HC Deb 06 February 1978 vol 943 cc1155-98

10.2 p.m.

Mr. G. R. Strauss (Vauxhall)

I beg to move, That this House agrees with the Committee of Privileges in their Third Report in the last Session of Parliament on the Recommendations of the Select Committee on Parliamentary Privilege (House of Commons Paper No. 417), and declares that the Recommendations contained in paragraphs 4, 5, 6 and 9 of the Report, and those in paragraph 16 which do not require legislation for their implementation, shall have immediate effect. I move this motion on behalf of my right hon. Friend the Lord President of the Council and the Privileges Committee because of the unanimous decision to put these proposals before the House for endorsement.

This matter arose as a result of disquiet in the 1960s about the functioning of the Committee of Privileges. It was thought by many people that the principles on which it was operating were not sound, that its administration and organisation were not correct, and that certain changes should be made.

Consequently, the Select Committee on Parliamentary Privilege was set up. It sat for a long time under the chairmanship of my right hon. and learned Friend who is now the Attorney-General. The Committee made a long, and I think good, report. It was good not just because it was full of wisdom, but because it was well written by my right hon. and learned Friend, who spent his summer holidays undertaking that task. It is a fine document.

There has been a long delay between the publication of the report in 1967 and the implementation of its recommendations. A few minor proposals have been implemented, but the major ones have not. There has been an 11-year delay.

That delay is a pity in one sense as many difficulties have arisen because the old system of privilege administration was not amended at that time. But we have had time to examine the matter again. We have thought a second time about some of the proposals that we then advanced, and we have changed our minds.

The first matter that we bring before the House relates to the desirability of defining in some way what is a contempt of the House. This is not an easy matter. A great deal of thought has been put into it over many years. The difficulty has arisen that if a loose definition is applied, Members will be encouraged to bring before the House for consideration by the Committee of Privileges all sorts of matters that are not worthy of consideration. On the other hand, if we have a definition that is too tight, we might restrict Members of Parliament from defending themselves when they try to do so in the interests of their constituents.

Therefore, we have adopted the view—we ask the House to accept it—that the definition should be extremely broad. It is not a new definition, but until now it has been acted upon only informally. We suggest that it is desirable that the House should now act on it formally.

The definition is set out at the bottom of page iii. It reads: The Report"— that is, the 1967 report that we now endorse, or this part of it— recommended that the House should follow the general rule that its penal jurisdiction should be exercised (a) in any event as sparingly as possible and (b) only when the House is satisfied that to exercise it is essential in order to provide reasonable protection for the House, its Members or its officers, from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions. That eliminates petty, unimportant mat-terms that should not go through the machinery of the Committee of Privileges. In our view, action should be taken only in important cases when there is either actual or threatened obstruction of the House, or obstruction of Members in carrying out their duties as they conceive them.

Mr. Robin Maxwell-Hyslop (Tiverton)

I am slightly worried that the Father of the House has referred to a definition. Surely what he has described to us are characteristics by which a situation can be recognised, which is something totally different from a definition. Does the right hon. Gentleman agree that no one could agree that the phrase in any event as sparingly as possible has anything to do with a definition? Those words have to do with the employment of such action as the House cares to take.

Mr. Strauss

I think that the hon. Gentleman knows exactly what I mean. Of course it is not literally a definition. It is guidance. I agree with the hon. Gentleman and I willingly change my words if he prefers.

In particular, the definition is guidance to Mr. Speaker so that he will be able to judge better whether a motion for consideration by the Committee of Privileges should have precedence. After that it will be guidance to the Committee of privilege itself, which might be able to say "This is so petty and unimportant that it should not be considered by us and go through all our machinery and that of the House". We propose that that the guidance I have quoted should now be formally accepted and endorsed by the House and should become the guidelines for Mr. Speaker and the Privileges Committee. It is, moreover, a similar definition to that established by Lord Phillimore in his report on contempt.

The next question is whether there should be a bar that would make it impossible for a Member to raise a matter of privilege when he has a remedy at law. Until now the view has been taken—it was the view of the 1967 Committee, which we are now trying to alter—that if a Member considers that he has a matter of privilege to raise—let us say that he has been libelled in a way that is damaging to him and to the House—and he has a remedy at law, he should not be able to use the penal jurisdiction of the House as well, or as an alternative. The Privileges Committee thinks that that is not right.

There may be instances when an hon. Member who has a remedy at law should be entitled to seek the penal jurisdiction and protection of the House. One of the major reasons for that is that a contempt is not a contempt of an hon. Member but of the House. It would be wrong if the House were unable to act when an hon. Member contemplates taking no action at law. That would make it impossible for action to be taken by the House. We say that an hon. Member should be entitled to bring a matter before the Privileges Committee, even if he has a remedy at law, if he believes that the House has been brought into contempt.

The next change that we propose is small. We say that Mr. Speaker, when deciding whether a matter should be given precedence and go to the Committee, should be able to take into account the mode and publication of a contempt. Up to now Mr. Speaker has not been able to do that. All he has to decide is whether something which has been written is prima facie a contempt of the House. He is not able to take into consideration how small or petty it is. We say that Mr. Speaker should be able to say to what extent it is petty or important.

The next item is an issue that has concerned me over many years. It concerns libel proceedings against Members of Parliament acting in their capacity as Members of Parliament. The matter arose because of a case in which I was involved.

When I was a Back-Bench Member I wrote to the Paymaster-General, then the right hon. Member for Chipping Barnet (Mr. Maudling) the Minister who was then in charge of the London Electricity Board, putting to him allegations, which had been made to me by colleagues in the City who knew what they were talking about, that the board was acting inefficiently in certain spheres and losing public money. I did not allege that the board was acting dishonestly. In a letter to the Minister I said that facts had been brought to my notice and I thought that they were correct and that he should look into the matter.

The Minister passed the letter on to the board which asked to see me. I was given an explanation and told that my views were incorrect. Later I received a letter threatening me with a libel action I brought that to the House straight away as a matter of privilege on the grounds that the board appeared to be interfering with the duty and right of a Member of Parliament to put before a Minister something that he believed to be wrong.

The issue aroused great interest and it went to the Committee, where it remained for 15 months because of the legal aspects involved. In the end the Committee said that the letter should be considered as a proceeding in Parliament and therefore the Member writing that letter should not be open to court proceedings for libel.

The matter then went to the House as a whole where it was considered, and a motion was moved disagreeing with that practically unanimous decision of the Privileges Committee. For a variety of reasons—politics rather more than law—the motion was carried against the advice of the Committee by a majority of five. Since then anything written or said by a Member to a Minister which might be libellous, although a matter of public interest and within his parliamentary duties, opens up the possibility of his being brought to court and sued.

The only way to overcome that difficulty was for a Member to ask a Question in the House or to put a motion on the Order Paper. That was obviously a ridiculous situation. Clearly, if a Member has what he believes to be a genuine grievance on a matter of public interest, he must be entitled to write to the Minister about it. If a Member cannot do that and is compelled to raise the matter in the House, he might make public comments which are libellous and which he did not want to make.

The Committee therefore, recommends that there should be a definition of proceedings in Parliament. That definition is set out in the report. I shall not bother to read it, as it is rather long. In short, on parliamentary matters it recommends that any communication between a Member and a Minister or an Officer of the House is "the business of the House" and should be fully privileged. To make that effective, it is necessary to have legislation defining "business of the House". I hope that on this and other matters my right hon. Friend the Lord President of the Council will tell us that he will bring forward such legislation as soon as possible.

Mr. Maxwell-Hyslop

I have not discovered from reading the report why the Committee held the view that this matter required legislation as opposed to a declaratory resolution of the House. I should have thought that the House could by resolution declare what was a proceeding of Parliament, just as it can by resolution declare what are the precincts of Parliament. I do not follow why that matter requires legislation.

Mr. Strauss

The short answer is that nor do I, but the Attorney-General said that it was essential and the authorities of the House said that it was necessary. The Committee was told that this change could not he effected by a resolution of the House and that legislation was necessary. I bow to the wisdom of the Attorney-General. It may be that he will give the answer later. We were told that legislation was necessary and we accepted that statement.

The next matter concerns the method of raising privilege matters in the House. I think that everyone agrees that the present system is clumsy, ineffective and sometimes frustrating. The need to raise a matter of privilege with Mr. Speaker at the earliest opportunity often makes it impossible for a Member who has a very good case to put before the House to raise it at all. He might be ill, he might be away, or he might be waiting, as happened recently, for a transcript from the BBC in order to be sure that he wants to raise the matter.

Therefore, the Committee believes that the present practice is restrictive. Its recommendation is that it should be abolished and that in future a Member should be obliged to raise a matter as soon as reasonably practicable.

He must make the complaint in writing to Mr. Speaker, which will give Mr. Speaker time to consider it. Some of these matters are difficult and legally complex. Therefore, Mr. Speaker must have time to consult whom he wishes before making a decision. If the matter requires urgent decision—for example, a continuing contempt—he can give his decision the next day in the House and ask for the matter to go to the Privileges Committee.

If Mr. Speaker, after considering the complaint, says "No, no precedence should be granted here", we suggest that that should be the end of the matter and that it may not be raised on a point of order by an hon. Member. If he says "Yes", that he thinks that it is a matter that might go to the Committee of Privileges, he must, as soon as is reasonably practicable, announce the day when he will make that statement. The next day a motion will be put on the Order Paper moving that the matter go to the Committee of Privileges, not, as has happened up to now, by the Leader of the House, but by the hon. Member who has made the complaint.

Mr. Tam Dalyell (West Lothian)

Is there not also another side of the coin to substantiate the argument? Have there not been occasions, because of the need for haste, when matters have been raised and the whole juggernaut of the privileges machinery put into operation when a bit of thought and less need for haste might have avoided the whole process?

Mr. Strauss

My hon. Friend the Member for West Lothian (Mr Dalyell) is definitely right. It is for that reason that we suggest this delay.

There will be a written notice to Mr. Speaker. Mr. Speaker will have time to think about it and the hon. Member who raised the matter will have time to think about it, too. I think that is very important. Only then, when they have both had time for thought, will the matter come before the House, unless Mr. Speaker is of the opinion that it is urgent and requires immediate attention.

I come to the last matter of importance, and it is the most important. We suggest reviving the authority of the House for fining someone who has been responsible for contempt of the House. We think that it is exceedingly desirable. At the moment the Committee of Privileges has no authority to do anything to prevent people from saying or writing things in contempt of the House or, if they do, doing anything about it. It is possible—we have had many examples—for somebody or a newspaper to say deliberately outrageous things and there is nothing that the Committee of Privileges can do about it except send a man to prison. The House would never agree to that. It has not been done for centuries.

The other thing that can be done is to demand that the individual concerned should come to the Bar of the House, be reprimanded by Mr. Speaker. It is a different situation for a Member of the House if he commits contempt. He can be punished in many ways. He can be suspended for a short period, or expelled from the House. There is no sanction that can be imposed upon the outside person.

The obvious instance is that of a newspaper editor who commits contempt of the House and is proud of it, does not mind and thinks that he is doing something in the public interest. He may be a maverick editor who would welcome the opportunity of being brought to the Bar of the House and reprimanded by Mr. Speaker. By doing so he would receive marvellous publicity.

On many occasions when the Committee of Privileges has been considering a case it has had to say to itself "We can either go through this nonsense of bringing somebody to the Bar of the House, or just say that, although the matter was a breach of privilege, in view of the circumstances, we will not pursue it further", when it should have pursued the matter further and taken some penal action.

It will be rare for the House to want to take penal action. It will not be for the Committee to take such action. The Committee will recommend it to the House and the machinery is set out here for the protection of the man who has committed contempt of the House and to ensure that he receives a fair trial, and has right to an appeal and so on.

It is essential that that reserve power should be there for the House to be able to exercise its authority effectively and ensure that someone who has committed a contempt of the House, perhaps quite deliberately for selfish political purposes because he is an ostentatious person and likes publicity, can be told "You did wrong and you will he punished for it". I hope that the House will accept that recommendation.

That, again, will require legislation. Perhaps my right hon. Friend the Lord President of the Council will tell me whether he intends to bring in the legislation as soon as possible on this and one or two other matters on which legislation is required.

I am sorry that I have spoken for so long, but these are important matters, and it is desirable to outline the changes that we propose.

The only other matter relates to a problem that has often been before the Committee of Privileges. If a man has committed a contempt of the House by saying something outrageous and libellous that would bring the whole House, or a section of it, into contempt, is it a good defence for him to say "What I said is true. Surely you are not going to stop me from speaking the truth. You cannot punish me for saying something derogatory, because what I said was the truth"? That kind of problem has been before the Committee on many occasions, and it has never been completely resolved. I do not think that our remedy resolves the issue completely, either, but it goes a long way towards doing so.

The report says that if a man who has said something that is a contempt of the House can show that he did it after reasonable, proper and careful investigation, that he has taken all necessary steps to find out the truth and that has done it in such a way as to give minimum publicity outside and sincerely believes in what he has said, it would be right for the Committee of Privileges to accept the truth of the statement if it is made under those conditions, but only under those conditions.

Mr. Maxwell-Hyslop

Is the Father of the House sure that that is enough? A statement can fulfil all those conditions and still be grossly misrepresentative of the truth because it is only a partial truth and not a representative truth. Perhaps I may just remind the Father of the House of Duffy's case. I think that most people agree that what the hon. Gentleman said was true, but the only trouble was that he imputed it to one side of the House when it was equally true of the other. That was the real nature of his offence, not that he said something untrue.

Would the right hon. Gentleman care to turn his mind to when a statement is true and is made accurately, but is offensive to the House and indeed brings the House into contempt because it suggests that something is unique to one section of the House when it is general to more than one section of it?

Mr. Strauss

All these things are difficult to define exactly. We had a principle in mind—and I think the hon. Gentleman agrees with it—to get some definition that was reasonable. It does not cover all cases. The report says that the man will be absolved from committing contempt of the House provided that the allegations have been made only after all reasonable investigations had taken place, had been made in the honest and reasonable belief that it was in the public interest to make them and had been published in a manner reasonably appropriate to the public interest. I do not know. The hon. Member may be able to get a beter definition, but that is the best we can think of. We are proposing that if a man who has committed some contempt by publishing something untrue can say all these things, we can say "Well it was a pity, but we will let the matter go at that." That is reasonable. The committee could not think of any better words. These are our main recommendations.

One other point is that where the Committee permits someone to be legally represented it should not only grant legal representation with the consent of the House but be able to grant legal aid also. That is a proposition that should apply not only to the Privileges Committee but to all other Committees where a Member or individual is entitled to have a lawyer to help him make his case.

These changes are the unanimous view of the Select Committee on Privileges. They are all reasonable and defensible. I hope that the House will endorse them tonight.

10.32 p.m.

Mr. Robin Maxwell-Hyslop (Tiverton)

I do not recollect an occasion when so much sheer muddle was confused into one motion of five lines. If this motion had read: That this House takes note of the Committee of Privileges in their Third Report in the last Session of Parliament and the Recommendations of that Committee on Parliamentary Privilege (House of Commons Paper No. 417) I should have less objection, though I will come later to a gross defect in one of the recommendations. But there is an internal contradiction in saying that this House agrees with the Committee of Privileges in its Third Report and then going on to say that only those recommendations that do not require statutory provision and which are named shall have immediate effect, because the normal practice of the House is that if it passes a resolution agreeing with the report or recommendations of a Committee, those recommendations are then acted on.

Is it clear that it is not intended to be the case now? Or is it intended to be the case? We cannot know from perusing these five lines of the motion.

One example is that the authority for paying expenses when Select Committees go outside Parliament within the United Kingdom, or outside it, is alleged by the Fees Office and the Comptroller and Auditor General to be a terse resolution of the House agreeing with an extremely ambiguous report of the Select Committee. That is alleged to take the place of financial resolution. Yet tonight we are asked to pass a motion saying That this House agrees with the Committee of Privileges in their Third Report. Does it? If it does, it is agreeing to quite a lot of things that the Father of the House has not mentioned; for instance, the right to impeach should be formally abandoned and legislation should be introduced for this purpose. What happens if this motion is passed tonight but no such legislation is introduced? Has the House abandoned the right to impeach or not?

On the precedent of spending money on Select Committee trips, if the motion gives the authority for expenditure, clearly it has done something. The alternative view is that it has done nothing except express an opinion. That is not a satisfactory situation.

I should have liked to confine my remarks tonight to the second half of the motion, which declares: the Recommendations contained in paragraphs 4, 5, 6 and 9 of the Report, and those in paragraph 16 which do not require legislation for their implementation, shall have immediate effect. If the motion means what it says in the first two lines That this House agrees with the Committee of Privileges in their Third Report in the last Session of Parliament. once we pass this motion, all the recommendations, including those not in paragraphs 4, 5, 6 and 9 of the 1967 report and those in paragraph 16 that do not require legislation for their implementation will have been approved by the House as a whole.

It is an absurdity of terms in which the Leader of the House has drawn this motion tonight. I cannot conceive why he did not draft it to take not of some recommendations and approve others. To agree to some that do not come into effect leaves us, the Speaker and the Speaker's advisers not knowing what on earth the House will have done tonight if it passes the motion. I ask the Leader of the House to treat this simply as an interesting debate and not to have his motion put to the Question at the end of the discussion, because nobody knows what it means.

Even the second half of the motion, which purports to be more specific, declares That the Recommendations contained in paragraphs 4, 5, 6 and 9 of the Report, and those in paragraph 16 which do not require legislation for their implementation shall have immediate effect. What does that mean in respect of paragraph 5 on page iv? Any hon. Members who have a copy should read it. The whole paragraph is about the 1967 report, which is referred to sometimes as the 1967 report and sometimes as the report. In line 5 it is referred to as the report. and in line 1 as the 1967 report. It ends by saying they recommend instead a Resolution of the House agreeing with this Report". Which report: the 1967 report or the Third Report of the Committee of Privileges? One can apply either interpretation on that clause which unhappily is approved. This happens to be one of the specific proposals which is to have immediate effect.

What will have immediate effect? Will it be the Third Report or the report that the whole paragraph is talking about? To attribute this report to the 1967 report is against the argument of the preceding paragraph.

The Leader of the House has not read through what he is inviting us to agree to tonight. Before I come to the weightiest parts, I shall take Recommendation 13 on page ix that The right to impeach should be formally abandoned, and legislation introduced for this purpose. We are invited to believe that the right to fine does not still exist. It may not exist on the ground that it has not been used for a long time, but no one has been impeached for a long time. If we need to pass legislation to resurrect the right to fine, why on earth do we need legislation to extinguish the right to impeach when impeachment has been used more recently than fine? It defies all logic.

The Father of the House attributed—I am sure accurately—to a previous Attorney-General the astonishing theory that there was some sort of eroding of privilege by the passage of time. Yet no Attorney-General of whom I am aware has decreed or advised the House of the moment in time when that happened.

Coming to the right hon. Gentleman's own case—known as the Strauss case—is there anybody in the House who thinks that, had the House of Commons accepted the recommendation of the Committee of Privileges and found that the right hon. Gentleman's correspondence with the Minister was subject to privilege, it would then have needed an Act of Parliament to make it subject to privilege? Of course it would not. It is an absurd example of relying on bad advice from Attorneys-General. The Committee should have used its own brain and intellect instead of relying on obviously fallacious advice from an Attorney-General. If the House had passed a motion accepting the report of the Committee of Privileges in the Strauss case, it is inconceivable that that would not have been that. Of course it would have been that.

So why are we now invited to believe that since then, not since hundreds of years ago, it takes anything other than a resolution of the House to reverse the resolution in the Strauss case? It does not take an Act of Parliament to reverse a resolution of the House. It takes only another resolution of the House.

So, quite clearly, nonsense advice was being given by the then Attorney-General to the House. I am not impressed by the fact that the Committee of Privileges was prepared to swallow such an obviously fallacious proposition instead of exercising the intelligence with which presumably it was endowed and the confiddence with which apparently it was not endowed.

Turning now to impeachment—Recommendation 13—the reason why many of the powers of the House have not been exercised for a long time is that they have not needed to be exercised. It might be—we can never know—a corollary of the fact that those powers existed that they have not needed to be exercised. We cannot know. Which of us now present in the House can look into the future and say that we or our successors will never in any Government, however temporary, have a Minister so oppressive that Parliament wishes to impeach him, when that is the sole remaining authority of Parliament over an oppressive Executive?

Can we look into the future with such assurance? I cannot. Who else can? Yet concealed within the five lines of this muddled motion is the extinctioin of that final—Draconian, yes; rarely used thank heavens, rarely needing to be used—power of Parliament over an abusive Executive.

If we pass the motion tonight I do not know whether we shall have extinguished it. The recommendation says and legislation should be introduced for this purpose. I am in no way sure that legislation has to be introduced for that purpose, because if a resolution of the House in the Strauss case could remove privilege from what the Committee of Privileges believed to be the existing situation, why cannot a resolution of the House stop us from impeaching Ministers? The Committee of Privileges did not believe that it was inventing a new privilege. It believed that it was declaring what the privilege was and had been from time unknown.

Therefore, if a resolution of the House can do that, why cannot a resolution of the House stop us from impeaching Ministers in future, which, it is declared, requires legislation? My fear is that it does not require legislation and that passing the motion would deprive the House, would castrate the House, of its final power over an abusive Minister, of whatever political persuasion and however far on in time.

I take a very unfavourable view of the doctrine of attrition of power, the doctrine that if the House does not use certain powers because it does not need to, those powers become extinct. I do not accept that doctrine.

I certainly accept advice that in practical terms it may become more and more difficult for the House to gather the courage to exercise those powers, but that is totally different from the doctrine of attrition of power by efflux of time. That doctrine has this appalling disadvantage: how can the Chair ever rule when the moment has come at which the attrition has become complete? Attrition is a process, not an incident. An incident occurs at a point in time. The doctrine of attrition of power suggests that at some moment the Chair must rule—or, if the Chair does not, a court must rule—that, at no known moment in time, by no recognisable event, a power that clearly existed no longer exists. I find that a very unpersuasive argument.

I have sought briefly to show the immensity of what is comprehended within the innocent-looking, woolly motion. I am sure that it would have commanded the presence of more hon. Members if they had realised what the motion did. We now come down to the things that even those who promote it admit that they want to do.

The abolition of imprisonment as a penalty and the substitution of fining means that we exempt from penalty for contempt of the House those who for one reason or another will not suffer from a fine. We are creating for the first time a class of persons de facto though not de jure exempt from punishment, other than reprimand at the Bar, for contempt of the House.

Someone who is immensely wealthy, someone with the resources of a huge company or a trade union behind him, will not be hurt by any fine imposed by the House, although it may hurt someone else. We read on page viii of the report: A fine is the only penalty which can be imposed upon a limited company or other corporate body. Is it? But do we want to punish the trade union members or the shareholders, on the one hand, or, on the other hand, those who committed the contempt—the directors of the company or the officers of the union? Why should we want to punish those who have not knowingly participated in the event?

Mr. Michael English (Nottingham, West)

I was on the 1967 Committee. Will the hon. Gentleman accept that it might just be possible that in this day and age we thought that for the sort of offence about which we are talking a fine was more appropriate than imprisonment?

Mr. Maxwell-Hyslop

Indeed. The gravamen of what I was saying earlier was that I was not convinced that the House had ever lost the right to fine. If it has, pray tell me when and how.

Mr. English

Just after 1660.

Mr. Maxwell-Hyslop

By what? I will give way to the hon. Gentleman once more. How did the House lose that?

Mr. English

The hon. Gentleman will recollect that there are certain matters not yet resolved between this House and another place. One of them was our right to initiate financial resolutions, which reappeared in the middle of the nineteenth century, or, for example, when another place claimed that it had not lost the right but eventually conceded the fact that it had and so on. Another case was where the House never admitted that it had lost the right to fine but simply accepted the fact that it had. This House accepted by implication the House of Lords' decision that the House of Lords had the right and the House of Commons had not.

Mr. Maxwell-Hyslop

But the accepted constitutional doctrine, as I understand it, is that the House cannot, without Act of Parliament, invent a privilege that it has not previously possessed. It is an entirely different proposition that the House cannot use a privilege which it has not used for a long time. It is an unchallengeable historical fact that this House has fined people. It might be, not because of the law of privileges but because of the inconvenience of execution, which is entirely different, that the House might wish to have a declaratory Act, as it sometimes does for other reasons, confirming something that already exists.

I find very persuasive indeed the advice which the Clerk of the House gave. He did not volunteer it. He was invited by the House—an unprecedented event as far as I know—to comment upon a report of a Committee of the House. The inconveniences of fining are a good example of the cure being worse than the disease. The Committee of Privileges endeavours to circumvent them by suggesting that it should be an unamendable motion. But such a motion is not the same thing as a motion that cannot be altered subsequently by another motion. Let that not be forgotten. The difficulty has not been obviated by saying that it shall be unamendable. This point has escaped many people.

The Committee might have taken the view that in terms of imprisonment an indefinite sentence—the pleasure of the House—is not always appropriate: quite so. There was a time when it was believed that the House did not have the power, by the doctrine of attrition, to impose a sentence of finite length. Given that the sentence of imprisonment cannot last more than the duration of a Session of Parliament, it is clear that the House, within that outer limit, still has power to imprison for a definite period.

My reason for saying that is the judgment given by the Australian court in 1955 and re-affirmed on appeal by the Judicial Committee of the Privy Council, to the effect that the Speaker's warrant in the Australian Parliament had not exceeded the undoubted privilege of that House.

At that date the Australian Parliament had not drawn up its own rules of privilege, but under Section 49 of the constitution its privileges were co-extensive and coterminous with those of the House of Commons.

The finding was that the committing of the two prisoners, Fitzpatrick and Browne, for a specified period, until a specified date, did not go beyond the undoubted privilege of the Australian Parliament, which was entirely coterminous and co-extensive with the privilege of the House of Commons here. The Judicial Committee of the Privy Council having reaffirmed that on appeal, it cannot be the case that the court exists in the United Kingdom which could go behind the face of the Speaker's warrant on such an occasion on the ground that the House had imposed a sentence in excess of its undoubted privilege.

My point is that should this House now take the view that it agrees with the Committee of Privileges that it should be able to impose a sentence of imprisonment which is not indeterminate until the end of the Session, and which is not at the pleasure of the House, it can still do so. It may not have known that it could do so until the 1955 case in Australia went to the Judicial Committee of the Privy Council, but since then it has known.

All in all, It seems to me that the sensible thing for the Leader of the House to do, not only on the merit of the case but also because this must be by any conceivable criterion an unacceptable motion—because it does not do what it means to do, because nobody can say what it does do and because it does some things that it does not mean to do—is to beg leave, at the end of the debate, to withdraw the motion. It will not have been a waste of time. It will mean that our colleagues—that is to say, 30 or 40 times as many hon. Members as are now present—will be able to read tonight's proceedings in the Official Report and give some constructive thought about what they think the House ought to do.

I beg the Leader of the House not to carry to a Division the propositions contained in this quite jejune and incompetent motion, the meaning of which—inasmuch as it has any—I would pay him the compliment of believing that he does not even intend himself

10.57 p.m.

Mr. Tam Dalyell (West Lothian)

The House will forgive me if I do not follow the hon. Member for Tiverton (Mr. Maxwell-Hyslop). I thought, if I may say so, that some of his language was extravagant and exaggerated, and I will leave it at that.

I begin by concurring in emphatic terms with paragraph 50 of the memorandum of the Clerk of the House, on page xxii. Referring to the editor of a national newspaper who was formally reprimanded by Mr. Speaker, he said: It certainly appeared to me and others of my colleagues who were present, that by his demeanour the Editor was far from regarding the reprimand as a mere rebuke'. Since I am the Member referred to on page xxviii, against the date of 27th May 1968, in relation to an article in The Observer purporting to give an account of evidence given to a Select Committee, again on page xxxviii, in July 1968, and at the top of page 1, perhaps I am in a better position than most to substantiate the Clerk's view and to say that being reprimanded by a full House, with the full paraphernalia, was a formidable experience and one that no Member who has had the misfortune to be so rebuked will ever forget. I think that I can speak, too, of my hon. Friend the Member for Bassetlaw (Mr. Ashton), who had a similar experience and feels precisely the same way about it. These are scars that are not easily obliterated, and remain with one for a long time.

But, speaking for myself, I must say that I was sustained in what would have been very difficult days for anyone by my constituency Labour Party, which took a broad and generous view of the mess that I had got into and perhaps was concerned about the issue of germ warfare. I was sustained by a number of individuals, many in the Labour Party and among the trade unions, who were concerned more with biological weapons than perhaps with what they saw as parliamentary etiquette.

I was also sustained—I must say this in his presence—by my right hon. Friend the Member for Ebbw Vale (Mr. Foot), now Leader of the House, who acted as a teller for the dissenters and who made a generous speech on which he must have worked quite considerably on my behalf, or at least on behalf of the issue. I should like to take this opportunity, 10 years later, of recording my gratitude to my right hon. Friend, which will never be obliterated.

On a lighter note, I also record my gratitude to right hon. Friends such as the present Secretary of State for Energy, who, when he rushed into the Lobby to discover precisely what he was being asked to vote for, stayed in the lobby lavatory until the count was finally made; and to my right hon. Friend the then Home Secretary, the present Prime Minister, who said that he would not vote because he did not take part in blood rituals. Many other kindnesses were shown, and by most members of the then Labour Cabinet who did not vote in the Lobby.

I speak tonight, however, not out of self-justification but because I think that anyone who has been through this ordeal has something to say on the matter. I agree very strongly with my right hon. Friend the Member for Vauxhall (Mr. Strauss) that these things should not be done in haste. I would have hoped that perhaps my hon. Friend the Member for Bristol, North-East (Mr. Palmer), who was then Chairman of the Select Committee on Science and Technology would be present tonight, because I think that he might have agreed that had he not been under pressure to make a hasty decision, there might have been other ways of dealing with the situation that had arisen.

I say that not to say that I was right, which is not the burden of my argument tonight, but simply to say that had there been the scope for cooler consideration and had certain people not been rushed into it—I refer particularly to the then Member for Isle of Ely, Sir Harry LeggeBourke—a rather different view would have been taken in this case, as in a number of other cases. Perhaps there would have been wider consideration of the background, much of which I felt then and feel to this day was basically not so much that I had made a mistake in a particular instance but, in the view of certain people who, I believe, prompted my hon. Friend the Member for Bristol, North-East, that my real wrongdoing had been that I had been far too nosey about the Ministry of Defence, particularly on issues such as Anglo-French variable geometry aircraft and atolls in the Indian Ocean and other matters that were highly irrelevant to the issue of privilege as it was then raised but that were subsequently brought into the whole argument as to why the issue had been raised. I was given to understand very widely at the time that had I not been such a bloody nuisance on other matters in relation to the Ministry of Defence, the particular issue of my behaviour at Parliament would not have been raised.

All that I am saying now is that if that is anything like the case, there is an added argument for not doing these things in haste. There is an added argument for not doing them in a situation such as that in which I was confronted with this for the first time at three o'clock in the afternoon, when by chance I was in the House, by Members who had been prompted from other sources to raise the issue at 3.30 p.m.—according to one Minister of the Crown, the Ministry of Defence—shortly before, when the whole thing was ill thought out. Very naturally, my first instinct, which I do not regret, was to say straightaway, lest anyone else was put under suspicion, "Yes, I did talk to The Observer." I am going into this at some length. But I say to my right hon. Friend the Lord President, and to the Attorney-General, that—arguing from a concrete case—surely there are better ways of doing such things. I think my right hon. Friend the Lord President is nodding.

Mr. English

He is doing his shoes up.

The Lord President of the Council and Leader of the House of Commons (Mr. Michael Foot)

I was nodding as well.

Mr. Dalyell

Does my right hon. Friend wish to intervene?

Mr. Foot

I am in full agreement.

Mr. Dalyell

The second point I should like to raise, 10 years later, which I do not think has been fully resolved, is the interaction between the work of the Privileges Committee and the Official Secrets Act. Part of the reason I confessed in front of the Privileges Committee to a certain arrogance on the matter was that I knew there was nothing secret in what we had been told at Porton. I believe that this again raises a general issue for the House tonight.

I shall refer at some length to interventions during the speech of the then Leader of the Opposition, the right hon. Member for Sidcup (Mr. Heath), on 24th July 1968. He said: I hope that hon. Members will seek to separate these two things and will not allow their view of Porton and what may or may not go on there to affect their judgment of the action which was taken. At that point the right hon. Gentle-man was interrupted by Dr. Ernest A. Davies, the then hon. Member for Stretford, who asked: Is the right hon. Gentleman aware that the article published in the Observer could have been published in almost identical form if the newspaper reporters had awaited the normal report emanating from the Committee? Mr. Heath: That point is precisely the one made by the Leader of the House and by so many hon. Members who have spoken today. It was in the hands of the Select Committee, which was deciding what to publish. The hon. Gentleman concerned breached that confidence. This theme of secrecy has been running through the whole debate. For me, secrecy and security were not the matter with which the Privileges Committee was dealing. Questions of military or civil security can be dealt with by other means. There is legislation— At that stage the right hon. Gentleman was interrupted by my hon. Friend the Member for Penistone (Mr. Mendelson). The debate continued: Mr. J J Mendelson (Penistone): Before the right hon. Gentleman continues— Mr. Heath: I have already given way a number of times. Mr. Mendelson: The right hon. Gentleman is reported to have asked, as a member of the Committee of Privileges, an important question on page 39 of the Second Report from the Committee of Privileges. Questioning Vice-Admiral Sir Norman Denning, the right hon. Gentleman asked: 'You have now read the article in the Observer. If the journalist had submitted it to you before it was published, is there anything in it which you could have asked him to exclude because of D notices? ' That was question No. 435. The answer given was, `No'. I approve of the right hon. Gentleman's questioning. He asked some essential questions—[Interruption.] I have been listening carefully to the right hon. Gentle-man's speech. I trust that hon. Members will allow me to finish my intervention. If the right hon. Gentleman thought that that question was relevant, is not the background issue of security also relevant to the whole case? Mr. Heath: With respect, that is not so. I asked that question to show that nothing published in the Observer could have been kept out by D notices. That does not alter the position. This raised important issues which I believed will arise again for anyone in exactly the same position. Now is the time at least to raise the matter and to ask my right hon. Friend or the Attorney General—whoever is winding-up—precisely what his philosophy is with regard to this intermingling between the Official Secrets Act and the Committee of Privileges.

In 1968 my right hon. and learned Friend the Member for Dulwich (Mr. Silkin) said: It was sent to a newspaper office and it was kept there for several days ". That is the document which contained "unexpurgated material". I regret to say that my hon. Friend, for whom I have every respect, allowed that to be done—and that is the gravamen of the charge against him. I come to the newspaper concerned."—[Official Report, 24th July 1968; Vol. 769, c. 621–8.] Another copy of this same document was found by me, having doubtless been put there by a colleague on the Committee, in a wastepaper basket, by chance, in the Commons Library.

The issue arising is, if Select Committees are to be given documents, what care will be taken of them? For three years I was a member of the Public Accounts Committee. There were certain key Treasury documents of which great care was taken. They had to be returned on every occasion that members of the then PAC looked at them, never leaving Room 16. They were produced by the Clerk and, if we wanted to read them, we went up to the Committee Room before a meeting of the Committee, did so, and they were put away. That seems to be the right way to deal with these matters.

But how much can there be in the matter of secrecy if unsidelined reports are circulated round every hon. Member? We know full well that, almost any day that we go into the Library, we can find lying around precisely these kinds of documents. Therefore, I think that the House has to make up its mind what is secret material and what is not, and there are very many issues that arise from that.

The third issue that I wish to raise is the question touched on by my right hon. Friend the Member for Vauxhall, which also occurs in the report. This is the tribulation of hon. Members who have to appear before the Privileges Committee. My right hon. Friend suggests that an hon. Member appearing before the Privileges Committee should have the right to take a lawyer. I must say that, in the light of my experience, anyone who appears before the Privileges Committee would be very unwise not to take a lawyer or at least some parliamentary friend skilled in the law.

The trouble is that, unless a person appearing before the Committee is used to being cross-questioned, he can get into a terrible muddle. He will be questioned not only by skilled lawyers such as the present Lord Chancellor, who at that time was, as Attorney-General, doing the job that he had to, but also he can get bogged down because of the irrelevant questions which are asked by colleagues. It has been the experience of those appearing before the Committee to whom I have talked that some of the questions are so irrelevant that, without being rude, it is very difficult to give answers.

Both Duncan Sandys, the right hon. Member for Streatham as he then was, and Arthur Woodburn, then my right hon. Friend the Member for Clackmannan and East Stirlingshire, asked enormously long-winded questions with very little to do with the issue in hand. Unless the individual appearing before the Committee has a sort of legal answer, he can get deeper and deeper into the mire. I was put in that very position. Having been asked an endless question of dubious relevance by my then right hon. Friend who said subsequently that he was trying to help me, I was then asked rather sharply by the Leader of the Opposition "Do you really mean this?", and I had to say "No". Anyone appearing before the Privileges Committee and likely to be tied down afterwards by what he has said would be well advised to take in a lawyer with him and have the proceedings properly conducted and not in a very amateur way which can disadvantage him at the end of the day.

In his diaries, Richard Crossman referred to me as an "appallingly bad witness". This is just part of the reason why, and I suspect that those who have appeared before the Committee have not done their case justice. I am not saying that they were right or wrong. That is not the point. But appearing without a lawyer to be asked all sorts of questions equally by non-lawyers put anyone at a disadvantage which may not be justified by the case in hand.

On the subject of proceedings in the Privileges Committee, I wish to ask whether we are sure that there is not one law for the minnows and another for the mighty; one law for the prominent and another for the not so prominent. Frankly, in my case, whereas most members of the then Cabinet were reticent and kind, one of the most censorious of all was the then Prime Minister, my right hon. Friend the Member for Huyton (Sir Harold Wilson).

If I am to be hauled before the House of Commons with all the paraphernalia of a rebuke—it is a formidable experience—and if my hon. Friend the Member for Bassetlaw is to be hauled before the House of Commons in rather different but not wholly dissimilar circumstances, I want to know why the same censorious attitude should not be taken when my right hon. Friend the Member for Huyton goes into great depth in writing on the subject of South African arms. It seems that leaks from the Cabinet are OK, but premature discussion of a Select Committee report, which I thought had been printed, deserves the full-blooded censure of the House of Commons.

Hon. Members must make up their minds because we are all under the same law, are we not? [Hon. Members: "No."] I do not at this stage want to stir the pot of my right hon. Friend the Member for Huyton, but day after day we read in the Press about these matters. But on the issue of South African arms, if my right hon. Friend is to be fully censorious of a minnow such as me in prematurely revealing a Select Committee report, I think that the House of Commons, if it is to adopt my attitude, should have something to say about those who reveal what purports to be secrets from the Cabinet. There cannot be different rules, one set for a Back Bencher in my situation and another set for a former Prime Minister in the situation of my right hon. Friend the Member for Huyton.

I wish to ask a question of the Minister who is to reply, and I do not expect him to go into the details of the case. What is the philosophy involved here? Are there to be the same rules for those who have the misfortune to be taken to the Privileges Committee and those who seem to be somewhat loose about what purports to be secret matters? It is one thing or the other.

Mr. Strauss

I do not think that there is any disadvantage to the big boys compared with the small, but the difference my hon. Friend raises is simply that the Privileges Committee is responsible only for leaks from Select Committees on matters that Select Committee has been considering. If there is a leak before that Committee reports, that is a contempt of the House. That is all it is concerned with. It is not concerned with other leaks. That explains why the Privileges Committee acts only in one case or the other.

Mr. Dalyell

Precisely. This is a little difficult. It appears to be a matter of the House of Commons being far harder on its own, so to speak, in relation to the House of Commons than it is on the Cabinet. There are issues that should be considered. Under the system, Back-Bench MPs get stick from Cabinet heavyweights like Wilson and Crossman, who themselves, responsible for megaton leaks, get away scot-free.

I conclude by referring to some words of my right hon. Friend the Lord President. He said in a striking passage in 1968: anyone who has studied the history of privilege will see that whereas privilege in the days of Queen Elizabeth was about the protection of freedom, by the time of George III it was being used to oppress freedom. The sword for freedom was changed into a shield of secrecy. If that happened—I am not saying that it has happened again—it could happen again. Many of the civil liberties about which we boast most strongly in this country were established only by breaches of privilege. Nobody can deny that."—[Official Report, 24th July 1968 Vol. 769, c. 600] In these matters involving privilege it behoves every one of us to be extremely careful and to reflect before we set in motion the juggernaut of the Privileges Committee—which, I repeat, is a most formidable instrument.

11.20 p.m.

Mr. Michael English (Nottingham, West)

I shall be brief because the hour is late.

My right hon. and learned Friend the Attorney-General will recollect that he and I, among others, served both on what is called the 1967 Committee in this report and on the Joint Committee on the Publication of Proceedings in Parliament. I think that in general terms this report of the Committee of Privileges of which I was not a member but my right hon. and learned Friend was, is excellent, but some things are still missing, namely, the recommendations of the Joint Committee on the Publication of Proceedings in Parliament. The explanation for this is an oversight on the part of the office of my right hon. Friend the Leader of the House.

When the 1967 Committee report was referred to the Committee of Privileges there was no referral of the report of the Joint Committee on the Publication of Proceedings in Parliament. I raised the matter with the Clerk's Department, and through its good offices certain issues from the Joint Committee's report were mentioned to the Committee of Privileges, not the least being—it was probably the most important—the question of redefining what is a proceeding in Parliament to cover what is known historically as the "Strauss case". Oddly enough, the Joint Committee's examination in this context was not referred to the Committee. It has eventually been adopted by the Joint Committee, by the Faulks Committee on Defamation and by this report of the Committee of Privileges, all of which have accepted a recommendation which was drafted, as my right hon. and learned Friend will agree, by Lord Donovan, Chairman of the Joint Committee. If my memory serves me right, I do not think that any member of the Joint Committee disapproved of the draft that was put before it by Lord Donovan. It was an extremely good draft.

What concerns me is that so far the recommendations of the Joint Committee on the Publication of Proceedings in Parliament have not been put before the House. Some of its recommendations are extremely important. I shall not go through them all, but I mention one that suggests that that technicality of procedure, the motion for an unopposed return, should be capable of being opposed. The importance of that recommendation is that a motion for an unopposed return, which was last used in relation to the Fay Report on the Crown Agents, covers something with absolute privilege in the law of defamation. It covers with the privilege of this place a document that otherwise does not possess it. For example, we can say something defamatory about somebody and then deprive him of his right to sue in court for what is said about him by the process of passing a resolution of the House.

That may or may not be a good thing, but the Joint Committee, chaired by Lord Donovan, recommended that it should be capable of opposition, so that someone may say "Before you pass this resolution, we think that you should know that you are depriving Joe Bloggs of his right to defend himself in court, and that Joe Bloggs has another side to this case".

That seemed to my right hon. and learned Friend, to myself, to Mr. John Foster, the other then Member of this House on the Joint Committtee, and the three learned gentlemen from the House of Lords, to be a simple proposition, upon which, as I recollect it, we were unanimous.

There are several other proposals that I need not go into at this hour, but I point out to my right hon. Friend the Leader of the House that when the 1967 Committee report, which was unanimous, was referred to the Committee of Privileges, nothing was done about the report of the Joint Committee on the Publication of Proceedings in Parliament. There was one reason for that, namely, that at the time the report was published the Faulks Committee on Defamation was sitting. That is over and done with, and still nothing has happened. Before there is any legislation—and under the terms of the motion there must he legislation—may we have the appropriate resolution?

I believe that the 1967 Committee was united in saying that the right to impeach should be abandoned. Since 1967 Watergate has occurred, and perhaps that recommendation needs reconsideration. It is not necessarily true that everything we then said should be done applies today.

The House should have the power to fine. We have only the power to imprison. This is odd when the normal reason for a breach of privilege is that someone wants to put something in a newspaper which is sold for a profit, and receives advertising revenue, and by someone who is trying to increase sales and would not include items in it that would lower sales. We have no power to fine that newspaper. Instead, we have power to imprison some poor journalist who is only doing what his editor tells him to do. It is more appropriate that we should have the power to fine the organisation concerned rather than to put the heavy hand of imprisonment upon someone who is merely an employee of the organisation which has committed the offence.

11.28 p.m.

Mr. John Roper (Farnworth)

I wish the Minister to clarify a matter that has come to my attention since the debate began. The Lord President's motion states that we shall endorse those parts of paragraph 16 which do not require legislation for their implementation. That is clear, except for one of the miscellaneous recommendations of the 1967 Committee.

Recommendations 5 and 8 do not require legislation and we automatically endorse them. Recommendations 7, 10 and 13 contain certain specific references to legislation being required. But Recommendation 11 is unclear and ambiguous. I should like clarification on it. It states that The immunity of Members and Officers of the House from appointment as Sheriff should be abandoned and Members (and Officers of the House) should be free to accept the office of Sheriff in all cases which would not subject them to disqualification. The reason for the disqualification is the provision that it is improper for a man to be sheriff in a county in which his constituency falls because he may act as returning officer. But it is possible for him to act as sheriff in another area. That does not require legislation.

Mr. English

The English meaning of the word "sheriff" is different from the Scottish meaning.

Mr. Roper

I was referring to the situation in England, and possibly Wales; not in Scotland. We can consider that on Report on the Scotland Bill. There seems to be uncertainty about the requirement for legislation.

On page xxiii of the Select Committee's report we find the useful Appendix A to the memorandum by the Clerk of the House. In paragraph 11 he states that No Government legislation could be promised. It seems to me, re-reading the 1967 report, that legislation is not needed. I hope that the question whether legislation is needed on this matter of detail will be clarified by the Leader of the House. If that is not possible, may we be given an assurance that it will be clarified as soon as possible?

11.31 p.m.

Dr. Alan Glyn (Windsor and Maidenhead)

I should like to put two matters to the Leader of the House.

Following what was said by my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop), I am not clear why legislation is required. Why cannot we lay it on the Table? These matters refer almost exclusively to the House of Commons. Therefore, I should have thought that a simple resolution was all that was required. It may be that for certain technical reasons it is necessary, but I am sure that the House would like to know those reasons.

Secondly, what will be the effect between the time of the passing of the motion and the time when legislation is introduced?

11.32 p.m.

Mr. Maurice Macmillan (Farnham)

I should like to raise two matters—one of clarification and one of substance.

The clarification concerns Recommendation 7, which extends absolute privilege to the interchange between Members and Officers of the House and Ministers. I understand that up to now we have been governed by qualified privilege, as we would be in commercial or other dealings where there is no malice in a report imputing incompetence or something of that nature to an officer.

Where does that leave a Member in dealing not with a Minister or Government Department but with a local authority or similar body? Having read the report, I understand the position remains unaltered. For example, if I were to write to a local councillor and say that I thought one of the officers of the council was incompetent, I should be protected by the doctrine of qualified privilege. However, I should not attract the absolute privilege that the new change gives were I to write a similar letter to a Minister.

On the matter of substance, I think that we are being asked, rather late at night in a thin House, to abandon some powers that 10 years ago might have seemed unnecessary and, with the march of time, might seem a little less so now. I refer to the power to imprison and to impeach. I accept that there is a need for the House to be able to impose fines in certain cases. I follow the reasoning behind that need and accept it. But I do not see that the power to fine necessarily means abandoning the power to imprison.

I can, without difficulty, think of cases that could arise where either malice or a determination to denigrate the House as such might be shown by an individual using some form of publication where a fine would be ineffective because the organisation that published the document had no resources. It seems that we are abandoning the possibility of inflicting any kind of punishment in such cases.

It is not unknown for organisations and individuals to be happy to publish libels, because, as they have no money, they know that it will not be worth while suing them. That has happened before, and no doubt it will happen again. I do not see why we should abandon the power to imprison such persons, should they be in contempt of the House, because we are seeking to fine them in appropriate circumstances.

I agree that nobody has been impeached for 150 years, but that is not all that long in the history of Parliament. Impeachment was used for great political offenders whom the ordinary powers of the law might fail to reach. The last person to be impeached in Britain was Lord Melville of Dundas, in 1806, for dishonesty in charge of a public office. It seems to me that impeachment was a valuable weapon when Ministers and others had the capacity to dispose of patronage on a valuable scale, and the capacity, because of their position as Ministers, to engage in activities which brought them great personal reward but which were if not illegal at least improper from the point of view of their conduct as Members of this House.

I regret that it seems to me that we are getting back into that era. I am not making any statements or suggestions about the integrity of the present Government, or any future Government that we are likely to see. I am merely saying that we are getting back into an era where more than 40 per cent. of the gross national output is under the direct or indirect control of Ministers. I can imagine circumstances in which it could be difficult to bring an action at law but where it would be improper for this House to let pass certain conduct by Ministers without doing anything about it.

The processes that are now open to correct such behaviour can lay great burdens and strains on the innocent. Just as there is an argument, which has been put forward tonight in favour of one of the proposals, that it might mean that no publicity is needed when no publicity is deserved, so the power to impeach could mean that a certain type of inquiry need not be set up when such an inquiry could involve evidence that would possibly be cruel and unfair to those who are innocent. This is not a power that we should lightly give up.

I hope that we can be assured that in passing this motion, if we do, the points that I have made do not automatically follow, and that we are not necessarily voting for those recommendations which the report says require legislation, because some of us would have grave reservations about doing that.

11.39 p.m.

Sir Michael Havers (Wimbledon)

I congratulate the Chairman of the Select Committee not only on the customary skill and courtesy that he showed in obtaining a unanimous decision from that Committee but on the report, which reads so well. I was proud and happy to serve as a member of that Committee under his chairmanship.

Some of the amendments that have been suggested can only increase the dignity of the House. They will ease the difficult task of Mr. Speaker and have the added advantage of giving time for tempers to cool and, perhaps, for wiser counsels to prevail.

On the question of the remedy at law, where the proposal is that if there is a clear case of defamation the Member of Parliament should take it to the courts rather than seek a reference to the Committee of Privileges, I think that double right can be just as objectionable as double jeopardy; the double jeopardy; that applies, for example, to a police officer who may be faced not only with trial in a court for an act, but with disciplinary proceedings. It also has the advantage that it creates a limitation to the House itself being brought into contempt proceedings where they do not involve the House at all. Therefore, I suggest to the House that this proposal is sensible and should be adopted.

The question of absolute privilege for Members when acting in the course of their duties is essential, because it is very important that the exchange of information in matters involving a Member's responsibilities should be absolutely privileged. A Member should not be under any threat or fear of an action for defamation when doing his job. There is a bonus referred to in the report, that if this recommendation is accepted it will largely avoid the use of the cloak of privilege by the Member having to raise the matter on the Floor of the House to protect himself, and will thus avoid the damage that may follow an honest mistake by a Member if it turns out to be unjustified. The cloak of privilege is a valuable protection, but one which must not be abused. I am sure that Members always bear that in mind.

I was impressed by the point made by the right hon. Member for Farnham (Mr. Macmillan) about power extended to local authorities. Members are increasingly involved in local authority matters as well as in matters involving central Government. The obligation that we have to be frank in our communications with officers of the local council as well as with ministers and civil servants in Government Departments involves us in having, perhaps, to stake ourselves to some extent by carrying out that duty of frankness when communicating with these officers. It may well be that we should look again at the obligations of Members when dealing with the immense responsibilities they have in respect of local government affairs.

It seems quite astonishing that this House does not have the power to fine though it has power to imprison and to do practically everything else. I agree that imprisonment should be abolished, but it would be nonsense to leave no sanction beyond reprimand by Mr. Speaker. I was as moved and impressed, as I am sure every Member was, by the speech of the hon. Member for West Lothian (Mr. Dalyell), who made clear to all of us the tremendous impact that had been made on him. The scar will remain with him for life, I am sure, and the reprimand that he suffered. I share with him a feeling that he, the minnow, should be brought before the Committee of Privileges while an ex-Prime Minister, the last eight or nine days' Press reports of whom must be the most disastrous of any Prime Minister this century, can apparently, if the hon. Member is right, leak Cabinet secrets and not be brought to book in any way.

But what happened to the hon. Member is something which I am sure meant more to him because he is a respected Member of this House, and is proud of the job he does. He felt the reprimand all that more sadly.

The Select Committee report of what happened in the Australian case shows that it was said openly that the intention of the editor and the newspaper proprietor was to shut up that MP and prevent his speaking. In these sorts of cases a reprimand might be a total waste of time. If we are to abolish imprisonment and not send people to the Tower we must have another sanction rather than a reprimand in cases where people simply do not give a damn about it. These are not cases where a fine would be impotent.

If one has cases where there is a deliberate attempt to influence hon. Members' conduct by threatening to withdraw financial support, a reprimand would be clearly inadequate. I think that the penalty of a fine is right.

I listened with interest to my hon. Friend the Member for Tiverton (Mr. Maxwell-Hyslop), who has almost become the keeper of the conscience of the House in recent years. He criticised the idea of the imposition of fines. He said that these would be paid by employers and trade unions. One can always find examples in which any penal sanctions will not be adequate in particular cases. One could say that a fine of £100 is nothing to a company director with a Rolls-Royce, but it could be disastrous to a lorry driver with no overtime. One cannot say that because in certain cases a penalty is not effective we should do away with the idea altogether.

There could be no limit to the fine that this House could impose. It could amount to thousands of pounds. If the person concerned were employed by a nationalised industry or was working for a trade union the case might involve the similar rights of the district auditor. Fines may be the right way, but we must keep a sense of proportion and accept that no system is perfect.

Justification is one of the problems that has exercised the Committee of Privileges for years. In the short time that I have been a member of the Committee I have found that this long-standing problem has exercised my mind. The traditional approach cannot be right when there is complete justification available to the person accused of committing contempt. He may have a tape recording, or correspondence, or a most valuable and credible witness to support his case. It is quite astonishing that there has grown up a tradition in that Select Committee that evidence is not to be admitted because it is not the Committee's purpose to decide whether there is justification, its purpose is simply to establish whether there is a prima facie case of contempt.

That is not the way of natural justice. If a man acts in a way that totally disqualifies him from being a Member of Parliament, and this can be proved, it is quite wrong that the person bringing the allegation can be found guilty of contempt. I was very glad that we could to some extent alleviate that rule, which has existed for a long time.

The Committee has made a number of recommendations, some of which cause anxiety to my hon. Friends. Matters that need legislation will not affect the resolution tonight. The House will have the opportunity to discuss these when the Government, in their own good time, bring forward legislation to deal with these resolutions.

I agree with my hon. Friend the Member for Tiverton that the wording of the motion is slightly muddled, but we want the House to agree to the resolutions that do not require legislation. These seem to improve the integrity of the House and appear to make us less laughable outside, when one considers some of the trivial things that have happened. The resolutions impose a cooling-off period, and ease the task of Mr. Speaker.

Mr. Maxwell-Hyslop

In connection with his interpretation of That the House agrees with the Committee of Privileges in their Third Report… will my right hon. and learned Friend look at Recommendation 15? This says that if there is power to fine, the power to imprison ceases. Legislation on this is recommended.

Since it does not require legislation to remove the power to impison—a simple resolution will do that—the passing of the motion agreeing with the recommendation that the power to imprison should cease will terminate the power. Or will it? What does the resolution mean?

Sir M. Havers

I made the position quite clear in my speech.

11.50 p.m.

The Lord President of the Council and Leader of the House of Commons (Mr. Michael Foot)

Like the right hon. and learned Member for Wimbledon (Sir M. Havers), I wish to pay my tribute to those Members of the House who have contributed most to producing the proposals now before us. I add one other name to those which have been mentioned. My right hon Friend the Father of the House—the Member for Vauxhall (Mr. Strauss)—has a special interest in this matter, as he indicated, because he played a leading part in what I suppose was the most famous privilege case over a long time—the Strauss case. He referred to it again today. One of the deficiencies of the position today is that we are not finally able to dispose of that matter, but I assure my right hon. Friend as soon as we can—I cannot give him an absolute definite date—we will seek to introduce the legislation which we believe is required to carry out that part of the matter dealing with the procedures in Parliament to ensure that there shall not be a repetition of the Strauss case.

Not only did my right hon. Friend play a leading part in the Strauss case, and not only did that case play a very big part in shaping the whole attitude of Parliament towards privilege; perhaps it was the guilty conscience which the House of Commons had about the vote which it took in that case that prepared the way for subsequent changes and the establishment of the Committee under the chairmanship of my right hon. and learned Friend the Attorney-General, which produced the report of 10 years ago to which my right hon. Friend the Father of the House paid tribute and to which every hon. Member who has seen the development of this matter must also pay tribute. It was that report that persuaded the House to change its mind on privilege generally.

I also wish to pay another tribute, as other hon. Members have done. The hon. Member for Tiverton (Mr. Maxwell-Hyslop) did this and I acknowledge that part of his speech, at least.

The advantage of the long interval of about 10 years since the production of that report is that we have had the document produced by the Clerk of the House—the document that was presented to the new Committee of Privileges which considered the matter. Anyone who reads that document will see that it is a masterly one. It comprehends the whole history of privilege in a way that perhaps no other document has done in the same space of time. It makes recommendations to the House which are so persuasive that the Committee had very little dissent in reaching the conclusion that it did. It also illustrates what I believe is the fundamental reason why we had to make a fresh approach to the whole matter.

I want to refer to those hon. Members who have discussed the question of which aspects of the matter still require legislation. I have already referred to the major question which requires legislation—the definition of the phrase of "proceedings in Parliament". It may be that we could deal with that in a separate Bill. If we were to have a Bill dealing with all the remaining matters requiring legislation it would be a considerable Bill. I am not eager to produce considerable constitutional measures to present to the House at this time, despite the skill and aptitude at getting such matters through the House that we learn as we go along.

It may well be, particularly in view of the discussion that we have had today, in which I do not believe that there has been any real dissent from the proposition as to how we should proceed in this matter, that we could deal with the matter in a short, one-clause Bill. I should like to consider that proposition in the light of the representations made by my right hon. Friend.

That does not exclude the other matters. I am not saying that we would exclude the matter raised by my hon. Friend the Member for Nottingham, West (Mr. English), but to deal with all the questions requiring legislation would mean a considerable Bill.

I believe that the matter of the sheriff requires legislation, although it may not be absolutely apparent from a reading of the motion. I am not suggesting that the matter is of such momentous character that it would hold up all our parliamentary processes, but it is considerable.

The question raised by my hon. Friend the Member for Nottingham, West would involve further and larger questions. I do not say that they could be dealt with in a single clause, but we shall see whether we can deal with the matter in any possible legislation. However, I do not give my hon. Friend any promise in that respect.

Mr. English

I am trying to help my right hon. Friend. I think that he will find it insufficient simply to change the definition of the phrase "proceedings in Parliament", without deciding on all the other matters that the Joint Committee decided in relation to who had absolute privilege and who had qualified privilege in defamation, which are not the same, as all lawyers in the House know. The matter becomes difficult then.

I asked my right hon. Friend—I asked only for a modest assurance—to bring the Joint Committee report to the Floor of the House, and preferably to the Floor of both Houses, so that we might consider the items in it that do not require legislation, on a motion similar to the one before us. The example that I gave was the unopposed return. Legislation is not needed to allow hon. Members to oppose an unopposed return.

Mr. Foot

As my hon. Friend and the House will have seen from the proceedings and discussions tonight, even non-controversial matters of this kind take up quite a lot of time. Even the non-controversial matters in the previous debate took a considerable time. We were seeking to reach an agreement with my hon. Friend. I am sure that he was trying to help, but we did not succeed in reaching agreement. We took up three hours of precious parliametary time. Every half second of parliamentary time is precious to me. That is why I shall curtail my remarks as much as I can, but it would be discourteous not to reply to some of the other points raised in the debate.

The right hon. Member for Farnham (Mr. Macmillan) questioned the advisability of proceeding with the abolition of the right of impeachment. Legislation is required to deal with that. I can understand that impeachment was a weapon used by the House centuries ago. There would be some disquiet over removing it altogether, but all such questions would be debatable when the legislation was introduced. Legislation certainly would be needed to deal with that matter. Again, I cannot promise that we would include all these legislative proposals in the same measure.

From what hon. Members have said today, and on the basis of the experience of the House over recent years, it is clear that the question involved in the Strauss case is more important than any of the others to be dealt with, because it involves the day-to-day business of Members of Parliament. The sooner we can deal with that, the better. I should not like to have that matter hobbled by having to deal with all the other questions.

The question of imprisonment and fines, on which we should have to have legislation, also raises controversial matters. I believe that many hon. Members would wish to argue those issues and that therefore we would not get the rest of these proposals through so easily. I would not like to have to involve that question in a major Bill.

It is right that the House should change its whole approach to privilege. Part of the general case for doing so was put by my hon. Friend the Member for West Lothian (Mr. Dalyell). The case in which he was involved and the procedures involved were, as he quoted the Prime Minister as saying, a form of blood ritual. It was an obscene affair. In many respects an injustice was done. I am not saying that my hon. Friend ws guiltless in every respect—I do not think that even he was claiming that—but I believe that the whole procedure which operated and the way in which it led to the macabre incident at the end was an absurdity and a travesty of justice.

It is because so many people in many of these privilege cases have been involved in travesties of justice that I have always been in favour of trying to see whether the way in which we deal with privilege can be changed. The proposal of the Attorney-General was designed to ensure that justice should be done in a much better way. When we had the first debates on his report nothing was done. When I was a Back-Bench Member I made the threat to the then Leader of the House—Leaders of the House come and go, and I forget who it was—that if he continued to bring forward privilege motions of the old character and in the old form, without any recognition of the report of my right hon. Friend's Committee, I would seek to oppose every privilege motion put forward. For many years I did so. We helped the procedures of the House in that direction. I believe that we were quite right.

That is all the more reason why I am gratified, as Leader of the House, to be trying out the same ideas from this Dispatch Box as I was putting forward when I was on the Back Benches. If we carry these proposals many fewer proposals for references to the Committee of Privileges will come forward. Certainly they will not be moved from the Government Front Bench, because one of the provisions of the recommendations is that they should be moved by the individual hon. Member concerned. I think that that would be a more positive way of doing things.

What we are seeking to do here, as a result of the unanimous report of the Committee that looked into these matters is to say that in future we shall not repeat the mistakes we made in the case of my hon. Friend the Member for West Lothian and in many others. People outside this House have been unjustly treated, too.

There are two sides to the privilege coin. On one side it is essential, for the authority and rights of this House, and essential if the hon. Members are to perform their functions adequately, that there should be an absolute right for hon. Members to be able to speak freely in this House without any intervention from monarchs, newspaper proprietors or whoever it may be. People in this House must be allowed to speak freely and be relieved of any fear that they may be brought before the courts on a libel or slander action. Of course, they must act responsibly, but they must have that right.

That is a privilege enfolded in the history of British Parliament going back to the days long before Queen Elizabeth, when it was the right of hon. Members to speak here irrespective of what the monarch might say. Now it is essential that hon. Members should be able to speak freely, irrespective of any outside influence. That is an absolute necessity for the maintenance of this Parliament.

I believe that with that right there goes something else, because often the privilege of Parliament has been interpreted differently. Often, cases are raised in which protests are made about criticism of Members of Parliament. That is a different kind of privilege. I am not saying, and these proposals do not say, that there must not be any form of protection at all for Members of Parliament who are subject to attacks and criticism and assaults by newspapers or others outside the House. But because Members of Parliament are relieved of the laws of libel and slander in the way that they can operate in this House—and that position must be sustained—all the more, for that reason, should they not be sensitive about criticisms made from outside.

There may be cases where things which are said or done outside interfere with the right of a Member to do his duties properly. In those cases action might still need to be taken, but in the vast majority of such cases the Member who insists on his own right to speak freely here should also seek to insist on the right of other people to speak freely outside. It is the combination of those two things. I believe, that we have sought to secure. That was what my right hon. and learned Friend the Attorney-General and those working with him sought to secure in the court 10 years ago, and it is that same balance that we seek to secure in these proposals. In fact, as the Clerk of the House said in his memo-randum—

Mr. Peter Emery (Honiton)

The right hon. Gentleman has pointed out the fact, which is of great importance, that a motion on privilege will now be moved not by the Leader of the House but by the hon. Member who has brought it to the notice of the House. The right hon. Gentleman would have suffered himself, in that often in the past the support for a matter to go to the Commitee of Privileges has been through hon. Members, not knowing much about it, having to support the Leader of the House. Although the right hon. Gentleman may not think so, this is frequently what hon. Members want to do.

As we are starting a precedent here, will not the Leader of the House make it clear that when an hon. Member has to draw such a motion to the attention of the House in future it should not be something which is whipped or in any way decided upon in a party sense? It should be a House of Commons matter, on which Members make up their own minds, depending entirely on how they feel about it.

Mr. Foot

In my experience as Leader of the House I have not noticed any automatic desire on the part of the rest of the House to follow any recommendations that I make as to what courses should be taken. Privilege matters are House of Commons matters, and there has never been any Whip on such matters as far as we are concerned, and I do not believe that there should be. Even so, I think it is much better that it should be done by the Member who is raising the matter, and that is one of the proposals that is made.

However, it is not an absolute novelty that we should approach these matters with caution. I am glad to say that there is a very good authority for what I am saying. It was quoted by the Clerk in the memorandum that he presented to the Privileges Committee. He said, in paragraph 10, on page xii: Thus Mr. Gladstone in speaking of a complaint of contempt said 'I think we should proceed in these matters with great caution, with great reluctance, and if my hon. Friend (Mr. Labouchere) had consulted me, I should have ventured to dissuade him from taking the course he has '. That is the kind of way in which, on many occasions, I should have liked to speak to Members on my own side and to Opposition Members who sought to raise hasty privilege questions.

I agree with my hon. Friend the Member for West Lothian that the should be a proper way of considering whether it is advisable to proceed in such cases. It does not mean to say that the protection should be removed altogether, but it does mean that we do not want to rush to the Committee of Privileges to try to protect Members from the violence of debate throughout the country generally.

I believe that the whole House has accepted these general proposals. I noted what was said by the hon. Member for Tiverton. I grant him this much, that the first part of the motion could have said "take note', but I do not think that it would have made much difference to the tone of the debate or to the manner in which the House has received the question. I grant that that might have been done, but what we are proposing is clear enough.

The report represents the unanimous will or desire of the members of the Committee. The Committee represents all sections of the House. My hon. Friend the Member for Bolsover (Mr. Skinner) complained that there were no members of the Tribune Group on some other Committee, but I am very glad to say that on this Committee there was the most eminent of all members of the Tribune Group, my hon. Friend the Member for Bethnal Green and Bow (Mr. Mikardo). He signed the recommendation. Therefore it must be, in that sense, good enough for everybody.

On that basis, I ask the House to approve the motion. Of course, we shall proceed to produce later the legislative proposals required. I do not promise that we can do that all in one Bill, but I promise that we shall look immediately at the question raised by my right hon. Friend the Father of the House, and I certainly think that we have a right to put that matter right.

I remember very well the battles that we had in the House on that matter. The whole House was shaken on those issues, and by a very narrow majority indeed the quite unwise decision was made that my right hon. Friend was wrong. I am very glad that the whole House now accepts the view that he was right. I shall be very eager to try to put that in proper legislative form and carry it unanimously through the House.

Therefore, I ask the House to pass these proposals. I believe that they are important proposals, because the privilege of this House is important. I believe that what we are proposing will protect much better the necessary privileges of this House while discarding all the fripperies and trivialities that have sometimes surrounded them.

Sir M. Havers

Will the Leader of the House also consider the question of local government communications in similar cases, which may be very important, for the reasons that I have given?

Mr. Foot

Yes. That raises larger questions still. My motto is "One little Bill at a time," so we get them through one at a time. With the right hon. and learned Gentleman's support, we shall look at that matter as well.

Question put and agreed to.

Resolved, That this House agrees with the Committee of Privileges in their Third Report in the last Session of Parliament on the Recommendations of the Select Committee on Parliamentary Privilege (House of Commons Paper No. 417), and declares that the Recommendations contained in paragraphs 4, 5, 6 and 9 of the Report, and those in paragraph 16 which do not require legislation for their implementation, shall have immediate effect.