HC Deb 24 June 1996 vol 280 cc54-75

'.—(1) Where proceedings in Parliament are in issue in defamation proceedings, the House of Parliament in which the proceedings in issue took place may, if such relief is sought in a petition from a plaintiff in those defamation proceedings who is or has been a Member of that House, waive for the purposes of those defamation proceedings the protection afforded to that person by any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament.

(2) Where one House of Parliament waives that protection, any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made in or to the court about the conduct of the person in relation to whom it has been waived and no such proceedings in the court shall be regarded as infringing the privilege of that House, but—

  1. (a) the waiver of that protection by one House of Parliament does not affect its operation in relation to the other House;
  2. (b) the waiver of that protection in relation to one person does not affect its operation in relation to another; and
  3. (c) the waiver of that protection in relation to one cause of action does not affect its operation in relation to another cause of action.

(3) Nothing done under this section shall affect the protection which is afforded to a person from legal liability for words spoken or things done in the course of or for the purposes of or incidental to any proceedings in Parliament by any enactment or rule of law.'.—[Mr. Boateng.]

Brought up, and read the First time.

5.25 pm
Mr. Paul Boateng (Brent, South)

I beg to move, That the clause be read a Second time.

Madam Speaker

With this, it will be convenient to discuss the following: Amendment (a) to the proposed new clause, at end add— '(4) This section does not apply where the cause of action arose before the section came into force.' Amendment No. 21, in clause 13, page 10, line 32, leave out from beginning to end of line 17 on page 11.

Amendment No. 43, in page 11, line 17, at end insert— '(4) This section does not apply where the cause of action arose before the section came into force.'. Amendment No. 22, in clause 18, page 13, leave out line 2.

Amendment No. 44, in page 13, leave out line 15.

Amendment No. 23, in page 13, leave out line 31.

Amendment No. 24, in clause 19, page 14, leave out line 6.

Mr. Boateng

New clause 9 and the amendments grouped with it arise as a result of a widespread concern in the House, which was reflected in Committee, at the proposals in clause 13. That clause, as drafted, would overturn, and change in relation to article IX of the Bill of Rights, a major plank of our constitution. It is proposed to enable an hon. Member who is suing for libel to waive a privilege that has long been enjoyed by Members of the House in order to enable him to sue more effectively. It is also proposed to enable the court to determine and to rule on matters which would otherwise be considered proceedings of the House and on which it would otherwise be unable to rule.

In his point of order, the right hon. Member for Worthing (Sir T. Higgins) outlined the dilemma that the House faces as a result of the Government's handling of the matter. We were told, both in the other place by the Lord Chancellor and in this House by the then Parliamentary Secretary, Lord Chancellor's Department, that the Government's stance on the subject was neutral. We were told that there would be ample opportunity to debate the matter on Report. Were it not for the fact that the Opposition tabled new clause 9 and for the action of other Opposition Members in tabling the amendments, we would not be having this debate.

The Government have been far from neutral on the matter. What we wanted at this stage of our deliberations was a full debate that enabled the House to determine what course of action it wished to take in relation to this fundamental constitutional issue. There should have been a range of options that we as a House could freely debate—it will be a free vote for the Opposition, and, I understand, for Conservative Members. Those options would have contained each of the elements now included in new clause 9, in amendment (a) to it, and in amendments Nos. 21 and 43.

New clause 9 enables a Member who is suing for libel to waive privilege, but only in narrowly defined circumstances and with the approval of the House. It is drafted to limit the capacity of the courts to rule on the extent of privileged proceedings of this House, and it reasserts the collective nature of parliamentary privilege as belonging to the House as a whole rather than an individual Member. That is central to our concerns—and, I hope, to those of some Conservative Members—about clause 13. Privilege is a matter for the House, not something that we would enjoy except as Members of the House. We enjoy privilege so that we can better carry out the democratic purposes of the House.

New clause 9 asserts the collective nature of privilege in a way that recognises also that there are hard cases. The hon. Member for Tatton (Mr. Hamilton) probably feels that his is just such a case. When hard cases arise, however, it is surely right that the whole House should determine whether someone's privilege should be waived; not the individual Member.

Amendment No. 21 deletes the whole of clause 13, which was inserted on Third Reading in the other place, leaving the law as it stands. The effect of amendment No. 43 and of amendment (a) to new clause 9 is to ensure that no change will apply retrospectively; in other words, they bring clause 13 or new clause 9—whichever the House determines to proceed with—in line with every other major provision in the Bill.

The dilemma outlined by the right hon. Member for Worthing in his important point of order is an exact consequence of how the Government have chosen to proceed. The proper course would have been to produce a range of options for the House to consider. Then we could have held a free debate on them; the right hon. Member for Worthing could have chosen, for instance, to vote to remove clause 13 altogether. Then, if it fell, we could have debated whether the House, in certain circumstances, should be able to waive privilege to allow a Member to remedy a particular injustice. Thereafter we could have determined whether clause 13 met the requirements of the House in terms of privilege.

The Government have failed to give the House the right opportunity. Indeed, the whole issue has been mishandled from start to finish. There were absurd scenes in the other place, where Lord Hoffmann was "encouraged" to table an amendment. There had been an attempt, apparently, to table it earlier on, but it failed. So—exceptionally—the amendment was tabled on Third Reading, whereupon Lord Hoffmann proceeded not to vote for his own amendment.

So, at a late stage in the debate and by a side wind, as it were, this important clause was added. Not only did Lord Hoffmann not vote for it, but he has since made it clear that there are arguments for and against his clause and he does not regard himself as having any brief to support it.

That is no way to rewrite the constitution. The Government meanwhile claimed that they were neutral, but rejected attempts to refer the matter to a Joint Committee of both Houses, where it could have been considered with care, drawing on the expertise of outside disinterested constitutional lawyers. In that way, we could have benefited from their advice to the full. But the Government chose not to take this course; instead they pushed the measure through the House, and that is no way to change the constitution.

Mr. David Ashby (North-West Leicestershire)

Proceedings in the two cases concerning Members of the House were stayed on a procedural point. Procedural points are not points of law and they can be retrospective. Why is the hon. Gentleman supporting an amendment that would not allow the changes to be retrospective? Is that not an act of meanness by his party, aimed at our party?

Mr. Boateng

I am sorry that I gave way. I had hoped that the hon. Gentleman would understand that both sides of the House want the matter to be regarded as separate from party politics and from the people concerned. We are worried about how it has been handled. A major constitutional change has, in effect, been brought in on the back of a couple of cases.

When the matter was debated in the other place, several Lords and Ladies took an unprecedented and sudden interest in issues of law reform. There was a massive turnout on the Government Benches, whereas one would not have expected to find such keen interest in their Lordships' House. One suspects that that turnout was not wholly unrelated to the special and personal interests of the hon. Member for Tatton, and with their Lordships' sympathy for it. That sympathy may or may not be misplaced, but it should not in any case determine how we deal with an issue that goes to the very heart of our constitution.

Article IX of the Bill of Rights has an important antecedent case history. It resulted from Sir John Eliot's case, from Sir William Williams's case, from Strode's case and from the arrest of the five Members. It resulted too, from Peter Wentworth's persistent advocacy of the rights of Members of this House to freedom of speech against the great and mighty interests of the day. Is there to be added to those names the name of the hon. Member for Tatton? Is it really right that an article fashioned out of a desire to preserve and protect the privileges of this House, as a means of defending the interests of the people, should be subordinated to the special interests of the hon. Member for Tatton? Is that how we would wish to order our constitutional affairs? Of course not.

When we consider this matter, we must do so free from the special interests represented by the hon. Member for Tattoo or the hon. Member for Torbay (Mr. Allason). Of course, understandably, they feel deeply about the injustice that they believe they have experienced. However, the privilege that they have—the privilege that they enjoy to say what they wish to say when they speak during the proceedings of the House—has its downside. The downside is that it is a privilege that may not be waived to enable them to preserve and to protect their special and personal interests.

Sir Peter Tapsell (East Lindsey)

The hon. Gentleman has cited famous and historic cases that led to the Bill of Rights—cases in which individual Members of the House were in danger of being persecuted or bullied by the King, the sovereign or the Executive of the day. We are currently discussing an entirely new situation—it did not exist in those days. Individual Members—they could be from any side of the House at any time—can be subjected to persecution, not from the Executive or from the sovereign, but from what many people regard as an over-mighty press that is owned, for the most part, by foreigners. We have to try to bring up to date the ideas that led to the Bill of Rights. We have to protect Members of Parliament, in a modern and new situation, from the sorts of abuses that the Bill of Rights sought to protect them from in the 17th century.

Mr. Boateng

The abuse of power—whether it be by the Crown, the Executive, an over-mighty subject or group of subjects or an overweening power outside the House—is something that the House ought to take cognisance of. However, the complaint of many Labour Members and, I suspect, of some Government Members is that clause 13, as it now stands, hands over to the judiciary the power that the House should have to preserve and to protect the privileges of the House against such over-mighty and overweening powers. That power does not belong with the judiciary; it belongs in the House. New clause 9 and our series of amendments seek to enable the House to arrive at a decision in that regard.

When we examine the Prebble v. Television New Zealand case and the jurisprudence that lies behind it, we see that it is part and parcel of a series of cases that have addressed the issue of the extent and nature of parliamentary privilege. In the light of these cases, Hansard was opened up to the courts as an instrument by which it was possible for them to arrive at an interpretation of that which we have placed in statute. When we look at these cases, we see a greater willingness by the courts to define the extent of our privilege.

It is ironic that we should be holding this debate in the immediate aftermath of a statement that has been brought about as a result of what some Conservative Members suggested was an unjustified usurping of our powers by the judiciary. Some of those hon. Members are now about to hand over powers in relation to the House to the judiciary to enable it to determine, through the instrument of interpretation, the extent of our privilege.

Those of us who are concerned about clause 13 believe that we ought to do that with great caution. If we allowed the courts to interpret privilege—in the way that clause 13 will do—we would be in danger of doing the House, its proceedings and the special role its Members play in a democracy a grave disservice.

Mr. Tim Devlin (Stockton, South)

Earlier, the hon. Gentleman made a disparaging reference to my hon. Friend the Member for Tatton (Mr. Hamilton)—I hold no brief for him or for any other hon. Friend. If, for whatever reason, an individual is unpopular, what the hon. Gentleman proposes is still likely to lead to injustice. If the House decides not to support the individual Member, for whatever reason, an injustice can be perpetrated, can it not? We are seeking to protect any Member—whether we like him or not—from injustice in similar circumstances.

5.45 pm
Mr. Boateng

The hon. Gentleman misunderstands our purpose in new clause 9 and in the other amendments tabled in the names of my right hon. and hon. Friends. We wish to give the House a series of options. One of my concerns about clause 13 is that, although it maintains the collective nature of the privilege that the House enjoys so that it can better carry out its democratic purpose, it might lead to the House as a whole being required to look into and to determine the rights and wrongs of a particular case. In those circumstances, there is a danger that considerations other than the interests of justice—considerations of a personal nature—will intervene in the process.

Because of my concern, my preference—there is to be a free vote and my colleagues will arrive at their own decision—is to delete clause 13. In that way, we would avoid the danger to which the hon. Member for Stockton, South (Mr. Devlin) referred. Equally important, we would avoid the danger that exists in relation to clause 13, which is dramatically illustrated not least by the very case in which the hon. Member for Tatton is involved. Under clause 13, as it is written, if one Member of the House is prepared to waive his privilege but another Member who is involved in the proceedings is not prepared to waive his privilege, what will happen?

Sir Terence Higgins (Worthing)

The hon. Gentleman has moved on from the point that I wished to address. If he wishes to remove clause 13, he has the option to do so—he simply does not move new clause 9—and we would knock out clause 13.

Mr. Boateng

We have chosen not to proceed in that way, in the hope—[Interruption.] I hear laughter from the Government Benches. This is a serious matter. It would have been preferable if the Leader of the House had delivered on what the Government promised: if all hon. Members were able to make a free choice between three options. The Labour party recognises that there may be hon. Members who accept the argument that in certain cases the result of the Prebble v. Television New Zealand case, the result of article IX, is hard and creates a potential injustice for an individual.

New clause 9 provides a halfway house in which it is possible—in certain circumstances where the House is so moved and accepts the injustice caused to one of its number by a particular action—for privilege to be waived by the whole House in relation to that hon. Member. We have tabled new clause 9 out of a desire to facilitate a debate and a free choice.

Mr. Rupert Allason (Torbay)

If the motive behind new clause 9 is to pass what I readily accept is an important constitutional issue for the whole House, what is the purpose behind amendment No. 43 and amendment (a) which seek to stop those cases that are already before the courts being affected by the Bill?

Mr. Boateng

Those amendments have a simple purpose. It must be for the whole House to determine whether anything it does should have a retrospective effect. It must be for the whole House to determine whether the cases of any individual hon. Members should be subject to new clause 9 and the amendments.

Mr. Allason


Mr. Boateng

The hon. Gentleman will have an opportunity to make a speech in due course. The proponents of clause 13 must answer, on the issue of injustice, the question of what happens when one Member waives privilege and another does not.

Mr. D. N. Campbell-Savours (Workington)

Does my hon. Friend agree that the new clause and the position of the Lords would make huge constitutional changes that would have formidable implications for the House of Commons? Less than 5 per cent. of the membership of the Commons is here tonight. Many of my hon. Friends and many other hon. Members are perhaps unaware of what is happening. Surely the only possible way to proceed would have been for the matter to be dealt with by a Committee of the House of Commons or a Committee of both Houses. It seems utterly ludicrous that we are discussing a matter of huge constitutional importance and that a handful of Members will take a decision that we may regret—or may not regret, I do not know the answer—well into the future.

Mr. Boateng

The timing of the debate is certainly of interest, because it inevitably will run up against the 7 o'clock deadline for private business. It can run on thereafter if the House wants it to do so, but the timing is singular and calls into question yet again—if I may say so—the Government's neutrality on the matter.

What will be the position under clause 13 when one hon. Member waives his privilege and another does not? What would be the position in the case of the hon. Member for Tatton? Part and parcel of The Guardian's defence to his action is the position of the hon. Member for Beaconsfield (Mr. Smith). Suppose the hon. Member for Tatton were to waive his privilege but the hon. Member for Beaconsfield did not waive his. The danger would be that at least one of the parties to the litigation would still, in effect, be denied justice. The Guardian, as the defendant, would not be able to pray in aid such evidence as the hon. Member for Beaconsfield might be able to give on the matter, in so far as he has admitted that he was paid money by some outside interests for the purpose of asking a question in the House. That is a real problem and it has not been addressed by those who support clause 13.

Our view can be summarised as follows. Privilege belongs to the House, not to the individual Member. It is for the House to determine how that privilege may or may not be exercised. If privilege is to he waived, that is a matter not for the individual but for the House as a whole. Above all, our view is that when Members individually and freely arrive at their decision on this subject, they should bear in mind that any action by the House that enables the courts, not us, to determine the proceedings of the House—clause 13 may represent just such an action—and any action that puts an individual under pressure to waive privilege, is likely to undermine the privileges of the House. Those privileges were designed to enable us to uphold, maintain and develop a democratic purpose, not to enable us to uphold special rights and interests. We tamper with such a privilege at our peril.

For many Labour Members, clause 13 represents—in the haste and the manner in which it has been introduced—an unwarranted tampering that ultimately threatens the liberty of us all. As such, we shall resist it. All hon. Members, when they make up their minds to resist clause 13—if they do—should do so on the basis that it is an unwarranted interference. All hon. Members should bear in mind the circumstances in which the matter has been brought before the House. Hon. Members should regret the way in which it has been brought before the House and they should bear in mind also their responsibility to preserve and protect the privileges of the House, not in their interests but in the interests of the people whom they serve.

The Lord President of the Council and Leader of the House of Commons (Mr. Tony Newton)

New clause 9, as the hon. Member for Brent, South (Mr. Boateng) made clear—although his concluding remarks called into question what he said about neutrality—and the amendments grouped with it, have given the House what we see as a valuable opportunity to debate what is undoubtedly an important issue that has arisen about parliamentary privileges and the Bill of Rights. Apart from the contribution that the hon. Gentleman has made and those that will no doubt be made by others during the debate, it is right also to acknowledge the help that has been given to the debates in this place by the earlier proceedings and exploration of the issues during the passage of the Bill in another place.

As the House is by now well aware, and as the hon. Member for Brent, South has explained, the matter that new clause 9 and clause 13 seek to deal with has arisen because the defamation case that my hon. Friend the Member for Tatton (Mr. Hamilton) and Mr. Ian Greer brought against The Guardian in the High Court was stayed by the judge because he decided that the case could not be tried properly without hearing evidence about my hon. Friend's conduct and motives in tabling the parliamentary questions that were the subject of the newspaper's allegations and that that evidence could not be heard because of the prohibition—by virtue of article IX of the Bill of Rights—on the questioning or impeaching by the courts of proceedings in Parliament. As the hon. Member for Brent, South has already said, that case followed the earlier case of Prebble v. Television New Zealand Ltd. before the Judicial Committee of the Privy Council, in which, because of the provisions of article IX, the Committee found that the defendants could not use parliamentary materials to establish the truth of allegedly defamatory allegations made by them.

Two possible resolutions of the predicament in which my hon. Friend the Member for Tatton found himself—and which, let us be under no illusion, could face other hon. Members from any party in the future—are before the House this evening, and I will deal with each of them in turn. I make it clear—particularly in light of the hon. Gentleman's peroration which seemed at variance with his earlier stated position—that the Government have adopted the attitude of neutrality. We believe that it is a parliamentary matter and that each individual Member of Parliament should exercise his or her judgment. I was delighted to hear the hon. Gentleman's comments about the Labour party's neutral position—although I think that some of his remarks were not completely consistent with that approach.

Against that background, clause 13—which amendment No. 21 seeks to leave out—was inserted in the Bill during its passage through another place as a result of an amendment moved by Lord Hoffmann. It would allow a Member of either House or any other person whose conduct in Parliament is an issue in defamation proceedings to waive the protection of article IX so as to enable evidence to be given in court and findings made about his conduct in Parliament. At the same time, the clause seeks to preserve the essential protection that the Bill of Rights affords—we do not dispute that such protection is necessary—to Members of both Houses and to others, such as witnesses before parliamentary Committees, from any legal liability for anything that they may say or do in the course of parliamentary proceedings.

6 pm

Mr. Campbell-Savours

I seek the right hon. Gentleman's interpretation on that point. Does that mean that a document that came before the Standards and Privileges Committee and that made allegations about a number of hon. Members could be used in evidence in a trial when an hon. Member seeks to waive protection? In other words, could the process of extracting information from the Committee prejudice the rights of other hon. Members or other persons who might be named in that document?

Mr. Newton

My right hon. and learned Friend the Attorney-General is by my side. He says that he thinks that that would not be the case as the document would not be in the possession of the individual hon. Member. I shall give further attention to that point during the debate.

Sir Terence Higgins

Would not such a document be part of the proceedings of the House?

Mr. Newton

I think that the appropriate course is for me to take further advice about the matter and seek to respond to the House and to my right hon. Friend at a later stage.

Mr. Campbell-Savours

I do not want to embarrass the right hon. Gentleman—no one knows all the answers—but I ask him to seek a more sensible and informed response from his right hon. and learned Friend. I have asked a fairly elementary question that will influence the judgments of many hon. Members. I want to know whether material that is included in a document that may be owned by a Select Committee and which refers to people other than the hon. Member who is applying for that document to be made available to the court would prejudice the rights of hon. Members if it were to be freed.

The Attorney-General (Sir Nicholas Lyell)

I am happy to answer the hon. Gentleman as best I can—I have considered the matter.

In my view, it would not be open to the other party to the action to call for such a document to be admitted. According to the hon. Gentleman's description, such a document would probably emanate from the Standards and Privileges Committee and it would be in the possession of the House. It would not be under the control of the hon. Member concerned and, as such, it would not be available to the other party upon discovery.

We are discussing whether the motives or the actions in Parliament of the hon. Member who has brought the action and who has—if the clause is attached to the Bill and becomes law—waived his privilege may be impeached or called into question. That cannot occur at present because of article IX of the Bill of Rights. Therefore, the court has held in the Hamilton case that the matter must be stayed as the full issues cannot be tried. The court has not held that it must be stayed because every relevant document that is in Parliament's possession cannot be made available—that would be a much wider point.

Mr. Boateng


Mr. Deputy Speaker (Sir Geoffrey Lofthouse)

Order. The Leader of the House has the Floor.

Mr. Newton

I shall give way to the hon. Member for Brent, South, who clearly wishes to intervene. However, first I must complete my point. My right hon. and learned Friend is present and I am sure that he will seek to assist the House at any appropriate stage in the debate if that should prove helpful.

Mr. Boateng

The question raised by my hon. Friend the Member for Workington (Mr. Campbell-Savours) is not answered completely by the Attorney-General's intervention. What would occur if the hon. Member concerned had made a number of interventions or raised a number of points during Committee proceedings, which are obviously part of the parliamentary record? If that hon. Member subsequently waives his privilege, surely it is open to the defendant to say, "We should have access to that information which reflects his motives and conduct but which appears in a document to which other hon. Members who have not waived their privilege have contributed." As the Attorney-General said, one imagines that such a document would be owned by the Committee and by the House. It would hamper the defendant if he were not given access to that document. We are opening that area to the scrutiny of the courts if we allow clause 13 to stand.

Mr. Newton

I have already said that my right hon. and learned Friend will seek to assist the House later if that should prove helpful. Meanwhile, we must remember that the House allows the courts to refer to Hansard.

Mr. John Morris (Aberavon)

As the Attorney-General intends to assist the House further, I ask him to consider that we are seeking to allow the protection of Parliament to be raised as the clause would apply to parliamentary proceedings that at present cannot be impeached or questioned in any court or place outside Parliament. That is the starting point. Clause 13(2) states: Where a person waives that protection—

  1. (a) any such enactment or rule of law shall not apply to prevent evidence being given, questions being asked or statements, submissions, comments or findings being made about his conduct".
How will the sorts of documents to which my hon. Friend the Member for Workington (Mr. Campbell-Savours) refers be ring-fenced in that regard?

Mr. Newton

I shall not elaborate further upon the remarks of my right hon. and learned Friend, beyond saying that, according to the advice given to me, the short answer is that such a document could not be made available without a separate decision of the House. I hope that that provides the reassurance that both the hon. Member for Workington (Mr. Campbell-Savours) and the hon. Member for Brent, South are seeking.

Dr. Tony Wright (Cannock and Burntwood)

I do not wish to explore the content of the answer by the Leader of the House, but I must put several points to him. Does not that important exchange illustrate a fundamental difficulty with the clause? The House—particularly the Standards and Privileges Committee—has laboured mightily over the years to try to define what constitutes proceedings in Parliament. The clause, quite casually and without reference to any Committee or to previous deliberations, announces that there may be a waiver and that proceedings in Parliament shall be thus and thus. The first time that it is tested, we find that we do not know what the Bill says. Does that not illustrate precisely the difficulties of dealing with a major constitutional issue in a wholly casual manner?

Mr. Newton

I am sure that if the hon. Gentleman catches your eye, Mr. Deputy Speaker, he will be able to develop that point, which, in a sense, has already been developed by the hon. Members for Brent, South and for Workington. No one—certainly not me—is seeking to present the argument as though every single case was conclusive and one way. There clearly is a balance of considerations, and every hon. Member will have to make up his or her own mind at the end of the debate about where the balance lies between the risks that have been focused on in the past few minutes and the injustice that many people feel that two hon. Members have experienced as a result of what has occurred in recent times.

Mr. Campbell-Savours

The right hon. Gentleman is Chairman of the Select Committee on Standards and Privileges. I have been a member of that Committee sufficiently long to realise that the test that he sets in any debate is that we go to the very nth degree to ensure that what we are doing is absolutely correct, because we do not—especially the right hon. Gentleman as Chairman—want to be party to mistakes. Does he not feel that, on this very important issue, he should be sitting in the Chair of the Committee and that we should be taking evidence to ensure that a mistake is not made? The Committee might well approve it. I simply do not know. We may reject it. But we cannot afford to take that risk without the fullest inquiry.

Mr. Newton

I am grateful for the complimentary nature of the hon. Gentleman's earlier remarks. There was sufficient concern in another place to consider it right to raise the issue in relation to the Bill, and in the event they decided to insert what is now clause 13. That—inescapably, it seems to me—gives me a duty to set out as fairly as I can the balance of consideration for the House to take into account when deciding whether it wishes to proceed. Clearly, the hon. Gentleman will argue that it would be a mistake for the House to proceed in this way, either because he is against it or because he feels that the implications have not been sufficiently explored. That is a point for him to argue, and if he does so with sufficient persuasion no doubt the House will reach a different decision from that currently in the Bill. That is what we are talking about tonight.

Mr. Jeff Rooker (Birmingham, Perry Barr)

The other place agreed clause 13. The great distinction between clause 13 and new clause 9 is that the latter exclusively affects Members of Parliament of either House. Clause 13 gives the power to waive privilege to all witnesses before Select Committees and to any and every Officer of the House who may be called to give evidence. What are the consequences of witnesses who come before a Select Committee in the knowledge that, in future, they may want to waive their privilege if a case comes to court? Surely the place to discuss the consequences and ramifications of the possible distortion of the evidence that such a witness may give is the Select Committee on Standards and Privileges, which the right hon. Gentleman chairs with such distinction, and not on the Floor of the House, as we have not debated clause stand part and the clause was not in the Bill at the beginning.

Mr. Newton

I am grateful for the last part of the hon. Gentleman's remarks. The rest are points of argument about what decision the House will have to take at the conclusion of the debate. I hope that it is clear by now that nobody—certainly not me—is dismissing the points that have been made, although on balance I would probably come to a different conclusion as an individual. There clearly are, as I have acknowledged, a number of factors that the House needs to take into account when considering the matter. Indeed, I had hoped to set them out relatively briefly in the course of my remarks.

Sir Peter Tapsell

It has been more than three centuries since the Bill of Rights 1688 was put on the statute book. Am I right in thinking that the tradition of the House is that if the integrity of an hon. Member in discharging his parliamentary duties is seriously impugned by an outside body, the Privileges Committee investigates the matter, that if it is found that the hon. Member has seriously misbehaved, he is punished by the House, and that if the allegations against the hon. Member are unfounded, the person or organisation bringing the allegation is seriously punished by the House? Why could not the Select Committee on Standards and Privileges have dealt with this matter?

6.15 pm
Mr. Newton

Perhaps others will wish to comment, because it is not for me to say why particular people took particular actions at particular times. I have to cope with the fact that the clause was added to the Bill in another place, as they felt that it was an appropriate way of tackling what everybody acknowledges is a problem. Whatever else may be realistic to suppose about the activities of the Select Committee on Standards and Privileges, it should also be acknowledged that it would not be in a position to impose an award of damages against a person who was judged to have libelled somebody. There would be widespread objection—certainly in this day and age—to some fine or award of damages being imposed by a Committee of the House in the circumstances that my hon. Friend seems to be postulating.

Sir Peter Tapsell

With great respect, I do not think that my right hon. Friend has answered the question. I did not raise the question of damages, which arise only if the case goes to court. Why cannot the merits of the case be handled by the Select Committee on Standards and Privileges and a decision made in the terms that I mentioned in my earlier question? I thought that that was why the Committee existed.

Mr. Newton

The Committee of Privileges—the Select Committee on Standards and Privileges, as it now is—obviously seeks to examine matters that are referred to it. On the cases that led to the debate tonight, I have already made the point that it was felt appropriate in another place to tackle the matter by a change in the law to enable Members of Parliament to pursue their cases through the courts in such circumstances in the same way as anybody else. That does not exclude the Select Committee from investigating the matter, were it to be asked to do so, but many people would feel that that alone would not be adequate where a Member of Parliament was in effect—or felt that he had been—libelled in respect of his actions within the House.

Mr. Tam Dalyell (Linlithgow)

In making up their mind, did the Government consider the entire corpus of decision making, which goes back to the case of George Strauss v. the London Electricity Board in relation to what is and what is not a proceeding in Parliament? That case has served us quite well over the years.

Mr. Newton

The hon. Gentleman echoes one or two points that have been made by his hon. Friends. Again, it is a point of argument. It is one of the factors that the House needs to take into account in reaching a judgment at the end of the debate.

The case for the clause can be put simply. In essence, it would enable justice to be done in defamation cases such as that brought by my hon. Friend the Member for Tatton. As the House well knows, provided that my hon. Friend—or anybody else in those circumstances—waived his protection, which the clause would allow him to do, the defendants in the case would be able to call evidence relating to the proceedings of the House to justify the allegations that they published, and the issue between them and the plaintiffs could be tried by the court. If the plaintiffs went on to win their case, they would be able to clear their names of the charges against them, a matter to which those affected would naturally attach great importance. Furthermore, they would be able to recover damages—which they could not do if they were able only to resort to the machinery that exists within Parliament for dealing with such cases by way of a complaint of privilege.

There is a substantial case to be made for the clause. On the other hand—this echoes a point that I have acknowledged on a number of occasions—it is, of course, also the case that any interference with the Bill of Rights, which has stood the House in good stead for more than three centuries, is a matter of great importance, which both Houses are rightly anxious to assess with the utmost care.

One line of criticism is that the clause gives unfair advantage to Members of Parliament. I do not think that the hon. Member for Brent, South made that point, but the argument is that a Member would be able to put his conduct in Parliament before the courts when it suited him if he thought that he had been defamed, but would continue to enjoy absolute protection from liability if he said something in the House about another person that would have been defamatory if he had said it outside the House.

The House will doubtless agree that it is essential to preserve—as the clause does—the core privilege of protection from liability in respect of proceedings in Parliament, without which the exercise of free speech in Parliament cannot be upheld. Lord Hoffmann commented on that in another place, arguing that, while there was an obvious public interest in freedom of speech in Parliament, there was no public interest in allowing anyone free licence to make defamatory statements about what hon. Members do in the course of their parliamentary duties. Personally, I agree with that.

Another concern that has been expressed—the hon. Member for Brent, South did touch on this—is that, once hon. Members were enabled to waive protection, they could be put under pressure to do so when they did not wish to. That problem does not arise in the case of my hon. Friend the Member for Tatton, but it could conceivably arise in other cases, including the case on which the hon. Member for Brent, South speculated—a case in which the conduct of one hon. Member was inextricably linked with that of another. That is yet another factor that the House must take into account in making a decision.

Mr. Boateng

But that is precisely the point that will arise in relation to the The Guardian case, in which the conduct of the hon. Member for Beaconsfield (Mr. Smith) has a direct bearing on that of the hon. Member for Tatton (Mr. Hamilton) as far as the newspaper is concerned. 'That is the reality of the case that led to the tabling of the clause. The conflict—or the danger of a conflict—between two hon. Members, one waiving protection and the other not waiving it, lies there.

Mr. Newton

The question of any link would be a matter for the court. I certainly do not want to be drawn into discussing what is and what is not linked in respect of any particular case. Let me tell the hon. Gentleman, however, that that dilemma, or potential problem, would exist just as much—and, I believe, more in some respects—if new clause 9 were adopted. Presumably, the House would then be able to impose on one Member a waiver that was not sought by that Member, but was sought by another. I do not see how the arrangement would work in any other circumstances. Otherwise, no answer is presented to the problem; the problem would, or could, arise in any event, whether on the lines of new clause 9 or on those of clause 13.

I accept that that line of argument leads the hon. Gentleman to the conclusion that he would prefer amendment No. 21 to new clause 9. That is what he implied towards the end of his speech. I am simply saying that I do not think that the solution that he seemed to prefer at the outset of the debate—new clause 9—is in fact a solution to the problem to which he just referred.

Mr. Boateng

I made it clear at the outset that hon. Members should not have to face such a choice. We should be in a position to choose freely which of the three options to support: the status quo, the whole House determining whether privilege should be waived or clause 13. If, as Leader of the House, the right hon. Gentleman had taken the initiative in relation to the ordering of the House's business and given the House that free choice—as the right hon. Member for Worthing (Sir T. Higgins) pointed out—we would not be in the invidious position of having to vote on new clause 9 first. We are having to do that precisely because the Government, in their neutrality, have abdicated their responsibility to the whole House.

Mr. Newton

Obviously, I do not accept that at all. What we are seeking to do at this very moment is to provide the House with an opportunity to make choices of the kind that the hon. Gentleman has described, and that opportunity arises because of what has been tabled.

Mr. Devlin

Amendment (a) to new clause 9 was clearly drafted by The Guardian with the aim of preventing the current cases being brought against it. Will the Committee of Privileges be looking into the motives of the hon. Member for North Durham (Mr. Radice), who tabled the amendment?

Mr. Newton

I am not aware of any proposal for the Select Committee on Standards and Privileges to look into that, but I am sure that, if an appropriate complaint were made to the Parliamentary Commissioner for Standards, he would examine it in the proper way—as Madam Speaker has indicated on a number of occasions.

Mr. Barry Sheerman (Huddersfield)

Many of us who have been following the debate carefully would have expected the Leader of the House to slap down that last intervention, which constituted a vicious attack on my hon. Friend the Member for North Durham (Mr. Radice). I expect better of the right hon. Gentleman. Indeed, many of us are unhappy about the proceedings, because they do not seem to issue from a mature period of reflection. These are fundamental issues, but everything that the right hon. Gentleman has said so far persuades me—along with many of my hon. Friends—that we are involved in a short-term quick fix. This is not the way in which to debate an arrangement that has served us well for 300 years.

Mr. Newton

I think that the hon. Gentleman will find that what I said about the proper course for referring complaints to the Parliamentary Commissioner for Standards was said in pretty much the same terms as those in which I have said it to hon. Members on both sides of the House who have raised possible complaints in the period since the new machinery was set up. I do not accept the hon. Gentleman's interpretation.

Mr. Gerald Bermingham (St. Helens, South)


Mrs. Gwyneth Dunwoody (Crewe and Nantwich)


Mr. Newton

I will give way to the hon. Member for St. Helens, South (Mr. Bermingham), but if I continue to give way no one else will have a chance to speak.

Mr. Bermingham

Having sat here listening to the debate, and having watched it earlier on television, I am struck by the fact that the issue is complicated and confusing, and by the fact that the House has not been properly briefed. [Interruption.] We hear the twittering of ignorant birds again. As I was saying, the issue is complex, and most hon. Members have not been briefed in any great depth. It has slipped through from another place. If we are to change 300 years of history, perhaps we could do it with a little more decorum and be given a little more time. We need a much more wide-ranging discussion.

Mr. Newton

Again, that is a point of argument. The hon. Gentleman is advancing reasons why he believes that it might be right to go down the path recommended by the hon. Member for Brent, South—or one of those paths. Let me reiterate my position. Clause 13 is in the Bill, and I am doing what I can to sketch some of the factors that the House ought to have in mind in reaching a conclusion, in relation to either new clause 9 or amendment No. 21.

Mrs. Dunwoody

Will the right hon. Gentleman give way?

Mr. Newton

Yes, but this must be more or less the last time.

Mrs. Dunwoody

As a non-lawyer, I am now totally confused. I would be grateful if the right hon. Gentleman would make the position clear to me, as an hon. Member with a vote. Is he saying that, in future, a Member of Parliament will be able to waive the privileges and protection of the House when it suits him, and will not have to when it does not? Is he also saying that, on that basis, the House will not be able to vote to maintain its existing arrangements this evening? If that is what he is saying, I should be grateful if he would make it clear so that we know exactly what we are voting for in relation to the powers of the House.

Mr. Newton

I do not think that the hon. Lady is entirely right, on the basis of the guidance that Madam Speaker gave the House earlier. I hope that I am correct. If new clause 9 were accepted, it would leave certain provisions in the Bill, albeit different from those that are in it now; but if it were rejected, there would still be amendment No. 21, which in effect removes clause 13. I think that I have that right.

Mr. Rooker

With respect to the Leader of the House, new clause 9 does not knock out clause 13. The House could send back this Bill to the other place with both clauses in and let it clear up the mess. So voting on this matter will be rather more complicated than he explained.

Mr. Newton

I would not seek to presume on the Chair's prerogative, but I was seeking to explain that—as I understood what Madam Speaker told the House earlier, when the point was raised by my right hon. Friend the Member for Worthing (Sir T. Higgins)—were the House to decline to accept new clause 9 and to agree amendment No. 21, the effect would be that clause 13 had disappeared from the Bill and had not been replaced.

Mr. Campbell-Savours

Will the Leader of the House confirm that what my hon. Friend the Member for Crewe and Nantwich (Mrs. Dunwoody) said is absolutely correct and that the Bill provides exactly for her interpretation?

6.30 pm
Mr. Newton

I do not think that it does, and I have just sought to explain why it does not. I understood the point made by the hon. Member for Crewe and Nantwich (Mrs. Dunwoody)—I do not want to misinterpret her or any other hon. Member—to be that there were no means by which the House could remove clause 13 without having new clause 9, whereas in fact it was made clear earlier today that that result could be achieved by the House voting for amendment No. 21. That is all that I am seeking to make clear, and I hope that it has been helpful to the hon. Lady.

Mr. Max Madden (Bradford, West)

On a point of order, Mr. Deputy Speaker. I apologise for raising a point of order when you took the Chair only a few moments ago and also for interrupting the speech of the Leader of the House, but it is clear that there is considerable unhappiness in all parts of the House with proceeding with a very important matter and, in particular, confusion over what opportunity hon. Members will have to express their view when the Division is called. Mr. Deputy Speaker, will you consider the order of business to enable the House to vote, first, on new clause 9, and then immediately after to vote on amendment No. 21, or conversely? As I understand it—

Mr. Deputy Speaker (Mr. Michael Morris)

Order. I have heard the hon. Gentleman's question, but I cannot account for hon. Members' unhappiness. The answer to the hon. Gentleman's request is no, it is not possible.

Mr. Devlin

On a point of order, Mr. Deputy Speaker. Is it in order for hon. Members to come into the Chamber and then to stand up and say that they are confused because they have not listened to the debate?

Mr. Deputy Speaker

That is not a point of order for the Chair.

Mr. Newton

I was about to come to the third point—it has already surfaced in the debate, and concern has been expressed about it—which is the relationship between Parliament and the courts.

As we know, in broad terms, article IX keeps the courts out of Parliament's business, and the sub judice rule that operates in the House keeps Parliament out of the courts' business. The proposal would inevitably let the courts into an area from which they are currently excluded, and it would be for the courts to decide how far to go in each case in inquiring into the proceedings of Parliament. If the clause was passed, the courts would have to decide for themselves exactly what it meant in particular circumstances, and the precise scope of the protective provisions that restate the traditional effect of the Bill of Rights.

Some observers consider that the courts are already tending to take a more restrictive view than the House has traditionally done of the protection afforded by the Bill of Rights—such as the judgment in the case of Pepper v. Hart, for example, in which it was held that the courts could in certain circumstances use Hansard for the purpose of interpreting a statute. Again, that is one of the factors that the House will have to bear in mind in reaching a decision.

I should like to say a few words about new clause 9, which was moved by the hon. Member for Brent, South, and to note the two differences of substance between new clause 9 and clause 13.

Mr. Campbell-Savours

Will the right hon. Gentleman give way?

Mr. Newton

If the hon. Gentleman will forgive me, he has made a number of interventions, and I think that it would be more appropriate for him to make a speech later in the debate.

The first difference of substance is that the clause applies solely to Members or former Members of either House. A witness before a Select Committee who was defamed in respect of his evidence would have no opportunity to seek redress in the courts, whereas a member of the Select Committee who had been libelled in respect of a question he had put to that witness would have such an opportunity. The House will want to consider whether it regards that as an equitable outcome.

The second difference of substance is more substantial. Clause 13 envisages the waiver of protection by an individual hon. Member, without the House having any say in the matter. Conversely, new clause 9 allows either House to waive protection on a petition from an hon. Member or former hon. Member who is a plaintiff in a defamation case.

It is of course the case that parliamentary privilege belongs in the first instance to the House, and only then to its hon. Members. "Erskine May" states at page 69: it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members. In practical terms, it is very difficult to see on what basis the House could reasonably allow a waiver in one case and decline to allow a waiver in another case. In my judgment, it is much less difficult to envisage circumstances in which a decision by the House might be much influenced by factors other than the objective merit of the case—at the worst, of course, the decision might become the focus of a straightforward partisan dispute. We should at least face up to that possibility, which would be very damaging to all hon. Members and would certainly be of no help to parliamentary privilege.

Mr. Campbell-Savours

I am sorry to press the Minister, but will he answer another question for me? Could an hon. Member waive privilege and thereby enable a court to draw on an original document prior to a sidelining amendment by a Committee, which means the deletion of matters that the Committee feels should not be made available outside the Committee?

Mr. Newton

I think that that is a variant of the hon. Gentleman's earlier question, to which my right hon. and learned Friend the Attorney-General replied. I have already said that my right hon. and learned Friend will seek to assist the House further on such points later in the debate if that is thought to be helpful.

The House should recognise that it is the individual hon. Member who is taking the risk in waiving the protection afforded by article IX of the Bill of Rights so as to allow the court to hear evidence about his conduct, and it should be for him alone to decide whether the protection should be waived.

A point of detail arises on amendment (a) to new clause 9, which is in the name of the hon. Member for North Durham (Mr. Radice), and on amendment No. 43 to clause 13, which is in the name of the Leader of the Opposition. As has become clear, if either of those amendments is agreed to, an hon. Member who is libelled in 1997—next year, for example—in respect of something that he has done in Parliament will be able to get justice in the courts. But my hon. Friend the Member for Tatton, who believes—and wishes to prove, as he has repeatedly made clear—that he was libelled in 1994 in respect of something he had done in Parliament, would still be denied an opportunity to clear his name.

The hon. Member for Brent, South has given his reasons for believing that that would be an appropriate outcome, and, of course, all hon. Members would acknowledge that the House is rightly suspicious of anything that smacks of retrospective legislation. But I find it hard to understand how that can be retrospective legislation in the sense that normally causes concern. We are not making unlawful some action that was lawful at the time it was performed, but we are removing a barrier to the hearing of evidence that the parties to the case of my hon. Friend the Member for Tatton wish to call. I also remind the House that my hon Friend's case has not been struck out. It has only been stayed, and is therefore capable of being revived.

I underline the fact that the protection of article IX could be removed from an hon. Member only if he wanted it to be removed. All hon. Members can agree that there should be no question of an hon. Member who has not sought a waiver finding what he has said or done in the House exposed to scrutiny in the courts. That applies just as much to words and actions that lie in the past as it does to words and actions in the future, after this clause—were it to be agreed to and remain in the Bill—has come into operation.

So there need be no anxiety that words that have been spoken in this House by an hon. Member in the belief that those words would not be scrutinised by the courts may now be exposed to such scrutiny against the hon. Member's will. In my view, if Parliament believes that it is right to allow hon. Members an opportunity to waive the protection of article IX in the circumstances that we have been discussing, it is right that Members of Parliament currently affected by a case that has been stayed should be allowed to benefit in the same way as hon. Members whose cases may arise in future.

I hope that I have given fairly good reasons for believing that clause 13 is a more satisfactory solution than new clause 9. I make it clear that that is my view—but a personal view, and not one that I state on behalf of the Government. I personally prefer clause 13 to new clause 9. We return to the central question raised by the hon. Member for Crewe and Nantwich as to whether it is right to tackle the problem at all by legislating at this time. There are clearly differences of opinion. I have repeatedly emphasised that the issue is for the individual judgment of my right hon. and hon. Friends, but I should conclude by remarking that my personal judgment is that it is right to tackle the problem. I expect to cast my own vote—I make this clear as a matter of fact, not a point of argument—to preserve clause 13 as it stands.

Mr. Peter Shore (Bethnal Green and Stepney)

I am struck by the lack of enthusiasm for both clause 13 and new clause 9. The Leader of the House and the hon. Member for Brent, South (Mr. Boateng) have largely succeeded in convincing me that we would do better to leave things as they are, particularly as we have not had the benefit of a study by a Joint Committee of both Houses and as clause 13 was introduced at a late stage in the other place and appears before us tonight for the first time.

It is obvious that the privileges of the House are enormously important to the House collectively as well as to Members of Parliament individually. The one strength of new clause 9 is precisely that it recognises that the waiving of privilege is the concern not only of an individual hon. Member but of the whole House. New clause 9 requires that, before initiating defamation proceedings, an hon. Member should petition the House or the Select Committee on Standards and Privileges for consent to waive the protection accorded to us all by article IX of the Bill of Rights.

I have more confidence than some hon. Members in the seriousness of the Standards and Privileges Committee. It can be relied on not to allow personal likes and dislikes to affect its judgment. Moreover, it will thoroughly consider all the possibilities before it consents to infringing the rights of other hon. Members or of the House.

For three centuries, Parliament and its Members have been protected by the famous words of the Bill of Rights that our proceedings ought not to he impeached or questioned in any court or place out of Parlyament. We all agree that that protection should not lightly be breached.

There is a case for allowing an hon. Member to waive his or her historic privilege in pursuit of defamation proceedings and, in making it, it is helpful to have the safeguard to which I have referred—that of obtaining the prior consent of the whole House. Hon. Members inevitably have in mind the case involving the hon. Member for Tatton (Mr. Hamilton). He maintains that he was libelled by The Guardian, which alleged that he had received money from Mr. al-Fayed via Ian Greer Associates for tabling questions in the House. The hon. Gentleman and Ian Greer Associates—one of whose senior executives is a constituent of mine—immediately sued for libel, but the case could not proceed after Mr. Justice May ruled in the High Court that as the evidence directly involved proceedings in Parliament it was blocked by article IX of the Bill of Rights.

The hon. Member for Tatton maintains that that is unjust and that he has been denied a remedy available to other citizens of the United Kingdom by a provision in the Bill of Rights that was enacted not for that purpose but to ensure that we enjoy untrammelled free speech in Parliament.

6.45 pm

I am not entirely clear whether a parliamentary remedy remains available to the hon. Member for Tatton. The Parliamentary Commissioner for Standards is considering a document that contains allegations against the hon. Gentleman and others, and I understand that the issue is likely to be reported to the Select Committee on Standards and Privileges. Is it not possible for the hon. Member for Tatton to pursue his case before that Committee? I do not know the answer. Whatever it may be, privilege poses an additional problem to individuals whose names are associated with the alleged wrongdoing of an hon. Member. In this case, The Guardian alleged that payments were made through Ian Greer Associates. The company says that it has lost reputation and business as a consequence but has no remedy unless the Member of Parliament waives his privilege. That aspect should be considered when the House decides whether to support any of the amendments.

Mr. Allason

Will the right hon. Gentleman give way?

Mr. Shore

I am coming to the end of my remarks.

Although I support new clause 9—just—I am not persuaded that amendment No. 43 should be agreed as it directly excludes any case initiated before the Bill is enacted, which seems unfair to the plaintiffs.

Sir Terence Higgins

I am struck by the fact that many aspects of the argument do not emerge at first sight. I am clear that the issue should be examined by a Joint Committee of both Houses. We have not previously considered a wide range of aspects. The House is rightly jealous of its privileges. The question is whether, by accepting clause 13 or new clause 9, we shall undermine our privileges. Over the centuries, the Bill of Rights has ensured that there is no conflict between the House and the courts, but we suddenly find that the courts are dealing with matters that affect us. That point was made by Lord Simon of Glaisdale in another place: In the most recent case that reviewed this matter … it was emphasised that it would be quite intolerable if there were two inquiries going ahead simultaneously or overlapping, one by the courts of law and one by the House of Parliament. The amendment— now clause 13— would land us in a whole number of respects in precisely that situation."—[Official Report, House of Lords, 16 April 1996; Vol. 571, c. 31.] We cannot allow that, especially as the Bill did not contain such a clause when it was first introduced in the House of Lords. The clause was introduced in a strange way—in an amendment for which the proposer did not vote. Clearly, we have to consider the matter extremely carefully.

As the hon. Member for Crewe and Nantwich (Mrs. Dunwoody) said in an intervention a few moments ago, our procedure is not satisfactory. As I understand it—and as Madam Speaker has confirmed—initially we can vote on new clause 9. If it is carried, we shall go on to consider amendment No. 21, which effectively would create a hole into which new clause 9 would slot. If new clause 9 is defeated, we shall vote on amendment No. 21, which would delete clause 13. That creates a problem for hon. Members who feel that new clause 9 improves clause 13, but would prefer to knock out clause 13. With great respect to my right hon. Friend the Leader of the House, we do not have that choice, which raises a difficult question about which way to vote. I hope that many hon. Members who are not present in the Chamber are watching the debate on television as they will have to decide how to vote on new clause 9 and on amendment No. 21 should new clause 9 be defeated. It is a complicated and difficult matter.

I have already pointed out some of the potential dangers of accepting either new clause 9 or clause 13. However, I should mention one point that had not occurred to me previously, and it is a matter of grave concern to me as a member of the Liaison Select Committee. If the House were to give an hon. Member the right to petition the House to waive parliamentary privilege, to what extent would that allow the courts to question proceedings in the House under the Bill of Rights?

My right hon. Friend the Leader of the House was not quite right about that. We have to consider what are proceedings in the House: that is an uncertain matter. It is not simply—as was suggested a moment or two ago—a question of evidence that hitherto had not been sidelined suddenly being revealed to public gaze when the Select Committee concerned thought that it should have been sidelined. Whether or not evidence is sidelined, if it proves to be relevant to a case in which the individual concerned has waived his privilege, the other side can ask to see privileged documents and can question them in court. That is precisely what the Bill of Rights has sought to prevent for hundreds of years, and for very good reason.

I am particularly concerned about evidence that has been give to Select Committees in confidence. We all know the difficulties involved in Select Committees taking evidence in confidence if the witness feels that it may be revealed subsequently. We have been over those arguments many times before.

Witnesses will be more hesitant about giving evidence in confidence if they believe that it will be challenged in court and that it will not be treated in confidence by the House, even though the Select Committee and the House had promised that it would be. That had not occurred to me until this afternoon, but it is another reason why the matter should be considered in greater depth and not decided on the basis of an amendment that was carried somewhat haphazardly in another place.

For the reasons that my right hon. Friend the Leader of the House gave, new clause 9 appears to be some improvement on clause 13. It would restrict the waiving of parliamentary privilege to hon. Members, although whether that is fair on witnesses, who would not be able to waive parliamentary privilege, is another matter. Again, there are two arguments to be considered.

Mr. Newton

I may not have made it sufficiently clear that I prefer clause 13 to new clause 9, partly for the reason that my right hon. Friend has given.

Sir Terence Higgins

That is the essence of the dilemma. The question is whether to vote against new clause 9 although it may be an improvement on the status quo.

My right hon. Friend pointed out the other difference between clause 13 and new clause 9. Under clause 13, the matter is left entirely to the discretion of the individual hon. Member—I have already mentioned some of the potential hazards—but under new clause 9 an hon. Member has to petition the House, which may accept his petition. As my right hon. Friend said, that may involve party politics.

I find myself in the position of night watchman in a cricket match, as it is clear that the debate will continue later and we cannot make an immediate decision.

It is probably advisable to vote for new clause 9. If it is carried, with all its imperfections, it will go back to the House of Lords for a decision, where, I hope, their Lordships will decide that clause 13 should be deleted and the matter referred to a Joint Committee of both Houses. If it is defeated, we shall then have the opportunity to vote on amendment No. 21. That will be difficult as we may or may not win.

On reflection, I believe profoundly that the matter should be considered further. It is clear from what has been said that we do not have all the facts to hand. Important issues of parliamentary privilege that affect proceedings on the Floor of the House and in Select Committees have been raised and I hope that they will be considered further.

Mr. Menzies Campbell (Fife, North-East)

In accordance with the spirit of the House, I associate myself entirely with the remarks of the right hon. Member for Worthing (Sir T. Higgins). His analysis of the consequences of voting is clear beyond question and the House would be well advised to follow his advice. I shall certainly advise my right hon. and hon. Friends to do so.

Mr. Boateng

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

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