Parliamentary Privilege

Lord Bew Excerpts

Thursday 20th March 2014 Lords Chamber

[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.