a Select Committee of this House which reported with some suggestions, at any rate, about future legislation. We on this side of the House were in power at the time. We recommended that the question of the interpretation of certain statutes affecting the position of Mr. MacManaway, who was named in the Resolution, should be referred to the Judicial Committee. When the matter got there, the case was put on the one side by the then Attorney-General and on the other side by a distinguished silk who was not a Member of this House and who led Mr. Geoffrey Bing and another member of the Bar. There were two sides; they were both argued, and a decision was reached.

It may be said that that is not strictly a question of privilege, but it is getting very close to it. Indeed, I noticed that before the actual debate was held, my zealous friend Mr. Bing desired to move a Motion for which he claimed precedence as a matter of privilege, and your predecessor, Mr. Speaker, said: The Report of this Committee"— that is, the Committee inquiring into the MacManaway case— though not a Report from the Committee of Privileges, is so closely akin in subject matter that my Ruling…"—[OFFICIAL REPORT, 14th June, 1950; Vol. 476, c. 224.] made in a privilege case should be applied to it. If one looks at the substance of the matter, one sees that there really is a very close relation between what was done in the MacManaway case and what is proposed to be done here.

Next, still on the question of propriety, there can be no doubt that immediately before the Act of 1770, Members of the House were entitled to certain privileges in respect of not being sued, and in respect, curiously enough, of their servants not being sued, which at that time was regarded as part of the privileges of the House. Those privileges were dealt with—I use a quite neutral word—by the Act of 1770. That, of course, was an Act of Parliament. It was a concurrence of the three necessary estates of the Realm that produced legislation, and it over-rode, with the consent of the House of Commons of the day, certain minor privileges—for instance, without doubt, those in relation to servants which had previously been part of the privileges of Parliament.

It seems clear from that and from the legislation which preceded it and which arose under historical conditions of which we have heard today, that there was a deliberate abandonment by the House of Commons of certain personal privileges which it had had before.

The question we now have to consider is this. We had in the Committee of Privileges, and there appear in the Report, two conflicting opinions. The first conflicting opinion was that of the very distinguished Committee composed of eminent lawyers of this House who said, in effect, that not only the 1770 Act, with which we are concerned today, but the three Acts which preceded it, dealt solely with personal matters.

The second opinion, as appears from the Report given to us by the right hon. and learned Gentleman the Attorney-General of the day, with all the weight that one must attach to anyone's opinion when he holds that office, was to the direct opposite. I not prepared to say either that the very distinguished Committee of a good many years ago was wrong, or that the right hon. and learned Gentleman was wrong. All I say is, one or other of them must be wrong, but I do not see that we are called upon to estimate the probability of the right hon. and learned Gentleman being wrong as against a Committee whose members none of us have ever seen in the flesh.

I shrink from so invidious a task and from a task which I do not think we ought to be called upon to undertake in this House. If it is the case that the 1770 Act bears the comprehensive character that the right hon. and learned Gentleman attributes to it, I would say, without prejudging the matter, that quite obviously we shall have, in the terms of this Motion, to give the most serious consideration to what action we take upon it. The sort of action we should take upon it is obvious to anybody. I do not want to go any further into it and I do not invite any member of the Government Front Bench to concur in that at this stage. Quite frankly, there seems to be an obvious remedy.

That is one side of it. I noticed that my hon. and learned Friend the Member for Northampton (Mr. Paget), after having three times stated that the House was the supreme court in this matter—a statement which seems to me to be metaphorical rather than accurate—ended by saying that we ought to take any advice or any assistance we can get. Why should we be invited to ask learned judges to leave their courts and to give evidence before the Committee of Privileges, or do some other strange thing, when there exists the machinery for obtaining a legal opinion of the very highest character?

I say with diffidence, because I have not been in the House as long as some Members, and they probably know more about it than I, that it seems to me that there must be a limit to what we can say. In regard to our own internal proceedings, the way in which we conduct our business, this House has established its right to be the complete and supreme judge. That is reasonable enough. When we come to issuing writs or suing for penalties about oaths and affirmations—I have in mind the case of a former hon. Member for Northampton, Mr. Bradlaugh—we then have a third person interfering, the person who desires to issue the writ or who, in the old days, desired to collect the cash as a common informer. It is when we get to the rights of the third party that we have to consider whether the House is, indeed, the supreme judge.

It is in relation to those rights that I thought it was by now established that the court could, for its own proper purposes and in the interests of ordinary citizens, look at the privileges of Parliament and see how far they extend. That, I think, is the rough distinction, so far as it is relevant for these purposes, which I find drawn in page 173 of the last edition of Erskine May.

Now let me deal with advisability. This will affect not only the particular case that the Committee has to deal with; it will affect all of us in the future. If the view of the Attorney-General is correct, and the Act of 1770 remains in force without amendment, qualification or repeal, the position appears to be—and this is the question asked, as I understand it—that a writ can be issued against a Member of Parliament in respect of something derogatory to a private person said within this Chamber. It is true that once the writ is issued the Member in question would have considerable rights at an early stage.

The practical point that occurs to me is this. Ought we to leave it, even at the early stage, to be dealt with by a private Member at his own risk, such as the risk is, and at his own expense? For a practical reason it is very much better to take this opportunity of getting that question settled.

Mr. E. Fletcher

I hope that my, hon. Friend will forgive me for interrupting. He has referred to the question of having the matter settled. I thought he was agreeing with the Lord Privy Seal that whatever the Judicial Committee may recommend we are not obliged to accept its advice.

Mr. Mitchison

I agree with that, but I want the advice in order to have the matter settled. What has been asked for by the Lord Privy Seal, and by this Motion, is that we should obtain the advice of the Privy Council, and, having obtained it, consider what action we should take. I thought I had made it clear. I certainly wish to make it clear. I am not suggesting that that is the end of the matter.

In the last Report of the Committee of Privileges the Committee asked for the matter to be sent back, and I was glad to hear from the Leader of the House that even before that stage is reached we shall have an opportunity of discussing the matter. There can be no question of submitting to the Judicial Committee any questions for decision; it is simply a matter of asking for advice.

Mr. A. J. Irvine (Liverpool, Edge Hill)

I am much obliged to my hon. Friend for giving way. He is drawing a distinction between advice and decision by the Judicial Committee. I think that it is an all-important distinction. Does he agree that, if the advice given by the Judicial Committee is adverse, it takes effect as a decision because until there is amending legislation Members of Parliament cannot extend their own privileges? Is it not therefore the position that advice given by the Judicial Committee in a certain direction has the effect of being a decision which makes amending legislation necessary?

Mr. Mitchison

I do not wish to face those hurdles until I come to them. I do not think that they arise today and I hope I have made it clear why. What we are asking for is advice and our intention is to take action on that advice. How it can be said that advice in those circumstances and for those purposes is any more than an authoritative interpretation of an Act of Parliament which has caused eminent lawyers to differ about its meaning, I fail to understand.

Mr. Pickthorn

What the Privy Council always gives to Her Majesty is advice. It is decisive in many important cases. Is it meant to be decisive in this case and is it meant to be given as if it were advice without any minority and without reasons?

Mr. Mitchison

Advice is advice even when given by the Judicial Council. The difference that the hon. Member for Carlton (Mr. Pickthorn) overlooks is that it advises in an ordinary case that the appeal be either allowed or dismissed. The following of that advice results, in effect, in a definite decision. This is advice for consideration. I should like to remind the hon. Member for Carlton, as I have already reminded the House, that this type of advice—I do not say that it is exactly analogous—was what the House asked for in the MacManaway case, advice on the interpretation of Statute.

There seems to be only one possible answer to the suggestion that this is the best way of protecting hon. Members in the future from actions which, though ill-founded, may none the less be troublesome to them. The answer may be in the mouths of some hon. Gentlemen—I have not heard it yet—that, if such things happen, the House itself will know how to protect its Members. Of course, there is, at least in the troubled days of the seventeenth century, some precedent for protection of that kind. Indeed, some of the Acts with which we are concerned amounted to a waiver of a kind of protection which was not so very different. But I earnestly hope that we shall not rely on that.

An hon. Member would still be put in a difficult position in such circumstances. The House would be put in what I believe would, in those circumstances, be a very difficult position indeed. Worst of all, as I see it, there would be what would amount to an invitation for a clash between the courts and the House, which is still theoretically possible in these matters, and which has been avoided successfully for many decades. Because I want to avoid that kind of thing, I am very anxious indeed that we should put ourselves right on the law as to what we are doing. I am not content to accept an interpretation which simply depends upon saying that one or other of the eminent lawyers who have given advice in this matter is wrong.

6.52 p.m.

Mr. Peter Rawlinson (Epsom)

I must confess that I have found the arguments which have been advanced by the hon. and learned Member for Kettering (Mr. Mitchison) more attractive in support of the Motion than any previously advanced. Nevertheless, I still do not accept that this is a Motion which should be passed by the House. I believe that it would be unwise to depart from the Resolution of 30th May, 1837, which is quoted in the Fifth Report and which states: That by the law and privilege of Parliament, the House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges". This Motion on the Order Paper does not appear to me to have any useful effect. If we refer this matter to the Judicial Committee and the Judicial Committee gives us its advice, that advice will either be acceptable or not acceptable to the House. If it is acceptable, a very great deal of time will have been wasted. The time of the Judicial Committee will have been wasted, and the only persons to derive any advantage will be the gentlemen briefed to appear before it. On the other hand, if the advice is not acceptable to the House, the House will seize the opportunity—which I hoped it might seize even before then—to put its own house in order, if I may use that phrase, with regard to its privileges.

I am not uncritical of the Report. I should like to say also—I hope it will not be considered impertinent, having regard to the short time during which I have been a Member—that I have been completely flabbergasted by some of the matters of privilege which have been raised. I have sat in silent wonder that the House has permitted what one can but describe I think one of my hon. Friends has so described it as a pantomime, when, for instance, an occasion when a critical and, perhaps, inaccurate editor is brought to the Bar of the House on account of some words written in a column in a newspaper. I believe that these things do the prestige of Parliament untold harm, particularly among the younger generation.

The dangers we face in regard to privilege in 1957 are clearly very different from those which existed in 1689. We are now not concerned about someone coming along to chop off our heads. We fear the issue of writs. Nowadays, therefore, the problem facing us is entirely separate and different. In my view, the right to enjoy absolute privilege should depend upon the openness of the proceedings. In the courts, where there is absolute privilege, that principle originally developed, in my view, because of, among other things, the publicity which is given to the advocate's comments and remarks, quite apart from his professional position and training. Of course, although an advocate has the same amount of privilege as a Member of Parliament, he has been advised by a great advocate to use his arms as a warrior and not as an assassin.

The same thing is surely true in Parliament. The fact that we have publicity and something is said openly in the House, with the pressure of the opinion of Members of the House and the pressure of public opinion, prevents abuse. There is also the tradition of withdrawal and apology which helps to ensure that people do not, in the House, make wild and outrageous comments and slanders upon people outside. In private letters, however, it appears to me that there is not the same sanction or restraint which otherwise is exerted by Parliamentary or public opinion. The words in such letters are private and secret, not affected by those influences.

It is my view, therefore, on the main issue here, that if a letter is sent not on behalf of a constituent and if it imputes irregularity or dishonesty, if it discloses, as it may, a personal interest, that letter should not be granted the absolute privilege of Parliament. What is said in such a letter is very different from what is said in frank and open allegation made in the House. Members of Parliament have their duties to their constituents, as the hon. and learned Member for Northampton (Mr. Paget) very forcefully said, and if they have to make comments of a defamatory nature, here is the place, here in debate or Question is the time, to say them, publicly on the Floor of the House so that what is said can be apprehended by Members of the House and reported in the Press.

Mr. Justice O'Connor, whose words in the case of R. v. Bunting are quoted the Fifth Report, held that Privilege attached in respect of anything a Member may say or do within the scope of his duties in the course of parliamentary business". Surely, one can distinguish between a private letter of accusation and debate, and also perhaps one may be able further to distinguish between letters of accusation and a letter which is merely forwarded by a Member of Parliament to the Minister without the Member's private comment.

I had hoped that at this particular time we might have taken the opportunity to set our own house in order with regard to Parliamentary privilege. There is. I think, a decline in the prestige of Parliament, and that is not a little whit due to some of the conduct we have exhibited in our sensitiveness and touchiness in reacting to proper comment about our activities.

6.58 p.m.

Mr. F. Blackburn (Stalybridge and Hyde)

Having listened to four consecutive speeches from lawyers, the House will perhaps find a little relief in listening for a few moments to a layman. The right hon. Member for Kelvingrove (Mr. Walter Elliot) said that this was a matter on which lawyers disagreed and, therefore, the decision would have to be taken by the laymen. Fortunately, there are more laymen in the House than lawyers, and I hope that the laymen, together with the right-minded lawyers, will reject the Motion now before us.

I am not a lawyer and I can speak only as one who has made some study of the customs and privileges of the House and of the rights and privileges of its Members. I think I speak for all Members when I say that we are jealous of the privileges of this House, not because we are a race apart or above the law, but because without the protection which they give, we should not be able to carry out our functions effectively.

It seemed to me that the cross-examination of the Attorney-General and the speeches of the former Attorney-General, the right hon. Member for Chertsey (Sir L. Heald), and of the hon. Member for Carlton (Mr. Pickthorn) and my right hon. Friend the Member for Lewisham, South (Mr. H. Morrison) make sense only if they were trying to put such a limit on the interpretation of the privileges of Parliament as would make our task dangerous and almost impossible.

In his proposed draft report, which the Committee of Privileges—in my opinion, rightly—rejected, the Attorney-General asked the Committee to agree that the letter and memorandum which my right hon. Friend the Member for Vauxhall (Mr. Strauss) sent to the Paymaster-General on 8th February did not form any part of any proceeding in Parliament within the meaning of the Article of the Bill of Rights. Such an interpretation of the position would, I think, make nonsense of our present proceedings in the changed circumstances of 1957.

If my right hon. Friend the Member for Vauxhall had sought to raise the matter on the Adjournment, the question would never have arisen—

Mr. S. Silverman

Yes, it would.

Mr. Blackburn

—for even the Attorney-General would, I think, have recognised that as a proceeding in Parliament. Quite rightly, the Committee rejected the Attorney-General's contention.

Any student of Parliament must look to Erskine May for guidance. Perhaps I might be allowed to give a word of congratulation to the Clerk of the House and those who helped him in the production of the Sixteenth Edition. One of the strange things about Erskine May is that it is out of date before it is published. Certain changes have already taken place, an example of which is Mr. Speaker's Ruling yesterday on the changed procedure concerning debates on the motion to continue the Army Act. Certain fundamentals, however, remain in Erskine May. I know that you, Mr. Speaker, do not underestimate the great value of Erskine May in helping you to solve the many knotty problems which come up for your consideration.

If the Attorney-General is right in his contention and if the Motion before us today is necessary, a good deal of Erskine May needs to be rewritten. Perhaps the Attorney-General is engaged upon his own edition. Let me give three short quotations. As I read them, I should like the House to keep in mind that the Committee of Privileges decided, first, that my right hon. Friend the Member for Vauxhall was engaged in a 'proceeding in Parliament' and secondly, that the London Electricity Board and its solicitors, in threatening to commence proceedings, have acted in breach of the Privilege of Parliament". I should like the House to keep those two points in mind as I read these three quotations, which need to be considered together, from the Sixteenth Edition of Erskine May.

The first quotation is from page 28: The constitution has assigned no limits to the authority of Parliament over all matters and persons within its jurisdiction. The second is from page 109: 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. The third quotation is from page 127: To commence proceedings in a court of law against any person for his conduct in obedience to the orders of either House or in conformity with its practice, or to be concerned in commencing or conducting such proceedings, is a breach of privilege. Are those quotations right or wrong? If they are right, I submit that the recommendation of the Committee is totally unnecessary and raises a problem which has never existed. Although I have great respect for the ability of the members of the Committee of Privileges, I find their action quite inexplicable.

Let me call the attention of the House again to the first two conclusions in paragraph 20 on page viii of the Committee's Fifth Report: Our conclusion therefore is:—

1. (a) In writing the letter of 8th February, 1957, to the Postmaster General of which the London Electricity Board complain, Mr. Strauss was engaged in a 'proceeding in Parliament' within the meaning of the Bill of Rights of 1668.
2. (b) The London Electricity Board in threatening by the letters from themselves and their Solicitors to commence proceedings foe libel against Mr. Strauss for statements made by him in the course of a proceeding in Parliament are threatening to impeach or question, the freedom of Mr. Strauss in a Court or Place outside Parliament, and accordingly the London Electricity Board and their Solicitors have acted in breach of the Privilege of Parliament."

That is to say that the Select Committee, having decided that the threat to issue a writ was a breach of privilege, then inserted paragraph (c) to ask the Judicial Committee of the Privy Council whether the issuing of the writ was a breach of privilege. Therefore, I cannot understand the action which the Committee has taken. Having thoroughly investigated the case and having studied all the relevant Acts and precedents, the Committee then lamely says, "We had better ask if we are right."

Why has the Committee done this? The kindest interpretation I can put upon its action is appeasement of the Attorney-General. Two draft reports were sub- mitted for the consideration of the Committee, one by the right hon. and learned Member for Montgomery (Mr. C. Davies) and one by the Attorney-General. Having taken the report of the right hon. and learned Member for Montgomery as the basis of its Report, the Committee of Privileges then tacked on the substance of the last paragraph of the Attorney-General's draft report, which. I maintain, makes nonsense of the Committee's previous decision.

I should now like to turn to the Bill of Rights and to the Act of 1770. As has been said, Article 9 of the Bill of Rights of 1689 stated: The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament. Hon. Members who have read the Report will realise that in his examination of the Clerk of the House the Attorney-General sought to prove that the issuing of a writ was not impeachment. To me as a layman that does not seem to matter. Surely, the point is covered by the word "questioned". The whole purpose of the writ is that the Member shall be questioned in court.

Then, said the Attorney-General, the Bill of Rights must be read in conjunction with the Act of 1770. I should like to call the attention of the House to the way in which the Attorney-General combines them. As is reported at page 6 of the Fifth Report, the Attorney-General said: The two Acts have to be read together, have they not, and is not the result that Parliament sand, by the Act of 1770, 'You may commence any action against a Member of Parliament, but if in that action you seek to impeach or question freedom of speech and debates in Parliament, the Bill of Rights prevents the Court from hearing the case! That is the way the Attorney-General says that the two have to be read together. It seems to me to create a very foolish position. I cannot see that it very much strengthens the subsequent argument of the Attorney-General. The Act of 1770 makes no mention of the Bill of Rights. The Bill of Rights is not repealed. I think the Attorney-General will agree that is so. There were, I think, four Acts in the eighteenth century after the Bill of Rights, and not one of them, I think I am right in saying, even referred to the Bill of Rights. Therefore, the Bill of Rights still stands.

I am no lawyer, and perhaps it is because I am no lawyer that to me the purpose of the Act of 1770 is quite clear. It was to put an end to claims to Privilege made by Members for themselves, for their families and for their servants in matters outside proceedings in Parliament. The reference in the Preamble to the Act of 1770 to "Causes Matrimonial and Testamentary" gives an indication that the Act is not concerned with the same sort of privileges referred to in the Bill of Rights. Neither at that time nor at this has the House included a matrimonial agency among its varied activities.

I am fortified in my view by the opinion of the Clerk of the House, whom we all recognise as an expert in the practices of the House. I would call attention to paragraphs 1 and 2 of his memorandum, which hon. Members will find at the beginning of the Minutes of Evidence in the Report of the Select Committee. I shall not delay the House by reading them but I would call the attention of hon. Members to those words.

I am further fortified, of course, by the views of the Committee of the House of 1810 and the Resolution passed by the House in 1837. The Committee of 1810, referring to the four Acts I have said there were in the eighteenth century, said that those Acts merely apply to proceedings against Members in respect of their debts and actions as individuals and not in respect of their conduct as Members of Parliament; and therefore they do not in any way abridge the ancient law and privilege of Parliament so far as they respect the freedom and conduct of Members of Parliament as such or the protection which the House may give to persons acting under its authority. The argument is that that recommendation was not put before the House and, therefore, has not been passed by the House, but in 1837 the House did pass this Resolution: That by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges and that the institution or prosecution of any action, suit or other proceeding, for the purpose of bringing them into discussion or decision before any court or tribunal elsewhere than in Parliament, is a high breach of such privilege and renders all parties concerned therein amenable to its just displeasure, and to the punishment consequent thereon. Which interpretation of the Act of 1770 shall we accept, the one of 1810, the one of 1837, or the one by the Attorney-General in 1957? Until now the interpretations of 1810 and of 1837 have never been questioned. I doubt whether many question them now, and I hope that the Members of this House will seek to uphold the necessary privileges of this House and will reject this Motion, which is inconsistent with the other conclusions of the Select Committee, and which seeks to cast doubt where none exists.

7.15 p.m.

Mr. Angus Maude (Ealing, South)

I do not wish to detain the House very long, nor do I wish to say very much on the question with which the hon. Member for Stalybridge and Hyde (Mr. Blackburn) concerned himself, the question whether or not the action taken by the right hon. Gentleman the Member for Vauxhall (Mr. G. R. Strauss) was or was not a proceeding in Parliament. One thing, however, I feel bound to say, that the argument which the hon. Member and others have used, that a proceeding out of Parliament becomes a proceeding in Parliament simply because an hon. Member could have started the proceeding in Parliament, seems to me to be manifest nonsense.

The hon. and learned Member for Northampton (Mr. Paget), for example, said it was essential that what he called a conduit between constituents and Ministers should be kept free and clear and that there should be no question of privilege intervening. How far back are we to take this? If a letter written outside Parliament to a Minister in a Government Department is a proceeding in Parliament, why may not other things be so, too?

Suppose one of my constituents, at a public meeting, says, "This thing that the Minister has done is a scandal. Will you do something about it, or get him to do something about it?" and I say, "Yes, I agree, it is a scandal, and I will get the Minister to do something about it" is that privileged? It seems to me that there is no reason whatsoever why that should not be privileged if this transaction is privileged. I notice that the hon. and learned Member for Northampton has just taken advice from his solicitor and perhaps wishes to intervene?

Mr. Paget

The simple answer is that if the hon. Member's constituent says that to him in private then it is privileged, but if he says it in front of a hundred other people at a meeting, who are not concerned, it is not privileged. It is outside of what I described as a proceeding in Parliament.

Mr. Maude

But the purpose of having a public meeting is, presumably, for my constituents to bring their troubles to me and to say what they think is wrong with the Commonwealth or with the behaviour of the Government. I am saying only that it is at least open to question whether, if something which manifestly did not take place in Parliament is to be construed as being a proceeding in Parliament simply because an hon. Member could have raised the question here on the Adjournment, quite a number of other communications may be taken as proceedings in Parliament, and, therefore, as privileged.

One must be very careful of assuming that this House can extend the definition of its own proceedings, because it may be that a number of other very odd things could be construed as proceedings in Parliament once this precedent is granted.

I come to the question whether the interpretation of Section 1 of the Act of 1770 should be referred to the Judicial Committee of the Privy Council. It seems to me that there is everything to be gained from so referring it and nothing to be lost. I really found it extraordinarily difficult to listen to what I may call the almost antediluvian observations of the right hon. Member for South Shields (Mr. Ede). To listen to him, one would have thought that he was a Roundhead in the Parliament of 1635. The situation is really fundamentally different. He seems to me to be living in a completely different age.

The right hon. Gentleman and my hon. Friend the Member for Epson) (Mr. Rawlinson) and the hon. Member for Stalybridge and Hyde quoted the Resolution of the House of 30th May, 1837. The Resolution of the House of 1837 scarcely makes sense at all in the context of history. It starts by saying That by the law and privilege of Parliament, this House has the sole and exclusive jurisdiction to determine upon the existence and extent of its privileges"— It is utter nonsense, because the House had taken part in the passing of the Act of 1770, which did restrict the determination of its privileges.

It is all very well to quote the 1810 Report of the Committee, which says that the 1770 Act and its three predecessors merely applied to proceedings against hon. Members in respect of their debts and actions as individuals. That may well be true. But the plain fact is that it has restricted the privileges of Parliament solely to those proceedings in which hon. Members were involved as Members of Parliament and not as private individuals.

But the House had shown in 1770 that it had not the sole and exclusive jurisdiction. The moment another place becomes involved, as it does, in the passing of a Statute, the House shows clearly in this respect that it has not the sole and exclusive jurisdiction. I consider that the second part of the Resolution of 1837 is of extremely doubtful relevance to the present case, because what it deals with is …the institution or prosecution of any action, suit or other proceeding, for the purpose of bringing them"— that is to say, the privileges of Parliament— into discussion or decision before any court or tribunal elsewhere than in Parliament… The sort of proceedings that we have been discussing and which our Committee of Privileges has been discussing were not proceedings entered into for the purposes of determining or discussing the privileges of Parliament. They were proceedings for the purpose of determining whether certain letters were or were not libellous, which is not the same thing at all.

I cannot see, therefore, that the 1837 Resolution is a reasonable precedent to follow in this case at all because, as my right hon. and learned Friend the Attorney-General said in his draft Report: …while the House has, of course, power to punish those who act in breach of its privileges, it has no power to terminate legal proceedings: even if, therefore, they are instituted in breach of the privileges of Parliament, legal proceedings can be terminated only by the courts or, of course, by the parties to the litigation themselves. We ought to know, therefore, and ought to be told authoritatively by whoever winds up the debate, what would happen supposing that we do not remit this question for decision to the Judicial Committee of the Privy Council and proceedings were instituted in this present case.

Would the proceedings go forward? Would the right hon. Member for Vauxhall (Mr. G. R. Strauss) have to enter an appearance in court and there claim the privilege of Parliament, or would Parliament take steps to see that the proceedings were stopped? It seems to me that Parliament could not terminate those legal proceedings.

Mr. Ronald Bell (Buckinghamshire, South)

I think that my hon. Friend means that "this House" cannot terminate the proceedings.

Mr. Maude

Yes, that is so. I mean "this House". I consider that it would be very unfortunate if it became accepted that it could.

Without going into the merits of either this case or any hypothetical case, it seems to me that once this House were to set out upon a course deliberately designed to convert qualified privilege, as it has always been understood, into absolute privilege in every set of circumstances, we should be embarked upon a very dangerous course indeed. I hope sincerely that we shall not do that. In the meantime, it seems to me that there is nothing whatever derogatory to the privileges or interests of the House in deciding that this question ought to be referred to the Judicial Committee of the Privy Council. I hope that we shall not only have more information this evening in explanation of the questions which I have raised about the particular proceedings, but that the House will let the reference be made.

7.25 p.m.

Mr. Eric Fletcher (Islington, East)

To some extent the debate has been obscured by the fact that hon. Members have been considering two separate questions. The first is the question whether privilege should have been extended, if it has been extended, from what takes place actually in the Chamber to a communication such as that of my right hon. Friend the Member for Vauxhall (Mr. G. R. Strauss) to a Minister about the London Electricity Board. I can quite understand that there have been legitimate differences of opinion as to whether there should be such an extension or not, but that is a matter with which the Committee of Privileges has dealt.

For myself, I would agree with the sentence in the memorandum by the right hon. and learned Member for Montgomery (Mr. C. Davies) who pointed out, as I think rightly, that it is the duty of the House to maintain its privileges, not only for the benefit of this House but of future Houses in circumstances which we cannot foresee. The hon. Member for Ealing, South (Mr. Maude) said that it would be unfortunate if we were to claim the right to extend our privileges in that way. I agree with the decision of the Committee of Privileges, by a majority of eight to one, the Attorney-General being the one dissentient, when it decided that the letter written by my right hon. Friend the Member for Vauxhall was, for the purpose of the Bill of Rights, a proceeding in Parliament.

As I listened to the hon. Member for Ealing, South and to some other hon. Members, I wondered what would have happened if the case of Privilege which my right hon. Friend the Member for Vauxhall had raised, instead of having been a letter written to the Paymaster-General, had been a speech made in this Chamber saying exactly what he said in his letter. Let us suppose that he had made that speech and that it had been referred to the Committee of Privileges. I wonder whether we should then have had a Report from that Committee saying that the question whether that speech was a breach of Privilege was not something which we should decide but was something which ought to be referred to the Judicial Committee of the Privy Council.

Mr. R. Bell

Surely that is not the issue which it is proposed should be referred to the Judicial Committee. The issue is the meaning of the 1770 Act, as compared with the Bill of Rights. The matter which the hon. Member mentions is more a question of procedure than of privilege.

Mr. Fletcher

The hon. Member cannot have followed my argument. I am sure that the Home Secretary will agree that the question whether this can be referred to the Judicial Committee of the Privy Council covers the letter which my right hon. Friend wrote and covers the identical case of the speech which he could have made saying, in terms, in the House what he said in that letter.

As I understand it, whatever the advice of the Judicial Committee may be as to the effect of the 1770 Act, that advice will have precisely the same application whether it is in respect of a letter written to a Minister about a nationalised industry or whether it is in respect of a speech made in the House. The advice will be precisely the same.

Mr. Maude

It seems to me that it would not be quite the same for the reason that, so far as I know, there has never been any serious questioning of the fact that what takes place in this Chamber in the course of a speech, is, in fact, covered by absolute privilege. But it has always been open to question whether a letter was covered by qualified or absolute Privilege.

Mr. Fletcher

Again I think that the hon. Member is wrong, and that it is important that this matter should be cleared up.

As I understand it—I hope the Home Secretary will correct me if I am wrong—if, instead of having written a letter to the Minister, my right hon. Friend the Member for Vauxhall had made a speech in this House in identical terms, and the Board had thereupon threatened to issue a writ against him in respect of that speech, we should be asking the Judicial Committee—if this Motion is carried—whether or not the Act of 1770 abrogates the Bill of Rights to such an extent—

Mr. S. Silverman

Look at line 5 of the Motion on the Order Paper.

Mr. Fletcher

—as to produce the result that the issue of a writ in respect of a speech made in this House is or is not a breach of Privilege.

Mr. R. A. Butler

The hon. Member has appealed to me and I should like to take the guidance of the House about intervening now. We have a great deal of other business on procedure, some of which affects Scottish Members, and I have to think of the interests of other hon. Members. Would the House like me to reply to the hon. Member after other hon. Members have intervened? If so, I will speak later. I think that there are other hon. Members who wish to speak and if we could come to an early decision, I will answer the hon. Gentleman later when other hon. Members have spoken.

Mr. Fletcher

I am obliged to the Home Secretary, but I think it important to clear up whether what the Judicial Committee will be asked to advise will govern speeches in the House, and the possibility of writs being issued against hon. Members in respect of speeches made in this House, as well as letters written to Ministers.

I do not propose to enlarge further on the question whether Parliamentary privilege as we have hitherto understood it should properly be extended as the Committee of Privileges recommends. I think it should. The sole question with which we are concerned now is whether a relatively minor point—because the other matter is a major issue on which the Committee of Privileges should be questioned—should be decided by the House or referred to the Judicial Committee of the Privy Council. I regard it as unnecessary, undesirable and even embarrassing for us to refer it to the Judicial Committee for this reason. We have not yet had a clear expression of opinion from the Home Secretary about what would be the effect on this House of the opinion of the Judicial Committee.

Technically, it will not be a decision; it will be an opinion given to Her Majesty. Presumably, it will be in the form of a unanimous opinion. I would remind the House that, traditionally, the Judicial Committee gives only one opinion even though there may be a difference of opinion among its members. Therefore, it would be very regrettable were this matter referred to the Judicial Committee consisting of, say, five eminent lawyers who were divided among themselves—perhaps in the proportion of three to two—and if, because of tradition, the Committee gave only one opinion to Her Majesty. This House would not know that there was that close division of opinion among the members.

Even suppose the Judicial Committee was unanimous, I hope that the Home Secretary will tell us what in his opinion will be the effect when the opinion of the Judicial Committee is communicated to the House. Are we to be bound by it or not? If not, I cannot see any good purpose is served in obtaining it. If we are not to be bound by it, I should have thought it embarrassing for us to have to reject it. If we agree, of course no question arises. But we may find ourselves wishing to disagree with it. We are entitled to do so, because the Judicial Committee is not infallible. As my hon. and learned Friend the Member for Northampton (Mr. Paget) so wisely pointed out, the reason that we object to this Motion is that to refer the matter to the Judicial Committee in those circumstances would be to take a step for which there is no precedent.

No question touching Privilege has ever previously been referred to the Judicial Committee. I do not regard the MacManaway case as in any way comparable. May I remind the House that not only was that case a question of disqualification in respect of which this House has never claimed jurisdiction, but it was a specific case based on specific facts. Today we have a general question of law which it has hitherto been assumed will be of universal application, although hypothetically it still remains open to other bodies to interpret whether it applies to a particular case or not. The Judicial Committee is not being asked to express an opinion on my right hon. Friend the Member for Vauxhall. It is being asked to express an opinion which may or may not cover his case.

I object to this procedure for the reasons so eloquently stated by my right hon. Friend the Member for South Shields (Mr. Ede) which are reinforced by the valuable memorandum supplied by the Clerk to the House to the Committee of Privileges and printed on page 2 of its Report. It has not as yet been read and so I will quote the following relevant extract: I should be failing in my duty to the House and to this Committee if I did not point out that the Resolution of 1837 not only represents the historic attitude of the House of Commons to the interpretation of the law of Privilege, but that it still stands uncontradicted for 120 years as the latest expression of the House's view of its rights in the matter of privilege. Expressly to abandon such rights would be to strike an unprecedented blow against the privilege of freedom of speech which has been described as essential to every free Council or Legislature. I omit an unnecessary sentence. It seems to me, therefore, that it would be quite in accord with parliamentary precedent that the House should lay down what it considers a reasonable interpretation of its privilege… I wish to quote one sentence from the evidence given by the Clerk of the House which is on page 20 of the Report and is Question 187. The Clerk of the House, an independent witness, was being questioned by my right hon. Friend the Member for South Shields, and was dealing with the Act of 1770 passed 187 years ago. He was asked: Until the meeting of this Committee, has the interpretation which the Attorney-General seeks to put upon it ever, within your knowledge, from your studies, been advanced before? The answer was Not within my knowledge. I think it fair to say that not within the knowledge of anybody has the argument been advanced before. Therefore, I think it relevant that the Home Secretary should bear this in mind. Even if there should be some abstract question, which I dispute, of whether the Act of 1770 should be interpreted literally as modifying the Bill of Rights—personally I do not think it should for the reasons given to the Committee and elsewhere—it is still a recognised doctrine of law that if a particular practice has been followed even for fifty years—in this case it is 187 years—no court ever disturbs it.

It has been the accepted, unchallenged doctrine, as part of the law of the land, for 187 years that if a Member of Parliament makes a speech in this House nobody can issue a writ against him. Yet today, on the recommendation of the Attorney-General, the Home Secretary—the right hon. Gentleman put the matter very fairly—is suggesting that we should now ask the Privy Council to express an opinion on the question—and it is not the final question, because there are really two questions in one.

One relevant argument if the second question were argued in any case which was being dealt with inter partes, where the rights of individuals were affected—those who have practised in the courts will agree with me—would be that, whatever construction may have been put on an Act of Parliament at the time it was passed or soon after, if a particular construction has been put upon it for 187 years and accepted without criticism and without controversy as being the correct interpretation, then that interpretation is never challenged.

Therefore, on the minor and technical point as to whether the questions which are being put to the Privy Council are adequately framed or framed with sufficient particularity to give the House the guidance it wants, I take the view that this Motion does not cover the point. But I do not rest on that. I adduce that argument in support of the general proposition put by other hon. Members who have spoken against this Motion, in that I think the House would be derogating from its duty as the final interpreter of its privileges if it failed to express its opinion on paragraph 3 of the Report of the Committee of Privileges in precisely the same way as it has courageously expressed its opinion on the far more important matters raised in the Report. For those reasons, I hope the Motion will be rejected.

7.42 p.m.

Mr. G. B. H. Currie (Down, North)

At this stage of the evening I do not want, if at all possible, to go over any of the ground which has already been covered by previous speakers. I rise only because it becomes apparent to me, on studying the Motion, that it raises two important matters. As has been mentioned by the hon. Member for Islington, East (Mr. Fletcher), it raises the question of privilege in relation to a speech in the House of Commons. I confess I am a very junior Member of the House, but I should not have thought that the question of privilege relating to a speech made in this Chamber had ever been in question. From the study of text books and from information obtained in this House, I had always been under the firm impression that there was a complete and utter privilege, necessary for the conduct of Parliamentary affairs, for a speech made in the House of Commons.

The other question raised by the terms of the Motion is whether or not a proceeding by an hon. Member in Parliament can amount to a breach of privilege. Surely the terms of the Motion are entirely erroneous in meeting the point of this case. As I understand it, the sole point of this case is whether or not a letter received by a Member of Parliament from a constituent making a complaint in respect of a nationalised board is a letter which that hon. Member can pass on, covered by privilege, to the Minister in charge of the Government Department.

We are not considering the problem of the constituent. We are considering simply and solely the privilege of the Member of Parliament who, in his capacity as a Member of Parliament, receives a letter from a constituent Frankly, if I am to be told by the Judicial Committee of the Privy Council, or by he House of Commons itself, that if in future I pass on a letter from a constituent I shall subject myself to civil proceedings, I shall take great care that I return the letter to my constituent instead of sending it on to the responsible Minister. That is a burden which it would be quite wrong to impose on a Member of Parliament, and it is a burden against which I propose to vote if I have the opportunity.

It is perhaps fitting that an Ulster Member of Parliament should speak on this Motion. It is a happy fact that King William and Queen Mary, of glorious, pious and immortal memory, were the Sovereigns who gave this ancient right to this ancient House of Parliament. I intend to do all I can to preserve what King William and Queen Mary so nobly gave our country.

I want the House for a moment to consider the alternative. If letters sent to us by constituents are not to be privileged when we pass them on to the responsible Minister, what are we to do? Are we to put Questions on the Order Paper? If we table Questions, how many hours will be allowed in future for answering Questions? One hour certainly will not go very far in answering Questions about nationalised boards. What is the alternative if Question Time is not to be extended? Are the nationalised industries to be brought into the House of Commons in such a way that a Minister will be able to answer Questions about their individual, detailed workings?

I submit that the Committee has found the facts. How is any tribunal, even the highest judicial authority in the land, to get behind the findings of fact which have been found expressly in the Report? If the findings of fact be impregnable—ere in the country to say that a finding of fact by the House of Commons is not impregnable?—how is anybody to advise the House of Commons, the highest tribunal in the country, that it has been erroneous in its majority decision about the law which is applicable to those facts?

7.50 p.m.

Mr. Sydney Silverman (Nelson and Colne)

If I intervene in the debate after so many hours, I can assure the House to begin with that I do not do so for the purpose of covering all the ground that has been covered. I would deal only with the practical aspect of the Motion.

I would appeal to the right hon. Gentleman the Leader of the House even now to withdraw the Motion he moved. [HON. MEMBERS: "Hear, hear."] I do so with the more confidence, if that is the right word to use, than I would have in inviting the Government to do a thing of that kind if this were a party issue or if the right hon. Gentleman had expressed any strong views of his own. I think that the House was indebted to the right hon. Gentleman for the manner in which he presented the Motion. He most fairly and lucidly gave both sides of the legal argument, and although he did recommend, as I suppose it was his duty to do as Chairman of the Committee of Privileges of whose Report the whole debate rests, that we should pass it, he expressed no strong feelings of any kind.

On general considerations, I would tell my hon. and learned Friend the Member for Northampton (Mr. Paget), if he were still in the Chamber, that I respectfully adopt every word of the argument he put so lucidly and forcefully and that, agreeing with him so fully, I would think it almost an impertinence if I were to add a word to it. From the practical point of view, the Motion, if we pass it, and the procedure which it invites us to adopt are at the worst embarrassing and at the best ineffective.

Nobody has ever doubted that, under the Bill of Rights, this House has always been, and that it remains, the sole judge of what amounts to a breach of its own privileges and the steps it will take if it comes to the conclusion that its privileges have been breached. Nobody has ever denied—and this is the strength of the case—that Parliament can cut down its own privileges. Of course it can. That is what it did in the Act of 1770. By Act of Parliament the House of Commons divested itself after 1770 of privileges which it had claimed and had not been ashamed to exercise before 1770.

The Motion asks the House to submit to the opinion of the Judicial Committee of the Privy Council the question whether, in divesting itself of privileges in 1770, the House also divested itself of the privilege which it has attached to the speeches of its Members made in the House of Commons. In the course of the debate it has been doubted whether we were putting that point in, but line 3 of the Motion puts in just that in express terms. It says …whether the House would be acting contrary to the Parliamentary Privilege Act, 1770, if it treated the issue of a writ against a Member of Parliament in respect of a speech or proceeding by him in Parliament as a breach of its Privileges. The hon. Member for Down, North (Mr. Currie) said that he had never heard that Privilege questioned. He is quite right; it never was questioned in the whole history of Parliament until the day when the present Attorney-General questioned it before the Committee of Privileges. I do not say that if doubt is cast upon the legality of what the House has been doing for 187 years and it is seriously questioned the House would be foolish, without being in derogation of its dignity or anything else, to refer that point to the opinion of the Judicial Committee of the Privy Council.

Suppose we pass the Motion and submit the matter to the Judicial Committee of the Privy Council. Suppose the Judicial Committee were to decide that the Attorney-General was right and that, by the Act of 1770, the House of Commons had deprived the House of Commons and its Members of the absolute privilege which has always been deemed to attach to the speeches of its Members made in this Chamber. If it decides that, is there one Member, including the Attorney-General, who would be content to leave it there? Does anyone think that our Parliamentary institutions could work effectively or at all unless there were an absolute privilege attaching at any rate to what we say on the Floor here?

It has been said in the course of the debate, and I think it is in the Report, that we would be all right, because if anybody issued a writ against us the courts would eliminate and stop the proceedings, being absolutely sure that absolute privilege attached to it. With great respect, I seriously question whether that is so. There is no privilege, qualified or absolute, established for Members of Parliament by any Statute.

Mr. R. A. Butler

The Bill of Rights.

Mr. Silverman

With great respect, I submit that that interjection begs the question. I am asking the right hon. Gentleman to assume that we have submitted to the Judicial Committee of the Privy Council the question whether the Act of 1770 destroyed that privilege, and to assume that the Judicial Committee decides that we have destroyed that Privilege by the Act of 1770. I say that in those circumstances no court would hold that there was any privilege whatsoever attaching to what was said by a Member speaking in this House.

My right hon. Friend the Member for Lewisham, South (Mr. H. Morrison), who was so sensitive about being interrupted that he has gone away and has not come back, so he will never hear what is said of him, made a speech. If no privilege attached to what he said this afternoon he would be liable in very heavy penalties in the courts for giving further publication to the libel of which, on this basis, my right hon. Friend the Member for Vauxhall (Mr. Strauss) was guilty in writing to the Minister. In pleading that this thing should not be regarded as privileged my right hon. Friend the Member for Lewisham, South was cutting the ground from under his own feet in the speech he was making.

There is an old rule that we must not and cannot, at this time of day, extend our privileges, but if we were to seek to amend the law 41 order to restore a privilege of which, ex hypothesi, we divested ourselves 187 years ago, no one could argue that a Measure of that kind was not designed to 'extend the privileges by restoring something which had lapsed for 187 years. I am not saying that is a necessary view. It might be possible to say that an Act' of Parliament which restored privilege was still open to us because it was not claiming a new privilege or adding one.

Mr. Woodburn (Clackmannan and East Stirlingshire)

Supposing the Judicial Committee decided that, what would then happen to all the speeches which had gone by in the 187 years? Would they be libellous and subject to action?

Mr. Silverman

Subject to any statute of limitations, I suppose the answer is that they would. Even if it were decided to amend the law as we would certainly wish to do, we would merely have lost all that time with no compensating advantage of any kind, because no one will doubt that ultimately it is for the House of Commons to decide the desirability of the possession of any such privilege. In the end, the opinion of the Judicial Committee may advise us and we may accept the advice as being what is the present statutory position, but it cannot decide what are the political necessities of the case, and I think if it were to come to a decision adverse to the exercise of those privileges, Parliament would be bound to amend the law in order to restore it.

This may not be quite as true in respect of proceedings in Parliament other than speeches in this House, but I shall not delay the House to deal with those. It is quite clear that the Motion itself does place in issue, seriously in issue, as it was said there was a legal doubt about it, whether Members of Parliament making speeches on the Floor of the House have any privilege whatever. I say that whatever the Judicial Committee or any other court or place outside Parliament may say on that question, Parliament itself would be bound to and would, in fact, unanimously restore the privilege so declared not to exist.

If that is so, what is the good of this Motion? Why should we submit ourselves to this if ultimately we know in our hearts that we need this privilege and if we know in our hearts that if all the judges decided we had not got it, we would have to give it to ourselves? If we know we can and would give it to ourselves, let us not waste time by submitting purely technical and theoretical questions for a technical and theoretical decision which would have no ultimate bearing on the merits of the issue.

8.3 p.m.

Mr. Ronald Bell (Buckinghamshire, South)

There are two issues underlying this matter before us today and it is the second one with which the Motion is concerned. I found it very difficult indeed to follow the argument of the hon. Member for Nelson and Come (Mr. S. Silverman). As I understand it, quite clearly the issue we are proposing to refer to the Judicial Committee of the Privy Council is whether this House, if it treated the issue of a writ against a Member of Parliament as a breach of privilege, would be acting against the Act of 1770.

Mr. S. Silverman

In respect of a speech made here.

Mr. Bell

In respect of a speech or a letter, I quite agree, but the point we are proposing to refer to the Judicial Committee is whether we would be acting against the Statute of 1770 if we treated the issue of a writ in those circumstances as a breach of privilege. The hon. Member was arguing that what we were proposing to submit to that Committee was a question of whether rights had been abrogated or diminished in some way by the Act of 1770. In no sense does the Motion propose that at all.

Mr. Silverman

The Act of 1770 is called the Parliamentary Privilege Act and it is based entirely upon the Bill of Rights. There is no doubt that the privileges which we claim under the Bill of Rights were, in fact, cut down by the Act of 1770, and the question which would be proposed to the Judicial Committee is the question: just how far did it do so?

Mr. Bell

The hon. Member has merely reaffirmed the opinions he voiced in his speech and contradicted the ones I have just been voicing.

I wish to continue by pointing out the very clear distinction between what the hon. Member says and I say is the true position. The issue we are putting to the Judicial Committee is whether the right procedure when a challenge to freedom of speech or whatever it is has occurred is that this House should proceed against the person issuing proceedings for contempt or whether the right remedy is for the hon. Member so attacked to plead parliamentary Privilege in those proceedings.

That is the only issue we are proposing to put to the Judicial Committee and, if the hon. Member will take the trouble to look at the relevant passage in the Bill of Rights, he will see that what it says is not that to bring proceedings against the Member is a breach of privilege. It does not mention breach of privilege at all. It says: The freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament. I think it means, and I think the Attorney-General thinks it means, that if someone tries to impeach or question freedom of speech in Parliament, he will be prevented from doing so because as soon as he starts to do it, an hon. Member will plead Parliamentary privilege under the Bill of Rights and sustain that argument and that will be the end of the matter.

It is contended by some hon. Members and some members of the Committee of Privileges that the matter goes further than that and that, if somebody outside issues a writ against a Member for something said in Parliament, or written to a Minister, the right remedy is for this House to haul that person here as an offender in breach of Parliamentary privilege and commit him to the Tower, or something like that. That is the issue we are proposing to refer to the Judicial Committee of the Privy Council and it is a purely procedural question as to what one does to secure one's rights under the Bill of Rights.

Mr. K. Zilliacus (Manchester, Gorton)

Is not the issue much deeper? Is it not a question of whether the courts or this House determine what are the privileges of the House in any action?

Mr. Bell

That is probably another matter. I would agree with the hon. Member to that extent, but I was seeking to define the issue that we are proposing to put to the Judicial Committee of the Privy Council. If the Judicial Committee finds compendiously in favour of the Attorney-General, it will not be finding that the privilege of freedom of speech guaranteed by the Bill of Rights is diminished in any respect. It will merely be saying that the right procedure is to enter a plea of parliamentary Privilege so that the courts may sustain it.

Mr. Ede

Does that not involve some expense, probably consulting with counsel to get the right drafting, and the usual arrangement by which no matter who loses learned counsel will win?

Mr. Bell

I am aware of the hostility which is expressed in this Chamber by the right hon. Member to the legal profession, but that is beside the point here.

We are not here considering or asking anyone else to consider, whether that is the right state of the law, or whether it should be changed. We are asking the Judicial Committee to tell us what, in fact, is the state of the law at present on this procedural issue. Therefore, the hon. Member for Nelson and Colne was quite wrong and was unintentionally misleading the House when he suggested that we were asking the Judicial Committee to say either that our privileges under the 1689 Act have been swept away or continue. It is no such thing at all.

The hon. Member for Gorton (Mr. Zilliacus) raised the cognate point of whether the courts or this House were to be the arbiters of this question. I know that after the case of Stockdale v. HANSARD, and the Resolution of 1837, on one side the House was saying that we are the sole arbiters and, on the other side, the courts were saying they were the arbiters of Parliamentary privilege. One could back his fancy in that historic race. I can only offer my opinion, which is that as soon as Parliament began to regulate Parliamentary privilege by Acts of Parliament, that argument was really over.

As long as the House of Commons tried to regulate its Privilege by Resolution, it could maintain that position of 1837, but as soon as we began to pass Acts of Parliament defining the boundary of Parliamentary privilege, quite inevitably we made the courts the final arbiters of what is the boundary of Parliamentary privilege.

Nor am I particularly worried that that should be the position, because the sovereignty of this House is unassailable. We are the preponderant part of the Legislature. If we do not like the court's interpretation, we can always over-rule it, but to do that we must act through the proper legislative procedure. That is the issue of principle at stake—not the sovereignty of this House, because that is quite secure.

That is my feeling about these matters. I do not agree with the majority of the Committee of Privileges that a letter from a Member to a Minister is a proceeding in Parliament. I find it possible to distinguish between a letter and, say, a draft Question, which I think must be a proceeding in Parliament and which must have absolute privilege if we are to carry out our work here properly. On the other hand, I do not think that a letter to a Minister is a proceeding in Parliament.

That, however, is not the issue before us tonight, and even though I hold that view I should like the Motion to be passed, because this is an excellent opportunity for us to get the official ruling of the Judicial Committee of the Privy Council upon what is the right procedure for a Member whose important rights under the Act of 1770 are attacked. This is a matter which is in doubt and which might profitably be resolved.

8.12 p.m.

Mr. Dingle Foot (Ipswich)

The contention of those who have opposed this Motion throughout has been that if we pass it we shall somehow transfer to the Judicial Committee of the Privy Council our own functions in relation to privilege. I believe that that argument is based on a confusion of thought. The question which it is proposed to submit to the Judicial Committee, in effect, is simply this: what is the true construction of the Parliamentary Privilege Act, 1770? I submit that that is the type of question which can be properly canvassed and decided only in a court of law.

It is extremely important, in a debate of this kind, that we should keep clear in our minds the division of functions between Parliament and the courts. The function of Parliament is to make statutes. The function of the courts is to interpret them. We shall only get into continuous difficulty if one body tries to usurp in any way the function of the other.

Although it is undoubtedly our business to decide, at any rate, in the first place, whether a breach of privilege has been committed in any case, when it comes to the interpretation of the statute we need the assistance of a judicial body. When I first saw this Motion the only question which arose in my mind was whether this was the way in which the opinion of a court ought to be obtained, or whether it would not have been better to wait until somebody brought an action. In this case it might have been the London Electricity Board. The matter would then have been tested through the courts and possibly up to the House of Lords.

Of course, that might have taken time, and it may be that the action would never have been brought. In that event, the law would have been left in a state of doubt. In those circumstances, it seems to me that there is a positive advantage in obtaining an opinion from the Judicial Committee of the Privy Council.

There is nothing extraordinary about the procedure. I do not think it is always realised that the Judicial Committee has two distinct functions, which are conferred upon it by statute. The first is to act as the final court of appeal for Commonwealth countries and territories outside this country, and, indeed, in ecclesiastical cases, too. The second is to decide points of law which are referred to it by special reference. It has happened not once but many times that points of law of great public importance have been referred to the Judicial Committee by special reference under the Judicial Committee Act, 1833. Personally, I can see nothing inappropriate in invoking that procedure at the present time.

It seems to me that if the Motion is passed there are three possible answers which the Committee may give to the question put to it. I am not saying for a moment, of course, which is the right answer. The Committee might adopt the view put forward by the right hon. and learned Member for Montgomery (Mr. C. Davies); that is one answer.

Secondly, it might adopt the view which was adumbrated by the hon. Member for Nelson and Colne (Mr. S. Silverman); it might say that even a speech in this House was not protected. That would be a very startling result and I agree that almost certainly, if that were the answer, we should have to legislate.

There is a third alternative. The Committee might give the answer that, while a speech in this House was protected, the sort of proceeding in which my right hon. Friend the Member for Vauxhall (Mr. G. R. Strauss) was engaged was not a proceeding in Parliament and, therefore, was not protected.

Mr. Ede

How does my hon. and learned Friend think that the case of my right hon. Friend the Member for Vauxhall (Mr. G. R. Strauss) is to be mentioned to the Committee?

Mr. Foot

I am not saying that the Committee will deal with the actual case. Obviously, it will not. But it may have to distinguish between a speech in Parliament and an activity which takes place outside the walls of this House. The Committee is asked to decide whether the issue of a writ against a Member of Parliament in respect of a speech or proceeding by him in Parliament is a breach of its Privileges. The Motion refers to a speech or proceeding by him in Parliament. It might well be that to answer that question the Judicial Committee would find it necessary to make up its mind as to what was a proceeding in Parliament.

A speech in Parliament presents no difficulty at all. A speech in Parliament is obviously a speech which is delivered in this Chamber. A proceeding in Parliament, on the other hand, requires definition, and it may be that the Judicial Committee would draw a distinction between a proceeding in Parliament meaning a proceeding in this Chamber and a proceeding in Parliament meaning something which is done outside the Chamber and is merely incidental to a Member's Parliamentary duties.

Let us assume for a moment that that is the answer which will be given. Personally, I should welcome such a result, because it seems to me that inevitably it would mean that when the matter was sent back to the Committee of Privileges, that Committee would be bound to reconsider its earlier conclusions, or, at any rate, it would reconsider conclusion (b). If not, and if the earlier conclusion of the Committee were accepted, we should have this fantastic position—that if the London Electricity Board issued a writ there would be no breach of privilege, but if, on the other hand, it proceeded as it did in this case and wrote a letter before action threatening to issue a writ, there would be a breach of privilege.

Mr. Arthur Moyle (Oldbury and Halesowen)

Assuming for a moment that the Judicial Committee decided that a letter addressed by a Member of Parliament to a Minister was not covered by privilege, would my hon. and learned Friend be satisfied with that decision?

Mr. Foot

I will come to that in a moment.

It may well be that as a result of the Report of the Judicial Committee the Committee of Privileges will need to reconsider its conclusions in this case. Personally, I hope that that will happen, but I share the view of those hon. Members who have contended that in this matter we have extended the boundaries of privilege. It is perfectly obvious what the authors of the Bill of Rights had in mind when it was first passed. What they had in mind were simply words spoken in this House. They were basing themselves on the experience of earlier years; on the long contest with the Crown throughout the seventeenth century when, again and again, the Crown had sought to make Members liable for words spoken in debate.

It is quite clear that they had no notion in those days of questions to Ministers, or of documents that might pass outside the House. They certainly had no notion of letters written to Ministers in relation to the activities of statutory boards.

Mr. Glenvil Hall

Would the hon. and learned Gentleman go a step further and say whether, in his view, had letters to Ministers been common then, Parliament would have extended privilege to them?

Mr. Foot

That is such a hypothetical question, but I very much doubt if it would. We can only look at the circumstances in which the Bill was passed. It was not then the custom for Members to write to Ministers on all sorts of matters, and I would submit that it is perfectly clear that what they had in mind was the protection of debates in this House—

Mr. Ede

I am sorry to interrupt my hon. and learned Friend but does he therefore hold the view that in putting the exact words into the Bill of Rights about the freedom of speech, debates or proceedings in Parliament, the words about proceedings were tautologous?

Mr. Foot

I certainly do not. Certainly, there may have been other proceedings in the sense of, say, Petitions to this House. They would be a proceeding in the House. The Petition is a very ancient form of Parliamentary proceeding, and in the Journal of the House there can be found many examples of Petitions being presented to this House by petitioners coming to the Bar. That would be a proceeding in the House and would be covered by the Bill of Rights. But, in recent years, we have greatly extended the boundaries of Parliamentary privilege—

Mr. Blackburn

Would not the hon. and learned Gentleman agree, not we have extended them but have given them an interpretation in accordance with modern practice?

Mr. Foot

That may well be what was the intention of the Committee of Privileges and of this House, but what I am submitting is that the effect has been that we have, in fact, extended the boundaries of privilege.

One can see how that process took place. There is a reference in paragraph 4 of the Report of the Select Committee on the Official Secrets Act. It reads: Cases may, however, easily be imagined of communications between one member and another, or between a member and a minister, so closely related to some matter pending in, or expected to be brought before, the House, that though they do not take place in the chamber or a committee room they form part of the business of the House, as, for example, where a member sends to a minister the draft of a question he is thinking of putting down or shows it to another member with a view to obtaining advice as to the propriety of putting it down or as to the manner in which it should he framed. That was a step we took in the case of the Select Committee on the Official Secrets Act.

In this Report, we go a step further. In paragraph 11, page vii, we find: Where a Member of Parliament writes to a Minister concerning a Nationalised Industry and criticises the administration of that industry or the conduct of the Minister, the Statutory Authority or its Subordinate Board and is not satisfied with the reply he has from the Minister, the Authority or the Board, it is a reasonable possibility that he will seek an opportunity to debate the matter in the House. That debate would certainly be a debate or proceeding in Parliament.

Mr. Woodburn

My hon. and learned Friend has very kindly given way. One or two things in his speech puzzle me. For instance, in a very clear speech from the other side we have been advised that a very simple question was being put to the Judicial Committee. My hon. and learned Friend now says that we are asking the Judicial Committee to interpret what "proceedings in Parliament" means. There is nothing about that in the question at all. That ceases to be a judicial question or a question of interpretation. According to my hon. and learned Friend we are now asking the Judicial Committee to deal with our business, to decide what are proceedings in Parliament.

Mr. Foot

That may well be so, and that is the point I desire to bring to the attention of the House. There is a reference to a speech or proceeding…in Parliament. If the Judicial Committee is to answer that question, it seems to me that it must decide in the first place, what a proceeding in Parliament is. Until it has done that, it cannot answer the question that is put to it.

As I said, I hope that these earlier decisions of the Committee of Privileges are to be reconsidered, and one reason why I support the Motion is that I hope that, as a result of the Judicial Committee's advice, they will be so reconsidered. I know that a great many hon. Members who have spoken seem to think that we must, at all costs, maintain the privileges of the House of Commons. Of course, in a sense, we would all agree with that, but there is, I suggest, the other proposition; that we ought, at the same time, to be extremely vigilant to keep those privileges within proper limits, and we ought to observe the Resolution agreed to by both Houses in 1704, that it is not open to us to enlarge our privileges.

Parliamentary privilege has had a very chequered history. It is quite true that in the sixteenth and seventeenth centuries it played a very important part when this House was resisting the pressure of the Crown. Quite a number of right hon. and hon. Members referred to the occasion when Charles I came, with soldiers at his back, to arrest the five Members, when he borrowed the Speaker's Chair, and, later, went out amidst cries of "Privilege, Privilege."

The history of Parliamentary privilege did not end there, however. When we come to the eighteenth century, parliamentary Privilege was something which was, in many ways, a considerable evil. Perhaps the least creditable chapter in the history of the House is when Parliament was dealing with the Middlesex election, and John Wilkes, and the publication of debates. That chapter ended with the occasion on 21st March, 1771, when this House decided to send the Lord Mayor of London to the Tower. I do not think that anyone would defend those proceedings now.

The last big conflict over privilege took place in the case of Stockdale v. HANSARD. Since then, the question of the limits of privilege had hardly ever been raised until the Report of the Committee of Privileges and the debate today. But in recent years—and I agree here with my right hon. Friend the Member for Lewisham, South (Mr. H. Morrison) and a number of other hon. Members—there has been a tendency to invoke Parliamentary privilege much too often.

There have been far too many cases when hon. Members have complained here of contempts of this House. I think that that is a view very widely held on both sides. I agree, therefore, with those hon. Members on both sides who have suggested that the time has come when we ought to put our house in order, when we ought to have a very comprehensive review of the limitation of Parliamentary privilege, and when we ought to make up our minds as to the sort of occasion when Privilege should properly be invoked.

8.28 p.m.

Mr. R. A. Butler

We have had an interesting debate, and, in view of the fact that hon. Members wish to discuss questions of procedure, I think that despite the importance of this subject we ought now if we can to bring this matter to a conclusion.

The hon. and learned Member for Ipswich (Mr. Foot) went a little wider than the Motion on the Paper and gave us some interesting points of view about Parliamentary procedure and its history. We are glad to have him back with us. But I do not propose to follow him into these details, because if I did, I might make the sort of speech which I was tempted to make in opening, namely one of the great speeches of our time on Parliamentary procedure, which I do not think this debate is about.

I should like to say that I have taken the best legal and Parliamentary ad vice—Parliamentary advice to suit the right hon. Member for South Shields (Mr. Ede) and legal advice to suit my right hon. and learned Friend the Attorney-General and—have balanced them. The best legal and Parliamentary advice that I can obtain is that if the House passes this Motion no question of surrendering our privileges to an outside body arises at all. I can give the House that assurance. I can follow up with the assurance that I gave earlier, namely that when the decision conies back from the Judicial Committee it will be in the form of advice to us, and it will be up to this House to accept it or reject it, or send it to the Committee of Privileges, or to do whatever it likes with it. That is the only possible circumstance in which we can take this action.

Mr. Pickthorn

Whether or not we accept the Privy Council's advice, what does my right hon. Friend think the courts would do about it?

Mr. Butler

The answer is that it all depends on what we do, and then we shall see what the courts do. I am not going to tell the courts ahead what Parliament is going to do when we receive this advice from the Judicial Committee.

To put the matter straight, the hon. Member for Ipswich referred to the Act of 1833, and it is that Act which will be operating in this case. We shall be referring this matter under Section 4 of that Act which says: That it shall be lawful for His Majesty to refer to the said Judicial Committee for Hearing or Consideration any such other Matters whatsoever as His Majesty shall think fit.… I am obliged to the hon. Member for Ipswich for reminding the House that that is the Statute under which we are acting.

To sum up the debate, I think I ought to say that the balance of opinion is in favour of letting this go forward. That is to say, the right hon. Member for Lewisham, South (Mr. H. Morrison) came out in favour, just, on the side of allowing this legal point to be considered by the Judicial Committee.

Before I come to the speech of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), I should like to refer to a point which was made by the right hon. Member for Lewisham, South, himself a former Chairman of the Committee of Privileges. He took up a point about our procedure which had been raised by the right hon. Member for South Shields. I would only say in all humility that the procedure of the Committee of Privileges was arranged and ordered throughout by the Members, and the right hon. Member for South Shields is quite right in saying that from the start he wanted to see all the papers relating to the right hon. Member for Vauxhall (Mr. Strauss). In fact, he used the very disquieting phrase that he wished to see the body before deciding what to do next. He was absolutely consistent throughout in his view, and his speech is perfectly legitimate to that extent.

In answer to the right hon. Member for Lewisham, South, I would say that the Committee's work was divided up into the early part when we considered the first part of the Report of the Clerk of the House, and then into the second part dealing with the specific case of the right hon. Gentleman. It was when we came to the specific case that we considered the relevant papers which were put before us. I speak only as Chairman, and on these matters the Committee of Privileges decides by deliberation its own procedure. It is as Chairman of that Committee that I have moved this Motion.

In answer to the hon. Member for Nelson and Colne (Mr. S. Silverman), I had considered, even before I moved the Motion, whether it was necessary to move it. As I say, I moved it only in my capacity as Chairman of the Committee of Privileges and because there was a majority on that Committee of six to three in favour of such a Motion. Therefore, I had no alternative to moving it.

Having listened to the debate, am I in favour of withdrawing the Motion? My answer is that I am not in favour of withdrawing the Motion because, on listening to the debate, I do not find that the balance of argument has gone against this safeguard, and I do find, on balance, that it is worth taking this serious step. I say "serious step" because of its lack of precedent.

Let us examine the case, and I will promise not to detain the House too long. The whole thing was summed up in the speech of the hon. and learned Member for Northampton (Mr. Paget) when he said that the Committee interpreted courageously and correctly the Bill of Rights, and then he said, "Why pass the decision about the Act of 1770 in its relationship to the Bill of Rights to someone else? Parliament is supreme and we should have decided it." That is the gravamen of the speech of the hon. Member for Nelson and Colne and of various others who have taken part in the debate. They say, "If the Committee, up to paragraph 17 of its Report, took a courageous line, why did the Committee not pursue this line right through and itself interpret the Statute of 1770?"

I think that the hon. and learned Member for Ipswich has given the answer. It is for Parliament to make the laws and for the courts to interpret them. I do not think that we would do wrong by appealing to the highest legal body we can find to interpret the Act of 1770? Why? Because after we pass paragraph 17, up to which the hon. and learned Member for Northampton (Mr. Paget) thought the Committee was courageous, we find this in paragraph 18: The attention of the Committee was drawn, however, to an Act of 1770, entitled the Parliamentary Privilege Act, 1770, and it is contended that the effect of that Act, reading it with the Bill of Rights of 1688, is that institution (or the threat of the institution), of legal proceedings against a Member of Parliament, even in respect of his speech, part in debate, or proceeding in Parliament, cannot be treated as a breach of Privilege, that the Member must enter an appearance within the proper time to the writ and state that he intends to defend the action, and that when the matter comes before the court, he can then claim that the court has no jurisdiction to entertain the proceedings as he is entitled to the protection of the Bill of Rights of 1689". It goes on to say that, as the matter is a legal one, it should be referred to the Judicial Committee.

The balance of argument is this. There is a case for the point made by the hon. Member for Nelson and Colne with his usual dialectical ability. His point was that if we have one result from the Committee it will be a waste of time, and if we have another result it will be embarrassing. There is a case for that argument. There is also a case for the argument of the hon. and learned Member for Surrey, East (Mr. Doughty) who I thought made a very clear contribution to the debate, and the argument of the hon. Member for Buckinghamshire, South (Mr. Ronald Bell). They both made it clear that if we leave the situation in that way, hon. Members in the future may be in a great deal of embarrassment. This point was also made by the hon. and learned Member for Kettering (Mr. Mitchison). I think those views are shared by all hon. Members. It is not, as I said, a party matter or a matter for the Government. It is a matter for the House of Commons.

The hon. and learned Member for Kettering asked what might happen in the future. That is very uncertain. The hon. Member for Nelson and Colne, on the other hand, said that as we had lived for 187 years or some such time without this threat—indeed 120 years, since the Resolution of 1837, can certainly be taken as the time we have lived without this threat—why take the trouble to look into the Act. Why not let sleeping dogs lie? The answer is that this dog has been kicked up. What will this dog do next? Will it go for Members in the future or not? I am not frightened of whether or not it will go for the privileges of Parliament. I am not frightened for the privileges of Parliament, whatever this dog may do, because we can shoot the animal. We can do what we like to it. I am one of those unrepentantly in defence of the liberties and privileges of the House and I would not be worthy of my position if I were not. I do not want this animal prowling about without knowing what sort of teeth it has. That is what we want to find out from the veterinary surgeon to whom we are sending the question.

We wish to obtain from the Judicial Committee a ruling on what this Act means in the context of the Act of 1688. That is what we are asking the House to do. There is a slight danger in this step. I do not take the view that anybody who has spoken against this Motion has done so from any lack of consideration of their proper position as a Member of Parliament. There is a danger in this step. We may have an embarrassing situation to deal with in the light of the findings of the Judicial Committee. I would not go so far as the hon. and learned Member for Ipswich, because I do not know what that finding will be. I want to wait to see what it is. I do not necessarily follow him in his further reasoning. I do not know what the situation will be. I want to reassure the House and say that we shall certainly retain the right to take whatever action is necessary.

I come now to another point raised by the hon. Member for Nelson and Colne, and I take up also a point made by the hon. and learned Member for Ipswich and other hon. Members. The hon. Member for Nelson and Colne said, If in 1704 it was said that we could not extend our privileges, how can we, for instance, take action in this case to extend them if we want to? I take the view—it is my personal view, and if I put it as such I suppose I shall have to stand for it afterwards—that if the reading together in this year of grace 1957 of the Statute of 1770 and the Bill of Rights of 1688–89 means that our privileges are eroded, then I regard it as being even within Resolutions of Parliament as before at least to restore our privileges to what they ought to be. That is really the point of the submission.

There is doubt about the content of the Act and what the Section means. In order to get rid of that doubt, we are submitting it to the Judicial Committee of the Privy Council. I therefore appeal

to the House, on the strength of the few remarks that I have been able to make, to come to this decision. I appeal to hon. Members not to enlarge the issue, not to renounce their privileges, not to feel that we shall not defend a Member in the ordinary course of the transaction of his duties as a Member, which we must do, as a House of Commons, in modern times.

In conclusion. I take up the last words of the Clerk in submitting his Memorandum which are, I think, eloquent today: Parliamentary procedure is constantly changing and developing new forms and I think that it is for the House to take the initiative in interpreting its novel procedures in the terms of its ancient rights and immunities.

Question put:—

The House divided: Ayes 164, Noes 106.

Division No. 15.]	AYES	[8.43 p.m.
Aitken, W. T.	Farey-Jones, F. W.	Kershaw, J. A.
Allen, Scholefield (Crewe)	Finlay, Graeme	Kirk, P. M.
Alport, C. J. M.	Fisher, Nigel	Lancaster, Col. C. C.
Anstruther-Gray, Major Sir William	Fletcher-Cooke, C.	Leavey, J. A.
Armstrong, C. W.	Foot, D. M.	Leburn, W. G.
Ashton, H.	Fort, R.	Legge-Bourke, Maj. E. A. H.
Atkins, H. E.	Freeth, Denzil	Legh, Hon. Peter (Petersfield)
Baldwin, A. E.	Gammans, Lady	Lindsay, Hon. James (Devon, N.)
Balniel, Lord	Garner-Evans, E. H.	Lindsay, Martin (Solihull)
Barber, Anthony	George, J. C. (Pollok)	Lloyd, Maj. Sir Guy (Renfrew, E.)
Barlow, Sir John	Glover, D.	Low, Rt. Hon. Sir Toby
Barter, John	Glyn, Col. Richard H.	Lucas-Tooth, Sir Hugh
Bell, Ronald (Bucks, S.)	Godber, J. B.	McAdden, S. J.
Bennett, Dr. Reginald	Gomme-Duncan, Col. Sir Alan	Macdonald, Sir Peter
Bevins, J. R. (Toxteth)	Goodhart, Philip	Mackie, J. H. (Galloway)
Bishop, F. P.	Gower, H. R.	McLaughlin, Mrs. P.
Black, C. W.	Grant, W. (Woodside)	Maclay, Rt. Hon. John
Bowden, H. W. (Leicester, S. W.)	Grant-Ferris. Wg Cdr. R. (Nantwich)	Macmillan, Maurice (Halifax)
Boyd-Carpenter, Rt. Hon. J. A.	Green, A.	Macpherson, Niall (Dumfries)
Braithwaite, Sir Albert (Harrow, W.)	Gretham Cooke, R.	Maddan, Martin
Bromley-Davenport, Lt.-Col. W. H.	Grimston, Sir Robert (Westbury)	Mann[...]ngham-Buller, Rt. Hn. Sir R.
Brooke, Rt. Hon. Henry	Grosvenor, Lt.-Col. R. G.	Marshall, Douglas
Brooman-White, R. C.	Gurden, Harold	Mathew, R.
Browne, J. Nixon (Craigton)	Harris, Frederic (Croydon, N. W.)	Maude, Angus
Bryan, P.	Harrison, A. B. C. (Maldon)	Mawby, R. L.
Bullus, Wing Commander E. E.	Harrison, Col. J. H. (Eye)	Mitchison, G. R.
Butler, Rt. Hn. R. A. (Saffron Walden)	Harvey, Sir Arthur (Macclesfd)	Molson, Rt. Hon. Hugh
Champion, A. J.	Heald, Rt. Hon. Sir Lionel	Morrison, John (Salisbury)
Chichester-Clark, R.	Heath, Rt. Hon. E. R. G.	Nabarro, G. D. N.
Cole, Norman	Henderson-Stewart, Sir James	Nairn, D. L. S.
Conant, Maj. Sir Roger	Hesketh, R. F.	Nugent, G. R. H.
Cooper, A. E.	Holland-Martin, C. J.	Oakshott, H. D.
Corbet, Mrs. Freda	Hornby, R. P.	Page, R. G.
Cordeaux, Lt.-Col. J. K.	Hornsby-Smith, Miss M. P.	Pannell, N. A. (Kirkdale)
Corfield, Capt. F. V.	Howard, John (Test)	Pearson, A.
Craddock, Beresford (Spelthorne)	Hughes-Young, M. H. C.	Peel, W. J.
Davidson, Viscountess	Hutchison, Sir Ian Clark (E'b'gh, W.)	Pickthorn, K. W. M.
D'Avigdor-Goldsmid, Sir Henry	Hutchison, Michael Clark (E'b'gh, S.)	Pike, Miss Mervyn
Deedes, W. F.	Hylton-Foster, Rt. Hon. Sir Harry	Pott, H. P.
Dodds-Parker, A. D.	Irvine, Bryant Godman (Rye)	Powell, J. Enoch
Drayson, C. B.	Jenkins, Robert (Dulwich)	Price, David (East[...]gh)
du Cann, E. D. L.	Jennings, Sir Roland (Hallam)	Price, Henry (Lewisham, W.)
Duncan, Sir James	Johnson, Eric (Blackley)	Redmayne, M.
Elliot, Rt. Hon. W. E. (Kelvingrove)	Joseph, Sir Keith	Rodgers, John (Sevenoaks)
Elliott, R. W. (N'castle upon Tyne, N.)	Kaberry, D.	Roper, Sir Harold
Emmet, Hon. Mrs. Evelyn	Kerby, Capt. H. B.	Sharples, R. C.
Errington, Sir Eric	Kerr, Sir Hamilton	Simon, J. E. S. (Middlesbrough, W.)
Spearman, Sir Alexander	Teeling, W.	Webbe, Sir H.
Speir, R. M.	Temple, John M.	Whitelaw, W. S. I.
Steele, T.	Thomas, P. J. M. (Conway)	Wills, G. (Bridgwater)
Steward, Sir William (Woolwich, W.)	Thorneycroft, Rt. Hon. P.	Woollam, John Victor
Storey, S.	Tiley, A. (Bradford, W.)	Yates, William (The Wrekin)
Stuart, Rt. Hon. James (Moray)	Turton, Rt. Hon. R. H.
Studholme, Sir Henry	Vane, W. M. F.	TELLERS FOR THE AYES:
Sumner, W. D. M. (Orpington)	Ward, Dame Irene (Tynemouth)	Mr. Doughty and
Taylor, William (Bradford, N.)	Watkinson, Rt. Hon. Harold	Mr. Godfrey Nicholson.
NOES
Albu, A. H.	Hobson, C. R. (Keighley)	Popplewell, E.
Allaun, Frank (Salford, E.)	Holmes, Horace	Prentice, R. E.
Allen, Arthur (Bosworth)	Hughes, Cledwyn (Anglesey)	Price, J. T. (Westhoughton)
Awbery, S. S.	Hughes, Emrys (S. Ayrshire)	Prootor, W. T.
Balfour, A.	Hunter, A. E.	Pryde, D. J.
Bence, C. R. (Dunbartonshire, E.)	Irvine, A. J. (Edge Hill)	Randall, H. E.
Blackburn, F.	Isaacs, Rt. Hon. G. A.	Rankin, John
Blyton, W. R.	Johnson, James (Rugby)	Rawlinson, Peter
Bowen, E. R. (Cardigan)	Jones, David (The Hartlepools)	Roberts, Albert (Normanton)
Bowles, F. G.	Jones, Jack (Rotherham)	Roberts, Goronwy (Caernarvon)
Brookway, A. F.	Kenyon, C.	Robinson, Kenneth (St. Pancras, N.)
Brown, Rt. Hon. George (Belper)	King, Dr. H. M.	Ross, William
Callaghan, L. J.	Lawson, G. M.	Royle, C.
Craddock, George (Bradford, S.)	Lee, Frederick (Newton)	Short, E. W.
Cullen, Mrs. A.	Lipton, Marcus	Simmons, C. J. (Brierley Hill)
Currie, G. B. H.	Mabon, Dr. J. Dickson	Smith, Ellis (Stoke, S.)
Davies, Rt. Hn. Clement (Montgomery)	MacDermot, Niall	Stewart, Michael (Fulham)
Davies, Ernest (Enfield, E.)	McInnes, J.	Sylvester, G. O.
Davies, Harold (Leek)	McKay, John (Wallsend)	Thomas, George (Cardiff)
Davies, Stephen (Morthyr)	MacMillan, M. K. (Western Isles)	Thomas, Iorwerth (Rhondda, W.)
Deer, G.	MacPherson, Malcolm (Stirling)	Usborne, H. C.
Delargy, H. J.	Mallalieu, E. L. (Brigg)	Viant, S. P.
Dye, S.	Mann, Mrs. Jean	Wade, D. W.
Ede, Rt. Hon. J. C.	Mason, Roy	Watkins, T. E.
Edwards, Rt. Hon. Ness (Caerphilly)	Mellish, R. J.	Wheeldon, W. E.
Fernyhough, E.	Mikardo, Ian	White, Mrs. Eirene (E. Flint)
Fletcher, Eric	Monslow, W.	Witkins, W. A.
Fraser, Thomas (Hamilton)	Morris, Percy (Swansea, W.)	Williams, W. R. (Openshaw)
George, Lady Megan Lloyd (Car'then)	Moyle, A.	Winterbottom, Richard
Gibson, C. W.	Oram, A. E.	Woodburn, Rt. Hon. A.
Grey, C. F.	Oswald, T.	Woof, R. E.
Griffiths, William (Exchange)	Paget, R. T.	Zilliacus, K.
Hall, Rt. Hn. Glenvil (Colne Valley)	Paling, Will T. (Dewsbury)
Hannan, W.	Palmer, A. M. F.	TELLERS FOR THE NOES:
Hastings, S.	Peart, T. F.	Mr. Parker and
Hayman, F. H.	Pentland, N.	Mr. Sydney Silverman.
Herbison, Miss M.	Plummer, Sir Leslie

Resolved, That an humble Address be presented to Her Majesty praying that Her Majesty will refer to the Judicial Committee of the Privy Council for hearing and consideration the question of law, whether the House would be acting contrary to the Parliamentary Privilege Act, 1770, if it treated the issue of a writ against a Member of Parliament in respect of a speech or proceeding by him in Parliament as a breach of its Privileges, in order that the said Judicial Committee may, after hearing argument on both sides (if necessary), advise Her Majesty thereon; and further praying that Her Majesty, upon receiving the advice of the said Judicial Committee, will be pleased to communicate such advice to this House, in order that this House may take such action as seems to it proper in the circumstances.

To be presented by Privy Councillors or Members of Her Majesty's Household.