Defamation Bill [H.L.]

HL Deb 07 May 1996 vol 572 cc17-54

3.27 p.m.

Read a third time.

Clause 2 [Offer to make amends]:

The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 1: Page 2, line 43, leave out from beginning to ("and") in line 6 on page 3 and insert—

1. ("(a) to make a suitable correction of the statement complained of and a sufficient apology to the aggrieved party,
2. (b) to publish the correction and apology in a manner that is reasonable and practicable in the circumstances,").

The noble and learned Lord said: My Lords, in moving Amendment No. 1 I shall speak also to the other amendments standing in my name. Although to some extent they deal with other subject matters they are linked in that they are responses to points raised by your Lordships during earlier proceedings and to which I undertook to give attention. The first set of amendments is concerned with the offer of amends; I shall deal with that first. Amendments Nos. 1 to 3 deal with problems which were raised by various sections of the media in relation to the offer of amends.

I should like to mention that my noble and learned friend Lord Denning, who as your Lordships know has not been able to attend this House for some time due to his physical disability, has asked me to tell your Lordships of his enthusiastic support for this Bill, although he is bodily at a distance.

As I said, the amendments which I am moving today result from helpful suggestions made at various stages of the Bill by your Lordships. As I hope your Lordships would expect, I have given very careful consideration to all the suggestions which have been made to me, and those which I will move today relate to two of the reforms made by the Bill.

First, I propose to make an important modification to the new procedure of the offer to make amends machinery, and some further modifications relating to the statutory privileges afforded to reports and other materials of the proceedings of particular courts, and of legislatures and specified other public proceedings.

Your Lordships will recall that the statutory privileges, originally contained in Section 3 of the Law of Libel Amendment Act 1888 and Sections 7 and 9 of the Defamation Act 1952, were urgently in need of being brought up to date, not least to reflect the changes which have been made in our relationships with other countries, both in Europe and internationally. In particular, as Lord Justice Neill's working group said: it is surely beyond question that in view of our entry into the European Community in 1973 the privilege accorded by section 7 and the schedule to the Defamation Act 1952 to newspaper [and other] statements by certain British officials and of certain categories of meetings or proceedings, within this country, should be extended to cover reports of similar matters within the community".

We have applied the same principles to the updating of Section 3 of the Law of Libel Amendment Act 1888, including a reference to the European Court of Justice in the Bill as introduced (following consultation on the draft Bill published last July), and your Lordships accepted my amendment at Committee to include also the European Court of Human Rights.

Noble Lords will recall that Clause 14 was amended while the Bill was in Committee, to provide a free-standing list, in subsection (3), of the courts to which the section applies, so that contemporaneous reports of their proceedings will be absolutely privileged. The noble Lord, Lord Williams of Mostyn, had tabled an amendment which partly coincided in effect with my own amendment, but would also have included international war crimes tribunals. I have concluded that it would be right to include such tribunals, and that is the purpose of Amendments Nos. 6 and 7.

The terms of the amendment will ensure that those international criminal tribunals which are recognised by the United Kingdom—including any such tribunals which may be set up in the future—will be covered. Hitherto, such tribunals have been set up by the Security Council of the United Nations, but we have provided for the possibility that we and other nations may in the future wish to make use of other international agreements. This is a precaution which it is right for us to take, although our earnest wish must be that there will be no further events making it necessary to set up such tribunals and have such trials.

Your Lordships may consider that the timing of this amendment is particularly opportune, as I understand that the hearing of the first case before the tribunal dealing with alleged war crimes committed in the former Yugoslavia is to begin today, and that this is the first war crimes trial since Nuremberg.

Amendment No. 12 is to similar effect, putting these international tribunals on the same basis as the other international courts already referred to in Part I of the first schedule, for the purpose of the qualified privilege conferred by Clause 15.

I turn now to the matters dealt with in the earlier amendments. I considered most carefully the concerns expressed by the noble Lord, Lord Lester of Herne Hill, and other noble Lords when the clauses introducing the new offer to make amends machinery and defence were previously considered by your Lordships. As your Lordships will be aware, those concerns were reflected in various sections of the media.

Those replace an existing defence which does not now fulfil the purpose for which it was created. Section 4 of the Defamation Act 1952 introduced a new statutory defence of unintentional defamation. It allowed a defendant who could prove his own lack of intention to forestall the plaintiffs claim provided he could act extremely quickly once he became aware that he had defamed the plaintiff.

The provision was intended to provide a speedy and relatively cheap way out of trouble in cases of "innocent" defamation. In practice, the formal requirements were found to be very cumbersome, and the stringent formal and other conditions were such that the defence was very little used. In the evidence before the Neill Committee, one of the most popular recommendations was for a more user-friendly defence in substitution for the old Section 4 defence. Such a defence could be loosely based on the best features of the old unintentional defamation defence, but without those features which had made the old defence so unattractive and unworkable in practice. It would avoid the need for a trial when the defendant was prepared to admit liability and to make amends, even though he could not meet all the conditions imposed by Section 4.

The Neill Committee recognised that it was impossible to produce a perfect solution, but its recommendation was that there should be a new, more streamlined defence, introducing certain changes which would remove some of the hurdles presently confronting defendants. The onus should not be on the defendant to prove lack of intention, and the defendant should have a more realistic time in which to decide whether or not to make an offer. On the other hand, it was not satisfactory for defendants to have a defence available, based on their reasonable behaviour after publication, which would leave the plaintiff with no compensation at all in respect of hurt feelings or injury to reputation caused by an admitted defamation.

During last year's consultation on the draft Bill we identified a further need. Many publishers welcomed the streamlining of the defence and the opportunity to make amends when they found that they had made a mistake. But they explained that it would still have to be limited when there was the possibility of a dispute as to the exact meaning of the statement. In those circumstances, a defendant might not be willing to make an open offer to make amends in case the court found that the meaning was more seriously defamatory than he was willing to concede. Nevertheless, a full trial could still be avoided if the provisions allowed the defendant to make an offer limited to the defamatory meaning which he was prepared to concede. Clause 2 is therefore an improvement on the published draft, allowing the defendant to make a qualified offer to make amends, specifying that meaning or meanings; that is, the meaning or meanings which the defendant is prepared to accept that the statement could bear.

I believe that those modifications were welcomed as meeting a real need; to overcome reluctance to make an offer because of the possibility of significant differences between the ways in which the parties would contend that the defamatory statement should be read. But it is another hurdle which has been stressed during the passage of the Bill. It was represented to me most forcefully that the media in particular would be disabled from using this procedure because they would not be willing to start up a mechanism which could end up as invoking a judge's power to dictate the terms of their apologies, and to compel them to publish those words in a particular way. Your Lordships may recollect a leader in which an important national event was signalled in the 10 o'clock news as following an intimation of some apology which, although no doubt very important for the person to whom the apology was made, it would not be seen as of shattering national importance.

As I said at Report, it seems to me that the dramatic examples which have been given to illustrate why the media would be reluctant to offer amends under these provisions do not reflect the likely reality of their operation. Nevertheless, we are all anxious to see that the new procedure will achieve the desired result, that where a person has been defamed, and the mistake is acknowledged, a system of speedy and voluntary amends should become the recognised conventional path to choose to resolve differences which might otherwise involve the parties in protracted and expensive litigation. This is something which may not happen if there is a general reluctance to come forward and make offers, even if that reluctance is attributable to what we would consider to be an unnecessarily cautious approach. As I said, I wish to reach the best possible solution to this problem. We want to encourage maximum use of the offer machinery, provided, of course, that its use will lead to effective amends being made to those who have suffered defamation.

Effective amends is the whole purpose and centre of the provisions. It involves not merely acknowledgement of the wrong but an attempt to undo the wrong which has been done. It is essential that the person who has done the wrong should be willing to, and should, take steps which will achieve that aim. It is in both parties' interests that the wrong should be righted as quickly as possible and as inexpensively as possible. In most cases, therefore, there is likely to be agreement as to the amends which will be appropriate.

But inevitably there will be some cases in which, although the parties are agreed in principle, they are unable to agree the exact steps to be taken. That may be because the offeror is not willing to apologise in terms which would be acceptable to the wronged party and which the court would consider reasonable or he is not prepared to give his withdrawal a prominence which the wronged party considers proportionate to the prominence of the original published wrong; or it may be that the wronged party is making unreasonable demands. Only the court can judge in a particular circumstance which is the case. This is where I have modified the provisions. I believe that it would be wholly appropriate for the court to judge those matters and to make an order accordingly, so that the package awarded to the person who accepted the offer will reflect the full amends that he is entitled to expect when he accepts the offer—no more and no less.

It may be that a very limited publication is apt. It may be that the money element in the package, if any, would be very small. Nevertheless, it has been represented to me that there is a very real fear among the media that, if they made offers, orders might occasionally be made against them in terms which differed very radically from what they had contemplated when making the offer. It is suggested that while there was any such risk offers would not be forthcoming. Of course, the media do not have the exclusive privilege of being at the receiving end of libel claims, and this procedure is not designed for their exclusive use. But it is important that those who are defamed by the media should not be deprived of the benefit of it because of the reasons which I have outlined. I have, therefore, sought an accommodation to vary the provisions which will apply when the parties cannot agree the details in such a way as to preserve the core of the amends package while removing that element which was seen as a serious disincentive to offering amends; namely, that offers might rarely, if ever, be made.

The amendments now proposed to Clauses 2 and 3 maintain the emphasis on the need for appropriate publicity being given to the correction and apology. But if the parties fail to agree those details, the defendant must take his chances on the basis of his best offer. The details of his best offer—as to wording and manner of publication—will be scrutinised by the court. If the court thinks that the plaintiff's demands for more were unreasonable, the position will be much the same as if the court had made an order coinciding with the best offer. If, however, it falls short of what the court considers to be adequate, that will be reflected in the money compensation.

One possibility which did concern me was that an offer of amends might be made as something of a tactical ploy by a person who had no intention whatever of righting the wrong in the manner contemplated by the provisions and whose "best offer" might even exacerbate rather than amend the original wrong. It is an established principle of defamation law that conduct after the original publication may be taken into account in the assessment of damages, whether that conduct shows a will to make good or determination not to do so. I have taken great care, therefore, to ensure that that principle is clearly manifested in the provisions. If it appears that an offer has been made hypocritically, that may indeed sound in the compensation. That, I think, will discourage any attempt to abuse the new machinery. For the convenience of your Lordships, I have sought to explain all of the amendments tabled in my name at the same time. I beg to move Amendment No. 1.

3.45 p.m.

Lord Williams of Mostyn

My Lords, perhaps I may respond in the same way as the noble and learned Lord the Lord Chancellor on the matter of the scheme. I am most grateful for the noble and learned Lord's proposed Amendments Nos. 6, 7 and 12 which, as he indicated, give a necessary and appropriate protection to contemporaneous, fair reports of the proceedings of international criminal tribunals. I am certainly conscious that a good deal of thought has been given to the concerns raised by the noble Lord, Lord Lester of Herne Hill, and myself, as well as others, relating to directed corrections or apologies which editors of newspapers and television programmes strongly resisted.

However, I have one question regarding Amendment No. 2. Paragraph (a) refers to, the correction and apology by a statement in open court". Under the present scheme of the rules of court, it seems to me that that would mean that the offer of amends could be put into effect only after the issue and service of the writ. I wonder whether the noble and learned Lord would confirm that interpretation.

The noble and learned Lord indicated that he wished maximum use of the offer of amends machinery to be made. Therefore, it is a pity that Clause 2(5) still contains the prohibition on the ability to make amends after the service of a defence. Generally speaking, it seems to me that a reasonable balance is now capable of being struck between the utility of the procedure—that is, the offer of amends procedure, which ought to he reasonably quick and cheap and, therefore, reasonably acceptable to the parties—and the legitimate concerns, as foreseen by at least two of us, of editors of publications and television programmes. As a matter of principle, I welcome the improvements to the offer of amends machinery.

Lord Lester of Herne Hill

My Lords, like the noble Lord, Lord Williams of Mostyn, I greatly welcome the first amendment and, indeed, all of the amendments to which the noble and learned Lord has spoken. If I may say so, it is particularly gratifying that the noble and learned Lord has responded in a characteristically open-minded way, not only to the debates in your Lordships' House but also to the representations that have been made outside the House.

I should, first, declare a personal interest, as occasionally clients are foolish enough to ask me to appear as counsel in libel cases, normally on the side of newspapers. But, speaking for myself, I view the first amendment as being damaging only to the interests of the libel Bar, as it will surely mean some reduction in our income if, as we hope, the effect of the amendment will be to discourage avoidable libel litigation and favour instead the much more sensible approach which the offer of amends procedure is intended to achieve.

In my view, the great virtue of the amendments is that they strike a fair balance between, on the one hand, the important conflicting public interest—that is, the public interest in vindicating the right to personal reputation—and, on the other hand, the important public interest in freedom of expression. I am glad to see that judicial protection is retained in the amendments. Although editors regard that as being a matter within their exclusive sovereignty, they must surely realise (and I am sure that those who are responsible do) that ultimately it is for the courts and not for them to decide how to strike that balance.

I believe that the fears expressed by the media may have been exaggerated. However, I am sure that the noble and learned Lord is wise to respond to those fears so that the media have no excuse for not making full use of the fast-track procedure; that is, the offer of amends procedure. I very much hope that all those who advise the media will impress upon them the importance of making the system work rather than raising legalistic or pedantic points. For all those reasons, I am delighted that the first amendment has been tabled in such a form that it meets those legitimate interests while still preserving the core of the very sensible procedure of which the members of the committee of Lord Justice Neill were the original architects. I therefore strongly support the amendment.

The Lord Chancellor

My Lords, I am grateful for the support given to the amendments. With regard to the point on the Rules of Court made by the noble Lord, Lord Williams of Mostyn, I think that adjustment of the rules will be required to take account of these procedures.

On Question, amendment agreed to.

Clause 3 [Accepting an offer to make amends]:

The Lord Chancellor moved Amendments Nos. 2 and 3: Page 3, line 22, at end insert (", as follows. ( ) If the parties agree on the steps to be taken in fulfilment of the offer, the aggrieved party may apply to the court for an order that the other party fulfil his offer by taking the steps agreed. ( ) If the parties do not agree on the steps to be taken by way of correction, apology and publication, the party who made the offer may take such steps as he thinks appropriate, and may in particular—

1. (a) make the correction and apology by a statement in open court in terms approved by the court, and
2. (b) give an undertaking to the court as to the manner of their publication.

( ) If the parties do not agree on the amount to be paid by way of compensation, it shall be determined by the court on the same principles as damages in defamation proceedings. The court shall take account of any steps taken in fulfilment of the offer and (so far as not agreed between the parties) of the suitability of the correction, the sufficiency of the apology and whether the manner of their publication was reasonable in the circumstances, and may reduce or increase the amount of compensation accordingly. ( ) If the parties do not agree on the amount to be paid by way of costs, it shall be determined by the court on the same principles as costs awarded in court proceedings."). Page 3, line 23, leave out subsections (3) to (5).

The noble and learned Lord said: My Lords, I have spoken to these amendments. With your Lordships' leave, I beg to move Amendments Nos. 2 and 3 en bloc.

On Question, amendments agreed to.

Lord Hoffmann moved Amendment No. 4: After Clause 13, insert the following new clause— EVIDENCE CONCERNING PROCEEDINGS IN PARLIAMENT (".—(1) Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of 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 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, and
2. (b) none of those things shall be regarded as infringing the privilege of either House of Parliament.

(3) The waiver by one person of that protection does not affect its operation in relation to another person who has not waived it. (4) Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) 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. (5) Without prejudice to the generality of subsection (4), that subsection applies to—

1. (a) the giving of evidence before either House or a committee;
2. (b) the presentation or submission of a document to either House or a committee;
3. (c) the preparation of a document for the purposes of or incidental to the transacting of any such business;
4. (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a committee; and
5. (e) any communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of members' interests.

In this subsection "a committee" means a committee of either House or a joint committee of both Houses of Parliament.").

The noble and learned Lord said: My Lords, this amendment was moved in Committee and withdrawn; it was moved again on Report and, but for a procedural mishap, would have been withdrawn. I now move it again with the leave of your Lordships' House. On the previous two occasions the House was, perhaps not surprisingly considering the subject matter, somewhat thinly attended. As there are now more noble Lords present, I ask the indulgence of the House if I cover what to some will be familiar ground.

This amendment has been stimulated by two recent cases, one in the Privy Council and one in the courts of this country. The English case is that of Mr. Neil Hamilton, a Member of another place and formerly a junior Minister. The Guardian newspaper published an article which he says amounted to an allegation that he made corrupt use of his position. He was said to have received payments from a businessman in return for asking Ministers questions which were intended to further that businessman's interests. The matter was taken sufficiently seriously for him to be asked to resign from the Government with no prospect of return until he had cleared his name from the Back Benches. This he attempted to do. He issued proceedings for libel. The Guardian pleaded justification. It said that what it had printed was true. But then the question arose as to whether the court could decide this matter. It would involve investigation of what a Member of one of the Houses of Parliament had done in the course of his parliamentary duties. The court held that this would be contrary to Article 9 of the Bill of Rights of 1689, which is headed "Freedom of Speech" and provides, That the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament".

The primary purpose of Article 9 is of course to protect honourable Members and noble Lords from legal proceedings such as actions for libel, or in the old days prosecutions for sedition, on account of what they say or do in Parliament. This guarantees that complete freedom of speech which is essential to the functioning of Parliament and which was part of the settlement after the Glorious Revolution. In the 300 years since then the courts have given Article 9 a wide construction. It applies not only to actions against Members or noble Lords for what they have said in Parliament, but to any proceedings in which it is sought to question what has happened in Parliament. Indeed, the article has been said to be only part of a wider privilege which Parliament has to control its own proceedings and which in the 19th century was famously held to include the right to prohibit publication of reports of its debates.

There has been no previous case in England in which a Member of either House has sought to bring a libel action which raised a question about his own parliamentary conduct. But there has been at least one in Australia. It so happened that there had recently been a case in New Zealand, Prebble v. Television New Zealand, which came before Members of your Lordships' Appeal Committee sitting in their capacity as Members of the Judicial Committee of the Privy Council. In that case it was decided that the court could not inquire into parliamentary conduct and that if the effect of that was to stifle a defence—on the part of, in that case, the television company, or the newspaper—that defamatory allegations were true, the Member's action would have to be stayed. So following that decision, the judge who was hearing Mr. Hamilton's case decided he could not investigate whether the Guardian's defence was true or not and that Mr. Hamilton's action would have to be stayed. So it remains technically in limbo but for practical purposes dead. Unless there is a change in the law which enables the judge to decide whether or not the Guardian was right, Mr. Hamilton cannot sue it. There is nothing which he can do to clear his name.

I should say at once that I do not know Mr. Hamilton and I have never met him. Nor, of course, do I have any idea as to where the truth lies in the dispute between him and the Guardian. But I am sure your Lordships will agree that it is unjust that he should not be able to put the matter before a judge and jury, like any other citizen who considers that his integrity has been publicly defamed. It is therefore to redress this injustice to Mr. Hamilton and anyone else who may in future find himself in the same position that I put forward this amendment. Its effect—if I may summarise—is to allow a Member of either House in defamation proceedings to lift a corner of the curtain which the Bill of Rights draws over parliamentary proceedings and to allow the judicial gaze to fall upon his conduct alone. In no other way does it touch upon Article 9 or the privileges of Parliament.

If this amendment is passed it will give Mr. Hamilton access to justice which is at present denied him. As to this, I think that your Lordships can be in no doubt. But while access to justice is a matter of high constitutional importance, I recognise that it cannot always take paramount place. There are other aspects of the public interest to which it must sometimes defer; and one of these is the proper functioning of a democratic Parliament, which in our ancient constitution is still underpinned by the Bill of Rights. Notwithstanding my natural concern as a Member of the Appeal Committee of your Lordships' House with the administration of justice, I recognise the importance of these other constitutional issues. For that reason I do not see myself in the role of a partisan advocate of this amendment. The case for the amendment is fairly plain and I have made it already. But I also conceive it my duty to lay before your Lordships the arguments against the amendment so that you may better be able to balance the claims of justice against other interests of state.

One does not have to look very far for an example of access to justice being necessarily subordinated to the proper functioning of Parliament. The absolute privilege which the Bill of Rights gives to parliamentary debates and to newspaper reports of those debates means that a citizen who is defamed by something said in Parliament has no remedy in the courts. Even if the defamation was grave and malicious, his interests are sacrificed to the paramount interest of allowing uninhibited free speech in Parliament. So it is argued by some that the present case is only the other side of the coin. If honourable Members can say what they like about other people without being sued, why should they be able to sue for what other people say about them?

I think that this symmetry is deceptive. The public interest in freedom of speech in Parliament is ancient, plain and obvious. Not only is it greatly prized; it is also jealously guarded against misuse. Both Houses have their own disciplinary procedures against Members who abuse the privilege to defame outsiders. But what is the public interest in allowing anyone free licence to make defamatory statements about what honourable Members or noble Lords do in the course of their parliamentary duties? It may be said that they are public figures and that therefore in the interests of general discussion of public affairs they should have to submit to what may be said about them. The United States comes close to having such a rule. It allows public figures to sue for defamation only if they can prove that the statement was made with malice or reckless disregard of the truth. It is not enough for them to be able to show or even to require the other side to show that it was wrong.

But there is little support for such a rule in this country. And to maintain the rule with which we are concerned today would be a very eccentric way of giving effect to a policy of free discussion of public figures. First, it would apply only to what they did in the course of their parliamentary duties. If Mr. Hamilton had been alleged to be corrupt in the performance of his duties at the Department of Trade, there is no doubt that he could have sued for libel like anyone else. There is simply no logic in a distinction between what he does in that capacity as a public figure and what he does as a Member of another place.

Secondly, under the present rule, Mr. Hamilton is not even able to sue as he could in the United States, if the newspaper were malicious or reckless. He cannot sue at all.

Thirdly, there is no domestic procedure for restraining abuse, as there is in the case of defamatory statements made by honourable Members or noble Lords. It may be theoretically possible for the Committee of Privileges in the other place to declare that a false statement about the way in which a Member of the other place performed his duties was an infringement of the privilege of the House. I have not really considered the matter because I am sure that your Lordships will agree that from a political point of view such a procedure would not in practice be a feasible remedy.

The argument that honourable Members or noble Lords must take the rough of the Bill of Rights with the smooth does not stand up to critical examination. There is not even a connection between those who get the smooth and those who get the rough. To leave an honourable Member defenceless against attacks on his honesty because some other Member might be tempted to abuse his privilege of free speech is like some primitive form of collective punishment. But I readily acknowledge that the argument has a certain superficial attraction and your Lordships may think that regard should be paid to the way in which a proposal may be received irrespective of whether that perception is based upon any very coherent analysis of what the public interest requires.

The second serious argument against the amendment is that it has not been sufficiently considered. It is true that this is the third occasion on which it has been before the House and it will, of course, have to undergo further consideration in another place. But in the scale of the three centuries for which Article 9 of the Bill of Rights has survived untouched, the proposal can fairly be described as novel. It is not surprising, therefore, that concern has been expressed by people who have the interests of Parliament at heart, not only in this country but also in the Commonwealth. In this debate, my noble and learned friend Lord Simon of Glaisdale will be speaking to a Motion which he has put down to refer the matter to a Joint Committee of both Houses of Parliament.

I have great sympathy with my noble and learned friend's point of view. I say at once that I must confess to being extremely nervous at having put down a proposal which touches in any way upon the Bill of Rights, even though at the moment I think it to be totally innocuous and indeed beneficial. I think that my noble and learned friend's proposal would ideally be the right one. And, of course, it may be that my noble and learned friend and other noble Lords, in the course of this debate, will persuade me and others that there really are pitfalls for which such an inquiry is the only answer. But if that course were taken, the remedy, if any, would almost certainly be too late to help Mr. Hamilton. By the time the committee had reported, and parliamentary time had been found to pass its recommendations into law, his claim would be very stale indeed. The beneficiaries would be future honourable Members or noble Lords who might find themselves in Mr. Hamilton's position. And since, so far as I know, his is the first case of its kind in this country for 300 years, it may be some time before the change has any practical effect. So your Lordships have to decide whether or not Mr. Hamilton is to be allowed access to justice. From his point of view, justice delayed will be justice denied. Your Lordships must consider the arguments and decide whether there are constitutional considerations of sufficient weight to require that he should be denied a remedy.

The third argument against the amendment is that there are objections of principle and practical difficulties about the way in which it may operate. It allows, as I said, an honourable Member or noble Lord to permit judicial scrutiny of his own conduct in Parliament and not that of anyone else. The objection in principle is this: that the privilege of Parliament is the privilege of each House as a whole and not that of any individual Member. It should therefore only be capable of being waived, if at all, by a resolution of the House. But I do not think that that would be a practical solution. There is no precedent for the House being able to waive the privilege so far as it protects the free speech of an individual Member and for my part I think that that would be a dangerous doctrine. It would enable a majority to deprive an unpopular member of a minority group of his essential constitutional right to freedom of speech. Equally, in a case like this, the right of a Member to sue for libel would be dependent on a resolution which may be influenced by factional interests. So there should be no general principle of waiver by resolution of the House. The remedy offered by the amendment is essentially a private matter for the Member who has been defamed, and that is how I think it should be.

I am aware of one practical problem, and there may be others. The one I have in mind arises in a case in which two or more Members are together concerned in conduct in respect of which one of them wants to sue for libel. How, in that case, can one of them allow his conduct to be investigated by the court without at the same time exposing the conduct of his colleagues to investigation as well? In a case in which one person's conduct is inextricably mixed up with that of another, how in practice is the subsection to be given effect?

I shall not disguise the fact that there is no easy answer to this question which has never arisen and may never do so. But judges are accustomed to finding themselves in a position in which, in the course of having to do justice between plaintiff and defendant, they have to protect the interests of third parties who have become involved. Sometimes they will find it possible to decide the case without trespassing upon the interests of others; sometimes they will protect him by prohibiting publication of evidence or names. I think that this is a problem which will have to be resolved if and when it arises. It does not, so far as I know, arise in the case of Mr. Hamilton.

Finally, it is said that this is an amendment which should originate, if at all, in another place. It arises out of the particular case of an honourable Member, and the privilege itself, although it belongs to both Houses, is historically more closely associated with the other place. I intend no trespass upon the dignities of the other place. No one could be more conscious of the need to respect its privileges than my noble friend Lord Tonypandy who spoke in the debate on this amendment at Committee stage. He made no suggestion then that anyone would take offence. All that your Lordships are being asked to do is to provide the other place with a text which it may accept, reject or amend with the benefit of such consideration as your Lordships are able to give it.

In conclusion, in placing this amendment before your Lordships, I should emphasise that it is not essentially a matter of lawyers' technical law. The question here is striking the balance between the right of access to justice and any countervailing considerations of public interest. In deciding this question, noble and learned Lords have no advantage over others of your Lordships in knowing what is the right solution. In that spirit, I beg to move.

Lord Renton

My Lords, I am sure that we have all heard what the noble and learned Lord, Lord Hoffmann, said—

The Lord Chancellor

My Lords, I ought now to call, as an amendment to Amendment No. 4, Amendment No. 5.

Lord Simon of Glaisdale had given notice of his intention to move, as an amendment to Amendment No. 4, Amendment No. 5: Line 3, after ("may") insert (", with the consent of both Houses of Parliament,").

The noble and learned Lord said: My Lords, I thought that I had withdrawn Amendment No. 5. I did not want an already complicated issue made more complicated. It seemed to me in every way more satisfactory that your Lordships should have to decide whether to accept the amendment in the name of my noble and learned friend Lord Hoffmann or to let the matter be decided primarily in the other place but subject to review by your Lordships.

There can be no question but that the amendment raises matters of the highest constitutional importance. As the noble Lord, Lord Kingsland, said at Report stage, the Bill of Rights is at the very heart of our constitution. The amendment seeks to tamper with the Bill of Rights. Your Lordships will be grateful to my noble and learned friend Lord Hoffmann for having brought the matter before your Lordships and set it out in such an attractive manner today.

I have every sympathy with Mr. Hamilton, who is not the only one concerned. As my noble and learned friend said, in effect he has been denied recourse to the courts of justice. That has been inherent in the Bill of Rights for over 300 years. Any statement or proceeding in Parliament is immune from scrutiny and whoever wishes to challenge it, equally with Mr. Hamilton, has been throughout without recourse to the courts of justice. The difference this time is that there is a backlash so it is the Member of Parliament who is not immune but who seeks relief. It is the reverse of what has obtained until now. It is implicit in the Bill of Rights and will remain implicit after the amendment passes into law, if it is agreed to, that a party is inhibited from recourse to the courts of justice.

Before turning to major matters, perhaps I may take up three points to which my noble and learned friend referred. He described the present situation as giving free licence to anyone to defame, without any danger and without redress, a Member of Parliament. I do not accept that for a moment. Parliament itself has its own machinery for ensuring that that kind of injustice is not perpetrated.

The second point to which my noble and learned friend referred was the liability to partisanship if the matter were to depend on the vote of either House of Parliament. Again, I am afraid that I do not accept that. A number of noble Lords were Members of the other place and I hope that they will bear me out when I say that the Privileges Committee of the House of Commons acts judiciously and fearlessly. Moreover, although its recommendations are generally, but not invariably, accepted by the House, I cannot accept that the House itself is liable to unfair partisanship.

There was the notable case in 1947 of Mr. Garry Allighan, who behaved disgracefully. There was a large Labour majority in the House at the time, he was a Labour Member and he behaved so disgracefully that the Leader of the House brought a Motion proposing that Mr. Garry Allighan should be suspended without pay for six months. However, the House went further than that. The House, being predominantly of Mr. Allighan's party, accepted an amendment that he should be expelled and so he was. So I am afraid that I do not accept the argument that the House of Commons is incapable of judging such matters fairly, that it will always be warped by partisanship.

The third preliminary matter which my noble and learned friend mentioned was the position of my noble friend Lord Tonypandy. Unfortunately he cannot be here today as he is in hospital, but we share an office and I discussed the matter with him after the Report stage. He agreed strongly that the matter should be primarily the concern of the House of Commons and should be left to it for the initial decision. I telephoned him in hospital only last Thursday to ensure that he was of the same opinion. He is and he authorised me to say so.

So much for the preliminary points made by my noble and learned friend. I hope that he will not press the amendment. In the first place, it needs much more consideration and consultation than it has received, particularly consultation with the officers of both Houses and with Commonwealth parliaments. The matter has arisen in both New Zealand and Australia and there are already rumblings of concern from the Antipodes at the amendment moved by my noble and learned friend.

Secondly, it seems to be highly unsatisfactory that such a constitutional point should be implemented as a by-blow in a defamation Bill. Thirdly, it seems to me primarily a matter which should be left for the initial consideration of the other place. The events which led to the Bill of Rights were exclusively those in the House of Commons. The two current cases, one of which is Mr. Hamilton's, are both in the House of Commons.

There is a further reason why it seems that the matter should go untrammelled to the other place. If your Lordships were to inscribe this amendment on the Bill, it would form part of the Government's Bill and, I surmise, be the subject of a running Whip. However, if it is left to be independently advanced in the other place, the Government having proclaimed neutrality, there would be a free vote. Surely, on a constitutional matter of this kind, that is in every way preferable. So I hope that my noble and learned friend will not press the amendment. There are grave difficulties anyhow. The assumption behind it is that there is an individual privilege of a Member which he himself can waive. But that is not so. It is universally agreed that it is stated by Erskine May and all the other authorities that the privilege is that of the House or, in some cases such as with the Bill of Rights, of Parliament. If a Member, by implication—and it is no more in this amendment—is able to waive his own privilege, in so far as he has one as a Member of the other place or this place, there remains the privilege of the House as a whole. That means that the House as a whole can take cognisance of the conduct or words in question.

In the most recent case that reviewed this matter, Pickin v. BR some 20 years ago, 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 would land us in a whole number of respects in precisely that situation.

A number of very difficult expressions would fall for interpretation in the courts, the most important being "proceedings in Parliament". There is every reason to think that that might be differently interpreted by the courts and by the House itself.

Then there is the difficulty to which my noble and learned friend referred, whereby our two Members are in a similar position. They are accused jointly of being corrupt. One waives privilege and sues; the other stands on his rights. What is to be done? My noble and learned friend mentioned that but did not offer any solution. I can see no solution that would be consonant with justice. In fact, the sensible thing now would be for the House to conduct its own inquiry, taking no notice of any pretended waiver by one Member; but he would have a statutory right by implication to have that waiver.

There are three different sources of privilege which have different scope and different incidence. There are the privileges that are asked by the House of Commons of the Queen at the Opening of Parliament—the three requests that are made. The most important of them is freedom of speech, which is largely merged now, I believe, in the Bill of Rights. That is a privilege of the House of Commons alone, although this House probably has similar privileges.

Then there is the privilege of the Bill of Rights as to words, conduct and proceedings in Parliament. As my noble and learned friend said, there is a far wider scope of privilege. The privilege of the Bill of Rights is the privilege of the whole of Parliament alone and cannot, I believe, be waived by either House. I am glad to see the noble Lord, Lord Richard, a distinguished constitutional lawyer, nodding his acquiescence. I hope he will intervene in this debate. He has had ministerial experience of both Houses and his service abroad gives him a comparative outlook.

There is a third group of privileges which I believe belong to each House separately. They go very wide. Noble Lords may remember that A. P. Herbert, before he became a Member of Parliament, pursued a campaign against the restrictive licensing laws. A prime target was Parliament, which enacted those laws but did not obey them. He took out a summons against the refreshment manager of the House of Commons. The Chief Metropolitan Magistrate dismissed that and it was dismissed on appeal by the Lord Chief Justice. Even the opening hours in the bars in Parliament are covered by privilege—not by the Bill of Rights, but by the wider privilege. So the House will see how far we can go from defamation.

That brings me to defamation itself. On Report, my noble and learned friend the Lord Chancellor was inclined to doubt whether there would be any cases of tort other than defamation. But, considering A. P. Herbert's case, can one be so sure? In any case, assault and battery is a tort as well as a crime. Let us suppose that two Members come to fisticuffs on the Floor of the House. Who has the right to claim that the other is the aggressor and that he is engaged in no more than self-defence? Let us suppose, for instance, that a campaigning journalist comes face to face with his victim, a Member, in the Lobby. What is the position then? There arises the sort of question that examiners like to set: "Supposing there was that sort of scuffle in the gateway between New Palace Yard and Parliament Square …". It simply cannot be assumed that this is a defamation problem only and whatever is important can be dealt with by a defamation Bill.

The fifth point of difficulty was mentioned on the last occasion by the noble Lord, Lord Lester. I shall leave him to deal with it. If this amendment were passed, it would require something further; namely, the availability of qualified privilege by the newspaper or other organ of the media.

There is another very important point; namely, what about public opinion? Public opinion regards Parliament somewhat askance. In Committee, my noble and learned friend Lord Hoffmann mentioned "saloon bar opinion" and "saloon bar cynics". What would they say if this House were to approve a measure that allowed a Member to pick and choose: to stand on his privilege when it suits him but to waive it when that suits him? Noble Lords may think that Parliament should have regard to the likely repercussions on opinion.

There are two more short points. First, what about Scotland? One of the many doubtful points in this branch of the law is whether the Bill of Rights applies to Scotland. In fact, the Bill of Rights was passed before the Act of Union, and Scotland has its own declaim of rights. It is by no means in the same terms as the Bill of Rights; but that, again, is a matter that requires investigation.

Finally, there is the matter I mentioned of Commonwealth repercussions. It is for those reasons that I put down the Motion which is to be taken immediately after this Bill and which has been discussed along with it. As at present advised, I do not propose to move that Motion because I feel that the whole matter should go to the other place completely untrammelled and with a clean slate. I shall listen to what your Lordships have to say about that. In the meantime I suggest that on a matter of such constitutional importance this amendment ought not to be accepted.

[Amendment No. 5, as an amendment to Amendment No. 4, not moved.]

4.30 p.m.

Lord Richard

My Lords, I never cease to be amazed at what is said in this place. Coming from such a great constitutional lawyer as the noble and learned Lord, Lord Simon of Glaisdale, to be classed as a distinguished constitutionalist is an accolade of which I am very proud. Perhaps I should increase my fees somewhat. Not as a distinguished constitutional lawyer but as someone trying to approach this difficult question with a degree of common sense, let me put certain basic propositions to the House. I shall do it in very short order.

I start by saying that I have considerable sympathy with Mr. Hamilton. This is a situation in which, because of the nature of parliamentary privilege in this country, prima facie a case which would have gone through the courts in the normal way is now not capable of doing so. As I understand it, whatever happens to this amendment does not defeat the case. The case is not statute barred. As I understand it, it is stayed for the time being.

The noble and learned Lord, Lord Hoffmann, did the House a service in setting out at some length the background to the argument. It was notable that, in the course of his argument, he conceded that there was an effect on Article 9 of the Bill of Rights of 1689. He said that what we should be doing in this House is providing the other place with a text. With great respect, I do not believe that that is the function of this place. We are supposed to be legislating. We are supposed to be considering adding a clause to a Bill which in due course will go to the other place for its consideration. We are performing our legislative function and not providing the other place with a text which they might or might not wish to consider.

Let me put to the House what I hope are relatively simple propositions. First, does the proposed amendment go to the issue of the privilege of Parliament and Members of Parliament? The answer is clearly yes. Secondly, whose privilege is it—the individual's or Parliament's as a whole? The answer is also clear: it is the privilege of Parliament as a whole and not of one individual Member. My third proposition is: if the amendment is accepted, does it alter the privileges as expressed in the Bill of Rights of 1689? The answer is clearly yes. If it does and if there is a case for altering the privileges of Parliament or of individual Members of Parliament, as expressed in the Bill of Rights of 1689, how should Parliament go about altering that Bill of Rights? I venture to suggest that an amendment tacked on to the Third Reading in your Lordships' House of a Bill on defamation is, frankly, not the way in which a constitutional issue of such importance should be considered.

However one looks at the matter and however much sympathy one has for Mr. Hamilton, and indeed the other defendant in this affair, it goes to the root of the constitutional relationship between Parliament and the British public. We are talking about a privilege that is attached to Parliament. With great respect, I do not believe that one should deal with the matter in this way.

If the matter should not be dealt with in that way, how should one do it? It seems to me that there is here an issue that is worth considering and that should be considered. Who should consider it? In my submission, it should not be done by this House on its own in the course of passing legislation. It should be done as the noble and learned Lord, Lord Simon of Glaisdale, proposed in his Motion; namely: That it is desirable that a joint committee of both Houses be appointed to consider the issues raised by the proposed new clause", as set down in the name of the noble and learned Lord, Lord Hoffmann. I believe that that is right.

Should the matter come to a Vote, let me make my position clear. If the noble and learned Lord, Lord Hoffmann, insists on the new clause, I shall oppose it. I shall do so on the basis that, if his amendment is to fall, the House will be prepared to accept the Motion in the name of the noble and learned Lord, Lord Simon of Glaisdale.

I said that I would be brief and I have been. It seems to me that this is too important an issue to be dealt with in legislation in this way. It requires detailed consideration by a Select Committee of both Houses of Parliament. If the result of that consideration is that we should amend the Bill of Rights of 1689, so be it, and that can no doubt be done in a proper way.

Lord Renton

My Lords, I too can be brief. I have not discussed this matter with any member of the Government, although I am a keen supporter of the Government. I agree with what the noble and learned Lord, Lord Simon of Glaisdale, said and with the words of the noble Lord, Lord Richard. However, we have to acknowledge that the noble and learned Lord, Lord Hoffmann, with great care and thoroughness and obviously after giving the matter great thought, has drawn our attention to a conflict. It is a conflict between the constitutional necessity for having freedom of speech in all proceedings in Parliament and in committees of Parliament and the sense of justice in rare individual cases.

I served for some years on the Committee of Privileges of another place. As the noble and learned Lord, Lord Simon of Glaisdale, said, there were occasions when that committee had to consider the justice of a matter. In my experience, it reached sensible conclusions. I do not think that there was ever a case in which we had to consider the kind of conflict that arose in the case of Mr. Neil Hamilton. I should hope that after 300 years or more such cases would be extremely rare.

But there is one fundamental objection to the principle put forward by the noble and learned Lord, Lord Hoffmann. It is the only opinion that I wish to put before your Lordships. If Parliament said that parliamentary privilege could be waived in any case before the courts, in my opinion it is most likely that in such cases the person who might be asked to waive the privilege would be deemed under a moral obligation to do so. If that became the usual practice, then de facto, although not directly by law, we would do away with the privilege conferred by the Bill of Rights. So we must be very careful before we give a discretionary power on the part of the individual which could become by moral obligation a pressure and in that way indirectly alter a constitutional principle.

It is a constitutional principle which must not be altered without the very greatest care, if it is altered at all, I repeat that freedom of speech is fundamental to the working of democracy, especially to the working of the House of Commons. It also affects your Lordships, although in practice, over the centuries, it has not in fact done so. But, of course, your Lordships have a duty to consider the matter as we are doing this afternoon.

Lord Ewing of Kirkford

My Lords, I hesitate to follow the noble Lord, Lord Renton, who is such an experienced parliamentarian, and to dispute that freedom of speech is fundamental to the workings of Parliament, especially of the other place. However, it is my strongly held view that freedom of speech should be exercised with responsibility.

One of the developments in modern politics has been the way in which freedom of speech, protected by 100 per cent. parliamentary privilege, has been abused. Like the noble Lord, Lord Renton, I served for some considerable time in another place. Over the 25 years I have served in Parliament, I have become increasingly concerned about the blanket privilege protection that is enjoyed, particularly by those who serve in the other place. I was a member of the Procedure Committee when the decision was taken to televise the proceedings of another place. At that time I expressed the view that a Member of Parliament could rise in his or her place and make outrageous statements about members of the public, particularly local authority councillors, who were in no position to defend themselves against such allegations. Today, Tuesday, large numbers of people throughout the country will have watched the exchanges during Prime Minister's Question Time. It has become quite commonplace for Back-Bench Members on all sides of the House—I make no party political point here—to rise in their place and make such outrageous statements.

When I was a member of the Procedure Committee in another place I suggested at the time of the decision to televise its proceedings that there should be introduced some redress for those whose characters were maligned in that way by people who were using the protection of privilege in another place. In my time here I have seen privilege used constructively. Noble Lords may remember the Savundra affair, the great insurance scandal, of the early 1970s. That insurance scandal could not possibly have been exposed had it not been for the fact that Raymond Carter, a Birmingham MP, raised the matter under privilege from the Back Benches of the other place. So I have seen privilege used in a correct and constructive fashion, but I have also seen privilege abused in the most appalling manner.

While I support the proposal submitted by the noble and learned Lord, Lord Simon of Glaisdale, I should like to have seen the terms of that proposal extended to include not only a joint committee of both Houses of Parliament but also some constitutional experts who serve in neither House of Parliament in order to bring outside opinion and influence to bear on the proceedings of that investigation.

I know Neil Hamilton very well and I can claim with some confidence that he and I have been friends since he entered the House of Commons. I was already there when he came. However, we are not here today to discuss an individual's problems and concerns. We are discussing an issue of profound principle. Neil Hamilton was a Minister in the Department of Trade and Industry. He was not involved in any way, shape or form in the Matrix Churchill affair. But had he been, it is an astonishing fact that, like every other Minister at that time, he would have been in a position, advised by the Government's Law Officers, to issue a public interest immunity certificate to prevent the very examination that we are seeking to implement here today in the change to the Bill of Rights.

Ministers, advised by the Law Officers, are in a position to issue public interest immunity certificates to prevent the revelation of information. That is the dichotomy and contradiction with which we are all faced. In this case it is suggested that the courts should be given the power, by changing Article 9 of the Bill of Rights, to examine the conduct of a Member of Parliament—a Minister in this case—on the say-so of that individual. If that is the opinion of both Houses of Parliament, where then stands the citizen? Why should not the citizen have the right to go to the courts to ask them to investigate the parliamentary conduct of a Member of this House or of another place; or is it to be a one-way street? That is how this will be seen in the country at large.

I appreciate the frustration that is felt by Mr. Hamilton in his complaint against the Guardian but I do not agree with the proposal to change Article 9 of the Bill of Rights. Perhaps I may point out that the Bill of Rights would not apply to Scotland. The claim of right is the article of association that would apply to Scotland. The position at the minute is that the courts do not have the right to investigate the conduct of a Member of Parliament. It is suggested that we give them that right but that we do not give the individual citizen the right to ask the courts to carry out that same investigation. What kind of impression are we giving to the people of this country as we seek to reform the democratic process?

If this matter comes to a Division I shall follow the advice of my noble friend the Leader of the Opposition and support the proposition put forward by the noble and learned Lord, Lord Simon of Glaisdale. I would hope that on the amendment that was moved so genuinely and ably by the noble and learned Lord, Lord Hoffmann—he has done the House a service by allowing us to discuss the matter—the opinion of the House will not be sought.

4.45 p.m.

Lord Aldington

My Lords, at this stage perhaps the House will bear with someone who wishes to support the noble and learned Lord, Lord Hoffmann. Not surprisingly perhaps to the House, I put first the fact that the honourable Member, Mr. Neil Hamilton, has decided to bring libel proceedings, a very considerable decision for anyone to take, in order to defend himself against an attack by a newspaper which has brought to a stop his ministerial career and must have damaged his career as a Member of Parliament. Having made that great decision and having decided to subject himself to the ordeal—it is an ordeal—of libel proceedings, he now finds that he has come to a dead stop. He can do nothing to remove from public knowledge an attack upon his character first made in a newspaper and now made in proceedings by justification. He can do nothing. We here appear to believe that to release him from the bar that puts a stay on the proceedings raises such implications of a constitutional nature that we are unable to back the noble and learned Lord's amendment.

The noble Lord, Lord Richard, gave valuable advice to the House, but I believe that he misdirected himself on one point. He referred to the amendment being "tacked on" to the Third Reading. The amendment was moved in Committee and at Report stage. I am sure that he would not wish to charge the noble and learned Lord with that.

Lord Richard

My Lords, the noble Lord is right as regards the procedure. Perhaps I may be forgiven for observing that, as I understand it, the amendment had been discussed by only four Members of your Lordships' House before today.

Lord Aldington

My Lords, I thank the noble Lord. It may have been discussed by only four noble Lords, but some of us were here who agreed with what had been said so we did not feel it necessary to add to it. Certainly, I was one of them. I hope that the House will consider carefully what the noble and learned Lord, Lord Hoffmann, said, bearing in mind the great authority which the noble and learned Lord, Lord Simon of Glaisdale, my noble friend Lord Renton and others, bring to our discussions, and that we shall get back in our minds to the problem of what is the right thing to do over what is manifestly an injustice.

These proceedings have been stayed and for so long as that is so, Mr. Neil Hamilton's character is stained. That is what happened to me, and that is why I can speak with some feeling. In my case the matter goes on and on and I am getting used to it. Mr. Neil Hamilton is not used to it. He is a much younger man and he has to face life with this charge sticking to him. Surely, this House, with its regard for justice, which means not only the privilege of Parliament but justice to the individual, will think again before dismissing the arguments of the noble and learned Lord, Lord Hoffmann.

Lord Lester of Herne Hill

My Lords, during the brief debate on the Bill at Report stage I expressed sympathy for the aim of the amendment in the name of the noble and learned Lord, Lord Hoffmann, which was tabled only shortly before the debate. After further reflection, I am now convinced that the amendment is flawed and would infringe fundamental principles of the constitution. I hope that your Lordships will bear with me if I explain why. It is for several main reasons.

First, contrary to the view of some of your Lordships, I believe that Mr. Neil Hamilton, whom the amendment was devised to assist and who has not pursued an appeal to the higher courts, would have reasonable prospects of success, as I shall explain. Secondly, the amendment is, as your Lordships have indicated, at odds with the protection given to parliamentary privilege by Article 9 of the Bill of Rights. Thirdly, it would operate arbitrarily. Fourthly, I believe that it would extend parliamentary privilege in a manner that would unnecessarily interfere with free speech. Fifthly, it would create new conflicts between Parliament and the courts of the kind we thought dead and buried a century ago. Lastly, it would authorise conduct that would infringe the European Convention on Human Rights.

In approaching the amendment I respectfully suggest that we would do well to heed the wise warning in the maxim, "Hard cases make bad law", to which I would add, bad constitutional law and bad constitutional practice. The fact that Neil Hamilton's case is a hard case should not lead us to act in a hasty way. In the Prebble case the noble and learned Lord, Lord Browne-Wilkinson, explained, The basic concept underlying Article 9 is the need to ensure as far as possible that a member of the legislature and witnesses before committees of the House can speak freely without fear that what they say will later be held against them in the courts". He made it clear on behalf of the Privy Council that: The privilege protected by Article 9 is the privilege of parliament itself. The actions of any individual Member of Parliament, even if he has an individual privilege of his own, cannot determine whether or not the privilege of Parliament is to apply". In the Prebble case, as the noble and learned Lord, Lord Hoffmann, observed, the Privy Council decided that parties to litigation cannot bring into question anything said or done in the House by suggesting that actions or words were inspired by improper motives or were untrue or misleading. The Privy Council said that such matters lie within the exclusive jurisdiction of Parliament.

It is significant—and it has not yet been mentioned—that nowhere in the Commonwealth has any other legislature or any member of any other legislature, so far as I am aware, sought to tamper with Article 9 in the wake of the Prebble case in the manner contemplated by this amendment. In my view it is most unfortunate that Mr. Hamilton did not appeal against the application of the Prebble case in the circumstances of his particular case because there is strong persuasive authority, not considered by the Privy Council, suggesting that the Law Lords might hold, if he did appeal, that he could pursue his libel action notwithstanding Article 9.

Without taxing the patience of noble Lords unduly, perhaps I may give one example. I have in mind the decision of the American Supreme Court in United States v. Brewster (1972) where it upheld the validity of an indictment of a former US senator alleging that he had accepted a bribe to be influenced in the performance of his official acts. The Supreme Court decided that although the American equivalent of Article 9 of the Bill of Rights protects members of Congress from inquiry into legislative acts or the motivation for the performance of such acts, it does not protect all conduct relating to legislative acts or motivation. The Supreme Court said that it was the taking of the bribe, not the act which the bribe was intended to influence, which was the subject of the prosecution. The court held that the "speech and debate" clause, which is equivalent to Article 9, imposed no obstacle for that type of prosecution. Chief Justice Burger observed that in Canada, as well as in Australia, courts have held that parliamentary privilege does not bar the criminal prosecution of legislators for bribery.

In my view it is very strongly arguable that if Mr. Hamilton had pursued an appeal, the Law Lords would have been persuaded by this reasoning—not only in the American case, but in others—to decide that Article 9 interposes no obstacle to an action based on a particular libel of which he complained since an allegation of accepting cash for asking questions in Parliament is quite different from the allegation in the Prebble case of making misleading statements to Parliament. In other words, I believe that Mr. Hamilton's case can readily be distinguished from the Prebble decision.

Noble Lords may think that if that is correct Mr. Hamilton should be pursuing his remedy in court rather than that we should have to consider such a grave and weighty constitutional amendment. In addressing the merits of the case, I believe that the amendment of the noble and learned Lord, Lord Hoffmann, goes much wider than the particular circumstances of Mr. Hamilton's case. In my opinion the amendment is plainly inconsistent with Article 9. It seeks—the noble Lord, Lord Renton, made the point—legislative authority for Parliament to surrender its vital collective privilege to any individual Member or anyone else who is a witness in defamation proceedings and whose conduct is in issue in those proceedings. It leaves entirely to the discretion of that Member or witness, or other individual, to decide whether to waive the protection given to Parliament by Article 9. I venture to doubt whether such a course can constitutionally be taken in accordance with Article 9 and in accordance with the law and custom of our constitution as observed over the past three centuries without the House itself deciding in each particular case whether or not to waive the collective privilege. However, that is what the amendment seeks to do by means of what is really a parliamentary equivalent of a sweepingly broad Henry VIII clause—ourselves acting in this sense as Henry VIII.

I believe that the amendment is also inconsistent with the central purpose of Article 9 in another important way. Its very existence would mean, if it were enacted, that a Member who has been defamed will be under pressure to waive the collective privilege to vindicate his reputation. Furthermore, although the amendment purports to leave it to the discretion of the individual without affecting the operation of parliamentary privilege in relation to another person who has not waived it, that is not how it will work in practice, as several noble Lords have said.

Let us take the case, to which the noble and learned Lord, Lord Hoffmann, referred, of several Members being involved in the same matter. One decides to waive the collective privilege so that he can pursue a libel action. He is able to proceed with the action in that case only if he can persuade the others to waive their privilege; otherwise the court would stay the action on the ground that there cannot be a fair trial unless the relevant evidence, including the evidence of the other Members, is made available. That means that pressure will be brought to bear by one Member on another Member to waive privilege. Pressure of that kind undoubtedly undermines the collective protection of parliamentary privilege, and the very existence of the possibility of waiver by any one Member would deprive all Members of the confidence, at the time they speak, that they could be certain that there could not subsequently be a challenge in the courts to what they are saying.

I am sorry to say that I also think that the amendment would operate arbitrarily in several ways. In the first place, its operation would be entirely at the discretion of the individual Member or witness. Secondly, it could be waived entirely to further his own particular interest as a party to litigation. I take as an example the case of the Church of Scientology v. Geoffrey Johnson-Smith, as he then was. The plaintiff in that case sued Geoffrey Johnson-Smith for defamatory remarks made during a television interview outside Parliament. Geoffrey Johnson-Smith pleaded fair comment and privilege. To defeat that plea, the Church of Scientology pleaded that the MP had acted with malice, and it sought to adduce evidence, including extracts from Hansard, of what the MP had done and said in Parliament. The court refused to permit that because it would breach parliamentary privilege.

However, if the amendment were passed, a defendant would retain the option to use parliamentary privilege to shield himself in libel proceedings not only in respect of what he had said or done in Parliament, but also, as in the Johnson-Smith case, of what he had said or done outside Parliament. On the other hand, he would be given the new right, an entirely novel right, at his sole discretion, to waive privilege whenever it suited him, whether as plaintiff or defendant, in defamation proceedings. That would surely strike the other party to the libel proceeding, and the public at large, as an unfair extension of parliamentary privilege, inconsistent with its origins and primary purpose and arbitrary in its operation.

It would also unjustifiably interfere with free speech since a newspaper seeking to criticise an MP would have no way of knowing whether, or upon what basis, parliamentary privilege might be waived so as to permit the newspaper to establish the truth of fair criticisms of the conduct of elected Members in the performance of their legislative duties. That would have a serious impact on what the noble and learned Lord, Lord Browne-Wilkinson, described as, a most important aspect of freedom of speech, namely the right of the public to comment on and criticise the actions of those elected to power in a democratic society". The amendment is arbitrary in another way, not yet referred to. It applies only to defamation proceedings, yet the reputation of an MP or other witness may be at stake in other proceedings, such as a criminal conspiracy trial, as in the Australian case of Hunt. I can discern no rational basis for permitting an individual waiver only in libel proceedings. If it were right to permit waiver by an individual, he should surely be permitted to waive the privilege to clear his name in the course of a criminal trial, say, for bribery or corruption.

As several noble Lords have said, the amendment would plainly result in the very vice, to which the Privy Council referred in Prebble, of reviving conflict between the courts and Parliament by allowing it to be suggested in cross-examination or submission that a Member or witness had lied to the House.

As it stands, the amendment would also unnecessarily chill free speech by allowing Members to pursue libel proceedings without there being qualified privilege, unlike the position in the United States, Australia, India, Pakistan, and Trinidad and Tobago. However, I recognise that that matter falls outside the scope of this amendment.

If this matter is to proceed further—I very much hope that it does not—I respectfully agree with the noble and learned Lord, Lord Simon of Glaisdale. However, I very much hope that after this debate the noble and learned Lord, Lord Hoffmann, will seek leave to withdraw the amendment. I believe that Mr. Hamilton should be left to pursue his legal remedies before the courts by way of appeal out of time. I also suggest that we should not subvert ancient and wise constitutional principles for the sake of a particular personal or political interest in litigation, however hard the case.

The immunities written into Article 9 were not included simply for the personal or private benefit of Members of either House but to protect the integrity of the legislative process by ensuring the independence of individual legislators. It was the culmination of a long struggle for parliamentary supremacy. I submit that it is as important as ever in protecting the independence and integrity of Parliament and should not be permitted to be undermined to meet the personal and private needs of particular individuals, however much we may or may not sympathise with the case.

Lord Clark of Kempston

My Lords, the House should be most grateful to the noble and learned Lord, Lord Hoffmann, for bringing this amendment before it. I have been influenced in this matter by the words of the noble Viscount, Lord Tonypandy. The noble Viscount was for many years a most successful Speaker of another place. One of his duties was to protect the interests of a Member of Parliament. He said previously that he was sympathetic to this amendment. I accept what the noble and learned Lord, Lord Simon of Glaisdale, said and that he has spoken to the noble Viscount—I am sure that we all wish the noble Viscount a speedy recovery from his illness—who said that the decision will, of course, be taken in the other place. If this amendment is passed, the matter will be discussed in the other place in any case.

I do not like the fact that the emphasis has been on the other place. As far as I can see, it could happen to a Member of this House. Consequently, I believe that both Houses are under a joint liability, if I may so put it. I believe that we should pass the amendment and let the other place look at it.

Having been in Parliament for well over 30 years, I am not all that keen on having more and more committees. The establishment of committees is invariably a delaying tactic—I am not suggesting that this will be—but the danger is there. Consequently, I do not think that we should set up another committee. I believe that this House is capable of, and has a constitutional right to, pass the amendment which can then go before another place. If we do not pass the amendment and if we do not say anything about the matter, how can the other place be given advice by this House? We should view the situation more from the parliamentary point of view.

I turn now to the Privileges Committee. That committee cannot possibly help Neil Hamilton in the circumstances. If a Member of Parliament commits a misdemeanour, the Privileges Committee can take action against him. In the past, the Privileges Committee has done just that. As the noble and learned Lord has said, that committee can suspend a Member for a Sitting, one week, two weeks or whenever. I congratulate the noble and learned Lord, Lord Hoffmann. This matter has been debated backwards and forwards. There is no point in going over all the arguments again. As a parliamentarian, I believe that this should be passed and that it should go to another place so that it can have another debate upon the matter.

Baroness Turner of Camden

My Lords, I should like to make a statement from the Back Benches on the matters under discussion this afternoon. Mr. Hamilton is not the only person involved in this affair. I declare my interest. I am a non-executive director of Ian Greer Associates. That brings me into category 2 of the recent Register of Lords' Interests. As I understand it, that means that I may speak upon matters relating to my interest but must declare it. I have some knowledge of the matters referred to here.

Your Lordships may be aware that over a period of three years the Guardian has conducted a campaign against this company, culminating in a series of serious allegations against it and the way it has conducted its business. The publication of these allegations was made without reference to Mr. Greer or his fellow directors. I believe the allegations to be totally without foundation. They also involve Mr. Neil Hamilton, MP, who, at the same time as Mr. Greer and IGA, sued the paper for libel. The allegations proved very damaging to a small and, until that time, successful company. They caused a sensation not only in the UK but internationally. The hurt and damage have been substantial. Fortunately, IGA had long-standing clients who did not believe the allegations and remained loyal. Nonetheless, business losses were sustained. As a result, IGA was forced to make some staff redundant. As a non-executive director, I receive a small fee, but during that period I did not accept it. I felt that I could not do so while the company had to lose staff.

Eighteen months on and after a lot of hard work things are beginning to turn around. The libel case that IGA brought against the newspaper was stayed on the grounds of parliamentary privilege. Therefore, the company has been denied access to justice. Mr. Greer as an ordinary citizen should have had the opportunity to clear his name by pursuing the action against the newspaper. He does not enjoy the rights that are afforded to Members of either House to speak in their own defence. In staying Mr. Greer's libel action on the grounds of parliamentary privilege, Mr. Justice May said that he was acutely aware that his decision might be perceived as a profound denial of justice to the plaintiffs (Mr. Greer and IGA).

Strangely enough, many newspapers commented on the injustice of the ruling. It was only right and fair that the Guardian should have had to try to prove the faults and damaging claims that it made. Surely it is wrong that newspapers should get away with making false allegations and then be able to shelter behind parliamentary privilege when asked to substantiate them in court.

I appreciate that there are serious constitutional issues involved here, as my noble friend Lord Richard has said. But it is unfortunate, to say the least, that ordinary citizens not protected by privilege should be caught up in a web of this kind and be unable to have their day in court. In view of my interest, which I have declared, I do not think it right that I should vote on this matter. Therefore, I propose to abstain. Nevertheless, I feel that the House should be made aware of the background to some of the issues that are being debated today.

5.15 p.m.

Lord Blaker

My Lords, I rise to support the amendment moved by the noble and learned Lord, Lord Hoffmann. I do so with enthusiasm, since I have been a victim of the problem with which the amendment seeks to deal. In 1990 when I was a Member of another place I was the subject of a libellous article in a well-known journal which alleged that I had broken the rules about the registration of Members' interests in 12 different respects. The article was erroneous in almost every particular. I was advised that, if a court were able to take a decision, I should certainly win, as far as anyone could be certain of anything in a defamation case. I was also advised that as soon as the case reached a comparatively early stage the Attorney General would intervene on grounds of breach of parliamentary privilege. Consequently, the case could very well be stayed.

I note what the noble and learned Lord, Lord Hoffmann, and other noble Lords have said about the paucity of similar cases in the past. In my case the situation was complicated by a case decided only a few months before the libellous article to which I have referred. I refer to Rost v. Edwards. That case also involved Members of the House of Commons and the Register of Members' Interests. In that case the learned judge decided that claims for privilege in respect of the register did not fall within the definition of proceedings in Parliament. He ruled that it was open to the plaintiff to give the evidence he wished regarding the registration of Members' interests and to the defendants to challenge that evidence. But there was a considerable body of opinion that that case had been wrongly decided and that, if I took my case further and the High Court followed the Rost case, the Attorney-General would take it to appeal and might very well win. Of course, anyone who opposed the case put forward by the Attorney-General in that situation would have to bear his own costs as well as those of the Attorney-General, which is not a very attractive proposition.

Therefore, I was in the same position as Mr. Neil Hamilton. I had no means of clearing my name. This seemed to me to be wholly unjust. I could not understand how the rule of privilege, which had been originally intended to protect freedom of debate in Parliament, could prevent a Member of either House of Parliament defending himself against a libel. Fortunately, in the event my action against the journal was settled, not on the terms which I believe would have been awarded had the case been decided by a court but at least on terms which included the payment of my costs and the publication of an apology. But I do not believe that that weakens the case for the amendment moved by the noble and learned Lord.

I agree with my noble friend Lord Clark of Kempston that the principle we are now discussing is equally important to this House as it is to the other place. It is true that cases of this kind have arisen more frequently in the other place, which is perhaps a consequence of the nature of the other place, but the principle is also relevant to this House. The noble and learned Lord, Lord Simon of Glaisdale, said that, if this amendment were passed, it would become part of a Government Bill and it would go to the other House as a Government Bill. Therefore, the voting on this clause (as it would then be) would be whipped. After 28 years in the other place, I am confident that there is no reason at all why a free vote should not be allowed in the other place as it has been allowed in this House on the matter. Now that the subject of the registration of Members' interests in both Houses has assumed greater prominence in the media than before, it is even more important that Parliament should do what it can to ensure that this wholly unjust situation does not arise again.

Earl Russell

My Lords, I have listened to this debate for some time. It is quite clear that no one in the House objects to the objects of the amendment moved by the noble and learned Lord, Lord Hoffmann. I believe that if it had been otherwise, the speeches of the noble Lord, Lord Aldington, the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Blaker, would have been sufficient to sway us. All I say about Mr. Hamilton is that we should vote on the assumption that what is his case today may be ours tomorrow. The argument is not whether something should be done but whether what should be done is this particular amendment.

Clearly, a person who is defamed should have a right to justice. The noble and learned Lord, Lord Hoffmann, said that there were no previous cases. However, there were cases before the passage of the Bill of Rights. In those cases, it was treated as a contempt of the House collectively. So the libeller or defamer was called before the House or its Committee of Privileges and accused of a contempt of the House collectively. That clearly was not a satisfactory procedure. It tended to create a sense of conflict between the House and an individual litigant—a sense of taking a hammer to crack a nut. We do not want to go back there, but if we do not go back there then the only reasonable alternative is access to the courts. But the question is whether access to the courts should be reached by means of this amendment. On that, my sympathies are with the noble and learned Lord, Lord Simon of Glaisdale. Like him, I am deeply concerned by what my noble friend Lord Lester of Herne Hill described as making a sort of Henry VIII clause of privilege with us in the capacity of Henry VIII, making over to the individual Peer or Member, as it were, almost the ownership of his privilege as if it were his.

The noble and learned Lord, Lord Simon of Glaisdale, is quite right: the privilege is that of the House, and it is that of the House because it exists in order to allow the Member to serve the House. On that, I venture to say that I cannot think of any of my academic colleagues on either side of the Atlantic who would disagree with the noble and learned Lord, Lord Simon of Glaisdale, and there are few subjects indeed upon which I could make that statement.

I shall though venture—if I may—to ask one small question about which I must be tentative, because it has arisen only since we came into the Chamber. The noble and learned Lord said that the privilege was that of the Bill of Rights. I wonder whether it is in fact an older privilege against suing and being sued, because, if it is so, as I suppose, then the case made by the noble and learned Lord, Lord Simon of Glaisdale, about waiving the privilege is very much strengthened because there are then plenty of precedents in favour of the case he advances, which is that the proper procedure is for the Member or the Peer to go to his own House and ask the leave of the House to waive the privilege.

The privilege is that of the whole House. Each House of Parliament is sovereign over its own proceedings, and, as I see it, it is not proper for any one but the whole House to attempt to waive its privileges. That is why I feel a grave doubt about putting statements about parliamentary privilege and parliamentary procedure into an Act of Parliament, because it has been clear, at least for 400 years, that neither House has any authority whatsoever over the privileges or the proceedings of the other. That is a jealousy guarded point. But what goes into a statute has the authority of both Houses. It, in effect, allows whichever House prevails in a disagreement to legislate a procedure for a ruling on privilege which may conflict with the wishes of the other. That is the tip of a very, very large wedge. I have no wish to see the House pass it. So I hope that we will think for a long time before inserting any such provision into an Act of Parliament.

So far as concerns Parliament, a resolution of each House in the relevant case is sufficient. Where we need to think more—the committee recommended by the noble and learned Lord is the right place to do it—is of the protection of the courts, because of course the House may waive its privilege but since that is not in an Act of Parliament it does not free the courts from the obligation laid down in the Bill of Rights. To do that, we need another and a different amendment, saying that the courts shall not be held to be in breach of the Bill of Rights in any case in which the relevant House of Parliament has chosen to waive its privilege. For that amendment, I would vote; for the amendment before the House at present, I regret to say that I would not.

Lord Peyton of Yeovil

My Lords, if I may be forgiven after an hour and 34 minutes of listening to this interesting debate, I should like to make just one or two observations. At the start, I felt a great deal of sympathy for Mr. Hamilton, who is a friend of mine. Having heard the noble and learned Lord, Lord Hoffmann, move his amendment, I must say that I was wholly convinced by it. That conviction has only been mildly shaken from time to time by those who have opposed it. If it comes to a Division, I shall therefore vote for it.

What seems to me to be odd, unpalatable, and very hard to accept, is that a privilege which was designed originally for the protection of Parliament and its Members should now have the wholly unintended effect of barring the access of one Member to the courts, that Member believing himself to have been seriously libelled. I need not go into that more than to say that he was obliged, as a result of the publication of that accusation, to resign as a Minister of the Crown. I know that sympathy for Mr. Hamilton has been expressed even by those who oppose the amendment, but I feel, nevertheless, that perhaps rather too much has been made of a minor change to a law which has stood for over 300 years. It does not seem too much to suggest, in the interest of justice to an individual, this modest change, which does not give him anything save that which is the right of every citizen of this country who feels he has been wronged.

Lord Pearson of Rannoch

My Lords, perhaps I may intervene briefly to support the amendment and to underline what has just been said by my noble friend Lord Peyton. I do so by asking a very simple question: what happens if we put ourselves in the position of those who drafted and passed the Bill of Rights, and ask whether they would have intended Mr. Hamilton to find himself in his present predicament thanks to their otherwise worthy endeavours? May I suggest that they would have been very disturbed? Those who drafted the Bill of Rights cannot have envisaged the public climate in which we live today. I hope that your Lordships will not think me flippant if I go further and suggest that they could not conceivably have been able to foresee the existence of the Guardian newspaper, or indeed of the rest of our modern media. It is perhaps for that reason that Mr. Hamilton's case, if not the first, is certainly one of the very early cases after 300 years of history.

I am not a constitutional expert, but the amendment does not seem to me to go against the fundamental principles of the Bill of Rights. Indeed it appears to go with the wider implications and intentions of the Bill itself. It does not go against its priceless principles. I have listened to all the arguments put forward this afternoon by noble Lords who oppose the amendment, and I have to say that they strike me as somewhat administrative when set against the principles that we are debating. I have had the impression that some noble Lords who have spoken against the amendment have been standing the Bill of Rights on its head.

I am left with the letter which I received from Mr. Hamilton; indeed, I am sure that many noble Lords have received the same letter. I have heard nothing which goes against the urgency and obvious justice of his case, which is merely the right to have it heard before the courts. Therefore, I shall conclude by quoting to your Lordships what Mr. Justice May said when he very reluctantly stayed the case. He said: I am acutely conscious that staying the actions may be perceived as a profound denial of justice to the plaintiffs. The ability of all persons to come to the courts to have their disputes tried and determined fairly and according to law is a cardinal right upon which freedom under the constitution depends". I support the amendment.

5.30 p.m.

Lord Campbell of Alloway

My Lords, I came to the House to support the amendment, but having heard the debate I am unable to do so, largely for the reasons given by the noble Earl, Lord Russell. I feel keenly about the manifest injustice of the situation and that is why I came to support the amendment. However, if by statute one starts to interfere with the privileges of Parliament, one is starting something which is of even greater consequence than an injustice.

Lord Beloff

My Lords, in supporting the amendment I wish to make one point. It is that we should remember the circumstances in which the Bill of Rights was drafted. It was intended to protect the two Houses of Parliament against the Executive. People could not then have forecast a time when we should suffer from a yellow press. Surely it is more important to look at how we protect citizens. Indeed, the noble Baroness, Lady Turner, reminded us that not only are Members of the two Houses involved and seek such protection. To impute some principle of non-intervention in the affairs of Parliament to the authors of the Bill of Rights is to go very far from historical truth.

The Lord Chancellor

My Lords, I am sure that all noble Lords are grateful to my noble and learned friend Lord Hoffmann for tabling the amendment, the way in which he moved it and the balance with which he presented it. All of us would expect that of him.

There is no doubt that the issue is difficult. As the noble Lord, Lord Richard, said, this is a House of Parliament legislating but it is a House of Parliament legislating as part of the parliamentary process. What we decide today is subject to the approval of the House of Commons before it becomes law. I believe that discussion of this matter in the House of Commons will be greatly assisted by the breadth of our debate today. I am sure that that was one of the purposes my noble and learned friend had in mind in presenting the amendment.

My noble friend Lord Campbell of Alloway confessed to having been swayed to change his mind by the speech of the noble Earl, Lord Russell. Therefore, perhaps it would be worth my while to say a word or two about that. The noble Earl made clear that it is impossible to remove the obstacle which Mr. Justice May and the Privy Council felt existed in cases of this kind without amendment of the Act of Parliament because the Act of Parliament creates the obstacle. No resolution of either House of Parliament of itself could do that. Therefore, the noble Earl, Lord Russell, towards the end of his remarks accepted that proposition and said that some form of parliamentary intervention is required in order that the court should be able to remove the obstacle.

As regards the amendment the Government are neutral; it is a matter for the House as a whole to consider. We would regard it as vitally important to have the opinion of the House of Commons, which is principally, although not solely, affected by the amendment, before reaching a view about it. I believe that the House of Commons would be able to consider the matter carefully if it came forward as part of a Government Bill. There is no intention whatever on the part of the Government that there should be anything other than a free vote on the matter in the House of Commons.

For the purposes of our discussion I assume that the decision taken was the correct one. The noble Lord, Lord Lester of Herne Hill, was moved to suggest that Mr. Justice May may have got it wrong and that an argument which was not put before the Privy Council might have affected its view. I believe that your Lordships must work on the basis of the judgments before you; namely, that of Mr. Justice May and of the Privy Council.

Lord Lester of Herne Hill

My Lords, I am grateful to the noble and learned Lord for giving way. Will he agree that, since Mr. Hamilton has not pursued his appeal to the Court of Appeal or to the House of Lords and since the Prebble case plainly does not deal with allegations of bribery but rather misleading statements in the House, it must be at least an open question as to whether the House of Lords would give as broad an interpretation to the Privy Council as did Mr. Justice May?

The Lord Chancellor

My Lords, it is always a question, which is why rights of appeal are granted, and these days only a fairly brave lawyer would forecast with 100 per cent. confidence a decision of a higher court. I am speaking about the decision for the purposes of our debate today. I am not saying that Mr. Justice May's judgment will stand for ever. A similar judgment was made in another case at about the same time by Mr. Justice Owen, but even two High Court judges would not necessarily determine the law for the future. Your Lordships will know that the House of Lords has not professed to do that. There is always a degree of the provisional in such matters. But for the sake of the present debate your Lordships must assume that the judgment of Mr. Justice May was correct, as was a similar judgment of Mr. Justice Owen in a similar case. That is my assumption in looking at the matter.

If those judgments are correct, the Act relating to England and Wales which created the obstacle to doing justice was created to protect the parliamentary process and that has turned out to be an obstacle to a Member of Parliament obtaining access to justice. That may be inevitable and certainly under the present law it appears to be inevitable. The question is whether Parliament should intervene to change it. All noble Lords have agreed that if the law has that effect the only way it can be changed is by the intervention of Parliament.

I accept immediately that the privilege created by the Bill of Rights as regards this aspect is a privilege of Parliament. It is not a privilege of individual Members of Parliament; it is a privilege of Parliament. However, the consequence of the existence of that privilege is the interposition of an obstacle to protecting themselves in the face of individual Members of Parliament. That may be a consequence of the privilege of Parliament, but it is an obstacle that the individual faces in seeking access to the courts in order to clear his name from what he believes to be a defamation.

The question is whether Parliament should do something about that. Two courses are open to your Lordships today. The first is to send the whole matter to a joint committee of both Houses, which of course would require the agreement of the other place. The second is to consider whether this amendment should be passed. Of course, there is a third possibility of doing nothing, but in the face of such an injustice your Lordships might not feel moved to do nothing. Therefore, the question is: what should be done?

To send the matter to a joint committee is not a solution but is a way of having the matter considered further by your Lordships, and there has been a fairly full debate today. I have no doubt that the whole of this debate will be available for all Members of the House of Commons who wish to take an interest in it.

If the amendment comes forward in a government Bill, it will have come forward as a result of an amendment moved by a noble and learned Lord from the Cross-Benches without the Government having a view upon the matter, and there will be a free vote.

It is said that resolutions of each House of Parliament are important in that connection. I agree entirely with that. It will be necessary for both Houses of Parliament to agree to the amendment before it becomes the law of the land. Therefore, it seems to me perfectly correct that the views of both Houses are taken independently and that the refusal of either House to agree to the amendment will cause it to fall.

And then it seems to me that it is right that the individual in whose path this obstacle to justice is placed in consequence of this particular immunity or protection should have the right to say that he does not wish that obstacle to remain in his path, if that is his wish.

Various points have been made in relation to this; for example, that pressure could be put on one Member to waive his privilege. At present there is the familiar invitation to a Member who makes a statement that he should come outside and make it again. That is a matter for the Member's discretion.

Lord Harris of Greenwich

It is not taken up very often.

The Lord Chancellor

My Lords, the noble says that that invitation is not taken up very often. The matter of waiver would be a matter for the individual Member of Parliament, and in relation to this amendment it leaves it open to the individual Member whether or not to exercise that waiver.

Assuming that the law laid down by Mr. Justice May and Mr. Justice Owen is correct, following Prebble, as they thought they were, anyone can defame a Member of Parliament in respect of that Member's participation in the proceedings of Parliament without that Member of Parliament having any possibility of obtaining redress in the civil courts for that defamation.

The noble Lord, Lord Lester of Herne Hill, who at an early stage was sympathetic to the amendment, has indicated some reasons against it: that it may prevent free speech and so on. The alternative is to leave unresolved the problem that a Member of Parliament can be defamed in respect of his central activities as he participates in the proceedings of Parliament without remedy in defamation which would be open to any ordinary citizen.

I believe that a sufficient case has been made for this amendment for your Lordships to consider carefully whether or not it should be part of the Bill when it goes to the House of Commons on the distinct understanding that this matter will have to be debated and considered very carefully in the House of Commons before this remedy is afforded. I am not aware—and I have not been made aware in the course of this afternoon—of any other solution which is likely to be effective. Those matters are for your Lordships to consider.

As I said, the Government's view is that this should be an entirely free vote. That is the position that we shall adopt in relation to this matter. My personal view is that it is right for your Lordships to give the House of Commons an opportunity to consider it.

The Earl of Balfour

My Lords, I should like to ask one question of my noble and learned friend the Lord Chancellor. If we do vote against accepting the amendment, does another place have an opportunity to discuss it?

The Lord Chancellor

My Lords, it would be open to a Member in another place to table such an amendment which would then be discussed there. The advantage of this amendment is that it comes from a completely independent source; namely, it was moved by my noble and learned friend Lord Hoffmann from the Cross-Benches. As my noble friend will know, there are no Cross Benches in another place.

Lord Renton

My Lords, I wonder whether my noble and learned friend the Lord Chancellor will deal with one very important point. This amendment deals with waiver of parliamentary privilege and protection in defamation proceedings only. But of course, if the matter can arise in relation to defamation proceedings, may it not arise also in relation to proceedings for breach of contract, especially if fraud is alleged, and in other kinds of proceedings including criminal proceedings?

The Lord Chancellor

My Lords, this Bill deals with defamation. Therefore, I submit to your Lordships that it is proper to deal with this only, if at all, in the context of defamation. This Bill does not allow us to deal with a whole range of proceedings. But your Lordships may well feel that in relation to an important matter of this kind, it may well be right to proceed in stages. This Bill has provided an opportunity to raise this matter in relation to defamation, which was after all the subject matter of the cases giving rise to the problem. When a Bill dealing with that very subject matter is before the House, it might be appropriate to deal with that aspect at least.

Lord Hoffmann

My Lords, I said when moving the amendment that I did not see my role as that of an advocate for the amendment but rather to put the matter before your Lordships for debate. Therefore, I trust that your Lordships will not think it any discourtesy if I do not reply to the points made during the debate.

I have listened with great respect to the arguments which have been made against the amendment. On the other hand, it is clear that there are noble Lords who are in favour of it. In those circumstances, it would be wrong not to test the opinion of the House. I commend the amendment.

5.48 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 157; Not-Contents, 57.

Division No. 1
CONTENTS
Abercorn, D.	Bridges, L.
Ackner, L.	Broadbridge, L.
Addington, L.	Bruce of Donington, L.
Addison, V.	Bruntisfield, L.
Ailsa, M.	Butterworth, L.
Aldington, L.	Cadman, L.
Allenby of Megiddo, V.	Carnegy of Lour, B.
Ampthill, L.	Carnock, L.
Archer of Weston-Super-Mare, L.	Carr of Hadley, L.
Ashbourne, L.	Cayzer, L.
Astor of Hever, L.	Chalker of Wallasey, B.
Barber of Tewkesbury, L.	Chelmsford, V.
Beaumont of Whitley, L.	Clanwilliam, E.
Belhaven and Stenton, L.	Clark of Kempston, L.
Beloff, L.	Coleridge, L.
Bethell, L.	Courtown, E.
Blaker, L.	Crickhowell, L.
Blatch, B.	Cross, V.
Blyth, L.	Cumberlege, B.
Boardman, L.	Dean of Harptree, L.
Bowness, L.	Devonshire, D.
Brabazon of Tara, L.	Digby, L.

Dilhorne, V.	Masham of Ilton, B.
Dixon-Smith, L.	Merrivale, L.
Donaldson of Kingsbridge, L.	Meston, L.
Dubs, L.	Miller of Hendon, B.
Elles, B.	Monson, L.
Erne, E.	Moran, L.
Exeter, Bp.	Mottistone, L.
Ezra, L.	Mountevans, L.
Freyberg, L.	Munster, E.
Gardner of Parkes, B.	Nicol, B.
Geddes, L.	Northbrook, L.
Geraint, L.	Orr-Ewing, L.
Gisborough, L.	Oxfuird, V.
Glenarthur, L.	Park of Monmouth, B.
Gormanston, V.	Parkinson, L.
Goschen, V.	Pearson of Rannoch, L.
Gray of Contin, L.	Peel, E.
Grimston of Westbury, L.	Pender, L.
Halsbury, E.	Perry of Southwark, B.
Hamilton of Dalzell, L.	Peyton of Yeovil, L. [Teller.]
Hardinge of Penshurst, L.	Plummer of St. Marylebone, L
Hardwicke, E.	Prior, L.
Harmar-Nicholls, L.	Prys-Davies, L.
Harris of High Cross, L.	Rankeillour, L.
Harvington, L.	Rawlings, B. [Teller.]
Henley, L.	Rees, L.
Hesketh, L.	Renfrew of Kaimsthorn, L.
Hope of Craighead, L.	Rennell, L.
Howe, E.	Renwick, L.
Howie of Troon, L.	Rochester, L.
Jeffreys, L.	Rodney, L.
Jenkin of Roding, L.	St Davids, V.
Johnston of Rockport, L	St. John of Bletso, L.
Kilbracken, L.	Sandwich, E.
Kinnoull, E.	Seccombe, B.
Kintore, E.	Sharples, B.
Knutsford, V.	Skidelsky, L
Lawrence, L.	Stoddart of Swindon, L.
Leigh, L.	Strafford, E.
Lindsay, E.	Sudeley, L.
Lindsey and Abingdon, E.	Taverne, L.
Liverpool, E.	Taylor of Gryfe, L.
Lloyd-George of Dwyfor, E.	Teynham, L.
Long, V.	Thatcher, B.
Longford, E.	Thomas of Gwydir, L.
Lucas, L.	Thomson of Monifieth, L.
Lucas of Chilworth, L.	Thurlow, L.
Lyell, L.	Tollernache, L.
McColl of Dulwich, L.	Trumpington, B.
McConnell, L.	Vivian, L.
Mackay of Ardbrecknish, L.	Westbury, L.
Mackay of Drumadoon, L.	Wharton, B.
McNair, L.	Wilberforce, L.
McNally, L.	Wilcox, B.
Mallalieu, B.	Wrottesley, L.
Marlesford, L.	Wyatt of Weeford, L.
	Young, B.
NOT-CONTENTS
Balfour, E.	Gould of Potternewton, B
Berkeley, L.	Graham of Edmonton, L.
Blease, L.	Greenway, L.
Boyd-Carpenter, L.	Hamwee, B.
Campbell of Alloway, L.	Harris of Greenwich, L.
Carmichael of Kelvingrove, L.	Haskel, L.
Carter, L.	Hemphill, L.
Clinton-Davis, L.	Hollis of Heigham, B.
Craig of Radley, L.	Hughes, L.
Dormand of Easington, L.	Hylton-Foster, B.
Eatwell, L.	Jeger, B.
Erroll, E.	Jenkins of Putney, L.
Ewing of Kirkford, L.	Kilmarnock, L.
Farrington of Ribbleton, B.	Kimball, L.
Gladwin of Clee, L.	Lester of Herne Hill, L.
Glenamara, L.	Lockwood, B.

McIntosh of Haringey, L.	Saltoun of Abernethy, Ly
Mackie of Benshie, L.	Seear, B.
Merlyn-Rees, L.	Shaughnessy, L.
Monkswell, L.	Simon, V.
Morris of Castle Morris, L.	Simon of Glaisdale, L.
Palmer, L.	Skelmersdale, L.
Rea, L.	Stedman, B.
Redesdale, L.	Stodart of Leaston, L.
Renton, L. [Teller.]	Strange, B.
Richard, L.	Weatherill, L.
Robson of Kiddington, B.	White, B.
Russell, E. [Teller.]	Williams of Elvel, L.
	Wise, L.

Resolved in the affirmative, and amendment agreed to accordingly.

5.58 p.m.

Clause 14 [Reports of court proceedings absolutely privileged]:

The Lord Chancellor moved Amendments Nos. 6 and 7: Page 11, line 3, leave out ("and"). Page 11, line 4, at end insert (", and () any international criminal tribunal established by the Security Council of the United Nations or by an international agreement to which the United Kingdom is a party.").

The noble and learned Lord said: My Lords, I spoke to the above amendments when moving Amendment No. 1. Therefore, with the leave of the House, I beg to move Amendments Nos. 6 and 7 en bloc.

On Question, amendments agreed to.

Clause 18 [Extent]:

Lord Hoffmann moved Amendments Nos. 8 to 10 Page 12, line 13, at end insert— ("section (Evidence concerning proceedings in Parliament) (evidence concerning proceedings in Parliament),"). Page 12, line 27, at end insert— ("section (Evidence concerning proceedings in Parliament) (evidence concerning proceedings in Parliament),"). Page 13, line 3, at end insert— ("section (Evidence concerning proceedings in Parliament) (evidence concerning proceedings in Parliament),").

The noble and learned Lord said: My Lords, these amendments are consequential on Amendment No. 4. I beg to move Amendments Nos. 8 to 11 en bloc.

On Question, amendments agreed to.

Clause 19 [Commencement]:

Lord Hoffmann moved Amendment No. 11: Page 13, line 22, at end insert— ("section (Evidence concerning proceedings in Parliament) (evidence concerning proceedings in Parliament),").

On Question, amendment agreed to.

Schedule 1 [Qualified Privilege]:

The Lord Chancellor moved Amendment No. 12: Page 16, line 50, after ("Rights,") insert— ("() any international criminal tribunal established by the Security Council of the United Nations or by an international agreement to which the United Kingdom is a party.").

The noble and learned Lord said: My Lords, I spoke to this with Amendment No. 1. I beg to move.

On Question, amendment agreed to.

On Question, Bill passed, and sent to the Commons.