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Lord Brabazon of Tara
That this House takes note of the report of the Joint Committee on Parliamentary Privilege (HL Paper 30).
Lord Brabazon of Tara (Con)
My Lords, privilege carries connotations of social exclusivity or of favouritism, so it is important that occasionally we remind ourselves what parliamentary privilege actually is. We, as members of this legislature, are accountable to the people. We make laws. Our colleagues in the House of Commons approve taxation. We hold the Executive to account. To perform those tasks effectively and without fear, we need certain rights and immunities. We need to be able to regulate our own affairs without interference from government or the courts. Above all, we need to be able to speak and act freely in the course of our parliamentary work without fear of consequences. So the existence of some form of parliamentary privilege is a necessary precondition for a free and democratic society. It is not a special immunity that attaches to us personally. It is the freedom of the House itself, the foundation for everything that we, as parliamentarians, do here.
It is important to restate these principles, however self-evident they are, because at the time the Joint Committee which I chaired was set up they were being widely questioned. In early 2010, four parliamentarians—three MPs and one Member of this House—sought to persuade the courts that parliamentary privilege protected them from being prosecuted for false accounting in respect of parliamentary expenses. That case was still being heard at the time of the 2010 election, and the coalition agreement included a commitment to bring forward proposals to ensure that privilege could not be used by Members of either House to evade justice.
The case brought by the four Members was subsequently dismissed by the courts at every stage, culminating in the judgment of the Supreme Court in R v Chaytor. In that judgment, the Supreme Court reaffirmed something which the two Houses themselves have acknowledged for many years—that a crime is a crime and that Members of Parliament who have committed crimes enjoy no special protection from prosecution. I will quote briefly from the Supreme Court’s judgment:
“for centuries the House of Commons”—
the same applies to this House—
“has not claimed the privilege of exclusive cognizance of conduct which constitutes an ‘ordinary crime’—even when committed by a Member of Parliament within the precincts of the House”.
It follows that a false expenses claim knowingly submitted by a Member of Parliament is fraud, pure and simple—so the main rationale for the Government’s draft Bill had disappeared by the time it was finally published in spring 2012.
What we were left with was, frankly, a bit of a rag-bag. The fundamental question at the heart of the Green Paper, and at the heart of our report, was whether or not we in the UK should seek to codify parliamentary privilege by means of a comprehensive modern statute. That was the central recommendation of the last Joint Committee to consider these issues, chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, in 1999. However, the Government were against codification and so, ultimately, were we.
There are arguments for and against codification. In its favour is the prospect of certainty and clarity. Against it is the inflexibility inherent in statutory codification and the loss of the possibility of evolution. Accordingly, we did not rule out legislation but regarded it as a last resort. If we ever get to a point where the courts or the Executive interfere with privilege to such an extent that freedom of debate in Parliament is compromised, then, and only then, Parliament may have no option but to legislate once again, as it did in 1689 in the Bill of Rights, to put privilege on a clear and unquestionable statutory basis. But we have not reached that crisis point yet, and I hope we never do.
I shall briefly outline some of the Joint Committee’s other conclusions before concluding by addressing the Motion in the name of my noble friend the Leader of the House, which is being debated jointly with this report. We were unanimous in rejecting the Government’s draft clauses which would have vested in the prosecuting authorities the power to waive the protection afforded by Article 9 of the Bill of Rights, thereby allowing parliamentary proceedings to be admitted as evidence in criminal prosecutions. As the Chaytor judgment clearly demonstrated, a crime is a crime, and membership of Parliament is no protection from prosecution. Privilege exists to protect not Members but proceedings themselves from impeachment or questioning in the courts, which is why witnesses before Select Committees enjoy the same protection as Members. Removal of that protection would have a disastrous chilling effect on free parliamentary debate. I am delighted that the Government, in their response to our report, have accepted our conclusion and abandoned their proposal to waive Article 9 in respect of criminal prosecutions.
Secondly, we considered the penal powers of the two Houses and, in particular, their powers to punish those who, either by refusing to give evidence to Select Committees or by giving false evidence, may be guilty of contempt. I do not intend to speak to this complex issue in detail—chapter 3 of our report speaks for itself—but I want to underline that the existence or not of these penal powers has rarely been an issue for Lords committees, which work best when they engage with willing and co-operative witnesses. I know there have been very rare occasions—one involving the Communications Committee comes to mind—when Lords committees have encountered difficulty, but our focus was very much on the Commons, and we will watch developments in that House with interest.
Thirdly, we considered judicial questioning of parliamentary proceedings. In some countries, judicial interference has been the trigger for legislation: in Australia in the 1980s, and currently, although for rather different reasons, in New Zealand. We are fortunate that in the United Kingdom our judges generally show the utmost respect for parliamentary privilege, just as we, in Parliament, show our respect for judicial proceedings by observing the sub judice rule. The noble and learned Lord, Lord Judge, the then Lord Chief Justice, gave particularly valuable evidence to the Joint Committee on this mutual respect. There have been some problems, particularly in judicial review cases, but we concluded that these were exceptions, rather than the rule, and that there was no need for Parliament to take action at this time.
Finally, before turning to the Leader’s Motion, I would like to mention the reporting and repetition of parliamentary proceedings, which is covered in chapter 7 of our report. This is the one area of significant disagreement between the Joint Committee and the Government. The Government say that they are not convinced by our conclusion that the vague wording of the Parliamentary Papers Act 1840,
“significantly inhibits press reporting of … Parliament”.
Instead, the Government believe that such reporting,
“has sufficient qualified protection under the common law”.
I cannot agree. The evidence of media witnesses was clear. Section 3 of the Parliamentary Papers Act 1840, as amended, refers only to extracts or abstracts of documents published or broadcast by authority of the House, terms which do not appear to extend to general media reports. As a result, the media are genuinely confused over the possible risks they may face in reporting parliamentary proceedings. This confusion was exemplified by the chaotic reaction to John Hemming MP’s disclosure in the House of Commons in 2011 that the footballer Ryan Giggs was the subject of an anonymity injunction.
I was therefore pleased to see that the noble Lord, Lord Lester of Herne Hill, had introduced a Private Member’s Bill seeking to give effect to the Joint Committee’s recommendation that qualified privilege should apply to all fair and accurate reports of parliamentary proceedings, a recommendation that we believe would resolve this anomaly. Unfortunately, the noble Lord has been unable to secure a Second Reading for his Bill, and I understand that in the next Session of Parliament he plans to introduce a much narrower Bill, whose scope will be limited to the repeal of Section 13 of the Defamation Act 1996, which allows Members of either House to waive the protection of Article 9 of the Bill of Rights for the purposes of a suit for defamation.
I would certainly welcome the repeal of Section 13, which has created a number of dangerous anomalies, but I regret that the noble Lord is not pursuing the more ambitious proposals contained in his current Bill. As our report indicates, successive Joint Committees —the 1999 Joint Committee on Parliamentary Privilege, the Joint Committees on the Draft Defamation Bill and on Privacy and Injunctions and the committee that I chaired—have concluded that the current blend of statutory and common law protection enjoyed by media reports of parliamentary proceedings is inadequate. I hope the Leader of the House will be able to tell us that the Government have had a change of heart and are ready to bring forward their own Bill in the new Session. In the mean time, I hope the Government will support the repeal of Section 13 of the Defamation Act.
Finally, I turn to the second Motion in today’s debate, which stands in the name of my noble friend the Leader of the House. I would like to put on record my personal thanks to the Leader for his willingness, as Leader of the whole House, to put his name to it. I shall briefly explain the background. Legislation has over the years created innumerable individual rights in areas such as employment, health and safety, data protection, clean air and so on. Businesses, schools, charities and other organisations across the country have to comply with such legislation, and as a point of principle both Houses, as responsible employers, and as custodians of this great palace, should similarly be bound by it. The problem is that, in 1935, in the case of R v Graham-Campbell ex parte Herbert, the courts decided that they were not. The result of the Graham-Campbell judgment, which was never appealed, was a mess. It came to be a common-law presumption that legislation did not apply to Parliament unless it expressly said that it did.
This presumption was reinforced by the fact that some legislation did expressly extend to Parliament. To give a current example, Schedule 1 to the Deregulation Bill, currently in Committee in the House of Commons, contains provisions relating to apprenticeships. New Section A7 in that schedule states expressly that it applies to parliamentary staff. That seems to me to be the right way to go about it, avoiding any doubt or ambiguity. The same approach was adopted in Sections 194 and 195 of the Employment Rights Act 1996, to which the Deregulation Bill refers.
As the noble and learned Lord, Lord Judge, told the Joint Committee, if in one place you say,
“this Act applies to Parliament”,
but in another place you say nothing about it,
“it will be assumed that it does not apply to Parliament”.
That, in a nutshell, is the problem. The Joint Committee therefore concluded that, as a point of principle, all legislation of general effect, covering such areas as health and safety, employment or fire safety, should be extended by means of express provision to Parliament. In fact, as the letter from the Treasury Solicitor printed in the appendix to our report shows, this position has also been government policy since 2002, although not always observed in practice. By adopting this resolution today, we will demonstrate the House’s strong support for this approach and, I hope, contribute to clearer and more consistent legislative drafting in future.
Before I finish, I should like to thank the excellent clerks we had from both Houses who helped us produce what I hope noble Lords will agree is a good report. We also had some very good witnesses. I have already mentioned the noble and learned Lord, Lord Judge, but I should also like to thank in particular the clerks of both Houses of the Australian Parliament, the clerks from the New Zealand and Canadian Parliaments and the former parliamentarian of the United States House of Representatives, not forgetting our own Clerk of the Parliaments and the Clerk of the House of Commons.
In conclusion, I repeat my thanks to the Leader of the House for putting his name to the second Motion, and I hope that the House will agree it without dissent. I very much look forward to the debate. I beg to move.
Baroness Healy of Primrose Hill (Lab)
My Lords, I was honoured to serve on the Joint Committee on Parliamentary Privilege. The report will be a valuable contribution to the ongoing debate. As it says:
“Parliamentary privilege is a living concept, and still serves to protect Parliament, each House, their committees, and all those involved in proceedings. Much has changed since the publication of the report of the 1999 Joint Committee: privilege evolves as Parliament evolves, and as the law evolves”.
Our committee, wisely chaired by the noble Lord, Lord Brabazon of Tara, was fortunate to have a membership, from both Houses, of great parliamentary and constitutional experience and expertise, and I, as a relatively new Member of this House, learnt a lot. We took evidence from a wide range of experts and practitioners in the UK and abroad, and were very ably served by the clerks of both Houses, to whom I am most grateful for their guidance and expertise. I am pleased that the Government have responded so warmly to the report and I welcome the reiteration that they have,
“always been clear that Parliamentary privilege is a matter for Parliament and it is therefore right for Parliament to have a proper opportunity to reflect on its continuing purpose”.
Our committee found that there was no strong case for a comprehensive codification of parliamentary privilege, to which the Government have now agreed, as the noble Lord, Lord Brabazon, explained so comprehensively. But it is important to stress again the committee’s belief that steps may have to be taken both by Parliament and the Government to clarify the application of privilege where appropriate in the future. As the report states:
“This does not mean that we reject all legislation; but legislation should only be used when absolutely necessary, to resolve uncertainty or in the unlikely event of Parliament’s exclusive cognisance being materially diminished by the courts”.
One area I would like to highlight is the reporting of parliamentary proceedings. Our predecessor committee—the 1999 Joint Committee—noted:
“Parliamentary privilege does not cloak parliamentary publications with any form of protection”.
This was decided in 1839 in the case of Stockdale v Hansard, in which the court held that parliamentary privilege did not attach to the publishers of reports ordered to be printed by the House of Commons. The Parliamentary Papers Act 1840, passed in response to this decision, established that no action could be brought in court arising from the publication of the Official Report or other documents ordered to be published by either House. It also provided protection for “any extract or abstract” from such documents made by others, provided that they were published,
“bona fide and without malice”.
Such protection for publications by order of either House is a matter of statute law, not privilege.
As the House will certainly recognise, media reporting has moved on since then. The 1999 Joint Committee defined an “abstract” as a “summary or epitome”, and thus media reports of what goes on in Parliament, even if they draw on documents published by order of the House, such as Hansard, do not generally enjoy the qualified protection afforded by Section 3 of the 1840 Act. This was confirmed by Sarah McColl, solicitor advocate in the BBC, in her oral evidence on behalf of the Media Lawyers Association. But such reports do enjoy privilege in common law in respect of defamation. If the whole debate is published, the protection is absolute; if only extracts are published, the protection is qualified.
The 1999 Joint Committee said that it would be surprising if the common law defence of privilege in respect of defamation was not available also to broadcasters. But our committee found a problem in that, outside the field of defamation, media reports of parliamentary proceedings, as opposed to extracts or abstracts, do not enjoy legal protection. The protections enjoyed under 19th century statute or common law do not meet the current situation, where modern technology means that increasing volumes of data are streamed live via the internet. Such data are subject to instant comment or reporting via social networking sites, and their re-use, for instance by combining them with other data sources, is actively encouraged under the terms of the Open Parliament Licence.
Witnesses called for far wider changes than those proposed by the 1999 Joint Committee to be made to the 1840 Act and to other relevant legislation. The Newspaper Society wished to protect all reports at any time in any form, and the Press Association suggested that absolute privilege should be afforded to all fair and accurate reports of proceedings in Parliament, including media reports of breaches of injunctions.
After careful consideration, our committee did not accept the argument that full freedom of expression in Parliament is dependent on a similar freedom being enjoyed by the media. As our report says:
“The fundamental purpose of affording absolute privilege to proceedings in Parliament is to protect those proceedings themselves, so that the democratically elected representatives of the people can engage in free and fearless debate on issues of public concern”.
On balance, therefore, our committee did not support extending absolute privilege to all reports, including media sketches and summaries, of proceedings in Parliament; not because, as some argued, Members might be used by the media to launder defamatory information—although we could not rule out such a risk—but because the existing protection of qualified privilege, which covers all fair and accurate reports unless they can be proved by the claimant to have been made maliciously, already provides a robust defence of press freedom.
However, our committee recognises that the media need clarity and certainty, and that the 1840 Act does not appear to cover media reports or editorial comment —only “extracts and abstracts” of parliamentary publications, including broadcasts. The wording of the 1840 Act reflects a time when the re-publication by newspapers of large verbatim extracts from Hansard was commonplace; and, although some may regret it, the style of reporting today is very different, to such an extent that the wording of Section 3 of the Act is largely obsolete.
When the Government argued in their Green Paper that they were,
“not aware of circumstances in which any media organisation has been prevented from publishing reports of parliamentary proceedings by doubts over the extent of the current protection in law”,
this was contradicted by BBC and Press Association witnesses. Mike Dodd of PA explained that,
“reporting Hansard verbatim requires a wait of a least two hours before the first draft comes out, whereas we have customers … who have seen something on Parliament TV and want it now or five minutes ago”.
The Government’s draft clause would therefore give no protection to a reporter who, on the basis of a live broadcast, transcribed words said in the House, and then sought to re-publish the words online. The words spoken would not enjoy any protection under the 1840 Act until the online version of Hansard was published some hours later. The committee deemed this indefensible, and therefore endorsed the recommendation of the Joint Committee on Privacy and Injunctions that qualified privilege should attach, in all circumstances, to fair and accurate reports of things said or done in Parliament.
Our committee also endorsed the recommendation of the 1999 Joint Committee that the Parliamentary Papers Act 1840 should be replaced by modern statutory provisions, and that one of these new provisions should confirm that the term “broadcast” includes dissemination of images, text or sounds, or any combination of them by any electronic means. The provisions should also include a delegated power, subject to affirmative procedure, which allows the Secretary of State to update the definition of “broadcast” in the light of further technological change, without the need for primary legislation.
Of special interest to this House is our recommendation,
“that the statutory provisions which we have proposed in respect of the reporting of parliamentary proceedings should also confirm, for the avoidance of doubt, that Members of either House enjoy the same protection as non-Members in repeating or broadcasting extracts or abstracts of proceedings in Parliament”.
I certainly hope that the Government will actively consider wholesale repeal of the 1840 Act and its replacement by modern statutory provisions that clearly establish that qualified privilege applies to all fair and accurate reports of parliamentary proceedings in the same way as it does to abstracts and extracts of those proceedings. The freedom to report parliamentary debates in the media is of vital importance in a democratic society.
Lord Bew (CB)
My Lords, like the noble Baroness, Lady Healy, I very much thank the noble Lord, Lord Brabazon, for the skilful way in which he chaired our Joint Committee. We have in this report shied away somewhat from the concept of comprehensive codification of parliamentary privilege. We thought long and hard about many of these questions, and we were right to do so.
None the less, in the remarks that I make today I will focus on those areas in which we advocate legislative change. In some ways we follow quite closely, as it were, arguments that were advanced in 1999 by the noble and leaned Lord, Lord Nicholls of Birkenhead, in the report of that year. I notice that the noble Lord, Lord Cormack, is in his place. As a Member in the other place, he sat on that committee. There were at least two very important aspects of that report which have seen no action in intervening years; our committee was disturbed by the failure to take action. I refer in particular to the repeal of Section 13 of the Defamation Act 1996.
The problems of and raison d’être of Section 13 arose out of a very particular, unique and, one might almost say, slightly bizarre case of the struggle between Neil Hamilton and the Guardian newspaper at that time, at a particularly difficult moment in parliamentary history and of the Major Government. There is a fundamental problem with the law as it currently stands, which the noble Lord, Lord Brabazon, touched on at the beginning of his remarks. Privilege is not an attribute of an individual Member; it is an attribute of the House itself. The law as it stands is compatible with the view with which I think that both Houses are uncomfortable—that it is in some sense the attribute of the individual Member. There is a strong case for us looking again along the lines of the report by the noble and learned Lord, Lord Nicholls, on this question. There is really no more fundamental misunderstanding in the public mind about parliamentary privilege as that it is a claim by individuals to some form of entitlement. That is not the view of Members of Parliament, but we none the less have the unfortunate legacy of this case. I feel very strongly that this should, if at all possible, be corrected.
There is another respect, too, in which we have followed in a significant degree the report of the noble and learned Lord, Lord Nicholls. Page 94 of the report says:
“The Joint Committee considers the protection given to the media by the 1840 Act and the common law itself should be retained. We consider, further, that the statutory protection would be more transparent and accessible if it were included in a modern statute, whose language … would be easier to understand than the 1840 Act. We recommend that the 1840 Act, as amended, should be replaced with a modern statute”.
Again, that is a recommendation of our committee.
It is clear from the Government’s response that they are not yet convinced that there are significant difficulties facing the media in reporting Parliament. However, on the basis of the evidence that we heard, I find that difficult to comprehend. It is to do partly with the speed at which the media need to respond to things that are said in Parliament. It is clear that in the context of how we have moved in a number of important ways in terms of the recently passed Defamation Act to improve freedom of expression and equality of expression in public debate in this country, it would be ridiculous to leave this as an anomaly.
There is, oddly, a similarity between the 1840 Act and the provisions that arose in the Defamation Act out of the Hamilton case. In both cases, the immediate backdrop in the public debate is bizarre and eccentric. There is something to be said for the 1840 Act; it is important not to throw out the baby with the bathwater—it has given the media certain protection. With any change that occurs, we should be concerned not to throw the baby out with the bathwater. None the less, it is very hard, in both cases, when the circumstances of the legislation are so peculiar, individualistic and bizarre, to argue that there is some case for maintaining in statute language that in both cases is inappropriate—particularly in the case of where privilege resides, where it is fundamentally misleading to the public.
I conclude by taking a slightly different angle of approach to another aspect of our report, while declaring an interest as chair of the Committee on Standards in Public Life. I have to declare that interest because that committee has addressed this area—the appointment of lay members to Select Committees, which is dealt with in chapter 4 of our report. Since 2002, the committee has been pushing for this sort of development of Parliament, with independent or external elements in its system of regulation. In this context, the Committee on Standards in Public Life has welcomed the addition of lay members of the committee as a further independent element of the House system of regulation. In the end, we have decided, after receiving very compelling evidence from the clerks, that there is no case here as such for legislation. However, I do not want it to be thought that the committee, while I think rightly accepting the very cogently argued evidence that we received on this point, did not also pay a great deal of attention and give respect to the letter that the noble Lord, Lord Brabazon, received from the right honourable Kevin Barron MP, the chairman of the Standards and Privileges Committee, who wrote to our chairman to support legislation granting lay members of the CSPL full voting rights, saying:
“I cannot overstate how important it is that lay members should be able to participate on the same basis that MPs do”.
Our proposals are without prejudice to that argument. It is worth drawing the attention of the House to that interesting discussion in chapter 4 of our report.
Lord Norton of Louth (Con)
My Lords, as the first Member to speak who was not on the committee, I welcome the report of the Joint Committee. It is a measured and persuasive report. I also welcome the response of the Government. Privilege is a matter for both Houses, but the Government have an important role to play in facilitating the recommendations of the Joint Committee, not least when legislation is involved. I was very pleased to see the constructive engagement by the Government. There were few issues on which the Government reached a different conclusion to that of the committee. On reporting proceedings, I incline to the view of the Joint Committee, for the reasons that the noble Baroness, Lady Healy, outlined; but on the other issues, for reasons that I shall develop, I agree with the Government.
The report accepts that the current position is not tenable. The assertion of privilege in respect of those summoned to appear before Select Committees has for some time been akin to admiring the emperor’s clothes. In practice, committees rarely have difficulty in securing the witnesses they wish to give evidence. For those summoned, it is often seen as a matter of some pride to appear before a parliamentary committee. It is normally in their interest to appear; they want their views to be heard. The occasions when there is a problem are few and far between, but it is on those occasions when either House may need to assert its powers to ensure that committees can fulfil their essential tasks. As the Joint Committee recognises, it is in the public interest that committees have the power to function effectively. As it records, each House needs to be prepared for when someone summoned tests the penal powers of the House. As it says at paragraph 61:
“It will be too late to consider these matters when a crisis arrives”.
The committee recommends against legislating to confirm Parliament’s penal powers. I think it is correct in arguing that the disadvantages of legislating outweigh the advantages. Legislating would bring privilege within the purview of the courts, not only to determine the scope of privilege, as they do, but also to determine whether a contempt has been committed. It would entail a significant reduction in the exclusive cognisance of Parliament, and give to the courts a role that I suspect they would not necessarily welcome. There is a powerful principled case for maintaining the concept of two constitutional sovereignties, and there would need to be a compelling case to move away from it. I do not believe such a case has been made.
The Joint Committee gets to the nub of what is needed in paragraph 77. It is essentially a test of institutional confidence. This House recently resuscitated its long-standing power to suspend Members. The fact that the power had not been used since the 17th century did not mean that it no longer resided with the House. As the Clerk of the House of Commons told the Joint Committee in respect of privilege, it is not a question of the powers but rather one of their enforcement. However, enforcement must comply with standards of fairness, ensuring that those appearing before committees know what is expected of them and providing a rigorous process, including recourse to legal advisers, should they be subject to a complaint of contempt.
I believe that the committee’s recommendation for a clarification of powers and setting out fair procedures is entirely appropriate. It addresses what is clearly a problem that needs resolving, but also provides the flexibility to meet changing expectations.
The need for flexibility is at the heart of the committee’s report. I wholly accept the argument that flexibility is preferable to a statutory codification of privilege. There is no need for such codification, not least given—as the Joint Committee records—that there is no persistent conflict between Parliament and the courts. The relationship has tended to be characterised more by comity than by conflict. There have been exceptions and on occasion judges have entered into territory that should remain barred to them. Pepper v Hart was designed to enable courts to look at the parliamentary record when there was an ambiguity that could not be resolved other than by examining what the Minister had said. It was not an invitation to pass judgment on what was said and done in either House, but some judges seemed to think that it gave them latitude for such commentary. However, those have been the exceptions, not the rule; and the courts generally have shown no desire to encroach on matters that are deemed to fall within Parliament’s sole jurisdiction. As the Master of the Rolls, Lord Dyson, observed in his recent Bentham Presidential Lecture, talking about judicial review, judges are,
“mindful of the … territory into which they should not enter”,
and in exercising their power, they,
“seek to uphold the decisions of the legislature and to secure the sovereignty of Parliament and the rule of law”.
Where there may be conflict or uncertainty, that is a case for dialogue rather than confrontation. The relationship tends to fit with what Alison Young has characterised as a “democratic dialogue”. As the Government response records in respect of the question as to whether the Register of Members’ Interests should be considered as a parliamentary proceeding:
“This is another case where closer contacts between Parliament and the Courts can mitigate the risks of misunderstandings and improve the consistency of decision making”.
It is important that means of maintaining such contact are developed. One of the many advantages of retaining this House as the highest court of appeal was that it provided a forum in which the Law Lords could appreciate the importance of Parliament and other parliamentarians could appreciate the role of the Law Lords. That relationship was entirely legitimate and indeed, in my view, served to provide some protection for the role of the judiciary against sometimes ill informed criticism by the Executive. Means are now being developed of ensuring that a dialogue can be maintained between the legislature and the judiciary.
Parliamentary privilege needs to be protected in order to enable Parliament to fulfil its functions. The stress is on Parliament rather than parliamentarians. As the noble Lord, Lord Bew, said, parliamentarians enjoy protection only in so far as it is necessary to protect the House of which they are Members. As the report notes, MPs and Peers do not enjoy the immunities accorded to Members of some other parliaments. I think that our approach is appropriate. Privilege should be for the benefit of the nation. It is not designed for the personal benefit of Members.
It is thus entirely right that Members are subject to prosecution for “ordinary crimes”, whether committed on the parliamentary estate or elsewhere.
Following the principle that Members should not enjoy privileges that are not essential to enabling Parliament to fulfil its functions, I agree with the Government that there should be no change to current requirements in respect of jury service. As the response notes, Her Majesty’s Courts and Tribunals Service will readily grant requests to defer jury service where necessary. I certainly see no grounds for arguing that Members should have a right of excusal from jury service in England and Wales, but officers of either House should not. The officers arguably are more essential to the fulfilment of the functions of each House than is any individual Member.
For the same reason, I agree with the Government in respect of the right of Members not to respond to court summonses. As the government response notes, it is a privilege not enjoyed by other public figures. As it says, there is no strong rationale for Members to be treated differently from non-Members in this area. Indeed, I think there is a danger of bringing Parliament into disrepute if a Member hides behind parliamentary privilege in order to avoid responding to a court summons. There is no compelling case that such immunity is necessary for Parliament to fulfil its functions.
On most other issues, the Government agree with the Joint Committee’s recommendations. I welcome the Government’s acceptance that there should be no disapplication of Article 9 of the Bill of Rights in respect of criminal prosecutions and that Section 13 of the Defamation Act 1996 should be repealed. Both are consistent with protecting freedom of speech as essential to enabling Parliament to fulfil its functions and maintaining the clear division between the legislature and the judiciary.
My principal question is directed to my noble friend the Leader of the House, and that is: what next? That question is especially germane in this House. As the report states at paragraph 79:
“If the House of Commons were to adopt our proposals on how its penal jurisdiction should be exercised, we would expect the House of Lords to adopt similar procedures, adapted to the conventions prevailing in that House, in due course”.
“Due course” is a rather imprecise indication of timescale and there is always the danger that, with no set timetable, there may be a tendency to defer any action. It would be helpful to know what steps are being taken to ensure that we do, as the Joint Committee recommends, build on its work, and when we may expect to see the fruits of the deliberations that take place. The report of the Joint Committee is very welcome. It is important that it does not gather dust. It is in the interests of the House that we act on it. Agreeing to the Motion tabled by my noble friend the Leader of the House is a start, but it is essential that we ensure that it is not both a start and an end point.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, like the noble Lord, Lord Norton, I congratulate the Joint Committee on its work and its report and also the noble Lord, Lord Brabazon of Tara, on his crisp and clear introduction of this debate.
This is an admirable report: thoughtful, clear, incisive and readable. Although, as I shall indicate, I do not agree with quite all its recommendations, indisputably it provides a sound platform on which to consider and eventually come to decisions on the way ahead.
I certainly agree, as do the Government, with the committee’s conclusion that there is no strong case for a comprehensive codification of parliamentary privilege. I was one of the court of nine—my noble and learned friend Lord Hope of Craighead was another—in the Supreme Court, which heard the cases of Chaytor and two others late in 2010. We signed up to what I believe can be regarded as the magisterial judgment of my noble and learned friend Lord Phillips of Worth Matravers. I like to think that that decision solved what might otherwise have been seen as a number of doubts and tensions in the relationship between the courts and Parliament.
I agree with all that the noble Lord, Lord Norton, has just said about this, in particular the advantages of the flexibility of the present system and relying on the comity between the institutions involved. I share his regret at the banishment of the Law Lords back in 2009 across Parliament Square.
Of the various other conclusions reached by the committee I will focus on only four, and even then comparatively briefly. The first concerns judicial questioning of proceedings in Parliament. The starting point here is Article 9 of the Bill of Rights of 1689:
“That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.
The decision of the seven-Member appeal committee of this House in Pepper v Hart in 1993—just over 20 years ago—was a landmark decision which, for the first time, allowed the use of parliamentary material as an aid to statutory construction. However, this relaxation of the rule was made explicitly subject to stringent conditions: first, that the legislation was ambiguous or obscure or could lead to absurdity; secondly, that the material sought to be relied on to explain it was made by the Minister promoting the Bill; and, thirdly, that the statements to be relied on were clear.
Over the past 20 years, there has been a great number of occasions when counsel has explored and cited Hansard in an effort to bolster their contended for construction of legislation, but far fewer occasions on which they have succeeded in that aim. As the noble and learned Lord, Lord Mackay of Clashfern—the then Lord Chancellor—predicted in his lone dissenting speech in Pepper v Hart, the necessary researches in Hansard have in these cases resulted in a substantial increase in the cost of the litigation, and it may be doubted whether this has in truth been justified.
There is also the risk that Ministers promoting legislation may make statements which are specifically designed to assist government in the event of future disputes as to the proper interpretation of the legislation. As the noble and learned Lord, Lord Steyn, suggested in an Oxford lecture some years ago which doubted the wisdom of the decision in Pepper v Hart, courts should be inclined to use the relaxation of the rule—if at all—against government rather than in government’s favour. All that said, I am inclined to agree with the committee’s report, and the Government’s response to it, that at present no further action is needed.
On the linked questions of the disapplication of Article 9 in certain circumstances, and the repeal of Section 13 of the Defamation Act 1996, which qualified Article 9, there is not much that I want to add save that I wholeheartedly agree—as do the Government—with the committee’s recommendations. The proper honouring of Article 9 is essential to free speech in Parliament and, frankly, none of the envisaged exceptions to it begins to make sense. Indeed, Section 13 can itself be seen in hindsight to have been a serious mistake. Ironically, nobody will have seen this more clearly than Mr Neil Hamilton, in whose ostensible favour Section 13 was originally enacted. Your Lordships will recall—indeed, the noble Lord, Lord Bew, recollected this—that Mr Hamilton was originally thwarted in his libel claim against the Guardian newspaper in the cash for questions affair because, the newspaper being at that stage unable to use the parliamentary material as it wished to justify the publication, the judge inevitably had to stop the case. Once Section 13 was enacted, however, Mr Hamilton was able to pursue such a claim, but, of course, in the end it failed dramatically.
I wish to say a brief word on the registration of Members’ interests. I should note that currently I have the honour of chairing the Sub-Committee on Lords’ Conduct, which is a sub-committee of the Privileges and Conduct Committee of this House. In common with many others, I regard the first instance decision in the case of Rost v Edwards in 1990 as a curious aberration, which, if ever it becomes necessary to litigate this point in future, will not survive. Such matters as the register of interests seem to me plainly matters within Parliament’s exclusive cognisance.
I want to say a few words about jury service and witness summonses. It is on these two questions that I find myself in respectful disagreement with the committee’s recommendation, but therefore in agreement with the Government’s rejection of the committee’s proposals. I would not wish to legislate to exempt Members of either House from jury service, from which they are presently not excused, but I would wish to legislate to remove Members’ current right not to respond to witness summonses.
As to Members acting as jurors, the courts may be expected to continue to treat them with great consideration and to grant requests to defer jury service where it would otherwise lead to clashes with Members’ public duties. However, given the widespread sweeping away of exemptions from jury service, which includes that of judges at all levels of the judiciary, Members should not in my view seek to re-establish their own exemption. Indeed, to my mind, it should be quite the contrary. It seems to me enormously valuable that Members of both Houses should experience jury service, and thereby gain a real understanding of what it entails and the strengths and—I may add—weaknesses of the jury system.
As the noble Lord, Lord Blair, pointed out in a Question asked in the House only last week, Section 8 of the Contempt of Court Act 1981 currently prevents almost any research into the workings of the jury system. That section was, it so happens, included in the Act to repair a failure of my own when, as Treasury counsel in, I think, 1980, acting on behalf of the Attorney-General, I unsuccessfully prosecuted the New Statesman for contempt of court for publishing a juryman’s revelations of the jury’s deliberations in the Jeremy Thorpe trial. There was then no law against it. We relied, unsuccessfully, on the common law.
Judges who serve as jurors can now see how it all works in practice—so, too, should parliamentarians. As to witness summonses, again, Members should not be privileged. I agree with the noble Lord, Lord Norton, on this, too. Perhaps this is a matter rather more of perception than of substance. The reality is that, even assuming this privilege is removed, it will be perfectly possible to have witness summonses set aside, assuming they have been issued vexatiously.
On the separate Motion of the noble Lord the Leader of the House, I have nothing to add to what the noble Lord, Lord Brabazon, has already said, save only that I hope that one day some new AP Herbert will arise to find fresh anomalies in our law, and so keep the next generation of students amused.
Lord Davies of Stamford (Lab)
My Lords, it may seem a rather thankless task in life to spend many hours of one’s existence in a committee discussing parliamentary privilege. There are certainly no votes in the subject and there is absolutely zero public or media interest in it. Even though all colleagues in both Houses always say that privilege is enormously important, in practice not many of them are particularly motivated to follow the proceedings of such a committee.
Nevertheless, my participation in the committee was in fact not merely a duty, I suppose, and, no doubt, a privilege, but also a real pleasure. That was due entirely to the motivation and quality of my colleagues on the committee and to the extremely good tempered, fair and, indeed, often humorous fashion in which proceedings were conducted by our chairman, the noble Lord, Lord Brabazon of Tara. I pay tribute to him for what he did over the many weeks when we met.
The results of the committee’s proceedings have been discussed today. I will focus on one or two details. First, I endorse the comments of the noble Lord, Lord Brabazon of Tara, about the need to legislate to remove any ambiguity about the right of people—the media or anyone else—to reproduce parliamentary debates in their accounts of parliamentary proceedings. It is absolutely essential that people—not just newspapers or broadcasting stations—have qualified privilege in citing Parliament as long as they cannot be shown to have acted maliciously or to have perverted the quotation by exclusion or something of that sort. If they have given a fair and true account of what was said in Parliament, they should be immune from any legal proceedings. It is essential in a democracy that people can refer to the proceedings of their elected representatives, or in our case their non-elected representatives, without any inhibition. It is important that we legislate on that.
I find it quite extraordinary, as will every Member of the House and every member of the public, that at a time when the Government are saying that we must have more and more time off because we have nothing to do, they are also saying that there is no time to legislate on important matters such as this. I should be grateful if the Leader of the House would look again at his diary to see whether a Bill could be brought forward in the next Session so that we can deal with this matter as the committee recommended. No one has suggested that that is not a good idea or not an important priority for legislation.
I will deal briefly with a very important matter that was discussed in the committee and has already been referred to today—the issue of witnesses before Select Committees who may be tempted to refuse to appear or to try to deceive the committee when they do appear. That is a very real problem. We spent a long time talking about it. We came to the conclusion, as the House will have seen, that each House should assert its existing competence and sanctions to make it absolutely clear what the rules are and what will happen if someone breaks them. I am happy with that. However, we may find ourselves in a difficult situation if someone cynically decides that there is not much of a downside to refusing a summons or subpoena to testify or is less than straight with the committee when he or she testifies. We may have to come back to this.
There was some discussion in the committee about what we should do if we decided to legislate—whether we should act as the Australians have done and take powers ourselves in Parliament to inflict appropriate sanctions on those people who misbehave in this fashion or whether we should do what the Americans have done and make it a matter of statute law so that it is for the prosecuting authorities to pursue the matter through the courts. The Americans have done that very successfully and, I think, in contrast to the noble Lord, Lord Norton, without any damage to either the perception or the reality of parliamentary sovereignty in the United States. We may need to come back to that.
I was told in the course of proceedings—we had a session in which we took evidence from representatives of the US Congress—that that power has been used in the United States about 20 times in the past century, in some famous cases, such as the Hiss case, as well as in less celebrated cases. That has been enough to maintain the credibility of the system in the United States. No one sane rejects a subpoena to testify to a congressional committee or tells lies before Congress. The legal advice given, if one were to suggest such a thing, would be quite unambiguous in the United States. I am not sure that it would be so unambiguous in this country. We must keep an alert mind here and take the action recommended in our report—that the two Houses independently produce a resolution setting out the powers and sanctions as they currently exist. I hope that that will happen before too long.
Finally, I will comment on a matter on which I found myself in a minority in the committee. My disagreement with the majority of the committee is recorded in the proceedings. Here I also take issue with the noble and learned Lord, Lord Brown, whose views I listened to with great respect. It is the issue of the extent to which proceedings in Parliament can be cited in a court of law, a tribunal, a judicial inquiry or something of that kind. They cannot of course be impeached or questioned: that is quite clear in Article 9 of the Bill of Rights. However, in my view, they should be citable. I put the point to the noble and learned Lord, Lord Brown, who is a very distinguished jurist, that by definition proceedings in Parliament are surely a matter of public record, as they always must be in a democracy. Therefore, what is said and done here is not and should never be a mystery. In certain cases, what is said and done here—such as the passing of a Motion, or the proceedings and recommendations of a parliamentary Select Committee—may be extremely relevant to the subject which a tribunal or judicial review is looking at. It would be artificial if parties to that hearing, or members of that judicial tribunal, were inhibited by law from taking into account something extremely relevant, such as the recommendations of a parliamentary Select Committee on exactly the matter, or part of the matter, that they were reviewing. That would be absurd. It would not be a good day for democracy.
It is sometimes said that it would be unfair if the proceedings in Parliament that might be cited worked against one of the parties or witnesses before a tribunal, committee or other proceeding; that he or she would not be able to argue in his or her defence against the decision of Parliament because that would be in breach of Article 9 of the Bill of Rights. However, that is just a fact of life. If the wording of the statute law happens to be against the interest of one particular party, that party cannot argue about the merits of the law and say that Parliament made a mistake in passing it. It is a fact of life that must be accepted. Equally, if Parliament came to a decision on a particular matter, or a Select Committee came to a particular recommendation, that is a fact which cannot be challenged by a court or tribunal, and neither should it be. It should be taken into account. It is completely wrong that it should be somehow suppressed or that the judicial proceedings concerned should proceed in apparent, and perhaps false, ignorance of the existence of that particular fact. That is the point where I disagreed with some colleagues on the committee and continue to disagree. I am glad that this will be resolved, not by statute or by decision of this House, but by jurisprudence. I hope that, in a responsible and reasonable fashion, the Pepper v Hart tradition is continued and that it is possible for those taking part in proceedings to cite responsibly and in a way that is consistent with the Bill of Rights—not challenging or arguing the substance or that Parliament should not have done X, Y or Z, but simply being able to cite what actually happened in Parliament. It seems to me that, in a democracy, any other behaviour would be bizarre.
Finally, the Government have decided that they were wrong in suggesting the disapplication of the Bill of Rights in criminal proceedings. I and the committee were very glad that they had that conversion. However, there are two long-term lessons that we can draw from this experience and that I hope the Government will take note of. One is that in matters of the constitution, particularly, it is a great mistake to go in for reformulation if you do not intend to change the substance of the rule. If you just rephrase the rule—codify it or put the same rule in what you believe to be better words—you will not have contributed to legal certainty, which should be the duty of any legislator to contribute to. Instead, you will have contributed to uncertainty. That is because the courts will always say, “Parliament has used different words and must therefore have had a slightly different intention and we therefore cannot interpret this principle in exactly the same way as we would have interpreted the previous principle, as expressed and formulated in different words”. You create great judicial uncertainty and, had the Government’s initial Green Paper been implemented, it would have done that and it would have been a great mistake.
The final general lesson that I draw out of all this is that if you are going to legislate, you should never set out a general principle and then create a certain number of non-exhaustive, explicit derogations or exceptions from it. There you again create enormous uncertainty because you have set up a general principle; you have said, “These are exceptions”; you have not said, “These are the only possible exceptions”; and you therefore create a whole area in which there may or may not be exceptions. Again you have created great judicial uncertainty. It is what I called during the committee’s proceedings legislation by negative example. We should never do that in any context and I hope that, the lesson having been learnt on this occasion, it will be taken account of by those who formulate proposals for legislation.
Lord Hope of Craighead (CB)
My Lords, like others who did not have the privilege of serving on the Joint Committee, I congratulate that committee and all its members on an excellent and eminently readable report. I also thank the noble Lord, Lord Brabazon of Tara, for initiating this debate and providing me with the opportunity to contribute to it, which I greatly welcome.
I should like to concentrate simply on the relationship between Parliament and the judiciary. In R v Chaytor, the case to which reference has been made, the late Lord Rodger of Earlsferry said that an invocation of parliamentary privilege is,
“apt to dazzle lawyers and judges outside Parliament”.
I think that his point was sometimes simply that the invocation of the words is regarded as a sort of red light—“Keep off the parliamentary lawn”. However, as Lord Rodger noted, Lord Brougham, when he was Lord Chancellor, cautioned against that approach. His advice was that the courts should not accede to claims of privilege,
“the instant they hear that once magical word pronounced”.
The issue requires to be addressed with more care than that and with a greater regard to the context. Article 9 of the Bill of Rights must, of course, be respected. However, as Lord Brougham said, it cannot have been intended to apply to a matter for which Parliament, especially its individual Members, cannot validly claim the privilege of exclusive cognisance at all. That was indeed what Chaytor was about.
I have to confess that I was surprised to read in paragraph 32 of the Joint Committee’s report the proposition that the courts can only interpret and apply the law, and that making law is for Parliament alone. That, with great respect, is not entirely accurate. There are many areas of the common law that have been developed by the judges with which Parliament has not dealt at all. In those areas, as was explained by the then senior Law Lord, Lord Reid, in 1972, the judges do indeed make law. It is true that they do not have the last word. It is always open to Parliament to reverse the position if it thinks that the judges have got the law wrong, or if the law declared by the judges is not something with which it agrees. However, as the Lord Chief Justice, the noble and learned Lord, Lord Judge, said, ultimately it is Parliament that is sovereign. However, much of the law that is applied day and daily in our courts is law made by the judges. That is one of the great strengths of our legal system. After all, legislation is inevitably a rather blunt instrument. The virtue of our common law is that it can be adapted to fit precisely to the facts of each case.
Leaving that minor criticism aside, however, I welcome the way in which the report deals in chapter 5 with the important issue of judicial questioning of proceedings in Parliament. The Government refer in their response to what they describe as the continuing good relations between the judiciary and Parliament. The relationship is indeed a good one. I agree with the noble Lord, Lord Norton of Louth, that the atmosphere is one of comity rather than conflict. In my experience, both sides are careful to respect the boundaries between what is and what is not permissible. That is certainly so of the judges.
The case of R v Chaytor obviously helped a great deal in clearing the air on this subject, which was causing concern when the idea was promoted of engaging in this report in the first place. I had the advantage of sitting in the court, together with my noble and learned friend Lord Brown of Eaton-under-Heywood. We and, indeed, all members of the court were very conscious of the need to respect the privileges of Parliament, which the appellants—parliamentarians all of them—had invoked. In the event, it was relatively easy for the court to conclude that there was nothing in the allegations against the appellants that related in any way to the legislative or deliberative processes of either House or their Members. As the noble Baroness, Lady Healy, said, a crime is a crime. It was relatively easy to reach that conclusion and the court held that the prosecution in the ordinary courts for the parliamentarians’ crimes of dishonesty was not precluded by Article 9. It is worth noting, as my noble and learned friend Lord Brown said, that nine justices rather than the usual five sat in that case. That was in itself recognition by the court of the importance of the issue that it had to address.
Like my noble and learned friend, I believe that the Joint Committee was right, in a later part of its report at paragraph 229, to criticise the decision in Rost v Edwards. It is worth remembering that that case was decided as long ago as 1990. The judge in that case allowed questions to be put to the Member as to his reasons for not registering an interest in the Register of Members’ Interests. However, I agree with my noble and learned friend Lord Brown that this was simply an aberration. Quite a lot of water has flowed under the bridge since then, and I should have thought that it was now clear and beyond dispute that all questions as to a Member’s reasons for declaring, or failing to declare, an interest for the purpose of proceedings in either House must be a matter within the exclusive cognisance of Parliament.
It is worth noting that in paragraph 23 the Joint Committee says that it would expect the two Houses to intervene should such a case arise in the future. I should add a footnote to that important point. The absence of such an intervention was noted in the Chaytor case. It was also noted much more recently in the HS2 case, on which the UK Supreme Court delivered judgment on 22 January this year. The point was picked up by both the president, the noble and learned Lord, Lord Neuberger, and by Lord Reed. There would be no difficulty in making an intervention should the Houses wish to do so. The rules of the court enable any person with a sufficient interest to intervene in an appeal. The court itself, if so minded, can ask for submissions to be made, and it might take that step itself if it felt that it needed to know what Parliament’s position was if it was in doubt. However, it would be best, as the report suggests, if Parliament itself were to take the initiative.
Chapter 5 dwells on the question of whether reference to proceedings in Parliament for the purpose of judicial review of governmental proceedings could be damaging. The suggestion is that this could lead to a blurring of the constitutional separation between the courts and Parliament because it would seek to question what was said. That point is made in paragraph 132. I agree with a great deal of what the noble Lord, Lord Davies of Stamford, said. I see great force in the objection that he put forward because the risk of the courts going astray on this point is less acute than this part of the report suggests, although I should make it clear that I agree with the conclusion in paragraph 136 that legislation prohibiting the use of such material is not required. I agree with the noble Baroness, Lady Healy, that that should be resorted to only when absolutely necessary; and that situation has not arisen.
Perhaps I may say a little more about the HS2 case, which, because the judgment was delivered this year, was not dealt with at all in the report. Your Lordships may like to know that one of the questions raised in that application for judicial review was whether the Government’s decision to obtain development consent for HS2 by means of the hybrid Bill procedure in Parliament was compatible with the requirements for a strategic environmental assessment under the EU’s SEA directive. The Supreme Court asked itself whether it was appropriate for it to consider that question at all, as it would require an assessment of the effectiveness of the parliamentary procedure. Lord Reed, who delivered the leading judgment on this point, said that he was conscious of the importance of refraining from trespassing upon the province of Parliament, or of even suggesting that he should do so. The president, the noble and learned Lord, Lord Neuberger, too, was careful to say that he recognised the importance of the principle. As it happened, the court was able, in the performance of its ordinary duty of construing the legislation, to hold that it could and should decide the compatibility issue itself. It rejected the invitation that it should evaluate the quality of the consideration that Parliament was likely to give to the relevant issues under the procedure selected by the Government. That was because the directive, properly construed, did not require that particular evaluation to be carried out. I dwell on the point because I suggest that one sees in that very recent decision the system working as it should, as well as the respect due to Parliament and its procedures being properly accorded by the Supreme Court.
It is worth noting just a little more about what was said in the case of Wilson v First County Trust, in addition to the passage from the speech of the noble and learned Lord, Lord Nicholls of Birkenhead, quoted in paragraph 126 of the report. That case was decided in the early days of the development of our jurisprudence on the effect of the Human Rights Act 1998, and what was said in that case has never since been questioned. One of the questions was whether it was proper for a court to be referred to proceedings in Parliament when it had to decide a question of proportionality in relation to the convention rights. I take the liberty of referring to what I said, which was expressly agreed to by Lord Hobhouse of Woodborough. In my own speech, I said that a cautious approach was needed and that particular care must be taken not to stray beyond the search for material that will simply inform the court into the forbidden territory of questioning the proceedings in Parliament. As I put it:
“It is for Parliament alone to decide what reasons, if any, need to be given for the legislation that it enacts. The quality or sufficiency of reasons given by the promoter of the legislation is a matter for Parliament to determine, not the court”.
On the other hand, as I pointed out, proceedings in Parliament are replete with information from a whole variety of sources which are on public record, as the noble Lord, Lord Davies, said. The court would be unduly inhibited if it were to be disabled from obtaining and using this information for the strictly limited purpose of considering whether the legislation was compatible with the convention rights—that being a task which the Human Rights Act itself has given to the judges. The European court in Strasbourg might wish to do that, so our courts should feel able to do so when performing the task entrusted to them by Parliament, observing the boundary set by the case of Wilson.
I agree that questioning the conclusions of a Select Committee—that is, evaluating the quality of its conclusions or suggesting that they were in error—would be wrong. However, that is not what the passages in Wilson were contemplating. I suggest that, carefully read, that decision strikes the balance in the right place. I should add also for the avoidance of any doubt that the fact that the courts do not pay any attention to ministerial statements that the provisions of a Bill that they present to Parliament are compatible with the convention rights does not involve any infringement of parliamentary privilege. These statements in themselves are not questioned by the courts, nor is the extent to which, if at all, they are relied on in either House. They are simply disregarded as irrelevant to the task that the courts have to perform. The fact is that Ministers and the courts are performing entirely different functions, and it would be constitutionally improper for the courts to be told by the Executive what their decision on the compatibility issue should be.
For all those reasons, I welcome the Joint Committee’s conclusion that the problem is not sufficiently acute to require legislation. Of course, it is right that the freedom of speech in Parliament should be protected from judicial questioning, but I think that the risk of that happening is very slight. I think, too, that I can assure the noble Lord the Leader of the House that the justices in the Supreme Court are as anxious as anyone in Parliament that that should not happen. As for the Motion in the name of the Leader of the House, I endorse entirely what the noble Lord, Lord Brabazon, said about it.
Lord Hunt of Kings Heath (Lab)
My Lords, like other noble Lords, I am very grateful to the noble Lord, Lord Brabazon of Tara, for opening the debate and for his chairmanship of the Select Committee. Indeed, as the Select Committee says, parliamentary privilege is one of the special characteristics of our democracy that is crucial but often misunderstood. The Select Committee has gone a very long way towards clearing up many of those misunderstandings and has provided much-needed clarity about the freedoms and protections that each House needs to function effectively. As such, they are an essential bulwark of our democracy—hence the importance of the work of the Select Committee, which I think has been endorsed by every noble Lord who has spoken in this debate.
As the noble Lord said, parliamentary privilege very much came to public attention in the wake of the 2009 expenses scandal, when three former MPs and one Member of your Lordships’ House accused of false accounting over their expenses sought to argue that they ought not to be prosecuted because of parliamentary privilege. As we have heard, the matter was dealt with by the courts in, I suggest, a most sensible way.
I agree that, in the light of that judgment, the Joint Committee’s central conclusion is that,
“the case has not been made for a comprehensive codification of parliamentary privilege”.
I also agree that legislation should be considered only when it is shown to be absolutely necessary. I agree with the Joint Committee’s rejection of the Government’s original proposals in relation to Article 9, and I am glad that the committee has taken such a firm view on that.
My noble friend Lady Healy and the noble Lord, Lord Bew, spoke eloquently of the challenges of media reporting in the current age and of the need for those who are reporting to respond at speed. The noble Lord, Lord Brabazon, referred to the Bill proposed by the noble Lord, Lord Lester, relating to media reporting in Parliament. Given that the noble Lord, Lord Lester, has not been able to make progress in the current Session and given all the problems that we know Private Member’s Bills have in getting through the other place, as the noble Lord, Lord Hill, the Leader of the House, will be responding, I take the opportunity to ask whether the Government will offer time for that Bill to go through the other place.
My noble friend Lord Davies made the very important point that we are being sent away for what one might call obscenely long recess dates at Easter; there are rumours about Whitsun; and we are not coming back from the Summer recess until mid-October. I do not believe that the Government cannot find parliamentary time to enable that to happen. I would welcome some optimism from the Leader of the House either that the Bill of the noble Lord, Lord Lester, if introduced in the other place by an honourable Member, will be given all speed or that the Government themselves will bring forward some legislation.
On Select Committees, I was very grateful to the noble Lord, Lord Norton, for his interesting insight in relation to penal powers and the need for flexibility, which I strongly support. I agree with his conclusion on jury service, although I was struck by one of his comments. I think he said that officers were more valuable than Members to the Houses of Parliament. While we certainly have superb officers, I think that, as Members, we have some role to play.
Lord Norton of Louth
I said they were more valuable than any individual Member.
Lord Hunt of Kings Heath
I was trying to work out the difference between the collective of officers versus the value of individual Members. It reminded me of the “Yes Minister” episode about the National Health Service that concluded that the NHS would run enormously smoothly if patients were not to come through hospitals.
The substantive point on which the noble and learned Lord, Lord Brown, was very persuasive was the question of whether Members should be exempt from jury service. On this matter, the committee report recommends, in paragraph 253, that,
“the Government should bring forward legislation providing that Members of either House should be among those who have a right to be excused from jury service”.
I very much agree with the noble and learned Lord. Many of the previous exemptions have gone and I am sure it is right that all parts of society should expect to be called for jury service, including Members of your Lordships’ House and the other place. On this matter, I hope that we will not move to accept the committee’s report.
With regard to the Motion of the Leader of the House, it seems to be an eminently sensible approach, although I note that in paragraphs 37 to 39 of the committee report, some doubt is placed on the benefit of resolutions passed by both Houses. I ask the Leader: what is the effect of such a resolution? Is it simply a plea to individual departments to make sure, in drafting legislation, that they abide by the resolution, or does it have rather more strength? If the noble Lord could provide some reassurance on that, it would be helpful.
Overall, it seems to me that we are coming to a very satisfactory conclusion. The Select Committee’s report is very welcome. It has been very well written and argued. Apart from one or two areas about which I have doubts, I have no doubt that it has done a great service to your Lordships’ House, to parliamentary privilege and to the way that Parliament works in general.
The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford) (Con)
My Lords, although the subject matter of some of this debate may seem arcane—it certainly involved the application of a number of wet towels to my head to grapple with some of these issues—this afternoon’s debate has reminded all of us how important parliamentary privilege is and that it is a vital part of the underpinning of our whole system of parliamentary democracy. Like the noble Lord, Lord Hunt of Kings Heath, I want to say at the outset how grateful the Government are to the Joint Committee for its report and for its contribution to a debate that has lasted for many years and, I dare say, will continue for many more years, providing entertainment for law students in the future.
The Joint Committee’s report put its finger on all the key issues, came up with a number of helpful recommendations and succeeded in doing something which some noble Lords may think is even more noteworthy: it has got the Government to think again. So I would like to record my thanks to all noble Lords who were members of the committee, in particular to my noble friend Lord Brabazon of Tara for his expert chairmanship and for setting out the issues so clearly today. Indeed, the whole debate has served as a reminder, if one were needed, of the knowledge and experience of the law and of Parliament which is to be found in your Lordships’ House.
In some ways, parliamentary privilege is itself a slightly unfortunate term: as my noble friend Lord Brabazon said, it carries a suggestion of elitism, a hint of exclusivity and risks reinforcing the impression—false, I believe—of politicians who look out only for themselves. But in opening this debate, my noble friend was also absolutely right that the concept of parliamentary privilege helps to protect the rights of everyone in the country. It underpins the sovereignty of the people’s representatives in Parliament, it provides those representatives with an absolute and untrammelled right to say what they believe, and it allows anybody to speak to Parliament without fear of legal consequences.
As we have already heard, these “privileges” do not mean that individual MPs and Peers are above the law, as we all saw in 2010, when a group of parliamentarians tried to assert privilege to avoid prosecution for offences relating to their parliamentary expenses. The Supreme Court’s judgment in that case, R v Chaytor, confirmed that parliamentary privilege did not protect parliamentarians from prosecution for ordinary crimes under our criminal law, and quite right too. That point was set out very clearly by the noble and learned Lord, Lord Hope of Craighead.
Even so, the Government felt that it was right that we should take a fresh look at all aspects of privilege to see whether there was a case for change. As noble Lords know, that led in April 2012 to the publication of the Green Paper which the Joint Committee has so helpfully scrutinised. I am sure that everyone in the House would agree that, wherever possible, matters such as privilege should be approached in a consensual and cross-party way, so I am very pleased that the Government have been able to agree with most of the committee’s findings, most notably its overarching conclusion that a comprehensive codification of parliamentary privilege is not desirable. I listened with particular care to what the noble and learned Lord, Lord Brown of Eaton-under-Heywood, had to say in that regard. My noble friend Lord Norton of Louth stressed the importance of flexibility, which was a theme picked up by a number of noble Lords.
The Government believe that legislation should be brought forward only where really necessary—I think the noble Lord, Lord Hunt of Kings Heath, said that and I may hold him to it in a different context in other areas of political debate. For example, if the Chaytor case had gone the other way we may have considered it, but we agree with the conclusions of the committee that the potential consequences of comprehensive codification are impossible to predict. As the committee itself recognised, that conclusion does not, however, prevent Parliament taking steps to clarify the application of privilege where necessary. I will not try the patience of your Lordships’ House by going through the Government’s response to the report point by point, but I will touch on the most important areas, all of which have been raised by noble Lords this afternoon.
First, the Green Paper included a draft clause which would have enabled the protection of Article 9 of the Bill of Rights to be disapplied in the prosecution of criminal offences. The intention of that clause would have been to ensure that nobody accused of a serious criminal offence could use parliamentary privilege to avoid prosecution where the alleged offence was not related to the key elements of freedom of speech. The committee opposed the provision on the grounds that it would have a damaging effect on freedom of speech in Parliament. In addition to this principled objection, which was underlined by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, it is clear from looking at the draft clause that the Government came up with, and the lengthy schedule setting out those criminal offences which would not be covered by the terms of the clause, that there would also be daunting practical difficulties in implementing such a proposal. The Government will not therefore be taking it forward, and I am grateful for what my noble friend Lord Norton of Louth said in that regard.
The Joint Committee also rejected a draft clause which would explicitly have applied parliamentary privilege to the House of Commons Committee on Standards, which has lay members, which was a matter first raised by the noble Lord, Lord Bew. The Government agree with the committee that such a provision could have cast doubt on the privileged status of other committees, particularly our own Committee for Privileges and Conduct, which also has lay members. It also seems undesirable in principle to attempt to apply parliamentary privilege to a specific Select Committee by legislation.
The Government also share the committee’s serious reservations, which we have heard this afternoon, about Section 13 of the Defamation Act 1996, which allows individuals to waive the protection of parliamentary privilege in defamation cases. This breaches the principle that privilege belongs to the whole House rather than one person. That was a point made very forcefully by the noble Lord, Lord Bew. Accordingly, the Government support the repeal of Section 13. I understand that my noble friend Lord Lester of Herne Hill, who cannot be here today, proposes to introduce a Private Member’s Bill to deal solely with this small but important change. The Government are in principle supportive of this measure to make that clear, and we look forward to seeing if it can make progress.
I should say a few words about the applicability of legislation to Parliament—in other words, the extent to which the activities of Parliament itself are bound by the laws it has passed. Over the years there has been a measure of uncertainty and disagreement on this point and while the Government do not agree with the committee that it is necessary to legislate in this area, we do agree that it is important for parliamentary counsel and the authorities of the two Houses to discuss whether relevant provisions in Bills, case by case, should apply to the activities of the two Houses. That is why the Government’s response agreed to ensure the correct application of the Treasury Solicitor’s 2002 guidance which asked departments,
“to consult the respective House authorities … on whether any proposed legislation that is to apply to the Crown, or its servants, should also apply to the two Houses and to instruct the draftsman accordingly”.
The Government also welcomed the proposal for a Motion which sets out the importance of Bills making express provision where necessary. Following discussions with my noble friend Lord Brabazon of Tara, I tabled the Motion which noble Lords have seen in my name on the Order Paper. I believe, as a number of noble Lords have agreed, that it offers a practical way forward. The key for it to work will be good communication on a case-by-case basis and I can certainly commit the Government to engaging with the parliamentary authorities in a completely constructive spirit on that. Assuming that the Motion is agreed to, my understanding is that the Leader of the House of Commons will move something similar down the other end.
Let me say something about the issue of reporting and repetition of parliamentary proceedings, about which a number of points have been made and to which my noble friend Lord Brabazon drew particular attention. The noble Baroness, Lady Healy of Primrose Hill, also devoted many of her comments to this. As we have heard, the committee concluded that the uncertainty around the Parliamentary Papers Act 1840,
“significantly inhibits press reporting of the work of Parliament”,
and called for its wholesale replacement by modern statutory provisions. As we said in our response, the Government agree with the committee that the 1840 Act lacks clarity and does not fit well with modern modes of communication, a point developed by the noble Baroness, Lady Healy. We also agree that the burden of proof where reporting is alleged to be malicious should be reversed such that it falls on the claimant rather than on the defendant. While we are not as convinced as the committee that the current legal framework significantly inhibits press reporting of Parliament, we understand the need to modernise the law. We will certainly continue to consider whether we can find, and how we can find, an appropriate legislative vehicle to achieve this important aim.
Lord Davies of Stamford
I am most grateful to the Leader of the House for giving way. Would not a suitable vehicle be the reintroduction of a Private Member’s Bill by the noble Lord, Lord Lester, or another private Member, of the kind that has just been referred to?
Lord Hill of Oareford
Obviously that would be a matter for my noble friend Lord Lester. I believe that the focus of the Private Member’s Bill that my noble friend is keen to bring forward is on the repeal of Section 13 of the Defamation Act. I think that that is his priority and that he is keen to have a clear and focused approach on that. But obviously it would be open to other noble Lords to pursue this issue through that route.
The committee also looked at the sessional orders which have traditionally called on the Commissioner of the Metropolitan Police to prevent the obstruction of Members in the streets leading to the two Houses. The Government do not intend to push for the revival of the sessional order in the other place but I thought that I would take the opportunity to put on the record that, so far as this House is concerned, we will continue to support the passing of the sessional order in the House of Lords at the beginning of each Session. I also remind the House that in looking at that issue, the committee referred with approval in the report to the “appropriate and proportionate” legislative provisions governing amplified protests in Parliament Square. What the committee did not say was that the situation was, at that time, much less clear in the areas around your Lordships’ House. Since then, an amendment to the Anti-social Behaviour, Crime and Policing Bill—now an Act—passed in your Lordships’ House has applied the Parliament Square system to this end of the Parliamentary Estate. I very much welcome that because I was keen that it should be done. I am sure also that all members of the Joint Committee will welcome it.
I am grateful for the points raised by my noble friend Lord Norton of Louth and by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, about jury service, and I agree with the noble Lord, Lord Hunt of Kings Heath, that we should not re-establish the exemption that was removed. On the interesting debate about the penal powers of Select Committees, on which both the noble Lord, Lord Davies of Stamford, and my noble friend Lord Norton of Louth concentrated, I think we all agree with the committee’s recommendation that the existing powers should be clarified. That is the right way forward rather than the legislative route. It is for the other place to lead on this, which I think was the recommendation of the committee. My understanding is that it is being taken forward down the other end, but I agree that we need to keep an alert mind on these issues.
Parliamentary privilege is a precious inheritance which we must safeguard, but that does not mean that it should be immune to all change. It needs to reflect the world as it is today, a point that was forcefully made by the noble Baroness, Lady Healy of Primrose Hill. That is why I am so grateful to my noble friend Lord Brabazon and his colleagues in both Houses for their important report. It has enabled us to look at things anew and it upholds the key principles on which parliamentary privilege and parliamentary democracy are built.
Lord Brabazon of Tara
My Lords, I am grateful to my noble friend the Leader of the House for his positive response, and to everyone who has spoken in what I think has been an interesting and informative debate. I hope that this report does not suffer the same fate as the 1999 report, about which I think absolutely nothing has been done. We have at least taken a step in the right direction today because one of our recommendations is being acted upon right now. With that, I commend the report.
Lord Hill of Oareford
That, in the light of the recommendations contained in paragraphs 226 and 227 of the report of the Joint Committee on Parliamentary Privilege (HL Paper 30), this House resolves that legislation creating individual rights which could impinge on the activities of the House should in future contain express provision to this effect.