Parliamentary Privilege (Defamation) Bill [HL]

Lord Mackay of Clashfern Excerpts

Friday 27th June 2014 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, as the noble Lord, Lord Lester, said, I was Lord Chancellor when the amendment that this Private Member’s Bill seeks to delete was passed. The noble Lord has suggested that it was introduced for a particular case. There certainly was a case that was prominent at the time, but the Privy Council had already made a decision in a case from New Zealand called Prebble that said, in effect, that if a Member of Parliament—I think that at that time he was a Minister—is defamed by someone outside Parliament in respect of something that he has done in Parliament, then there is nothing that the Member can do about it. I felt that that was not particularly fair; on the other hand, it is for Members of Parliament to decide whether they wish to be defamed in Parliament without remedy.

The question was how this could be dealt with in a way that would be fair. The amendment that the Government prepared, and which the noble and learned Lord, Lord Hoffmann, moved, was intended to deal with that problem. It is not a problem only about a past case that the individual involved might have been wise not to pursue; the question is whether it is right that a Member of Parliament can be defamed by people in respect of something that he or she has said or done in Parliament and that, if that happens, he or she has no remedy.

The Bill would bring that about once more. There is no way that a Member of either House of Parliament can do anything if he or she is defamed in respect of what he or she has said or done in Parliament. As far as I am concerned, the Government have decided to accept an amendment moved in the House of Commons to do exactly this. At this juncture, therefore, the Bill from the noble Lord, Lord Lester, seems on the whole not very necessary because the Government have taken this on themselves in their Deregulation Bill. Now that I no longer have responsibility for trying to look after Members of Parliament, I am not concerned; if they prefer not to have this protection, so be it. This Government are willing to accept that, so I shall simply point out that there is that problem but say no more about it. I do not propose to get involved on this point when the Government’s Bill comes along.

[Lord Williams of Elvel (Lab)]

My Lords, I am grateful to the noble Lord, Lord Lester, for introducing this Bill. I voted against the Hoffmann amendment on Third Reading in May 1996. I did so for two reasons. First, I was persuaded by the arguments used by the noble Lord, Lord Lester, and others that this was tampering with Article 9 of the Bill of Rights and that that should not be done by simply tacking an amendment onto some Bill or other going through this House but should be properly considered. I was less impressed by the conduct of the Government of the day on the procedure. The noble Lord, Lord Lester, has described how it all started, and the noble and learned Lord, Lord Mackay of Clashfern, has confirmed that the noble and learned Lord, Lord Hoffmann, was put up to this by the Government. To have a serving Law Lord, even in those days, putting forward an amendment of extreme constitutional importance seemed slightly exaggerated.

[Lord Mackay of Clashfern]

I did not say that he was put up. The idea of putting the noble and learned Lord, Lord Hoffmann, up to anything is quite remote from my idea. It struck me that it was a constitutional matter. It was a matter on which the Privy Council, of which he was a member, had made a decision, and in those days it was perfectly reasonable for a Law Lord to move amendments to legislation. I asked him whether he would be willing to consider doing that, and after some time, he decided he would. That is the answer. If I was wrong in asking him, I am extremely sorry, but I do not think I was. It was perfectly reasonable to ask him. I could not do anything more than ask him, and it was for him to decide whether he wanted to do it. He decided to do it, and I well remember the circumstances in which he did it.

[Lord Williams of Elvel]

The noble and learned Lord has accepted responsibility for the intervention by the noble and learned Lord, Lord Hoffmann. I am quite happy to accept that it was up to the noble and learned Lord, Lord Hoffmann, whether he accepted the Government’s remit.

Nevertheless, to follow the narrative of the noble Lord, Lord Lester, at Second Reading, the noble and learned Lord, Lord Hoffmann, referred to this problem. I shall not go into the basis of the problem because that has been well aired and discussed. I want to consider further the procedure of this House in April and May 1996 and to see just how far this amendment should have been on the statute book in the first place. In Committee, the noble and learned Lord, Lord Hoffmann, moved his amendment. It was discussed and withdrawn. On Report, the noble and learned Lord, Lord Hoffmann, was not in his place to move his amendment. It was then taken over by Lord Finsberg, who moved the amendment, and then the noble and learned Lord, Lord Hoffmann, came in and spoke to it. It then became the Finsberg amendment. Lord Simon of Glaisdale had put down an amendment of a slightly different nature, but the Lord Chancellor of the day quite rightly pointed out that it had to be considered as an amendment to the Finsberg amendment. The problem was that the Public Bill Office had advised Lord Simon of Glaisdale that his amendment was out of order as it was not relevant to the Bill. Indeed, the Lord Chancellor of the day stood up and said that he had to advise the House that the amendment was not relevant to the Bill. Lord Simon of Glaisdale then said that he had not realised that, but he was still going to move his amendment and have it discussed. The Lord Chancellor of the day then said that he was perfectly entitled to do that and that in that sense the advice of the Clerk of the Parliaments was academic.

The debate went on around the Simon amendment. Then Lord Simon of Glaisdale said that he could not divide on the amendment because it was out of order, so he withdrew it. The House then came to the Finsberg amendment, and at the end of the debate on that amendment there was a question of whether there should be a Division. I remember that Lady Seear said that the House was too thin for that. Nevertheless, Lord Finsberg said that he was going to push the amendment. He did so. Nobody went into the Division Lobbies. The House was vacant and, at this point, the then Lord Chancellor, the noble and learned Lord, Lord Mackay, got up and quite rightly said on the second question that the amendment was negatived.

The Companion tells us clearly that when an amendment is negatived, having been discussed and decided upon, it should not come back at Third Reading. Nevertheless, Viscount Cranborne got up after a few days and said that he had been advised that many noble Lords wished to have the matter ventilated again at Third Reading. How and why he had been so advised, because there had been endless discussions on the matter, I know not; if I look again at the noble and learned Lord, Lord Mackay of Clashfern, I may see a little twinkle in his eye. The Leader of the House was advised that he should get up and say, in spite of all that the Companion says, that we should have this again at Third Reading.

That was therefore done. At the end of Third Reading, we had a Division. By that time, the Hamiltonians—if I may refer to them as such—had got their act together, and it was passed. I do not believe that that is a proper and right way to introduce an amendment that may be tampering with Article 9 of the Bill of Rights.

I welcome the noble Lord’s Bill. We have to move on and find some way, if there is a mischief, of doing proper justice to those Members of the House of Commons or Members of this House who have a problem. However, that was not the way to do it, and I hope that we will never repeat that. Of course, what happened was that Mr Hamilton sued the Guardian, lost, and went to join UKIP.