LORDS AMENDMENT (Hansard, 20 July 1978)

§ Lord McCLUSKEY
My Lords, I beg to move that this House doth not insist on their Amendment No. 23, to which the Commons have disagreed for the Reason numbered 24. This Amendment was the subject of a substantial debate in the other place. Indeed, it relates to matters which were discussed here more than once. The problem and the different views upon the problem are all familiar to your Lordships, and I do not think I need to repeat arguments that we have already heard. Having attended part of and read all of the debate in the other place, I believe that the objection to one particular solution was perhaps emphasised and clarified in another place. This solution was to equip the Assembly with privilege on the Parliamentary model. I believe that the noble Earl, Lord Selkirk, at one time advanced that idea. However, the objection is that the Assembly is not to be a sovereign, independent Legislature and therefore should not be treated as if it were a sovereign, independent Legislature. It should not be treated as if it were Parliament. This is one of the reasons why I would ask the House to accept direct statutory provision.
The debate in the other place also served to establish, even more clearly than before, what was the area of common ground across the Floor of the House. I believe that it was accepted in the other place that written statements should be capable of attracting absolute privilege. The point of objection was that the provision in the Bill could be construed as going further than the doctrine of privilege went, notably because it did not specify that publication should be limited to what was absolutely necessary. To this the Government's answer was, and remains, that if publication is excessive, the person who makes the statement could be hard put to it to establish that it was made in proceedings of the Assembly. The courts have never 464 hesitated to lean against excessive publication. But the Amendment does not deal with the extent of publication or with the ambit of "proceedings of the Assembly", which I have always suggested was the important part of the clause. The Amendment would merely leave out the words declaring that a protected statement can be oral or written, and the Government are content to defend these words as necessary to avoid an avoidable doubt, an ambiguity.
I do not think that there is anything further that I can usefully say, except to draw attention to the fact that while considering the Wales Bill last night, the other place, by a majority of 34, rejected the same proposition which had been put into that Bill. For these reasons, therefore, I would invite noble Lords not to insist on their Amendment No. 23. I beg to move.

The Earl of SELKIRK
My Lords, I wonder whether I may for a moment look at the position in which we stand in regard to this clause. I think it is something of an achievement, on a subsection which has no conceivable political connotation—I do not believe that any political manifesto ever said there was an intention to extend the absolute privilege of Parliament, so I do not think it has ever been raised as a popular cry. Moreover, I understood from the noble and learned Lord the Lord Chancellor, that we were wholly agreed that there were no changes in the standard of absolute privilege from that at present current in Parliament.
There was one interesting remark made in another place to which I should like to refer. Just before the Division took place, Mr. Grimond asked the Government whether or not letters from Members to Ministers were privileged, and this is what the Minister of State for the Privy Council, a distinguished lawyer, said: As we read the Bill as it stands, it is that there should be privilege". This is quite clearly directly in contradiction to the decision which was made in Parliament 20 years ago in what is called 465 the Strauss case and which I believe primarily turned round this very point. Mr. Herbert Morrison, who moved the Amendment which was carried and supported by the House, said this—and I think these are the crucial words: I cannot see that the doctrine of Privilege ought to extend to a written communication sent privately to a Minister"— and he gave as his reason, because we must be careful not to injure the legitimate rights of the private citizen".—[Official Report, Commons 8/7/58, cols. 233 and 234.] I am bound to say, of course, that Parliament may change its view in interpreting privilege, but this is the latest view which has been expressed quite clearly, and there is no doubt now that the law of absolute privilege will be different in Scotland from what it will be in Parliament. That is what I was afraid would be the case and is now made quite clear. I really must regret that this interpretation which has been made in the other place by the distinguished Minister of State is different from that which we were led to believe in this House. It is a pity, and I think it will lead not only to two standards but also to great difficulty in interpretation, because when the courts come—as indeed we hope they never will come because we hope the occasion will never arise in a well organised Scottish Assembly—to call in question defamation, they will have no example or authority from any case in Parliament to say what written documents are absolutely privileged. Except for those published by Parliament I think no written document has ever been held to be absolutely privileged.
I know that the interpretation can be done differently and that was affirmed by the case which came up in Parliament 20 years ago. I think it is a pity that we should have different interpretations. It is wrong and unnecessary, in my view, and it is curious that in the interpretation there should have been two Divisions, one in this House and one in the other. I do not want to accuse the Government too forcefully of taking the view of the distinguished American that: "They have made up their minds and they do not want to be confused by argument", but that is rather what it looks like.
I should like to say only one other thing: it seems to me to be almost funny 466 that at the end of the Reason which they give for wanting to change this Amendment they say, "Because it would create uncertainty". I doubt very much whether there is one single word in this subsection about which anyone would say with conviction that he knew exactly what is meant. It is a thoroughly clumsy piece of drafting and it is clumsy in the sense of representing much that is in this Bill. It could have been put in much simpler language and would have saved a great deal of trouble in the future.

§ Lord McCLUSKEY
My Lords, before the noble Earl sits down, I am wondering whether I am looking at the right passage when I look at col. 773 of Hansard of another place of 6th July 1978. Am I looking at the right passage there as being the one he referred to as containing the answer of my right honourable friend the Minister of State to a question asked by the right honourable gentleman representing Orkney and Shetland?

The Earl of SELKIRK
My Lords, I apologise for the fact that I have not made a note of the column, but I think the noble Lord will find it in answer to a question put by Mr. Grimond, and the Minister's words were: As we read the Bill as it stands, it is that there should be privilege", and that referred to letters from Members to Ministers.

§ Lord McCLUSKEY
My Lords, perhaps I may confine my reply to asking your Lordships to bear with me while I attempt to paraphrase what a Member of the other place said and to quote what a Minister in the other place said. Mr. Grimond certainly asked the Minister of State to tell the House whether it was the intention of the Government that communications between Members of the Assembly and the Executive should or should not he privileged, and just before the Division was called Mr. John Smith is quoted as saying: I wanted to have the opportunity to clear that matter up. As I understood it, the right honourable Member for Orkney and Shetland (Mr. Grimond) was saying 'Does it extend to'. Perhaps I ought to make it clear that my view is that it extends to them if they are proceedings of the Assembly".—[Official Report, Commons; 6/7/78, col. 773.] That seems to me to put the matter accurately, with respect, and it is consistent 467 with what I have said. If they are proceedings of the Assembly, then they are protected.

The Earl of SELKIRK
Of course, my Lords; but there happens to be no case at all in Parliament where that was accepted.

§ The LORD CHANCELLOR
My Lords, the Question is that this House doth not insist on their Amendment No. 23 to which the Commons have disagreed for the Reason numbered 24.