PARLIAMENTARY PRIVILEGE AND CONTEMPT OF COURT (Hansard, 14 July 1958)

§ EARL WINTERTON
My Lords, I beg to ask the second Question which stands in my name on the Order Paper.

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, the first part of the noble Earl's Question raises serious issues, which my right honourable and learned friend the Attorney General and I are considering. The second part of the noble Earl's Question raises quite different issues. Though this matter is one of great interest, I do not think that inquiry by a Royal Commission is called for.

§ EARL WINTERTON
My Lords, while thanking the noble and learned Viscount the Lord Chancellor for his Answer, may I ask him this supplementary question, which I should like to say is not intended to reflect in any way upon the high authorities mentioned in the Question. Is he aware that high legal opinion and articles in such newspapers as The Times have shown concern at what is alleged to be the undue emphasis by another place upon its privileges, or, to put it more accurately, contempt of its privileges by outside persons? Is he further aware that the same concern is expressed at what is again alleged to be the undue emphasis placed by the courts upon what constitutes contempt in matters which are sub judice? And is he further aware that the privilege of the High Court of Parliament (as I know, having been, I think, longer than most others a member of the Committee of Privileges of another place) is based largely upon the Bill of Rights of 1688, which was passed in order to protect Parliament against the Crown, not against the people; and that recent judicial decisions have been based upon the judgment of Lord Hardwicke in 1742, when a corrupt Government were endeavouring 949 to influence the Judiciary to prevent opposition in the Press? Surely in those circumstances some inquiry is called for?

§ THE LORD CHANCELLOR
My Lords, perhaps I may take the subjects now in the order of my noble friend's supplementary questions. First, with regard to the question of privilege, I also have served on the Committee of Privileges in another place, though not, of course, with the experience of my noble friend. I am well aware of the history of the matter, and I think that my noble friend and I might find another occasion when we could discuss the origins and the history. But I should like just to say this to-day. The case recently discussed in another place, as I understand it, did not involve any change in the law of privilege but simply its application to particular facts. Therefore, I do not propose to say any more, because it would not be in accordance with the comity between the two Houses that I should discuss in any way the debate that has taken place in another place.
On the other point, contempt of court, I conceive it my duty as Lord Chancellor to do nothing to encourage comment that would prejudice the fair trial of any Her Majesty's Government's subjects. My noble friend Lord Winterton, with his high sense of constitutional propriety, would be the last to advocate trial by newspapers instead of trial by jury. I am, however, conscious of the desirability that citizens of this country should be encouraged to read Commonwealth and foreign newspapers, and I am ready to consider any suggestion to help the latter in the situation in which they have been found. I am also ready—and I think the House would grant that I am always ready—to consider improvements in the procedure of the law; and if any suggestions are made by the noble Earl or by anyone else in any part of the House I shall be very glad to consider them in relation to this subject matter.

§ VISCOUNT ALEXANDER OF HILLSBOROUGH
My Lords, we are all obliged to the noble and learned Viscount for what was obviously a calm and considered statement upon a difficult and controversial subject. May I take it from what he has said that, excluding the particular case which was under discussion, there is no intention of having any alteration 950 in the constitutional practice of the law with regard to the privilege of Parliament? That is what I gathered from what he said. I would agree, of course, with any free inquiry of the kind which the noble and learned Viscount has made, but I hope he will also be aware that there are very strong feelings on the necessity for keeping such a privilege of Parliament as will enable the citizens' representatives to be quite free in making statements on their behalf.

§ THE LORD CHANCELLOR
My Lords, the noble Viscount who leads the Opposition of course understood me perfectly correctly when I said that I did not think that this was a subject for a Royal Commission. On the question of privilege, I am sure that that always ought to be regarded, as the noble Viscount said—and I am sure the noble Earl who raised this matter would be the first to support him—on the basis of the undoubted truth that it is the privilege of all of Her Majesty's subjects, expressed in the acting of Parliament, that every problem that arises, as has been the case with those that have arisen over the last 350 years, should be considered carefully, quietly and dispassionately with that point in mind. I hope that that satisfies the noble Viscount.

§ VISCOUNT STANSGATE
My Lords, whilst it is true that matters of privilege in another place are not subject to debate here, I understand there is common ground in the privilege of both Houses; therefore, the general question of privilege concerns us all. I should like to ask the Lord Chancellor this question: is he aware that some people have been rather anxious about the decision that a letter sent to a Minister complaining about the conduct of some part of the Government is not a proceeding in Parliament? I am not aware that that has ever been decided before. If that is so, it would seem that that rule applies as much here as elsewhere, and it puts Members of this House in this difficulty, that before forwarding a letter to a Minister they must ask themselves: "Inasmuch as this is not a proceeding in Parliament, is there matter here which might bring me into the courts?"
Finally, the Lord Chancellor referred to the Attorney General. The Attorney General gave an obiter dictum in another place which was rather puzzling. He said 951 that of course a speech in Parliament is subject to a writ. Would the Lord Chancellor get the Attorney General to obey a Writ of Attendance, which he receives to come here, and explain what he meant by that?

§ THE LORD CHANCELLOR
My Lords, the only logical answer to the noble Viscount's compendious question would be that given by Sir Gordon Hewart in another place to a question by Mr. Horatio Bottomley: "The answer is in the plural". But I will try to do my best. Of course, the noble Viscount is right in his first supposition, that the privilege of Parliament is a matter for both Houses, and this House has its privileges which are part of the law of Parliament, as has the House of Commons. With regard to the specific point, I would ask the noble Viscount to let me abide by my first answer: that this was an issue which raised no change in the law but simply its application to a particular matter; and the House of Commons has given its view on its application to the particular matter that was raised.
With regard to the passage referred to in the speech of my right honourable and learned friend the Attorney General, again I would put to the noble Viscount that I should not be asked in a supplementary question to comment on the speeches in that debate. I am not trying to avoid it, but it does involve considering the context and background in which the statement was made, and I should prefer not to give an answer on that point. With regard to the suggestion that my right honourable and learned friend the Attorney General should answer the Writ, the noble Viscount will remember that on the last occasion he raised that point I deluged him with history, and I certainly am not going to turn on the flood again.

§ VISCOUNT STANSGATE
My Lords, I thank the Lord Chancellor for his answer, but may I ask for a plain answer to this question: if I send a letter to a Minister complaining in heated terms about some alleged mismanagement in his Department, must I rely, if attacked, on what is called "qualified privilege", or have I the privilege of a proceeding in Parliament?

§ THE LORD CHANCELLOR
My Lords, I must ask the noble Viscount to put that question on the Paper. There are so many qualifications that arise, as to the nature of the letter and the circumstances, and I certainly should not be prepared to give a reply on my fourth time of rising in answer to a supplementary question.

§ VISCOUNT STANSGATE
My Lords, I will not ask the Lord Chancellor to rise again, but I will thank him for his reply and say that I will certainly put a Question on the Paper. May I remind him that when he and I served on the Select Committee in the Sandys case he took an exactly opposite view on the question of privilege when writing to a Minister?

§ THE LORD CHANCELLOR
The noble Viscount has reminded me of a very happy co-operation which we had exactly twenty years ago. I speak from memory, but in that case, I think, we were considering the action of an honourable Member of another place who said to a Minister: "If you do not satisfy me to-day I shall put this Question on the Order Paper ". We then considered a particular case which was extremely proximate, if I may put it that way, to the placing of the Question on the Order Paper, and I do not think the noble Viscount should say anything to-day which suggests that it was extended beyond that. It was a very carefully considered answer which the Select Committee gave on the facts placed before it in that case, and I do not agree that it covers the case discussed in another place last week.