Parliamentary Privilege

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 20th March 2014 Lords Chamber

[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.