Sir Malcolm Jack KCB

William Cash Excerpts

Tuesday 12th July 2011 Commons Chamber

[Mr William Cash (Stone) (Con)]

I am extremely grateful, Mr Speaker, and note that the latest edition of “Erskine May”, the 24th, produced by Sir Malcolm Jack, is dedicated to you:

“To The Right Honourable John Bercow MP, Speaker of the House of Commons, and to the Lord Speaker, Speakers and Presiding Officers of the Commonwealth Parliaments, on whom fall the great responsibilities of guardianship of the parliamentary system.”

In the words of Maine’s “Ancient Law”, justice is to be found in the interstices of procedure, so it is a proper reflection on your role that Sir Malcolm makes that dedication in this excellent book, which I am glad to point out is somewhat shorter than previous editions. I have had occasion in the past to read out certain passages, for example in relation to the Maastricht treaty, to remind Members exactly of their responsibilities, but I do not need to do so on this auspicious occasion, nor would I wish to.

The remarks that have been made about Sir Malcolm, whom I have known since I first became involved in the processes of the House in 1967, are that he is a man of enormous integrity, a great scholar and a purveyor of the wisest advice, based on his knowledge of philosophy and history. He has been a remarkable Clerk and has been in our service. One thing I recall most specifically about his great career is the fact that he has been a persistent defender of the sovereignty of this House. The case mentioned by the right hon. Member for Blackburn (Mr Straw) in his fulsome tribute occurred in adversarial circumstances but demonstrates that those involved realised upon reflection that the advice Sir Malcolm gave was of such quality that it needed to be followed by a successful vote, which shows that we owe him a great debt. Questions of parliamentary privilege are not merely esoteric—the expression is greatly misunderstood—but relate, as others have said, to the defence of the rights of those whom we represent.

Furthermore, Back Benchers rely heavily on the advice of the Clerk, and I have had reason to be deeply grateful for the wise and impartial advice that Sir Malcolm has given periodically on great matters of parliamentary and constitutional importance. I have no doubt whatever that his successor, Mr Robert Rogers, will follow in his footsteps and that we will have the advantage of his wise advice as well.

In conclusion, I want to put on record my appreciation—shared no doubt by many other Back Benchers—for the tremendous work that Sir Malcolm has done. It is enormously important that we, as Back Benchers, have access to impartial and wise advice, particularly against the blandishments, manoeuvrings and machinations of the usual channels, the Whips. I have experienced more than my reasonable share of that in the 27 years for which I have had the honour of being in this place, but I have always had the most tremendous help from those like Sir Malcolm, and from him in particular.

Private Members’ Bills

William Cash Excerpts

Wednesday 30th March 2011 Commons Chamber

[Mr Bone]

My hon. Friend puts that argument much better than I could have done.

I want to go back to the list of Bills, to give the House a flavour of the matter and to show that it is not just three or four Members who are involved. My hon. Friend the Member for Shipley (Philip Davies), who has not been mentioned so far, has a non-controversial Equality and Diversity (Reform) Bill before the House on 21 October. The hon. Member for Nottingham East (Chris Leslie) has his Master’s Degrees (Minimum Standards) Bill, and my hon. Friend the Member for Worthing West (Sir Peter Bottomley) has his Waste Recycling (End Use Register) Bill. I could go on and on, but my point is that these Bills are important to the Members concerned, and they might well be important to their constituents and to the country. They should be heard, and we should not try to restrict debate on them.

[Mr William Cash (Stone) (Con)]

I hope that my hon. Friend will be good enough to note that if a Member introduces and prints a presentation Bill, that will demonstrate to the country what they intend to do. My Prevention of Terrorism Bill, for example, would unwind the application of the Human Rights Act 1998 and give us a proper terrorism law. Does he also appreciate that it is possible to attach signatures to such Bills by tabling an early-day motion? On one occasion, there were as many as 350 signatures attached in that way. That provides ample evidence of the support that a Bill has, even though the Government, by their continuous diminishing of the opportunities for the House to vote on matters that are important to the people at large—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order.

--- Later in debate ---

[Mr Hollobone]

I commend my hon. Friend for his efforts with his private Member’s Bill, and I am delighted that this coming Friday it is listed fourth on the Order Paper. I hope that by some magical intervention it might rise further up the Order Paper and we therefore get a chance to debate it, scrutinise it and vote on it so that it can make further progress in this place. I will be making a special effort to be here on Friday to hear my hon. Friend discourse on his Bill, and I know other hon. Friends will also make a special effort. I do not share the view that being here in the Chamber on a Friday is not an appropriate use of a Member of Parliament’s time. I do not know where the idea that every Friday has to be a constituency day came from. I think it is probably a new Labour invention. They tried to persuade Members of Parliament not to turn up to this place so we did not scrutinise the Government and instead let the Executive get away with quite a lot.

[Mr Cash]

A number of incredibly important private Members’ Bills have got through in the teeth of Government opposition, such as those on the abolition of capital punishment, the beginnings of the whole of the suffragette movement—that can be read about in the Library—the removal of obstacles preventing women’s enfranchisement, and at present, of course, the United Kingdom Parliamentary Sovereignty Bill. The important point is that these Bills were proceeded with in the teeth of Government opposition. That shows why we need to have this time.

[Mr Hollobone]

My hon. Friend is a far greater expert in parliamentary affairs than I will ever be, and I would willingly give all 13 days in a parliamentary Session to him so he can bring forward sensible legislation to improve the life of our nation. The point he makes is incredibly powerful.

I am a bear of little brain—I am not, I am afraid, an accountant or a lawyer—but I believe that there are 52 Fridays every year, while 13 Fridays are normally listed for private Members’ legislation. Members therefore have plenty of Fridays to devote to tending to the needs of their constituents. The idea that we have to sacrifice a large proportion of those 13 Fridays to enable more constituency days is misguided. The real reason for this is that the Executive do not want Members bringing forward ideas that the Government do not control, and which, according to them, might possibly get out of control. That is a big mistake.

Business of the House

William Cash Excerpts

Friday 18th March 2011 Commons Chamber

[Sir George Young]

I anticipate a written ministerial statement before the Easter recess outlining the Fridays on which the House will sit beyond those we have already identified.

[Mr William Cash (Stone) (Con)]

In the light of the earlier exchanges with the Prime Minister, when I asked about the arms embargo and the “notwithstanding” provision of the UN Security Council, will the Leader of the House be kind enough to refer the matter to the Attorney-General, so it can be addressed when the summary of the advice comes out?

[Mr Speaker]

Order. The hon. Member for Stone (Mr Cash) is an extremely experienced Member of the House, having entered in 1984. These substantive matters can, should and will be debated on Monday. This is a narrow business statement.

Bill of Rights

William Cash Excerpts

Thursday 17th March 2011 Westminster Hall

[Mr Bacon]

I absolutely agree. The role of an MP is to be an advocate of last resort. We all know that people come to us when they do not know where else to turn. Sometimes, sadly, they come to us too late, when there is nothing that we can do. Sometimes we see in our surgeries cases about which we think, “If only they had come a bit sooner, we might have been able to act.” I had that happen with a farmer in my constituency who had been made bankrupt by the time he came to see me, by which time it was too late to do anything for him. My hon. Friend is absolutely right. Because of the nature of an MP’s work, and the nature of the contact between a constituent who has a grievance and the MP, we should get extra protection.

I mentioned that I would speak about parliamentary privilege, or the right of MPs to speak up for and defend the British people. A quite different case involved an approach made to me by people who were concerned about what was happening at the Manchester College of Arts and Technology, or MANCAT, as it is better known. They approached me in my capacity as a member of the Public Accounts Committee and because of my known predilection for detestation, if one can have a predilection for detestation—my known dislike of the waste of public money might be a better way of putting it.

The case involved MANCAT, which has subsequently merged with City College Manchester, and basically concerned investigations into management practices which had been hampered because MANCAT officials were alleged to have destroyed auditable documents and had reached financial settlements with certain ex-members of staff on the condition that they signed confidentiality agreements—gagging clauses—in their settlement agreements, which were obviously paid for with public money.

The point at issue was that staff felt that they were under pressure from the college to falsify student attendance registers and other funding-related paperwork in order to enable MANCAT to claim extra money from the then Learning and Skills Council. Indeed, one witness was planning to explain the extent of the malpractice at an employment tribunal where she had been in the process of seeking redress for constructive dismissal, but she was offered a financial settlement with a gagging clause, so she could not easily take the matter further.

As a result of the privilege granted to Members of Parliament, I was able to draw those matters to public attention in two Adjournment debates over a period of months. The Guardian later wrote an article on 27 January 2009. It was headed, “College faces fraud claims” and sub-headed, “A Manchester institution stands accused of altering registers to claim extra funding, reports Andrew Mourant”. In my view, and I suspect in the view of most hon. Members, such matters should be brought to public attention. My point is that that would not have been possible without parliamentary privilege and the right of Members of Parliament to speak up for and to defend the British people. That is why I feel so strongly about the matter.

[Mr William Cash (Stone) (Con)]

I totally and absolutely endorse what my hon. Friend is saying. I was much involved in the Damian Green affair—

[Mr Peter Bone (in the Chair)]

Order. I am sorry to interrupt the hon. Member. I know that we sometimes refer to the Damian Green affair, but we should refer to the hon. Member for Ashford.

[Mr Cash]

I accept your point, Mr Bone, and will refer to the matter of my hon. Friend the Member for Ashford (Damian Green). Does the Minister worry that there are moves afoot to adjust, in the light of political correctness, the so-called role of the Member of Parliament and degrade it? Are they not missing the biggest wood for the biggest trees by not realising that the Member of Parliament, who is elected by voters and who, if given privilege and using it responsibly, is the best possible defence for the right of the individual to obtain the protection that they need through that privilege, not for our sake but for theirs?

[Mr Bacon]

My hon. Friend is absolutely right, and that is why I labour the point that “privilege” is an unfortunate word. It is better to speak of the right of Members of Parliament to speak up for and to defend the British people, because that is what we are talking about. My hon. Friend is right that those who want to chisel away at the rights of Members of Parliament are chiselling away at the rights of the British people.

At the time of the arrest of my hon. Friend the Member for Ashford, I received a number of e-mails from people who were under the impression that I, as a Member of Parliament, thought that some people, including Members of Parliament, should be able to break the law, and that we were somehow above the law. That was another aspect of the unfortunate phrase, “parliamentary privilege”, because that is how they had understood it. It surprised me—I had always understood it in the terms used by my hon. Friend the Member for Stone—to realise that the majority of people had put a completely different connotation on it. My hon. Friend the Deputy Leader of the House is listening to this debate, and perhaps Parliament should consider the whole question of what we call such things. It is misleading, and it is important that we understand what we are talking about.

One of the stupidest things I ever heard a journalist say was when someone was defending The Daily Telegraph sting, when Members of Parliament were secretly recorded in their surgeries. I thought that that was an outrage, as did many other people, including many in the media who thought that it was a step too far. I did not catch the journalist’s name, but when trying to defend the sting he said on the radio, “Well it’s not exactly the confessional.” I remember thinking at the time, as I shouted at the radio, as we sometimes do, that that is exactly what it is.

All Members of Parliament know that it is a fairly common experience for people to come to our surgeries and to burst into tears. Last time that happened to me was the week before last, not last week, but two weeks ago. It happens quite frequently, because when dealing with constituents, we are often dealing with them as an advocate of last resort when they have nowhere else to turn. Sometimes they come with a supporter—a friend—to help them, because they do not know whether they will get through it and whether the Member of Parliament will be helpful or a scary and intimidating figure of authority.

I have had people come to see me who looked completely balanced and calm, and in full possession of their faculties, only to discover when I said the wrong thing that I triggered a wave of emotion about things that had happened to them. From being perfectly collected, the constituent would suddenly break down in tears. It is exactly a confessional. I can think of a range of hypersensitive cases at my surgeries involving child custody, marital breakdown, allegations of paedophilia, armed robbery, allegations of corruption, and so on, and other hon. Members will have had similar experiences. Our ability to help people in desperate situations is what we want to protect.

[Mr Cash]

Does my hon. Friend accept that journalists are liable to be at the rough end of this, because of certain aspects of investigative orders, European arrest warrants and so on? Here we go again on the European issue. The plain fact is that the defences that are available through Members of Parliament to protect the public include invasion from external legal requirements that are imposed on us and undermine our ability to carry out our duties. That includes the Bill of Rights and a whole raft of other things. People may find that funny, but it is deadly serious, and the more they laugh, the more stupid they look.

--- Later in debate ---

[Mr William Cash (Stone) (Con)]

I had not intended to speak in this debate. Tomorrow we have a debate on the Floor of the House on parliamentary sovereignty, an issue on which I have spoken several times in this Chamber, which is the best means of expressing views that sometimes get lost in the House, with all the restrictions on debate that are imposed on Members of Parliament through the wilful use of programming. I wait with enormous interest to hear what the Deputy Leader of the House has to say.

I alluded to one aspect of this matter just now; I have spent some time taking an interest in the principles that hinge on the question of a Bill of Rights. I am all for a Bill of Rights, but the question is: which one? Similarly, on the question of the rule of law: which law, whose law, and who is going to enforce it?

Eventually, one returns to a question that I am sure exercised those who devised the original Bill of Rights in 1689, which as it happens was never incorporated in an Act of Parliament. Nevertheless, by convention, and therefore by custom, that statement was enforceable in its own fashion, and deals with some fundamental matters. I want to know exactly how, in the context of the review set up by the coalition Government, matters concerning the proposed new Bill of Rights will be tackled. I may be unduly suspicious, but I want to know whether the Bill of Rights will enhance and increase the rights of the people of the United Kingdom. That point will emerge in due course and perhaps the Deputy Leader of the House will be in a position to tell us when he responds to the debate this afternoon.

One difficulty is that, as I conceive it, the Bill of Rights would not withstand measures such as the European arrest warrant, investigative orders and powers of entry. We heard about such matters in a debate the other day on the so-called Protection of Freedoms Bill, and about the problem of the rulings by the European Court of Human Rights. Fairly recently—I think it was 11 March 2010, almost exactly a year ago—the Lord Chief Justice made a speech to the Judicial Studies Board. He said that judges were interpreting Strasbourg precedents in such a way that they were applying them as if they were UK law. The concerns of the Lord Chief Justice were encapsulated by his warning, “We must beware.” Those are the words he used and he was talking specifically to the judges. I want to know that the Bill of Rights, which includes, or is associated with, matters as important as habeas corpus, will be retained. If such things are to be given renewed constitutional primacy, they must be absolute and not a sub-text of a European legal system that overrides them.

Two days ago I attended a European Committee with the Lord Chancellor, a man I greatly respect. We have totally different views about these matters, but we should not think that he does not understand that the arguments I present must be answered. That is why he came to the Committee. He was talking about the charter of fundamental rights, which is directly related to the issue of the Bill of Rights. If we have a Bill of Rights, will it be superior in some fashion to the European treaties and to the European Communities Act 1972, which incorporates the protocol for the charter of fundamental rights? If people do not understand that matter, they should start reading the material. There is no point in pontificating about a Bill of Rights if we do not understand the hierarchy of laws. That hierarchy says that European Community law comes first and is enforceable by the European Court.

When the Lord Chancellor says, “Oh, nothing has changed; we had a discussion on the Lisbon treaty and a lot of people got it all wrong”, I am bound to point out that he voted for the Lisbon treaty and for the charter of fundamental rights—unlike the Conservative party—and he voted against the referendum. I am not criticising him for that; I respect him for it. That is his right. However, one provision in the Bill of Rights is the right of free speech, including in the House of Commons and elsewhere. It is similar to the question about privilege, or about how the rights of people in this country are expressed through the rights of their Member of Parliament, to which my hon. Friend the Member for South Norfolk (Mr Bacon) so rightly referred.

If we are to talk about a Bill of Rights, let us get the hierarchy right. I do not want a public relations job done on that, or any Government spin or spivvy attempt to convince the British people that they are getting something that they are not getting. Let us have it out; let us know that this is the supreme law of the United Kingdom, and not something churned out to give people the impression that they are getting something when they are not.

I want to know what the relationship will be between the Bill of Rights and the European convention on human rights, and between the Bill of Rights and the charter of fundamental rights. Therefore, I have two simple questions. At its apex, will the Bill of Rights be supreme in UK law, enforceable and enforced by the Supreme Court, as against, contradictory to and, if necessary, inconsistent with the European Court, and the assertions of certain members of the Supreme Court that they have ultimate authority? Will that be the case notwithstanding the European convention, the charter of fundamental rights and the European Communities Act 1972 and all treaties under that? If the Bill of Rights is to be effective, I want it to be a real Bill of Rights and not simply a rather obscure version of an amalgamation of those other charters and conventions. At the moment—I do not know whether the Deputy Leader of the House knows this—chapter 3, I think, of the Lisbon treaty sets out, in article after article, the source and derivation of the charter of fundamental rights. In terms of derivation, there is the United Nations this and the European Court of Human Rights that. There is a list of sources, and I trust the Minister has it with him so that he will be in a position to answer my question. Which legislation will have superiority?

[John Hemming]

One topic that has been at the top of media issues recently is the development of the law of privacy. A number of us share concerns about that, and I am interested in the hon. Gentleman’s views.

[Mr Cash]

My views are very strong indeed. I can reasonably claim to have been the progenitor of the Calcutt inquiry, because some years ago I tabled an early-day motion that attracted more than 300 signatures and called for an Act on privacy, which would have been a tort, and ensured that the ordinary citizen had the right to privacy compared with those in the public eye. I distinguished matters of interest to the public from those genuinely in the public interest, and that subject remains a matter of deep concern.

It is also true—here I make a concession—that article 8 of the European convention contains a right of privacy, but my answer to that is not that I have any objection to the rights of privacy that are now in that convention. The question that is far more important than any other, in my view, is this. Why should people assume that we need a European convention? By the way, we drafted the convention for the purposes of—shall I put it delicately?—helping other countries to understand that there were rights that might be usefully employed in their own countries. There, we were helpful, but what is to prevent us from legislating, from passing laws, on our own terms, through our own elected representatives, that provide the kind of rights that otherwise are provided under things such as the European convention or the charter of fundamental rights? In other words, will this law be indigenous? I look at the Deputy Leader of the House deliberately at this point. Will it be, to use a slightly unusual expression, an autochthonous United Kingdom law or will it be a dependent law? Will there be a surrender to the so-called universality of law, or will it be something that is modelled and devised by the British people, for the British people, given that we are able to claim that we have been the defenders of liberty and freedom throughout the world for a very long time?

Last night I was at a dinner at which people were discussing the future of conservatism. I had the temerity—I think some people were quite glad—to mention Edmund Burke. I do not have the whole quotation at hand, but he wrote very clearly about the fact that there are no discoveries to be made. We have already understood, as he put it, what is a proper kind of freedom. That compares with Thomas Paine’s “Rights of Man”, which was an entirely abstract and in the event utterly destructive approach, adopted, as it happens, by the French revolutionaries with dreadful consequences.

Our rights and freedoms are based on practical experience, not on theory, so some of us get a little amused, if not bored, by people who make certain assertions about those of us who are interested in having referendums or, for that matter, insisting on the sovereignty of the United Kingdom Parliament when all we are doing is seeking to ensure that the rights that are conferred on the British people and the legislation that is passed are consistent with what the British people in general elections, rather than coalition agreements, have actually agreed to do. That is my template: if I have made a promise to my constituents, I intend to stick to it. I also think that it is good for our democracy that people should be able to accept that the promises made in general elections are carried through.

I do not want in any way to prejudge, and I do not think that I have said a word today to prejudge, what the Bill of Rights will contain or what the new commission that has been set up will come up with, but I have taken this opportunity, at very short notice, to try to set out, very simply, the principles on which that entire judgment must be made. First, foremost and exclusively, not partially, it must be based on the Bill of Rights being supreme in terms of the law applied to the people of this country through our courts and notwithstanding any other legal systems or legal requirements, whether emanating from the European Community, the European convention on human rights, the European Union or any other source. That must be the case if the Bill of Rights is to mean anything. We are not an island in the sense that we are exclusively unaffected by other parts of the world, but we do have the right to determine our own jurisdiction and the right to determine it through this Parliament. Because we are elected by the voters of this country, we can insist that the Bill of Rights is indigenous to this country and not dependent on some other hierarchy of law.

[Helen Jones (Warrington North) (Lab)]

It is a privilege to speak under your chairmanship, Mr Bone. This has been a very interesting debate. I congratulate the hon. Member for Birmingham, Yardley (John Hemming), the other hon. Members in charge of the debate and the Backbench Business Committee on bringing it about, because it raises fundamental issues about the role of Members of Parliament and about Parliament itself. As hon. Members rightly said, the rights and privileges of Parliament exist not to provide protection for MPs merely, but to protect the rights of their constituents. In that sense, articles 9 and 13 of the Bill of Rights are complementary. We all know, and the hon. Member for Birmingham, Yardley quoted clearly, article 9, which states that

“the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

Article 13 makes it clear that one purpose of holding frequent Parliaments is to be able to redress grievances. In other words, Parliament is here not just to make laws, but to address the grievances of Members’ constituents—the two are part of the same thing.

[Mr Cash]

I do not want to take the hon. Lady into a great dialogue on this; I will simply ask her a question. Is she as confident of what she has just quoted in the light of the judgment in the Jackson case, in which several members of the Supreme Court questioned the extent to which they had ultimate authority and said that parliamentary sovereignty was being qualified? They used those words, and many more besides.

[Helen Jones]

If the hon. Gentleman allows me to proceed a little, perhaps I can touch on the issues that he raises, but I want to keep my remarks to the subject of the debate.

One reason why becoming a Member of this House confers huge privileges on us all is that it enables us to act on behalf of our constituents. To be able to do that effectively, as several hon. Members have said, Members of Parliament must have access to information. A number of cases have been raised today, and many of us have had experience of hospitals, schools sometimes and councils trying to deny hon. Members the information that they request. In my experience, that is normally fairly easy to deal with, although the cases involving the courts are much more complex. I hope to be able to come to those in a moment.

Hon. Members know that they must use the protection granted by parliamentary privilege sparingly and not for their own advantage, but use it they must if it is necessary to right a wrong or to get justice for a constituent. Since I came into the House, I have seen a number of examples of hon. Members rightly taking up issues on behalf of their constituents and using parliamentary privilege to do so, because that is the only way to get something done.

If I may speak anecdotally, I have had experience of that myself. Not long after I came into Parliament, I felt it necessary to initiate an Adjournment debate about a charity that I felt was not operating properly. I came under huge pressure from the people running that organisation, but I felt that it was necessary to do that and to use parliamentary privilege to do it, because I believed that the people who were supposed to be being looked after by that organisation, many of whom suffered severe learning difficulties and did not have friends or family to speak up on their behalf, were being done out of their rights. Many other hon. Members will have come across cases such as that. At some point or other, we have all known of constituents who have been told that they cannot or should not approach their Member of Parliament. I say gently to the hon. Member for Birmingham, Yardley that I have known councils and public bodies tell people that, and he must have known of it, too. I have also known Liberal Democrat councillors tell my constituents that they should not come to see me.

A case can probably be made for educating people, but we certainly need a clearer definition. Indeed, the rights of Parliament need to be made clear to many who work for public bodies. In these circumstances, I normally find that a fairly stroppy letter from me—I can write very stroppy letters when I need to—usually puts the matter right. However, some of the cases that we have heard of today are much more serious.

We have to face up to the difficulties of interpreting article 9 that arise simply because of its age. Parliament has developed and changed since 1688. It would be strange if it had not. We now live in a multi-media age, which covers aspects of communication that were not known when the Bill of Rights was drafted.

Many Members would be surprised to learn the limits of parliamentary privilege. For that reason, a review of parliamentary privilege was undertaken by a Joint Committee in 1999. The Committee drew attention to the fact that although Members are not exposed to any civil or criminal liabilities in respect of what they say and do in the course of proceedings in Parliament, there is no comprehensive definition of what “proceedings in Parliament” covers. Equally, there is no proper definition of what constitutes a place “out of Parliament”. That needs to be tackled.

It is generally accepted that proceedings in Parliament are covered by the formal proceedings of the House and its Committees and any documentation directly associated with those proceedings, but there are grey areas around that, as the hon. Member for South Norfolk (Mr Bacon) noted about the documents that he had received. The Committee said that article 9 needs clarification. It clearly does, in light of Members’ experience and given what we have heard today.

--- Later in debate ---

[Helen Jones]

I had not quite finished my sentence, but the hon. Gentleman is right; Ponting said that it was in the public interest to communicate the information. Whether or not that defence was sound, the jury simply refused to convict him.

[Mr Cash]

This is, of course, related to the proposed parliamentary privilege Bill to which the hon. Lady has referred. The Duncan Sandys case turned on the question of proceedings in Parliament. It was clear that there was a total and deliberate breach of the Official Secrets Act and that that, in itself, was in the public interest because Whitehall, or the Defence Department at the time, was correctly alleged to have been misleading the House of Commons. There are cases, therefore, in which a breach of the criminal law and the Official Secrets Act can be justified on the grounds of parliamentary “privilege”. I mention that as a good example.

[Helen Jones]

The hon. Gentleman makes a point, but the public interest defence in all these cases is the one that is usually used.

I cannot comment on some of the individual cases that were raised today because I have no personal knowledge of them. None the less, they are serious matters that deserve to be addressed. We have all encountered people who do not want to answer MPs, or who just want to send a brush-off answer. In minor cases, I find that a nice letter from me saying that if they do not answer me, I will just table questions in Parliament and they will have to answer anyway sorts it out. However, we have heard about much more serious cases where there is a refusal to recognise the representative role of a Member of this House acting on behalf of a constituent. I will be interested to hear what the Deputy Leader of the House has to say about that.

Article 9 exists to facilitate article 13; the two are inextricably linked. There is no doubt that we need to clarify the scope of privilege and the rights of Members of this House. Concerns have already been expressed about the way in which some legislation might be eroding those privileges. Although the Government disagreed with this, the Clerk of the House raised concerns about the Fixed-term Parliaments Bill and how it could bring proceedings in Parliament into the ambit of the courts. Similar concerns were raised about the Parliamentary Standards Act 2009. Moreover, there were issues about putting lay members on the Committee on Standards and Privileges and whether they would be able to vote on matters relating to privilege.

As Parliament has expanded its role, a load of issues have emerged that need to be clarified. We look forward to the publication of the draft parliamentary privilege Bill. I hope that the House will be given sufficient time to consider the matter seriously. We have to get it right not just for ourselves but for future Members of this House. It is not a party political issue but about getting the workings of the House right and about the privileges that need to be accorded to hon. Members to allow them to do their job.

I hope, too, that when the Bill finally comes before the House, we get sufficient time to examine it and, if necessary, to amend it. If we do not give proper consideration to this matter and ensure that the drafting is right and that Parliament works properly on behalf of the people we represent, we will be failing not ourselves but our constituents, and that is the important point that has been raised in this debate. I look forward to a proper examination of that draft Bill and to hearing the Deputy Leader of the House’s response.

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[Mr Heath]

I am certainly open to the suggestion that we should consider that issue as part of the privilege Bill that we intend to introduce. I will discuss that Bill in a little while.

[Mr Cash]

What the hon. Lady has just said raises the question of who would actually interpret the statute. So we are back to the courts in that event. What we need to do is entrench a procedure into the privilege Bill, when we pass it into law, that might, for example, prevent such a case being taken to court, or that at least would ensure that if the case went to court a judge would have a kind of pre-trial opportunity to consider it. It is probably a procedural question, but we cannot avoid the fact that even if privilege is put into statute it will still be open to interpretation.

[Mr Heath]

I think that we would be in the same position that we are in now, with the present interpretation of the absolute parliamentary privilege that we enjoy in the comments that we make in this House. I do not see that there would be any difference if we were to extend our statutory interpretation of proceedings to include correspondence in the way that the hon. Lady suggests. However, let me not attempt to pre-empt a serious debate that will inevitably need to happen in preparing the statute on which this Bill will be based, both in terms of the pre-legislative scrutiny and then our scrutiny of whatever is proposed.

--- Later in debate ---

[Mr Heath]

I hear what the hon. Gentleman says and I have some sympathy with what he says. However, I have some difficulty with the interpretation of article 13 of the Bill of Rights. I say that not as a constitutional lawyer, but as someone who is making the simple observation that article 13 of the Bill of Rights is headed, “Frequent Parliaments”, and therefore it seems to me to that article 13 is inherently about the frequency of Parliament rather than the reason for holding Parliaments frequently, which is

“for redress of all grievances”.

It is the emphasis within article 13 of the Bill of Rights that I am addressing. Having said that, we are talking about a 1688 Act and it would be very surprising indeed if it was construed in 1688 in exactly the same way that modern eyes construe it. Therefore, I do not want to replace centuries of jurisprudence on the subject with my lay observations today. However, I hear what the hon. Gentleman says.

I want to move on to Parliament and the courts, because a lot of what my hon. Friend the Member for Birmingham, Yardley had to say was about the relationship between Parliament and the courts. Yet again, I enter the caveat that as a member of the Executive I need to be careful about what I say about that relationship and I hope that hon. Members will understand that.

My hon. Friend the Member for Birmingham, Yardley referred to circumstances in which parties to court proceedings are forbidden to talk about them, either because of a specific injunction to that effect or, as in the case of certain family court proceedings, because proceedings are conducted in private, for example in the family court or the Court of Protection. That would not prevent a Member from raising in the House matters that it would be a contempt of court to raise elsewhere. We saw that in the recent Trafigura case, in which I had an interest. I was clear about what Parliament’s position should be, and I am happy that that was supported by others. If proceedings had been concluded, the House’s sub judice resolution would not necessarily prevent such matters being referred to.

The crux of the issue is the degree of legal protection offered, not to my hon. Friend the Member for Birmingham, Yardley were he to raise the matter in the House—as he has done this afternoon—but to an individual who discloses information to their Member of Parliament. The extent of that protection is less clear, as in many cases it depends, as we have heard, on qualified privilege. In family proceedings, the Family Proceedings (Amendment) (No. 2) Rules 2009 include certain exemptions about the disclosure of information, including in rule 11.4(1)(d), which provides that a

“party or the legal representative of a party, on behalf of and upon the instructions of that party, may communicate information relating to the proceedings to any person where necessary to enable that party…to make and pursue a complaint regarding the law, policy or procedure relating to a category of proceedings to which this Part applies.”

However—that is a significant “however”—I emphasise that that is a general rule, which is subject to any direction of the court, and the court may direct that such disclosure, though generally allowed, should not be allowed in certain cases. That, I think, is the circumstance to which my hon. Friend refers.

I agree with the many Members who have said that an individual’s right to approach his or her MP should be regarded as an essential part of the democratic process. However, we need to consider how to deal with cases in which one person’s right of access to their MP could interfere with the rights of others, including the right to a fair trial and the right to privacy. There is no point in Parliament making laws conferring decision-making powers on the courts, if an individual Member can vitiate those decisions by disclosing on the Floor of the House information that might fatally undermine their purpose. For example, if a court orders that the identity of a party to legal proceedings should not be disclosed—usually because it would render the proceedings nugatory—Members should think very carefully before using the auspices of parliamentary privilege to subvert such a judgment.

The guiding principle must be one of comity: the House and its Members will respect the jurisdiction of the courts, and the courts will not trespass on to territory that is properly occupied by Parliament. If Parliament collectively believes that some injustice arises from how the courts apply the law, it is open to Parliament to change the law. There is no need to use the blunt instrument of parliamentary privilege as a battering ram with which to beat the courts.

If there are deficiencies in family court proceedings, my hon. Friend ought to seek to amend those rules, in the first instance, or the statute under which they operate, if he feels that they are ineffective in allowing him properly to represent the interests of his constituents.

[Mr Cash]

I appreciate that I am intruding somewhat into this rather narrow debate about parliamentary privilege and the Act. The Deputy Leader of the House referred to family law. As such matters are absorbed into the broader context of the jurisdiction of the European Court of Justice, the manner in which the courts respond to them within the framework of the law will be interpreted by that Court. I fear that some of the assumptions being made, including that we will be able to legislate in line with the kind of principles that the Deputy Leader of the House has referred to, will not be applicable, because it will not be a matter exclusively for our courts.

[Mr Heath]

I hear what the hon. Gentleman says. He talks about the European Court of Justice. I thought that he was going to talk about the European convention on human rights, because it could be argued that the way these matters operate is outwith ECHR provisions, other than the fact that we are using the licence within the relevant article in the convention, which allows for specific items—the interests of minors are mentioned—to be excluded from the general rule of open proceedings in court. We must bear that in mind. I understand the hon. Gentleman’s point, and I have no doubt that we will discuss the matter on many other occasions.

Coming back to what my hon. Friend the Member for Birmingham, Yardley was saying, I think that he is particularly exercised about the office of the Official Solicitor. He seems to have an interesting relationship with the Official Solicitor, in the pursuance of his various interests in the cases in which he has been involved. He essentially asks where the Official Solicitor’s supervision and accountability are, in the exercise of his duties. My hon. Friend knows that the antecedents of the office go back a long way, to its origins in the Six Clerks Office, which was mentioned by Pepys. This officer of the court has a long pedigree, and he acts on behalf of those who were originally defined as paupers, including lunatics and infants, and needed protection under the law. The office is an ancient one, but it has always been an office of the court.

Under the most recent legislation, the office is a statutory office of the Supreme Court, and we have been very clear in the House, by statute and otherwise, that we respect the independence of the Supreme Court, and that we will not seek to interfere with the activities of the Supreme Court, as a legislature. We have to be very careful in expecting something of an officer of the Supreme Court, who I suppose is answerable in extremis to the Lord Chancellor in the exercise of their duties. It is not a matter for normal, democratic control, any more than a judge sitting in the High Court is a matter that should be under the control of the House.

--- Later in debate ---

[Mr Heath]

I am not sure that I understand the distinction that my hon. Friend was making between a super-injunction and a hyper-injunction, because what is called a super-injunction is an injunction that requires a particular course of action to be taken, including not reporting that the injunction in place is proceeding. It is an injunction squared, or a self-referring injunction. I am concerned about it, as are a lot of hon. Members, but we must wait and see what the Master of Rolls has to say on the subject when he—or, rather, his committee—reports.

I want to conclude by talking about the draft parliamentary privilege Bill.

[Mr Cash]

I realise that I asked a much broader question than was intended for the debate, so I do not ask the Deputy Leader of the House to go into any detail, but in general does he take on board my point about the hierarchy of laws and the necessity to ensure where the final jurisdiction lies? The issue has come up in various forms in exchanges on the draft parliamentary privilege legislation and its proposals. The Supreme Court and other courts in the European dimension are claiming greater jurisdiction than previously over what we do, indirectly and, sometimes, more directly. That is an innovation, which was certainly not around five years ago. I ask the hon. Gentleman to do no more than take into account the fact that these points are not just the emanations of those who are concerned obsessively about such matters; they need to be taken very seriously because the process is on the march.

[Mr Heath]

I was going to come to the hon. Gentleman’s points at the conclusion of my other remarks, but I will answer them now.

I am loth to usurp the authority of the Lord Chancellor, which I suspect would be lèse majesté on the part of a junior Minister. Therefore, it would not be appropriate for me to second-guess the Lord Chancellor’s views, in particular as he had the opportunity recently to set out some concerns in a Committee, as the hon. Gentleman said.

The hon. Gentleman knows that the Government are setting up a commission to look at the case for a UK Bill of Rights. He knows that the announcement has been made and that that will happen. He knows what is in the coalition agreement in respect of the issue, and I do not need to remind him of that. He also knows, because I heard him recently ask the question of my right hon. Friend the Minister for Europe, that the Government strongly support reform of the European Court of Human Rights in Strasbourg. There is a package of considerations and I will not pre-empt any conclusions, but I hear what the hon. Member for Stone has said. I am sure that other colleagues in the Government will have heard his comments as well. It is probably safest if I leave it at that. He understands that there is a limit to how far I can expand on the subject.

Returning to a perhaps slightly safer area for which I do have some responsibility, the Government intend to bring forward a draft parliamentary privilege Bill. As we have heard this afternoon, it is a complex subject. We have the report from some years ago to which the hon. Member for Warrington North referred. We need to revisit it, to ensure that it meets all our present circumstances, but we hope that we will soon be able to provide a draft Bill on which every hon. Member will have the opportunity to comment. In particular, I hope that Members involved in this afternoon’s debate will make their views well known as part of the consultative process, because they will have the opportunity to shape the content of the Bill.

I was intrigued by the suggestion of the hon. Member for South Norfolk (Mr Bacon) that we should do away with “privilege” altogether and call it something else. I make no commitment that that will form part of the Bill, but “privilege” is sometimes misinterpreted, deliberately or purely by ignorance, and assumed to mean that we somehow place our interests, and ourselves, above those of other people, rather than what it does mean, which is that it enables us to do our job on behalf of the people we represent.

Such interpretations were perhaps exaggerated by the recent court cases involving former Members of the House. The proposition before the court was that parliamentary privilege somehow prevented them from facing due criminal proceedings in the courts. Of course, privilege did not do that; we said so at the time and I am pleased that the courts held it to be the case. However, that message simply must go out: parliamentary privilege is not about privileges for Members, it is about privilege for our constituents to have a Member of Parliament who can stand up and speak without fear or favour on their behalf in the House, and to do so on whatever terms that Member feels fit, and without the threat of court action or the actions of the Executive preventing them from acting in the fullest capacity as a Member of Parliament. We intend to produce the draft Bill by the end of this Session, in spring 2012. That will provide us with a further opportunity for these matters to be discussed.

I am grateful to you, Mr Bone, for chairing this sitting and to the Backbench Business Committee for providing us with the opportunity to debate the subject. I am grateful too to my hon. Friend the Member for Birmingham, Yardley for bringing forward matters of considerable importance, which have now been given an airing in the House.

Business of the House

William Cash Excerpts

Thursday 17th February 2011 Commons Chamber

[Sir George Young]

Of course low pay is important, but the hon. Lady’s question focused on what my right hon. Friend the Secretary of State for Communities and Local Government said. As far as civil servants are concerned, Select Committees have adequate opportunity, particularly when they look at the accounts of individual Departments, to hold the Minister to account on the salaries that are paid in the Department, and it is always open to have debates on the Floor of the House about the structure of salaries in the civil service. Of course, there is a defined salary structure in the civil service, whereas there is slightly less clarity in relation to local government and the chief executives, so I do not think it is an exact parallel.

[Mr William Cash (Stone) (Con)]

Having given reasonable time for the Committee stage of the European Union Bill, will the Leader of the House be good enough to ensure in programme motions or whatever that we have adequate time to discuss the Bill properly on Report and Third Reading in the light of any amendments that may be tabled? Perhaps he would be kind enough to have a word with me about it, too.

[Sir George Young]

As my hon. Friend knows, I am always ready to have a word with him. I have announced that we shall be having the final day of—I think—seven days on the European Bill. We actually added an extra day in the light of representations, and we have allocated a whole day for the final stages. I very much hope that that will be adequate.

Business of the House

William Cash Excerpts

Thursday 27th January 2011 Commons Chamber

[Sir George Young]

The hon. Lady is quite right that the Government have decided that the fund to which she refers will be wound up. We are in the process of developing a free, national finance advice service, and I should like to write to her, or to ask the Minister responsible to do so, with further details of that service.

[Mr William Cash (Stone) (Con)]

Given the remarks of George Soros yesterday and today on the failure of the economic governance arrangements, will the Leader of the House be good enough to arrange a debate on the reasons for our low growth? They are connected with the failure of the EU and the failure to repatriate powers. Repealing EU social and employment legislation would enable our own small and medium-sized businesses to grow.

[Sir George Young]

I say to my hon. Friend that I honestly think I have provided enough time for the House to debate matters related to the EU. I see that a high proportion of the time that we have made available has been occupied by him—[Laughter.] I mean no discourtesy. The answer is that I will not provide at this stage additional time to debate the matter he raises.

Business of the House

William Cash Excerpts

Thursday 20th January 2011 Commons Chamber

[Sir George Young]

There will be an opportunity to cross-examine my right hon. Friend the Secretary of State for Defence on 31 January, when he will be answering questions, but I have no plans at this stage for a specific debate. As the hon. Gentleman knows, there were historically a number of set days for debates on defence matters, but whether that continues is a matter for the Backbench Business Committee.

[Mr William Cash (Stone) (Con)]

On written ministerial statements, will the Leader of the House take note of the fact that today the European Scrutiny Committee has issued its report on the referendum issues under the European Union Bill? The ministerial statement issued today by the Minister for Europe covers ground relating to these issues in the Bill, and it would have been far better to have made an oral statement and not to set a pattern for future ministerial statements that are bound to lead to a whole series of urgent questions as and when these matters are raised.

[Sir George Young]

My hon. Friend may have seen on the Order Paper that the Government have allocated an extra day to debate the Bill, in which he is taking a very close interest. He may have an opportunity during its passage to raise the specific issues that he mentions. On his request for more oral statements, I repeat that the Government have to balance the need for the House to know what Ministers are up to with the need for the House to make progress on the business that has been set out for the day.

Points of Order

William Cash Excerpts

Wednesday 17th November 2010 Commons Chamber

[Mr Speaker]

I hope that colleagues will understand if I say that at this point, pending any further study, I feel confirmed in my suspicion by that exchange that we are having a continuation of the debate. That may be stimulating, but it is not really within the realms of points of order. Someone who I am sure knows about the realms of points of order on the strength of his 26 years’ service in the House is the hon. Member for Stone (Mr Cash).

[Mr William Cash (Stone) (Con)]

Further to that point of order, Mr Speaker. I am extremely grateful to you for reminding me of that.

What happened last night was somewhat affected by the fact that the Minister’s statement came at the end of the debate. Would it not have been far more convenient and courteous to the House if he had made that announcement at the beginning of the debate? The announcement affected proceedings and the status of amendments that were not debated.

[Mr Speaker]

The short answer to the hon. Gentleman is that that may or may not be so, but unfortunately, it is not a matter of order. If he or other hon. Members are seeking to increase the powers of the Chair, they must find ways to do so—if he is asking whether I would strenuously resist, the answer is almost certainly no—but within the powers that I have, I cannot do anything about the matter other than to allow him, within limits, to expatiate, which is what he just did.

Points of Order

William Cash Excerpts

Monday 15th November 2010 Commons Chamber

[Mr Speaker]

The response of the Deputy Leader of the House has been noted and I am grateful to him for it.

[Mr William Cash (Stone) (Con)]

On a point of order, Mr Speaker. I understand that a few minutes ago, in the House of Lords, the motion to refer the Parliamentary Voting System and Constituencies Bill to a Select Committee with regard to the possibility of hybridity was rejected in a vote, but I would be grateful if we could be informed whether, in this House, such a motion would be out of order on the grounds that the Bill did not affect a particular private interest. I would be grateful if we could have a note on that.

[Mr Speaker]

The short answer to the hon. Gentleman is that that is not a matter for today. More fully, I think I know him well enough to know that he is unlikely to rest content with what I suppose he would judge to be a holding response. I have just a smidgen of a suspicion that it is a matter to which he will return on other occasions, and if he does, so will I. I hope that is helpful.

Business of the House

William Cash Excerpts

Thursday 11th November 2010 Commons Chamber

[Sir George Young]

I understand that that matter was raised on a point of order yesterday, and I know that inquiries were being made of the Home Office in order to make progress. I will pursue those inquiries with added urgency today.

[Mr William Cash (Stone) (Con)]

The European Union Bill, about which I wrote to the Leader of the House earlier today, is a Bill of immense constitutional importance. We need to have adequate time to consider it, not least because the Minister for Europe has said that he will give one month’s notice, which is wholly inadequate. We will be taking evidence, on an even-handed basis, from those on all sides of the argument and from the public. I think that the public would be extremely concerned if they knew that adequate time for such consideration was not given, particularly in view of what my right hon. Friend has just said about the Bill’s consideration on the Floor of the House, which means that it will be the only opportunity for people to have a proper examination of this vital issue.

[Sir George Young]

As I said a moment ago, my hon. Friend has just handed me a letter that makes the case for more time so that his Committee can examine the Bill. I will of course reflect on the contents of what he has said. I need to consult my colleagues, and I will write to him as soon as we have reached a decision.