Bill of Rights

Helen Jones Excerpts

Thursday 17th March 2011 Westminster Hall

[Helen Jones (Warrington North) (Lab)]

It is a privilege to speak under your chairmanship, Mr Bone. This has been a very interesting debate. I congratulate the hon. Member for Birmingham, Yardley (John Hemming), the other hon. Members in charge of the debate and the Backbench Business Committee on bringing it about, because it raises fundamental issues about the role of Members of Parliament and about Parliament itself. As hon. Members rightly said, the rights and privileges of Parliament exist not to provide protection for MPs merely, but to protect the rights of their constituents. In that sense, articles 9 and 13 of the Bill of Rights are complementary. We all know, and the hon. Member for Birmingham, Yardley quoted clearly, article 9, which states that

“the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

Article 13 makes it clear that one purpose of holding frequent Parliaments is to be able to redress grievances. In other words, Parliament is here not just to make laws, but to address the grievances of Members’ constituents—the two are part of the same thing.

[Mr Cash]

I do not want to take the hon. Lady into a great dialogue on this; I will simply ask her a question. Is she as confident of what she has just quoted in the light of the judgment in the Jackson case, in which several members of the Supreme Court questioned the extent to which they had ultimate authority and said that parliamentary sovereignty was being qualified? They used those words, and many more besides.

[Helen Jones]

If the hon. Gentleman allows me to proceed a little, perhaps I can touch on the issues that he raises, but I want to keep my remarks to the subject of the debate.

One reason why becoming a Member of this House confers huge privileges on us all is that it enables us to act on behalf of our constituents. To be able to do that effectively, as several hon. Members have said, Members of Parliament must have access to information. A number of cases have been raised today, and many of us have had experience of hospitals, schools sometimes and councils trying to deny hon. Members the information that they request. In my experience, that is normally fairly easy to deal with, although the cases involving the courts are much more complex. I hope to be able to come to those in a moment.

Hon. Members know that they must use the protection granted by parliamentary privilege sparingly and not for their own advantage, but use it they must if it is necessary to right a wrong or to get justice for a constituent. Since I came into the House, I have seen a number of examples of hon. Members rightly taking up issues on behalf of their constituents and using parliamentary privilege to do so, because that is the only way to get something done.

If I may speak anecdotally, I have had experience of that myself. Not long after I came into Parliament, I felt it necessary to initiate an Adjournment debate about a charity that I felt was not operating properly. I came under huge pressure from the people running that organisation, but I felt that it was necessary to do that and to use parliamentary privilege to do it, because I believed that the people who were supposed to be being looked after by that organisation, many of whom suffered severe learning difficulties and did not have friends or family to speak up on their behalf, were being done out of their rights. Many other hon. Members will have come across cases such as that. At some point or other, we have all known of constituents who have been told that they cannot or should not approach their Member of Parliament. I say gently to the hon. Member for Birmingham, Yardley that I have known councils and public bodies tell people that, and he must have known of it, too. I have also known Liberal Democrat councillors tell my constituents that they should not come to see me.

A case can probably be made for educating people, but we certainly need a clearer definition. Indeed, the rights of Parliament need to be made clear to many who work for public bodies. In these circumstances, I normally find that a fairly stroppy letter from me—I can write very stroppy letters when I need to—usually puts the matter right. However, some of the cases that we have heard of today are much more serious.

We have to face up to the difficulties of interpreting article 9 that arise simply because of its age. Parliament has developed and changed since 1688. It would be strange if it had not. We now live in a multi-media age, which covers aspects of communication that were not known when the Bill of Rights was drafted.

Many Members would be surprised to learn the limits of parliamentary privilege. For that reason, a review of parliamentary privilege was undertaken by a Joint Committee in 1999. The Committee drew attention to the fact that although Members are not exposed to any civil or criminal liabilities in respect of what they say and do in the course of proceedings in Parliament, there is no comprehensive definition of what “proceedings in Parliament” covers. Equally, there is no proper definition of what constitutes a place “out of Parliament”. That needs to be tackled.

It is generally accepted that proceedings in Parliament are covered by the formal proceedings of the House and its Committees and any documentation directly associated with those proceedings, but there are grey areas around that, as the hon. Member for South Norfolk (Mr Bacon) noted about the documents that he had received. The Committee said that article 9 needs clarification. It clearly does, in light of Members’ experience and given what we have heard today.

[Mr Bacon]

Does the hon. Lady agree that in so far as article 9 needs to be clarified, it should be undertaken in such a way as to expand and strengthen the role of Members of Parliament rather than in any way inhibit or constrict them?

[Helen Jones]

The hon. Gentleman touches on an important point. I am a great defender of this House and of Members of all parties having the right to carry out their functions properly. Any review should strengthen the work of Members of Parliament, not undermine it.

The Committee believed that the general principle of article 9, which prohibits the examination in any court of parliamentary proceedings, should be confirmed. It also believed that three exceptions should be made to that general principle. That is something that the House will have to consider in due course.

First, the Committee believed that nothing in article 9 should prevent proceedings in Parliament being examined in court in so far as the examination related to the interpretation of an Act of Parliament or subordinate legislation. That would enshrine in statute the decision of the court in the case of Pepper v. Hart; that case made many Ministers much more careful about what they said in Committee and on the Floor of the House, because their words could be used to help the courts consider what purpose Parliament intended for an Act.

Secondly, the Committee suggested that nothing in article 9 should prevent parliamentary proceedings being used in court for the purpose of judicial review, or in other court proceedings where a Government decision was a material factor. That is not to question the decision itself; again, it is about interpreting the decision.

Thirdly, the Committee believed that courts should be able to examine parliamentary proceedings when there is no suggestion that anything forming a part of those proceedings is untrue or misleading, and—the “and” is very important—there is no question of legal liability.

I suspect that these recommendations, especially the last, will provoke hours of debate when we come to the privilege Bill, but other matters will probably need to be considered as well. The first is the status of Members’ correspondence, particularly that between Members and Ministers about constituency cases or proceedings before Parliament. At the moment, that is not covered by privilege. As we do more and more of our work through correspondence—not everything is done on the Floor of the House, as it was in 1688—the House will need to consider carefully how to deal with it.

The second matter is correspondence with Members of Parliament, a subject raised by the hon. Member for South Norfolk. It is clearly difficult to get the drafting right in such cases. Taking the two extremes, one wants to protect genuine whistleblowing and disclosure without protecting those who write to accuse their neighbours of all sorts of crimes but who have no evidence.

The third matter that we shall have to deal with is defining proceedings in Parliament that are placed “out of Parliament”, and the replacement of section 13 of the Defamation Act 1996. The Joint Committee recommended a new procedure, allowing the House to waive article 9 in appropriate circumstances. Again, that allows Members to defend themselves in defamation proceedings, and we have seen cases like that in past years.

There are serious matters to be considered. I know that the hon. Member for Birmingham, Yardley has already had a case referred to the Standards and Privileges Committee, in which a law firm was held to be in contempt of the House for telling him not to repeat something in the House. I confess that I do not understand how a firm of lawyers could ever draft a letter suggesting that; it is first-year law stuff. It seemed to take the firm an awfully long time to discover its error, but in the end it apologised unreservedly to the House.

The hon. Gentleman and others raised various important matters. One is that in order to redress grievances Members of Parliament need access to information. The hon. Gentleman was right to say that the family courts are opening up, and that information can be given to Members of Parliament with the agreement of the parties concerned, but it is often not recognised. Another problem, when minors are involved in proceedings, is the question of who is able to give consent on their behalf. There is also the question of bullying constituents, and Parliament needs to consider that very carefully. As I said earlier, such matters are often dealt with swiftly; but if they go beyond that, Parliament needs to consider carefully people’s right to consult their MP.

[John Hemming]

Does the hon. Lady agree that if Parliament were to show some willingness to act in one or two cases, it might result in a shift of culture?

[Helen Jones]

First, Parliament needs to define what it wants to do. The question of privilege is complex. Although I might disagree with the hon. Gentleman on numerous issues, I would defend absolutely the right of any of his constituents to consult him whenever they wished to do so, as I would for any other Member of this House.

Another matter of concern was raised today—the role of the courts and of court orders when the preamble to the order or the order itself prevents people from speaking to their Member of Parliament. That is a serious issue, which the House needs to consider in some detail. Like the hon. Member for South Norfolk, I have great concern about whether such an order can stand in law. None the less, I understand that in some cases, particularly family cases, the pressure is on people to agree to such a preamble.

The hon. Member for South Norfolk asked how information coming to MPs should be protected. Many of us remember the case of Clive Ponting, who was tried for giving out information about the sinking of the Belgrano. His defence was that he had given the information to a Member of Parliament.

[Mr Bacon]

I remember the case very well because I wrote a book about it. Unfortunately, I was not able to persuade a publisher to publish it, but that is another matter. When my papers are published, it will come out. Ponting’s defence was that he communicated the information to a person to whom it was, in the interests of the state, his duty to communicate it. That was the point; not that it was a Member of Parliament, although it was, of course, the marvellous Tam Dalyell to whom he communicated it.

[Helen Jones]

I had not quite finished my sentence, but the hon. Gentleman is right; Ponting said that it was in the public interest to communicate the information. Whether or not that defence was sound, the jury simply refused to convict him.

[Mr Cash]

This is, of course, related to the proposed parliamentary privilege Bill to which the hon. Lady has referred. The Duncan Sandys case turned on the question of proceedings in Parliament. It was clear that there was a total and deliberate breach of the Official Secrets Act and that that, in itself, was in the public interest because Whitehall, or the Defence Department at the time, was correctly alleged to have been misleading the House of Commons. There are cases, therefore, in which a breach of the criminal law and the Official Secrets Act can be justified on the grounds of parliamentary “privilege”. I mention that as a good example.

[Helen Jones]

The hon. Gentleman makes a point, but the public interest defence in all these cases is the one that is usually used.

I cannot comment on some of the individual cases that were raised today because I have no personal knowledge of them. None the less, they are serious matters that deserve to be addressed. We have all encountered people who do not want to answer MPs, or who just want to send a brush-off answer. In minor cases, I find that a nice letter from me saying that if they do not answer me, I will just table questions in Parliament and they will have to answer anyway sorts it out. However, we have heard about much more serious cases where there is a refusal to recognise the representative role of a Member of this House acting on behalf of a constituent. I will be interested to hear what the Deputy Leader of the House has to say about that.

Article 9 exists to facilitate article 13; the two are inextricably linked. There is no doubt that we need to clarify the scope of privilege and the rights of Members of this House. Concerns have already been expressed about the way in which some legislation might be eroding those privileges. Although the Government disagreed with this, the Clerk of the House raised concerns about the Fixed-term Parliaments Bill and how it could bring proceedings in Parliament into the ambit of the courts. Similar concerns were raised about the Parliamentary Standards Act 2009. Moreover, there were issues about putting lay members on the Committee on Standards and Privileges and whether they would be able to vote on matters relating to privilege.

As Parliament has expanded its role, a load of issues have emerged that need to be clarified. We look forward to the publication of the draft parliamentary privilege Bill. I hope that the House will be given sufficient time to consider the matter seriously. We have to get it right not just for ourselves but for future Members of this House. It is not a party political issue but about getting the workings of the House right and about the privileges that need to be accorded to hon. Members to allow them to do their job.

I hope, too, that when the Bill finally comes before the House, we get sufficient time to examine it and, if necessary, to amend it. If we do not give proper consideration to this matter and ensure that the drafting is right and that Parliament works properly on behalf of the people we represent, we will be failing not ourselves but our constituents, and that is the important point that has been raised in this debate. I look forward to a proper examination of that draft Bill and to hearing the Deputy Leader of the House’s response.

[The Parliamentary Secretary, Office of the Leader of the House of Commons (Mr David Heath)]

I am pleased to see you in the Chair this afternoon, Mr Bone. Let me start by congratulating my hon. Friends the Members for Birmingham, Yardley (John Hemming) and for South Norfolk (Mr Bacon) on securing this debate. This is the second time in recent weeks that I have participated in a Westminster Hall debate that was initiated by the Backbench Business Committee. I am also grateful to the hon. Member for Warrington North (Helen Jones) for her comments, most of which I entirely agreed with. As she said, this is not a party political issue; it is a matter of Parliament standing up for the privileges of our constituents, who are so important to our process.

The debate has focused largely on the right of constituents and others to approach their own MP to share information with them lawfully, without fear of reprisals, and the right of hon. Members, having received that information, to raise any matter in the House, without fear of legal action. It is those two issues that I wish to address this afternoon. References have been made to specific cases during the course of the debate. Like the hon. Member for Warrington North, I do not propose to comment on them today, as it would not be proper to do so in a general debate of this kind. In particular, I am mindful of the risk of contravening the House’s resolution relating to matters sub judice, and I know that hon. Members will understand why I will exercise extreme caution in everything that I have to say about the relationship between this House and the courts.

Article 9 of the Bill of Rights applies only to proceedings in Parliament, and its protection is absolute. The meaning of “proceedings” in this context is open to interpretation, but the House has never sought to assert that it should apply to dealings between Members and their constituents or other members of the public. My hon. Friend the Member for Birmingham, Yardley asserts that it should and I am simply stating the fact that it never has. However, the courts have regarded the communication of information to a Member of Parliament by a constituent as enjoying qualified privilege at law. Similarly, a Member who passes on a constituent’s concerns in good faith to the proper authority, such as a Minister, will not be protected by parliamentary privilege, but is likely to be protected by qualified privilege. Qualified privilege provides protection in certain situations where a person, acting in good faith and without any improper motive, makes a statement about another person, which is in fact untrue and defamatory. According to the case of Adam v. Ward in 1917, qualified privilege arises in situations where

“the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it.”

That point was clearly made during the debate. There are other cases, such as Rivlin v. Bilainkin to which my hon. Friend the Member for Birmingham, Yardley referred, where the courts held that it was not lawful for a person to pass on information if they were not seeking to bring to the attention of a Member of Parliament something which was his duty to pass on to another authority, but was simply making a point. In that case, a woman was making a point about her former husband, and it was held that that was not proper use of the facility and did not benefit from the qualified privilege that would otherwise apply.

The issue of passing on correspondence to a Minister is important and it was referred to by the hon. Member for Warrington North. As I have said, at the moment that does not have absolute privilege—parliamentary privilege—but it has qualified privilege. However, there is the very important case of Beach. In that case, an MP passed on a constituent’s letter that complained about a local firm of solicitors to two third parties, the Law Society and the Lord Chancellor, and the firm of solicitors took action for defamation against the MP. The court held in that case:

“1. MPs have an interest in receiving correspondence from constituents bringing matters of concern to their attention;

2. MPs have a consequential interest or duty in “passing the complaint on to the proper quarter”;

3. The Law Society and the Lord Chancellor both had an interest in receiving complaints about the conduct of solicitors;

4. Consequently, a qualified privilege was made out in this case which acted as a bar to an action for defamation”.

That is a very clear illustration of where qualified privilege assists an MP in the exercise of their proper duties and in the sort of action that we would expect any hon. Member of this House to take on behalf of their constituents.

[Helen Jones]

The Deputy Leader of the House is quite right about the case that he has just quoted. However, does he think that it is now time to consider whether an MP who is carrying out their proper duties should be subjected to a case in court and have to defend it with qualified privilege, or should we consider enshrining privilege in statute?

[Mr Heath]

I am certainly open to the suggestion that we should consider that issue as part of the privilege Bill that we intend to introduce. I will discuss that Bill in a little while.

--- Later in debate ---

[Mr Heath]

I understand the concern about what is normally described as judicial activism, and about the judiciary perhaps wishing to extend its role beyond what has been the traditional separation between its role and that of the House. We have to be extremely wary about that. Nevertheless, I maintain that it is not and never has been the role of Members of Parliament to decide whether officers of the court are behaving properly in the exercise of their duties. Our role is to create the statutory environment in which they work, and that is a very different matter.

[Helen Jones]

It is a difficult area, but does the Deputy Leader of the House agree that while we would not wish to see Members of Parliament interfering in the judicial process—we have both probably had experience of telling constituents that we cannot do that—a constituent who feels that they have not received justice or due process ought to be free to raise that with a Member of Parliament? There are two different issues.

[Mr Heath]

The hon. Lady puts it very well. There is a distinction, and we are right to make it.

I share the concern of my hon. Friend the Member for Birmingham, Yardley about the growth of the super-injunction, and what he described as the hyper-injunction. I was concerned when the issue arose during the Trafigura case. I am also concerned that we have allowed a whole new jurisprudence to develop without any real consideration of where it will end, or the consequences for our judicial process.

Happily, the Master of the Rolls, who has a proper role in the matter, has recognised the public concern. He established a committee in April last year to examine the use of injunctions that bind the press, including super-injunctions. He brought together a committee of the judiciary, the legal profession and the press. I anticipate that it will report soon, and we in the House should have particular concern about what it says.

Such injunctions have an impact, potentially, on what we do in the House, and certainly on the interests of our constituents. Personally, I look forward to seeing whether the Master of the Rolls wishes to bring into effect any significant changes to how the courts interpret the whole role of super-injunctions, and what he has to say about the position that has been established whereby my hon. Friend, as a Member of Parliament, cannot know that his constituent is even involved in a case, let alone get involved in it, because his constituent is injuncted by a super-injunction to prevent him passing on that information. My hon. Friend’s concern is perfectly legitimate and I am glad he has had the opportunity to express it today.