§ 11.8 a.m.
§ The Lord President of the Council and Leader of the House of Commons (Mr. Fred Peart)
I beg to move,That this House takes note of the Report from the Select Committee on Parliamentary Privilege in the last Session of Parliament.I wish, at the outset, to pay tribute to the work of the Select Committee and its Chairman in producing this distinguished and comprehensive Report for the consideration of the House. Everyone who reads it must be impressed by the thoroughness of the Committee's study and the depth to which, rightly, it has pursued the question. Further, no one could fail to be impressed by the erudite and learned nature of some of the evidence before the Committee. The House is certainly indebted to all those who put in so much hard work to produce this Report.
I will make clear the Government's position on this Motion. On the majority of issues before the House, the Government necessarily have to form a view, which they seek by the various means at their disposal to persuade the House to accept. There are some issues, however, and particularly those affecting the House's own conduct, where I believe there is much to be said for letting the House express its views, and for the Government to formulate proposals in the light of those views.
These questions, of privilege are very much an historic House of Commons matter, with which its status and reputation in the country are very closely bound up. Moreover, there are strong and divergent views among hon. Members about how the end we all desire can best be achieved, and whether all of the Committee's recommendations forward its accomplishment.
The Government have decided, therefore, at this stage to provide the House with this opportunity of expressing its views on the Report. Those views will, of course, have a considerable bearing 826 on the Government's future proposals in these matters.
The Report has been published for 'some time and many of us regret that it has not been possible to arrange a debate on it before. This, I suppose is partly because the House has always been willing to give precedence to business other than its own domestic affairs. This, I think, is right.
Moreover, there are an increasing number of issues of great importance which are reported from Select Committees. For example, last Session there were 55 such Reports, and so far in this there have been 31. Of course, all Governments have properly sought to dispose of individual complaints of Privilege quickly. However, it must not be thought that Reports of this sort make no impact, except by debate. My own view is that the Report before us today will already have influenced right hon. and hon. Members.
I tried to make progress with this Report by bringing forward Motions prepared by the House authorities and based on a number of the recommendations which were thought to be non-troversial. But what happened? The proposals attracted amendments from a number of the Select Committee members, including my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), the Chairman. And one of the Motions, intended to make things easier for our friends in the Lobby, proved to be suspect by those it was designed to help.
In these circumstances, I felt it right to withdraw the Motions. In view of that experience, I see it as essential to give the House as a whole the opportunity to air its views on this Report.
What is the desirable end of this whole question of privilege? I would subscribe to the dictum quoted from Erskine May by the Committee thatParliament should use its power to protect itself, its Members and its Officers only to the extent absolutely necessary for the due execution of its powers".I would support the view of the Committee that these privileges are not our prerogative in our personal capacities, but only of the House in its corporate capacity or of ourselves on behalf of the citizens we represent. We should not claim privilege for attacks on us as individual citizens, whether those attacks are 827 fair or unfair, just or unjust. But the House must defend itself from attacks which seek to prevent or inhibit it, any of its subsidiary bodies, or individual Members, from doing the job for which it is elected.
This aspect, historically, has been important in the development of the House's privilege. Perhaps it has tended to be overlooked in the past decades—even centuries—when the overwhelming majority of our people have accepted the need for Parliament to get on with its job without outside hindrance. But the recent Report of the Committee of Privileges on the events in the University of Essex shows that this is not universally true today. This is a further reason—a development in the situation—which has arisen since the publication of the Report we are debating today, which makes it desirable that our procedures are adequate for, and appropriate to, current conditions.
I think I should now briefly summarise and categorise those of the 24 recommendations made by the Committee in paragraph 205 of this Report which call for changes in our procedures.
The first category consists of proposals for cutting out dead wood in our phraseology and archaisms in our procedures. Within this category I would place recommendation 1—the substitution of rights and immunities "for "rights and privileges", "contempt" for "breach of privilege", and the renaming of the Committee of Privileges itself; recommendations 7 and 8—the abandonment of immunity from arrest in civil suits and the consequent notification of the Speaker of such arrests; recommendation 12—the discontinuance of the expression "freedom from molestation"; and recommendation 13—the formal ending of impeachment.
In this category, too, comes recommendation 11, which concerns the ending of the immunity of Members from serving as sheriffs. Although I am not sure what pressure there may be in the House to serve in this honourable capacity, there seems to be considerable logic in the argument in the Report.
I recognise the psychological importance of a number of these recommendations, in that they make more plain the spirit in which the House conceives of its 828 privilege. But I do not think that they are the recommendations of the greatest practical effect.
The second group of proposals relate to the section on the reporting of Parliamentary proceedings—paragraphs 116 to 137 of the Report, and recommendations 14 to 18. To a degree, these are akin to the first group of recommendations I have mentioned, as to some extent they confirm and clarify the position which exists now, sweeping aside resolutions which in practice died long ago. In some cases, of course, they do more than this. Recommendation 15, for instance, proposes a consistent system of rules governing public admission to the House and its Committees.
I do not want to spend too long on this group of proposals. I should just like to say that I support the philosophy underlying the Committee's approach. Experience shows that it is not easy to put this philosophy into precise terms that command universal consent, but I should like to see some action on this.
Apart from recommendation 24, on the declaration of interest by Members, which has, of course, been overtaken by the establishment of a Select Committee to deal with this whole subject, and recommendation 6, on extending and clarifying the scope of absolute and qualified privilege, which is currently under examination by the Joint Committee on the Publication of Proceedings in Parliament, the remaining recommendations fall into two groups which together form the nub of the Report's proposals.
The first of these groups deals with the principles according to which complaints of contempt and the exercise of the House's penal jurisdiction should be judged, and some of the factors to be taken into account. These form recommendations 2 to 5.
The basic guiding principle, set out in recommendation 2 and repeated as the first of the rules set out in paragraph 48, expands and clarifies the existing principle that Parliament should use these powers only to the extentabsolutely necessary for the due execution of its powers".From what I have already said of my own philosophy on that matter, hon. Members will know that I support this 829 guiding principle and am glad to see it spelt out.
The Committee proposes that the House should give effect to this guiding principle by adopting a set of rules, summarised in paragraph 48 of the Report. As the Committee points out, these recommendations raise the fundamental question of the possible conflict between two principles of the first constitutional order—the first that Parliament must be protected from improper obstruction of its functions, and the second, the right of the individual to criticise individual Members or indeed the institution of Parliament itself. There must be a right balance between these two principles.
The major change the Committee proposes on this is that, where a Member has a remedy in the courts, he should not be permitted to invoke the personal jurisdiction of the House. However, the House would retain reserve powers of penal jurisdiction where action in the courts was inappropriate or inadequate.
I should like to pose some questions on this proposal, and on the question of rules generally. I do so to stimulate debate, and not because I have formed a view on these particular points. Indeed, I am anxious to hear the view of other hon. Members on them. Would recourse to the courts be an adequate substitute in all circumstances, and for all Members of varying financial resources, and of varying litigious dispositions, where it was necessary in the public interest for Parliament to be protected? Is there a possibility, even if remote, that a court might conclude that a certain action did not amount to substantial interference to Parliament, but the House thought it did? How important is it that such a potential conflict be avoided?
More generally, in the proposed rules in paragraph 48, whilst the present exercise of our penal legislation may lack a code, it has the virtue of flexibility. I have noted the words quoted by the Clerk of the House in his memorandum and again in his supplementary memorandum; they are obviously worth quoting twice: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 830 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.I agree very much with the philosophy and the thought in that quotation. Are we in danger of losing flexibility?
The last group of proposals suggest some major changes in our procedure for the hearing of complaints by Members of contempt. Paragraphs 138 to 192, and recommendations 20, 21 and 22 relate to this. Instead of these cases being first raised normally at 3.30 p.m. for the Speaker to rule, generally on the following day, whether or not there is a prima facie breach of privilege for consideration, the Committee suggest instead that complaints by Members should be raised initially with the Clerk of the Committee of Privileges—or Select Committee of House of Commons Rights, as it proposes to rename the Committee.
Only after preliminary consideration and report, normally by a sub-committee of that Committee, will the fact of the complaint be made known to the House on the Order Paper. If the sub-committee decided that the case justified fuller investigation by the full Committee, or if it decided against so doing, but the House resolved otherwise, further investigation would then be made by the full Committee. House proceedings subsequent to the main Committee's report would remain the same. The Committee also recommends that so far as proceedings in the full Committee are concerned, there should be a codification of the rules governing the rights of persons involved to attend, to call witnesses, to be represented, and to be granted legal aid.
On the general point, the principles which should underline the procedure, and which the Committee believes demand the radical changes it suggests, are set out in paragraph 159. The Committee is clearly right in drawing attention to the undoubted risk that under our existing procedures, whereby such complaints are raised first on the Floor of the House at a peak period of the Parliamentary day, these issues are apt to attract disproportionate publicity, and, in certain cases, to encourage Members on occasion to raise unnecessary issues. The danger is that if Members cry "Wolf" on too many trivial occasions, 831 when a really serious challenge is made the general public may be indifferent and merely regard it as further evidence of undue sensitivity on our part. I am sure Members recognise the risk of debasing the currency in this respect. On the other hand, whilst it is easy to say that Members should not raise trivial issues, what is trivial to one Member is certainly not necessarily so to another Member.
Obviously, however, these are clearly matters which the House will wish to consider carefully. Perhaps I may myself make one or two comments that struck me on the Committee's recommendations on these points.
First, it seemed to me that the Committee's suggested method of procedure carries with it, as the Committee itself recognises, the risk of delay; one of the merits of the present procedure is that complaints are ventilated on the Floor of the House at the earliest possible moment, and this condition may in itself limit the number of cases raised.
§ Mr. Charles Pannell (Leeds, North-West)
I hope that my right hon. Friend will think again about this matter of delay. At the moment, the matter is raised with Mr. Speaker, who usually asks for 24 hours in which to consider it, but it can be raised with the clerk to the Committee on that day, the Leader of the House can be consulted, and what the Select Committee has in mind is that a Committee of three could be set up within the day. Normally one would get an opinion whether it should proceed to the main Committee rather quicker than we do now.
§ Mr. Peart
I am grateful to my right hon. Friend, who is a member of the Committee, who has long experience of the House, and who is also a member of the Select Committee. I shall look at this again, but my first impression is that there is a danger of delay, and I think one gets a feeling even from the Committee's Report that that is a possibility. However, my right hon. Friend has put his point, and I shall undoubtedly consider it.
Second, I think we would have to accept that the effect—whether desirable or not—of the proposals—and here again I may be expressing an opinion which differs from that of right hon. and hon. 832 Members—would undoubtedly be to lower the status of the Committee of Privileges. I have been Chairman of this Committee, and I have been impressed by the work of the Committee in dealing with the issues submitted to it. I have been impressed, too, by the number of distinguished Members, of both parties, who have served on this Committee. No party considerations are involved, and I think the reports show that the Committee has been successful. I do not wish to lower the status of the Committee of Privileges.
The only remaining recommendation is number 23, proposing legislation to enable the House to impose a fixed period of imprisonment and fines. The Committee points out that in recent times neither of these powers has been available, and it considers this to be an unnecessary handicap. There are, however, obviously arguments both ways on the wisdom of reviving these powers.
Before I sit down, the House has the right to expect from me some indication where I see future action might lie. Eight of the Committee's 24 recommendations require legislation. They are numbers 6, 7, 10–13, 22 and 23. I must say quite plainly that I can give no specific promise of legislation next Session. I know that some hon. Members will regret this, but it would be wrong of me to mislead them. However, an examination of the recommendations concerned will suggest that they are not vital to the central theme of the Report—indeed, many of them are concerned with the elimination of dead wood. I hope therefore, that Members interested in this report will not feel discouraged.
§ Mr. Quintin Hogg (St. Marylebone)
I appreciate that the Government's programme probably precludes the right hon. Gentleman from giving a promise of legislation in any session. We are all faced with that problem when in office. But, irrespective of whether time could be found, it would be a great help if the right hon. Gentleman would entertain favourably the possibility of getting the legislation drafted so that it could be presented from sources other than the Government.
I will consider that favourably. The right hon. and learned Gentleman appreciates, as a member of a former 833 Government, that I cannot at this stage commit myself to legislation next Session. However, I will consider the point and inform him and other Members who served on the Committee how far I can proceed.
§ Mr. Peter Kirk (Saffron Walden)
Before the right hon. Gentleman leaves the question of legislation, may I raise one point which puzzles me. He referred to the summary of recommendations, the ones which would need legislation. There is no reference there to the recommendation in paragraph 91 of the Report that legislation is needed to reverse the decision of the House in the London Electricity Board case. As far as I can see, that is referred to only in the main body of the Report. May we be enlightened on that?
§ Mr. Peart
That is correct.
The other recommendations will require resolutions or changes in practice in the House. Here I hope that we shall be able to make progress. However, I want to make one caveat. I firmly believe that it is not in the interests of the House for it to appear to spend a lot of time talking about its own privileges and procedures. Today's debate is entirely necessary and I welcome it. But I hope that, as a result, a broad consensus will emerge which will enable us to go forward without further protracted debate. That is all that I am suggesting. If views in the House are so divided that it becomes obvious that resolutions would be the subject of lengthy debate, I confess that I should have some, doubts of the wisdom of bringing them forward. Let us hope, however, that a broad consensus will emerge so that it might be possible for proposals to be brought forward during the course of next session.
The matters we are discussing today are of importance, not only to the House, but to the country as a whole. As the right hon. and learned Member for St. Marlyebone (Mr. Hogg)—who was himself a distinguished member of the Select Committee, says, the rôle of Parliamentary privilege isto safeguard in the interests of the nation as a corporate entity the efficient and independent working of Parliament as an institution.834 This is a proud and necessary function. If we can devise procedures which provide us with the degree of privilege, and no more, necessary to enable us to perform our duties to the country and to our constituents, and if, either as a House collectively or as individuals, we invoke those rights only with the long-term interests and reputation of Parliament and the nation in mind, we shall deserve well of our successors in this House.
§ Mr. Eric S. Heffer (Liverpool, Walton)
May I ask one question for clarification? My right hon. Friend referred to resolutions coming before the House which he hoped would be broadly supported. Was he talking about recommendations Nos. 2 to 5, which involve general acceptance of the proposed rules in paragraph 48? If so, I am afraid that he is not likely to find a general consensus.
§ 11.34 a.m.
§ Mr. Peter Kirk (Saffron Walden)
I agree absolutely with the Leader of the House that this is an immensely valuable Report for which we should all be grateful both to the Financial Secretary to the Treasury, as the first Chairman of the Committee, and to the hon. and learned Member for Dulwich (Mr. S. C. Silkin), who became Chairman halfway through its deliberations.
I have reread the Report in the last few days to refresh my memory because it is some time since it was published. I was again impressed, not only with the thoroughness with which the members of the Committee went about their task, but the goal which they set themselves. It is absolutely right that the privileges of the House, or whatever we care to call them—the Committee had the word "rights" in mind—should be restricted to the absolute minimum necessary for the House to carry on its work unmolested and uninterrupted. I am in general agreement with nearly all the recommendations. The idea behind them is right. Therefore, I hope that the House and the Chairman of the Committee will forgive me if I concentrate on one or two 835 matters on which I think further clarification is necessary.
As a journalist and a member of the National Union of Journalists, may I say that the proposal to withdraw the Resolution about the publication of proceedings in Parliament is right. This should have been done some time ago Even though it has been a dead letter, I know that there has been at the back of some people's minds the feeling that it could be used against them. Therefore, it is better for us to get rid of it.
The first proposal with which I wish to deal concerns the change of name. It is probably right that we should try to make a definite distinction between privilege, on the one hand, and contempt of the House, on the other. However, I wonder how far one can codify that to the extent that it seems to be suggested in the general rules set out in paragraph 48. Clearly, the circumstances will vary from case to case, as the Committee suggested. Therefore, I should have thought that it would be better merely to say that any offence of this kind is a contempt of the House so that the only privilege which would be left would be the traditional privilege asserted by the Speaker, which would hardly come into the general discussion. I suppose that it might arise when an action is brought in the courts and the House has to assert its privilege of freedom of speech. However, in most cases it would be contempt and nothing more.
What I am worried about is the change of name of the Committee. I do not very much like the word "rights". I agree that "privileges" is not very good, but I am not sure that "rights" is the correct word. I do not know whether we can find a better word. I wonder whether "Committee for the Protection of the House", or something like that, might be the answer. We must be sure that, if we change the name, it is the right name. People know what the Committee does. If we give it the wrong name, they will not have a clear idea of what is going on.
Like the Leader of the House, I am worried by the proposed new procedure, but on a rather different level. I appreciate the point of the right hon. Member for Leeds, West (Mr. C. Pannell) that it could work as quickly as the present pro- 836 cedure. My worry is that the House, as a House, would be brought into the matter at a very late stage. A Committee of the House takes the first decision and not the House itself. In the past, even when Mr. Speaker has ruled that there is a prima facie case, the House has sometimes not been prepared to take the matter further and it has come to a stop at that stage. That has been a very good thing. Under the proposed system, that might be more difficult.
§ Mr. C. Pannell
Will the hon. Gentleman read the history surrounding this matter? The rule about a prima facie case dates back only to 1934. Before that, the House summarily disposed of these matters. A practice has grown up whereby a heavy-weight committee considers the matter, with all the attendant publicity. The idea of the Select Committee is to try to avoid that.
§ Mr. Kirk
I understand that. The Committee's proposal is obviously intended to clear a lot of the frivolous cases out of the way, but I should like the House as a whole to be involved at an earlier stage than is provided for in the proposed procedure. Perhaps the committee of three which has been suggested would not just make a formal report to the House as is proposed, but would require the endorsement of the House before going further. That would take the weight off Mr. Speaker's shoulders, which would be a good thing. It would also enable the case to be disposed of summarily rather more easily. It would be more open to the Committee to recommend that course of action than for Mr. Speaker, who must always feel inhibited in making a recommendation.
The third point that I wish to touch on concerns proceedings in Parliament. I was one of those who voted with the majority in the London Electricity Board case, largely as a result of a powerful speech by the then Attorney-General, now Lord Dilhorne, in which he said:The law of libel recognises as entitled to qualified privilege the letter which a Member of Parliament writes to a Minister, such as the right hon. Gentleman wrote here. There is no doubt about that. That means that, even if the letter be both defamatory and false—and I do not suggest for one moment that it is in this case—the action against the Member cannot succeed if the letter was written in good 837 faith."—[OFFICIAL REPORT, 8th July, 1958; Vol. 591, c. 263–264.]as presumably most letters from Members to Ministers are.
The objective of the Committee, as it has said, has been to give Members no more protection than they need outside the courts. As I understand the thinking behind this, if the protection is available within the courts the House should not give a special additional protection. I have read the whole of that debate again recently, and those words of Sir Reginald Manningham-Buller, as he then was, were not challenged in it. I am no lawyer, but I understand that that is the exact position, that a Member writing a letter to a Minister is protected in the courts by qualified privilege, and that was why I voted as I did in 1958. Therefore, is there any need for further protection here?
The Select Committee slightly chided the Committee of Privileges on that occasion for not having asked itself the right question, which it said was not whether this was a proceeding in Parliament but, "What is a proceeding in Parliament?" If we are to add letters to Ministers to proceedings in Parliament, are not there other things that we should have to add as well? Do not we have to add conferences between Ministers and Members, which quite often occur, or deputations to see Ministers? The minutes of such meetings might be held to be defamatory of somebody. I imagine that all those are covered by qualified privilege in the courts. If letters between Members and Ministers are covered by the privilege of the House, I would have thought that a large number of other communications between Ministers and Members, Members and Members, Members and Mr. Speaker, or the Chairman of Ways and Means, were comparable. We should be careful before endorsing this new principle in one case and leaving aside all the others.
§ Mr. S. C. Silkin (Dulwich)
I appreciate, and the Committee appreciated, that this is very much a question of where the line should be drawn, but can the hon. Gentleman draw a valid distinction between letters sent to the Parliamentary Commissioner, which under the Act are expressly given absolute privilege, and letters sent to a Minister?
§ Mr. Kirk
I think that one can, because I think that it is clear from the Parliamentary Commissioner Act that it was thought that in this respect he was acting in a quasi-judicial capacity. His report must be covered by privilege, for it would be useless if it were not. Therefore, the appeal to him must be covered in the same way. I do not think that this necessarily applies in the case of a Minister, who usually is acting not in a quasi-judicial capacity but in an executive capacity, though sometimes he may be in a quasi-judicial capacity. This is the problem that surrounds us.
§ Mr. Hogg
What we had in mind was that there is no doubt that over a number of years the practice of writing to Ministers with constituents' complaints has been used as an extension of the ordinary right of interrogation of Ministers across the Floor of the House, which carries absolute privilege. Some of us thought that it was impossible to draw a distinction between those processes, because the duty of the Minister to reply is based on our right to interrogate him in Parliament.
§ Mr. Kirk
I accept that as well. But I was surprised to see a slight note of hesitation in the Report as to whether Question Time was covered by privilege, as to whether it is a proceeding in Parliament, which I think that it clearly is. Equally, I think that my right hon. and learned Friend would agree that a Member going to see a Minister or taking a deputation to see him is to some extent substituting for a proceeding in Parliament, as with the presentation of a Petition, or asking a particular Question.
Whilst I agree with the hon. and learned Member for Dulwich that the problem is where one draws the line, I would rather have stayed where we all knew we were as a result of the 1958 debate, and only proceedings in the Chamber, or proceedings reported in the official documents of the House, were proceedings in Parliament, rather than extend the privilege a little further.
The Report is immensely valuable, and I very much hope that if he cannot promise legislation in the near future, the Leader of the House will follow the advice of my right hon. and learned Friend and see whether it is possible for somebody else to take on the burden of putting through the necessary reforms, because it 839 is necessary that there should be action. I hope that before the present Parliament comes to an end we may do something to reform the jungle in the law of privilege, not only in our own interests, but in the interests of people outside.
§ 11.46 a. m.
§ Mr. G. R. Strauss (Vauxhall)
My right hon. Friend the Lord President of the Council paid tribute to the Committee for its work and for its Report. As a member of the Committee I appreciate his tribute, and perhaps I may be allowed to pay a special tribute to the Chairman of the Committee, my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), who did a remarkably fine job. It was a difficult subject. He has a trained legal mind, and he did what few Chairmen of Committees ever do, which was to write a long and complex Report in his own fair hand—every word of it. He spent a large part of his summer holiday in doing so. The House owes a particular debt of gratitude to my hon. and learned Friend.
The Leader of the House knows that many of us are critical of the length of time that has elapsed before this matter was brought before the House and which will continue to elapse before we have any idea of what the Government propose to do about the Report. My right hon. Friend has disarming qualities, and his speeches are always conciliatory. For that reason he has endeared himself to the House. But he must find it difficult to justify the fact that 18 months after the Report was published we still have practically no indication from the Government of what sections of it they accept and when legislation is likely to be introduced to implement them, where this is necessary, or whether those other important parts which require no legislation are to come before the House.
It is not the fault of my right hon. Friend, but the Government are seriously to blame for setting up the Committee, which did a long study and then taking no action for 18 months, until today, when they hold an academic debate and tell us that they want to listen to the views of the House. If that was the purpose of today's debate, it should have been held a year ago. We should be told now what part of the Report the Government want to adopt. I have a 840 feeling that very little thought has been given to the Report by the Government. My right hon. Friend's statements today were off-the-cuff views thought up in the past two or three weeks.
§ Mr. Strauss
If they have not been thought up in the past two or three weeks, it may have been in the past two or three months. But one does not have any feeling of precision or that the Government have made up their mind clearly on any of the subjects in the Report. My right hon. Friend put forward as an excuse the fact that the House traditionally does not put its domestic matters before public matters. That sounds all very well, but is this really a domestic matter? Nearly every contempt case concerns somebody outside the House—for example, the London Electricity Board, quoted by the hon. Member for Saffron Walden (Mr. Kirk), and the Essex University students. My right hon. Friend's case seems to me as false as saying that proposals to change the procedure of the law courts is a domestic matter for those interested in the law and has no wide public concern.
Anything we do with regard to the penal provisions of the powers of Parliament is not just a domestic matter but concerns the public as a whole, and to hold back a Report which advises drastic reform of the principles of privilege on the ground that this is purely a domestic matter is a poor excuse.
I want to comment briefly on one or two matters in the Report. The first is the proposed abolition of the word "privilege". This would be much more than a mere change in vocabulary. It is important from the point of view of the public and the Press, who have the impression, wrongly, that Parliamentary privilege means that Members of Parliament enjoy some advantages and benefits which the public do not. It is, therefore, highly desirable that the word should be abolished from our vocabulary. The whole concept of the changes we have put forward are reflected in the proposed abolition of that word.
841 Another reason why it is regrettable that the Government did not bring forward these proposals before now is that among the public, particularly the newspapers, there is uncertainty about the range and limitations of privilege. Editors and writers are uncertain about what they are free to write and what they are not. These views were expressed strongly to us by deputations from the Press with justification. It was largely to remove this feeling of uncertainty that the Committee decided that the best thing to do was to relegate to minor importance the precedents of 300 years and to put forward a simple, clearly understandable code to the effect that the only criterion of whether a breach of privilege has been committed is whether the workings of Parliament or one of its Committees has been hampered or interfered with. That would be the single criterion.
Of course, there would be arguments over every individual case, but I think that this criterion is a simple one, and if it had been in operation for the last two or three years we would have avoided a lot of trouble for the Committee of Privileges. Moreover, the recommendation that trivial matters should not be sent to the Committee, as they are at the moment, is again an important change which I hope will be adopted.
§ Mr. Heffer
My right hon. Friend refers to uncertainty in the Press, but Mr. Cecil King made it clear, in the course of his interrogation, that he personally saw this as no obstacle whatever. He said that it had not affected his newspapers at all.No. I have often spoken against the limitations on the Press by means of libel and contempt of court, but I have never commented on the restrictions on newspapers due to parliamentary privilege, nor do I think that they are of any great importance.
§ Mr. Strauss
I do not think that Mr. King was speaking for journalists as a whole. We heard from journalists concerned, and it is obvious that, owing to the imprecision of the present privilege procedure, they often do not know what they can say and what they cannot say.
§ Mr. Strauss
They do, but I think my right hon. Friend the Member for Easington (Mr. Shinwell) will agree with me that it is desirable to get rid of this 842 imprecision as far as possible, although, as I am aware, it cannot be done completely.
Again, I think that the proposals we put forward to change the arrangements under which matters are at present referred to the Privileges Committee should be commended to the House. What happens at present? Mr. Speaker has to give a decision on whether there is a prima facie case. What does he go on? Only one thing—he can only consider whether the case put forward appears to be within the precedents of some previous privilege case, and if it is he is bound to tell the House that there is a prima facie case, however trivial or ridiculous the matter may be. He is bound by precedent. After he has made his decision about whether there is a prima facie case, the Leader of the House is bound, however foolish he thinks the matter may be, to move a Motion in the House that it should go to the Privileges Committee. The Committee meets and a number of senior Members, including the Leader of the House himself, the Attorney-General and the leaders of the three parties have to sit many times and consider the matter.
§ Mr. C. Pannell
My right hon. Friend is saying something not quite accurate. When Mr. Speaker rules that there is a prima facie case, the Leader of the House is not bound. He is really only bound out of respect to Mr. Speaker to move a Motion, but he could in fact move that the House pass on to its next business. But he does not do that out of respect for Mr. Speaker.
§ Mr. Strauss
I accept that, but I am talking about the practice. In practice, the Leader of the House moves a Motion that the matter be referred to the Privileges Committee and in practice he has to. The last case which went to the Committee should not have gone there and under the new procedure would not have done so. This was the trouble at Essex University. Mr. Speaker was bound by the Report of an earlier Privileges Committee and had to rule that there was a prima facie case. Under existing practice, the Leader of the House had to invite the House to send the case to the Committee. Many right hon. and hon. Members thought that this was nonsense because the purpose of the Privileges Committee is not only to decide 843 whether a breach of privilege has taken place but, if so, what punishment should be imposed by Parliament on those who committed it. It was obvious that there had been a contempt but that it was quite impossible for Parliament to impose penal provisions, as it cannot punish 50 rowdy students who break up a meeting of a Select Committee. If the changes proposed in this Report had been accepted the House would not have sent this case to the Privilege Committee.
§ The Attorney-General
In that case it was an exceptional occasion where the House came to a decision on the Motion on whether the matter should be referred to the Committee of Privileges. There was a spirited debate followed by a Division. That was an exceptional exercise by the House of the power to which my right hon. Friend the Member for Leeds, West (Mr. C. Pannell) was referring.
§ Mr. Strauss
Such a Motion moved by the Leader of the House is almost certain to be carried, irrespective of any doubts which hon. Members may have about it. Whether it is wise or not to carry the Motion, they do not want to let him down. They feel bound to support him, however free theoretically they may be to reject the Motion.
§ Mr. Mark Carlisle (Runcorn)
I have a great deal of sympathy with the right hon. Gentleman's general line that the use of privilege should be much more limited, but is he not using a particularly bad example? About the only recent case of privilege which would still be covered under the new definition is the Essex University case. The right hon. Gentleman gave as his definition interference with the working of Parliament or its Committees. That would apply to the Essex University case.
§ Mr. Strauss
There are all sorts of things which may be contempt of the House but which it is inappropriate to send to the Select Committee on Parliamentary Privilege because the Committee cannot deal with them. This is a matter which will have to be considered by Mr. Speaker, the Leader of the House and the House itself.
I want to say a few words on a case raised by the hon. Member for Saffron Walden, because I was personally in- 844 volved and because I think it is very important—the case which I brought before the House in 1957 concerning a letter which I had sent to the Minister of Power suggesting that serious inefficiencies were taking place in part of the administration of the London Electricity Board and inviting him to look into my complaint. This case involved many complications. It was referred to the Committee, and by a majority of ten to one the Committee decided that when the London Electricity Board threatened to sue me for libel over the contents of the letter, which had been passed on to them by the Minister of Power, they were committing a breach of privilege. Incidentally, I was accusing no individual of being inefficient. I was saying that the Board, the organisation, were being inefficient.
That decision was reversed by the House. I do not want to go over the matter again. The issue aroused strong feeling, to some extent—I have never known why—party feeling. But that is the precedent which has been set by the decision of the House, and at present a letter sent by an hon. Member to a Minister on a subject which has not been raised in the House in Question or debate is not subject to the protection of Parliamentary privilege.
As the Committee points out in strong language, common sense suggests that it is ridiculous to draw a distinction between a Question put by an hon. Member to a Minister on the Floor of the House and a question put by him in the form of a letter. Indeed, it is obvious that it is to everybody's convenience that some questions are put by letter. That had to be done in my case because the criticisms which I put forward were detailed and technical and I could not possibly have put them in the form of a Parliamentary Question.
But that is the situation at present, as the House has decided, and that is the precedent—that such a letter is not protected. I am constantly asked by my colleagues in the House, "I have a complaint to make against a department of the Government or a nationalised industry. Am I free to put this to the Minister by letter to ask him to look into it?" I have to reply, "No, you are not. If you do so without first raising the matter in the House, you may be sued for libel 845 if the Minister is unwise enough to pass the letter on, for you will not be protected by Parliamentary privilege".
The present position is that if an hon. Member writes to the Minister of Health asking him to investigate some mismanagement by a hospital board or to the Minister of Transport asking him to look into one section of the nationalised transport industry, putting forward criticisms which he wishes the Minister to investigate, he is subject to libel action and is not protected by Parliamentary privilege as he would be if he put the matter forward in the House. That is a ridiculous situation. The Committee thought it was ridiculous and strongly recommended that it should be put right by legislation. The Committee suggest legislation over many other matters, too.
The Leader of the House said that he has the greatest sympathy with many of the committee's proposals but that we cannot deal with them because we have not time. I cannot accept that argument. Plainly matters which do not require legislation can be dealt with. They require perhaps half a day or a day, as all these matters, I feel, are broadly in principle accepted by the House. I do not believe such changes would arouse much controversy. They are quite simple.
§ Mr. Strauss
If they are not simple, then the Attorney-General can simplify them and put them into words which are understandable and easily acceptable.
These are important principles. They affect not only hon. Members but many bodies and individuals outside the House who may, deliberately or unintentionally, become embroiled in its penal machinery. While I appreciate the sympathy which my right hon. Friend has expressed with the Report, I cannot accept his argument for delaying action. These are very important procedural matters affecting Parliament; they are of great importance to the House and to outside bodies. I hope that as a result of the debate, the Government will take quick action not merely to think about these changes but to put them into effect at the first possible moment.
§ 12.7 p.m.
§ Mr. R. H. Turton (Thirsk and Malton)
I have a great deal of sympathy with the view put forward by the right hon. Member for Vauxhall (Mr. Strauss) that when a Committee of this House has produced such an outstanding Report the Government should find time to put their agreed recommendations into law. Incidentally, the hon. and learned Member for Dulwich (Mr. S. C. Silkin) is to be congratulated on the Report, as is my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg). The right hon. Gentleman's argument seems reasonable in view of the fact that in recent sessions the Government have found time for private Members' legislation dealing with divorce and homosexuality.
The Report raises matters which affect not only hon. Members but also the relations between Parliament and the Press and every citizen in the country. Reading the Report and listening to the debate, I felt that we were all agreed that we must be very jealous of the reputation of Parliament, but that equally we should be very sparing in our use of these penal powers and should confine them to cases in which their use was essential for the working of Parliament.
Another consideration is that the House be very careful not to expose itself to a situation in which it encourages contempt of the House by eccentric people in circumstances which it cannot control. It is right to say that, because the third leading article of the Daily Telegraph last Saturday took the Committee of Privileges to task, for it seemed to think that in our Report we were seriously contracting the rights and duties of the House of Commons. Clearly whoever wrote that leading article had not taken the trouble to read the whole of our Report.
In recent years Specialist Committees have met outside Westminster in many strange places and the danger of abuse of Parliamentary privilege has become evident. We should remember that, however unseemly our behaviour is on the Floor of the House—
§ Mr. Turton
In the Galleries order is maintained with the help of the Serjeant at Arms under your direction, Mr. Speaker, but, as was made absolutely clear, when Parliament moves outside the City of Westminster the Serjeant at Arms has no power at all to ensure order. Therefore it is very important that the House should not voluntarily place itself in embarrassing situations.
§ Mr. Christopher Price (Birmingham, Perry Barr)
The Committee talked about this. Is the right hon. Gentleman seriously suggesting that Committees of the House rather than investigating something which needs investigating, simply because they might be molested in some way should refrain from investigating and institute certain arrangements which might protect them? That seems a very frightened way of proceeding.
§ Mr. Turton
I am grateful for that intervention, because I am coming to the point which the hon. Member made so clearly. Take the visit to the University of Essex. There is every advantage in hon. Members getting well acquainted with conditions in universities—some hon. Members could benefit probably from a very long stay there. What I complain about is for a Committee to take itself to the University of Essex and regard itself there at that time as if it were in a Committee Room of this House with part of the assembly hall metaphorically roped off for witnesses and the remainder occupied by a silent audience when the Committee has no power to impose that silence is pretentious nonsense. Of course we must see how hon. Members in Committees can discharge their duties and get well acquainted with matters, but so long as the House has no power to impose order it is quite wrong for formal meetings to be held outside the Parliament of Westminster.
The United Kingdom Branch of the Commonwealth Parliamentary Association and of the Inter-Parliamentary Union go to many strange places without in any way damaging the reputation of Parliament. They go as guests. I am certain from the evidence we had from the Vice-Chancellor of Essex University that the members of that Committee would have been welcome if they had gone as guests. In fact the vice-chancellor, in reply to a question, said he would have preferred the formal 848 meeting to be held at Westminster because then the responsibility would not have been thrown on his shoulders.
What I complain about in the present system is that we tend to make Parliament a laughing-stock by the pomp and circumstance of having a Committee outside the Palace of Westminster where we have no power to impose control. We are also putting an unfair burden on the university authority. In the case of Essex University it would appear that it took the burden very lightly. I hope that the House will think over this matter. I see no difficulty in adopting the procedure which we have for the Commonwealth Parliamentary Association and the Inter-Parliamentary Union by which Members of Parliament are guests and come back to make a formal report to the House, as they are entitled to do. There is nothing lost in that procedure.
I agree that the present procedure of the House is not satisfactory. I do not actually agree with the recommendation of the Committee, and I shall try to explain why. In my view, where we have gone wrong is that we have changed our procedure in recent years.
§ Mr. Turton
No, later than that. From 1926 to 1939 there were seven complaints of privilege referred to the Select Committee. In the last two Sessions there have been eight complaints and four occasions on which they have been referred to the Committee of Privileges. The main change was in 1934 when this curious phrase "prima facie evidence" crept in. The reason was that Mr. Winston Churchill raised a complaint that Lord Derby and Sir Samuel Hoare had behaved improperly as members of the Joint Select Committee upon Indian Constitutional Reform and tried to suppress the evidence of Manchester Chamber of Commerce. As he was in a slightly delicate situation, he used rather different phrases and was rather tentative in his approach to Mr. Speaker Fitzroy. He asked Mr. Speaker, not as was the previous custom to give the complaint priority over the Orders of the Day, but to find a prima facie case.
Mr. Speaker Fitzroy said:I would like to point out to the House something of which, perhaps, not all hon. 849 Members are fully aware. What I have to decide in the case that has been presented to me by the right hon. Gentleman is not whether a question of breach of privilege has arisen. That is not for me to decide. The point is whether he himself has made out a prima facie case for a breach of privilege."—[OFFICIAL REPORT, 16th April. 1934, Vol. 288, c. 722.]That had never before been put to any Speaker of the House of Commons. It was a completely new introduction. Such is the weight of precedent and the authority of Mr. Speaker Fitzroy that from that date we have got away from the question of whether a matter is of sufficient substance for Mr. Speaker to rule that it should have priority over the Orders of the Day and have adopted this curious phrase of prima facie evidence. I hope that whatever conclusion we reach after today's debate we may get away from that phrase. I assure you, Mr. Speaker, that however much Members of Parliament understand your ruling, there are many outside who think that when you have given that ruling you are in some way ruling that there is in your view some form of a breach of privilege.
The other alteration came later. In the summer of 1934, Sir Herbert Williams raised a matter of privilege, having been given priority by Mr. Speaker and the hon. Member made the Motion. There is a great deal of sense in what the right hon. Member for Vauxhall said. Directly we move from the hon. Member who raises the complaint the necessity to move a Motion and place it on the Leader of the House, we are making it more likely that trivial cases or cases which do not require examination by the Committee will be sent to the Committee of Privileges. Until I came back to the House after the war the Member himself made the Motion. This is an innovation which has crept in in recent years.
The advantage of the old system is that there are three alternatives when the Member makes a Motion. First, the Member need not seek to refer the matter to the Committee of Privileges. If I remember rightly, Sir Herbert Williams, in the second case in 1934, did not make that suggestion. He merely put a Motion that the matter complained of was a gross breach of privilege of the House. That was passed nemine contradicente, and the whole matter was finished with there and then, which is a very suitable 850 way of dealing with a case which is a clear breach of privilege and where the House does not want to take any action.
There is the other alternative. In the old days, when a Member had moved that a matter should go to the Committee of Privileges, the Leader of the House, if he felt that it was an unnecessary waste of parliamentary time for the matter to go to the Committee of Privileges, could move that the House should proceed to its next business; and the whole matter, if he succeeded on that Motion, was then disposed of.
I believe that we should try to get back to the old procedures, using those methods. If there is any change, I would hope, Mr. Speaker, that when you are giving your determination on these matters, in view of their frequency, you would consider, rather as you do when an Adjournment is sought under Standing Order No. 9, whether it is a matter of sufficient substance for it to have priority over the Orders of the Day. That would be a proper matter for Mr. Speaker to consider. After all, Sir, you are supreme on decisions of order. With great temerity, I suggest that is the right way in which that ruling should be taken.
I am a little worried about the suggestion contained in paragraph 162 of the Report. I agree with the Leader of the House and disagree with the right hon. Member for Leeds, West (Mr. C. Pannell). I think that it would involve a certain amount of delay, because if a preliminary point is to be put the Clerk, although he is to be notified as soon as possible, he has no power. I am sure that the Committee of Privileges was not suggesting that the Clerk to the Committee of Privileges had any power. He would then have to summon a sub-committee and get the ruling on the preliminary point from the sub-committee.
The Committee of Privileges can only advise the House. It cannot determine. In so far as this preliminary point is order, as I believe it is order and not law, and on the question whether it is a matter of sufficient substance to go to the Committee of Privileges, there is only one right hon. Member who can give a decision on order other than the House; and that is you, Mr. Speaker. It is wrong to allow a sub-committee of a Committee of Privileges, or indeed a Committee of 851 Privileges, to give a ruling on order. All that it can do is to advise the House. It is for the House to accept or to reject its decision.
Therefore, I believe that there is this fallacy in the whole recommendation contained in paragraph 162. I also believe that it puts a very grave extra burden on the members of the Committee of Privileges. If this recommendation were implemented, I believe that it would excite more than fewer appeals to the House on questions of privilege.
I agree that it is conditioned by the rules proposed in paragraph 48. which I think in general are excellent. It is that kind of clarity of ruling which I would like. I would ask the House to hesitate before changing the present method and to try, first, to go back to the old method used before Sir Winston Churchill made the innovation in 1934 and before the House after the war got into the habit of asking the Leader of the House always to move it.
I am not very happy about the proposal to rename the Committee of Privileges, the "Select Committee of House of Commons Rights". I do not think that would appeal to the country or that the country would know what is meant by that. It sounds rather like a human rights convention. I rather like old names, even though they do not convey what we mean. Over many years we have become used to the Committee of Privileges. I would rather it retained that name, although I agree that what we would be looking at would be contempt rather than privilege. It would probably be unwise to call ourselves "the Committee of Contempt". That might be misconstrued.
We should be very careful before changing any names. The House of Commons has many old traditions that go back in history. What we are trying to do is to modernise our procedure while sometimes we keep ancient titles such as "Mr. Speaker", who never speaks, or "Serjeant at Arms", who, as perhaps we have learned from the affair at Essex University, has not very much power outside the House.
I am sure that it is valuable to have this debate. I end as I began by begging the Leader of the House to give Government time for the passing, not merely of 852 the resolutions, but of the legislation that is very necessary, not only for the House, but for the whole of the Press and also for the people.
§ 12.26 p.m.
§ Mr. Charles Pannell (Leeds, West)
I want to deal straightaway with the proposed change of name. I think that outside the House the present name "Committee of Privileges" is considered to be a rather odious name. I, too, am in favour of old names. We call Mr. Speaker by that name because he is something more than a mere Chairman; he speaks to the Monarch for us; and that has meaning today. It has a certain sweep of history.
The word "privilege" is an emotionally toned, evil, question-begging word, the connotation of which is an assumption that we Members of Parliament are always asking rather pompously for some precedence denied to those outside. It should go out to the country from us right from the beginning of this debate that not one of us asks for any privilege for ourself as a person.
People often kick up a row and ask why Members of Parliament should be given the right of access across the traffic lights, as if somehow Londoners own the whole of the Commonwealth. When I approach this place I approach it on behalf of 60,000 people in Leeds, West, who have just as many rights in the Commonwealth as anybody who wants to across the road rather quickly. These are the sorts of considerations that we should bear in mind. All we are asking for is the right to speak up on behalf of the electors of Walton, or Easington, or Vauxhall, or Thirsk and Malton, quite fearlessly, without any impediment, without any of the great engines of propaganda and wealth that can bear upon the individual Member. So we are speaking about a great principle.
What do we put in its place? The joke about contempt came up during the deliberations of the Committee when we were considering synonyms, but it seemed at the end that a rather less emotionally toned word like "rights" was appropriate. "Bill of Rights", after all, has an ancient lineage. Our immunity from arrest has an ancient lineage. However, we do not stick on this. If a better word can be thought of we will 853 adopt it: but let us abolish the idea that individual Members want privilege, because they do not.
I join in the point which has been made about the way the Committee has been treated. We need only to read the dates to see that we met for the first time nearly three years ago this month. Our Report was laid on 1st December, 1967. That Report was laid because of continuing pressure over the years and continuing criticism of Members of Parliament for abusing their privilege. This is not something which started with the Government before last. This eventually came to consummation with the setting up of the Select Committee. I sometimes wonder whether a Select Committee is a light or a heavy thing. Generally speaking, Governments use Select Committees as devices to dodge issues. In thinking back over the Select Committees on which I have served, the one which gave me most pleasure was the Stokes Committee of 1953, whose Report, I think, is the best written Report that I can remember.
It so happened that proposals were put forward that to build over Star Court. Fortuitously, when I became Minister of Public Building and Works in 1964, we picked out that proposal because I remembered it, and we brought it up-to. date, thus providing the only new accommodation which had been built in this place for over 100 years. I can remember Captain Crookshank at the time rather shrugged me off as a younger Member and was somewhat surprised at the idea that the Government ought to implement a Select Committee's Report.
There was the Select Committee Report on Member's pay. Everybody knew that this was over-ripe. Only electoral cowardice stopped us implementing the Committee's Report. A great deal of work was done, and I say to my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) that thought on this subject did not begin in 1964. There had already been a great deal of agitation. My right hon. Friend the Member for Easington (Mr. Shinwell) dealt with this many years before.
The plight of Members of Parliament has been considered for a long period. One should reflect that Select Committees, too, have a rather noble lineage. They were the forerunners of the Royal 854 Commissions. Before there were Royal Commissions, Select Committees of this House went out to such places as Van Diemen's Land to consider the case of the convicts who were transported to Botany Bay. Many great and noble names are associated with Select Committees. Therefore, I am all in favour of establishing the authority of Select Committees. I was glad that in a fairly recent Select Committee, the Select Committee procedure was vindicated by my right hon. Friend the Member for Vauxhall (Mr. Strauss) in what is known as the Nabarro case. That was a very good example of what these Committees should do.
I believe that when Select Committees are set up the Government incur an obligation to implement their Reports quickly. The procrastination that has followed this Report is no credit to Parliament or to my party or to my Government, and I am very displeased about it. My hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) drafted the Report and we are under a great debt of gratitude to him. However, lawyers are not good on privilege. It was once said by learned counsel in a privilege case that what lawyers revere historians despise. I think that is a fairly good dictum. I like to think that I am something of a historian, and I do not think that lawyers really understand history.
This Report has come before the whole House. In fact, my right hon. Friend the Leader of the House was speaking to 16 Members with a special interest in the' matter. I know that this is an esoteric subject, but my right hon. Friend can hardly say that he is taking the view of the House when the Report is brought up on a Friday before 16 Members. [Interruption.] I thought I heard my right hon. Friend say soto voce that other Members are not interested in the Report.
§ Mr. Pannell
The older I get the more do I treasure the opinions of the decreasing number of intelligent people. I remember one occasion when the hon. Member for West Lothian (Mr. Dalyell) had to be dealt with by you, Mr. Speaker, under a certain Motion and this House was in a greater uproar than I can ever remember. The fact that this Report has hung about since that day is no credit to anybody.
I want to deal with the question of procedure as I see it. I hope, Mr. Speaker, that you will not mind my referring to you. I introduced a proposal before a Select Committee in, I think, 1958 by which you were given 24 hours to consider a matter of privilege. I may say that you have completely misconstrued ever since what we had in mind. It was a matter of mutual protection. If an hon. Member was suddenly presented at twenty minutes past three with a newspaper cutting, under the old system he would have had to rise to his feet and raise the matter in 10 minutes. But he might want to reflect. He might want to discuss it with some other Member of the House, as for example, my right hon. Friend the Member for Easington who is a Member of long experience. We wanted to give hon. Members 24 hours in which to consider the matter. We were aware that Members approached Mr. Speaker in the morning of the day in question.
Suppose, Mr. Speaker, that some Member pulled a fast one on you, suddenly jumping to his feet, as happened during Mr. Speaker Morrison's time. The late Mr. Sydney Silverman was good at this. We believe that Mr. Speaker should be protected. Mr. Speaker Morrison said, "I want 24 hours in which to consider this." But we never considered. Mr. Speaker, that after receiving notice in the morning you should ask for 24 hours in which to consider the matter. Our procedures would benefit if you could take a firm line in the morning and say, "No, I rule that out." I think people would understand that. Instead of that, for 24 hours the most ridiculous things can be said. The Press still assume that if you do not rule that a prima facie case has been made out, we have affronted you, Mr. Speaker. This is the evil of the present procedure. We have therefore sought to put in its place something different.
856 The right hon. Member for Thirsk and Malton (Mr. Turton), who is an experienced Parliamentarian, has misunderstood this, and here I think I carry the right hon. and learned Member for St. Marylebone (Mr. Hogg) with me; he can contradict me if I am wrong. The idea is that somebody will approach the Clerk of the Committee and say, "I think this is a breach of privilege." The Clerk will obviously approach the Leader of the House; no functionary will give a ruling. The Leader of the House, having been approached, will consider the matter and call together any three Members of the Committee of Privileges, and a decision can be obtained within 24 hours as to whether the matter will go to the main Committee. I hope that I carry my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) with me. If the matter goes to the main Committee it will be considered. But Mr. Speaker has not been brought into it yet. I consider that the necessity to establish a prima facie case is an undoubted evil. One can almost hear the sonorous tones of the late Sir Winston Churchill saving, "Surely it is a prima facie case" and Mr. Speaker, blinking, accepting it, as a result of which we have been landed in this travail ever since.
One thinks back to some of the other great privilege cases. I think of one within the memory of my right hon. Friend the Member for Easington, the Salter case. It was raised by a Tory brewer in the afternoon—hon. Members will recall that Dr. Salter of Bermondsey was a great prohibitionist—and he attempted to move the Motion that afternoon, but it was taken at 7 o'clock in the evening because Dr. Salter was away at 3.30. On that occasion, there was an Amendment to take the matter to the Committee of Privileges, but Mr. Lloyd George said, "Do not do that. You have a heavyweight on your hands". The allegation was that 100 Members were drunk. Therefore, 100 Members would want to be represented. Dr. Salter said, "I do not want this publicity. It was off the record. I do not want it to be taken up, but if you force me to it, I shall name names". Lloyd George's advice was not to do that—"Pass the Motion, it is a breach of privilege, and that is that". It was all done within the 857 day. A very sensible thing to do, I should have thought.
On the occasion when I raised the question of privilege regarding Colin Jordan, who had put anti-semitic literature in Leeds telephone boxes, I had a great deal of threats put to me by his organisation about what would happen to me if his party ever took over. I approached Mr. Butler, the Leader of the House, and I told him of the old procedure which some of us like so much. I said, "Cannot we get rid of this?", and he replied "That is a good idea". When I rose to move the Motion, the then Member for Nelson and Colne, Mr. Sydney Silverman, popped us as he usually did—not knowing who I was raving about—in defence of the rights of the individual. He said that the matter ought to go to the Committee for judicial examination. There is no defence like that. The procedure was killed because the Member for Nelson and Colne did not understand what it was all about. That is the sort of reason why I say that we must have a clear line on these matters.
Sometimes, matters of privilege are raised which appear to be light-hearted, but which may be loaded with tragedy. I remember the complaint concerning an article in the December, 1967, issue of the magazine Town, raised by the hon. and learned Member for Montgomery (Mr. Hooson). The Committee decided thatit would not be consistent with the dignity of the House to take any action in respect of the contempt".But it was a matter in which the Free Wales Army was reported to have said that itwould dearly like to blow up the Severn Bridge. These days, when they blow thing up, the boys go out with Sten guns and … would not mind using them. We shoot to kill,' he said, pounding one fist in the other. 'Nothing stops us. We have dossiers on all the traitors.'.That sounded funny at the time, but it does not sound so funny now in the context of the investiture and what has happened in Wales during the past week. Therefore, as I say, some things which might appear trivial at one point may be loaded with disastrous consequences. No doubt, if there had been any special action such as bringing those people to the Bar of the House, everyone would have said that we had somehow had a great up- 858 surge of dignity. I hope that hon. Members who do not like our proposals at first sight will give them a little more study.
I refer now in passing to the electricity board case. My right hon. Friend did not mention it, and he is probably in a more difficult position to mention it than I am. When the Select Committee of Privileges accepted his view by 10 to one, the dissentient voice was Lord Dilhome, Manningham-Buller, the Attorney-General. It was he who used his influence against the Committee's Report. I shall not mention the names of distinguished Parliamentarians who are now dead, but I can only say that a great deal of that vote which was taken went on party lines across the House. It has bedevilled us ever since, and a good deal of it was based on considerations of personal dislike for my hon. Friend in certain places. If I may say so, there was a streak of anti-semitism in it as well. It was no credit to the House. I know what I am talking about, and I should be prepared to name names.
I advise any hon. Member, especially new Members, that if they want to do anything at all in that line they should put some sort of Question down on the Order Paper. They can then raise the plea that whatever they do is a proceeding in Parliament. Ever since what is known as the London Electricity Board case, the Strauss case, I have always carefully put what I wanted to say to a Minister. I happen to think that the right hon. Member for Barnet (Mr Maudling) was wrong to hand the Strauss letter to the chairman of the London Electricity Board, and I consider that it was an impertinence on the part of the chairman of the Board to threaten an ex-Minister with libel when he was doing something arising out of a proceeding in Parliament. If the matter had ever been taken into court, my right hon. Friend could undoubtedly have pleaded qualified privilege, and probably won. My right hon. Friend will not mind my saying that he is in a position to defend himself. I could not be, not on that financial scale. The chairman of the Electricity Board, probably with public funds—[Interruption.]—yes, probably on public funds—would be bringing an action against a Member of Parliament.
We need this protection. I can only say now that, unless I raise a matter on 859 the Floor of the House, I always paraphrase a letter or ask the Department or the Minister to send me the sort of letter which I can safely send to my constituent. This is a nonsense. Parliament has become so complicated that, if we all put Questions down, the Order Paper would be completely clogged up. I regard Questions as a rather overrated Parliamentary exercise, anyway—that may sound rather heretical—but we would clog up the Order Paper to such an extent that we had to have three or four hours of Questions a day. Eighty per cent. of Questions are asked by 30 per cent. of Members, and they grow less enthusiastic after their second Parliament. The persistent questioners of the 1945 Parliament, for example, do not ask Questions now. One uses a Question, at the end of the day, as a threat or as a means of eliciting a public apology by a Minister.
Everyone knows that we do a more effective job by approaching Ministers personally and in correspondence, but we do it at our peril at the present time. This is something which must be altered. The Strauss case has led to much abuse.
I realise that many hon. Members wish to speak, and we should like particularly to hear from the Chairman of the Committee, who, probably more than anyone else, deserves opportunity to speak because of the work which he has put in. However, there is something else which I wish to say. I found it curious when my right hon. Friend the Leader of the House spoke about Parliament using its own time. In effect, we are striving to save the time of Parliament. Unless we spend time on these things, Parliament will spend hundreds of hours on quite trivial issues. We are not spending too much time on our own affairs. This goes to the root of what we are here for. We must speak freely on matters of importance. Considering the long time which has elapsed in bringing these questions before the House, we are entitled to speak today.
I realise that this is a subject which is open to specialist interest, but I hope that hon. Members will not underrate it. Every hon. Member will rush to it for his own defence from time to time. We cannot all be specialists in the House, specialists on agriculture or whatever it may be, but 860 we have our own particular enthusiasms. Privilege is a mixture largely of history, constitutional proprieties and the like. Wherever democracy has gone down it has been where Parliaments and democracies have had a low view of their own functions and have let them fall into desuetude. Therefore, we must be careful about this.
I do not want to be unkind to my right hon. Friend. I share the view that he is a very agreeable man to be the Leader of the House. But I think that he has been too agreeable on this matter. I would have liked him to be far more abrasive. This is a matter to care about far more than we have cared about it.
My service on the Committee of Privileges was only part of an interest in the subject that I have had for 20 years. After all that time I feel somewhat affronted. Without much more delay I would like my right hon. Friend to resolve to be more than just irresolute. I remember Winston Churchill's famous reference to Stanley Baldwin as being resolved only to be irresolute. I would like my right hon. Friend to come to the point, to say that there are several proposals here which can be implemented without legislation, and to proceed with them as quickly as possible.
§ Mr. Peart
I explained to my right hon. Friend, and he knows this, that I put down Motions on the Order Paper, but considerable differences of opinion were expressed even by members of the Committee, who tabled Amendments. My right hon. Friend must not assume, in his agreeable speech, that his views are accepted by all hon. Members. One must take note of differences. I respect my right hon. Friend's views, but he must not assume that they are always the ones that the Government should accept.
§ Mr. Pannell
I was one of the signatories to the Amendments, with my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot), my hon. and learned Friend the Member for Dulwich and others. It seemed to me that we were proceeding at that stage only with the trivia of the Report and that my right hon. Friend would say later on that matters had gone so far and would go no further. I want something more. We deserve more than a debate on a Friday. I have steadily taken part in the Ballot 861 for Private Members' Motions, and if I had been successful at any time in the past year I would have chosen this matter as a subject for debate.
I still think that my right hon. Friend should have been firmer than he has been, and the Government's mind should have crystallised much more. I hope that my right hon. Friend will have learned a great deal by the end of the day. Without presuming to say what will be in the Queen's Speech at the beginning of the next Session, I join the right hon. and learned Member for St. Marylebone (Mr. Hogg), who was a colleague of mine on the Committee, in the hope that the drafting of what is necessary in this respect will start here and now.
§ 12.53 p.m.
§ Mr. S. C. Silkin (Dulwich)
I must begin by thanking my right hon. Friend the Leader of the House for the charm with which, as always, he has paid a tribute to the Committee. However, you, Mr. Speaker, as a philosopher, will well know the expression, Timeo Danaos et dona ferentis—I fear them much more when they come bearing only compliments.
In July, 1966, the Select Committee was appointed and after some 18 months' consideration it reported to the House. Its deliberations extended over two Sessions and it held 24 meetings. I say this simply to emphasise the great care and thoroughness with which right hon. and hon. Gentlemen who served on the Committee applied themselves to their task.
The Government have been in possession of the Report also for about 18 months, and I had hoped by now to hear from my right hon. Friend the Leader of the House that those 18 months have been fully employed in taking soundings from interested persons and bodies and formulating the Government's policy on the recommendations of the Report. Had that opportunity been taken, my right hon. Friend's opening speech might well have been as illuminating as it was charming. However, I gather that my right hon. and learned Friend the Attorney-General will wind up the debate for the Government, and I look forward with the keenest anticipation to his speech.
862 It will not have escaped the notice of my right hon. and learned Friend that the Memorandum that he kindly supplied to the Committee, and which is to be found at page 167 of the Report, is very much the skeleton which the Report has clothed with flesh and blood. The Committee was most grateful to him for the lead he gave us on a number of the main recommendations of the Report. I hope that we shall have reason to be even more grateful to him when we hear him later this afternoon.
I must also thank the large number of bodies and individuals who gave assistance to the Committee by way of memoranda, oral evidence, or both. They included not only Members of the House and persons associated with it, such as Lobby correspondents, but bodies and individuals who could fairly claim to speak for sections of the public outside the House. I regard that as very important, because it would be wrong to approach the subject as being simply a domestic House of Commons matter, as my right hon. Friend the Leader of the House suggested.
§ Mr. Peart
I hope that I shall not be misinterpreted. I did not say that this was a domestic matter. I was dealing with the historical approach and attitudes, and saying there was in the House often a greater concentration on other matters apart from privilege. I am not saying that it is a domestic matter, and I hope that my hon. and learned Friend will withdraw his remark.
§ Mr. Silkin
I am grateful to my right hon. Friend. I am glad that he does not regard this as a domestic matter. I had understood that that was the reason he had given for not having had a debate on the matter for 18 months. Perhaps I was wrong, and if so, I withdraw. At any rate, I hope that we are all clear today that it is not a domestic matter. Certainly the Select Committee did not so regard it, nor, I think, did any of those who gave evidence.
Our task, as it was understood by the right hon. and hon. Members, many with immense Parliamentary experience, who formed the Committee, was fundamentally to create a fair balance between the powers and immunities of the citizens' representatives and rights of the citizen. It was acknowledged by the Leader of 863 the House that the Committee's first task was to discover the principal criticisms of the existing law and practice, whether they were advanced by Members, those who work side by side with them, or the public looking in at, and liable to be affected by, our customs and procedures.
Paragraph 10 of the Report summarises the main criticisms. They are criticisms of substance and procedure. It is true, as the Committee recognised, that some of the criticisms turned out to be misconceived or exaggerated on detailed examination. But the basic substratum of criticism, which the Committee had no choice but to accept, turned upon the uncertainty and elasticity of the boundaries of the penal jurisdiction, the apparent sensitivity to criticism of admittedly a small minority of the House, and the obsolescence and inadequate safeguards of the penal procedure. That procedure—this should be emphasised because it brings in strangers as well as hon. Members—can lead to disgrace, expulsion and, in the last resort, even imprisonment, rare as that may be.
If the Members of the Committee had all been relative fledgeling Members of the House, like myself, the House would be entitled to look with some suspicion at their conclusions. However, no better cross-section of hon. Members with opinion and experience could have been found. It was that cross-section which, after the fullest examination, unanimously concluded that the present law, practice and procedure are in need of radical reform and require not only to be simplified and clarified but to be brought into harmony with contemporary thought. This is expressed in paragraph 25 of the Report.
Once the need for reform was accepted, it became necessary to consider the basic principle on which reform should be founded. Having heard the debate so far, it seems that we are all agreed about that. The great dilemma must inevitably be how to reconcile the freedoms of the individual citizen with the measures necessary to protect his representatives so as to enable them to represent him fearlessly and effectively—often, indeed, when protecting his freedoms.
The Committee found the solution to this dilemma in the fundamental prin- 864 ciple referred to by my right hon. Friend the Member for Leeds, West (Mr. C. Pannell) and summed up by Erskine May in the proposition that Parliament should use its powers to protect itself, its hon. Members and its officers only to the extent absolutely necessary for the due execution of its powers. My right hon. Friend the Member for Leeds, West, said, in other words, that hon. Members do not seek for themselves a privileged status; and that is the very reason why "privilege" is not an apt word to describe their powers and immunities.
These privileges are not their own but the privileges of the citizens they represent. Their special protection can be justified only to the extent that it enables them, fearlessly and free from obstruction, to perform their duties as the representatives of the citizens whose basic rights it is their duty to uphold. As I said, this principle has long been accepted. The difficulty is that its application has not always kept in pace with the changing circumstances of the day.
That is why, in paragraph 48, the Committee proposed five rules which inevitably follow, in the Committee's view, from the acceptance of the basic fundamental principle and its application to the modern responsibilities of the hon. Member. These are rules which the House could accept today in toto, for they need no legislation and nothing more than the general approval of the House. They depend on no new principle or controversial theory.
If the penal jurisdiction of the House is to be exercised only when absolutely necessary for the due execution of its powers, it must follow that if other remedies are available, such as those available to every citizen in the courts, hon. Members normally have no need and no right to use the special protection of the penal jurisdiction of Parliament rather than their rights elsewhere. Nevertheless, rule V ensures that the House will preserve its ultimate right to exercise its penal powers if the remedies available to the citizen are inadequate to protect the hon. Member from obstruction in performing his Parliamentary duties.
The Leader of the House said that there was much to be said for flexibility, and the Committee agrees with him. That agreement is shown in paragraphs 40 and 865 49. At the same time, however, the Committee feels that an undue amount of flexibility could only create confusion.
There was ample evidence before the Committee to justify the Committee in narrowing down the boundaries of the penal jurisdiction in the way in which it has. That, I believe from the comment made since the publication of the Report by organs of the Press, has greatly appealed to the critics in the Press.
It must not be supposed, however, that the Committee intended in any way to lessen the hon. Member's protection from improper obstruction. Certainly it took the view that the citizen's right to criticise fairly and even trenchantly must be upheld. But it also considered that the existing statutory protection is inadequate and is not up to date for the modern hon. Member in that it fails adequately to safeguard his channels of communication with Ministers and officials, an essential part of his modern duties.
For this reason the Committee advocated the extension of statutory protection to cases like the London Electricity Board, in which my right hon. Friend the Member for Vauxhall (Mr. Strauss) was involved. The need for reform of statute law is set out in detail in paragraphs 86 to 94 and the Committee regards this reform as a necessary consequence of its clarification and modernisation of the powers of the House.
My right hon. Friend the Member for Vauxhall has drawn attention to the ridiculous distinction which exists between that which is subject to absolute and that which is subject to qualified privilege. I would go further and say that the present rule under which the Question openly asked in Parliament and recorded on the Order Paper is protected by absolute privilege, whereas the letter written in private is not, has the inevitable result that publicity is given to matters which probably should not receive publicity and which it would be in the interests of the citizen not to be given publicity. That, I suggest, is an important reason for extending that statutory protection.
I come to the penal procedure, whose ancient historical basis is described in paragraphs 26 to 35 of the Report. Ancient though it is, it has been amended and adapted over the centuries. The pre- 866 sent procedure under which Mr. Speaker, on hearing an hon. Member's complaint, defers to the next sitting day his decision whether the complaint should take precedence over the Orders of the Day is relatively recent.
Equally recent is the form of words used by Mr. Speaker to the effect that a prima facie case of breach of privilege has been made out—words which, with respect to Mr. Speaker and his predecessors, are quite inapt to describe Mr. Speaker's function in this matter.
The Committee was not, however, concerned so much with the technicalities of procedure. It was not adopting that legalistic approach which, rightly, does not commend itself to my right hon. Friend the Member for Leeds, West. Rather, it took the view that the ventilation in public, immediately after Question Time, of hon. Members complaints, whether well-founded or not and whether worthy of the time of the House or trivial, is unnecessary and undesirable and may well create hardship to innocent persons by reason of the inevitable publicity which results.
I was delighted to observe that my right hon. and learned Friend the Attorney-General shares that view of the Committee, as one sees if one studies paragraphs 2 and 3 of his Memorandum That was the prime reason why the Committee proposed to relieve Mr. Speaker of this function and to transfer it to a panel of the Committee of Privileges or, where necessary, to the whole Committee.
That rule would enable the trivial to be segregated from the important and would remove the dangers of publicity until the Committee of Privileges itself had declared the complaint to be well founded. If the Committee of Privileges took the view that the complaint was not well founded, or was unnecessarily trivial, nothing more would be heard about it. In the view of the Committee, that would be a great advantage and very desirable. The Committee was convinced that the new procedure, coupled with the rules in paragraph 48, would ensure that the fundamental principle described by Erskine May would in practice be followed in future, and the time of the Committee and the House itself would be spent only on complaints of substantial importance and substantial validity.
867 If this debate had taken place when the Report was fresh in the minds of hon. Members, and if these proposals had gained general acceptance and approval, in the meantime the House would have been saved both wasted time and possible damage to its dignity and reputation in certain cases which have subsequently taken place.
My right hon. Friend the Leader of the House spoke of delay. I do not think that there is likely to be any great delay, but in that context it will not have escaped the notice of my right hon. Friend that another proposal of the Committee is that the present rule, whereby a matter must be raised on the Floor of the House at the earliest possible moment, should be changed and in future it should be as soon as is reasonably practicable. The Committee takes the view that the importance of a matter cannot necessarily be determined by whether it is raised at the earliest possible moment, and it would introduce what in our view is a greater and more desirable elasticity into that aspect of the procedure.
Further reforms of procedure advocated by the Committee are intended to give hon. Members and citizens whose reputations may be in jeopardy, or who may be affected by a complaint, an unqualified right to appear and, at the discretion of the Committee itself, a right to be represented when their conduct is being examined. Some hon. Members may feel that this reform may overburden the procedure, but a right which is accepted as normal and necessary in the humblest courts of the land and inquiries such as the Lynskey Tribunal must surely be accepted when the House, as the High Court of Parliament, exercises its penal jurisdiction in a way which may create even more lasting damage to a member or citizen than that which other tribunals can inflict.
About the punishments which the House can inflict I want to say only a few words. It is abundantly clear that they are out of date. Particularly absurd in the conditions of the day is the rule that imprisonment ordered by the House must automatically come to an end with the end of the Session, although when the new Session begins, the new House may reimpose it, so that the 868 unfortunate citizen, having been let out, may be put back inside again.
Obsolete also, in the view of the Committee, is the inability of the House to impose a realistic penal sanction on corporations and institutions, which in modern times may well be the most dangerous opponents of the freedom of Members to do their duty. The Committee's proposals therefore involve a rationalisation of the power to imprison and would give the House for the first time a power to fine, which in the case of corporations would provide a far more salutary sanction than the simple reprimand which is all that the House can impose on them today.
I do not want to say much about the question of the name of the Committee. The existing name certainly is inapt. I remind the House that, as is said in paragraph 36 of the Report, when Mr. Speaker at the opening of every Parliament asks for the ancient privileges of the House to be granted again, he refers toall your ancient and undoubted rights and privileges".It was for that reason that the House took the view that the use of the word "rights" was appropriate in the circumstances. However, as my right hon. Friend the Member for Leeds, West has said, we would not be dogmatic about the precise wording.
I am conscious that I have omitted many important proposals in a Report which is full of proposals. I have tried to concentrate on those which, closely affecting as they do the rights of the citizen and the ability of the Member to perform his necessary functions, are likely to be most controversial and which have been most discussed in the course of the debate. If these proposals are accepted, and those which need no legislation could be accepted by a simple Resolution of the House, the reputation of the House would stand higher and its historic tradition as guardian of the rights of the citizen would be more firmly established than if the old order were allowed to continue.
I recommend the Committee's balanced and carefully considered proposals to the House and I express the hope, which I trust will be passed on to my right hon. and learned Friend the Attorney-General, that when he winds up the debate he will 869 be able to take pleasure in the discovery that his own views, as clearly set out in the memorandum, are closely identified with the ideas and opinions of his fellow Members of the House.
§ 1.17 p.m.
§ Mr. Michael Foot (Ebbw Vale)
Following the speech of the hon. and learned Member for Dulwich (Mr. S. C. Silkin), who presided over our Committee, I should like to join with others in paying tribute to him and expressing the debt of gratitude which we all feel towards him for the way in which he presided over the Committee. I shall support his plea to the Government to approach this matter in a rather different style from that followed by the Leader of the House.
This is a matter which affects the status of the House of Commons, its relations with the Press and with the public generally. If other hon. Members have not shown today as much interest in the matter as they should have done, that may be due partly to the selection of Friday as the day for the debate. We all know that it is extremely difficult for hon. Members to attend on a Friday, for they may have made previous engagements. I hope that we shall have an early occasion to discuss this matter further.
I give notice to the Leader of the House that many of us will have opportunities for raising this matter to the great discomfiture of the Leader of the House and the Government if continued privilege cases are raised subsequent to the debate. A Select Committee has reported to the House. I do not say that its recommendations should be automatically accepted, but the Report says that the whole of our present procedure is out of date. It shows that it does not work. It shows that in some instances it may be grievously unjust. It is therefore quite improper that those of us who served on the Committee and those who agree with us should permit further privilege cases to proceed as if there had not been a report to the House.
This is a view which I took prior to the debate and it will be the view I shall take of subsequent privilege cases. I renew my promise to my right hon. Friend that, except in the most exceptional circumstances, I will oppose every pro- 870 posal for a matter to be remitted to the Committee of Privileges until we have dealt with this question. It is, therefore, not open to my right hon. Friend to say that he will be saving Parliamentary time by not proceeding with this matter. He will be adding to it, because on every occasion when a matter of privilege is raised, he may well be subjected to a full-scale debate in the House. The Leader of the House should weigh those matters carefully when he is deciding how to proceed.
I want to speak only briefly about some of the central principles which arise in the Report. The first purpose of privilege—and one of the reasons why the name should be changed—is to protect the opportunities of Members of Parliament to raise matters properly on behalf of their constituents. That is the first purpose of privilege. Indeed, the whole basis of the House of Commons rests on that, and the stature which this House has throughout the world rests on privilege in the sense of the measures which were taken to protect the rights of Members to speak freely in this place and to act freely in communicating with Ministers. This is essential to the whole conduct of the House. The House would not have any reputation throughout the world if that privilege had not been fought for in the days of Queen Elizabeth I, and before, and had been established.
We claim a right which is not possessed by other members of the public, in the sense that we demand, and insist upon, the right here to be able to say what we think, without any interference from the courts of law on grounds of defamation or anything of the sort. This is one reason why some of us attach so much importance in these proposals to the reversal of the previous decision taken in the case raised by my right hon. Friend the Member for Vauxhall (Mr. Strauss), in which he was implicated.
We believe that that reversal of the previous decision is essential to protect the kind of freedom of action which Members of Parliament ought to have. The decision which was made on the previous occasion limited what many thought to be the freedom which Members possessed at that time. It has given rise to the ambiguities, which have been emphasised since, and we say that if that were the only recommendation the 871 Government should be eager to proceed with it at once. That proposal enlarges the rights of Members to speak and act freely on behalf of their constituents. The Report fully protects all the other rights which Members claim for acting on behalf of their constituents without any fear of interference by the courts of law or by the Monarchy, or by anybody else who tried to interfere with the affairs of the House of Commons in the past.
But the more we seek to protect that right, the more I believe we should not seek any special protection for Members to save themselves from criticism by the public. This is the fundamental change involved in proposals 2 to 5, and it is a drastic change. It deals with the main complaint which has been made against the way privilege has operated in recent years. It is a fundamental change, because it suggests that except in cases of improper obstruction which have to be specifically proved Members of Parliament should not have any methods of protecting themselves from criticism that are not open to ordinary members of the public, and I think that that principle is absolutely right.
I have heard my hon. Friend the Member for Liverpool, Walton (Mr. Heifer), with whose views I generally agree on most subjects, express his views on this matter. I do not want to anticipate what he may say later, but I gather that his objection to the Report in some respects arises on this aspect of the matter. My hon. Friend may say that we do not want to have to resort to the law to protect our reputation. That apparently is the case that he wishes to put.
If that is his case, and if that is the objection which some hon. Members may have to the Report, if the law of libel does not provide sufficient protection for people's reputations, I do not think that a Member of Parliament has a special right to have a protection which is not available to other members of the public. If my hon. Friend and others do not believe that the laws of libel provide sufficient protection against people being defamed, or sufficient protection for people to get access to the courts for those matters to be determined, that is a case for altering the law of libel, not for saying that Members of this House should have 872 rights which are denied to other people. We cannot claim that if at the same time we say that we do not want privileges. This has been my fundamental objection as a journalist, as a Member and as a person who believes in equal rights to the whole method in which privilege has operated. It has been used by Members to say that we must have a protection which other citizens need not have. I believe that that is a disgraceful claim for us to make, and it is one which has legitimately aroused great criticism in the country and from others, apart from the Press.
I cannot see any basis on which a person in public life can claim that he must have protections against criticism which are not available to the general public. Indeed, I put it the other way around and say that those who engage in public life ought to be more ready to face criticism than private individuals who have less possibility of being able to state their case. Indeed, our first privilege, or our first right—
§ Mr. Heffer
I think that my hon. Friend is going a little too far when he suggests that hon. Members are not happy with this Report and want special privileges. The essence of my argument—and I hope that I shall have an opportunity to develop it—is that a Member of Parliament is in a special position, in the sense that he makes speeches daily, sometimes almost hourly, and in the course of them he can say things which would not be said outside. If a Member has to resort to the law, with the expense that that involves, that puts him in an impossible position.
§ Mr. Foot
If it is impossible for Members of Parliament to protect their reputations by resort to the law, it is impossible for people outside. If it is unfair, if the law of libel is unfair as between rich and poor people outside, as it may be argued it is, that is a case for challenging the law as it affects everybody in this country. It is not a case for saying that we in this House have a claim to a special protection, a special suit of armour which is not provided for other people. My hon. Friend will have the chance of putting his case. I am sure that he will put it very forcefully, but I hope that he will address himself to that question.
873 In one sense, the fact that Members of Parliament are claiming the first right, that of being able to speak fearlessly without any possibility of legal action against them, is all the more reason why they cannot claim any special right to protect them against criticism from the public or from the Press.
§ Mr. Foot
I know that we are, but what those who insist on the old system of privilege which we are trying to do away with say is that over and above the normal protections of the law, those who sit in this House should have the right to come here and go through the whole of this paraphernalia to protect themselves against criticism outside. They say that criticism can be levelled against other members of the public, but it should not be levelled against us. There have been several cases, which I could quote, but I shall not recite them all now, of Members taking objection to criticisms against them or their fellow Members, yet if those criticisms had been made against ordinary individuals no protection would have been available. I say that that is an intolerable position and should be swept away, and that is the main reform in these proposals. That is the main situation which we are seeking to remedy. The Press should take this into account. In many comments which I have seen in the Press generally on what is proposed in the Report I do not think it has fully understood the nature of the drastic change which is proposed which would go very far towards providing the Press with what I think it is entitled to claim, namely, the right of criticising hon. Members in exactly the same way as it has the right, under the law, to criticise other citizens.
I come to the third matter on which there is still a considerable difference between the view adopted by some sections of the Press and the Report. It is not enough for my hon. Friend the Member for Walton to quote the evidence given by Mr. Cecil King. His evidence was such that he turned himself into a laughing stock before the Committee. He was apparently totally ignorant of the matter which he was supposed to discuss. His answers were arrogant, ignorant and evasive. They showed a complete misunderstanding of the relations between 874 the newspapers and the House of Commons. I have never seen a prominent man in public life make such an exhibition of himself in so short a time as Mr. King did when he appeared before our Committee.
§ Mr. Heffer
I am sure that my hon. Friend is absolutely right in what he says about the replies of Mr. Cecil King, but I understood that he was speaking on behalf of the Newspaper Proprietors Association.
§ Mr. Foot
If my hon. Friend will listen patiently he will understand what I am saying. I do not have very much respect for newspaper proprietors, any more than I have great respect for bosses in other sections of industry. My hon. Friend must get used to this. It is the working journalist, together with his rights, for whom I have some respect. There was a very sharp contrast between the evidence given to the Committee by Mr. Cecil King, appearing partly on behalf of his own corporation and partly, I believe, on behalf of the Newspaper Proprietors Association—although he was not very clear even about that—and the evidence given by the journalists, whose trade this is. It is my trade, too. I am proud of my trade, and my hon. Friend the Member for Walton is proud of his. I want to ensure that those who practise the trade in which I am engaged and from which I get a better living than I get from the job for which I am paid in this place have conditions in which they can discharge their duties.
The journalists who appeared before our Committee—the editors, Lobby correspondents and others—put their case extremely intelligently, forcefully and carefully, having considered the matter, not only in the light of their own interests, which they were entitled to do, but in the light of the proper relations between Press and Parliament. They put a case which was very different from the one incorporated in the Report. Do not let my hon. Friend the Member for Walton or anybody else suggest that the Report merely adopts holus bolus the recommendations of the Press.
My emphasis is different from that of the Chairman of the Committee, and it was illustrated by some of the arguments which arose when the case of my hon. Friend the Member for West Lothian 875 (Mr. Dalyell) came before the House. The way in which I approach the Report is different from that of the Chairman. Nobody can dispute that on the third aspect, namely, the rules which should govern the secrecy of Select Committees and other such committees, the Report does not accept what the journalists asked for. It goes some way in other respects to meet it, but in this respect it does not. We should consider this question as well, because it arose in the case of my hon. Friend the Member for West Lothian and it will arise many times in future precisely because of the creation of many more Select Committees.
I will not argue the case now, but I am opposed to the proliferation of Select Committees. I have stated my views before and I do not propose to repeat them now, but because I am opposed to the proliferation of these committees, and because I think that the more they increase the greater will be the injury inflicted on the Chamber of the House of Commons, it does not mean that I wish to see procedures adopted which will wreck the Select Committees. If the House sets up Select Committees, I want them to operate successfully. I do not want them to be surreptitiously sabotaged.
We shall get into greater and greater difficulty, and this is illustrated by the Report of the Committee on the Essex case which, whatever may be said in favour of or against it, nobody can call a very bold document. It pretty well says, "The House of Commons can send its committees into a few places outside, but we had better be careful that there is no rough house. If there is any chance of that, we had better retreat from such places." If we are to have more committees, there is a case for their travelling more. They should have the power to investigate on an extensive basis and on a basis of involvement and maximum participation, to use the modern word, with the people that they interview.
The question of the relationship between the Committee and the House and the possibility of publication and the confidentiality of reports will become much bigger month by month. Therefore, the Government had better apply themselves to the problem.
876 There is a clash here. What the journalists say—and I understand their view perfectly well—is, why not have a free for all? Why not put the Select Committees in exactly the same position as the Cabinet? They believe that the Press should be free to publish whatever it wishes to publish on its own responsibility about the activities of such committees. I say in passing that I doubt very much whether the way in which the Press at present deals with Cabinet meetings does much good either to Cabinet government or to the Press, because the newspapers purport to tell us what happens at Cabinet meetings. It is a pretence which it should not make, because it cannot know what happens at Cabinet meetings. All that it does by publishing such reports is to mislead the public if anybody believes them. If nobody believes them, they injure the reputation of the Press.
Therefore, I do not believe that the way in which the Press deals with the Cabinet is a good precedent for deciding how it should deal with Select Committees. It would not be good if there were a free for all, although I can see the case for it.
The best case against the Press feeling that at all times it should investigate what is happening in Select Committees and that there should be no bar on its publishing what is said, with no privilege involved, arises from what I would describe as the necessity for tentative argument. There must be occasions—presumably it happens in the Cabinet, but it must also happen in the Select Committees—when Members of Parliament, meeting in different forms of committee, are able to say to themselves, "We propose to discuss how we should proceed with the Committee or with a particular aspect. We must have the opportunity to do that without people being committed to everything that they say". If we deprive the House of Commons of that opportunity, we injure the processes of it. It would deny us a means of consultation which everybody in the country justly arrogates to itself in some form or other. Certainly the Press does. We do not have full disclosure of what happened when Mr. Hugh Cudlipp talked to Mr. Cecil King. These details are not revealed for our delectation. We get only the result. Then we 877 get jaundiced memoirs published afterwards giving, no doubt, completely false accounts of what happened originally.
Thus we do not get a situation in which the Press says, "We are having no tentative argument." The Press has tentative arguments on its boards, even in the Press Council. The Press Council operates in secrecy. I do not see why it should. But particularly whilst the newspaper proprietors insist on having secrecy for discussing their affairs, it is invidious for them to suggest that all secrecy should be abolished in all Committees of this House.
I believe, therefore, that anyone who looks carefully at the argument, whether in the newspapers or anywhere else, must come to the conclusion that the House of Commons must have the right of secret Committees which can remain secret when they wish. The main reason for that derives not from reasons of security or the Official Secrets Act, but primarily from the question of having the opportunity of tentative argument and of hon. Members being able to discuss matters in a manner in which they are not committed necessarily to their first statements or their first thoughts on a particular problem.
How do we deal with that? The Committee does not say, as some members of the Press seem to have assumed, that we are saying that because we insist on the right of a Committee to remain secret, there can never be publication. Incidentally it is a further change that a decision about whether a Committee should remain secret or confidential should be taken by a majority vote of the members of that Committee. It is right to get that matter cleared up. It is an important question as to who shall decide whether a Committee is to be secret. It should not be decided by the Leader of the House or the Chief Patronage Secretary, or by dictation of the Government or a Government Department. Under our proposals, it is not so to be decided. Nor should it be decided by the veto of one hon. Member. It is should be quite properly decided by the majority of the Committee in question and that is what is proposed in our Report. That is another important reform.
It is assumed by the Press, however, in some of the comments it has made on our report, that in our reassertion of the 878 principle of necessary secrecy or confidentiality we are insisting that any publication of that occurs in such a Committee would be a contempt of the House. That is not what the Committee says. This was part of my misunderstanding, perhaps, of what was said by the Chairman of the Committee when we had the difference of opinion at the time of the case of my hon. Friend the Member for West Lothian.
All the proposals governing the question of secrecy of Select Committees or sub-committees set up by this House are governed by paragraph 48 in our Report, which sets out the only purpose for which the privilege apparatus may be invoked. That purpose is the purpose of preventing improper obstruction of Members of Parliament or Officers of the House in the conduct of House of Commons business. That is a quite severe limitation on what happens now.
Therefore, there could well be a situation in which a newspaper reported something that had happened in a Select Committee, which was a secret Select Committee, which would not necessarily give rise to a question of breach of privilege, either because it was a trivial case or because it was considered, under the procedure which we have suggested, as something which should not be proceeded with. Or it might be that under our procedure—I do not know whether I am stretching it in any sense; I think not—it would be open to a newspaper editor to print what he had received from a Select Committee, even though it was a secret Committee, and to say, "I am printing it because I believe that it is in the public interest that it should be printed. I have to take my responsibility as an editor to say that it is in the public interest, and I am prepared, if necessary, to go through the procedure of the House of Commons to defend what I have done"—a procedure which would be fairer for the editor than the procedures now available.
Therefore, our Committee does not say that there is to be an absolute bar on a newspaper over publishing what is said in one of the Select Committees. I belive that what we have said is open to all these variations which I have described. Many of these were matters which we considered with great care. I say to my hon. Friend the Member for 879 Walton, if he still holds to his argument, as I daresay he will—he usually does—that we thought it important to consider carefully the relations between this House and the Press.
I know that in many sections of this House there is great hostility towards the newspapers, and sometimes for good reasons, but the House of Commons must not get into the state of thinking that we are always right and the Press is always wrong. Other people outside this House sometimes have a different view from us of the public interest.
Anyone who studies the history of privilege must, incidentally, come to the conclusion that over many decades the Press outside had a better idea of the public interest than we have here, particularly in this year 1969, which is, I think, the two-hundredth anniversary of John Wilkes' major exertion on behalf of the freedom of the Press, when the whole of the House of Commons pretty well lined up against him and said that his idea of the public interest was wrong and that Members of the House of Commons were right. Nobody in the House of Commons holds that view today. Nobody today says that what we discuss here should not he published outside. John Wilkes had a much better idea of the public interest than people who sometimes get into a rather claustrophobic mood inside the House of Commons.
Therefore, we should not be too assertive in saying that we always know the public interest and that the Press outside does not know. Sometimes, I believe, the difference of view between a newspaper editor and the House of Commons as to what is the public interest must be argued out in the procedures of the Committee of Privilege or a Committee of the rights of the House of Commons. That would be a good thing for the Press and for this House. For that reason, too, I believe that if the House proceeded with these proposals, it would assist in improving the relationship. the confidence and the understanding between Fleet Street and the House of Commons. I am all in favour of that, too.
I do not believe that what my right hon. Friend the Leader of the House said to us at the beginning of these proceedings was at all satisfactory. He came here armed with a huge bucket, com- 880 posed roughly of equal proportions of cold water and soft soap. He poured it all over the place and thought that that would swamp the debate and nothing would occur.
§ Mr. Peart
My hon. Friend's language expresses his point of view. I cannot accept it. My hon. Friend may argue about the delay—I can understand that argument for having a debate—but I would not have thought it wrong for Parliament to express itself, on a matter which goes across both sides of the House, on an issue which is above party in the best sense. I would think it right and proper that the Government of the day should take note of the arguments on a Report. That is not treating Parliament in the way my hon. Friend suggests.
§ Mr. Foot
I do not withdraw anything of the description which I gave of my right hon. Friend and the manner in which he came to the House today.
I am certainly not objecting to the fact that we have a debate—indeed, we all object that we did not have it before. I object, as my hon. Friends have suggested, that we did not have the debate on a day which would be more suitable for larger numbers of Members of Parliament to participate. That is the second objection. Much stronger than that, however, is that my right hon. Friend does not offer us any substantial hope for the future.
§ Mr. Peart
I do not know whether my hon. Friend was present when I replied to the right hon. and learned Member for St. Marylebone (Mr. Hogg). I said that I would consider sympathetically a point in relation to legislation; I gave an assurance on this. I also said that I believed that we could act without legislation on many of the recommendations. I think that we shall have to do this. My anxiety is to have the views of the House.
§ Mr. Foot
I am not complaining about my right hon. Friend getting the views of the House. I am assisting him in the process. But my right hon. Friend thought previously—and this is a further criticism—that he could deal with this matter by bringing forward a few Motions, as he did a few months ago, when I and some of my hon. Friends had to say that we did not think that he could do it in that way.
881 The proposals in the Report hang together. If we try to wrench them apart and serve them up in spoonfuls over the next two or three years, we shall not solve the problem properly and will not do what I want—clarify the situation in respect both of Members of Parliament and those whose business and job it is to report the affairs of this House—a very important responsibility, incidentally. Despite the hostile remarks made against the Press, we would not be able to live very well in the House of Commons if our affairs were not reported and many hon. Members who are extremely critical of the newspapers take some precautions to ensure that the newspapers assist them. Do not let us say that that is a minor matter.
Apparently, for some reason, some of our arguments in the Report have been misunderstood in the Press—and I am trying to state the claims of the House of Commons in this respect as well. These proposals hang together. If my right hon. Friend takes the shorter matters to be dealt with in Motions and says that we will legislate later, he will get the balance wrong and people will not see the correct perspective. We shall not get the same impact. We want to change the name "privilege" because we think that it would show people that there genuinely is a new era.
I am sure that my right hon. Friend will listen to the representations that he should reconsider the timetable and speed up the process. He knows that if one is to get a matter of this kind on the Parliamentary timetable someone has to fight for it in the Cabinet—and he has given no indication that he will do so. It is proper for him to say that he has listened to the debate, but after he has listened perhaps he will tell us whether he will fight. He should tell us that either today or at an early date. Let him not tell us that he will fight for particular proposals to be picked out but that he agrees it is the responsibility of the Government to take all these proposals together. Even if they cannot be introduced on the same day, let them be presented as a coherent reform, which is all we are asking for.
§ Mr. Foot
I am grateful to accept that assurance. I hope that it will be so speedily acted upon that it will be unnecessary for me and some of my hon. Friends, when future privilege cases arise, to hold up the proceedings of the House. I would hate to have to do that, but if my right hon. Friend does not find himself in a position to carry out his assurance altogether, I give him my assurance that I will do my best to hold up all such individual privilege cases until the matter has been properly dealt with.
§ 1.55 p.m.
§ Mr. Christopher Price (Birmingham, Perry Barr)
I believe that I am the most recent adjunct of the House to speak in this debate. I want to say something about privilege and the recommendations of the Report as they affect Select Committees. Much has happened in the development of Parliament since the Report came out, and a number of aspects were not considered because they had not arisen at the time.
I agree with the changes which the Committee proposes in relation to whether Select Committees should sit in public. I believe that the very activities of Select Committees, since the Report came out—they sit in public far more frequently than they used to—have reduced a lot of the resentment that the Press have about them.
For example, the Select Committee on Education and Science has been sitting in public and at practically every sitting a very experienced corps of education reporters, not Lobby correspondents—have been able to be present and report. This has already taken a great deal of the sting out of the Press's resentment that comes out again and again in the Report. Having said that, and agreeing with my right hon. Friend the Leader of the House—I see that he is deserting us—
§ Mr. Price
So have I. The whole business of getting these recommendations right lies in balancing the rights of individual 883 people with the rights of Parliament and its Committees. I want to emphasise some of the rights of Committees of Parliament, which, I feel, need protecting in a way which perhaps we did not know before. Many people feel that the Select Committees, in blundering around the country, as some have suggested, are in danger of trampling on individual rights. I see them far more as standing up for the rights of individuals against the big corporations and big bureaucracies. The Bristol-Siddeley affair showed what the Select Committees could do in this respect.
Hon. Members should study the minutes of the Association of Municipal Corporations and the County Councils Association, whose executive committees recently made decisions which I consider most arrogant, trying to accrete to themselves privileges against Parliament and to prevent Parliament's Select Committees from investigating their affairs and to create the case that they, the local authorities, are sovereign bodies of their own.
For example, when the Select Committee on Education and Science tried to take evidence at Hornsey College of Art, we were told by the Haringey local authority that it would be inconvenient to do so. As a result we took evidence at the House of Commons. It is giving our Committees the privilege and right to stand up against these areas of power and bureaucracy in the country, which may well be trampling on individual rights, that we should bear in mind very much, and we should not get rid of any of our privileges which might enable us to do it. That is why I was disappointed in the speech of the right hon. Member for Thirsk and Malton (Mr. Turton) and the whole tone of the most recent Report of the Committee of Privileges. It was not a brave document, as my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) said. But I go further. I think that it was a timid, reactionary Report because, in effect, it said "Yes—Select Committees can sit in public, for that is a very good thing. They can go around the country, except where they might put themselves in embarrassing situations". In other words, they must investigate only safe, dull matters but where there is anything explosive then Parliament must keep its feet clean and keep out.
884 That is a ridiculous attitude, completely misunderstanding the philosophy and concept of the new Select Committees. We cannot stop the process now. How far one proliferates these Committees is a matter for argument but we cannot turn back the clock on the concept of their being able to go around the country and sit in public. They are doing so, and that is an established fact. It is already happening. We have to consider how we should assert the privileges of these Committees. We must make up our minds how they can properly operate.
§ Mr. S. C. Silkin
My hon. Friend referred to Select Committees having pronounced on these matters in recent times. He is no doubt aware that in the Report which we are debating the Select Committee made it clear that it recognised fully that Select Committees were likely in future to go outside the precincts of the House and, indeed, abroad. If he has not read it already, he will find that in paragraph 88.
§ Mr. Price
I was aware of the progressive attitude taken by my hon. and learned Friend's Committee towards this question. I was a little saddened by what I consider to be the reactionary attitude which the present Select Committee on Privilege is taking towards this issue in recommending that we pull in our reins and not do all the things which my hon. and learned Friend's Committee recommended.
The right hon. Member for Thirsk and Malton suggested that Parliament was bringing itself into contempt by exposing its Committees to these situations. I take the opposite view. In my opinion, Parliament brings itself into contempt by confining all its proceedings to the Westminster shell and by not venturing out into the country at large and abroad. The activities of Select Committees which have gone around the country have done more to raise the status of Parliament than has any other recent action.
What do we do to protect the privilege of Select Committees? I am unconvinced by the evidence in the recent Report of the Select Committee of what the Serjeant at Arms can do and what he cannot do. The Committee discussed the fact that when the House of Commons moved to Church House during the war, somehow, 885 because it was within Westminster, all the arrangements which the Serjeant at Arms could make here were automatically transferred to Church House, although it was not specifically a part of the Palace of Westminster. On that precedent, surely the Serjeant at Arms has the right to make arrangements—I know that it has never been done—so that protection is given to Select Committees which go outside the House. Perhaps he could make arrangements with the police. Within this Palace he makes arrangements with the police so that they supplement the personnel he has under his charge. I am sure that that could be done elsewhere, and that it ought to be done. That ought to be our attitude in considering the protection of the privileges which our Select Committees have. We ought to consider how we can protect them rather than take the timid attitude of the Report, which suggests, "For goodness sake let us never again get ourselves into the position in which we may be in difficulty".
§ Mr. Turton
I am following the hon. Member's reasoning with great care. Is he suggesting that the paper put in by the Clerk of the House on the powers of the Serjeant at Arms is not accurate? The point is that the Serjeant at Arms has no power outside the City of Westminster.
§ Mr. Price
With respect, I do not think that the Clerk of the House asserted that the definition of the concept of Westminster which was interpreted during the war to include Church House was firm or decisive. He said that that was the basis on which the action was taken. But my view of Parliament is that it is a dynamic and not a static operation, and ways and means, I am sure, could be found, if the Clerk and his lawyers got together, of giving protection to Select Committees of the House wherever they sat.
I was interested in the Clerk's reference to the visits to Fleet Prison made under Chairman Oglethorpe in the 17th century. That was a proper thing for Parliament to do and a great criticism of Parliament in the past few years has been that it does not do that sort of thing. I should like to protect the privileges of Select Committees and I should like the Serjeant at Arms, the 886 Clerk and everybody else concerned to consider arrangements which the Serjeant at Arms could make to protect Select Committees outside the House. The right hon. Member for Leeds, West (Mr. C. Pannell) mentioned that in the second Report of the present Committee. The alternative of withdrawing and not venturing outside the House is the wrong attitude.
Another point arising through Select Committees sitting outside the House of Commons is that it is not only the Members of Select Committees who need the protection of privilege but also witnesses who appear before Select Committees. I was concerned in the very first sitting of the Committee on Education and Science which went to the Guildford College of Art. In the middle of the evidence, the Deputy Clerk of Surrey County Council, not having been called as a witness, leapt to his feet and declared that the proceedings were not covered by privilege. He instructed a witness we had called not to answer a question about a security firm which the Surrey County Council had called in when there were difficulties at the Guildford College of Art.
As a somewhat inexperienced Chairman, I am not sure that what I did was right, but I told him to sit down because he was not a witness and because only witnesses and members of the Committee could speak on that occasion. I also asserted that the proceedings of the Committee were absolutely privileged. I was later told that that was a somewhat vague phrase which covered two rather separate issues. The question needs clearing up—whether statements by witnesses before Select Committees sitting outside the House are privileged in the sense that the people making them are protected from being sued in the courts on what they have said. My assertion on that occasion was that they would be completely protected by privilege. I hope that I was right.
I very much support the Report of the Select Committee and I hope that the Attorney-General and the Leader of the House will work out the necessary legislation to introduce early next Session. During the debate the Leader of the House has risen about half-a-dozen times to give absolute assurances that he intends to do something on this matter. Like most 887 hon. Members who have spoken, I warn the Government that if we have to go through the whole of another Session waiting for something to be done about it, we shall certainly go on pressing them, and that the language which we use will not be all about soft soap and cold water but will get a great deal angrier and more bitter. I very much hope that something is done about these recommendations very soon.
§ 2.8 p.m.
§ Mr. Eric S. Heffer (Liverpool, Walton)
I regard this Report rather as I regard the White Paper "In Place of Strife". It is a well-written document containing a whole series of excellent proposals but it contains one or two penal clauses to which I object sincerely and intensely.
Before I come to them, I wish to make one or two comments on the speech of my hon. Friend the Member for Ebbw Vale (Mr. M. Foot), who rightly said that on most issues he and I are absolutely on the same side of the fence. Indeed, I am not certain that we are not on the same side of the fence on many of the points which we have discussed on this issue. But I would ask one or two questions about his speech which need to be answered. Those of us who object to certain parts of the proposals are not suggesting for one minute that hon. Members should not be criticised by the public or that we should have any special rights other than those of the general public.
Incidentally, I have failed to note the public or the Press refraining from criticising. If perhaps they do not always criticise my hon. Friend, although I am sure they do, they certainly criticise me and almost every other hon. Member. I am not against that; it is a very good thing. I am all for public criticism of Members of Parliament, but my hon. Friend's case in relation to the Press is based upon a fallacy. The fallacy of the case by my hon. Friend, whose trade I well understand, is that of thinking that we have a genuinely free Press. My view is that we have not a genuinely free Press.
The Press in this country is very selective. It selects speeches and the sort of discussions which should be given publicity. It is selective in many ways. This is not the first time we have heard of this. For example, way back Upton 888 Sinclair in the United States of America wrote a book called "The Brass Check' in which he analysed the so-called free Press of the United States. There have been many other books and works on this subject, and a very learned one on the American Press only a few years ago which underlined the selective character of the so-called free Press. Freedom of the Press is only freedom up to a point. We therefore have to look at the special position of hon. Members.
My hon. Friend said that we are in a different position from people outside the House of Commons. That is absolutely true, but a Member of Parliament is in a special position. Whether we believe that that should be so or not, it is a fact that we are in a special position. We are in that special position because, on average, we each represent 54,000 or 60,000 people. It is true that there is an argument at the moment as to whether some people are under-represented, but we represent a large body of people and we have to make regular speeches and take up their complaints. We have to put forward their point of view.
Because of that a Member of Parliament is subject to attacks in the Press and elsewhere more than is any other person in public life. Some say that that is not so and that a local councillor is subjected to the same sort of attacks, but it is not so to the extent that a Member of Parliament is subject to attack. No one in this House has suggested that the rights of Members of Parliament should be in any way diminished. We have to have a certain measure of protection, more than is given to anyone else. That was implied in the argument of my hon. Friend.
I will now deal with items, not to which I particularly object, but about which I am deeply concerned as to the implications. I am a reasonable man and I if I can be convinced that my interpretation is not what it should be that is all right, but we have to look at the proposed rules. I agree with most of the other proposals. I agree, for example, to changing the name to "Committee of Rights". It is absolutely right to do that. I also agree that there should be a slight extension of privilege concerning hon. Members writing to Ministers. I agree with what my right hon. Friend the Member for Vauxhall (Mr. Strauss) said on that question.
889 It is all very well saying that we can resort to the courts just the same as anyone else. We are in a position in which we could be resorting to the courts far more frequently than anyone else because we make more speeches and take up more cases than anyone else. Consequently we are doing work which leaves us open to criticism much more than any other body of people. Are we to be in the courts every five minutes about something we have said? If so, some of us would need to earn much more money, more than my hon. Friend earned as an editor of a newspaper, and certainly more than I earned as a carpenter and joiner.
A poor Member of Parliament would be in an unprivileged position because those who have money could take up cases and those who did not have the money would not be in a position to do so. We would have first-class and second-class citizens in this House. It is true that to some extent we have that now because some have larger salaries than others and are able to do their work better because they have more money. We would be put into this position in relation to cases of libel. I am not asking that we should be in a privileged position to protect ourselves from criticism. I totally agree with what Wilkes did and with all those who argue that there should be open criticism of Members of Parliament. We should be subject to the laws of the land in the normal way, but when we come to the special position of our job there is a different set of circumstances and that basis should be looked at again in relation to those proposals.
§ Mr. S. C. Silkin
I understand the desire of my hon. Friend that hon. Members should be fully protected, but I wonder which he would suppose to be the greater deterrent upon a newspaper printing a libel on a Member of Parliament—being reprimanded at the Bar of the House or an award of £20,000 damages.
§ Mr. Heffer
I am not absolutely certain about this. The Institute of Journalists made a point in its very interesting memorandum that if the newspaper went to the court it would have a public hearing—that is fair enough—and legal representation. There is legal representation and all that goes with it. The 890 Press knows that with a great battery and army of lawyers such as my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin) it may be able through some legal clause to get out of a difficult position, whereas the ordinary, poor, simple Member of Parliament who has not the money to employ a battery of lawyers would not be in that position.
I would not want to take on Mr. Cecil King's organisation in court. I have a horrible feeling that I would come out on the wrong side for one simple reason—because I have no money to employ the people who would do the arguing for me. Despite the fact that I am not bad at arguing cases, I have a horrible feeling that, coming up against people like my hon. and learned Friend in court I would come out a bad loser. I do not want to be placed in that position nor for any other hon. Member to be placed in that situation. Therefore, this question should be reconsidered.
I hope no one will suggest that I am attacking working journalists. I understand my hon. Friend the Member for Ebbw Vale being proud of his trade. He should be. He is one of the best in it. I only hope that I was as good a joiner as he is a journalist. He is undoubtedly one of the finest journalists in Britain. He has a right to be proud of his trade and of those in it.
However, I know that many stories written by journalists are emasculated on their way up before they appear in the newspapers. The Newspaper Proprietors' Association is not to be equated with working journalists. I am not attacking working journalists. I am saying that we should not be led into the opposite of what my hon. Friend argued. He said, "Do not let us think we are always right and the Press is always wrong". The opposite of that argument is, "Do not let us think that the Press is always right and we are always wrong ". Sometimes people fall into that trap.
The proposed rules should be reconsidered. I do not think the Leader of the House was being too soft-soapish in his attitude to the Report. I accept that we should have had a discussion long ago; we should have had it immediately after the Report was published, otherwise what is the use of allowing Committees to examine problems in great depth? Committees might as well be 891 abolished, unless the product of their work is discussed by the House.
However, even if the Report had been debated a few months after its publication, my view would have been exactly the same. I am saying much the same now as I would have said three months after the publication of the Report. Some hon. Members take the view that when an hon. Member raises a point of privilege in the House it is a trivial matter.
I remember a good example of this. I will mention no names, but hon. Members will remember a case when an hon. Member read a article in the Scottish Press which suggested that certain Scottish Members spent more time at the bar than anywhere else. That hon. Member, who never goes near the bar in the House of Commons, except this Bar on his way to his seat, and also having a constituency which probably is of the same persuasion in the matter of drink, did not want it to be thought in Scotland that he was always at the bar of the House of Commons drinking and not doing his job.
So he raised the matter as an issue of privilege. There was some argument to the effect that perhaps the matter could have been dealt with elsewhere. The matter did not go to the Committee of Privileges. We debated the issue. I supported its going to the Committee of Privileges, but the majority was against it. In the end the hon. Member withdrew his application. Because we had that debate, the whole of his constituency knew that it was not him. How could he have achieved that otherwise? Imagine his writing a letter to the local paper saying, "All the others are the terrible fellows who spend their time at the bar. I want to make it clear to my constituents that it is not me". That could not be done. The only way he could deal with it was by raising it as a matter of privilege.
I hope that the procedure will not be changed. I hope that when anyone thinks that a matter of privilege arises he will be able to raise it in the House and do precisely what my hon. Friend the Member for Ebbw Vale says he does not want done in future—that is, hold up the work of the House. I hope that we can hold up the work of the House. I hope that we will ignore the fact that a number 892 of my hon. Friends' friends amongst working journalists write skittish articles about the House wasting time by indulging in this sort of thing. I hope that we shall continue to do it in this way.
Perhaps I have become an old reactionary or conservative since I have been in the House. Perhaps I am falling for the myth as others have, but I do not think so. We must approach the matter a little more cautiously than even the members of the Committee did. I admit that they were not a bunch of revolutionaries, apart from my hon. Friend the Member for Ebbw Vale. I hope that some of the Committee's proposals will be accepted by the Government, but I hope that proposals (iii) and (iv) will be thought out again and that we do not rush into the acceptance of those proposed rules.
§ 2.26 p.m.
§ Mr. Quintin Hogg (St. Marylebone)
The debate has been a distinguished one, although not particularly well attended. It gives me great pleasure to take a small part in it. I think that I was selected by those responsible on my side to play a part in the working of the Select Committee, partly because I had initiated privilege proceedings in the House and partly because I had been the target of them. It might therefore be thought that I had seen both ends of the gun.
However, I enjoyed sitting under the chairmanship of the hon. and learned Member for Dulwich (Mr. S. C. Silkin). I join in the congratulations which have been tendered to the hon. and learned Gentleman on the authorship of the drafting of the Report, although it represented the opinion of us all, and although the hon. and learned Gentleman was always particularly kind in accepting suggestions, from whatever source they came, which met with the approval of the Committee.
Having been a member of the Committee I am naturally a little less impartial than is the Leader of the House. One of the great pleasures I had on the Committee was that I found myself, rather to my surprise, in almost constant and almost total agreement with the hon. Member for Ebbw Vale (Mr. Michael Foot). I agreed with almost everything the hon. Gentleman said today in defence of our Report.
Although I say this from this bench, I give it entirely as a personal opinion. 893 There has been a constant underlying complaint against the Government for not acting on, or giving sufficiently early opportunity for a discussion of, the Report. Although the last thing I would wish to do would be to lend the weight of the Opposition to that complaint, I myself share the opinion. I hope that time will be given for a debate on the recommendations. I was glad that the Leader of the House offered at any rate to consider sympathetically the proposition that those recommendations which require legislation should be put in draft at least so that anybody can put them forward. This is important, because an attempt to legislate these proposals—for instance, No. 6, dealing with the Strauss case issues, or even the proposal to abolish impeachment—would require Parliamentary draftsmanship far beyond the capacity of a private Member successfully to achieve. So I hope that this will be done.
I also hope that the Leader of the House will think a little again about the most cautionary warning that he gave us that some of the proposals might take a long time to discuss and ought for that reason to be suspended. My own belief is that some of the most important proposals are precisely those which probably hon. Members would want to discus the most. Therefore, the mere fact that it would take up a certain amount of time to discuss them should not be used as an argument against bringing them forward, I think the Report would be deprived of a great deal of its authority if the controversial proposals were taken out.
Having been a member of a Government, I understand how very crowded the Government's Parliamentary time has become of recent years, but I should like to put forward a number of reasons why this subject should be given a certain measure of priority. This question very intimately affects the reputation of this House and of Parliament in general. It has been my experience—I have been a Member of this House or of the other House continuously for 31 years—that, on balance, the subject of privilege, which ought to be a protection to Parliament and a defence of its reputation, has on the whole been one of the things which have diminished its reputation over the years. As the reputation of 894 Parliament is the most important thing to which we can give time in one sense, I do not think that the Government should begrudge it in order to remove the power of an individual Member, who may be as he thinks justifiably nettled by some particular criticism, to spoil the reputation of the House by pursuing his vendetta on the Floor of the House, which sometimes happens.
Secondly, I do not think that time is in our favour about this. If we wait until a number of privilege occasions arise and are brought to the Floor of the House, we shall not even need the hon. Member for Ebbw Vale to hold up proceedings in order to make those incidents damaging to the reputation of the House. We must put things right soon so that they will not occur at all.
I am not authorised to make promises on behalf of my right hon. and hon. Friends, but this is a matter which affects the whole reputation of Parliament, and it would not be unreasonable for the Government to say, "We will make a present of some part of our time" and the Opposition might make a present of a short period of their limited time. It is even conceivable that a third contribution might be made by private Members who wanted to give up part of a day that was otherwise set aside for Motions. We could thereby get ample time to discuss these proposals.
The next thing I want to say is about what I hope the right hon. Gentleman will forgive me calling, for convenience, the Strauss case. At the time of the Strauss case, although I was then a Member of the other place, I took the opposite point of view to that which the Select Committee and the right hon. Gentleman took, and the same point of view as that which the House took. But I think I was wrong, for two reasons, and I think it is those two reasons which lead me to think that the proposal by the Select Committee is the correct one.
In the first place, if a libel action is brought in respect of a letter written by a Member of this House to a Minister, it actually hampers the continued action by the Member. He is hampered on the Floor because there is a question of sub judice, and he is hampered in his handling of the case because unless he is prepared to justify his action—which means that he goes outside the sacred 895 circle of libel privilege—he may be the subject of an interim injunction. A mere defence of qualified privilege will not necessarily protect him against an interim injunction.
These two reasons convince me that the original contention of the Select Committee and of the right hon. Gentleman was right and that correspondence between Members and Ministers ought to be treated as proceedings in Parliament so as to protect them from injunction and so as to prevent the operation of the sub judice rule. It is precisely 'for that reason that I think we ought to consider very closely whether we should not legislate those recommendations.
I should like to say a word about the speech of the hon. Member for Liverpool, Walton (Mr. Heffer), although I see that he has now left his place.
§ Mr. Hogg
I understand that, and I was not seeking to reproach the hon. Gentleman. I should like to comment on his speech even in his absence. I share the view basically of the hon. Member for Ebbw Vale, and I am bound to say that, although I listened with great care to the speech of the hon. Member for Walton, I was a little puzzled as to what he was really complaining about. The first proposal of which he complained is sub-paragraph (iii) of recommendation No. 48, that proceedingsfor contempt should not be used as a deterrent against a person exercising a legal right…to bring legal proceedings against a Member or an Officer.What is wrong with that? It simply means—and I believe it to be the view which the House would take under the existing rules; it is the view which I would certainly take and which I urge my hon. Friends to take—that a Member of Parliament must not use the threat of privilege proceedings as a weapon of blackmail to prevent himself being made a defendant in civil proceedings. That must be right and I cannot think what the hon. Member for Walton was objecting to.
896 The second recommendation to which he took exception was sub-paragraph (iv). As one can see when one looks back to recommendation No. 44—the substantive paragraph upon which it is founded—this gave us considerable cause for discussion. But I am quite sure that we came to the right conclusion. I think I can claim to speak from a certain amount of experience because, being a member of a certain profession and also a Member of this House, I have been consulted over a number of years by rather a large number of public men who for one reason or another thought themselves damaged in reputation by criticism.
I would say, first of all, that whether one is a Member of Parliament or not, or whether one is in a special position or not, the first thing to do with any form of criticism is to ignore it. Nineteen out of 20 can be safely ignored. Of the remaining twentieth, I would say that the right thing to do 999 times out of 1,000 is to reply to the criticism, and the more so if one is a public man. I cannot in the least see that there is any difference in this respect between a Member of Parliament, a member of the public, a trade union official, an artist, a general or a director of a limited company. The right way to deal with criticism is either to ignore it or reply to it. It is only in the very small minority of cases indeed that one ought ever to consider proceedings for defamation. They are, on average, so far as the action of a wise or honourable man is concerned, of the kind of thing that a breach of promise action is—something which ought only to be brought, if at all, in the most exceptional circumstances. I can say that with some confidence because I have been in the position of plaintiff in libel actions myself. I speak not merely from professional experience.
The Committee fully recognised that there must remain power in the House to bring contempt proceedings in respect of attacks on either an individual Member or a group of Members. It said:They cannot, however, rule out the possibility of a case, however exceptional, where the constant repetition of an unjustifiable and improper attack, e.g. by a powerful organ of the Press upon a group of members"—or, I add, on an individual Member—may be pursued to the point of being a serious threat to the free expression of their 897 consciences and their free Parliamentary action. It is for such wholly exceptional cases only that the residual powers of the House should be preserved.That is a fair statement of the matter. One cannot say that there never can be a case in which attacks either on a group of Members or on an individual Member cannot interfere with the proper process of the House. But, in general, we thought—I am sure that we should command the support of the great majority of Members if the question ever went to a Division—that contempt proceedings ought not to be used as a substitute for a libel action.
I take that view, apart from anything else, for three reasons. The first reason was that given in the speech of the hon. Member for Ebbw Vale, that public men must be prepared to accept criticism. even bitter criticism, of their words and actions. The hon. Member for Liverpool, Walton said, "But we are making speeches every day of the week". Very well. That means that we are likely to be subject to criticism every day of the week, not that we ought not to be subject to criticism every day of the week.
Second, if one is criticised in the ordinary way and one contemplates an action for defamation, one ought to be vulnerable to the defences of fair comment, privilege and justification. If another says that which is true about one, in principle one ought not to be allowed to complain, or, if the other person says something which is fair comment, without malice, one ought not, in principle, to be allowed to complain. The same is true in relation to a situation in which privilege exists.
To some extent, if our proposals were accepted, those defences of fair comment, justification and privilege would be capable of being considered by the Privileges Committee, or the Committee of Rights, as it would then be called under our new rules. But they are not absolutely to be considered. In my judgment, the House ought, in general, to take the view that, if a Member thinks that he has been injured in reputation, then, if he ought to sue at all—most of my time when people come to me for advice is spent in saying, "Do not in any circumstances unless really serious consequences to you will flow from not suing"—he ought to run the gauntlet of a jury.
898 The hon. Member for Walton seemed to think that counsel, even counsel of the distinction of the Chairman of the Committee, gain great advantage in libel proceedings. Oddly enough, this has not been my experience. The most successful libel litigant in my lifetime was Horatio Bottomley. My father, who was a contemporary of his in litigation, defeated Horatio Bottomley only byensuring that he never sued the editor personally, so that Bottomley could never appear in person. He always had to appear by counsel because my father was careful only to issue the writ against the limited company. Otherwise, Bottomley won. My father was the only person ever to beat Bottomley—by that rather wicked device. Juries, on the whole, rather like litigants in person. As a good trade unionist, I cannot think why.
Having spent a little time on the speech of the hon. Member for Walton, I come now to what was said by my right hon. Friend the Member for Thirsk and Malton (Mr. Turton), the Father of the House. I always think that the Father of the House ought to be given some such title as "honourable and reverend", just as I sometimes think that medical Members ought to be called "honourable and hygienic". It is a pity that the Bar and the Armed Services are the only professions entitling one to a special description here.
First, I take up what my right hon. Friend said about the procedure which he did not like. On the whole, I consider that the majority of privileged questions raised at 3.30 in my lifetime have done more harm than good to the reputation of the House. Some have been necessary. Some have been wholly unnecessary. A great number have been in the grey area about which opinions can differ. If that be so, we ought at least to wonder whether we are setting about things in the right way.
Personally, I attach more importance, probably, to the question of procedure than to any other recommendation of the Committee. First, there is the position of Mr. Speaker. Its interesting origins were referred to by my right hon. Friend and by the right hon. Member for Leeds, West (Mr. C. Pannell). The truth is that Mr. Speaker is made to ask himself a silly question, and he therefore receives 899 an extremely foolish answer. For example, if a man in a public house in Orkney and Shetland were to say that Members of Parliament as a class were a bunch of drunken crooks, that would be a prima facie breach of privilege. There is no question about it. If Mr. Speaker is asked the question, he can give only one answer. He should not be asked the question at all.
So far, I think, I carry the Father of the House with me. My right hon. Friend goes on to say that we should go back to the old procedure. The old procedure was that Mr. Speaker asked himself: should this particular complaint be given priority over other business? With respect to my right hon. Friend, that is to substitute one silly question for another. The question of urgency, of priority, is one question—it may be of importance, and it might be even a question for Mr. Speaker—but the question of seriousness is another.
It does not follow that everything which requires urgent attention is fundamentally difficult or cannot be dealt with at once in a few minutes, and it does not follow that everything which does not require to be dealt with in a few minutes is not of serious import. I imagine that members of the Committee will not regard it as a breach of confidence if I say that I put this example. I can well understand that, if something dreadful happened in the Lobby to the detriment of a Member of Parliament, it might well be desirable to bring it to the attention of the House at once and deal with it in five minutes as a matter of priority. But that would be the end of it. If, on the other hand, one is discussing, for instance, the question of the Select Committee and the University of Essex, there is not the slightest urgency about it, but it is important that the House should have a serious view on whether it does constitute a contempt. In other words, urgency is one thing, importance is another.
In my view—I say this to the Leader of the House, as this was a question which he raised—if anything, the position of the Committee of Privileges would be enhanced rather than derogated from by what we suggest. We thought—at least, I thought, and I believe that my fellow members thought—that, on the whole, 900 this was not a question of order, as my right hon. Friend the Father of the House suggested, but a question of the privileges of the House, it being, therefore, not primarily a question for the Chair but for the House itself, and the House itself acting through its proper organ, the Committee of Privileges, such members of the Committee of Privileges as could be summoned giving a first-impression view.
If the Member or the person raising the question does not agree with the first-impression view, then, on the ordinary principle of delegation, he can go to the whole Committee and have the matter thrashed out. The Committee must report to the House; it is only an organ of the House. If the Member still feels under a grievance he can put down a Motion, although whether the Government will give it priority, or the House will wish to discuss it in preference to other matters, is another question.
If we really care about our dignity, as we all do, we should not allow any Member to hold up the proceedings of the House at the most crowded and embarrassing moment of the day, 3.30 in the afternoon, when the maximum of publicity is attracted to the questions of immediate importance, and then compel Mr. Speaker to wait 24 hours and ask himself a silly question and giving the appropriate answer the following day. Instead, we should adopt a procedure of the kind we suggested, although no one would pretend that any particular procedure is not capable of improvement.
§ Mr. Kirk
Could my right hon. and learned Friend say something about the point I raised? The trouble about the procedure that he and his friends have proposed is that it does not bring the House in until right at the end. Would not it be possible for the sub-committee to report to the House in the first instance? This need not be at 3.30 p.m. It could be done at 10 o'clock, and the House could then decide whether it wanted to proceed further.
§ Mr. Hogg
This is a question that one would wish to debate. I take rather the other view, that the House, precisely because it is the ultimate arbiter of these things, should have the matter sifted for it before coming to a definite conclusion. The ordinary procedures of any Committee anywhere would demand first that 901 the Chairman of the Committee, and one or two selected members if he cared to consult them, would form a first-impression view, and then the responsibility would be for the Committee to form a concluded view and report to the body of which it is a Committee—the House.
The great problem before Parliament, as all of us know who have had any experience of this place, is the shortage of time. That is what the battle between the parties is about, and what all-night sittings are about. The fundamental problem of Parliamentary procedure is getting the work through in the time without suppressing free speech. If we can delegate to a universally respected Committee for preliminary investigation some of the questions on which we are the ultimate arbiters I feel sure that we are moving in the right direction.
§ Mr. Turton
My right hon. and learned Friend has been talking as if the old, pre-1934 proceedings were purely on urgency. They were on both urgency and substance. When the allegation about drunkenness of Scottish Members was raised a few years ago it was very important that the issue should be determined in public one way or the other immediately In the old days many cases were determined at once, without reference to a Select Committee. One of the difficulties of my right hon. and learned Friend's proposed procedure is to make that impossible.
§ Mr. Hogg
I do not think that I am falling into the error of which my right hon. Friend accuses me. Urgency is one thing, and substance is another. They are quite separate questions. If a thing is a matter of substance it requires deliberate consideration at some time by somebody. If it is a matter of urgency, it requires immediate consideration, though not necessarily deliberate; it needs to be disposed of at once. It seems to me that if a thing is of substance and not of urgency it is precisely the kind of question that should be, and is under the existing procedure, ultimately referred to a Select Committee. The question is not whether it goes there. but by what route and what method.
For the reasons I have given, it seems to me that the method we propose removes from Mr. Speaker something which can 902 only embarrass him, because he is made to take part in a proceeding which is both illogical and, up to a point, humiliating, and it enables the House to get on with its business while its organ for investigating these things investigates any question of substance.
§ Mr. S. C. Silkin
Would not the right hon. and learned Gentleman also take the view that if one simply reverted to the practice suggested by the Father of the House it would put a heavy burden on the Leader of the House to make what might be a difficult decision at very short notice, and possibly with inadequate material on which to make it?
§ Mr. Hogg
I not only agree, but was about to add another disadvantage that I see in my right hon. Friend's laudable conservatism in the matter, his desire to revert to primitive practice. I think that he is not only substituting another wrong question for the wrong question that Mr. Speaker is compelled to ask himself now, but is also imposing on the House a very cumbrous procedure.
As the hon. Member for Ebbw Vale reminded us, all privilege Motions, whether proposed by the Leader of the House or the individual back-bencher, can be debated at length. The House departed from the old procedure very largely because on the day of a great debate, perhaps on foreign policy or social policy, a back-bencher can rise to complain of something which may or may not be a breach of privilege and may be of great substance or of none. Everything has to stop, without warning and without previous arrangement, whilst a Motion by the Leader of the House or the backbencher is discussed, as to whether the matter is a breach of privilege, and what should be done with it if it is. I cannot believe that that is a sensible way of arranging our business. It would afford Opposition back-benchers a great way to destroy Government timetables, and for that reason I do not believe that any Government would be likely to accede to my right hon. Friend's blandishments.
I would wish to see a workmanlike procedure substituted. I concede that we spent hours in Committee discussing this question. Many different views were expressed at one time or another, and this was the best that we could do. I still 903 think that it is better than anything else that has been proposed.
I have taken a little longer than I had intended, partly because hon. Members were sufficiently friendly to cross-examine me further than I had expected. I hope that the Attorney-General will give us some hope that the Government will recognise that time must be given to discussion of the matter, and that, as a public relations exercise, we cannot allow this matter to drift on without action being taken simply because hon. Members legitimately want to make speeches on a subject they regard as important. It would be an unworthy and unworkable compromise simply to try to pick the eyes out of the Report and take the uncontroversial features of it in isolation from the controversial ones. It is precisely the controversial ones that we must keep our minds on.
§ 2.58 p.m.
§ The Attorney-General (Sir Elwyn Jones)
The House is debating a Select Committee Report of massive content and very high quality, and I am sure that it will join with me in my repetition of the gratitude of the House in particular to the Chairman of the Committee, my hon. and learned Friend the Member for Dulwich (Mr. S. C. Silkin), who was its author in the sense that he wrote it, although I understand—and he will be the first to concede—that it was the culmination of the thinking of the members of the Committee as a whole.
A Report which has the enthusiastic support both of the right hon. and learned Member for St. Marylebone (Mr. Hogg) and my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) is obviously one that has moved into an almost new political dimension of originality and significance.
There has been criticism of the fact that the Report has been allowed to, so to speak, lie fallow, but that is an agricultural practice which is not necessarily bad. I am sure that the Government and those who will have the responsibility of initiating proposals will have benefited greatly from the various suggestions and approaches, by no means unanimous, made in the Report and in this debate. My right hon. Friend the Leader of the House gave an assurance that we will 904 now press on with consideration of this matter.
It is true that some of the proposals in the Report require legislative action to give effect to them. I am grateful for the sympathetic approach of the right hon. and learned Member for St. Marylebone in view of the difficulties of the Government from the point of view of finding time to deal with this issue in the face of their legislative programme. However, when one looks at the proposals it seems that the only one of fundamental importance requiring legislation is recommendation No. 6. The others are, perhaps, of not such major importance.
I do not know if anybody has attempted an impeachment for a long time, although perhaps it would be in character for the right hon. and learned Member for St. Marylebone to try it out. Recommendation No. 13 is that the right to impeach should be abolished. I heard murmurings from another place about a certain gentleman's activities in regard to Rhodesia. Although I heard nothing more than murmurings, if there had been anything more it would have been a fascinating experience. I doubt whether in this day and age Parliament would seek to revive impeachment; and we need not be unduly troubled at the fact that the right will for the time being exist.
Recommendation No. 22 is concerned with the authorising of legal aid in appropriate cases in dealing with complaints of contempt. The difficulty here is that of finance. As we have had trouble in meeting the pressures of the ordinary citizen for legal aid in, for example, rent tribunals and so on, we might be subject to some criticism if we gave precedence to the introduction of legal aid in this sphere. I will not comment further on that issue except to say that it is not a matter of the profoundest importance.
Recommendation No. 23 suggests that legislation should be introduced to empower the House to impose fixed periods of imprisonment and fines. I am not sure about that one, since fines have not been imposed by the House of Commons for hundreds of years. As for the power to imprison, I understand that for over a century the House has been considered not to have the power to imprison for 905 a period beyond the Session of Parliament. Without giving further careful thought to the subject, I am not sure that I could support recommendation No. 23.
An important fact to emerge is that most of the Committee's recommendations seem capable of being implemented by Resolutions or a change in the practice of the House. Hon. Members will have heard the assurance of my right hon. Friend that we will press on with this matter.
The main theme which has been stressed in the debate, and the note was struck with his usual eloquence and knowledge by my right hon. Friend the Member for Leeds, West (Mr. C. Pannell), has been that the basis of Parliamentary privilege is not to protect Members of Parliament and place them in a position above the law. Its purpose is to protect Parliament itself, its Members and its officers to the extent and only to the extent—and I quote Erskine May—
absolutely necessary for the exercise of its powers.They are not privileges attaching to us as Members of Parliament in our personal capacities. They attach to the House in its corporate capacity and to ourselves only by virtue of the fact that we here represent the citizens.
The Report reflects full awareness of this basic approach. In the debate several hon. Members have asserted the view, which I certainly share, that Parliament should use its powers only, as I have quoted, to the extent absolutely necessary to the exercise of its powers. The essence of the Report is that the House should voluntarily restrain itself in the exercise of its privileges.
Mention of privileges brings me to the first recommendation in the Report about which I have my doubts. It is that the expression "Parliamentary privilege" in its customary sense should be abolished and that the House should speak of its rights and immunities rather than rights and privileges and of contempt rather than breach of privilege. It is about that proposed substitution that I have some anxiety, and it may be that it is not merely a semantic anxiety.
Parliamentary privilege is part of the law and it has passed into the law by a 906 long and historical route and this has affected its nature as law. For about half the life of the House of Commons, the proposition that the Commons had a penal jurisdiction would have been regarded as very doubtful. On the other hand, the House of Commons have always had some undoubted privileges, and Henry VIII encouraged them to enforce those privileges themselves. It was for this reason that the Commons chose to proceed against those who offended them by way of breach of privilege rather than by an open assertion of jurisdiction.
In the early 17th century, it appears there were attempts by both Houses of Parliament to act as courts of first instance, but by the end of the 17th century it was seen that this was undesirable and both Houses by then assumed their present position in the matter, the House of Lords as the ultimate Court of Appeal and the House of Commons as having no jurisdiction save in point of privilege. There may well be good reasons of public policy for not seeking to alter that long-standing settlement.
An institution which exercises a penal jurisdiction in contempt has what might be called an "open-ended" power. Anyone who disobeys the orders of that institution is liable to be punished for contempt. It' is hard to see how anyone who regarded himself as having been unjustly or unlawfully punished by the House of Commons for contempt could effectively appeal. If, on the other hand, the power of an institution to punish for contempt is limited to cases of privilege and if the privileges themselves are limited by law, as our privileges are, the power of the House to proceed against those who offend it is less likely to be unjustly exercised. At any rate, I throw forward those considerations for the House to think about them.
I confess that I have some anxiety about recommendations 7 and 12. Recommendation 7 is:The immunity of Members from arrest in civil suits should be abandoned and legislation should be introduced for this purpose.Recommendation 12 is:The use of the expression 'freedom from molestation' should be discontinued in so far as it is used to describe a right of Members separate and distinct from the rights which are protected by the ordinary penal jurisdiction in contempt.907 As I understand it, dealing with the immunity of Members from arrest in civil suits, the primary meaning of arrest, as of its French equivalent, is "to stop", and it is in that sense that the word is used in describing the Parliamentary privilege of freedom from arrest. The privilege consists in the Members, and of course officials, and also witnesses, not being interfered with in such a manner as to prevent their carrying out their Parliamentary duties.
The words "freedom from molestation" are an alternative, but I feel that in some ways they are a more apt, description of this privilege of Parliament, and they are obsolete only in that they have, in practice, been superseded by the words "freedom from arrest", but they appear to me—and I hope that I am not appearing to be unusually reactionary in this—to retain a significance which is real, in addition to being of ancient lineage.
§ Mr. Hogg
What I had partly in mind, and what some Members of the Committee had in mind, was that it had already been held in relation to the privilege of another place, but it would apply equally to the privilege of this House, that a spouse who happened to be a Member of Parliament and committed a flagrant contempt of an order in relation to his wife—or husband as the case may be—could not be put in prison for contempt of that court because it was not a criminal, but a civil, arrest. We understood—and I think it is the case—that that was so, and we thought that that was unjustifiable.
§ The Attorney-General
I am coming to the arrest point in a moment. What troubles me about the proposal that we should, by legislation, deprive Members of immunity from arrest in civil suits is that, as the right hon. and learned Gentleman and the House know, arrest on civil process now is almost exclusively the product of contempt of court.
It is at any rate possible that a conflict might arise between the courts and either House. It is a rare event, and one prays that it will not happen, but one cannot exclude it. If such a conflict arose between the courts and the Houses of Parliament, it is by no means inconceivable that the courts would commit a Member of Parliament or an official of 908 the House for contempt. They did so in the case of Stockdale v. Hansard. I ask the House whether it really wants to give to the courts power to commit its Members, officials, or witnesses, for contempt if a conflict arises between the Houses of Parliament and the courts. It is at any rate an immunity of which we should not deprive ourselves without giving the matter further thought.
I am not proposing, because I should be exceeding the patience and generosity of the House if I did so, to traverse each of the recommendations, but perhaps I may be permitted to refer to some of those which have been mentioned in the debate.
I have general sympathy with the second recommendation, which has been broadly supported by the House. As long as the proposed rules are intended to be guidelines, there is need for flexibility. I appreciate fully the warning given in the evidence of the Clerk of the House.
The third recommendation has been the subject of a good deal of discussion. My hon. Friend the Member for Liverpool, Walton (Mr. Heffer), who has returned to the Chamber after being unavoidably absent for a short time, was anxious about this recommendation. The basis of his anxiety was the fear that a Member of Parliament without financial resources might not be able to face the risks involved in bringing an action for libel or slander. There is no legal aid for such proceedings. I do not regret that fact. I recall that in the days when we had debates in Committee on the Legal Aid Scheme the right hon. and learned Member for St. Marylebone was as opposed to extending legal aid to such proceedings as he and I are now. It would therefore fall to the Member to undertake the difficult, uncertain and undoubtedly very expensive process of a defamation action.
However, my hon. Friend possibly has not attached sufficent weight to what was referred to in the debate, namely, the reserve which the Committee made to its recommendation in proposed rules (iii) and (iv) in paragraph 48 and in the last part of paragraph 44 where, if my hon. Friend reads it, the Committee said that the Committee state that theycannot, however, rule out the possibility of a case, however exceptional, where the constant 909 repetition of an unjustifiable and improper attack, e.g. by a powerful organ of the Press upon a group of members, may be pursued to the point of being a serious threat to the free expression of their consciences and to their free Parliamentary action. It is for such wholly exceptional cases only that the residual powers of the House should be preserved.
§ Mr. Heffer
I assure my right hon. and learned Friend that not only did I read it but I underlined the point. However, I still did not feel satisfied. I thought that it was a bit ambiguous. There could be an argument about how far it should go.
§ The Attorney-General
I do not think that the matter is capable of very precise definition, but I think that the House was disposed to agree with the broad view and approach in recommendation 4.
Recommendation 5 was:It should be open to the House, in deciding whether or not a contempt has been committed, to take into account either the truth of, or reasonable belief in the truth of, the allegations …I recommended that in the Memorandum which I submitted to the Committee, and I think that it is clearly right. I agree that the rules of procedure of the Select Committee need strengthening and improving to eliminate the criticism that natural justice has not always been done in the proceedings of the Committee of Privileges. I have had the honour of serving on that Committee for nearly five years, and I would like to confirm what has been said by my right hon. Friend the Leader of the House. I have certainly seen an impressive display of right hon. and hon. Members approaching their tasks there totally uninfluenced by party political considerations. There is, however, I agree, room for improvement in the rules and in the protection to those who might be adversely affected, and I broadly support the recommendations.
Recommendation No. 6 has been much discussed. I find myself in agreement with the approach and conclusions of the Committee. I thought that the reasons that the right hon. and learned Member for St. Marylebone gave for the change were most impressive, although there is no doubt that the legislation to give effect to the proposal will be fairly tricky and will need a great deal of thought.
I have made such comments as I think may be useful on recommendations 7 910 and 12, and it is to recommendation 20, dealing with the present procedure for raising complaints of contempt, to which I should like next to refer. I ventured to express in my Memorandum the impression that I have had, certainly in the last five years, and I hope that I may be permitted to quote just one passage from it, particularly because my hon. and learned Friend the Member for Dulwich thought that it might possibly have carried some weight with the Committee, although that may well have been merely the compliment of a friend. I ventured to say thattoo many complaints are now brought which do not merit the publicity, elaborate procedural steps and expenditure of time and effort which flows from making them.We have had several cases—not all cases; one or two serious matters have been raised before the Committee of Privileges since 1964—which did not deserve to be elevated to an importance which, first, caused serious disruption of the business of the House at its most critical and sensitive time at 3.30 p.m., and where there was a danger of elevating those against whom the complaints were made and glorifying them to a martyrdom which they would greatly enjoy had the Committee been so foolish as to recommend any serious action against them for they would have revelled at the opportunity, had it been given, of being summoned to the Bar of the House of Commons to make answer.
I have certainly felt the need for a preliminary sieve to prevent the matter being raised, at least in the first instance. on the Floor of the House of Commons. The Committee has proposed its own procedure, which would certainly be expeditious and would probably prevent the risk of undue delay which worried my right hon. Friend the Leader of the House. Whether it is the best machinery that can be devised is something that we can consider. I made my own suggestion, which was, perhaps, a little more simple, in my Memorandum, but I certainly do not claim any great credit for that. I feel, however, that this is a problem that the House should look at very quickly.
The other issue which has been discussed a good deal in the debate is the fact that the Select Committees, which now travel far and wide present new problems of privilege which need to be 911 looked at. I thought that my hon. Friend the Member for Birmingham, Perry Barr (Mr. Christopher Price) castigated the last Report of the Committee of Privileges a little unjustifiably. It was never its view that Select Committees should not sit outside the precincts of the Palace of Westminster. Indeed, it indicated in paragraph 10 of its Report that where, for the greater convenience of all concerned it was apparent that more satisfactory evidence would be obtained if the Select Committee took that evidence outside the precincts of the House, it would be quite suitable for it to do so.
However, we felt that the best place for these Select Committees to sit is here in Westminster. They have the facilities here and the risk of a lunatic fringe disturbance is greatly diminished here. Where a Select Committee wishes to meet outside the precincts, we thought it right that, if it could be anticipated that disorderly conduct would impede its work, it would be madness for it to put the House, which it represents, in an intolerable position—intolerable because, although such a disturabnce would be, technically certainly, contempt of the House, the House knows that its penal jurisdiction would be quite inadequate to deal with the situation. Some of the lunatic fringe would enjoy nothing more than the opportunity of repeating their antics here in Parliament if the House thought fit to exercise its penal jurisdiction against them or having them summoned as witnesses before a Select Committee.
§ Mr. Christopher Price
It was, as far as I know, the unanimous view of the Select Committee in Education and Science that evidence is far more satisfactorily taken in situ than in this House. In one case where we were forced to take it in this House we felt that the whole proceedings were most unsatisfactory. Secondly, does it really raise the status of Parliament if a Select Committee takes evidence in public but retires into camera simply because it fears it might be molested? Should not one take the contrary view that we should take powers to prevent molestation?
§ The Attorney-General
I do not want to go into too much detail or to retry the matter, but the information the Committee of Privileges had was that the 912 meeting of the Select Committee on Education and Science which took place here instead of at a certain academic institution was very satisfactory and that all the necessary information which was sought was satisfactorily obtained. Indeed, the fact that the young people concerned did attend here may well have contributed to the orderliness and, I understand from the evidence, to the satisfactory nature of the evidence obtained.
The Committee of Privileges readily conceded that if it was more convenient or essential, in view of the nature of proposed evidence, for a Select Committee to meet outside the precincts, that should be done. But it did consider that, if there was foreknowledge that there would be a shambles, the Committee owed it to itself and to the House not to fall into the trap.
§ Mr. Heffer
Is my right hon. and learned Friend aware that the Select Committee on Education and Science is not the only one which meets outside the precincts? The Select Committee on Race Relations has made many valuable visits all over the country. This underlines the point made by my hon. Friend the Member for Birmingham, Perry Barr (Mr. Christopher Price)—that it is not really a question of restricting their sittings outside but of making arrangements so that these Committees will not be molested.
§ The Attorney-General
I entirely agree with my hon. Friend the Member for Liverpool, Walton (Mr. Heffer). He has put the matter better than the way in which I was putting it. So that the public should not get the idea that Select Committees are being generally sabotaged, I would point out that as far as I know there have been only two instances of any trouble with Select Committees. My hon. Friend the Member for Walton referred to one Committee which deals with a highly sensitive and controversial subject and which has gone to the very heart of areas in which there is the strongest feeling. Respect and order has been shown to the Committee in its deliberations. That is the picture which emerges. There is no great problem, but I believe that the Committee of Privileges were right to issue that warning.
My right hon. Friends in the Government are most grateful to right hon. and 913 hon. Gentlemen for their valuable contributions to the debate. I give my assurance that I will do all that I personally can to see that this work does not lie fallow for very much longer and that we shall press on to implement these recommendations and changes in practice.
§ Question put and agreed.
That this House takes note of the Report from the Select Committee on Parliamentary Privilege in the last Session of Parliament.