Parliamentary Privilege (Defamation) Bill [HL]

Lord Lester of Herne Hill Excerpts

Friday 27th June 2014 Lords Chamber

Moved by

[Lord Lester of Herne Hill]

That the Bill be read a second time.

[Lord Lester of Herne Hill (LD)]

My Lords, Section 13 of the Defamation Act 1996 provides that:

“Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings”,

he or she may waive the protection of parliamentary privilege given by Article 9 of the Bill of Rights for the purpose of those proceedings. The purpose of my essentially one-clause Bill is simply to repeal Section 13 of the 1996 Act. I am very pleased that my noble and learned friend Lord Mackay of Clashfern has been able to remain in the Chamber because he will remember, as I do, what happened 14 years ago.

First, I should say what this Bill does not deal with. It does not deal at all with the merits of the Defamation Act, to which my noble friend Lord McNally made such a contribution as Minister. It does not deal with the passionate arguments about press regulations, Hacked Off or any of those matters. It is confined to a very important issue about parliamentary privilege in the context of defamation and nothing more.

If this Bill is read a second time, it may well not have to go any further because the Deregulation Bill that reached this House on Tuesday says in Clause 82—to be read with paragraph 40 in Part 8 of Schedule 20—exactly the same as my Bill. If the Deregulation Bill goes through this House, I will not take the House’s time seeking to push my Bill any further because it will be completely unnecessary.

A bit of background: on 7 May 1996, with my noble and learned friend Lord Mackay of Clashfern on the Woolsack, the noble and learned Lord, Lord Hoffmann, moved an amendment that was addressed to the Neil Hamilton problem. The problem of Neil Hamilton MP was that he sued the Guardian for defamation and a High Court judge decided that parliamentary privilege under Article 9 of the Bill of Rights of 1689 prevented him doing so since it involved questioning proceedings in Parliament outside Parliament. Hamilton did not appeal against that judgment—as I, if I had advised him, would have recommended. Instead, he lobbied for an amendment to be made to the Defamation Bill which had been introduced as a Private Member’s Bill by the noble and learned Lord, Lord Hoffmann.

There was then a strong and well attended debate in which the noble and learned Lord, Lord Hoffmann, made it clear that he was agnostic about his own amendment; he expressed the arguments in favour and against very fairly. Since he was at the time a sitting judge it was obviously a delicate matter. Nor did he reply to the debate. Again, that might have caused some difficulty. Instead, both he and my noble and learned friend Lord Mackay of Clashfern showed their attitude towards the Bill by not voting in the Division called on it. The Bill was carried in this House and the other place and has been on the statute book ever since.

Every commission that has looked at the matter has criticised Section 13 and recommended its repeal. The first example was in the heavyweight 1999 Joint Committee on Parliamentary Privilege chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, which strongly criticised Section 13. In my Private Member’s Bill in 2010, I sought to do what the Bill is intended to do today. The noble Lord, Lord McNally, indicated in debate on the Bill that the Government were thinking about other matters of reform of parliamentary privilege and, therefore, it was unlikely that they would want Section 13 removed at that stage. Indeed, in their draft Bill and actual Bill, they did not do so. The noble and learned Lord, Lord Hoffmann, said at Second Reading of my Bill:

“I am sure that the noble and learned Lord, Lord Mackay of Clashfern, who piloted that Bill through the House, will agree that Section 13 was hastily put together at the last minute, and that hasty reforms tend to cause trouble”.—[Official Report, 9/7/2010; col. 431.]

That was a fair observation of the position.

On Second Reading of the Defamation Bill, Mr Robert Buckland, Member of Parliament for South Swindon, again criticised the section and urged its removal. At that stage, the Government did not have a firm position. Then there was the report of the 2013 Joint Committee on Parliamentary Privilege. It, too, reported that Section 13 creates great damage, and the Government agreed in December 2013 that repealing Section 13 would be the wisest course.

In the debate on a Motion to take note of the committee’s report on 20 March 2013, the noble Lord, Lord Brabazon of Tara, the chairman of the committee, said that he would welcome the repeal of Section 13, the noble Lord, Lord Bew, said that the committee was disturbed by the failure to take action, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said much the same, and the noble Lord the Leader of the House, Lord Hill of Oareford, said that the Government adhered to the committee’s reservations about Section 13. He continued:

“I understand that my noble friend Lord Lester of Herne Hill … proposes to introduce a Private Member’s Bill to deal … 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”.—[Official Report, 20/3/13; col 344.]

In the other place, in the debate on the Deregulation Bill, Sir William Cash and other Members from both main parties joined together to say that the section should be got rid of. Thomas Docherty, MP for Dunfermline and West Fife, made a strong speech advocating reform.

Everybody, as far as I am aware, agrees that we should now undo what we did 14 years ago and remove that unconstitutional provision. In the original debate, it was condemned by jurists who are, sadly, no longer with us, such as Lord Simon of Glaisdale and Lord Renton, for constitutional reasons. I submit that it is undesirable for a Member of Parliament or Member of this House to be able to pick and choose on an individual basis whether or not to waive parliamentary privilege according to whether it suits them as claimants or defendants in individual proceedings. No other legislature in the world allows that, and this is a day on which one can at last begin to get rid of it. I beg to move.

--- Later in debate ---

[Lord Lester of Herne Hill]

Before the Minister sits down, I will make just two points. First, does he agree that one can never take anything for granted? In other words, we cannot know at this stage what the fate of Schedule 20 will be: therefore, this is a belt and braces approach. Secondly—I think I gave notice of this—can he clarify the Sewel amendment? My Bill says that it applies to the whole of the United Kingdom. The Explanatory Notes to the Deregulation Bill go into the Sewel amendment in various ways. Can he confirm that if the Deregulation Bill goes through in its present form, because this is about parliamentary privilege it will apply to Scotland and Northern Ireland as well as to England and Wales? It is not absolutely clear from the language that that is so; obviously it should be so, but I would be grateful if my noble friend could clarify that.

[Lord Wallace of Saltaire]

My Lords, on the first point, I entirely take the noble Lord’s belt and braces approach—nothing is certain in life apart from death and taxes, and some people are quite good at getting around taxes, too.

On page 146 of the Explanatory Notes, it states very clearly:

“This repeal forms part of the law of England and Wales and Scotland”,

and Northern Ireland, and,

“will come into force at the end of the period of 2 months beginning with the day on which the Bill becomes an Act”.

I hope that that provides the reassurance that the noble Lord looks for.

[Lord Lester of Herne Hill]

I am very grateful to the Minister and to all noble Lords and noble and learned Lords who have spoken. Listening to the noble Lord, Lord Williams of Elvel, I thought that what he was saying sounded like Hilary Mantel’s Bring Up the Bodies. It certainly reminded me of a great deal that I had forgotten about those events. It would not be conducive to an entirely harmonious situation were I to add to the noble Lord’s description as I could. The noble and learned Lord, Lord Mackay, said at the time that the Government were neutral about the amendment; those were his words. All I can say is that it was a strange form of neutrality, and seemed so to me at the time. I thought that it was inappropriate for a serving senior judge to have moved the amendment—and I have said so in the past. However, having said all that, I do not think that there is any point now in doing much about what happened then.

The noble Lord, Lord McNally, has criticised me for my lack of arithmetic, because that happened not 14 years but 18 years ago—and he said that I would be hopeless in the Treasury, which is probably true.

I thank everybody. I hope that the Bill will be read a second time.

Bill read a second time and committed to a Committee of the Whole House.