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 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.