Privilege (Withdrawal Agreement: Legal Advice)

Debate between William Cash and Oliver Heald

Tuesday 4th December 2018 Commons Chamber

[Sir Oliver Heald (North East Hertfordshire) (Con)]

Will my right hon. and learned Friend give way?

[Sir William Cash]

Will my right hon. and learned Friend give way?

Devolution (Scotland Referendum)

Debate between William Cash and Oliver Heald

Tuesday 14th October 2014 Commons Chamber

[Sir William Cash (Stone) (Con)]

In answer to the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown), I simply say that although he stressed fairness, he did not talk about proportionality. It is very important in this context to remember that the 1.6 million voters in Scotland who voted yes—we have heard a lot about them today—represent, on a turnout of 84%, only 2.5% of the population of the United Kingdom as a whole. I hope that SNP Members will bear that in mind.

Furthermore, in regard to the total population of the United Kingdom of 64 million, England represents 84%, Wales 4.8%, Northern Ireland 2.8% and Scotland 8.2%. In fairness to the United Kingdom as a whole, there has to be a point at which we respond to the degree of proportionality and the extent of unfairness for the English constituent parts of the United Kingdom made manifest by those figures alone.

When the question of total tax revenues is taken into account, the proportions are England 85%, Wales 3.5%, Northern Ireland 2.6% and Scotland 9%. On redistribution, and taking into account the Barnett formula as well, we have ended up with something wholly disproportionate that must be remedied within the framework of the United Kingdom as a whole. That equally applies, of course, not only to the distribution of money and functions, but to the manner in which they are redistributed through services provided to constituents throughout the whole of the United Kingdom.

In order to deal with the West Lothian question, I considered this matter back in 1997 when—on 3 June, I recollect—I proposed an amendment and had a debate with Tam Dalyell and Margaret Ewing. That debate was civilised and our debate can continue to be civilised, although we should bear it in mind that a much greater degree of devolution is now being considered than was then the case.

The need to resolve the question has now become imminent and absolutely essential. I therefore profoundly believe that the question should be dealt with by changing our Standing Orders within the framework of the United Kingdom itself. After all, it was the United Kingdom that decided, with the consent of the voters of each of its constituent parts—including Scotland, Wales and Northern Ireland—to devolve some functions. That was done as a matter of democratic consent and with everybody’s agreement. Hopefully, as we move forward, the other parts would be accorded the same consent. It absolutely follows, however, that this has to be done within the United Kingdom as a whole, and the best and most appropriate context for that to happen is, I believe, within the framework of a change to Standing Order No. 39.

Let me briefly read out what the Standing Order would say:

“Where a Bill…or part of a Bill, or a Motion, is expressly stated to apply only to England, and the Speaker or, in Committee, the Chair, before the commencement of business, rules that this Standing Order applies, he shall declare which category of Member may vote in any division and that a Member representing a constituency in a part of the United Kingdom to which legislative power has been devolved, may speak”—

so the Member would be involved—

“but not vote in proceedings relating to that devolved matter.”

The devolved matter would obviously be one

“in respect of which legislation has been enacted devolving the exercise of functions to a Parliament or an Assembly within the United Kingdom.”

I have sent a copy to the Leader of the House and the Prime Minister. I hope it will be given fair wind. However, there has been another proposal—the right hon. and learned Member for North East Fife (Sir Menzies Campbell) signified yesterday that the matter should be dealt with by primary legislation. I was deeply concerned to note the response of the Secretary of State at this point, and I hope he will look again at the reply he gave. The idea that the capacity of Members of Parliament should be dealt with by legislation prescribed in statute would be a recipe for endless litigation. We need only look at what happened in the Jackson case or at the issue of the Parliament Act to realise that this would be a disastrous route.

[Sir Oliver Heald]

Does my hon. Friend accept that when we recently looked in detail at the issue of privilege, although it had been thought at the outset that this was an area on which to legislate, in fact the Committees of both Houses that looked at it came to the conclusion that that would be a grave mistake, for the very reason he suggests—that it would all become justiciable?

[Sir William Cash]

My hon. Friend the Member for Harwich and North Essex (Mr Jenkin), I and others were on the Committee, and those were indeed the conclusions we came to.

As for the charter of fundamental rights—now reckoned to be within the framework of our own constitutional arrangements, although I do not have time to go into it now—the bottom line is that that would mean these matters being adjudicated by the European Court of Justice, which really would be a very dangerous situation.

Deregulation Bill

Debate between William Cash and Oliver Heald

Wednesday 14th May 2014 Commons Chamber

[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.

[The Solicitor-General]

I commend the wise words of my hon. Friend the Member for Stone (Mr Cash). He summarised the position extremely well and I am glad that the proposal is going ahead.

I should tell my hon. Friend the Member for Shipley (Philip Davies) that the Government will bring forward proposals for consultation when the court case, which is set down for later this year, has concluded. I ask him not to press his amendment to a Division on the basis that the Government are taking the issue seriously.

In response to the hon. Member for Newcastle upon Tyne Central (Chi Onwurah), the coherent strategy set out in the connectivity paper covers all the main issues: electronic programme guides, PSB prominence, bundling, switching off content, zero net fees, investment policy, child protection on the internet, internet access and comprehensive programme issues. It is a proper document, and she unfairly belittled it.

The only other point I wanted to make before commending the amendments is on the Law Commission, which does a marvellous job. I should like to put on the record the Government’s gratitude to Lord Justice Lloyd Jones, who heads it, and all the people who work for it. It is a marvellous institution.

Amendment 58 agreed to.

Schedule 18

Legislation no longer of practical use

Amendments made: 75, page 159, line 32, at end insert—

‘Merchant Shipping Act 1988 (c. 12)

The Merchant Shipping Act 1988 is repealed.’.

This amendment repeals the Merchant Shipping Act 1988 in the United Kingdom. The only operative provision is section 37. Section 37 provides for the disapplication of the requirements of the Coast Protection Act 1949, which has been repealed.

Amendment 59, page 162, line 2, at end insert—

‘The Milk (Cessation of Production) (Northern Ireland) Order 1985 (S.I. 1985/958 (N.I. 9)) is revoked.’.

This amendment revokes the Milk (Cessation of Production) ( Northern Ireland) Order 1985. All schemes made under this Order were revoked in 2007, and it is not intended to make any further schemes under it. The underlying European milk quota system is intended to cease with effect from 31 March 2015.

Amendment 4, page 162, line 22, at end insert—

Part 7A

Civil Law

Defamation Act 1996 (c.31)

34A Omit section 13 of the Defamation Act 1996 (which allows an individual litigant in defamation cases to waive the ban in Article IX of the Bill of Rights on proceedings in Parliament being impeached or questioned in court).’.

The Joint Committees on Parliamentary Privilege in 1999 and 2013 both recommended the repeal of this hardly used provision.

Amendment 60, page 163, line 12, at end insert—

Part 9

Housing

Housing Act 1988 (c. 50)

36 (1) Paragraph 3 of Schedule 18 to the Housing Act 1988 (saving provision in respect of repeal of sections 56 to 58 of the Housing Act 1980) ceases to have effect in relation to tenancies of dwelling-houses in England.

(2) Accordingly, in that paragraph of that Schedule, after “tenancy” insert “of a dwelling-house in Wales”.’.—(Oliver Heald.)

This amendment provides that the saving provision in paragraph 3 of Schedule 18 to the Housing Act 1988 ceases to have effect in relation to tenancies of dwelling-houses in England (and so will continue only for Wales). This is because no assured tenancies under section 56 of the Housing Act 1980 remain in existence for England.

New Clause 2

Requirements to wear safety helmets: exemption for Sikhs: Northern Ireland

‘(1) Article 13 of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1990 (S.I. 1990/246) is amended in accordance with subsections (2) to (8).

(2) In paragraph (1), for “on a construction site” substitute “at a workplace”.

(3) In paragraph (2), in sub-paragraph (a), for “on a construction site” substitute “at a workplace”.

(4) In paragraph (5), in the opening words, for “on a construction site” substitute “at a workplace”.

(5) After paragraph (6) insert—

“(6A) This Article does not apply to a Sikh who—

(a) works, or is training to work, in an occupation that involves (to any extent) providing an urgent response to fire, riot or other hazardous situations, and

(b) is at the workplace—

(i) to provide such a response in circumstances where the wearing of a safety helmet is necessary to protect the Sikh from a risk of injury, or

(ii) to receive training in how to provide such a response in circumstances of that kind.

(6B) This Article also does not apply to a Sikh who—

(a) is a member of Her Majesty’s forces or a person providing support to Her Majesty’s forces, and

(b) is at the workplace—

(i) to take part in a military operation in circumstances where the wearing of a safety helmet is necessary to protect the Sikh from a risk of injury, or

(ii) to receive training in how to take part in such an operation in circumstances of that kind.”

(6) In paragraph (7)—

(a) omit the definitions of “building operations”, “works of engineering construction” and “construction site”;

(b) before the definition of “injury”, insert—

““Her Majesty’s forces” has the same meaning as in the Armed Forces Act 2006;”;

(c) at the end insert—

““workplace” means any premises where work is being undertaken, including premises occupied or normally occupied as a private dwelling; and “premises” includes any place and, in particular, includes—

(a) any vehicle, vessel, aircraft or hovercraft,

(b) any installation (including a floating installation or one resting on the seabed or its subsoil or on other land covered with water or its subsoil), and

(c) any tent or moveable structure.”

(7) In paragraph (8), in sub-paragraph (b), for “on a construction site” substitute “at a workplace”.

(8) In the heading, for “on construction sites” substitute “at workplaces”.

(9) Article 13A of that Order (protection of Sikhs from racial discrimination in connection with requirements as to wearing of safety helmets) is amended as follows.

(10) In paragraph (1)—

(a) in sub-paragraph (a), for “on a construction site” substitute “at a workplace”;

(b) in sub-paragraph (b), for “on such a site” substitute “at such a workplace”.

(11) In paragraph (3), for “Paragraphs (7) and (8)” substitute “Paragraphs (6A) to (8)”.’.—(Oliver Heald.)

This new clause extends the scope of the exemption under Article 13 of the Employment (Miscellaneous Provisions) (Northern Ireland) Order 1990, currently limited to construction sites, so that turban-wearing Sikhs will be exempt from legal requirements to wear a safety helmet in a workplace of any kind (subject to exceptions set out in Article 13(6A) and (6B), as amended).

Brought up, and read the First time.