Parliament: Freedom of Speech and the Rule of Law

Lord Craig of Radley Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Craig of Radley (CB)]

My Lords, I congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on arranging this important and topical debate. While aware in general terms of the concept and protection provided by parliamentary privilege, I was grateful for the additional information in the helpful Library briefing note provided by Nicola Newson.

Rather than dwell on any specific instances of reliance on the privilege, I will add a couple of general points to this debate. I was struck by the explanation that parliamentary privilege is the privilege of each House as a whole, not just of an individual Member. In effect, all Members of a House—not just a spokesperson —are sheltered by privilege, even if they endorse or otherwise support the contribution of the spokesperson. They are sheltered even if they inadvertently say something deemed defamatory.

If all thus benefit, so too should they collectively be responsible for upholding the principles of comity. I further believe that Members of the other place have a greater need of privilege protection than Members here in your Lordships’ House. MPs face re-election to retain their place in Parliament; Members of this largely appointed House do not. This in turn seems to place a greater obligation on this House to abide very closely by the carefully structured rules of sub judice and the essential principles of comity.

Noble Lords should be careful never to use parliamentary privilege which might not be prayed in use in the other place. Although this House no longer includes the Appellate Committee, I like to feel that there remains a deep commitment to upholding the rule of law coursing through the veins of this House.

I fully endorse the description of the 1999 Joint Committee on Parliamentary Privilege that the legislature and the judiciary are, in their respective spheres, estates of the realm of—I stress this—equal status. As the Joint Committee on Privacy and Injunctions concluded in 2012, there should be a presumption that,

“court orders are respected in Parliament”.

Should a Member of either House decide not to comply, he or she should,

“demonstrate that it is in the public interest”.

But there is more than one “public interest” at stake here. Undoubtedly the upholding of the rule of law—not least injunctions—is a clear public interest. What seems to be missing is what else may be honourably brigaded together under the heading “public interest”.

I do not think it upholds the unique importance of the rule of law to claim, for example, that totally different, additional, even contrary “public interests” coexist in any equivalent way: say, some issue, or some persons, that have been the subject of a media onslaught of hearsay and innuendo and which must be further highlighted and enlarged upon by means of parliamentary privilege. That seems to besmirch the importance and value of this unique privilege. Public interest is widely defined in common law, but in relation to parliamentary privilege, should it not be seen as more for matters of national importance and not just some partisan or parochial interest, let alone a personal or private one?

I will make one final point. A truth, from time immemorial, is that one should not blame the messenger if the message is not to one’s liking. However, in these Brexit-charged days, this dictum seems to be more and more overlooked—regrettably only last week over the selection of the chair of Wilton Park, when the individual as the messenger, rather than her message, was traduced in a way that did no credit to your Lordships’ House.

I have long believed, and tried to practise, that by extolling the strength of the case that one espouses, rather than only seeking to rubbish that of the opposition, one may be more likely to succeed. To the outside observer, negative attacks on the opposition suggest, subliminally, that one’s own case is weak and lacks the support and commitment to it that one might expect one to have and to express. Reliance on parliamentary privilege gives protection for defaming a person or issue at stake. But it is also fair to ask, when observing on a use of this privilege: has it been about a matter of national and positive value rather than a vehicle for negativism and spite?

To make use of parliamentary privilege—such a unique, omnipotent privilege—requires the House of the user to seek to ensure that its use is never abused. Not to do so in this media-savvy world might ultimately even call into question the medieval provenance of this privilege itself.