Deregulation Bill

Thomas Docherty Excerpts

Wednesday 14th May 2014 Commons Chamber

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

I will not speak for long as I am aware that one of my former colleagues, a fellow survivor of the Joint Committee on Parliamentary Privilege, the hon. Member for Stone (Mr Cash), also wishes to contribute.

On behalf of Members across the House, I thank the Clerks for their assistance on the Committee, particularly Liam Laurence Smyth, the Clerk of the Journals, who so skilfully kept most members of the Committee in order. I felt quite intimidated as a member of that Committee because we had such august parliamentarians as the hon. Members for Stone and for Harwich and North Essex (Mr Jenkin), the right hon. and learned Member for North East Fife (Sir Menzies Campbell), my hon. Friend the Member for Stoke-on-Trent Central (Tristram Hunt)—now promoted to shadow Education Secretary—and of course yourself, Madam Deputy Speaker, the most able member of the Joint Committee, who ensured that we kept things right.

Amendment 4 stands in my name and those of the hon. Member for Stone and others, and—as you know, Madam Deputy Speaker, having served on the Committee—it is the second attempt by a Joint Committee to get this legislation removed from the statute book.

Briefly, back in the mid-1990s, Mr Neil Hamilton, then a Member of Parliament, was seeking to sue The Guardian for defamation over what turned out to be true allegations about his cash links with Mohamed Al-Fayed. As I am sure the whole House knows, under parliamentary privilege Members are not allowed to use parliamentary proceedings in a civil or criminal case. Mr Hamilton persuaded the then Conservative Government to introduce a clause that allowed a Member of Parliament to waive their privilege, so that they could use parliamentary proceedings as evidence in a defamation case when suing a newspaper. However, it was done in such a way that a newspaper could not also seek to have parliamentary privilege waived. That created an unfair playing field and, frankly, was done to help Mr Hamilton, who it then turned out was a liar and a crook—that is probably why he is a member of UKIP these days. The Joint Committee in 1999 and again last year recommended that the measure be taken out of statute because it was unfair on newspapers and an abuse of privilege.

Obviously, the amendment is supported by the Opposition, and my hon. Friend the hon. Member for Wallasey (Ms Eagle) made clear our support last Thursday during the debate on parliamentary privilege. I welcome the fact that the names of the Solicitor-General and the Deputy Leader of the House now appear next to the amendment. I assume that they speak for both parts of the coalition and that the Government will be addressing the issue. To conclude, this is about silly legislation that should never have been introduced, and I welcome the fact that the Government are taking the Joint Committee’s recommendation on board.

[Mr William Cash (Stone) (Con)]

I am most grateful to you, Madam Deputy Speaker, for your service on the Joint Committee on Parliamentary Privilege along with me and the hon. Member for Dunfermline and West Fife (Thomas Docherty), not to mention the litany of others—the hon. Gentleman has already mentioned them, so I do not need to. Amendment 4 is necessary, and I will refer to articles 163 to 170 of the Committee’s report, which include our recommendations for the repeal of section 13 of the Defamation Act 1996, just to get that on the record and make it easier for people to follow what is being said—we do not have much time to go into all the ins and outs.

The hon. Gentleman has explained the background to this issue, but I will add one or two further points. As my hon. and learned Friend the Solicitor-General stated, the proposal was endorsed by the 1999 Joint Committee, and most recently by the 2013 Joint Committee, in your presence, Madam Deputy Speaker. The 1999 Joint Committee stated that,

“the enactment of section 13, seeking to remedy a perceived injustice, had created indefensible anomalies of its own which should not be allowed to continue”.

That is why it recommended that section 13 be repealed. The fundamental flaw identified by the 1999 Joint Committee was that,

“the section undermined the basis of privilege: freedom of speech was the privilege of the House as a whole and not of the individual Member in his or her own right, although an individual Member could assert and rely on it.”

The 1999 Committee noted that,

“the anomaly that section 13 was available only in defamation proceedings and not in any other form of civil action”

or criminal action. The Committee pointed out that,

“since the exercise of section 13 is a matter of individual choice, where two people are involved in the same action, one may choose to waive privilege and another may not.”

The 1999 Committee recommend that,

“the mischief sought to be remedied by section 13 of the Defamation Act 1996 should be cured by a different means: the replacement of section 13 with a short statutory provision empowering each House to waive Article 9 for the purpose of any court proceedings, whether relating to defamation or to any other matter, where the words spoken or the acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the acts to any legal liability.”

That approach was supported by Lord Lester of Herne Hill, and by Dr Adam Tucker and Geoffrey Lock, a former head of the research division in the House of Commons Library.

The Newspaper Society opposed any discretionary power to waive privilege, the use of which would be unpredictable and retrospective. It argued that,

“the power of waiver could create a chilling effect, by the mere threat or possibility of its use, which would be detrimental to openness of debate and press reporting of proceedings in Parliament.”

In its response to the Government consultation, the legislative council of Western Australia argued that,

“it was preferable for privilege not to be waived for any reason, in order to avoid the potential for the waiver being used for purely political purposes.”

Our Clerk of the House of Commons, the distinguished Sir Robert Rogers, who is sadly retiring, told us that his preference would be for the repeal of section 13, “without replacement”. The Media Lawyers Association took the same view.

In evidence, the Government told the 2013 Committee:

“There are clearly problems with Section 13 of the Defamation Act. It is at odds with the principle that freedom of speech is a privilege of the House, not just individual members and it can create an imbalance where one party to proceedings can choose to use the parliamentary record but the other cannot.”

At that time, the Government told us that,

“the Government is not aware of any instances in which anyone has used the power of waiver and as such it would not appear to be a pressing priority to repeal Section 13.”

On reflection, the Government have decided that repealing section 13 is a good idea. We are grateful to them for following our recommendation.

I ought to say that, initially, there was an attempt to include the proposal in the Criminal Justice and Courts Bill but, as a result of consultation, members of the Committee agreed that it was better to include it in the Deregulation Bill, which is why we are debating it. The Committee recommends the repeal of section 13 of the Defamation Act 1996. That is all I have to say for the time being.