§ 3.25 p.m.
§ The LORD PRIVY SEAL (Lord Peart)
My Lords, with the leave of the House, I will now make a Statement on privilege.
I undertook on 2nd May to consider the point raised by the noble Lord, Lord Paget; namely, that a breach of 1116 privilege may have been committed by an attempt to prevent the noble Duke, the Duke of Montrose, from attending proceedings in your Lordships' House.
I must emphasise that it is not for me to rule whether or not something that has occurred is a breach of the privileges of this House. I have, however, considered the facts of the case and all I can do is to give your Lordships the benefit of the advice I have received.
Freedom of access to Parliament is a privilege enjoyed by Members of both Houses and by tradition it extends from 40 days before until 40 days after the Session. The extent of the privilege is summarised in the Companion to Standing Orders and it is subject to certain exceptions explained therein.
As to the facts of the present case, the noble Duke is in receipt of a Writ of Summons to attend this House. He is also subject to the provisions of the Southern Rhodesia (Immigration Act 1971) Order 1972 under which a person who would otherwise be entitled to enter this country may be refused entry. This order applies to any Commonwealth citizen whom the Secretary of State has reason to believe to be ordinarily resident in Southern Rhodesia and to have furthered or encouraged any unconstitutional action there.
According to my information, however, and contrary to Press reports, the noble Duke has not made any application for passport facilities recently. He has leave of absence from this House, a circumstance which suggests that he has no present intention of coming here. Furthermore, he has at no time applied to the appropriate body to have his name removed from the list of those subject to passport and travel restriction. I therefore think, my Lords, the House will agree that nothing has happened which could amount to an interference with a Member of this House carrying out his Parliamentary duties.
It is not, in my judgment, necessary to consider hypothetical questions relating to a possible conflict between Parliamentary privilege and an order made under statutory powers limiting access to this country. Nor is it necessary to consider the possible difficulties which the noble Duke might experience if he attempted to enter this country.
1117 Accordingly, my Lords, my advice to the House is that we should not take the matter any further at this stage.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, my noble friend Lord Carrington has asked me to apologise to the House because he was unavoidably unable to be present, and has asked me to deal with this Statement on his behalf. I know that the House will be glad and grateful to the noble Lord for having helped clear up this matter. Quite obviously, if there has been no relevant application to enter the country there can be no question of a breach of privilege, either. I must ask the noble Lord this because on reading Hansard on the previous exchange I was not sure whether the situation emerged plainly. Am I right in thinking that the privilege of access to Parliament in both Houses is not breached by the authorities of the country arresting for an alleged breach of criminal law or bringing criminal process against any person? My understanding is that privilege has no application to the criminal law of this country.
I should further like to ask this because I am puzzled about it in the light of what the noble Lord has told us. I think that most of us read in the newspapers, somewhere about Monday, a statement that a Foreign Office spokesman had said that if the noble Duke came to this country he would be prosecuted for treason. First of all, was that statement made? Secondly, if it was, who authorised it? Thirdly, since when has it been a function of the Foreign Office to make statements about criminal prosecutions? Is it not, in Scotland, for the Lord Advocate and, in this country, for the Attorney-General?
§ Lord BYERS
My Lords, I should like to say from these Benches that we fully support the action which the noble Lord the Leader of the House has decided to take in this matter.
§ Lord PEART
My Lords, I am grateful to the noble Lord, Lord Byers. May I answer the last point of the noble and learned Lord, Lord Hailsham? This is important. He referred me to an article in the Press and asked me to comment on its accuracy. I saw this article and I can 1118 confirm that the Foreign Office spokesman has not been correctly reported. A decision to institute criminal proceedings, whether for treason or any other offence, as the noble and learned Lord, Lord Hailsham of Saint Marylebone, knows, is a matter to be taken by the prosecuting authorities and not by the Government. There is also the possibility that a private citizen might attempt to institute a prosecution. There would be no way of stopping such an attempt being made. This is not a matter for Her Majesty's Government, so I cannot really comment on it. On the other matters, I agree 100 per cent. with the noble and learned Lord.
Lord PAGET of NORTHAMPTON
My Lords, may I express my thanks to the noble Lord for the trouble which he has taken on this matter. First, I refer to the noble Duke's right to be here. That, surely, is recognised by the simple fact that we, this House, gave the noble Duke leave of absence from this Session. If he had not received that leave of absence, it would be not only his right but his duty to be here. As the noble Lord says, the question of whether the existence of a Standing Order entitles the Government to infringe the privileges of this House may be a matter that will arise later. Regarding what the noble and learned Lord, Lord Hailsham of Saint Marylebone, said on treason, surely it was well established in the 18th century that taking part in a colonial rebellion was not treason within the Statute of Treason and was not therefore an action over which the courts in this country had jurisdiction.
§ Lord PEART
My Lords, I would only say to my noble friend Lord Paget that it is not for me to comment on what is or is not treason; and in any case, as I have said, there is no real issue here of privilege at this stage. It would be wrong of me to he involved in hypothetics.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, may I make it absolutely clear that I make no suggestion whatever that the noble Duke has infringed the criminal law in any way.
§ 3.33 p.m.
§ Lord BARNBY
My Lords, since this is a matter connected with Rhodesia we 1119 regret spending much time on it, but in this case it is a rather different issue and it is only by accident that it happens to be from Rhodesia. Having taken advantage in this case, by request from the individual concerned, to seek advice from an ex-Lord Chancellor and the present Lord Chancellor—who has been gracious enough to see me on two occasions about it, which I appreciate—I would ask whether this is not a case where a Summons from the Monarch is in conflict with the Office of her State? On a Writ of Summons, there is nothing to stop action by the person concerned, but of course the Office in conflict with that can deny right of entry. But it would seem on the possible charge of treason, as the noble Lord the Leader of the House has said, that a suit might be laid. But where is the position there between charge and conviction? We had a recent experience in the House of Commons where a charge laid against a Member—which subsequently was proved correct—permitted him to continue to sit in the Commons and take action in the Commons until he was convicted. I ask the noble Lord the Leader of the House whether or not it would have been possible in a case like this—where it was said yesterday, or the day before, that the subject had fought for his country and had done everything to constitute him to be considered right for an act of clemency—
§ Several noble Lords: Order! Order!
§ Lord BARNBY
My Lords, this is a question of privilege. There is nothing in the Orders of this House against discussion once it is raised. The noble Duke wanted to attend a conference of chiefs in Scotland. This is a matter of interest to Scottish Members of the House. Surely there could have been an action, whatever the case if a writ was laid against him, to permit continued presence in the country long enough to fulfil his position as chairman of that council of chiefs, regardless of what may be the legal position, and even though there has been no charge as yet made through the courts.
§ Lord PEART
My Lords, I think the House allowed the noble Lord a considerable latitude. There is a Standing Order on this. I need not repeat it; I 1120 have read it out before. I know that the noble Lord has had a great interest in this matter over the years—and I am thinking of the area in question—and I understand his feelings; but I think what I have said in my Statement, if the noble Lord reads it carefully, shows that this is the right course to take in the present circumstances.
Lord HOME of the HIRSEL
My Lords, there is one matter which worries me—and I do not think there is much advantage in further public discussion in this House. The Leader of the House said that it might be that any common informer could go to the police and therefore to the prosecuting authorities. If the noble Duke does make an application, would the noble Lord consider making the situation perfectly clear to the noble Duke before he applies to come to this country?
§ Lord PEART
My Lords, that is already known to the noble Duke. I thought it was understood; there are certain individuals taking a great interest in this and there could be a private prosecution. In any case, I will see that this information is put to him.
§ Lord BARNBY
My Lords, the noble Duke is fully aware of it. It is a compliment to the Post Office that I received yesterday morning a letter from him dated Salisbury, 2nd May. It is an astonishing achievement. He told me that the wire from England had been hot. It has been a matter of great interest to the Press, BBC and others, who have been continually on the telephone. This is a matter of some public interest at the moment. For this reason I feel fully justified, with due respect to the noble Lord the Leader of the House, in having brought it up and had it discussed here.