§ 3.53 p.m.
§ Mr. Speaker
Before I call the Lord President. I must remind the House that the sub judice rule applies to the cases that are still before the courts.
§ Mr. Alexander W. Lyon (York)
On a point of order, Mr. Speaker. This debate arises out of an incident on 20th April and the ruling which you gave the following day, on 21st April. I have put down an Early-Day Motion, which is still on the Order Paper, that the ruling should not be cited or drawn into precedent. My understanding was that such a motion, having critical implications for you, Mr. Speaker—although we are discussing the reasons for the ruling rather than your personal conviction—should be debated.
I am now assured that this is not true, but it would be more convenient that this point should be discussed in the debate because it relates to this issue. If I am called, I should like to speak about the proposition that I have tabled. Because it is somewhat critical of you, Mr. Speaker, does this mean that I am in any way prevented from doing so?
§ Mr. Speaker
Not at all, not merely because it is critical of me. Nobody would ever be prevented from speaking in such circumstances. But no doubt I would remember it, because I am as human as anyone else.
The hon. Member for York (Mr. Lyon) is learned in the law and I am sure that he will keep within the sub judice rule. All I am asking is that everyone should observe the sub judice rule and not refer to the cases that are now before the courts for consideration.
§ 3.55 p.m.
§ The Lord President of the Council and Leader of the House of Commons (Mr. Michael Foot)
I beg to move,That the matter of publication of the Proceedings of the House, other than by order of the House, in so far as the Privileges of this House are concerned and the matter of the application of the sub judice rule during 37 Business Questions on Thursday 20th April be referred to the Committee of Privileges.I shall be very brief in moving this motion. I believe that it would be desirable if we could proceed fairly rapidly, pass the motion and let all these matters be considered by the Committee of Privileges. This is the most orderly and fair way of dealing with the various matters that have been raised by motions upon the Order Paper.
It is certainly my belief that the motion we have tabled should and would enable the Committee of Privileges to discuss all the motions that have been put on the Order Paper, to make its comments on them and then report to the House. That also applies to the motion of my hon. Friend the Member for York (Mr. Lyon). It is the case that the only way in which the House can criticise the Speaker is when such a motion has been put down for debate. This is the right way to proceed. However, I do not believe that it would be possible for the Committee of Privileges to consider these matters without taking into account Mr. Speaker's ruling on that day and the motion on the Order Paper in the name of my hon. Friend the Member for York.
Having made clear to the House that this motion is intended to, and in fact does, secure a situation in which all these matters can be properly considered by the Committee, I suggest that the best course of action is for the House to pass the motion as speedily as possible, allow the Committee to look at all the questions and then report to the House.
No doubt when that report is made, there will have to be a debate because the matters raised in all the motions, and in my motion, too, are very important for the House. I am not minimising their importance, but precisely because of it, I believe that the best way to proceed is to enable the Committee of Privileges to review the whole situation.
§ 3.57 p.m.
§ Mr. Francis Pym (Cambridgeshire)
We believe that it is the right and proper procedure to refer this whole matter to the Committee of Privileges. The events at business questions on 20th April and what was said on that occasion raise significant issues for the House. They gave rise to two rulings by you, Mr. Speaker, a number of Early-Day Motions and a 38 certain amount of speculation and uncertainty in the media and the Press.
At the time of these events, no hon. Member present was aware of any connection between the questions asked by four hon. Members of this House and a particular court case, because no objection was raised at the time and no attention was drawn to the matter.
Since then, several opinions have been expressed about the way in which those four hon. Members raised the question. It is not for me to comment on that, because in this case the reference to the Committee of Privileges is the right course.
However, there is some urgency here. A number of complex aspects of privilege and the reporting of our proceedings outside this House are raised and should be decided on with a minimum of delay. It is very important that there should be no repetition of what happened on 20th April.
Any breaching of our own rules is obviously an extremely serious matter which the Committee of Privileges will have to consider very carefully. But in the case of the sub judice rule, unless this is strictly observed the process of justice itself is in danger. That process is what the rule itself is designed to protect. It is the fundamental principle that we in this House should observe the orders of the court. I always understood that this was fully accepted by the House.
In addition to the application of the sub judice rule, there is also the important consideration of security—both personal and national. There may be, in some cases, very good reasons for a court to require anonymity in respect of some witness, apart from any consideration of protecting the judicial process. Even in the absence of any court case or legal proceedings, there are people in the security services whose identity should never be revealed for their own and their families' sake, for their own safety, and because it would be contrary to the public interest.
The House attaches much importance to the security of our country. It would be appropriate for the Committee of Privileges to consider the implications of this possibility which, in part, arises from the wider issue that we have to face of 39 the reporting of the proceedings of Parliament by live radio and the question whether the Official Report is to remain the only report exempt from a possible contempt of court.
I ask a question of the House, which I am sure will arise in the Committee of Privileges. Ought we not to consider the suggestion that was first made by my right hon. Friend the Member for Chipping Barnet (Mr. Maudling) in The Times last Thursday that if it transpires that something has been said which ought not to have been said, Mr. Speaker should have a right, a duty or a responsibility to order those words to be expunged from the record? That is one way of dealing with the matter.
§ Mr. Pym
The hon. Member for Penistone (Mr. Mendelson) is entitled to hold that view. The matter was raised originally by my right hon. Friend the Member for Chipping Barnet, and I think that it is a matter for consideration.
The Lord President has assured us again, as he assured the House last Thursday, that the motion is drawn in the widest possible terms so that all the circumstances surrounding the events of that day can be considered by the Committee of Privileges, and I have no doubt that it will do so. The assurance of the Lord President was strong enough to enable my hon and learned Friend the Member for Runcorn (Mr. Carlisle) to feel that it would be right and proper to withdraw the Early-Day Motion which he had placed on the Order Paper in relation to the four Labour Members.
All these matters should now be considered by the Committee of Privileges with urgency. Accordingly, we on the Conservative Benches believe that the motion should be accepted.
§ 4.2 p.m.
§ Mr. J. Enoch Powell (Down, South)
It is the custom of the House, when it 40 is found that a question of privilege should have precedence over the Orders of the Day, to commit the matter, usually without more ado, to the Committee of Privileges. I believe, however, that in a case such as the present one it is proper and advantageous that the House itself should have the opportunity of expressing a general view before it commits the question of privilege to the Committee of Privileges.
The origin of the matter was the issuing of a statement by the Director of Public Prosecutions which said:It is not accepted … that the publication of his name"—that is, of something said in the House—would not be a contempt of court, even if it was part of a report of proceedings in the House.I cannot imagine a more direct assault upon the essential privileges of the House than that proposition. It has from time immemorial been the privilege of the House to say in this place things that would lay the speaker open to proceedings if he said them elsewhere and to say them in this place without any danger of proceedings of any kind being brought on that account. If we did not have that privilege, we would be incapable of serving the purposes for which the House exists, either on behalf of the nation or on behalf of individual constituents, and our own personal responsibilities would be reduced to a very poor thing.
When this privilege was first established and defended, it was probably not primarily against proceedings of courts outside or against the consequences of what we said being reported outside that we sought protection. We sought it in the first instance for the security of debate and deliberation amongst ourselves and to secure entire candour in what was said amongst us. However, those days have long passed. Today it is impossible to distinguish between the privilege of hon. Members of the House to speak under privilege here and the right to have what they say here published. For if it were merely our privilege that we might say what we would in this place but what we said could not be reported outside, that would, in contemporary circumstances, serve very little purpose.
It seems to me, therefore, to follow that immunity from proceedings for the publication in any natural manner— 41 the reporting in any natural sense of that term—of anything said in the House is an essential part of the privileges of the House and that it cannot be infringed without infringing those privileges. The statement of the Director of Public Prosecutions did exactly that. He said that there would be liability to proceedings outside the House in respect of a publicationeven if it was part of a report of proceedings in the House.There was nothing in those words which distinguished what is called the Official Report—or Hansard—from other reports. Nor, I submit with great respect, is there any such real distinction. The Official Report enjoys certain privileges—not privilege in the sense in which we are debating it this afternoon—it enjoys a special position by favour of the House. You, Mr. Speaker, have certain duties and responsibilities in regard to the Official Report. However, it is not official in the sense that it is the record of what is decided in the House. That record is the Journal of the House. I do not think, therefore, that it is possible to distinguish between a report in a newspaper of proceedings in the House and a report in the Official Report.
The Official Report, by its nature is or purports to be complete. But in no natural sense can a report of a debate which was less than complete, if it was clearly intended as a genuine report of what was said, not be regarded as attracting, logically and necessarily, the protection of privilege.
Before this matter goes to the Committee of Privileges, it ought to be said in this place that the threat of proceedings against the genuine publication of what is said in the House is a high and manifest breach of the House's essential privileges. If that breach became established, the value of our privilege of freedom of speech would be gravely impaired.
It is the counterpart of our immunity against the outside world that we are under our own discipline. It is the counterpart that we make our own rules, that we enforce our own rules and that we discipline those of our membership who infringe those rules. That is how the question of our rule against reference to proceedings that are sub judice came to be brought into this matter.
42 I say in passing—and I trust that in doing so I am neither infringing the rule nor offering the least degree of disrespect—that I am not clear whether what was said by the hon. Member for Barking (Miss Richardson) and other hon. Members conflicted with the sub judice rule.
§ Mr. Speaker
I am sorry to interrupt the right hon. Gentleman, but he is getting dangerously near the case in which this very fact is a matter of dispute.
§ Mr. Powell
If I may continue my speech—and I shall not detain the House unavoidably—I hope that I may be allowed to refer to the case that is sub judice—not to refer to its content, but to identify the case. I understand it to be the question whether contempt of court was or was not committed by certain other persons, not being Members of this House. I understand that the matter that is sub judice concerns whether there was a contempt of court by other persons doing, saying or publishing certain things. I must confess I cannot see that for an hon. Member to make a statement that does not concern the merits of that case can be a breach of the sub judice rule.
However, Mr. Speaker, if I have said anything that offends in that respect, I apologise. My only intention was to indicate that, having the sub judice rule and being conscious of its importance, we must nevertheless be extremely nice in ensuring what does and does not constitute the mention or discussion of matters that are sub judice.
As regards the breach in debate of this, that or any other rule of our procedure, it is the duty of hon. Members, to the best of their ability and knowledge and as they are advised at the time, to speak in accordance with the rules of the House; and it is the duty of the Chair, similarly subject, to prevent them from proceeding if they are in breach of the rules.
For example, an hon. Member who quoted a speech made in another place, other than by a representative of the Government, would be pulled up by the Chair and reminded that he was out of order in doing so. There is no difference 43 in kind between that intervention in an hon. Member's speech and an intervention by you, Mr. Speaker, or another occupant of the Chair, to point out that he is in breach of the sub judice rule.
§ Mr. Powell
I am not sure that it is easy to distinguish between the degrees of heinousness of a breach of one rule or another.
What is open to censure on the part of an hon. Member is not that he lays himself open to being reminded by the Chair that he is breaking one of our rules of debate. We all do that from time to time. He lays himself open to censure if he persists in it; and if he were to persist in it contumeliously, no doubt the House would proceed to disciplinary measures against him.
The point that I want to establish is that even if there is a rule of the House that may be broken in debate, that does not annul what has been said up to that point nor place what has been said in a different category, for the purpose of our privilege, from anything else that is said in the House.
That brings me to the suggestion of the right hon. Member for Cambridgeshire (Mr. Pym), which I heard with a frisson of horror, that we might adopt a practice whereby if the rules of the House had been broken or—and I understood the right hon. Member to carry his suggestion further—where an hon. Member was thought by you, Mr. Speaker, or by the House to have mentioned matters that might be against the public interest, the order could be given that his words should be expunged from the record or that they should not attract the protection of privilege. I can think of nothing that would be more dangerous than this approach to our freedom of speech.
I am sure, Mr. Speaker, that you will acquit me of any suspicion of intending disrespect or criticism, but I should like to refer to something you said last Monday. You said:Our privilege is something that was dearly obtained by our predecessors, but if it is abused it will be endangered.—[Official Report, 21st April 1978, Vol. 948, c. 866.]44 With the greatest respect, a privilege which cannot be abused is no privilege, for that which constitutes abuse is a matter of opinion and it is part of the privilege of this House and of individual Members to be able to say in this place not only what they could not say outside without risk of process but to be able to say that to which grave objection is taken by every other hon. Member. Unless an hon. Member could do that, or if it were possible for his doing of it somehow to be undone, we would have lost our power to serve those who sent us here.
It so happens that, though I did not catch the actual words of the hon. Member for Barking on the relevant occasion, I took some objection, as a matter of taste, to her decision to utilise what I regard as her undoubted privilege. I am not on the matter of sub judice now; I am on the matter of privilege. Speaking loosely, I might have said that the hon. Lady was abusing her privilege. But there is no real distinction in this context between using and abusing privilege, or, if there is, it is a subjective decision—a matter of taste and of no more than of taste.
§ Mr. Reginald Maudling (Chipping Barnet)
Is it not a fact that, whereas an accusation can be withdrawn, a disclosure cannot? If an accusation is made contrary to the rules of order, it can be withdrawn. What is to be done about a disclosure which is made contrary to the rules of order?
§ Mr. Powell
I am coming to the question of disclosure and retroactivity, but for the moment I am concerned with the non-existence of a real distinction between the use and abuse of our privilege. Indeed, the only distinction is that a use of privilege is that of which hon. Members generally approve and an abuse is a use of which hon. Members generally, or perhaps the organs out of doors, happen to disapprove.
§ Mr. Onslow
Would the right hon. Gentleman therefore say that he is unable to draw a distinction between an inadvertent breach of privilege, based on ignorance, and a deliberate breach for purposes and motives that may be generally taken exception to inside and outside the House for the very best of national reasons?
§ Mr. Powell
I am sure that the use that the hon. Member for Barking made of her privilege—and it was a use of privilege, not a breach of privilege—was intentional. It is of the essence of our privilege that we can use it intentionally and not accidentally. On other hand, I am prepared to believe, and I think it probable, that her breach, if it were a breach, of the sub judice rule was unintentional. Nevertheless, the hon. Member for Woking (Mr. Onslow) will be aware that sometimes we in this House go as far as we can until the Chair draws our attention to the fact that we have strayed over the line. It is not unknown for the Chair to be slightly blind and slightly deaf.
I address myself now to the question put by the right hon. Member for Chipping Barnet (Mr. Maudling): an hon. Member has said what, vis-à-vis the outside world, he undoubtedly has unqualified privilege to say; but though it appears that in doing so he has been in breach of the rules of the House, the words are said—nescit vox missa reverti—and they are reported. I maintain that those words said in this House up to the moment when the hon. Member, on the instruction of the Chair, resumed his seat are as much things said in this House as any others. They attract the same privilege in this House and, by parity of logic, must attract the same qualified privilege outside it. Any notion is to be dismissed that we can, as it were, retrospectively unsay that which has been found to have been said contrary to the internal rules of the House.
There is a final and recent aspect of this case which is interesting, although perhaps not fundamental. It is the fact that the reporting of this House, due to a decision of the House which I resisted and regret, is now taking place instantaneously as well as subsequently, or, at any rate, is sometimes taking place instantaneously as well as subsequently.
If we were to make a rule that the reporting of this House was somehow to be censored—that items which were in contravention of the rules of the House or, still more outrageously, items which if spoken elsewhere would attract proceedings were to be cut out—I shall tell the House what would follow. There would 46 have to be a switch in a certain place not far from here, and the question would be asked "Whose finger on the switch?" I shall describe, although I cannot identify, the individual whose finger would be on the switch. He must be an individual who has an even more profound knowledge of the rules of this House than yourself, Mr. Speaker; who has an encyclopaedic knowledge of what is in agitation in the courts of the land from Land's End to John o' Groats; and he must be a person of such swiftness of perception that he can anticipate the words that are about to issue from an hon. Member's mouth before he has spoken them.
This diverticulum of our difficulties we could excise, as I hope we shall excise it, by discontinuing what I regard as an undesirable practice. But we shall still be left with the necessity of defending, in the reporting outside as well as in the saying in this House, our undoubted and historic privilege and of distinguishing completely between the discipline which this House exercises over its Members and the privileges of this House.
The discipline which is exercised over Members is not in itself a matter of privilege. It becomes a matter of privilege, or, perhaps more accurately, of contempt, only if there is a breach of the rules of the House which is found to amount to contempt. But in themselves the rules of the House are not rules of privilege; they are internal rules of proceeding. Our maintenance of those rules can in no way impair either our privileges in this House or the implications for the reporting of our proceedings outside.
I hope that the Privileges Committee when it takes this matter in hand will be fully aware how profound are the matters upon which its advice is being sought. I hope that it will understand that it is the most objectionable uses of the privilege of this House which are the most vital to its functions. If we go back through the history of this House, we find that very often it was the possibility of things being said in this House which were detestable to those who heard them and to those outside which led to the broadening of our liberties. I would not wish this House, in this year, to be a party to the narrowing of those liberties again.
§ 4.24 p.m.
§ Mr. Alexander W. Lyon (York)
I agree with almost every word that fell from the lips of the right hon. Member for Down, South (Mr. Powell). We have absolute privilege in this place to say and do as we please. There can be no qualification about that if we are to do the work for which we are sent here. Any suggestion that that privilege is qualified in this House by some regard to taste or to objections about security, or any other cause, must be set aside in the general good that flows from the fact that we have this privilege to raise in this place whatever we wish in any way that we regard as responsible, even if that thought is opposed by every other person in the House.
We are today debating a matter of great moment. The mere fact that it arises out of what some people may regard as a trivial matter in relation to the disclosure of a particular name does not, in my view, mean that we should underestimate the momentousness of what we are about to discuss.
In the great case of Stockdale v. Hansard they discussed the description of a particular book as being obscene in respect of a Committee of this House which was described in the Report of the House as "— by —, printed by Stockdale". It was then printed in a blue book by Hansard out of which arose a libel action. It was out of such small beginnings that one of the greatest debates began in our history about the limits of the privilege of Parliament.
I wish to deal with the way in which that issue—an issue which was never finally settled in the nineteenth century and is still open in "Erskine May"—was perhaps settled, I think perhaps inadvertently, Mr. Speaker, by a remark in your ruling of 21st April. May I approach the matter gradually?
§ Mr. Lyon
I hope that in the matters I wish to raise I shall not be in breach of any rule of the House or of any sense of your own conduct, Mr. Speaker.
What happened on 20th April was that some of my hon. Friends mentioned a particular name. That name was an issue not in the original proceedings—and I do not think that reference to those original 48 proceedings could conceivably be said to be sub judice, because the question is whether it was sub judice of the proceedings which are taking place today. On that matter you have made a ruling that the issue must go to the Committee of Privileges for discussion. I want to say nothing which in any way contravenes your view on that.
It must at least be arguable that in the circumstances of the case which is now before the Divisional Court there was a breach of the sub judice rule which we laid down for ourselves. But it is important to distinguish between the rule that we laid down, of which there may have been a breach, and the rule which is laid down by the courts outside for discussion of matters by the public of matters pending in the courts. The courts have a sub judice rule, and one can be in contempt of court by discussing matters which are then currently before the courts, but our rule is a different sub judice rule. If my hon. Friends were in breach of a rule, they were in breach of our rule and not of the rule of the courts. Our privilege is to say whatever we like within the rules of the House, and only within those rules.
What I objected to, Mr. Speaker, was that when you came to deal with this matter on Friday 21st April you said:were this warning to be followed by legal action—and you were referring to the warning given by the Director of Public Prosecutions—it would not be the first time that the reports of parliamentary debates in the Press had been the subject of proceedings in the courts. As it is stated on page 81 of "Erskine May":'There is a distinction between the absolute privilege of Members speaking in the House … and the qualified privilege of a publisher reporting words spoken; in the latter case publication of parliamentary proceedings is protected, not specifically by privilege of Parliament, but on the analogy of the publication of proceedings in courts of justice.'This principle was followed in the case of Wason v. Walter in 1868, and no claim has been made by Parliament, either at the time or since, that its privileges were infringed by this or any other similar action."—[Official Report, 21st April 1978; Vol. 948, c. 865–6.]The correct impression of what happened in those days is contained on pages 200 and 201 of "Erskine May" which reads:The House of Commons claims that its admitted right to adjudicate on breaches of 49 privilege implies in theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned its claim to treat as a breach of privilege the institution of proceedings for the purpose of bringing its privileges into discussion or decision before any court or tribunal elsewhere than in Parliament. In other words, it claims to be the absolute and exclusive judge of its own privileges, and that its judgments are not examinable by any other court or subject to appeal.On the other hand, the courts regard the privileges of Parliament as part of the law of the land, of which they are bound to take judicial notice. They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to decide it according to their own interpretation of the law.It was the supreme issue in the case of Stockdale v. Hansard that we decided not only what are our privileges but what are the limits of our privileges. There is no contest that we are totally responsible for what goes on within this place. But the issue in Stockdale v. Hansard was how much of that lapped outside into reports, fair reports, of what had happened inside.
The House never had any doubt in its own mind about how the issue should be resolved. There were three separate Select Committee reports upon the issue whether privilege extended beyond the confines of the House to reports that were made out side. I entirely agree with what the right hon. Member for Down, South said about there being no difference between Hansard and a report in The Times or indeed on the BBC. The issue must be the same in both cases.
I quote from the Second Report of the Select Committee, in which it discussed the possible alternatives. One was that the House could take to itself the power to decide the limits of privilege for reports outside by passing an Act. The recommendation of the Select Committee was:The passing of an Act to enable the House for the future to publish its proceedings without having them questioned in a court of law, would, in the opinion of your Committee, be a virtual abandonment of the right which they have no doubt now belongs to this in common with the other House of Parliament, and which ought not, as they conceive, to be surrendered.I quote, from the debate that followed that Select Committee report, from the speech of Sir Robert Peel, who at the time was Leader of the Opposition and I hope will be thought by those on the 50 Opposition Benches to be of some authority. He said:the result is, a firm conviction that the House of Commons has the right to institute free inquiry upon every matter of public concern,—to elicit every fact connected with the subject of inquiry—and to publish the evidence taken, and the conclusions drawn from that evidence, either for the use of its Members, or, if it shall so think fit, for the use and information of the community at large.Later in his speech he said, in relation to the challenge to that right by the Lord Chief Justice, Lord Denman, in the case of Stockdale v. Hansard:I wish to speak with the highest respect for the person as well as for the station of the Lord Chief Justice.He said that he bowed to the Lord Chief Justice's knowledge of the law with deference, but added:but when his decisions impugn the privileges of Parliament, I have not only a right, but am bound by duty, to take cognizance of them. I do not believe that his judgment in the case of Stockdale v. Hansard, is maintainable. His direction to the jury, 'That the fact of the House of Commons having directed their printer to publish their Parliamentary Reports, is no justification for the publication, by them, of a Report containing a libel, upon any man.'—I believe to be erroneous.Earlier he had said:If the right of publication be a privilege necessary for the performance of the functions of the House of Commons, then, like other privileges, it is not liable to question in a court of law. The House of Commons is the exclusive judge of the exercise of it.My understanding, after reading through those debates and the reports that followed, was that the House never resiled from that position.
It is true, Mr. Speaker, as you pointed out in your ruling on 21st April, that subsequently in a case in the Queen's Bench, the case of Wason v. Walter, which decided that qualified privilege was attached to fair report of what happened in this place, the Lord Chief Justice said that the courts were entitled to decide what was the limit of privilege outside. He called in aid the decision of Lord Chief Justice Denman. But it is quite clear from our proceedings in this House that we never accepted that.
Apart from the historical antiquity of all that, does it really matter in these days? In my submission, it does. It is of grave importance to the proceedings of the House that we make it clear that we, and not the courts, decide what is the 51 limit of privilege. Is it to be said, for instance—and the point has been made by the right hon. Gentleman—that the BBC or the IBA were in contempt of the courts which are discussing this issue today by broadcasting the names that were spoken on Thursday, 20th April? That is a matter of the greatest moment to the broadcasting authorities.
It is true that the Attorney-General has said that he does not wish to proceed, but who can say whether an Attorney-General would always take that view? Who can say that he, and he alone, would have the right to prosecute in similar circumstances? It must be laid down that the courts cannot intervene.
But there is a wider aspect. We are progressing gradually, and I think unfortunately, to a conflict between the courts and Parliament. There is every evidence over recent years that the courts are bending their muscles in order to take on the Houses of Parliament, either corporately or individually, in deciding where the line must be drawn in determining who is responsible for the liberties of our people.
I think that it is absolutely right that the courts, within their proper sphere, should try to draw that line. But it is equally clear that we within our sphere should also know where to draw that line. I believe that it is more important that we should know than that the courts should know, because we are at any rate accountable to the people, as we are elected by them.
When we, if we, ever go to the stage of adopting a Bill of Rights—there are those who say that because we have adopted the European Convention we have already done so—what we shall really be saying is not that there is one source which is wiser than another but simply that the decision would be made in one place rather than another, that the decision about what are the limits of statutory authority or power should be made by the courts and not by this House or by Parliament generally. In that situation there are bound to be conflicts.
I would not have troubled the House with this discussion of what might be an esoteric point if it were simply a question of this particular issue. I think that the matter can be resolved sensibly and fairly 52 by the Committee of Privileges. What I am worried about, Mr. Speaker, is that the ruling you made on 21st April may prejudice the discussion of some momentous constitutional clash which may emerge in the future, because it will then be said that the whole issue was decided by the statement of Mr. Speaker Thomas on 21st April 1978 that the courts outside have the right to determine the extent of privilege outside, and that therefore it is a matter for the courts to decide.
I want to make the position plain by registering my protest now. I hope that in due course the House will have an opportunity of voting and expressing its view and that it will make it absolutely clear that we decide the extent of privilege not only here but outside.
If it is thought by any of those who listen to us or read about our discussions that we are asserting a claim to be above the law, I say that we are asserting that claim only to a limited extent, to the extent that it is necessary for us to perform our duties. There is no doubt about our right to that privilege here. The argument has been about that right outside.
I end with a statement I found in an account of all these matters called "Printer to the House":But observe, too, the consequence had Lord Denman's judgment been allowed to stand. The evolution of Parliament from 1840 to the present day would have been rendered impossible. What is the use of a Parliament whose activities cannot be reported?
§ 4.40 p.m.
§ Mr. Mark Carlisle (Runcorn)
On various occasions in the past I have both spoken and voted against sending a motion to the Committee of Privileges because on the whole I take the view that Parliament is not normally at its most dignified when, rushing to the protection of its privileges, it seeks to refer to the Committee comments made by people outside the House. On this occasion I believe that the motion tabled by the Leader of the House is totally justified and one which I hope the House will pass.
Whatever our views on the merits of this issue, I do not think that anyone could suggest that there are other than vitally important principles at stake. There are in this one subject two separate issues. There is the issue of the right of the 53 Press to report accurately that which is said in this House, and there is the issue of the way in which hon. Members choose to make use of the privileges of this House. They are two important issues and to my mind they are totally separate.
The right hon. Member for Down, South (Mr. Powell) said that this matter started with the statement made by the Director of Public Prosecutions on the evening of 20th April with regard to his advice to the Press as to its right to publish what had been said in this House. With respect, I believe that that was not the commencement but the second stage. The commencement was the decision of hon. Members—their motives from my point of view are irrelevant—under the cloak of privilege to name someone to whom the courts had granted anonymity. These are two equally important but separate issues.
§ Mr. Christopher Price (Lewisham, West)
Does the hon. and learned Member not think that to use the phrase "to whom the courts had granted anonymity." when that is the issue before the courts is a little injudicious?
§ Mr. Carlisle
I am using my words carefully. The decision of the hon. Member for Barking (Miss Richardson) was clear. It was to use the privileges of this House to name someone to whom she understood anonymity had been granted by the order of a court.
Both of these issues are vitally important. My only criticism of the motion would be that it has put the cart before the horse. It is really the question of the conduct on the Floor of the House on 20th April which comes to be considered before the question of publication of what happened. It was for that reason that I, on this first issue, tabled an Early-Day Motion asking that the conduct of the hon. Members during that Question Time be referred to the Committee of Privileges. It was on the assurance given by the Leader of the House last Thursday at Business Question Time that I withdrew that motion.
As the Leader of the House made clear, he had tabled a motion in the widest possible terms which, he assured the House, embraced all of the motions standing on the Order Paper. Naturally, 54 I was happy to withdraw my motion I believe that it is essential that the Committee of Privileges should give careful consideration to what happened on that occasion. Mr. Speaker has said in his statement that in his view it was a breach of the sub judice rule. I take the point made by the right hon. Member for Down, South that the rules of this House are something totally different from the privileges of this House.
The rules of this House are that by which we agree to abide in the conduct of our debates. The privileges of this House are something we claim to ourselves to prevent ourselves from being open to action from outside. Nevertheless, I do not believe that it was ever intended that we should use the cloak of privilege to name people who, for whatever reason, may not have been named in other proceedings in a court of law in this country.
It is important that the House, through the Committee of Privileges, should decide its attitude to matters of that kind. The right hon. Member for Down, South said that we cannot abuse privilege, we can only use it. I found it difficult to follow that part of his speech when he suggested that there is no difference here. I would have thought that the main difference must be in the motivation of the person who says the words concerned. For example, if I, by use of the privileges of this House, chose to make an attack on someone's integrity, believing my attack to be justified and to be in the public interest, I am clearly using the privilege which Parliament grants me. If, on the other hand, although I do not believe a word of an allegation that I have been told, I nevertheless choose to make use of the privileges of this House for the purpose of mounting that attack in the justification of which I do not believe and if I am motivated by malice against the individual, to my mind I am abusing the privileges of this House.
§ Mr. Powell
The hon. and learned Member is making the same distinction that I sought to make, namely, that the difference is a subjective difference. No hon. Member can know the motives of another hon. Member. We may feel that we know what these motives are and that we dislike the hon. Member and disapprove of his behaviour. But still the distinction between use and abuse remains 55 subjective. I do not think that there is any difference between us.
§ Mr. Carlisle
I accept that the subjective intention of the individual is the difference between abuse or use of privilege. But I think that other people can objectively assess what is the motivation and decide whether that has been an abuse or a use. This is one of the matters which the Committee will clearly have to consider.
§ Mr. Alexander W. Lyon
The privilege is to say anything on the Floor of the House for whatever motivation one cares. It is obtainable by any hon. Member. Is the hon. and learned Member saying that the Committee of Privileges could rule that in some way the hon. Members who uttered that name were not covered by privilege at the time they did so? If that is not what he is saying, I do not understand what he is saying.
§ Mr. Carlisle
I am not saying that. Obviously the privilege is absolute of the individual. On the other hand, surely in any civilised debating chamber there must be some rules and some control over the abuse of that privilege. The point I am making is that it is a proper matter for the Committee of Privileges to consider whether, taking the right hon. Gentleman's terms, by making use of the privilege those hon. Members have abused that privilege and, if they have done so, what advice should be given to the House by the Committee.
Let me give a totally different example. The fact is that for many reasons of a different nature the courts do from time to time grant anonymity to people who appear before them whether they be children of a tender age or people involved in divorce or wardship cases. More recently, Parliament has legislated to give anonymity to both victims and defendants in rape cases.
I do not believe that any hon. Member opposite, particularly one of the four who made use of his privilege on this occasion, would for a moment suggest that, were a Member on the Floor of the House to use the privilege of the House for the purpose of announcing the name of either the complainant or the defendant in a rape case, other hon. Members should not make immediate complaint that he had 56 abused his privilege. Therefore, I believe that it is open and possible for the House, through the Committee of Privileges, to assess objectively whether it considers a privilege has been used or abused and, if it has been abused, whether it should make any recommendation to the House.
§ Mr. Alexander W. Lyon
I do not want to engage in argument across the Floor, but the issue is of crucial importance to the Committee of Privileges. It cannot be said that, simply because we use privilege in a way that is discreditable to us personally, there is any breach of the rules of the House. The only purpose of the Committee of Privileges must be to decide whether there was a breach of the sub judice rule and whether that involves any sanction. That must be at issue when one recollects that, while in the case of the rape victim there is statutory power for the courts to make an order for anonymity, in this case there is no such power.
§ Mr. Carlisle
With respect, I think that the hon. Gentleman is misunderstanding what I am saying. I thought that I was conceding that there was a distinction, as the right hon. Member for Down, South said, between the breach of the rules of this House, which in itself is clearly a matter which the Committee of Privileges can look at, and whether the way in which a person chooses to use the privilege of the House is in itself an abuse of that privilege such as would amount to a contempt of the House. It seems to me that both of those issues arise in this case.
As the right hon. Gentleman said, the one may be deliberate, the other may be unintentional. All I am saying is that I felt it right to put my motion down on the Order Paper because I believe that there is a serious principle here, a dangerous precedent for the future, if the House does not come to a view as to what attitude it is taking to matters of this kind. I say that without attempting in any way to comment on the seriousness or unseriousness of this issue.
I turn to the second matter—the right to publish the proceedings of this House. The right hon. Gentleman appeared to suggest that what the Director of Public Prosecutions had done was clearly an intervening in the privileges of this House. With respect, I would have thought that, 57 while the right hon. Gentleman and the hon. Member for York may well be right in arguing that immunity from all proceedings should take fair and accurate reporting of this House to the Press, it is highly questionable whether that is the legal position. It is therefore vital that this issue should be looked at by the Committee of Privileges.
A great deal has been said in the newspapers about the fact that the Press, it is clear, has qualified privilege in reporting the proceedings of the House. The Press seems to assume that to mean that, provided it is a fair and accurate report, no action of any kind can ever come about as a result of their publication.
I believe that that is a total misunderstanding of the defence of qualified privilege, which has always been a defence purely to an action by the individual for defamation against a paper. If it be a fact that the position of the Press vis-à-vis Parliament is the same as that of the Press vis-à-vis the courts—let us take that as a starting point—clearly, if the Press chooses to give a fair and accurate report, even if it turns out to be totally false and defamatory, no one can bring action against it.
But that does not mean that, by making that fair and accurate report, one may not be in oneself breaking an order of the court. I give the most obvious example. If a court of law in the course of a proceeding orders that the defendant Mark Carlisle shall hereafter be called "Mr. C", and a newspaper announces that evening that in court Mr. Justice So-and-So had announced that the defendant Mark Carlisle should be called "Mr. C", clearly that is a fair and accurate account of what happened. Equally clearly, it would not allow the person concerned to bring action for damages even if it were false. But equally it would be no defence of the order of the court banning the name to say "We have merely announced the order of the court banning the name."
Therefore, where we have an area in which there is considerable doubt how wide are the limitations of privilege outside this House, we should say, in fairness and without prejudging the issue in any way, that someone who is then appealed to by the Press for advice as to the legal situation is in a difficult position and may well be misleading the 58 Press if he gives advice different from that which in fact he gave.
I totally share the view of the hon. Member for York that not only the extent and limitation of the privilege within this House but also the privilege outside this House of the reporting of matters that go on inside this House should be a matter for Parliament and not for the courts. With that I agree, and it is for that reason and because this individual instance raises that issue in its clearest and starkest forms that I hope that the matter will go to the Committee of Privileges so that it can make its recommendations on the point.
§ 4.56 p.m.
§ Mr. Michael English (Nottingham, West)
I, too, hope that this matter goes to the Committee of Privileges, and I agree with the hon. and learned Member for Runcorn (Mr. Carlisle) as far as he went. We all ought to be plain that the term "qualified privilege" only applies to the law of defamation and has nothing to do with this issue.
I myself was glad that Mr. Speaker gave two rulings, one on the Monday and one on the Friday. I do not blame Mr. Speaker, as a man not trained in the law, for including in his statement on the Friday the phrase "qualified privilege". I think that he was advised and misadvised by other people. I am grateful for and glad of the fact that on that relevant Monday he did not use the phrase. It is really utterly irrelevant to import this question of absolute and qualified privilege into this matter. That, as the hon. and learned Member for Runcorn said, has relevance to the law of defamation, as to whether a person can sue another person about whether he has been libelled or slandered, but it has nothing to do with this particular issue. It would be very helpful to everyone if we now forgot it.
I think that my right hon. Friend the Leader of the House and his predecessors from all parties have forgotten that the late Lord Donovan once chaired a Joint Committee of both Houses, consisting also of Lord Selkirk, Lord Stow Hill, formerly Sir Frank Soskice, QC, of this House House, a gentleman who at the time was described in the report concerned as Mr. Samuel Silkin, Sir John Foster, a QC formerly of this House and now retired, 59 Mr. Charles Pannell, formerly of this House and now a peer, and myself. That Committee produced reports that have never been dealt with. It would have saved an awful lot of trouble if they had been. It isued two reports, one on broad casting and one on the particular issues which are relevant to this case. I am not suggesting for a moment that every single recommendation of that Joint Committee of both Houses of Parliament on the publication of proceedings should have been approved by both Houses of Parliament. I am suggesting that they should have been discussed.
If I may say so, my right hon. Friend—not alone but with his predecessors on both sides of the House—is responsible for ignoring this issue and forgetting it, hoping that it would never arise. Now it has turned up in a different form. We all expected it to turn up in the form of a private individual suing another private individual because he had been libelled or slandered. It did not turn up like that. If my right hon. Friend says that the late Lord Donovan's Joint Committee did not cover every point, he would be absolutely right. As a Member of that Committee, I would agree with him. It has turned up in the sense of contempt of court, and in that sense, of course, all the law about qualified privilege which relates to defamation has nothing to do with the issue.
If one court issues an order and another court issues an alternative order, or a different order, then the mere subject has a clear responsibility, and that is, if he can, to obey them both. If, for example, the High Court says "You must not write it", and this Court of Parliament says "You must not write it", the results are clear. It means "You must not write it or print it or put it on television or on radio." There is no real doubt about that. The problem arises when one court—it does not matter which—says "You must not do it" and the other court says "You shall do it", in effect, or "You may do it." That is where the problem really arises.
With what we usually call the courts of law there is no tremendous problem even in that, for ultimately the difficulty can be reconciled by going from the High Court to the Court of Appeal and then to the House of Lords sitting as a 60 court. In the end, it would be found—I notice that one of my lawyer hon. Friends is kindly nodding his head—that the House of Lords, sitting as a court, would say that it either agreed or did not agree with the order of the particular court.
That is fine. All the precedents on this matter go back to the seventeenth or eighteenth centuries, when the House of Lords, sitting as a court, was exactly the same as the House of Lords sitting as a legislative body. Nowadays, the House of Lords sitting as a court is a body of lawyers, and usually it is a very small number of them. It is usually about five, although it can theoretically be a larger number. It certainly could not be the 1,000 or more people who theoretically belong to the House of Lords sitting as a legislative body.
The arguments on this question go back well into the seventeenth century, and there is nothing at all which says that the House or Lords' rulings are privileged over those of the House of Commons. We do not really need to argue that particular point. No one would argue that the House of Commons, sitting as a court, can prevail over the House of Lords sitting as a court, or the House of Lords sitting as a legislative body.
My hon. Friend the Member for Penistone (Mr. Mendelson) suggests something that I shall translate as meaning "That has"—something I will put in square brackets, as it were—"to do with it". He is entitled to his opinion, and that is actually what this particular bit of law is all about. If he wants to say something else, I have no doubt that he will in due course. But in the end this House of Commons must prevail. There is no question of any contempt of court. There is no question of any contempt by one court of another.
In the seventeenth century, as my right hon. Friend the Leader of the House well knows, Chief Justice Coke used to issue injunctions to prevent the Court of Common Pleas from interfering with his Court of King's Bench. That was decided in the seventeenth century. It was roughly decided—in many cases by force—that the courts of law had to obey the High Court of Parliament, and since the early part of this century the rest of the High Court of Parliament has had to obey this part of it.
61 If necessary, we could pass an Act of Parliament to say what we determined, and, if the House of Lords disagreed with it, this part of the High Court of Parliament, this House of Commons, could still pass it. There is no question as to which shall prevail. I think that is the essential point. It is not whether any other court, in its jurisdiction in this United Kingdom, can issue any order. It can issue any order it likes.
But if it is a puisne court, as the lawyers would call it—a court of first instance—it can be overruled by a court of appeal. A court of appeal can be overruled by another court of appeal, namely, the House of Lords sitting as a court of appeal, if it is a case of contempt of court. If it is the House of Lords sitting as a law court, then on a question of the privileges of Parliament it can be overruled by the House of Lords sitting as a House of Lords. If it is the House of Lords sitting as such, it can in the end be overruled by this House of Commons representing the people of the United Kingdom. If that principle does not prevail, then no principle other than that can prevail in a democracy.
§ 5.7 p.m.
§ Mr. Emlyn Hooson (Montgomery)
It seems to me that there is a good deal of confusion about what is parliamentary privilege, on the one hand, and, on the other hand, the defence of privilege in the law of defamation. The defence of privilege in the law of defamation, whether it is absolute or qualified, is a totally different matter from the privilege of the House of Commons. The privilege of the House of Commons is absolute, and it is absolute to this House.
I disagree with the hon. and learned Member for Runcorn (Mr. Carlisle) when he says that it is absolute to the individual. It is not. It is absolute, surely, to the House. It is qualified in relation to the individual, because there are certain rules of the House which put a limit, to a certain extent, on the individual's use of it, in that there may be certain consequences from what the House regards as personal misuse of privilege. But it is very important for the Committee of Privilege to bear in mind this complete difference between the two senses in which we use the same word "privilege".
62 The second issue which appears to me to arise in the case is whether parliamentary privilege affords a defence to an action taken for contempt of court. That is the matter with which we are concerned here. If the newspapers had reported verbatim what was said in the House on a certain afternoon and those reports were not made by order of the House, would the fact that there was parliamentary privilege extend to those newspapers to give them, or their editors, a defence to an action for contempt of court?
I am bound to say that I cannot see the logic in the distinction between the privilege which attaches to a correct and verbatim report of the proceedings of this House by order of the House and a correct and verbatim report which is not by order of the House. Why should Hansard be privileged and The Times and The Guardian, reporting exactly the same thing, not be privileged? I think that it would be very difficult for any court to draw the line and to say that there is a distinction. If it were drawn it would certainly be an artificial distinction.
The hon. Member for York (Mr. Lyon) mentioned the potential clash between the courts of this country and Parliament. The potential clash has always been there. At times it appears to be coming to the surface, and it is avoided, I think, by the good sense of the courts and the good sense of Parliament.
Clearly, when Members misuse privilege—I am using the term in its widest sense—it is difficult at the time to gauge whether it has been misused. For example, the late Colonel Marcus Lipton named Philby in this House when Philby was still a member of the Civil Service and living in this country. There were cries of "Disgraceful" and so on in this House. He was using parliamentary privilege. If at the time he had been challenged as to his motivation, I do not know how this House would have divided as to what it thought his motivation was.
§ Mr. Christopher Price
Is it not also true that Mr. Richard Crossman, Lord Wigg and the right hon. Lady the Member for Blackburn (Mrs. Castle) raised the whole Profumo affair in exactly the same way on the Floor of this House—in a way that might have been said by some people to be an abuse of privilege?
§ Mr. Hooson
I think that is right. The only point I wish to make is that it is terribly difficult to establish whether a person has a right or a wrong motivation at the time when he is using the privilege.
§ Mr. Hooson
I hear the right hon. Member for Down, South (Mr. Powell) say "Or ever". That may well be so. The further one gets away from the event, the easier it is to appreciate whether there was justification for using parliamentary privilege. It must be used very carefully, otherwise it can lead to an immediate clash with the courts.
The hon. and learned Member for Runcorn suggested that if any of the four hon. Members who named a person in the House had, for example, heard someone else mention the name of a complainant in a rape case, he or she would have been the very first to claim that privilege was being misused. In my view hon. Members must strike a delicate balance between the use of their absolute privilege and its abuse in such a way as to offend against the proceedings of the courts.
§ Mr. Edward Lyons (Bradford, West)
Is there not one distinction between the matters we are discussing now and the type of occurrence where Marcus Lipton named Philby? On that occasion, no prior order of the court was in existence or alleged to be in existence.
§ Mr. Hooson
I must deal with the intervention before it slips my mind. I think there is a distinction between each case. That distinction is there. But I do not think it alters the general principle of the matter. It seems to me that if we had a repetition of the kind of identification that was made in those Questions, we would be heading for a first-class collision with the courts. The courts could not stand by and, as it were, watch parliamentary privilege being used as a cloak to affect its own procedure.
That is why this House has to be so careful in the framing of the rules. Where the right hon. Member for Down, South 64 is right is to draw the clear distinction between the rules and privilege. If, in fact, there is the use of parliamentary privilege by an individual Member, and this House as a whole feels that he has misused it—whether it is used as a term of taste or otherwise—then it is up to the House to take action and use its own rules to discipline that Member. But that does not deal with the point at issue in this particular reference to the Committee of Privileges.
§ Mr. Kilroy-Silk
My hon. and learned Friend the Member for Bradford, West (Mr. Lyons), and many other hon. Members, have today said that there was an order of the court. I think we ought to clarify this. This is a matter which is still largely in dispute and about which there is a great deal of doubt. For hon. Members constantly to reiterate—as if it were a fact—that there was an order of the court prohibiting the use of a particular name is prejudicing this debate and the proceedings that may follow from it.
§ Mr. Edward Lyons
On a point of order, Mr. Deputy Speaker. My hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) cannot have been listening to me. I said "A court order or a court order alleged to be in existence". In my submission it does not make any difference whether it actually existed or whether the Crown at this stage simply alleges it to exist.
§ Mr. Hooson
In so far as the motion before the House deals with privilege, it is on a very narrow issue. It virtually asks what is the status of a correct report of the proceedings of Parliament which is published, but not by order of this House. That is the matter at issue. It seems to me that there is no dispute about the fact that the editors of Hansard are protected from an action for contempt of court. The only question at issue on the privilege of the matter is whether the editors of The Times or the Guardian are similarly afforded a defence in relation to an action for contempt of court.
§ Mr. English
I am glad that the hon. and learned Gentleman ignored the question about whether a clearly subordinate court of law issued an order. That is not 65 really relevant. I am also glad that he ignored the question whether the law of defamation is involved. It clearly is not. Will he kindly address himself to this particular question: is it not possible that Members of this House are allowed to say something which may not be published outside the House?
§ Mr. Hooson
I only regret that the hon. Gentleman did not ignore the matters that I have ignored. If he will forgive me, I shall proceed to complete what I was saying. The second part of the reference concernsthe application of the sub judice rule during Business Questions".Again we have to draw the distinction between our own sub judice rule and the legal sub judice rule. There is a distinction between the two. I greatly regret that there was an identification of the officer. I often feel that Government are far too concerned with secrecy in these matters but, nevertheless, it was highly regrettable that the officer was named.
What we are concerned with—and this distinction has not been sufficiently drawn—is the operation of the sub judice rule of this House, which is very different from considering the position of the newspapers and their relations with the sub judice rule of the courts. I hope that the Committee of Privileges will draw that distinction.
§ 5.18 p.m.
§ Mr. Raphael Tuck (Watford)
I was interested in what the right hon. Member for Cambridgeshire (Mr. Pym) said about the suggestion of the right hon. Member for Chipping Barnet (Mr. Maudling). I tried to intervene at the time, but was unable to do so. That suggestion is interesting, but it has a great flaw. Assuming for the moment—without wishing to pass any strictures upon the suggestion—that it is desirable in the future to have Mr. Speaker say that a statement shall be expunged, that does not provide the real solution, because there is a Gallery to this House of Commons, and there are also the broadcasting media. It will already have gone both to the Gallery and to the broadcasting media even if Mr. Speaker says that it shall be expunged. Therefore, that is no solution to the problem.
66 However, this whole business could have been avoided. The right hon. Member for Down, South (Mr. Powell) referred to the privileges of this House but he also referred to its discipline. It is the undoubted privilege of a Member of this House to say anything he likes in this House, even if the matter is sub judice, were it not for the fact that the House, in its wisdom, has evolved a rule or a convention that when matters are awaiting adjudication by a court they shall not be mentioned by any Member of Parliament.
§ Mr. Robin Maxwell-Hyslop (Tiverton)
Is the hon. Gentleman really claiming that there is nothing that a Member may not say in this House? For instance, what if it is treasonable, insulting to the Sovereign or insulting to a Head of State of another country? Is the hon. Gentleman saying that, under privilege, treason can be committed in this House with impunity?
§ Mr. Tuck
I was suggesting nothing of the kind. That is another matter entirely. But there is nothing to prevent a Member from saying what he pleases, because it is the undoubted privilege of this House. This liberty, however, is modified by a rule or convention of the House that when a matter is sub judice or awaiting adjudication nothing shall be said about it. If the House of Commons were to extend this rule to cases in which a judge has said in court that the name of some person or some matter shall not be disclosed, for any reason whatever—it may be for reasons of security, or for reasons of the safety of the person himself—the very disastrous situation that has occurred would not occur at all, because no one would be able in this House, by reason of the rule, to mention the name that has been prohibited by the court or about which the advice has been given by the court against mentioning it. I would suggest that Parliament amends its rules to include such a case where a judge has said that a name shall not be mentioned.
It must be recognised, in a situation such as the present one, that the media generally are in an invidious position. Assuming for the moment that it would be a criminal offence for newspapers or other media to publish any statement made against the wishes or order of a 67 court, that could apply not only to the newspapers but even to Hansard; but could it, or should it apply to the broadcasting media? The broadcasting of our proceedings is live broadcasting, and the broadcasting media have no redress whatever against a name's being mentioned and transmitted to the public.
I would suggest to my right hon. Friend that my suggested extension of the sub judice rule be adopted without delay.
§ 5.21 p.m.
§ Mr. Cranley Onslow (Woking)
I want to intervene briefly to put a point of view from someone who is not a lawyer and to suggest that my hon. and learned Friend the Member for Runcorn (Mr. Carlisle) was right when he tried—I think that he succeeded—to draw a distinction between the two issues that are at stake here. One affects the media and the other affects the House, although they interlock. It is very important that they should be resolved.
The Press and the radio must look to us to settle this matter as quickly as possible. I doubt very much whether they would regard the suggestion of some kind of sidelining or censoring procedure as a workable solution. The hon. Member for Watford (Mr. Tuck) has pointed out the complication of instantaneity, which would seem to rule it out entirely. So far as Hansard is concerned, I can see no way in which we can ask for asterisks to be inserted by the Editor without that leading to a certain lack of confidence in the proceedings at a very early date. However, the hon. Member for Watford is on a good point when he says that we may need to change our rules. We face a new situation. Perhaps we shall have to adjust to that and bring in new rules to cope with it.
What the motives and intentions of the Gang of Four may have been on the day in question, I do not know. I think that the Committee will have an interesting time inquiring into that.
However, leaving all that aside, we know—we have now had evidence—that it is possible, through the changed situation, for a serious situation to arise. I am not saying that the situation which has arisen is the most serious which can be conceived. For lawyers it clearly raises a serious point. Concerning the issue of 68 national security, the issues are not necessarily as serious as they might otherwise be. I can think of worse things that might have been said in this place and reported instantaneously over the air.
If such a situation can arise, we must be alive to it. If we cannot prevent its happening by any mechanical device, as seems extremely unlikely, the only thing we can hope to do is to frame some rule which will place upon each of us a known and precise discipline which we infringe at our peril.
It is impossible for the House ever to say what the consequences may be, because the House has an inglorious habit of breaking its own disciplines. I hesitate to say anything which might be thought to be a comment in any way upon the right hon. Member for Down, South (Mr Powell), but he is evidence in our midst that it is possible for one Member to choose to disregard the collective decision of the House of Commons and not to be penalised as a result—in the matter of the Register of Members' Interests.
It is perfectly possible—and I dare say that the right hon. Member for Down South will be the first to agree with this—for there to be an infringement of the rule relating to the naming of names or the disclosing of information in this House, and it will always be for the House itself to decide in the light of each case what it does about it. That is no doubt right. But what is important is that those who make the conscious decision to challenge the rule—such as the hon. Member for Barking (Miss Richardson)—should know what the penalties are to which they are laying themselves open.
I hope that when the Committee considers this matter it will bear very closely on that particular point and will consider that we may need to evolve some new process in this respect, so that the compulsion to challenge procedure is no longer felt.
As I have said, I do not know what the motives of the Gang of Four were, but the Lord President will know that I have challenged convention—at least, according to him—from time to time in recent months in an attempt to get some further inquiry into the question whether the previous Prime Minister accurately informed the House or was himself accurately informed about whether John 69 Stonehouse, who used to be a Member of this House, was or was not in the service of the Czechoslovak intelligence service. He has castigated me for that, but the fact that he has done so will not necessarily stop me. But the fact that I seem unable to get any further in this respect and the fact that the Gang of Four were driven to do what they did in their case suggest to me that we may be in need of some new procedure that will avoid conflict, confrontation and, most important of all, grave danger to the national interest being caused within this Chamber. It must be incumbent on us all to see that that does not happen I hope very much that my right hon. Friend the Member for Cambridgeshire (Mr. Pym) and other Members of the Committee will think very seriously about that particular aspect of the matter.
§ 5.27 p.m.
§ Mr. Christopher Price (Lewisham, West)
Perhaps I may comment on two things that the hon. Member for Woking (Mr. Onslow) has said. He used the two phrases which have been mentioned from the Conservative Front Bench already—"as quickly as possible" and "some new processes." Anyone who has listened to the speech of the right hon. Member for Down, South (Mr. Powell) and then thinks that in some sort of way this very substantial issue can be dealt with as quickly as possible by the Committee of Privileges is trivialising what is a crucially important issue of the privileges of this House.
I feel that when the Committee gets down to work it may find that the speeches of the right hon. Member and of my hon. Friend the Member for York (Mr. Lyon) have highlighted points on which it will take the Committee a very long time indeed to come to some sort of agreement. The idea that the hon. Member for Woking has put forward, a sort of stated table of penalties for various misdemeanours, utterly misconceives what the centre of the whole issue is.
§ Mr. Onslow
The hon. Member must not put words into my mouth. I did not suggest a table of penalties. What I suggested was that hon. Members who chose a certain course of action should know what the ultimate consequences of that may be.
§ Mr. Price
That is a point of view, but subjects arise many times in this House 70 about which people feel very strongly. The hon. Member for Henley (Mr. Heseltine) recently felt so strongly about something that happened that he was moved to grab the Mace and wave it around in the air. The House did not on that occasion see fit to produce some sort of penalty. I think that the House recognises strong feelings.
It is a pity that the Attorney-General did not decide that he could find time to listen to this debate. His opposite number on the Opposition Front Bench has come to the debate. I think that it is the sort of debate in the House of Commons in which either the Attorney-General or one of his Law Officers might have put in an appearance. It is a debate worth listening to, and I think that reading it in Hansard is not quite the same thing.
There are two ways in which I agree with the right hon. Member for Down, South. In my view the broadcasting of the House is not central to the issue. For what it is worth—I do not put any weight on this—the decision was taken deliberately to mention the name at a time outside the hours when the broadcasts were being made in a simultaneous fashion so that the BBC and the ITN could take their decision in the same way as the papers about the use that they would make of it.
§ Mr. Price
It may not be, and I did not want to lay great weight on the point. I mentioned it only in passing.
Various suggestions have been made by the right hon. Member for Cambridgeshire (Mr. Pym) and by other hon. Members about an erasure system, a system that exists in a sort of way in the courts of justice where something can be almost but not exactly struck from the record. That suggestion shows once again a lack of understanding of the crucial issues that are at the centre of the debate. Once we start creating somebody within the House who, as the right hon. Member for Down, South said, has the power to flick a switch or cross out a word, there is no point in having a parliament or carrying on as a democratic assembly.
My next argument stems from a comment made by my right hon. Friend the 71 Leader of the House in answer to me during business questions last Thursday. It concerns the scope of the matter that the Privileges Committee has to consider. We have seen the motion on the Order Paper, but my right hon. Friend referred us to what he called the Pickthorn motion, which appears in Hansard of 30th October 1947. At that time the House had considered a crucial issue that went to the Privileges Committee. The House passed a motion which to all intents and purposes said "Whatever motion is referred to the Privileges Committee the Committee has the right but not the duty to consider matters beyond that."
The motion read:That when a matter of complaint of breach of privilege is referred to a Committee, such Committee has, and always has had, power to inquire not only into the matter of the particular complaint, but also into facts surrounding and reasonably connected with the matter of the particular complaint, and into the principles of the law and custom of privilege that are concerned.That motion arose out of the issue connected with Mr. W. J. Brown, the Member of Parliament for Rugby. Mr. Brown felt strongly that his case before the Privileges Committee had been gravely injured because the Attorney-General at that time, the noble Lord, Lord Shawcross, had prevented the Privileges Committee from inquiring into a whole range of issues into which he felt it should have inquired.
I quote one sentence of Mr. Pickthorn, who moved the motion. He said:It is possible … to demonstrate that in recent Privilege cases—he meant the one then before the House—there has been a tendency on the part of some persons concerned—he meant the Attorney-General and then used a metaphor from hunting that I do not quite understand—to hunt their hares too tight, because, I suppose, they are a little afraid of slipping on to other scents".—[Official Report, 30th October 1947; Vol. 443, c. 1242.]Although the remit of the Privileges Committee in the second half of the motion speaks aboutthe sub judice rule … on … 20th April72 I should like to get it on record, as I tried to do last Thursday, that the Privileges Committee is at liberty to investigate the sub judice rule in toto. I hope that it will take that opportunity.
I have been raising the whole impact of the sub judice rule for 10 years. There was a short gap when I was thrown out of the House. It is on record that when the Enfield Grammar School case was before the courts I was rapidly silenced by one of your predecessors, Mr. Deputy Speaker, Lord Fletcher, for saying something about that case when I should not have been doing so. When the Tameside case came up, at a time when every national newspaper in the country was commenting on it and writing leading articles about the issue, I was ruled out of order for mentioning the case because the matter was before the Court of Appeal and then before the House of Lords. I submitted a long point of order to Mr. Speaker.
At times during the Gouriet case, when the Attorney-General had to face encroachment on the privilege of the House by the courts, the House was prevented from discussing an urgent matter of public importance, as many of us saw the case. It is fair to say that in the judgment on the thalidomide case—The Sunday Times case—Lord Justice Scarman in the Court of Appeal ventured to say—I suppose that technically it was a breach of privilege—that he felt that not only the courts but Parliament should tighten up their sub judice rules as they were completely out of phase. He said that something should be done about them.
I hope that the Privileges Committee—I am glad that the Chairman is in the Chamber—takes a wide view of his remit rather than the narrow and what I might call Shawcross view.
There is another matter that we have to take into account when we send these issues to the Privileges Committee. There are some lawyers on the Committee. When such a case arises the position of the lawyer is a difficult one. It is a position that is not absolutely straightforward. The lawyer has an allegiance both to the High Court of Justice and to Parliament. Once again, I make the appeal that when those on the Privileges Committee approach the matter they do so rigorously and on every occasion as 73 Members of the House and not as members of the High Court of Justice. When my hon. Friend the Member for Watford (Mr. Tuck) made his interjection I had the feeling—I may have been wrong—that he was speaking as much as a lawyer as a Member of this place. I accept that I may be absolutely wrong.
It has been said at various times that we must get the matter cleared up so that we may know the legal position. The truth that we must face is that in terms of how the public would understand the legal position on these issues there is not and never can be a legal position. We want to defend our privileges to the utmost, and I am sure that the House wants to defend its privileges to the utmost. The situation is not static. It is one that will be continuous and dynamic. Any attempt that we might make to clear up the matter would introduce the danger of eroding our privileges in favour of those of the courts.
I am proud of being a Member of this place with the right to use my privilege. I agree with the right hon. Member for Down, South when he said that there is no point in having privilege if we do not use it. On the other hand, if I happened to take Lord Denning's place as Master of the Rolls—I suspect that I never shall—I shall be equally keen on defending the privileges of the courts. The House will recall that Lord Denning, unsuccessfully as it turned out, attempted to tell the Attorney-General that he was answerable in his discretion to the Appeal Court and not merely to Parliament.
What worries me is that many of the statements which have been made by Members of the House over the last 10 days appear to have come from those who put their membership of and respect for the courts of justice before their respect for Parliament.
§ Mr. Percy Grieve (Solihull)
The whole point is that the privileges of the courts are not for the benefit of the courts, but to enable courts to do justice. Similarly, the privileges of Parliament are to enable Members of Parliament to do their duty as Members of Parliament. To emphasise these as one right against another is to mislead the public, who are listening, as to the respective merits of the two cases.
§ Mr. Price
I do not think that if the hon. and learned Member for Solihull (Mr. Grieve) had studied "Erskine May" with the minute attention that I have, really for the first time, over the last 10 days, he could possibly say that the privileges of the courts and of the House were not in conflict. As I understand it, not being a lawyer, we base our privilege on the fact that there is a law and custom of Parliament—Lex et Consuetudo Parliamenti. The courts have always tried to say that Lex et Consuetudo Parliamenti is part of the common law of Britain. We have always asserted from our point that it is not—what it is a law which is special to us and special to Parliament. In that situation, it is absolutely reasonable to expect Parliament to clash with the courts just as it has clashed with the monarch and other great institutions in Britain in the past.
The truth is that our sub judice rule has been changed in the past and is a developing rule. When the Conservative Government decided to bring the whole gamut of industrial relations into the ambit of the courts, it was immediately clear that, if they did that, they would gag Parliament to a totally unacceptable extent. Therefore, in 1972 the House, at the instance of the noble lord, Lord Carr, brought forward a motion to amend the sub judice rule so that, not only on the National Industrial Relations Court, but on both civil and criminal matters, Mr. Speaker could use his discretion to allow discussion to go on. From that point of view, I think that Members of Parliament must assume that, until the Chair intervenes, the Chair is using its discretion. Our sub judice rule is not an absolute rule. It is a rule within the discretion of Mr. Speaker, and he exercised it quite recently in the case of a constituent of my hon. Friend the Member for Sheffield, Heeley (Mr. Hooley) arising out of the Grunwick issue.
I think that those who expect the Committee of Privileges to come out with some kind of cut-and-dried rule on which, with a few hours' debate, we can vote and get clarity for the future may be expecting too much. I think that those privileges for which we have fought for many years have been worth fighting for and that, as a House, whatever the Committee of Privileges eventually reports, we would be foolish to throw them away lightly.
§ 5.45 p.m.
§ Mr. Nicholas Fairbairn (Kinross and West Perthshire)
I am obliged to the hon. Member for Lewisham, West (Mr. Price) for emphasising so consistently the concept of privilege and of absolute privilege. Absolute privilege is given only to the High Court of Parliament and to the courts of law. The conjoinder of that privilege is that it is exercised with absolute responsibility and that it is exercised alone by and is granted alone to those in the courts who, first and foremost, are the servants of justice and to those in Parliament who, first and foremost, are the servants of the Crown and of Parliament. It must be exercised with absolute responsibility.
It is perhaps because the word "absolute" is given that it is assumed that it is some form of anarchistic rule which enables all bounds of behaviour and all concepts to be cast aside and gives to the Member who has absolute privilege, be it in this High Court or in any other court, some kind of immunity from responsibility for his behaviour and utterances. But that is not so. It is the absolute reverse. It imposes upon a Member the absolute duty of responsibility for his utterances.
There would be nothing easier than for a member of the legal profession to use his absolute privilege to defame another member of the legal profession or another member of the public in the exercise of his forensic practice. But that would not be tolerated by the court, and the high standards of the profession would prevent it.
The House must also have its high standards and ensure that, under the cloak of what is called absolute privilege—as far as I can understand from the Gang of Four, it means absolute anarchy; the absolute right to undermine any rule and to do any mischief if they consider that it serves their purpose—Parliament is protected against those who use that great privilege merely to do mischief to the very rights which that privilege guarantees.
I greatly regret the absence not only of the Attorney-General, but of the Lord Advocate. As Members of the House will appreciate, and certainly as you, Mr. Deputy Speaker, appreciate, in recent times there have been different decisions 76 by the courts in Scotland about the rights of the media and of newspapers and newspaper editors. Certainly the name of the late Lord Justice General Clyde still stirs in the hearts of all news editors and newspaper editors the fear that they might be in contempt of court.
I think it very likely that the courts in Scotland will take a much stricter view of the effect of a publication by a newspaper or the media of a matter which had been raised in Parliament which had been deliberately forbidden by a court. For instance, if a court in Scotland said that the name of a witness was not to be revealed and, in order to defy that court, for whatever motive, a Member of the House were to utter it and a newspaper were then to publish it, as the law of Scotland stands I can say with certainty that there would be no defence for that editor if he were charged with contempt of court. He would have no defence whatever in the law of Scotland, whatever the law of England may be, and my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers) will know what that is. There may be a very different situation in Scotland. Therefore, I think that it is unfortunate that the interests of the law of Scotland are not represented by the Lord Advocate this afternoon.
In Scotland we have looked at this matter more closely and with more clarity than in England. As has been said—and I think that it was misunderstood—it is important that hon. Members should know that they cannot use absolute privilege in a vacuum. It carries with it absolute responsibility. A breach of that responsibility must be known to constitute a grave contempt of the House and of any other court in whose contempt it is.
It is an important principle, whether in this House or in any other court, that if one has the absolute privilege that we have, with it goes an absolute responsibility not to abuse it. If in this case there has been such an abuse, for any motive, I trust that the Committee will make that plain.
§ 5.51 p.m.
§ Mr. Robert Kilroy-Silk (Ormskirk)
I agreed almost entirely with everything that the right hon. Member for Down, South 77 (Mr. Powell) said. I shall also quote the sentence that he quoted from Mr. Speaker who said:Our privilege is something that was dearly obtained by our predecessors, but if it is abused it will be endangered."—[Official Report, 21st April 1978; Vol. 948, c. 866.]It was dearly obtained. As some of my hon. Friends have said, Parliament frequently has been in conflict with the Crown and the courts. The conflict with the courts still continues and will continue. That is part of a live, vital and thriving democracy. As my hon. Friend the Member for Lewisham, West (Mr. Price) said, there has been a recent major constitutional issue between Parliament and the courts. The Court of Appeal asserted that the Attorney-General was responsible to the courts. The Attorney-General forcefully and correctly asserted that he was responsible to Parliament. That was a conflict between Parliament and the courts. Conflicts are a natural feature of our constitutional history. We should not hide them, nor should we assume that there is a settled, establishment ethos to which we all subscribe and with which we all agree.
The rights and privileges that Parliament possesses were won. But they were won as a result of many battles. They were not handed down. Indeed, all the worthwhile rights that any individual has ever possessed are those for which someone had to fight. The worthwhile rights are not those which the individual has been given or has had handed down to him but for which the individual, or Parliament, has had to fight aggressively.
In the course of establishing the privileges that we now have and the freedoms that are extended to individual Members of Parliament, were not many rules broken, many conventions destroyed, many customs overturned? Had they not been, the powers that we possess today would not exist and we should not have a democracy.
It is also true, as Mr. Speaker said on 21st January, that if that privilege is abused it will be endangered. But it is equally right to say that there is no point in having a privilege if it is not used and if it is simply something that adorns constitutional textbooks. If a privilege means anything, it is there to be used by Members of Parliament when they think fit, in the interests of their con- 78 stituents and in the performance of their duties and functions as Members. If it is not used, it will certainly be endangered. It will be in danger of being fossilised.
I do not agree that the occasion that led to today's proceedings, when I and three of my hon. Friends named a certain gentleman, was an abuse of privilege. It was not an abuse of parliamentary privilege. My hon. Friends and I were entitled—and we properly exercised our entitlement—to say what we said on that occasion. Perhaps some Opposition Members and some of my hon. Friends found it regrettable and distasteful and did not agree with it. But by any stretch of the imagination that cannot be construed as an abuse of parliamentary privilege. That is a matter of taste.
As the right hon. Member for Down, South said, whether it is an abuse, whether it is discreditable or to be regretted, is a subjective matter. Of course it is a matter of judgment. Hon. Members must form their own opinions. It is for them to decide. But it is legitimate to point out that individual hon. Members have to make their own judgments about when to exercise—and I agree it must be responsibly and sensitively—the privileges, freedoms and rights that the House bestowed upon them. My contention is that the events of Thursday 20th April constituted such an occasion.
Many Opposition Members have referred to our motives and intentions. Since the allegations about our motives and intentions, in some quarters, particularly outside the House, have been hysterical and wild, it is not unreasonable for me to indicate what were our motives and intentions. Our intention was to draw attention to what we believe to be the widely discredited Official Secrets Act and the deplorable inability of my Government to introduce legislation, as they promised in their October 1974 manifesto, to repeal Section 2 of that Act. It was also our intention—and this is a part of our function—to draw the attention of the House and that of the wider public to certain proceedings which we believed were bringing the law into contempt. Many hon. Members might not share our belief, and I accept that. But it is our belief which was and is sincerely held. It is our belief that the proceedings that are now before 79 certain courts are bringing the law into contempt and are making a farce of it.
I shall not trespass upon your ruling, Mr. Speaker. The reasons for our belief are that a certain gentleman, appearing in a certain court, it is said, should not have been named. When you were not in the Chair, Mr. Speaker, reference was made to the sub judice rule. I shall not take issue with that now, but some hon. Members have asserted that there was an order of the court. That is a matter of dispute between the sides and I shall not take, that further. The gentleman in question appeared in open court. His identity was not considered to be sufficiently sensitive or secretive—
§ Mr. Speaker
Order. I think that the hon. Member is starting to discuss the case without mentioning it. We have been having a good debate. It was good when I was in the Chair. I hope that we can discuss whether the issue goes to the Committee of Privileges without arguing what is being argued before the courts.
§ Mr. Kilroy-Silk
May I talk of the hypothetical case of an individual who might have appeared in court and the court had asked that he should not be named? Since he did appear in court one could assume that his identity was not sufficiently sensitive or secret to prevent appearing in court or to suggest that the court should sit in camera.
This morning I spoke to the Royal Signals Institute. I was told that not only are all the people working in a particular organisation listed in its house journal but so are their promotions, postings, hobbies and addresses. That house journal is distributed to every member of that association. It is freely available. If that is so, I cannot understand how I and my hon. Friends could have caused this major constitutional crisis and debate today. That same person is named in every single document issued by the old boys' association—which goes all the way round the world. Any spy worth his salt could get a copy of it.
In those kind of circumstances, therefore, I contend that Parliament should not stand idly by while a Minister, who is not here today, who is not properly answerable to Parliament for his actions, and whom we cannot adequately ques- 80 tion, nevertheless is a party to and is taking certain proceedings that we are not allowed to discuss. We believe that his actions are in the best traditions of a Whitehall farce, and that we therefore have a duty to bring them to the attention of Parliament and to debate them, as we are tonight.
Very well, Mr. Speaker, we broke the rule—
§ Mr. Kilroy-Silk
The rule that the Opposition say we broke. If they wish to suggest that we have broken the rule, then let us accept that. I wish to submit, Mr. Speaker, though you have not yet allowed me to make my case, that there was no such rule, or that at least there was doubt about it. I believe that we would have been failing in our duty on the occasion in question if we had not done what we did. That was a proper and legitimate use of the privilege of which the right hon. Member for Down, South so eloquently spoke. That privilege is one of the reasons that we are here. I submit, too, that this is a matter of great national importance and that it demands debate and discussion. I cannot accept, as my hon. Friend the Member for Lewisham, West cannot, that on all occasions the courts should in effect arrogate to themselves the power to determine what Parliament may or may not discuss. In effect, that is what we in this High Court of Parliament are being asked to accept. If you like, Mr. Speaker—and I say this without any intention of disrespect—we are being told in a hypothetical instance by a magistrates' court what we in this House may or may not debate or decide.
All we did was to mention a name. It is absurd to suggest, as Conservative Members have suggested, that in doing that we were undermining a court or its jurisdiction or the result of a case. In no way did we discuss the merits of the prosecution or defence cases, or any other matter that was before the court. We mentioned only the name. Contrary to what the Conservatives alleged while you were not here, Mr. Speaker, we have not told the enemies of this country something they did not already know.
§ Mr. Kilroy-Silk
That is the problem. I understand that they are all around us. I should be the first to condemn anyone who gave such information to our enemies, whoever those enemies might be.
There are occasions—and my hon. Friend the Member for Lewisham, West has made this submission to you in the past, Mr. Speaker—where the sub judice rule stifled discussion and debate in Parliament. In this case this issue transcended the confines of the court. It required attention to be drawn to it and it required to be debated.
On Thursday my right hon. Friend the Prime Minister talked about leaks from the Ministry of Defence. Had there been a briefing on that occasion, everything would have been all right. As it was, civil servants were involved and there was therefore a leak. If those responsible are apprehended presumably they will be subject to all the paraphernalia of the Official Secrets Acts. They will be brought before the courts. In that case the matters before the courts will include Service men's pay, how far it has or has not fallen behind the pay of civilian occupations, allegations about manpower losses from the Services, and the further leak in The Times today about inadequacies in the equipment of the British Army of the Rhine.
Are we to say, if that happens, that this House cannot debate major issues concerning the effectiveness of our fighting forces, that we cannot talk about Service pay or the loss of manpower? The Conservatives would be in a state of apoplexy if that were suggested. They would say that this was a matter of great national importance that required to be debated in this House. Incidentally, I do not know what my right hon. Friend the Prime Minister is doing in attempting to find these people. He should have been publishing the information in the first place so that the House could properly debate these matters.
The rights and privileges which membership of this House bestows upon us must be exercised with discretion and judgment. I believe that that was how we exercised it and I believe that we were right.
I turn now to the motion that was tabled by the hon. and learned Member for Runcorn (Mr. Carlisle). It comes 82 under the umbrella that covers all the things that will be going to the Committee of Privileges. I am at a loss to understand the intent behind that motion. It is fair to point out that five of its six sponsors are lawyers, and perhaps they see their duty as being to a different court from the High Court of Parliament. Perhaps, bearing in mind the way that the Criminal Law Bill timetable was carved up to suit the convenience of the lawyers, they believe that on many occasions they have a higher duty than their duty to this House.
It is also relevant to point out that all the signatories to that motion are Conservatives. In the references to the Gang of Four, in what had been an arcane and relaxed philosophical discussion, there suddenly emerged these allegations about national security. Clearly the whole motive behind that motion, which it is suggested should be part of the motion submitted to the Committee of Privileges, is one of quick and cheap party advantage. Those behind the motion have been driven on by the more extreme and hysterically wild statements of the Tory Press. They see the chance of making party capital.
§ Mr. Carlisle
The hon. Member asked what my motive was in putting down the motion. I thought that I had made it clear that my motive was that I considered that the hon. Gentleman had behaved disgracefully. Having listened to him for the last 20 minutes, I have no reason to change my mind one iota.
§ Mr. Kilroy-Silk
That is another party point. For that reason, and in view of the hon. and learned Gentleman's comments, I cannot see the value of referring this matter to the Committee of Privileges. Surely that is not the place for the party battle to be fought out. I cannot believe that it would be conducive to a dispassionate, objective and fair discussion of the conduct of hon. Members in this matter if the hon. and learned Gentleman's motion were to be referred to the Committee in the vindictive atmosphere which it has generated. Incidentally, it embodies many of the expressions that appeared in the Tory Press, which has been most wild and hysterical in this matter. The supporters of the motion were clearly motivated by the politics of the witch hunt.
§ Mr. Robin F. Cook (Edinburgh, Central)
Does my hon. Friend not agree that it is precisely the tone of the intervention by the hon. and learned Member for Runcorn (Mr. Carlisle) and the references to the Gang of Four in the preceding speeches from the Opposition Benches which illustrate the grave danger of this House seeking to determine when the use of privilege is use or abuse of that privilege? In these circumstances, the matter inevitably becomes one of partisan relationships. At present every hon. Member enjoys absolute privilege, but the danger is that that will become a privilege which can be relied upon only by those who can command a majority in the House.
§ Mr. Kilroy-Silk
I accept what my hon. Friend said.
There is another aspect to this matter. You will remember, Mr. Speaker, that you told the House that you were in ignorance of what was happening in the courts when three hon. Gentlemen and an hon. Lady made certain comments during supplementary questions to the Business Statement last Thursday week. The first of those hon. Members—my hon. Friend the Member for Barking (Miss Richardson)—as the right hon. Member for Down, South said, was not brought to book. Had she been so, I can say quite clearly that my hon. Friends and I would have accepted unequivocally the ruling of Mr. Speaker. But he did not intervene and, as he has rightly pointed out, nor did any other hon. Gentleman. It does not become the right hon. Member for Cambridgeshire (Mr. Pym) in opening the debate to say that they did not know about this. That is just not true. There were cries of that lovely Tory word "disgraceful" when my hon. Friend first mentioned the unmentionable name. There were the usual discreet tut-tuts, all of which were heard quite clearly and distinctly on the radio that evening.
Obviously, hon. Members opposite knew very well what was going on. They had the weapon in their hands to stop it then and there, had they wished to do so. But they chose not to. It was only when the hysteria generated by the newspapers on Saturday made them feel that suddenly they were on to a good thing, that there was party capital to be made 84 here, that they could talk about traitors and treason, that this whole thing became quite a different issue—and a party issue at that.
That is regrettable because it means that we cannot discuss the matter in the important and dispassionate way that it demands. It also prejudices very seriously the discussions of the Committee of Privileges.
I turn to the Committee of Privileges itself. If the conduct of myself and my hon. Friends is to be referred to that Committee, I submit that its proceedings, should be open. I have nothing to hide or to fear from open meetings of the Committee. These should be open to the Press and to the public so that there can be full public discussion and debate on the whole matter.
It is somewhat ironic that this should have arisen out of the secrets trial that is being held in the open. Yet this case will be held in secret. If we are to avoid the impression to those outside, and indeed to myself and my hon. Friends, that we are not being asked to go before a kangaroo court or something reminiscent of a Star Chamber, I suggest the meetings should be open.
An element of hypocrisy has bedeviled this issue. My hon. Friend the Member for Sowerby (Mr. Madden) requested an emergency debate on Press freedom recently. Nothing more illustrates the double standards and hypocrisy of the Press than the way in which it has treated this matter. The Daily Mail, The Sun, the Daily Express, the Daily Mirror, The Guardian and The Times all named the particular individual on Friday. Then on the Saturday when they had had time to think about it, and they found that they had got their knickers in a twist slightly, The Sun, the Daily Mail and the Daily Express ran highly censorious, hysterical, wild and critical admonitions of myself and my hon. Friends. I accept that. It is perfectly legitimate.
However Press freedom has two sides. Just as the freedom of the Press means that newspapers can print what happens in Parliament, it also means that they can exercise their own discretion and judgment and decide not to publish anything that they believe to be in bad taste, regrettable, unfortunate or even, perhaps, aiding and giving sustenance to our 85 enemies. Yet the papers used that name in the name of Press freedom one day and condemned myself and my hon. Friends the next.
One important thing has come out of this affair. My hon. Friends and I had, as our main objection, not the particular colonel, but the Government's refusal to legislate, as they promised this Session, to repeal Section 2 of the Official Secrets Act and replace it with a freedom of information act. If we have succeeded in drawing attention to that, the whole exercise has been worth while.
§ 6.15 p.m.
§ Mr. Robin Maxwell-Hyslop (Tiverton)
An element of the confusion which seems to have arisen concerning the events of Thursday 20th April is due to the fact that the word "privilege" is used in two completely different contexts. It has been used to refer to the privilege of Parliament, the House of Commons and the House of Lords on the one hand, and to the absolute privilege and qualified privilege in the context of civil law on defamation on the other. Because the same word has been used in totally different contexts, inferences have been drawn which are absurd and misleading rather than informative.
If we start from the accepted fact of doctrine that this House cannot, by auto-resolution, extend its own privilege, it becomes clear that this reference to the Committee of Privileges cannot have as its result the extension of the privilege of the House of Commons to an ambit in which it did not previously exist.
It is possible by legislation, by enactment, by statute law to extend the privilege of Parliament as a whole or of either or both of its Houses, but it does not lie within the competence and the power of the Committee of Privileges or the House of Commons to extend its privilege where it does not currently exist. On that we should be quite clear.
Therefore, the task falling to the Committee of Privileges, if this motion is carried, will be one of judging rules and judging conduct, but not one of deciding whether the privilege of this House should be declared to extend where Mr. Speaker has—in my opinion—so very rightly declared that it does not extend.
The only reason why anyone could have believed that the privilege of this 86 House extended into a territory where it clearly does not extend is that there has been the confusion to which I have already alluded. The fact that a newspaper or an individual outside this House can, in certain circumstances, plead absolute privilege or qualified privilege as a defence to a civil action for libel or slander has nothing whatever to do with the privilege of Parliament. It has a lot to do with the law of defamation, but nothing to do with the privilege of Parliament.
Similarly, if somebody commits treason within the House that does not lose the characteristic of treason because the same act is committed by repetition outside the House. What privilege does is something else. It was summed up rather well in the ninth article of the Bill of Rights. What privilege says about this House is not that there is absolute licence to say anything within its precincts—in the Chamber or in a Committee Room during a formal sitting; what privilege says is that a court exterior to this House shall not inquire into such acts within the Chamber. But it does not say that there is a licence to say anything within the Chamber. Indeed, the reverse is sometimes the case.
We are bound by our rules not to refer in debate to happenings in Committees of this House upstairs which have not yet reported to this House and to happenings in open sittings of such Committees, yet it is no breach of privilege for a newspaper to report such happenings.
This works both ways. There are breaches of our own rules in the House, which the House has customarily punished, which would not necessarily be offences if committed outside the House. It has been held that the privilege of the House does not extend to an hon. Member who has made a speech, under privilege, in this Chamber and has defamed a person in the course of doing so when that Member has sought to extend the frontier of the privilege of the House by reading his own speech outside the House. It has been held that that does not extend the umbrella of parliamentary privilege outside the House.
Certainly there are ambits in which the privilege of the House extends outside the House—and necessarily so. The House has always claimed, as part of its 87 privilege, the right to protect in a certain way witnesses who have given evidence before a Select Committee of the House or at the Bar of the House.
Many of us will recall a recent case in which an employee of the National Coal Board gave evidence to a Select Committee of the House and subsequently claimed that he had lost his job through victimisation by his employer because of the evidence that he had given to the Select Committee. The reason why the House did not punish that man's employer for breach of privilege was not that it decided that privilege did not exist in that context; it was that it decided that the complainant had not established the facts that he alleged, namely, that he had been punished for evidence given before a Select Committee. That is an example of the privilege of the House necessarily extending outside its precincts.
There are other occasions when the analogy is more that the precincts of the House extend themselves, as when, elsewhere in the United Kingdom, a Select Committee duly appointed by resolution of the House takes evidence in formal session. In that event, the privilege of the House extends outside the Palace of Westminster. The privilege of the House extends outside the Palace of Westminster when the Serjeant at Arms is sent with Mr. Speaker's warrant—or, in olden days, bearing the Mace to expose it as the authority of the House—to bring before the House a person whom the House has commanded to be brought. However, these are exceptions to the normal rule of the privilege of the House being something spacially, as well as contextually, limited to the House.
It has also been held that to report accurately outside the House one speech, without reporting the rest of the debate—not in terms of parliamentary privilege, but in terms of that entirely different kind of privilege, which is a defence to an action for defamation—is not a good defence.
The old law and constitution of Parliament have been mentioned. It is true not only that we cannot extend our privilege but that in certain contexts that privilege has atrophied. The House once claimed that to arrest a Member's servant 88 outside the House under conditions in which it would be a breach of privilege to arrest a Member constituted a breach of privilege and warranted punishment in the form of being summoned here and admonished by the House.
However, as to the motion before us, there is no real decision that the Committee of Privileges has to take on the question whether the privilege of the House has in any way been infringed by or is concerned with the events of Thursday 20th April. Clearly, it has not.
The Committee of Privileges must consider what goes with the privilege. The self-discipline of Parliament goes with the privilege of Parliament. It is an absurd view that such self-discipline ought not to act unless and until it is imposed by Mr. Speaker. That proposition was advanced earlier. It means that unless Mr. Speaker possesses precognition, no one is capable of saying any thing in the House that the House would wish to prevent or punish until it has been said and Mr. Speaker has intervened and declared that it should not have been said. That is a manifestly absurd proposition. After all, Mr. Speaker is a servant of the House and not its master. The rules of which Mr. Speaker has the duty to remind Members are not Mr. Speaker's rules; they are the rules of the House of Commons itself.
The question that often comes before the Committee of Privileges is not, therefore, whether there has been a breach of privilege, as such, but whether an hon. Member or a group of Members have so conducted themselves—this has not always to do with spoken words, but can have to do with actions taken—as to constitute in some cases an abuse of the privilege of the House, and in this case an abuse of the privilege not to have a court outside the House inquiring into words said within the House.
On other occasions the conduct that the Committee of Privileges is charged with assessing and on which it is charged with commenting and making a recommendation to the House can vary. There could be such conduct as deliberately delaying a Division so that the normal procedures of the House are frustrated. One such instance will be within the memory of many Members. That is the function of 89 the Committee of Privileges. When performing that function, it is not in any sense ruling or declaring; it is only advising the House which sets it up in the first place.
The question has been asked whether we mean to change any of our practices. That falls more naturally within the remit of the Committee on Procedure than within the remit of the Committee of Privileges.
§ Mr. Raphael Tuck
I was not suggesting that the question of enlarging the rules about mentioning anybody's name should be sent to the Committee of Privileges. I was merely suggesting that it should be considered because it would have obviated the difficulties in which the House is now placed.
§ Mr. Maxwell-Hyslop
If we can agree that something should be considered, that does not necessarily mean that the most appropriate place for it to be considered is the Committee of Privileges rather than the Committee on Procedure.
There have been occasions when the House has wanted to debate a matter in private and has wished, at the same time, no record of the debate to be made. It has done this either by the technical device of spying strangers or by a concrete resolution of the House to go into secret session.
Whether such a device should be used when the House wishes to discuss a matter that is not of national security but is sub judice—although the one does not exclude the other—is surely a question that properly falls within the province not of the Committee of Privileges—it has nothing to do with privilege—but of the Committee on Procedure—it has everything to do with procedure.
That is why, out of the events that have led to the debate, we should disentangle the strands of judging the conduct of some of our colleagues, if we believe that this task needs to be performed, and of recommending any changes in procedure which may be necessary so that the House can legitimately debate matters that it is proper for it to debate but publication of which outside the House would frustrate another purpose, such as the high purpose of justice, so as to bring about an apparent collision of objective between Parliament and the 90 courts, both of whom have functions pro bono publico to perform.
I recommend the Leader of the House to refer to the Committee of Privileges the question of the conduct of the hon. Members who, on Thursday 20th April, mentioned the name of the officer—an action which some claim was in circumstances that were sub judice and others claim was not—and, quite separately, that there should be referred to the Committee on Procedure, as it has nothing to do with privilege, the question whether the House should devise means whereby both Parliament and the courts can, separately, perform functions, for example in the context of the sub judice rule, in such a manner that they do not impair each other's functions. This is an entirely necessary and sensible course of action.
As a sub-heading comes any problem that may arise within the context of instantaneous transmission. There is a possible solution to this problem. In the past hon. Members have been entitled to spy strangers. I have done so once myself, with the result that the Question is put, without debate, that strangers should be ordered to withdraw.
There is no reason why the Committee on Procedure should not recommend and the House adopt a Standing Order that an hon. Member may rise on a point of order and say that he wishes to raise a matter that is sub judice, of which he has given Mr. Speaker private notice—so that he knows what the hon. Member is talking about—and, if Mr. Speaker considers that it is a proper matter to put to the House, he may order that the Strangers Gallery and the Press Gallery should be cleared and that instantaneous transmission should be terminated. There is no reason why such a procedure should not be adopted for a sub judice matter, in the same way as it is adopted in a security matter when there is consensus in the House or when a majority of the House believes that such action is desirable.
§ Mrs. Audrey Wise (Coventry, South-West)
Does the hon. Gentleman not recognise the irony implicit in his remarks, which seem to lead to the suggestion that in future we should make a practice of having secret sessions, as this debate arises out of the need to have our proceedings reported?
§ Mr. Maxwell-Hyslop
I do not recognise any irony at all. It is clear that some hon. Members feel that circumstances arise in which there are matters that they wish to discuss in the House, but that its rules do not allow to be raised.
There is no irony in suggesting means by which such desires can be accommodated without frustrating another process of the State pro bono publico, namely, the administration of justice in the courts. It would be ironic if the House were unable or unwilling to face and deal sensibly with such an obvious problem in a number of obvious ways, one of which I have spelled out. There is no irony in that.
It may be that if the Leader of the House agrees with the analysis that I have offered of the functions of the Committee of Privileges of judging conduct and the Committee on Procedure of regulating this aspect of our affairs, he will think it right to ask leave to withdraw this motion and table two separate motions that would give effect to the suggestions that I have thought it right and helpful to make to the House.
§ 6.38 p.m.
§ Miss Jo Richardson (Barking)
Until the end of the speech of the hon. Member for Tiverton (Mr. Maxwell-Hyslop) I thought that he had not read the motion. He was not talking to the motion, but seemed, rather, to have put my colleagues and myself in the dock. As far as I could follow his tortuous, not to say hybrid, argument, that seemed to be its whole purport.
I welcome the debate and the opportunity to explore the situation that has arisen since 20th April and that is exercising the House. I have listened with great care to what hon. Members on both sides of the House have said and I must tell those who have been critical that I am entirely unrepentant of having taken the action that I did on 20th April.
I gather that the action taken by my hon. Friends and myself has been repeated by the counsel for the Attorney-General, who named the same gentleman in court today. While speaking about the Attorney-General, I welcome the appearance on the Government Front Bench of a representative from the Law Officers' Department. We have commented before that there has been no one 92 from the Department to listen to this important debate.
The action of my hon. Friends and myself was not taken in an irresponsible sense of mischief as some newspapers have suggested. Right hon. and hon. Members in this debate have implied that all four of us have been abusing the privilege given to Members of Parliament in this House. Others have already made the point that it was a hard-won privilege—a privilege that exists for each of us to use as we, in our judgment, feel necessary.
I decided to use that privilege because I felt that it was in the public interest to do so following the action of the Director of Public Prosecutions. That is what originally caused me to do what I did. I also wanted to try to expose the difficulties of journalists in reporting details of court cases which are of wide interest to the public as well as to this House. We know that two newspapers and the National Union of Journalists are now in court in defence of the rights of newspapers to report facts to the public.
Our decision to broadcast parliamentary proceedings gives weight to this point. The media, by feeding in voices, can now add a bit of colur and bite to descriptions of what happens in this place. Part of our proceedings are broadcast live, and I understand that that is now happening to this debate.
Reference has been made to the difficulties that would arise if we ever thought of censoring the live part of the broadcasts. It has also been suggested that somebody would have to have his hand on the buzzer. I believe that in some live broadcasts—I am not referring to broadcasts of our proceedings—it is the practice for the broadcast to go out 10 seconds behind the actual spoken words. I understand that this enables the person in charge of the broadcast to have an opportunity to cut out a doubtful reference. I suppose that is done in order to try to cut out obscene language, which may be embarrassing if heard over the radio. That criterion does not apply to the House of Commons. We surely do not want to see censorship creeping in here.
It is obvious that live broadcasting will create new situations. The sooner we sit down and realise that we are into 93 a new ball game the better. I believe that we must now consider the matter on the basis of the question whether it is right that the people who sit in the Public Gallery should hear things which the wider public, when the broadcasting is edited, may not hear. That is one of the problems that we must consider.
Another reason why I took the action that I did on 20th April was that I was very keen to draw attention to what I believed was an absurd situation in the courts. If there is a contempt case in a court which hon. Members feel is deeply wrong and absurd, are we not to use our hard-won privilege to expose the absurdity of the situation? I am not suggesting that we should discuss the case itself. I do not believe that a court trying a contempt case would be particularly prejudiced one way or the other by what was said in the Press or in this House.
I am not a lawyer, but I understand that contempt cases are tried by judges rather than juries. In 1960, in the Court of Appeal, in the case of R. v. Duffey, Lord Chief Justice Parker commented that where experienced judges alone decided the issue they could be relied on to be completely uninfluenced by Press reports. That being so, it would seem to me that there is no reason why a Member of Parliament should not comment on a matter without influencing the court in any way.
There is one aspect of the sub judice matter that mystifies me. One of my hon. Friends reminded me that over a period of two years when the Clay Cross councillors were going through the courts, week after week and month after month, the subject of Clay Cross was often mentioned in this House by hon. Members on both sides. On those occasions there was no question of the sub judice rule being invoked. Since I am not a parliamentary expert, I wish somebody would explain how some cases may be commented upon whereas others may not.
I understand that in 1972 there was a resolution of the House that led Mr. Speaker to admit reference in debate to matters awaiting adjudication in court—matters of national importance. I believe—you will correct me if I am wrong, Mr. Speaker—that in 1976 you confirmed this suggestion when you spoke of the deliber- 94 ate relaxation of the rule in matters of public policy.
The cases that gave rise to this debate this evening are certainly matters of public policy, but the principal reason why I took my decision was that I felt deeply that something should be done to draw the attention of the House and the public to the difficulties facing everybody in this country as a result of the continuing existence of our present Official Secrets Act, and the severe restrictions that it places on the freedom of information. That is a matter of public policy and one on which one was entitled to take action.
A reason for withholding the name of a witness in a case could be to protect him against enemy action. However, this could introduce into a trial an air of unnecessary secrecy which would be prejudicial to the defendants. If emotive phrases such as "national security" are used by the prosecution in the context of cases under the Official Secrets Act, they have a sinister air in the minds of the public in respect of the defendant.
The phrase "national security" was frequently used in the long arguments in the House about the Agee-Hosenball case—the case that started the whole saga that led to this debate. Justice was not done in that case, because the Secret Service cloak prevented a revelation of the charges against those concerned, and the Government found themselves in a ludicrous position. That is shown by the fact that one of the two gentlemen concerned, Mr. Mark Hosenball, who was finally deported and returned to the United States, in a matter of weeks became an accredited Press representative to the White House.
This House should be concerned with the law and should ensure that justice is done to investigative journalists whose only crime in this instance is to try to dig up material showing the stupidities of the Official Secrets Act. I remind the House and particularly my right hon. Friend the Leader of the House that in our October 1974 manifesto Labour promised to replace the Official Secrets Acts. We are not nitwits. We all accept that genuine defence matters and matters of national security must have a cloak of secrecy around them. There is no question about that. But we must not 95 lose sight of the rights of the individual citizen to question and to know what the Government are doing.
We have been promised a White Paper on official secrets in a few weeks' time. From what we have heard, it will do little to help the situation. Unless we can expose the difficulties in which every citizen remains while we have the present Acts, we shall go on for years with the minimum revision of Official Secrets Acts, which will endanger every individual. We understand that all that will happen is a revision of Section 2. That is not enough. We should also have a revision certainly of Section 1 and possibly many other sections. Let us have a genuine debate about the whole matter while we are about it.
What the Government apparently intend to do in no way carries out the spirit and the message of our election manifesto commitment. Incidentally, I am glad to hear that the national executive of the Labour Party is producing far-reaching proposals for a freedom of information Act. Perhaps the next Labour Government can be persuaded to implement them.
This country has had enough of unnecessary secrecy, secrecy which frightens citizens into a blind acceptance of what "authority" wants them to know. A real democracy involves challenge to that authority. Full freedom of information, which would have made unnecessary this debate and the actions of my hon. Friends and myself, is fundamental to healthy and open government.
§ 6.53 p.m.
§ Mr. John Mendelson (Penistone)
The hon. Member for Tiverton (Mr. Maxwell-Hyslop) did not respond to an offer of an example of irony from my hon. Friend the Member for Coventry, South-West (Mrs. Wise). I make another suggestion to him, which perhaps will receive a better reception.
To some extent this debate is connected with the recent decision to broadcast the proceedings of the House. It does not centre solely upon that decision, but it is not wholly unconnected with it. Does it occur as a possible and acceptable irony to the hon. Gentleman that for the first time since the war, a few weeks after we decided to broadcast the proceedings 96 of the House, an hon. Member in all seriousness made the suggestion that we should go into secret session?
§ Mr. Maxwell-Hyslop
I suggested that we should go into secret session to enable us to discuss matters that we should not have been able to discuss even before broadcasting came, so there is no irony in it whatever. This would still have been the case in such circumstances, even without the advent of broadcasting.
§ Mr. Mendelson
There is no doubt about it. The House knows what the hon. Gentleman had in mind. None the less, even though it may not appeal to the hon. Gentleman, I think it worth while putting it on record that those many right hon. and hon. Members who foresaw a number of problems that might arise if it were once decided to broadcast the proceedings of the House, by television or by news radio and sound broad-casting, also foresaw that those problems would not be only of a technical character.
When he thinks the matter over at home, the hon. Gentleman may accept at least a smile of irony at the suggestion that it is at this early stage that the suggestion of a secret session has been seriously made. I hope that it will not be followed up by my right hon. Friend the Leader of the House, in spite of the blandishments in the hon. Gentleman's speech. I know that my right hon. Friend is not a friend of secret sessions. I hope that the emergency that produced secret sessions in the middle of the war wilt not occur over the next hundred years, so that a future generation deals with this proposal.
This may be a day to say, when we are reminded that there are so many big problems of enemies at various doors, that we must take into account a number of matters when we discuss our proceedings and the decisions that we must make in this House. But although it will be agreed that broadcasting is an element in this debate, it is not the main element.
I am glad that, as is characteristic of him, the hon. and learned Member for Runcorn (Mr. Carlisle) is still with us after making his speech. He is not in the habit of quite a number of others of producing a propaganda blast, making accusations against other hon. Members 97 and then absenting himself for the rest of the debate, as the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) has done. If he makes accusations against hon. Members the hon. and learned Gentleman should be here to face their replies and the replies of others, and not run away after he has made the attack.
The hon. and learned Member for Runcorn, as always, is taking his stand after making his speech and is ready to reply to responses to it, so I begin with him, because in many ways his was perhaps the key contribution from one side of the argument. I should like the hon. and learned Gentleman to consider, first, that this is a rather peculiar debate in its origins. I completely reject any suggestion that if the motion were carried by the House there would be any instruction to the Committee of Privileges from the House that four Members, or any Member, should be indicted and any offence that they are alleged to have committed should be considered by the Committee. There is no such motion before the House. This point has not yet been made in the debate, and it is one of the main reasons why I was anxious to take part, even at this late stage.
As you well know, Mr. Speaker, and as the House knows, if any suggestion is ever made that Members or a Member should be referred before the Committee of Privileges for an offence they are alleged to have committed, what is needed is a motion. Before that motion can be moved, Mr. Speaker, you must rule that a prima facie case exists. You have not so ruled. You have not been asked to rule, and therefore you could not rule. We do not know whether you would have done so if you had been asked.
Therefore, the situation is quite different from the normal cases of motions to refer the conduct of Members to the Committee of Privileges, and so the hon. and learned Gentleman is quite wrong if he says that his main purpose is that this should be done by the Committee. He and his colleagues put down an Early-Day Motion. There are hundreds of Early-Day Motions on the Order Paper. But an Early-Day Motion does not have the force and power of an instruction to the Committee. Such a reference can come about only by resolution of the House. That is the first point that I wish to put 98 on record, and I think that it is relevant to the debate.
What we have is a motion. It is only because it is worded as it is that I, and I dare say many other hon. Members and right hon. Members, may be prepared to vote for it. The purpose is that all the matters involved in the problems that have been raised may be considered by an appropriate Committee of the House, to see where we stand, to make a general survey, to consider the principles and all the possibilities and consequences that might arise from changes such as the broadcasting of the House, and attitudes recently adopted in the courts which as a consequence might be introduced into the work of the House.
I say in passing that over the years I have been one of those—I am by no means alone—who have argued that if the House is to reform its procedure, it must do so by its own decisions, in order to serve the public better, not because of the introduction of mechanical instruments from outside. We have so far rejected, and I shall certainly continue to reject, the introduction of the television cameras into the Chamber, because we do not want the House to be reformed by outside cameras. If we need reform—and clearly the House must from time to time reform its procedure—it must be done by us in response to needs that arise because we want to serve the public better.
That brings me to the definition of privilege that has been used a good deal this afternoon. Of course, we are all agreed that it is a most unfortunate term. The hon. and learned Member for Solihull (Mr. Grieve), briefly intervened in the speech of my hon. Friend the Member for Lewisham, West (Mr. Price) to tell him very briefly, before also disappearing, that of course the courts were there only to serve the system. He did not make it clear to me what we are here for.
I have always understood that it was common ground that the term "privilege" is a misnomer. Privilege means that Members of Parliament are given such conditions of work as enable them to do their job for their constituents without their security being endangered. I am glad to see that I carry the Father of the House, my right hon. Friend the Member for Vauxhall (Mr. Strauss) with me in my remarks. In years gone by, in 99 its most primitive form, privilege meant that if a Member wanted to raise a matter affecting the interests of some of his constituents and there were powerful people in the constituency who might attack him, he would be protected and enabled to do his job properly without fear or favour.
To try to erect a contrast between the function of a court and the function of Parliament is absurd. It belittles the equally important functions of Parliament and the House of Commons. The creative tension between a system of justice that is divided into the courts and the High Court of Parliament is bound to be continuous. There can be no escaping that. My right hon. Friend the Leader of the House will agree that it need not be unhealthy, provided that all of those involved take their stand.
One of the things that has disturbed me today—I say this without rancour to hon. and learned Members—is that so many members of the legal profession have to some extent belittled the function of Parliament as compared with the function of the courts. That is a dangerous tendency which we must not allow to creep into our debates. The consequence of our debate ought to be that the Committee of Privileges must approach the problems that we refer to it in the broadest possible way. If my right hon. Friend is prepared to give that assurance, I shall be prepared to support the motion.
It ought to be clearly understood that it is completely unworthy of hon. Members to make accusations of a rather personal nature, either in the Press or in this House, against my hon. Friends. The House knows that I would say the same thing if all four Members sat on the Opposition side of the House, or belonged to any third or fourth party. It was quite clear—I was in my seat on the afternoon in question—that all the hon. Members involved were doing their job in the public interest. They were raising a matter on grounds of public policy. No other motivation was possible. That being so, they must be the judges of what they think right and of the methods they use.
We should allow no one, either you, Mr. Speaker, or any Committee of the House, to prevent what we say being published. To do that would be to embark 100 on the road to censorship. I do not believe that any hon. Members wish to censor the House of Commons. But the danger exists. It is easy to fall into the trap of saying that some hon. Members are more responsible than others. It is well known that some of the greatest parliamentary heroes in the history of this House were regarded as the most irresponsible at the time when they were doing their most famous parliamentary deeds. I need not rehearse their names or labour the point in an assembly as well-informed as this House.
Some of the most important points in today's debate were raised by my hon. Friend the Member for York (Mr. Lyon) and the right hon. Member for Down, South (Mr. Powell). The Opposition Front Bench and other right hon. and hon. Members ought to join with us in saying that the only proper instruction to the Committee of Privileges is that it should consider this problem in the broadest possible sense. There is no mandate to indict anyone. The Committee should give us an outline of the way in which it thinks we can best organise these matters in the future.
§ 7.4 p.m.
§ Mr. Foot
May I intervene with one or two sentences? I am sure that everyone who has listened to the debate will agree that it is bound to be extremely helpful to the Committee of Privileges when it meets—from the speech of the right hon. Member for Down, South (Mr. Powell) to the speech of my hon. Friend the Member for Penistone (Mr. Mendelson) who has just spoken. I am not even excluding the speech of the right hon. Member for Cambridgeshire (Mr. Pym). Those speeches will have helped shape the way in which the Committee of Privileges can approach this matter.
I am glad to give my hon. Friend the Member for Penistone the assurance for which he has asked. Of course, I believe that the motion is framed so that all these matters can be considered in the widest context. The motion might be regarded as an Aaron's Rod of a motion, eating up all the other snakes in the other motions. I am not casting any aspersions on those other motions.
§ Mr. Foot
The Committee of Privileges will be free to come to any conclusions that it wishes and to make recommendations to the House. It is the House that decides the matter eventually. The Committee of Privileges, like every other Committee of this House, is subordinate to the House. In some respects, it may be that when the House of Commons or the Committee of Privileges looks at what has happened it will see the reasons for some of the privileges that we have and why they should be sustained.
I believe that there are other matters that have arisen that need to be looked at and that the Committee of Privileges is the proper body to which these matters should be sent. As in all such cases, this House will retain the final authority to decide the matter when it comes back to it. I am sure that when the issue does come back we shall need to debate it again. On that basis, I hope that the House will be prepared to accept the motion.
§ Question put and agreed to.
That the matter of publication of the Proceedings of the House, other than by order of the House, in so far as the Privileges of this House are concerned and the matter of the application of the sub judice rule during Business Questions on Thursday 20th April be referred to the Committee of Privileges.