Parliament: Freedom of Speech and the Rule of Law

Lord McFall of Alcluith Excerpts

Thursday 23rd May 2019 Lords Chamber

[The Senior Deputy Speaker (Lord McFall of Alcluith)]

My Lords, I thank the noble and learned Lord, Lord Brown, for initiating such an interesting debate and the Minister, the noble and learned Lord, Lord Keen of Elie, for agreeing to share the task of winding up today. It is unusual for two Members to respond to a debate—but this is an unusual subject area, where both the Government and the House have responsibility. As chairman of the Procedure Committee, I will set out the deliberations of our recent meeting where this matter was discussed in response to a written request from the noble and learned Lord, Lord Brown. I invited the noble and learned Lord to give an oral representation to the committee, and he asked us to consider four options.

The first was that the Companion to the Standing Orders should stress the importance of Members complying with court orders and injunctions—final and interim—rather than deliberately disobeying them under parliamentary privilege. The second was that consideration should be given to extending the sub judice resolution to encompass all, or almost all, proceedings in the House. At present, Members are exempted from the resolution during legislative proceedings where a ministerial decision is in question, or where the Lord Speaker believes that the court case in question concerns,

“issues of national importance such as the economy, public order or the essential services”.

The third was that thought should be given to whether “egregious abuse of privilege” should in future become sanctionable in some way. The noble and learned Lord, Lord Brown, suggested that such behaviour might be deemed a contempt of the House, sanctionable by a requirement to apologise publicly and/or to pay a fine, or perhaps an explicit breach of the Code of Conduct. Finally, it was suggested that consideration should be given to whether the Lord Speaker might be empowered to require a Member who breaches, or is about to breach, the sub judice rule, and presumably any rule on injunctions, to desist.

In considering these options the committee was mindful that in 2011-12 the Joint Committee on Privacy and Injunctions was established to inquire into this issue in depth. That Joint Committee considered some of the suggestions now being made by the noble and learned Lord: namely, whether it would be desirable for the Houses to pass a new resolution on injunctions or to adapt the sub judice resolution. While the Joint Committee saw some advantages in this course of action, it also saw significant practical difficulties with enforcing it, particularly in the Lords. It concluded, in paragraph 231 of its report:

“If the revelation of injuncted information becomes more commonplace … we recommend that the Procedure Committees in each House should examine the proposals made to us for new restrictions with a view to implementing them”.


The comments of the noble Lord, Lord Lisvane, on proportionality come into focus here.

The revelation of injuncted information has not become more commonplace in this House since the Joint Committee reported. In fact, we are aware of only one such revelation in this House since then—the case of the noble Lord, Lord Hain, which has been discussed today. At our meeting earlier this month, the Procedure Committee noted that there is no evidence that this is a growing problem. Further, members of the committee expressed strong support for the Joint Committee’s conclusion that freedom of speech in Parliament is “a fundamental constitutional principle” and that:

“The threshold for restricting what members can say during parliamentary proceedings should be high”.


Like the Joint Committee, the Procedure Committee decided that that threshold had not yet been crossed.

Having said that, we are mindful of the need for Members to use their freedoms responsibly, as the Lord Speaker set out in his Written Statement a few days after the noble Lord, Lord Hain, named Sir Philip Green. To this end, the committee agreed with the first proposal of the noble and learned Lord, Lord Brown, that the Companion to the Standing Orders should include some new text exhorting Members to respect court orders and to use parliamentary privilege responsibly. The committee agreed to look at a revised text for the Companion at our next meeting.

The suggestion by the noble Lord, Lord Norton of Louth, echoed by the noble Lord, Lord Empey, that Members should be reminded of the importance of using parliamentary privilege as part of the new Member induction programme, is a good one. The committee will shortly be publishing a new edition of the short guide to procedure, which will be given to all Members, current and new, as part of the induction package, and this paragraph will be included in that.

I hope that today’s debate will help raise the profile of this issue among Members of the House. I hope that each of us will reflect on how we use our freedoms responsibly. I give a commitment to the House to convey the comments made by Members here to the next meeting of the Procedure Committee—so it will be on the agenda. I thank all noble Lords for their contributions, especially the noble and learned Lord, Lord Brown.