HC Deb 24 January 1967 vol 739 cc1409-16

Question again proposed, That the words proposed to be left out stand part of the Bill.

Sir D. Glover

In that circumstance, we ought not to be covered by complete privilege. When there is emotional feeling aroused generally, when, perhaps, there is a campaign being run by the hon. Member for Oldham, West or by the hon. Member for Ormskirk, it is only too easy, if we think that we are covered by privilege as Members of Parliament, to write to the Commissioner making allegations which we cannot prove, which may eventually become public, and which may ruin the reputation of all sorts of people, private individuals, firms and so on.

It is a salutary discipline for Members of Parliament, when writing to the Commissioner, to realise that we are covered to a limit only and not completely covered. I hope, therefore, that the hon. and learned Gentleman will accept the Amendment to his Amendment.

Mr. W. O. J. Robinson (Walthamstow, East)

I find it very difficult to understand the purport of the Amendment. I may have misunderstood, but I gather that the intention is to delete paragraph (b) of the Government Amendment, which would mean that, when the Parliamentary Commissioner sent his report or statement to the Member of Parliament, the sending of it and its receipt by the Member would not then be subject to absolute privilege. But the anomaly then is that, when the Member sends the same report or statement to his constituent or complainant, it is covered by absolute privilege.

I find it so illogical that I must oppose the Amendment.

Mr. Ian Percival (Southport)

Like my hon. Friends, I am prepared to limit my remarks to paragraph (b) of the Government Amendment, and I ask the hon. and learned Gentleman to have another think about it. With respect, the hon. Member for Walthamstow, East (Mr. W. O. J. Robinson) has, understandably, confused different parts of the Amendment. As I understand it, paragraph (b) deals simply with what is said by a Member in communicating with the Commissioner. This is the important thing. That is what it says and, if I am wrong, the hon. and learned Gentleman will correct me. However, that is the understanding, and it is on that basis that the Amendment has been moved.

The hon. and learned Gentleman was good enough to say that there was a nice balance here between two possible views. I agree that the Parliamentary Commissioner should be given absolute privilege and his report must be privileged when it is sent on; otherwise, the thing is made a nonsense. All we are concerned with here is what privilege should attach to a Member of Parliament in the part he takes. That, perhaps, puts it more simply. At all events, that is what concerns me—the degree of privilege which a Member of Parliament should have in his dealings with the Parliamentary Commissioner and with his constituent in relation to these matters.

The hon. and learned Gentleman said that there was a nice balance here and one had to choose between two alternatives. On the one hand, there is the qualified privilege which Members have in dealing with Ministers. On the other hand, there is the absolute privilege enjoyed in everything done in the House. As I understand his argument, the hon.

and learned Gentleman then goes on to say, "The Parliamentary Commissioner being a servant of the House, the closer analogy is with the second of those two and there should, therefore, be absolute privilege".

I ask the hon. and learned Gentleman to reconsider this. I do not think that that is the right way to approach it. The right way to approach is that the Member should have the minimum of privilege necessary to enable him to do his job. What is the case for giving him more privilege than he enjoys in connection with communications to Ministers? Is there any case for giving him greater privilege than that?

My hon. Friend the Member for Ormskirk (Sir D. Glover) has given at least one case which illustrates the desirability of not giving Members any greater privileges than are necessary to enable them to do their jobs conscientiously. So far I have heard no reason advanced to the House, save this reasoning by analogy, which I suggest is not a good approach to it, why Members should have more than the qualified privilege. As my hon. Friend said, there is a danger that points like this can lead to the discussion becoming a lawyer's debate. It might, therefore be as well to remind the House that if subsection (b) is left out altogether a Member will have complete privilege unless he is acting maliciously, because in every such communication there must be a common interest between him and the Parliamentary Commissioner. He will, therefore, be entirely privileged unless he is acting maliciously.

Before I vote for the Amendment, or do not vote for the Amendment to the Amendment, whichever is the correct way of putting it, I should like to be satisfied that we need more protection than we will have even without subsection (b).

Mr. Hale

It is strange that on a perfectly innocuous and apparently unimportant discussion we should find ourselves from time to time back to the very elements of the virtues, duties, and responsibilities of this House, and freedom of speech is one of them. Hon. Gentlemen opposite use the word "malicious". It has a horrid sound—of malice aforethought. What does malicious mean? It means a lack of care.

Mr. Hogg

indicated dissent.

Mr. Hale

Yes, indeed, in this connection. Perhaps they will say that it means a reckless lack of care. Let us have the definition. We are talking, not about crime, but about libel, a statement written without taking steps to verify it, a statement written with a reckless lack of care, if one likes.

Mr. MacDermot

I think I am right in saying that "malicious" has different means for different purposes in the law of defamation. For this purpose it is spite or ill-will.

Mr. Hale

I have had a fairly active experience of libel cases, right up to the House of Lords. One of the present important questions was laid in a case of mine by a unanimous decision of the House of Lords. I agree that malice in commercial matters means precious little, but something that could be called deliberate, and even a last-minute deliberation.

In establishing malice it is essential to establish no more than the making of a statement with such a lack of care that the jury can do it. In any event it is a decision for the jury. The finding is still a decision for the jury, and therefore it is a decision of fact. There it is. It is not very germane to my argument in any event. I was merely trying to deal with what the hon. Gentleman said.

I think that the argument advanced by the other side is completely dishonest. I say this with respect to hon. Gentlemen opposite. What was the example quoted by the hon. Member for Ormskirk (Sir D. Glover)? The hon. Member for Ormskirk referred to insurance companies. I assure him that I get hundreds of letters, of which at least 75 per cent. represent cases brought to my notice by my constituents. The hon. Gentleman is right. We do tend not to say what we think about people, not even about our own Ministers, and this is an inhibition which sometimes becomes extremely pressing.

Nevertheless, I have to rely on the letters I receive. The hon. Member for Ormskirk said that the letters he receives are always urgent. That, too, is true.

They may be concerned with trifling matters or they may be of great moment. About a month ago I received a letter from a lady stating that she had not received a receipt from a firm from which she had purchased a certain commodity. I wrote to the best people in Oldham, excellent agents, and got her the receipt she wanted a couple of days later. I then received a letter from the lady saying that she was very thankful and that I should be made Prime Minister. I wrote back thanking her and saying that I entirely agreed but that that might take a little longer to procure.

While this and similar matters may be the subjects of the occasional joke, they are serious grievances to the people who raise them. We must act on the information that is given to us, often given by people who are strangers to us, on matters which we cannot investigate or check. We receive letters from people who are in mental hospitals, in confinement and so on and often the allegations are made—made, I am sure in such a way that the writers are careful not to repeat allegations which they cannot substantiate. While we are not entitled to justify, if that is the best word to use, such allegations, we are at least entitled—and this is part of our duty—to put these matters to the Ministers concerned and say that we seek to put the grievances right.

If we have made an investigation and then consider the question of reporting a matter to the Parliamentary Commissioner, if we are in communication with him, should we say that that burden—of reporting the matter to him—should not be placed upon us? After all, we are in the position of counsel. Counsel's privilege is absolute. Judicial privilege is absolute. The privilege of the Parliamentary Commissioner will be absolute. Why should we be the only people who, without having anything like the services which are available to some people, may find ourselves in difficulty because of this?

Sir D. Glover

The hon. Gentleman seems to be making a lot out of this. When we write to a Minister we are covered by qualified privilege. In the case I cited, if I wrote to the ombudsman and said, "This is one of those sharks", that would be a grave libel. But if I wrote saying "This is one of the 34 companies cited by the Minister in the House", it would not be a grave libel. That is not limiting the powers of the hon. Member. The hon. Gentleman appears to be trying to allow hon. Members to say the most scurrilous things about people who cannot defend themselves and which should not be said until such matters have been proven.

Mr. Hale

This business of it being only qualified privilege when one writes to a Minister was one of the arguments used in the Strauss case, which was a special case based on rather special grounds and which involved a decision which many people disputed at the time. I have never claimed privilege. I dislike the assertion of privilege for the House. I dislike the idea of bringing people before the House for saying things which we know to be true but which they have expressed with a certain amount of violence. I dislike the exercise of privilege for the House, except the privilege incumbent in the performance of an hon. Member's duty.

Having imposed on us by the Bill a duty which I regarded with grave doubts when it was first postulated, hon. Gentlemen opposite now wish to enforce on me the duty of acting as a judge on the veracity, integrity and honesty of my constituents. I have always taken the view that my duty is to act as a channel of communication between the complainant and the throne—the Minister being the throne in this case—and that if any of my constituents had a grievance I would put it before the relevant Minister.

10.15 p.m.

I have also always taken the view that, faced with any grievance, I should not express personal approval or otherwise but merely associate myself with the points put. However, when I have put my case and have tried my hardest to see that justice is done, I am unable at that stage to do more. But hon. Gentlemen opposite now want me to have the burden of writing to my constituent saying, "I did put your view forward but either I have come to the conclusion that justice has already been done or that your case is not worthy of being submitted to the Parliamentary Commissioner, either because of its lack of importance or because it is not an urgent matter". It is a difficult obligation to put on one to come to the conclusion that it is proper that a certain course should be taken in those terms. If an hon. Member is to do that, he should be able to perform the task unshackled and be privileged in communicating with the Commission and in receiving communications. That should apply to any reports he must make and which are almost inevitably ex parte. The evidence has come from one side only, but the replies come from possibly a Minister or others on the other side.

Mr. MacDermot

I will reply now since the House will, no doubt, wish to come to a conclusion on this matter. The matter we are discussing is not new in the Amendment. It is one of the points which was covered in the original drafting of the Bill.

I think we are agreed that it would not be right for us to confer this absolute privilege on ourselves unless it is necessary to enable us to do our job conscientiously. I do not believe that it is putting the dilemma correctly to say that the question is whether we need to be protected even when we are acting with malice. That is not the point. The issue is whether we need to be protected against the allegation that we are acting with malice. The matter was put succinctly by the hon. and learned Member for Northwich (Sir J. Foster) in Committee, when he spoke about the absolute privilege which it was proposed to confer on the Parliamentary Commissioner. He said: There may be all kinds of lunatic who would sue the Commissioner for malice. It is unthinkable that he would publish anything with malice, but it is quite thinkable that a person will sue him, saying that he is guilty of malice. That is why judges are protected—not because it is thought that they will be malicious, but because it is thought that people might accuse them of being malicious."—[OFFICIAL REPORT, Standing Committee B, 17th November, 1966; c. 319–20.] This is the question of whether we need to confer upon Members of Parliament that absolute freedom which results from absolute privilege knowing that they cannot subsequently be made the subject of a vexatious piece of litigation by someone who will allege that they have been malicious.

Why should this be necessary for the proper performance of our task? One of the things that we would have to do at times is to act as advocates for our complainant to try to persuade the Commissioner in the exercise of his discretion to take up the case. Not all Members of Parliament are trained lawyers and many hon. Members identify themselves strongly with constituents on whose behalf they take up cases. If they are in their way to argue strenuously for the grievance which they believe has existed, they may say, and I suggest it is right that they should be free to say, in what are fairly confidential communications between them and the Commissioner, what is in their heart and mind about the matter without feeling that they might be exposing themselves to the risk of having proceedings of this kind taken against them. That is why I suggest that it is right that we should confer this exceptional privilege on ourselves in this connection.

Question put and negatived.

Question proposed, That the proposed words be there inserted in the Bill.

Mr. Grieve

I beg to move, as an Amendment to the proposed Amendment, to leave out lines 5 to 7.

Amendment to the proposed Amendment negatived.

Amendment agreed to.

    cc1416-7
  1. Clause 11.—(PROVISION FOR SECRECY OF INFORMATION.) 228 words
    2. c1417
  2. Clause 12.—(INTERPRETATION.) 30 words