HC Deb 24 January 1967 vol 739 cc1401-9
Mr. MacDermot

I beg to move Amendment No. 12, in page 7, line 5, at the end to insert: (2) In any case where the Commissioner conducts an investigation under this Act, he shall also send a report of the results of the investigation to the principal officer of the department or authority concerned and to any other person who is alleged in the relevant complaint to have taken or authorised the action complained of. The Amendment arises indirectly from a point made in Committee. In the Bill as drafted, the Parliamentary Commissioner is told to send reports which he makes under Clause 10(1) to the Member who asked for an investigation but not to anyone else. As a result, a Department or individual officer against whom a complaint has been made might never see the Parliamentary Commissioner's final report in a case where it exonerated him and might never be able to make public use of it.

It might occur that the complainant had sent a copy of his complaint to the Press, as sometimes happens, and that that had received publicity, but that when finally the report of the Commissioner came, completely exonerating the civil servant and refuting the report, he would have no means of knowing that, or of sending a copy of the exonerating report to the Press. It is therefore obvious that he, too, should be entitled to receive a copy of the report.

Amendment agreed to.

Mr. MacDermot

I beg to move Amendment No. 13, in page 7, line 14, at the end to insert: 'and may from time to time lay before that House such other reports with respect to those functions as he thinks fit'. This is a new point which has arisen, I can inform the House, in effect out of a suggestion of the Parliamentary Commissioner designate. At the moment, under Clause 10, the powers of the Commissioner to make reports are, first, under subsection (1), in what might be called individual cases, to make an individual case report which would then be sent to the Member and the Department concerned. Normally, that would be an end of the matter as far as Parliament was concerned and normally the Select Committee as we envisage it would not he concerned with individual cases of that kind.

Secondly, there would be the special report procedure under subsection (2) by which when the Commissioner considered that there was an unresolved injustice, that he had reached deadlock with the Department and that the Department was not taking sufficient action, he would report to Parliament and that report would be considered by the Select Committee. Thirdly, there is the Commissioner's annual report which would be laid before Parliament and, one envisages, considered by the Select Committee and perhaps debated by the House.

The Amendment proposes a fourth kind of report, what I might describe as an ad hoc report by the Commissioner to Parliament in order to deal with some matter which he felt to be of sufficient importance that he should raise it with the House at once. In practice, this would mean raising it with the Select Committee. It might deal with procedural matters and, in the early stages of the working of the Bill, probably would. For example, one can see that it will be necessary for us, with the assistance of the Select Committee, to work out various procedural conventions about the way in which individual cases are handled. No doubt as a result of his experience and reflections on this matter the Commissioner would be able to lay before the House reports containing suggestions and proposals of that kind. As the Bill is drafted there is no procedure by which he can make a special report of that kind and that is a gap which the Amendment is intended to fill.

Mr. Buck

Is it intended that interim reports of this character will deal with the sort of situation which could arise if there were a dispute between the Commissioner and the Department as to whether a matter was, for example, within a Minister's discretion and therefore subject to the Commissioner's investigation? Is that the sort of matter which the Financial Secretary envisages the Commissioner referring to Parliament in one of the interim reports to be determined by Parliament? If not, who does he envisage resolving such an issue?

Mr. MacDermot

I have not had notice of this question, but I think that I am

'such publication as is hereinafter mentioned shall be absolutely privileged, that is to say—
(a) the publication of any matter by the Commissioner in making a report to the House of Commons for the purposes of this Act;
5 (b) the publication of any matter by a member of that House in communicating with the Commissioner or his officers for those purposes or by the Commissioner or his officers in communicating with such a member for those purposes;
10 (c) the publication by such a member to the person by whom a complaint was made under this Act of a report or statement sent to the member in respect of the complaint in pursuance of subsection (1) of this section of this Act;
(d) the publication by the Commissioner to such a person as is mentioned in subsection (2) of this section of a report sent to that person in pursuance of that subsection.'.
Mr. Speaker

With the Amendment can be discussed the Amendment to the Amendment—to leave out lines 5 to 7.

Mr. MacDermot

This Amendment is to meet various criticisms of the Bill as drafted which were made in Committee. Subsection (4) defines the scope of the absolute privilege which it is intended to confer on the Commissioner and Members of the House in relation to his reports. We were all agreed in Committee that we must be very responsible and careful as hon. Members not to go conferring absolute discretion for the purposes or the law of defamation beyond what was strictly proper. It was felt that the words were rather loose as drafted. The Amendment seeks to make the matter more precise and particularly to relate the privilege not to the document but to various acts of publication of the document. It is the publication in the technical sense in which that word is used in the law of defamation—the publishing of the document in certain circumstances—which is privileged and not the document which is privileged for all time and for all purposes.

right in saying that under the terms of the Bill it is for the Commissioner himself to decide whether he has jurisdiction in a particular matter. If he felt uncertain and wanted to seek further assistance from the House and from the Select Committee, the procedure which we are here proposing would be available to him and might be a useful way in which he could deal with such a situation.

Amendment agreed to.

Mr. MacDermot

I beg to move Amendment No. 14, in page 7, line 15, to leave out from 'any' to the end of line 19 and to insert:

9.45 p.m.

We propose in the Amendment, first, that the publication of the report by the Commissioner to the House shall be absolutely privileged; I do not imagine that there will be much dispute about that. Secondly, any communication between Members and the Commissioner or his officers about a complaint which had been referred will be absolutely privileged. Thirdly, the publication of a report by the Member by sending it back to the complainant should be absolutely privileged. This is obviously necessary if we are to make the Member the channel of communication between the Commissioner and the complainant. The privilege will extend only to the publication of the report. If the Member chooses to comment on the case in his covering letter, he does this at the ordinary risk and peril which he runs in writing to his constituents on any matter. That is not the subject of absolute privilege; it is only the report itself. Fourthly, and perhaps obviously, when the Commissioner sends a copy of his report to the Department and to the civil servant complained against, that also will be privileged.

The Amendment to the Amendment raises the question of whether we should extend this to communcations between Members of Parliament and the Commissioner. There is plainly a balanced argument here. If we as Members write to a Minister in his Department, that is not subject to absolute privilege. That matter went to the Committee of Privileges. Some people think that Members should be protected, but as matters stand they are not protected.

Mr. Hogg

The hon. and learned Gentleman is not quite right. It went to the Committee of Privileges which reported that it should be the subject of privilege. The House differed from the Committee. That is the state of the law as it rests at the moment.

Mr. MacDermot

I am obliged for that amplification. I think that it accords with what I said.

When we raise constituency matters in the House at Question Time, on the Adjournment or during a Supply debate, they are the subject of absolute privilege. The question which we have to decide is whether, with this new procedure which we are devising for investigating complaints, we should regard communication between a Member and the Commissioner as occurring within the ambit of the House or as being on a par with communication between, a Member and a Minister.

As the, Parliamentary Commissioner is an officer of this House, and as we have cast this Bill in such a way as to make him available to Members as an instrument to assist them in their responsibility of safeguarding the rights of citizens, we thought it right that Members should have the complete freedom which results from that absolute privilege. We do not see that there are any risks or dangers attaching to this, and it is for this reason that we have included that also in the Amendment.

Mr. Percy Grieve (Solihull)

I beg to move, as an Amendment to the Amendment—

Mr. Speaker

Order. The hon. and learned Member may speak on it, but not move it.

Mr. Grieve

I beg your pardon, Mr. Speaker.

Mr. Speaker

I want to help the hon. and learned Member. He may speak to the Amendment to the Amendment. It at the end of the debate he wishes to move it formally and to divide on it I will permit that.

Mr. Grieve

I am most grateful, Mr. Speaker.

The problem before the House has been very succinctly expressed by the hon. and learned Gentleman. In a Bill which is designed to protect the rights and liberties of the subject it seems to me that we in this House must be particularly careful to see that other rights and other liberties are not cut down or put in jeopardy. One of the most precious rights of the subject is in his reputation. One of his most precious liberties is the right to protect his reputation by action for defamation in the courts if his reputation is attacked even on an accasion of qualified privilege, if it should be maliciously attacked.

The hon. and learned Gentleman said that he conceived and the Government conceived that for the purposes of the Parliamentary Commissioner and the proper exercise of his functions it was right not only that communications between him and the House, but communications by a Member reporting his statements, publication by a Member, to a person who had made a complaint, of the ombudsman's, the Parliamentary Commissioner's, decision, and the matter contained in paragraph (d)—all these were necessary; and he went on to say that, in his view, it was necessary that the publication of any matter, by a Member of the House communicating with the Commissioner, or the Commissioner with a Member of the House, also should be the subject of absolute privilege.

It is there that I join issue with the hon. and learned Gentleman. This goes further than the privilege which exists to protect the Member communicating with a Minister, and I am bound to say that I do not see the difference in principle between communications between a Member, forwarding a complaint from one of his constituents, and a Minister, and the communications which hereafter, when this Bill becomes law, will be made by Members to the Parliamentary Commissioner.

Mr. Hale

If I get a letter from Korea saying, "I am a British soldier serving here still; I have been charged, and condemned to death; and have been denied my right of appeal, and they are going to shoot me a week on Tuesday" and I get it on Monday, what are the communications I make to protect myself from libel in case the letter is not from a British soldier even though it bears the stamps and has got all the particulars? Surely, there is case after case—I thought the Strauss ruling was all tripe—but there is case after case where it is incumbent upon a Member of Parliament, with the possibility of investigation, to express, with discretion and tact, and without making unnecessary allegations against anybody, tremendously important and tremendously urgent matters.

Mr. Grieve

I am grateful to the hon. Gentleman for his intervention, because it enables me to make more clearly the point which I trust I was already making to the House. If the hon. Member takes straight away to the Minister, as he obviously will, the urgent complaint which he has received, in the terms in which he received it, nobody could possibly impugn that or accuse him of malice in the doing of it. The same would apply to a communication between an hon. Member and the Parliamenttary Commissioner.

It is very important these days that the umbrella of absolute privilege, which covers anything which we say or do in this Chamber, should not be taken further than is absolutely necessary to cover the actions of hon. Members in this House or when they are acting in their capacity as Members outside the Chamber. We would not be doing this House a service by carrying the protection of absolute privilege further than is necessary. It is not necessary, in my submission, in this case.

Hon. Members may adduce cases, but I can conceive of no case where the action of a Member acting honestly in carrying to the Commissioner a complaint he has received from a constituent or someone whose interests he is rightly looking after, can be impugned, unless he goes further and makes himself guilty of malice in the doing of it; and, if he does that, why should he be protected?

The same consideration applies in the reverse direction, to the Commissioner himself in his communications with an hon. Member. In those cases, the ordinary law of the land, the ordinary qualified privilege which would prevail in such a case where they both have an interest, is quite sufficient to protect the hon. Member, and to protect the Commissioner, and to go further is to make a grave inroad into the rights and liberties of the subject whom we are hoping to protect.

Sir D. Glover

I hesitate to intervene in what seems to be a lawyers' argument, but I rise to support the arguments put by my hon. and learned Friend the Member for Solihull (Mr. Grieve). I will be quite honest and say that, when I listened to the Financial Secretary, I saw a great deal in his argument.

If I can diverge for a moment, the hon. Member for Oldham, West (Mr. Hale) always seems to have constituents who are going to be shot in 24 hours. I have been a Member of this House for 15 years and none of my constituents ever seem to get shot.

Mr. Hale

I came to this House on one occasion, almost by accident, on a Monday morning, when four men were at the place of execution and were to be hanged that night. Two of them are still alive as a result of the fact that I got to the House that morning. Let us not be too facetious about these matters.

Sir D. Glover

The hon. Member is a good friend of mine. I hope he will accept that I was only pulling his leg. I know that he has done a great deal in the cause of human justice.

It appears to me that my hon. and learned Friend has a stronger argument than the hon. and learned Gentleman opposite. I accept that, if I were writing to the Parliamentary Commissioner, I would want to say everything under complete privilege. But suppose that this week I received a letter from one of my constituents saying that he was insured with X insurance company, and I wrote to the Parliamentary Commissioner saying that it was one of the "shark" companies and he ought to investigate, but, in fact, it was one of the soundest and straightest companies in the country. In that circumstance, I ought not to be covered by privilege, because I am making a subjective judgment on the results of the publicity which has gone out, and I am ruining the reputation of a perfectly sound firm. I do not think that in that case I should be completely covered. It is a very good salutary discipline for Members of Parliament in those conditions to have to send it to the Parliamentary Commissioner, saying, "I have had this complaint from one of my constituents. I have no knowledge of whether the allegations are right or wrong, but, if I use my influence as a Member of Parliament"—

It being Ten o'clock, the debate stood adjourned.