HC Deb 30 July 1958 vol 592 cc1361-9
The Secretary of State for the Home Department and Lord Privy Seal (Mr. R. A. Butler)

There are some doubts in the minds of hon. Members following the decision of the House in the debate upon the Report of the Committee of Privileges which took place recently. On one matter, Mr. Speaker, I think that it would be helpful if you gave us the benefit of your advice. I understand that the Table has advised hon. Members who have approached them on subjects affecting the day-to-day administration of their activities to send letters to the nationalised boards on such questions. May I now give you an opportunity, Mr. Speaker, to state your opinion on that matter?

Mr. Speaker

The advice tendered to hon. Members by the Clerks at the Table is unofficial and is offered in a spirit of helpfulness to hon. Members. Hitherto, an hon. Member submitting an inadmissible Question has been advised to write to the board concerned, or to try to raise the matter on the Adjournment. Since the decision of the House on 8th July it has been thought prudent for the Clerks not to say anything to hon. Members about writing to Ministers or boards. This is merely a precaution against the possibility, however remote, of the Clerks being involved in any dispute. It is not intended to convey any advice against writing letters, and no doubt hon. Members will exercise their own discretion as hitherto.

Mr. Butler

Mr. Speaker, the House is obliged to you for your statement. May I deal separately with two points, first, as to Members' letters to Ministers, and, secondly, as to Ministers' handling of these letters?

As to Members' letters to Ministers, a recent vote of the House decided one particular question, namely, that the letter from the right hon. Member for Vauxhall (Mr. G. R. Strauss) was not a proceeding in Parliament, but it reminds us of the individual responsibility that we all have as Members to exercise the greatest care in writing to Ministers and to the chairmen of nationalised boards, and I hope that no Member will see fit to forward for investigation allegations which he believes are merely mischievous or frivolous.

It may also be helpful to the House if I say, on the legal position, that I have been advised that no matter how mischievous a constituent's allegations may be the Member who forwards them in good faith is adequately protected.

Now as to what Ministers do with the letters they receive. It is in the interests of everyone that the public and hon. Members should feel free to make a proper complaint about the administration of our public services, but many criticisms cannot be satisfactorily investigated without passing on the letter or the contents of such a letter to the bodies immediately responsible. Hon. Members should understand clearly, therefore—and I emphasise this—that in the absence of an expressed request to the contrary, Ministers may pass on the contents of their letters and, if necessary, the letters of their constituents to bodies outside the Government service. I can assure the House that Ministers use every care in investigating complaints.

As my right hon. Friend the Member for Woodford (Sir W. Churchill) said in an earlier discussion on this matter, at the time when he was Prime Minister, it is not one which can be dealt with by general rule. Departments are, however, being reminded by my right hon. Friend the Prime Minister of their responsibilities and of the need which is enjoined on them to exercise great discretion and to handle the letters in the most circumspect manner appropriate to each case.

Mr. Gaitskell

I am sure that the House is grateful to you, Mr. Speaker, for the care that you have taken to protect the Clerks of the House in the difficult position in which they might find themselves.

As to the statement of the Leader of the House, I am bound to say that it seems to me to leave matters very much where they were. Is the right hon. Gentleman aware that I am sure that no Member would, in any event, forward allegations which he believed were merely mischievous or frivolous, but that it is very frequently difficult for hon. Members to know whether they are or are not mischievous and frivolous?

Secondly, would the right hon. Gentleman enlarge upon his remark that, according to the advice that he has received, a Member who forwards constituents' letters in good faith is adequately protected? Does he mean by this that he is protected by the doctrine of qualified privilege in the courts, or does he mean that he would not be taken to court at all? Would the right hon. Gentleman clear up that position?

Thirdly, in view of the fact that we shall shortly begin the Summer Recess and that, therefore, opportunities for raising matters on the Adjournment or putting down Questions are no longer present, so that hon. Members who wish to forward any complaints of this kind are bound to write letters to Ministers, will the right hon. Gentleman consider advising hon. Members as to some suitable form of words that they might use which will give them some protection in this matter?

Finally, is it the intention of the right hon. Gentleman that the Committee of Privileges should meet again to consider this whole situation?

Mr. Butler

The right hon. Gentleman asked whether the Committee of Privileges would meet again. No matter has actually been remitted to the Committee, but there is no reason why it should not consider this matter if it feels so inclined. The right hon. Gentleman is a prominent member of the Committee, and I would be ready to discuss the matter with him and with other right hon. Gentlemen who are members of it.

In answer to the right hon. Gentleman's other point, I am aware that Members do attempt to forward their letters after investigating whether they are malicious or mischievous. They do their best. It is impossible to be absolutely sure, but they certainly do their best. The sole reason for my using that language was that as this position is a difficult one, I thought it right, as Leader of the House, to use language which might seem rather pompous but which, at the same time, is a useful warning to hon. Members in the situation which now prevails. I think it is important to realise that there is a danger in Members forwarding letters which are in themselves malicious.

On the second point raised by the right hon. Gentleman, when he asked whether an hon. Member is adequately protected if he should forward a letter in good faith, my answer is that, in my opinion, he would be covered by qualified privilege in the courts; to that extent he is covered. I should make this general observation, that I do not think there is any change in the position which has prevailed over a number of years in relation to Members' letters and their correspondence.

As to whether there is a danger of hon. Members appearing in court, that is a matter which I cannot control and upon which I cannot comment; and I think it fairer to say that in answer to the right hon. Gentleman.

The right hon. Gentleman then asked whether there would be any protection for Members, or whether any advice could be given to them for the Summer Recess. I can only say again that it is possible to attempt to frame, and to put in the Library, if necessary, a form which might be regarded as a suitable form of words, and if the right hon. Gentleman as Leader of the Opposition wishes to consult me on that matter I will do my best to produce such a form of words; but I could not give an absolute guarantee that that form of words would be satisfactory. If that would help hon. Members, I should be glad to do so. That is as far as I can go.

Mr. Woodburn

If a Department transmits what the right hon. Gentleman calls a malicious letter outside the Department, that Department itself is committing a libel. Is there any reason why the Department should not exercise discretion, as well as hon. Members, and see that such letters do not go outside Departments if they are considered to be malicious?

Mr. Butler

I have only said that I do not think the Executive can be stopped from forwarding letters which are sent to them. That is why it is important for hon. Members to realise that unless there is something in their communication to the Department which expressly stops them, I do not think that Departments can be prevented from forwarding the contents of letters which they receive.

Mr. Shinwell

May I make a constructive suggestion? If an hon. Member wishes to send a letter to a Minister on the basis of any allegation made either against the Minister or somebody in a Department, or a person outside the House of Commons, could we not escape the fear of a libel action if those letters were sent in the first place to the Attorney-General, who would examine those letters and determine whether there was any danger of any action being taken against the Member concerned?

Mr. Butler

I think that my right hon. and learned Friend the Attorney-General would find this a somewhat heavy burden.

Mr. Mitchison

Does not the right hon. Gentleman think that there is a case for legislation to protect hon. Members from the risk and the uncertainty of litigation in the proper performance of their duties in modern conditions?

Mr. Butler

There may or may not be a case for legislation, but the question is whether there is a majority for such legislation. That I very much doubt. I doubt whether there is a majority for such legislation in the House as at present constituted. It would mean an extension by legislation of Parliamentary Privilege. It is always possible to alter the statute law to extend our privileges, but first we have to be sure of the majority that one has to pass such a Bill.

Mr. Dudley Williams

To clear up any misapprehension, does not my right hon. Friend agree that there is no danger in passing on a letter which is malicious unless the hon. Member who passes it on knows that the letter is malicious?

Mr. Butler

The hon. Member who passes on a letter which may itself be malicious, provided he passes it on in good faith, and does not himself appear malicious in doing so, would be, I understand, covered by qualified privilege.

Mr. Clement Davies

May I be clear that the right hon. Gentleman's view is this, that if a letter is forwarded by a Member of Parliament he is now in exactly the same position as any member of the public, that a writ may be issued against him and that he would then have to defend it and hope that he would succeed on qualified privilege? Does the right hon. Gentleman regard that as adequate protection?

Mr. Butler

I made certain observations in the course of moving recently the Motion on behalf of the Committee of Privileges. The House has now taken a decision which we must accept. I should like to make clear that in accepting that decision, it was on a particular case. With regard to all other cases, I do not see that the House is in any worse position than it has been over the last 200 years. Not being in a worse condition may not be satisfactory, but there are very few instances recorded in the pages of Erskine May and in the annals of history where a Member has got into trouble through doing his duty in a conscientious way.

Mr. Tiley

Will it be possible, during this period of doubt, for the Government to effect an insurance against libel?

Mr. Butler

I had already considered this matter, but I rather doubt whether my right hon. Friend the Chancellor of the Exchequer would pay up.

Mr. Paget

Is the right hon. Gentleman aware that the change of circumstances as against the last 200 years is that vast publicity has drawn people's attention to the fact that litigation which was previously regarded as impossible is now possible?

Is the right hon. Gentleman further aware that when a Member receives complaints about the conduct of a public official, he is not in a position to check the truth of that allegation? He passes it to the Minister; he is passing an allegation and he does not know whether it is true or false. He is passing it for investigation. He will not be covered by qualified privilege in so passing it, because the whole basis of qualified privilege is that the person who publishes it has an honest belief in the truth of the allegation.

In those circumstances, does not the right hon. Gentleman feel that legislation is necessary and that a good many Members who voted against the recent Motion from the Committee of Privileges did so because they believed that the letter in question was not a proceeding in Parliament, and that they would, in fact, support legislation?

Mr. Butler

I would not necessarily accept the definition as put by the hon. and learned Member. I believe that if a Member forwarded a case in good faith he would be covered by qualified privilege. That, I believe, has been the position, and I believe that it will be the position in the future. I do not believe that the situation has altered in respect of the law in the courts from what it has been in the past, so the hon. and learned Gentleman's use of the word "impossible" in relation to a law suit is not, I think, right.

Mr. Doughty

Is my right hon. Friend aware that Members of Parliament are not the only people who forward letters to Ministers and Ministries, and that in attempting to legislate to give hon. Members a privileged position, we will be putting ourselves into a class apart from many other people, such as trade union officials and trade organisations, who also have the duty of forwarding letters to Ministers? Is he further aware that such legislation would be much resented, particularly when the qualified privilege that is now enjoyed covers cases even when untrue letters are sent, provided that malicious remarks are not included, and that the best course is for hon. Members to temper the wording of their covering letters?

Mr. Butler

I am aware of the difficulties that would be involved if we were to enter into any possibility of legislation. That is why I said earlier that I did not think that legislation would be easy. I think that what my hon. and learned Friend says is true. It is also true of letters sent within the sphere of local government, where those in local government do not enjoy the same extent of qualified privilege even that we do.

Nevertheless, I think that we must keep a balance on this. I think that some of the comment of the Press has underestimated the public duty of hon. Members and that it would be a good thing if the Press and the public outside realised that there does fall on hon. Members a very special duty in this respect. While I do not believe that the situation has altered from what it has been over the last 200 years—except in respect of the complication of modern life—I think that we must be extremely careful in our handling of this matter in the future.

Major Legge-Bourke

On a point of order, Mr. Speaker. May I respectfully ask you how long you intend to allow this matter to run on? If I may suggest it to you, there are many of us who, if we were to have a short debate on the matter, would gladly take part in it, but, as I understand, at the moment it is a matter of question and answer. May I humbly suggest that it is becoming a matter of debate?

Mr. Speaker

I am myself just coming to a similar conclusion. We are not today rehashing, or commenting on, the debate that we had on 8th July, when we had a definite Question before the House for its decision. There is no such Question before us today. Still, I thought that as the House is about to break up, and hon. Members are anxious about this, I could stretch beyond my usual tolerance of these exchanges.

Mr. E. Fletcher

Does the Leader of the House, who has answered questions with a good deal of sympathy for the difficulty in which hon. Members find themselves, realise that the various statements that he has made, and the statement that you, Mr. Speaker, have made, do nothing to resolve the difficulty in which Members on both sides find themselves?

The Leader of the House has referred to a formula. He has said that the position has not changed during the last 200 years. He has said that the recent decision of the House in the case of my right hon. Friend the Member for Vauxhall (Mr. Strauss) depended on the circumstances of that case. Would the right hon. Gentleman agree that if, in future, when hon. Members forward letters from constituents, or others, to the Government, they make it quite clear in so doing that they are acting in a way preliminary to raising the matter in this House, they would thereby be doing something which would be a proceeding in Parliament? And would the Leader of the House amplify his suggestion that he would advise Members with regard to the formula, whereby they could be absolutely protected when forwarding letters to Ministers?

Mr. Butler

I do not think that it would be possible so to define Parliamentary Privilege as to use the words "a preliminary to action in Parliament" and then to presume that that would be covered by the defence of a proceeding in Parliament. That would be very difficult.

As to advice to members in regard to the form in which they send their letters, even if that advice were given—though it might, indeed, be helpful—I could not guarantee thereby absolute indemnity from any legal proceeding. It would be impossible to guarantee that, but it might help hon. Members in their task.

I did take care last week to warn the House that my statement was not likely to be very constructive, because I knew that we were in a difficult position, although it is not different from the position in which we have been for years. I therefore did not want to raise any false hopes from my statement.