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Lord Clark of Kempston: My Lords, the House should be most grateful to the noble and learned Lord, Lord Hoffmann, for bringing this amendment before it. I have been influenced in this matter by the words of the noble Viscount, Lord Tonypandy. The noble Viscount was for many years a most successful Speaker of another place. One of his duties was to protect the interests of a Member of Parliament. He said previously that he was sympathetic to this amendment. I accept what the noble and learned Lord, Lord Simon of Glaisdale, said and that he has spoken to the noble Viscount--I am sure that we all wish the noble Viscount a speedy recovery from his illness--who said that the decision will, of course, be taken in the other place. If this amendment is passed, the matter will be discussed in the other place in any case.
I do not like the fact that the emphasis has been on the other place. As far as I can see, it could happen to a Member of this House. Consequently, I believe that both Houses are under a joint liability, if I may so put it. I believe that we should pass the amendment and let the other place look at it.
Having been in Parliament for well over 30 years, I am not all that keen on having more and more committees. The establishment of committees is invariably a delaying tactic--I am not suggesting that this will be--but the danger is there. Consequently, I do not think that we should set up another committee. I believe that this House is capable of, and has a constitutional right to, pass the amendment which can then go before another place. If we do not pass the amendment and if we do not say anything about the matter, how can the other place be given advice by this House? We should view the situation more from the parliamentary point of view.
I turn now to the Privileges Committee. That committee cannot possibly help Neil Hamilton in the circumstances. If a Member of Parliament commits a misdemeanour, the Privileges Committee can take action against him. In the past, the Privileges Committee has done just that. As the noble and learned Lord has said, that committee can suspend a Member for a Sitting, one week, two weeks or whenever. I congratulate the noble and learned Lord, Lord Hoffmann. This matter has been debated backwards and forwards. There is no point in going over all the arguments again. As a parliamentarian, I believe that this should be passed and that it should go to another place so that it can have another debate upon the matter.
Baroness Turner of Camden: My Lords, I should like to make a statement from the Back Benches on the matters under discussion this afternoon. Mr. Hamilton is not the only person involved in this affair. I declare my interest. I am a non-executive director of Ian Greer Associates. That brings me into category 2 of the recent Register of Lords' Interests. As I understand it, that means that I may speak upon matters relating to my interest but must declare it. I have some knowledge of the matters referred to here.
Your Lordships may be aware that over a period of three years the Guardian has conducted a campaign against this company, culminating in a series of serious allegations against it and the way it has conducted its business. The publication of these allegations was made without reference to Mr. Greer or his fellow directors. I believe the allegations to be totally without foundation. They also involve Mr. Neil Hamilton, MP, who, at the same time as Mr. Greer and IGA, sued the paper for libel. The allegations proved very damaging to a small and, until that time, successful company. They caused a sensation not only in the UK but internationally. The hurt and damage have been substantial. Fortunately, IGA had long-standing clients who did not believe the allegations and remained loyal. Nonetheless, business losses were sustained. As a result, IGA was forced to make some staff redundant. As a non-executive director, I receive a small fee, but during that period I did not accept it. I felt that I could not do so while the company had to lose staff.
Eighteen months on and after a lot of hard work things are beginning to turn around. The libel case that IGA brought against the newspaper was stayed on the grounds of parliamentary privilege. Therefore, the company has been denied access to justice. Mr. Greer as an ordinary citizen should have had the opportunity to clear his name by pursuing the action against the newspaper. He does not enjoy the rights that are afforded to Members of either House to speak in their own defence. In staying Mr. Greer's libel action on the grounds of parliamentary privilege, Mr. Justice May said that he was acutely aware that his decision might be perceived as a profound denial of justice to the plaintiffs (Mr. Greer and IGA).
Strangely enough, many newspapers commented on the injustice of the ruling. It was only right and fair that the Guardian should have had to try to prove the faults and damaging claims that it made. Surely it is wrong that newspapers should get away with making false allegations and then be able to shelter behind parliamentary privilege when asked to substantiate them in court.
I appreciate that there are serious constitutional issues involved here, as my noble friend Lord Richard has said. But it is unfortunate, to say the least, that ordinary citizens not protected by privilege should be caught up in a web of this kind and be unable to have their day in court. In view of my interest, which I have declared, I do not think it right that I should vote on this matter. Therefore, I propose to abstain. Nevertheless, I feel that the House should be made aware of the background to some of the issues that are being debated today.
Lord Blaker: My Lords, I rise to support the amendment moved by the noble and learned Lord, Lord Hoffmann. I do so with enthusiasm, since I have been a victim of the problem with which the amendment seeks to deal. In 1990 when I was a Member of another place I was the subject of a libellous article in a well-known journal which alleged that I had broken the rules about the registration of Members' interests in 12 different respects. The article was erroneous in almost every particular. I was advised that, if a court were able to take a decision, I should certainly win, as far as anyone could be certain of anything in a defamation case. I was also advised that as soon as the case reached a comparatively early stage the Attorney General would intervene on grounds of breach of parliamentary privilege. Consequently, the case could very well be stayed.
I note what the noble and learned Lord, Lord Hoffmann, and other noble Lords have said about the paucity of similar cases in the past. In my case the situation was complicated by a case decided only a few months before the libellous article to which I have referred. I refer to Rost v. Edwards. That case also involved Members of the House of Commons and the Register of Members' Interests. In that case the learned judge decided that claims for privilege in respect of the register did not fall within the definition of proceedings in Parliament. He ruled that it was open to the plaintiff to give the evidence he wished regarding the registration of Members' interests and to the defendants to challenge that evidence. But there was a considerable body of opinion that that case had been wrongly decided and that, if I took my case further and the High Court followed the Rost case, the Attorney-General would take it to appeal and might very well win. Of course, anyone who opposed the case put forward by the Attorney-General in that situation would have to bear his own costs as well as those of the Attorney-General, which is not a very attractive proposition.
Therefore, I was in the same position as Mr. Neil Hamilton. I had no means of clearing my name. This seemed to me to be wholly unjust. I could not understand how the rule of privilege, which had been originally intended to protect freedom of debate in Parliament, could prevent a Member of either House of Parliament defending himself against a libel. Fortunately, in the event my action against the journal was settled, not on the terms which I believe would have been awarded had the case been decided by a court but at least on terms which included the payment of my costs and the publication of an apology. But I do not believe that that weakens the case for the amendment moved by the noble and learned Lord.
I agree with my noble friend Lord Clark of Kempston that the principle we are now discussing is equally important to this House as it is to the other place. It is true that cases of this kind have arisen more frequently in the other place, which is perhaps a consequence of the nature of the other place, but the principle is also relevant to this House. The noble and learned Lord, Lord Simon of Glaisdale, said that, if this amendment were passed, it would become part of a Government Bill and it would go to the other House as a Government Bill. Therefore, the voting on this clause (as it would then be) would be whipped. After 28 years in the other place, I am confident that there is no reason at all why a free vote should not be allowed in the other place as it has been allowed in this House on the matter. Now that the subject of the registration of Members' interests in both Houses has assumed greater prominence in the media than before, it is even more important that Parliament should do what it can to ensure that this wholly unjust situation does not arise again.
Earl Russell: My Lords, I have listened to this debate for some time. It is quite clear that no one in the House objects to the objects of the amendment moved by the noble and learned Lord, Lord Hoffmann. I believe that if it had been otherwise, the speeches of the noble Lord, Lord Aldington, the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Blaker, would have been sufficient to sway us. All I say about Mr. Hamilton is that we should vote on the assumption that what is his case today may be ours tomorrow. The argument is not whether something should be done but whether what should be done is this particular amendment.
Clearly, a person who is defamed should have a right to justice. The noble and learned Lord, Lord Hoffmann, said that there were no previous cases. However, there were cases before the passage of the Bill of Rights. In those cases, it was treated as a contempt of the House collectively. So the libeller or defamer was called before the House or its Committee of Privileges and accused of a contempt of the House collectively. That clearly was not a satisfactory procedure. It tended to create a sense of conflict between the House and an individual litigant--a sense of taking a hammer to crack a nut. We do not want to go back there, but if we do not go back there then the only reasonable alternative is access to the courts. But the question is whether access to the courts should be reached by means of this amendment. On that, my sympathies are with the noble and learned Lord, Lord Simon of Glaisdale. Like him, I am deeply concerned by what my noble friend Lord Lester of Herne Hill described as making a sort of Henry VIII clause of privilege with us in the capacity of Henry VIII, making over to the individual Peer or Member, as it were, almost the ownership of his privilege as if it were his.
The noble and learned Lord, Lord Simon of Glaisdale, is quite right: the privilege is that of the House, and it is that of the House because it exists in order to allow the Member to serve the House. On that, I venture to say that I cannot think of any of my academic colleagues on either side of the Atlantic who would disagree with the noble and learned Lord, Lord Simon of Glaisdale, and there are few subjects indeed upon which I could make that statement.
I shall though venture--if I may--to ask one small question about which I must be tentative, because it has arisen only since we came into the Chamber. The noble and learned Lord said that the privilege was that of the Bill of Rights. I wonder whether it is in fact an older privilege against suing and being sued, because, if it is so, as I suppose, then the case made by the noble and learned Lord, Lord Simon of Glaisdale, about waiving the privilege is very much strengthened because there are then plenty of precedents in favour of the case he advances, which is that the proper procedure is for the Member or the Peer to go to his own House and ask the leave of the House to waive the privilege.
The privilege is that of the whole House. Each House of Parliament is sovereign over its own proceedings, and, as I see it, it is not proper for any one but the whole House to attempt to waive its privileges. That is why I feel a grave doubt about putting statements about parliamentary privilege and parliamentary procedure into an Act of Parliament, because it has been clear, at least for 400 years, that neither House has any authority whatsoever over the privileges or the proceedings of the other. That is a jealousy guarded point. But what goes into a statute has the authority of both Houses. It, in effect, allows whichever House prevails in a disagreement to legislate a procedure for a ruling on privilege which may conflict with the wishes of the other. That is the tip of a very, very large wedge. I have no wish to see the House pass it. So I hope that we will think for a long time before inserting any such provision into an Act of Parliament.
So far as concerns Parliament, a resolution of each House in the relevant case is sufficient. Where we need to think more--the committee recommended by the noble and learned Lord is the right place to do it--is of the protection of the courts, because of course the House may waive its privilege but since that is not in an Act of Parliament it does not free the courts from the obligation laid down in the Bill of Rights. To do that, we need another and a different amendment, saying that the courts shall not be held to be in breach of the Bill of Rights in any case in which the relevant House of Parliament has chosen to waive its privilege. For that amendment, I would vote; for the amendment before the House at present, I regret to say that I would not.
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