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The Lord Chancellor: My Lords, the noble says that that invitation is not taken up very often. The matter of waiver would be a matter for the individual Member of Parliament, and in relation to this amendment it leaves it open to the individual Member whether or not to exercise that waiver.
Assuming that the law laid down by Mr. Justice May and Mr. Justice Owen is correct, following Prebble, as they thought they were, anyone can defame a Member of Parliament in respect of that Member's participation in the proceedings of Parliament without that Member of Parliament having any possibility of obtaining redress in the civil courts for that defamation.
The noble Lord, Lord Lester of Herne Hill, who at an early stage was sympathetic to the amendment, has indicated some reasons against it: that it may prevent free speech and so on. The alternative is to leave unresolved the problem that a Member of Parliament can be defamed in respect of his central activities as he participates in the proceedings of Parliament without remedy in defamation which would be open to any ordinary citizen.
I believe that a sufficient case has been made for this amendment for your Lordships to consider carefully whether or not it should be part of the Bill when it goes to the House of Commons on the distinct understanding that this matter will have to be debated and considered very carefully in the House of Commons before this remedy is afforded. I am not aware--and I have not been made aware in the course of this afternoon--of any other solution which is likely to be effective. Those matters are for your Lordships to consider.
As I said, the Government's view is that this should be an entirely free vote. That is the position that we shall adopt in relation to this matter. My personal view is that it is right for your Lordships to give the House of Commons an opportunity to consider it.
The Earl of Balfour: My Lords, I should like to ask one question of my noble and learned friend the Lord Chancellor. If we do vote against accepting the amendment, does another place have an opportunity to discuss it?
The Lord Chancellor: My Lords, it would be open to a Member in another place to table such an amendment which would then be discussed there. The advantage of this amendment is that it comes from a completely independent source; namely, it was moved by my noble and learned friend Lord Hoffmann from the Cross-Benches. As my noble friend will know, there are no Cross Benches in another place.
Lord Renton: My Lords, I wonder whether my noble and learned friend the Lord Chancellor will deal with one very important point. This amendment deals with waiver of parliamentary privilege and protection in defamation proceedings only. But of course, if the matter can arise in relation to defamation proceedings, may it not arise also in relation to proceedings for breach of contract, especially if fraud is alleged, and in other kinds of proceedings including criminal proceedings?
The Lord Chancellor: My Lords, this Bill deals with defamation. Therefore, I submit to your Lordships that it is proper to deal with this only, if at all, in the context of defamation. This Bill does not allow us to deal with a whole range of proceedings. But your Lordships may well feel that in relation to an important matter of this kind, it may well be right to proceed in stages. This Bill has provided an opportunity to raise this matter in relation to defamation, which was after all the subject matter of the cases giving rise to the problem. When a Bill dealing with that very subject matter is before the House, it might be appropriate to deal with that aspect at least.
Lord Hoffmann: My Lords, I said when moving the amendment that I did not see my role as that of an advocate for the amendment but rather to put the matter before your Lordships for debate. Therefore, I trust that your Lordships will not think it any discourtesy if I do not reply to the points made during the debate.
I have listened with great respect to the arguments which have been made against the amendment. On the other hand, it is clear that there are noble Lords who are in favour of it. In those circumstances, it would be wrong not to test the opinion of the House. I commend the amendment.
Resolved in the affirmative, and amendment agreed to accordingly.