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Court Proceedings (Parliamentary Papers)

Volume 975: debated on Monday 3 December 1979

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I have selected the amendment in the name of the hon. Member for Lewisham, West (Mr. Price).

On a point of order, Mr. Speaker. I am grateful for your remarks, but the amendment refers to the doubtfully defined question of what is a proceeding in Parliament.

The matter was considered by a Joint Committee of both Houses, which included several Law Lords and a number of Queen's counsel from both sides of this House. The report of that Committee ought to be available to hon. Members for our debate.

I made sure that both my secretary and I asked the Vote Office this morning and this afternoon for the report. The Vote Office conveyed the request to Her Majesty's Stationery Office before its penultimate run of papers to the House, but the report was not included on that run or on the last run. I discovered to my amazement that the last run of papers to the House from HMSO is at 4.15 pm, whereas we are about to begin a debate on the subject at 10 pm.

It will not be much good if hon. Members are not able to refer to papers that are relevant to the debate. The business was set down on Thursday for debate and appeared on the Order Paper on Friday morning, which did not give a great deal of time for hon. Members to get the relevant information. Hon. Members should have that relevant information. It is not directly referred to in the report that we are debating, but my hon. Friend the Member for Lewisham, West (Mr. Price) is clearly moving his amendment because he realises that the report is, in some respects, incomplete.

May I ask you, Mr. Speaker, therefore, whether we could defer the debate until arrangements can be made for all relevant reports to be before the House?

The Chancellor of the Duchy of Lancaster and Leader of the House of Commons
(Mr. Norman St. John-Stevas)

On a point of order, Mr. Speaker. It may assist the House if I say that I shall be happy to accept the amendment of the hon. Member for Lewisham, West (Mr. Price).

Further to that point of order, Mr. Speaker. Is it possible for the right hon. Gentleman to accept an unmoved amendment? I have not moved anything yet, and I understood that the Chancellor of the Duchy of Lancaster would be opening the debate.

10.3 pm

The Chancellor of the Duchy of Lancaster and Leader of the House of Commons
(Mr. Norman St. John-Stevas)

I beg to move,

That this House gives leave for reference to be made in future Court proceedings to the Official Report of Debates and to the published Reports and evidence of Committees in any case in which, under the practice of the House, it is required that a petition for leave should be presented; and that the practice of presenting petitions for leave to refer to parliamentary papers be discontinued.
I hope that it will be for the convenience of the House if I briefly summarise the purpose and background of the motion. If the motion is approved, it will no longer be necessary, as hitherto, for petition to be made to the House for leave to make reference to Hansard or to publish reports and evidence of Committees in court proceedings.

The proposal essentially derives from a recommendation in the first report from the Committee of Privileges in Session 1978–79.

I hope that my right hon. Friend will forgive me for intervening, but his speech may be read outside the House and he has referred to evidence before Committees. He would have done better to refer to published evidence, because the motion does not extend to unpublished evidence given before Committees.

I am most grate-for that helpful correction.

In one detailed respect, to which I shall refer in a moment, the motion goes slightly wider than the recommendation in the Committee's report. That is why my motion does not simply invite the House to agree with the Committee's report.

The background to the report from the Privileges Committee was a case in the Central Criminal Court last year when reference was made to Hansard without the leave of the House having been obtained. That gave rise to a reference to the Select Committee on Privileges, which concluded that neither the judge nor counsel for the Crown in the case concerned had made use of the Official Report in a manner which could affect the privileges of the House. The Committee went on, however, to question the general utility of the present practice of petitioning for leave to quote Hansard in court and to consider whether, as the Clerk of the House had suggested in evidence, it might not perhaps have become a meaningless formality and of little practical value in maintaining necessary parliamentary privilege.

The inquiries made by the Committee revealed some substantial gaps and uncertainties in the history of how the present procedure had grown up and what precise purpose it was designed to serve. The original 1818 resolution, from which the present practice stems, appears to have been primarily concerned with the requirement for the leave of the House to be granted for the attendance of its servants to give evidence in respect of House proceedings. This safeguard of the privileges of the House is clearly still necessary, but the need for the subsequent extension whereby petitioning has been required even in the case of a straightforward reference in court to the Official Report seems always to have been far less obvious. This has been particularly so since the decision of the House in 1971 not to entertain, except in certain very limited circumstances, any complaint of contempt or breach of privilege in respect of the publication of any debate or proceedings of the House or of its Committees.

The change now proposed is, therefore, a limited one. It in no way affects the House's right of free speech. Nor does it alter the legal position with regard to the restrictions on the use of references to the Official Report or reports and evidence of Committees which can be put in the courts. I am sure that the House will agree with the view, expressed by the Clerk in his evidence to the Privileges Committee, that the House has every right to insist that in this respect the Bill of Rights is meticulously observed. The relevant article—article 9–of the Bill of Rights states that
"freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament"
and that the counts have a duty to ensure that there is not a shadow of an erosion of the rights and privileges of the House on this score.

This is the nub of the matter. Several Committees of this House—some of them Joint Committees—have suggested that this matter has never been defined and needs definition. Would it not be better, therefore, to define it first? Alternatively, if the right hon. Gentleman, on the advice given to him, wishes to advise the House, what does he think the Bill of Rights means?

I think that I am quite the wrong person to define the meaning of the Bill of Rights. The people to give a definition of the Bill of Rights have long since passed from us, and the only people who can authoritatively interpret it are the courts. I do not think that anyone else can give an authoritative interpretation.

All I am concerned to say is that it is essential that the Bill of Rights is meticulously observed, and, should the hon. Member for Lewisham, West (Mr. Price) be so minded as to move his amendment, I should have no difficulty in accepting it. With these continuing safeguards, I do not think that the privileges of this House or Parliament's relations with the courts can in any way be jeopardised by this proposal.

As I have said, the motion differs slightly from the original recommendation made by the Privileges Committee. That recommendation proposed the discontinuance of the present petitioning proceedure only in respect of references to the Official Report. There appears to me to be no good reason, however, why the need for petitions should continue in respect of references to reports and evidence of Committees if the need for petitions in the case of references to Hansard is to be brought to an end. The motion makes provision accordingly and extends the discontinuance of the present petitioning procedure to cover references to published reports and evidence of the Committees of this House.

I therefore commend the motion to the House. It will clarify a matter that has remained uncertain for some time, particularly since the 1971 resolution on the publication of proceedings. It will, I believe, get rid of some cumbersome and unnecessary formalities. I am confident that it will do so without detracting in any way from the necessary privileges of this House. As we saw from an incident that happened here last month, this provision still applies in the House and it can cause controversy. The hon. Member for Lewisham, West pressed me to take action on this matter, and I hope that he will be satisfied with the speediness of my response.

10.11 pm

I beg to move, in line 1 of the Question, after "House", to insert

"while re-affirming the status of proceedings in Parliament confirmed by Article 9 of the Bill of Rights,".
I agree with and commend the Leader of the House inasmuch as I pressed him to bring this matter—and, indeed, another matter to which I intend to refer later—before the House. In the sense that he has offered me half a loaf, I supose that might be described as better than no bread. However, the further one goes into this matter, the more one finds that it is of rather deeper constitutional significance—

—than some have led us to believe.

The phrase "meaningless formality" that was given to this procedure by our former Clerk is not a fair description of the procedure that we use. It is a procedure which in 1818 the House felt was very important indeed. Indeed, as recently as 1975 Mr. Speaker Selwyn Lloyd said that
"The custom of the House at present is that the House allows its records to be referred to in a court of law or to be proved by one of its Officers only with leave of the House. This is an attempt to preserve the privilege of the House.—[Official Report, 18 July 1975; Vol. 895, c. 1931.]
I do not think that Mr. Speaker Selwyn Lloyd was there talking about a meaningless formality. He quite clearly recognised that there was some point to this procedure, and I do not think that we should lightly throw it away; or, if we are to change our procedure, I think that we should do so in a way that ensures that we know what we are doing so that there is no complaint later.

I should like briefly to outline how we got to the present position. Throughout the last two years, I and some of my hon. Friends who are not present tonight were responsible for two references to the Committee of Privileges. The first was when we named a certain colonel—Colonel Johnstone—and a debate took place as a result of which the events of the day in question were referred to the Privileges Committee. The naming of that colonel was connected with a contempt action, which in itself was connected with a criminal proceeding under the Official Secrets Act, which later became known as the ABC trial.

Throughout the months of September and October 1978, while the trial was going on and while the House was not sitting, I attended most of the proceedings of that trial. It is worth saying, as I explained to the Privileges Committee, that I considered it an affront that section 1 of the Official Secrets Act was being applied to journalists in a way that I felt was utterly oppressive to freedom of speech in Britain.

At that trial, I also discovered that, when it suited the barristers and the judge, Mr. Justice Mars-Jones, they felt quite free to quote Hansard right, left and centre. That was in a criminal case, without so much as a by-your-leave and without coming to the House. It struck me that not only was the Official Secrets Act being applied in a capricious manner but that our rule about reference to Hansard being quoted in the courts was being applied in a similar way.

Again, because I felt it necessary to draw attention to the way in which the case was being conducted, I used the new method of raising privilege in the House. I believe that I was the first person to do so. In that way it is not done openly but I had to prove before Mr. Speaker that a prima facie breach of privilege had taken place. In some trepidation, Mr. Speaker allowed that while the case was going on, fearing that the sub judice rule might be broken. The matter went to the Committee of Privileges.

No doubt the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) will contradict me, but I felt that this matter was dealt with far more rapidly than the other matter which was before the Committee. A two-paragraph report was produced, based on a much longer and fuller report by a Clerk of the House. In his report, the Clerk admitted that he had been in the wrong but felt that it had done the House no harm and that, in order to get rid of such things in the future, we should not bother about them.

As the hon. Gentleman has referred to me, in fairness he must admit that that is a partial exposé of the proceedings of the Committee. We had before us the lengthy and learned memorandum by the then Clerk. We appreciated the importance of the matter but came to a clear conclusion which, with respect to the hon. Gentleman, was the conclusion to which one could not fail to come on a study of that memorandum and the precedents therein cited.

I cannot find any reference in the report to the five, six, seven, eight or nine reports in which the matter is referred to. It may be mentioned, but I do not see it in the Clerk's memorandum or the Committee's report. If they did not consider those, it is possible that something was missed out.

I do not wish to go into that matter. I feel that it would be far better gone into by my right hon. Friend the Member for Ebbw Vale(Mr. Foot) and the right hon. and learned Member for Hertfordshire, East. They are the sole survivors of the Committee of Privileges of the previous Parliament who have attended the debate. I know that the Leader of the House was translated to the Committee of Privileges at a somewhat later stage. No doubt, those hon. Members can comment on the remarks of my hon. Friend the Member for Nottingham, West (Mr. English).

What I say is that the first report took rather less time than the second report. It is fair enough to put it that way. The Committee reached the conclusion that, although my complaint was justified in its actuality and a "proper" case—a slightly patronising phrase—for the Committee's consideration, more because it gave rise to the opportunity to examine the rules and practice of the House, neither the judge nor counsel for the Crown had made use of the matter in a manner which could affect our privileges. That may be so; that was the judgment that the Committee made. Nevertheless, it was not the feeling that I had sitting in the court when the various statements of various Home Secretaries were being used. The lawyers will probably say that they were not used to interpret a statute, but they were certainly used in a way in which I felt they should not be used in a case of that sort. I have never said that the judges should not have absolute independence and freedom to say what they want, but I also feel that we should have absolute freedom to say what we want. The less that we tangle in that way, the better. We should keep our privileges absolutely separate.

I felt that Hansard was used in an inappropriate way to try to decide the case. The criminal case fizzled out with conditional discharges for the two journalists, and the House of Lords found that the contempt case had not been proved and quashed the whole thing. That case was the original basis of the reference to the Committee of Privileges and became the basis for its second report after I had given evidence.

The report of the Committee of Privileges says that the provisions of article 9 of the Bill of Rights, reinforced by the care taken by courts and tribunals to exclude evidence that might amount to infringement of parliamentary privilege, amply protect the privilege and freedom of speech of the House. However, that statement needs examining. I referred a case to the Committee of Privileges, which retrospectively said that, although permission was not asked, no apparent harm had been done.

Instead of trusting ourselves to pass a resolution before allowing the courts to dabble in our evidence to settle their cases, the resolution puts the onus on judges to make the decision, and I am not certain that I want to do that. I therefore put down my gentle amendment, and I am grateful to the Leader of the House for indicating that he might accept it. It is simply to remind judges, if it behoves them to read our resolution, that it is passed only while emphasising that the Bill of Rights has total priority. The resolution may not ask the judges to consult us every time, but any material from this House that might call into question our proceedings must not be admitted into court at any time.

My motives have been misunderstood. My hon. Friend the Member for Bolsover (Mr. Skinner) has always misunderstood my motives, but if he hears me out he may understand me better.

I have not always misunderstood my hon. Friend's motives.

Only on this occasion. The right that we have to say things that no one in Britain can say elsewhere is absolutely priceless, and we must hold on to it. A study of history shows how important that is. Richard Cross man, Barbara Castle and George Wigg quite properly used their privileges in the House to open the Profumo affair to the public gaze and make the House debate a matter about which everyone knew. We have the privilege to say such things without their being brought into court.

Last year, four hon. Members named Colonel Johnstone in the House. It was not a party matter. We felt that the Attorney-General was being completely oppressive in sanctioning the use of the Official Secrets Act against journalists.

I readily acknowledge that my hon. Friend the Member for Bolsover played a far more important part in the recent business surrounding Anthony Blunt than I did. Absolutely properly, my hon. Friend used his parliamentary privilege in introducing, in a notice of motion, the words "Sir Anthony Blunt", so that the statement which was made the following day was an absolutely full statement, which otherwise it might not have been.

In what way will that privilege be under threat if the motion is carried? Suppose that tomorrow we manage to get the name of the fifth or the sixth man. Suppose that someone says it is the Duke of Edinburgh, or something like that.

I will tell my hon. Friend.

At this point, Mr. Deputy Speaker, I think I ought to declare an interest. I am being sued at the moment for libel. It arises over a book that I wrote. It was published outside this House. I do not think that the matter will come to court, because it is a maniac who goes to court as a defendant in a libel action. The sensible thing is to settle. But, if the matter were to come to court before this motion is passed, and I wanted to prevent the person who is suing me—he happens to be a former member of the Metropolitan Police—from using every mention by me of the Metropolitan Police in this House since I became a Member, I could do so by opposing his petition to mention those references. But, once the motion before us is passed, he will be able to say what he likes. I am not a lawyer, but I understand that in libel actions one way of proving a case against the person being sued is to collect everything he has said over a lifetime and then invite the jury to come to the conclusion that it all adds up to show that he is prejudiced against the police—or against Scientologists, or whoever it might be—and to come to the further conclusion that he is malicious and has been using malice.

My point is that extracts from Hansard, which are meant to be protected, could be used in that sort of way against me. I am not saying that this would happen very often, but we have to be careful about anything which infringes freedom of speech in this House or anything which makes people less likely to say things in this House which they feel they have a duty to say. We have to be careful about any sort of intimidation, especially on the part of powerful groups outside this House which have the power to hire more expensive lawyers than my hon. Friends or I would ever have the money to hire. Anything which would have that effect ought to be examined with very great care.

That is the only issue with which I am bothered here. As for anything else, I am with the Leader of the House. Let them quote the lot. But the judges should be put on warning that using Hansard against hon. Members in an intimidatory manner ought not to be permitted. Hansard should not be admitted in evidence in that way.

Putting down the amendment and having this debate is one way that we have in this country of putting judges on warning. The debate might get a bit of publicity. It might serve to remind our courts of the separation between the courts and Parliament and of what their duties should be. It is often assumed from reading our former Clerk's memoranda that these petitions always go through and that there is no problem—that it is just a meaningless formality. That is not so at all.

My hon. Friend will remember that our right hon. and learned Friend the Member for Dulwich (Mr. Silkin), the then Attorney-General, wanted to quote Hansard in 1975 to sustain what I think was a thoroughly scurrilous action designed to prevent the publication of Richard Crossman's diaries. Those diaries provide the most splendid window through which to see how government works that has appeared in Britain since the Second World War.

When the then Attorney-General wanted to introduce Hansard into evidence, hon. Members on both sides of the House, including the hon. Member for Tiverton (Mr. Maxwell-Hyslop) and my hon. Friend the Member for Nottingham, West, were so affronted that they, very properly in my view, used the procedures of the House to drag the debate on until fewer than 40 hon. Members were present, so that when the vote took place the motion fell. It was, therefore, not possible for my right hon. and learned Friend the Member for Dulwich to use Hansard in trying to sustain his case. I am happy to say that, at the final fence, his case collapsed and the Cross-man diaries were published.

We are not getting rid of a meaningless formality at all. It is a very real instrument which this House has quite recently used. I am not making a party point, because my own party's Attorney-General was involved. I have an enormous respect for him in other ways but not in relation to the prosecutions he launched in that particular way.

We are talking about a great deal more than a narrow little change. We are talking about the very basis of freedom of speech in this House. It may be said that we can trust the courts to rule out evidence which would contravene the Bill of Rights. I hesitate to quote my right hon. and learned Friend on the courts. He has said some very eloquent things about the courts from time to time, and I agree with him that if we had trusted our judges over the past 400 or 500 years we would not have our present democratic House of Commons.

I do not trust the judges that much. The real danger we are in at the moment is that it is the judges who are making the inroads into parliamentary power day in, day out. Lord Denning said, off the cuff, the other day that a Bill had been passed in Parliament by only one vote and that was the reason for his making a particular ruling. I believe that that is the sort of arrogance that the House ought to stand up against and is another reason why we should be very careful of handing over a single privilege of this House to the judges.

Some of the judges are nice people, but they have quite different views and interests from our own. We are the democratic representatives of the people and they are the judicial appointees of the Crown. The two roles are quite different. I believe that we should cling on to our privileges, and that we should have more and should hand fewer of them over to the judges.

There is another issue upon which my hon. Friend the Member for Nottingham, West may have rather more to say than I have. We use the words "proceedings in Parliament" in the Bill of Rights and in our reports of the Committee of Privileges. My hon. Friend is quite right. Nobody has the faintest idea what the words "proceedings in Parliament" mean. Since we have begun to broadcast our proceedings, I think that the position becomes even more difficult if we hand over, wholesale, for the consideration of the courts both the written record of Hansard and, side by side with it, the broadcast oral record of our proceedings.

Anyone who has compared the broadcast record of our proceedings with Hansard knows that the two do not coincide. That is no problem for us, because Mr. Speaker can rule that what he hears is what is published in Hansard. He hears what he hears and that is an end of the matter. If Hansard and the tape recording can be adduced in court—

The hon. Member makes an interesting point. However, the motion refers only to the OfficialReport. The tape recordings are not the official report.

I know that they are not the official report of the House. I was trying to define "proceedings in Parliament". We refer to the Official Report and not the tape recording, but the judges say something different. Lord Denning is good at that.

At present, the copyright of the tape of our proceedings is vested in Tannoy or the BBC but not in the House of Commons. I cannot see that the tape could fail to be produced in court if a court ordered its production. A company such as Tannoy has no rights or privileges. Since that is so and the Official Report can be compared with the tape, it must be possible to ask which is right if they differ. If that is possible, the difference can be explained only by the Editor of Hansard and his staff. The Committee of Privileges cannot be summoned before a court without the permission of the House. Where do we go from there?

I do not know where we go from there. I am simply asking questions which I am sure the Minister will be able to answer.

I have been involved, with the hon. Member for St. Marylebone (Mr. Baker), in an excellent programme called "Party Pieces" which is broadcast on Capital Radio at 7.30 p.m. each Friday. The structure is little bits of chat by the hon. Gentleman and I, and bits of réalité, or real talk, from the House. When one compares that with the account in Hansard, one is sometimes faced with two different versions. I do not say that this resolution refers to the broadcast record of the House, but once Hansard is adduced in evidence somebody might produce something which proved or disproved Hansard.

The Committee of Privileges did not give as much thought to this matter as it should have done. The Leader of the House was not fair to bring forward one report of the Committee which deals with quoting Hansard in court while not dealing with the more important report. As a result of the Colonel B episode, that report recommends that we should accord to fair accounts of our proceedings in the newspapers the privilege which we already accord to Hansard. That is particularly important since only last year Mr. Thomas He Herington, the DPP, issued a statement threatening the newspapers with prosecution if they printed what was said in Hansard. He did not prosecute them in the end, because the papers and the BBC saw it for the empty, stupid, idiotic threat that it was in the first place. It was an attempt by the DPP, under the control of the Attorney-General, to gag the House.

I thought that we should get all the reports of the Committee of Privileges. In fact, we have what I consider to be the least important and the least well considered report of the Committee.

Although I move my amendment, because I think that it would improve the motion, until I hear the right hon. Gentleman I am not satisfied that we have it right yet.

10.40 pm

It is a pleasure and privilege to follow the hon. Member for Lewisham, West (Mr. Price), who has, to my knowledge and the knowledge of the House, taken a close and continuing interest in these matters, and has made a substantial contribution to them.

Having said that, I at once dissent from two of the hon. Gentleman's propositions. First, his picture of a judiciary eager to encroach upon and usurp the privileges and prerogatives of Parliament is farfetched, to say the least, and does not at all accord with the sensitivity of the members of the judiciary, as I know them, to the privileges and position of Parliament. Secondly, I cannot accept the hon. Gentleman's criticisms of the report and proceedings of the Committee of Privileges, although I think he will confirm that they were very friendly exchanges that we had in the Committee.

We are here dealing with one of he privileges of the House. I have never liked the word "privilege". I do not like it in this context. In reality, what we in our parliamentary idiom call "privilege" is the mechanism for protecting freedom of speech and the practice of parliamentary democracy. So it is important, because everything concerned with Parliament's position is important.

But we should not exaggerate—perhaps the hon. Gentleman did a little—the importance of the motion. It is essentially part of the tidying-up process which must continually go on in Parliament, whereby each Parliament in its generation seeks to bring its practices and procedures into line with contemporary realities and requirements.

It is one of the agreeable paradoxes of this place that any attempt to review and update parliamentary procedures brings out all the innate conservatism of some of our radical Members. That is no doubt gratifying, although paradoxical in its way.

For myself, I am content to bring the letter of our procedures up to date if the spirit remains intact. In the words of the Clerk's memorandum to the Committee, at paragraph 36,:
"In these circumstances the Committee may wish to consider whether the procedure by way of petition for leave and a subsequent order for leave has now become"—
and then there follow the words that the hon. Gentleman did not like—
"a meaningless formality and of little practical value in maintaining the privileges of the House; and whether as such the procedure could be dispensed with."
We came to the conclusion that it could be dispensed with.

Our distinguished Chairman is nolonger with us. The hon. Gentleman has said that the right hon. Member for Ebbw Vale (Mr. Foot) and I are the sole relics. It sounds rather like the yoking of Anselm and William Rufus.

The question whether the words "meaningless formality" are a little pejorative is neither here nor there. The important thing is whether, as such, the procedure could be dispensed with. In our view it could, in the terms of this motion as amended; and I am here tonight to defend the decision.

Can the right hon. and learned Gentleman explain something that puzzles me? Paragraph 2 of this very short report approves of the Resolution of 26 May 1818:

"in respect of the matters to which it strictly relates".
One of those matters is:
"That all witnesses examined before this House, or any committee thereof, are entitled to the protection of this House, in respect of anything that may be said by them in their evidence."
At the moment witnesses are undoubtedly protected because what is said cannot be repeated before any other court without the permission of this House. If this motion is passed, such matter will be capable of being repeated. I know that the right hon. and learned Gentleman and I agree that that does not mean that those witnesses could then be sued in defamation. But surely it could be quoted against them as, perhaps, contradictory to something they said in some other circumstance, in some other type of action. If it could be quoted against them, how will the House have the opportunity to protect them for what was said before us?

They will not need that protection because they keep the protection given them under the 1818 resolution. The only thing that is taken away is the requirement of leave to cite Hansard. If the hon. Member for Nottingham, West (Mr. English) studies the cases with the care that he habitually uses, he will appreciate that that does not expose hon. Members to any penalties or threats of action. Indeed, they would have a legal privilege for what is said in court in addition to this privilege.

I do not want to take up too much time but I should like to make three short points in this context.

Before the right hon. and learned Gentleman goes on to fresh territory, I should like to ask him a question on the point raised by my hon. Friend the Member for Nottingham, West (Mr. English). In 1973–74, Alan Grimshaw gave evidence before the Select Committee on Nationalised Industries with regard to the sale of pit props. There was an investigation by that Committee as to whether there had been any corrupt practices. Alan Grimshaw, who worked for the National Coal Board in a responsible position, gave evidence and has not had his job back since that time. It is a matter that has been raised in the House many times, not only by myself but by many other hon. Members, asking for it to go before the Committee of Privileges. What the right hon. and learned Gentleman is saying is that in theory there should be no Alan Grimshaws thrown out of work by the NCB because they have given evidence against certain management personnel of the NCB. However, that gentleman is still writing letters to Members of Parliament and others trying to have his case investigated. So in practice it does not work out as the right hon. and learned Gentleman suggests.

The hon. Member for Bolsover (Mr. Skinner) has raised an interesting point. However, it is a wider matter. Mr. Grimshaw's position vis-à-vis the National Coal Board, or any subsequent employer, is not changed by the terms of this motion. This is a narrow motion simply referring to the citation of Hansard in a court of law.

The three short points that I want to make are as follows. Petitioning for leave is a formality, and it is certainly not a very significant formality, because in practice leave is never refused. When the House is in recess, leave is actually given by Mr. Speaker without reference to the House. Therefore, it is not a very substantial matter. Indeed, its basis is somewhat tenuous, as the House can see from the memorandum of the Clerk at paragraph 31:
"…it is doubtful whether the House has ever addressed itself to the question whether leave of the House is required for the production of Hansard and other published documents in court. There is no resolution of the House on this score and no case of production without leave has hitherto been treated as a contempt."
That is my first point. I come now to the second.

The practice which we are today amending or rescinding had its origins at a time when publication of the proceedings of the House itself was forbidden. That dates back to the resolution of 3 March 1762, and hon. Members can see reference to it at paragraph 28 of the Clerk's memorandum which sets it out in full. But it is in the recollection of many here present that that practice was discontinued by resolution of the House in July 1971, which also is set out in the memorandum, at paragraph 29.

We are, therefore, in a different climate and a different situation from the time when the resolution was in full operation.

I shall give way, but I am trying to be brief, since otherwise my right hon. Friend will not be able to reply to all the interesting points that the hon. Gentleman puts.

I am sure that the right hon. and learned Gentleman wishes to be fair. He will agree that the resolution of 1762, together with other resolutions of the eighteenth century—the one in 1762 was not the only one—had by early in the nineteenth century been forgotten and dropped. Although that particular resolution was not formally rescinded until the date that the right hon. and learned Gentleman gave, for a long time Hansard,either as a private publication or as the Official Report, had been published.

Yes, but the hon. Gentleman must try to be consistent. He says that the resolution of 1762 was quietly dropped and that was a good thing. I am here saying that this practice should be dropped, not quietly, not by subterfuge, but openly and properly. He should support that and agree that we are tidying up the procedures of the House.

I come now to my third point, which is, perhaps, the most important. The work of the House and its proceedings were very different indeed in 1818 when the resolution was passed. In those days the majority of the work of the House of Commons was not the public legislation as of today but was in Private Bill and Local Bill legislation. Hon. Members have only to go to the Library to see from the statute books that that was so.

That was the reason for the resolution. It appears clearly in the terms of the resolution itself:
"That all witnesses examined before this House, or in any committee thereof, are entitled to the protection of this House, in respect of anything that may be said by them in their evidence."
It then goes on to refer to the minutes and so forth. That is what it was concerned with. It was not concerned with the ordinary give and take of public debate on great national issues such as we have today and which dominate the columns of Hansard. It is an entirely different scenario, and, after 160 years or so, even we less radically-minded Members begin to think that perhaps there is a case for bringing the matter under review and bringing it up to date.

My right hon. and learned Friend is a distinguished lawyer, and I should appreciate his view on whether the circumstances of the new scenario might precipitate a change in the construction of statutes. If it is to be the law in future that the Official Report of the House can be cited in courts of law without the leave of the House, how long will it be before the courts are construing documents with reference to Hansard, without the leave of the House? Would that not be a retrograde step in the development of our law?

Like the hon. Member for Bolsover, my hon. Friend seeks to enlarge the scope of the debate into an interesting area. However, I am always apprehensive when anyone prefaces his observations by referring to me as a distinguished lawyer. I know then that I had better be very careful.

Parliament differs from many practices of the court, because normally, in English law, a statute cannot be construed by reference to the travaux preparatoires—in other words, the debates that gave rise to it. As we adhere to the Community, that may go. My hon. Friend must not tempt me into wider aspects, as I do not wish to delay the House.

It was to the protection of those witnesses and proceedings—primarily in Committee—that the resolution of 1818 was mainly directed. That resolution was therefore concerned with very different matters from the mere citation of Hansard,covering the broad issues with which Parliament is concerned. Anyone can buy Hansard today if he can afford it.

Will the right hon. and learned Gentleman, in his most distinguished capacity—or any capacity he wishes—answer another question that might help us? Does he not think that the debate tonight shows that it might be better for the House to consider all the reports together, particularly in the light of the intervention by the hon. Member for Burton (Mr. Lawrence)? Some of those reports touch on one another. When the Committee of which we were both members agreed on the report and recommended it to the House, it did so in the context of the other recommendations. That recommendation was correct, particularly as the point concerning the Bill of Rights has been so properly emphasised. Does not the right hon. and learned Gentleman think it is wiser to discuss those reports together—as it is not a party issue—so that we can look at the connection between them? We might thereby obtain a better resolution of the subject than by picking out one report, and one aspect of that report, when obviously several hon. Members wish to raise cognate matters.

I agree to the extent that I always like such matters to be debated on the Floor of the House as much as possible. The right hon. Gentleman, as a former and distinguished Leader of the House, knows that such matters are not for me. I am a humble Back Bencher and, rather like James Forsyte, I sometimes feel "Nobody tells me anything".

Of course this is a matter for the right hon. and learned Gentleman. No recommendation from the Select Committee can become part of the accepted procedure of the House until it has passed through a proceeding such as this. He has as much right to influence it as others. Perhaps the House of Commons can best deal with such issues if we take together those matters that we considered for many hours in Committee. The Leader of the House has picked out one of those reports—one aspect of the matter—and presented it to the House. However, the debate indicates that hon. Members wish to raise other issues as well. The final say rests with the House of Commons. No procedures of the House can be changed unless the House agrees. No twopenny-halfpenny Committee can change those procedures.

Constitutionally and procedurally the right hon. Gentleman is correct. I do not know about his description of that Committee as considering the inflation that took place under the Labour Government, the phrase twopenny halfpenny seems rather pejorative. I am being led to take longer than I had intended, and I will leave it to the Minister to answer that point as he will do very well.

The right hon. Member for Ebbw Vale mentioned the Bill of Rights. I wish to conclude with a reference to the Bill. As the right hon. Gentleman will recall, in coming to its decision the Committee had closely in mind the preservation of the protection given by article 9 of the Bill of Rights for freedom of speech in Parliament. That appears clearly from paragraph 19 of the Clerk's memorandum in which he refers to the Bill of Rights:
"the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."
Mr. Justice Pearson, as he then was, a distinguished jurist, said in his judgment, to which the memorandum refers:
"In my view, it is quite clear that to impugn the validity of the report of a select committee of the House of Commons, especially one which has been accepted as such by the House of Commons by being printed in the House of Commons Journal, would be contrary to section 1 of the Bill of Rights. No such attempts can properly be made outside Parliament."
In coming to our decision, we had in mind the necessity of the basic protection given by the Bill of Rights to the proceedings of Parliament. The amendment makes that crystal clear and therefore I wholeheartedly support the amendment, as well as the motion.

By tonight's work and the work of the Committee of Privileges, we shall have achieved a sensible, salutary solution and will bring our procedings into line, in this respect, with contemporary circumstances and requirements, while maintaining the basic defences of our freedom of speech and parliamentary practice.

11.2 pm

The Committee of Privileges is the oldest and most senior of the House's Committees and we set it up so that it could consider questions that Mr. Speaker rules to be prima facie breaches of privilege. If the House considers that there is a prima facie breach, it may refer the matter to the Committee of Privileges, which includes the Attorney-General, to consider the details of the case and to report to the House whether, in the view of the Committee, a contempt of the House's law of privileges has been committed.

When the Committee goes further and makes recommendations, resulting from an individual case, for a change in the law of contempt of privilege, it is in danger of committing the sin, well known to the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith), that hard cases make bad law.

It is dangerous for a body set up to consider matters quasi-judicially, as we wish the Committee of Privileges to do, to make recommendations for a change in the law of Parliament which it is interpreting. For one thing, that law applies to both Houses; and for another it is difficult to tinker with a tiny piece of that ancient structure without bringing the whole thing toppling down.

A Joint Committee of both Houses, chaired originally by Lord Pearce and subsequently by Lord Donovan, of which the Attorney-General who sat on the Committee of Privileges whose recommendation we are considering was also a member, has considered the whole law of privilege, because of the necessity to revise it in the light of broadcasting.

The fact that the reports of the Committee have not been dealt with, and should be dealt with, does not mean that we should deal with one tiny piece of the report separately and in isolation. I shall attempt to show that, if we approve a tiny piece in isolation without considering the whole position, we shall be in grave danger.

I therefore go back to how this all began. You will remember, Mr. Deputy Speaker, that in the 1964–66 Parliament there was still in existence an old institution called the Committee on the Publication of Debates. That Committee discovered that it could consider if it wished the question of broadcasting the House. Although it was dissolved and absorbed into the House of Commons (Services) Committee, it nevertheless considered this precise point.

In its first and only report, the Committee which it became to consider the issue—the Select Committee on Broadcasting, &c., of Proceedings in the House of Commons—on page xviii said:
"The extent to which the broadcasting organisations would be liable for defamatory statements made in the House and subsequently (or simultaneously) included in broadcasts is a point of some obscurity."
I do not wish to go into great detail on that, but the Committee pointed out the situation in Australia, where, of course, the law of this Parliament applied up to the point of separation of the Houses of the Australian Parliament from this one.
"In Australia, where the broadcasting of Parliamentary proceedings was first permitted in 1946, similar questions of privilege were raised: they were met by the inclusion in the Parliamentary Proceedings Broadcasting Act, 1946, of a section which laid down that 'no action or proceeding, civil or criminal, shall lie against any person for broadcasting or rebroadcasting any portion of the proceedings of either House of the Parliament.' "
I have outlined now the beginning of all this issue. It raised a hornet's nest. It was discovered slowly that the issue was by no means clear. It was next considered in 1968, this time by their Lordships' House, by its Select Committee on Broadcasting the Proceedings of the House of Lords. It considered parliamentary privilege and the law of defamation, which are the subjects with which we are mainly concerned at this point. Referring to a previous Committee, its report said:
"That Committee went on to recommend that the whole subject of the reporting of Parliamentary proceedings should be referred to a Joint Committee of both Houses, with strong legal representation in its composition."
It added that it wished to place on record its own agreement with that previous Committee's recommendation. So far, amongst these references, one can find traces of one Select Committee of this House and two of their Lordships' House.

Subsequently, in October 1968, the House of Commons (Services) Committee, which had taken over some of the broadcasting responsibilities, referred, on page vi of its appendix, to the legal problems involved in broadcasting. It mentioned their Lordships' Select Committee report which I have just quoted. It said:
"Another problem which will also require urgent consideration is the state of the law of Parliamentary privilege as it might affect broadcasting."
It went on:
"The Sub-Committee endorse the recommendation—
that is, the one by the Lords' Committee—
"for the setting up of a Joint Committee of both Houses."
Then we come to that Joint Committee. It was originally chaired by Lord Pearce, a Lord of Appeal at the time, and subsequently by Lord Donovan. Its membership included the Earl of Selkirk, Lord Stow Hill, formerly Sir Frank Soskice, who had served as Attorney-General and then as Home Secretary, Charles Pannell, now Lord Pannell, Sir John Foster, QC, my right hon. and learned Friend the Member for Dulwich (Mr. Silkin), later Attorney-General, and for a time Sir Peter Rawlinson, now Lord Rawlinson. I, too, was a member.

That Committee produced two reports. To my knowledge, its first report has never yet been debated in this House. That first report of the Joint Committee on the Publication of Proceedings was printed in December 1969, and simply suggested that the BBC, in terms of live broadcasting, should be put in the same position as the press. Hon. Members may recollect that in about 1952, Lord Lever, then in this House, got a reform of the statutory portion of the law of defamation which enabled the press to quote in almost complete safety, even in abbreviated form, from the proceedings of this House. The press was allowed to quote in substantial safety as a result of what is now called "qualified privilege". That applies to the law of defamation in so far as the BBC summarises the proceedings in its own words, but in so far as it uses the tapes, apparently it does not.

Order. The debate relates to the Official Reports of this House. It is not clear to me exactly how the hon. Gentleman's argument is related to that.

I think that the point will be clear to you at any moment, Mr. Deputy Speaker. If the BBC or the press summarise the Official Reports of this House, they are protected under the law of defamation. If the BBC summarises the proceedings on its tape, or if it broadcasts them in summary form, as it is doing every day, and if anyone wishes to sue on that, he can because that is not so protected. The point at issue is how far they differ. Since they do differ, there is now substantial doubt because one is protected at present whereas the other is not.

It was pointed out 10 years ago that that would be the case if broadcasting were allowed to take place without the law of Parliament being altered. However, I turn to the direct case about which we are talking. The second report of the Joint Committee was much more comprehensive. The first report was intended to be an interim report so that that minor matter could be put right in order that the BBC was put in the same position as the rest of the press.

The minor matter was reported on first so that it could be dealt with quickly. However, it has not been dealt with yet. We then come to the second report, which was what the Committee was set up to do. It was a complete and comprehensive review of what
"changes in the law of defamation and Parliamentary Privilege are desirable in relation to the"—

Order. The hon. Gentleman is in no way illuminating the matter so far as I am concerned. Perhaps he will be good enough to have a look at the motion and return to that.

As I read it, the debate relates to two things. The original motion, which I believe we are not now discussing, related to the publication of proceedings and some change in our law of privilege relating to the publication of

"the Official Report of Debates and to the published Reports and evidence of Committees".
The amendment seeks to insert:
"while re-affirming the status of proceedings in Parliament confirmed by Article 9 of the Bill of Rights."
Given the composition of the Committee chaired by Lord Donovan, it could perhaps be described as being the authoritative text of what a proceeding in Parliament is. Beginning on page 8 of the second report, paragraphs 12 to 34 deal with the very phrase "proceedings in Parliament".

What surprises me is that the Committee of Privileges did not consider this question at all. It is most improper for the Leader of the House to come before the House at one parliamentary day's notice—because this motion was tabled on Thursday and published on Friday—which means that most hon. Members are not aware that this matter has ever been recommended in great detail to the House as a whole.

As I said earlier in my point of order, when Mr. Speaker was in the Chair, the result is that the Government have again slipped up and not produced the documents. I am quoting from the Library copy. That means that nobody else can quote from it. I do not know if the civil servants who serve the Leader of the House have given him a copy. All the other documents that I have here do not come from the Vote Office—they come from my files.

It is incredible that we are discussing the meaning of the words "proceedings in Parliament" without having before us the reports which have attempted to define that meaning.

I am one of those hon. Members who is not informed on this matter. I came into the Chamber to see what was happening. My hon. Friend the Member for Nottingham, West (Mr. English) mentioned paragraphs 12 to 34 of the authority he has before him. I believe that it would be a good thing for him to read out the contents of those paragraphs, so that we know how those proceedings are defined, as we do not have the chance of reading that authority.

Certainly, that is the only way in which the House will be informed on the matter. Lord Donovan and his colleagues said:

"Since these proceedings are expressly made the subject of absolute privilege by the Bill of Rights it is important, alike for Members of either House as for members of the public, to have as clear an idea as possible of what are and what are not 'proceedings in Parliament'. Whilst participating in such proceedings Members are at present immune from being called to account in the Courts for any defamatory statement they make in the course of such participation, however false or malicious it might be: and the member of the public so defamed is without redress. Yet the term has never been defined by statute or judicial decision".
Paragraph 13 continues:
"When the framers of the Bill of Rights used the expression 'proceedings in Parliament' in 1688 and did so in the same context as 'debates' it is probable that they had in mind a fairly simple conception of an assembly where debates were followed by resolutions or bills and the proceedings were not marked by much complexity. In such a situation, the need for a definition of proceedings in Parliament might not have been felt. Matters are very different today when Parliament conducts much of its business through Committees of different kinds and which may at times sit elsewhere than in the Palace of Westminster, and when procedures have been invented which were unknown in Stuart times. the proceedings and usages of Parliament today are dealt with in a standard work…"
Lord Donovan goes on to refer to "Erskine May."

Ten years ago, Lord Donovan was much clearer about the realities of the fact that this House used committees than the right hon. and learned Member for Hertfordshire, East has been. Amazingly enough, the right hon. and learned Gentleman was quoting the use of witnesses before Select Committees in the nineteenth century just after the House has agreed, in spite of the reservations of my right hon. Friend the Member for Ebbw Vale (Mr. Foot), to the setting up of a set of Select Committees. The question of witnesses is now more relevant today than at any time since the nineteenth century.

The 1818 wording is quite specific—before "any committee of this House". It could not be a larger definition than that. That means any committee at the material time in the House of Commons. It cannot mean anything else.

I believe that it can. As the right hon. and learned Gentleman will know, although the House is singular, Committees are plural. A Committee of this House means any two people—the committees, is a better pronunciation. It does not mean Committee in the singular sense that the right hon. and learned Gentleman implies.

Further to that point, is a Joint Committee a Committee of this House? Secondly, a previous Clerk of this House advised me that he was unable to agree with Mr. Speaker's Counsel as to whether the proceedings of the Ecclesiastical Committee were proceedings in Parliament.

I am grateful to the hon. Gentleman for his last, most helpful, point. The Ecclesiastical Committee is not a normal Joint Committee of both Houses, being a Committee set up by statute, as I once had occasion to point out when the statute's procedure was not being followed and something was struck off the Order Paper.

On the hon. Gentleman's first point, I mentioned earlier that the reason why that was best considered by a Joint Committee of both Houses was that both Houses are concerned in the law of parliamentary privilege which is not solely the privilege adhering to either House. A Committee or Joint Committee is covered by that principle, but that is so because it is parliamentary and not just a matter for the Commons or for their Lordships' House.

The Lord Donovan went on to say in paragraph 14 that
"The 1840 Act",
the Parliamentary Papers Act, with which I am sure the right hon. and learned Gentleman is well acquainted
"uses the expression 'proceedings' obviously as meaning proceedings in Parliament, the full expression being 'reports, papers, votes or proceedings', but again no definition of proceedings is attempted."
That was a Committee that included at least two Lords of Appeal, several QCs and other Members of both Houses.

Lord Donovan then quotes the Select Committee on Parliamentary Privilege. To save the time of the House and your patience, Mr. Deputy Speaker, I have not even quoted that one. It is the fourth or fifth of these innumerable reports that have not so far been mentioned in the debate. However, Lord Donovan had not forgotten it.

The Select Committee on Parliamentary Privilege was strongly of the opinion that absolute privilege should attach to matters that are there mentioned.

In paragraph 27, Lord Donovan finally came up with this:
"The Committee agree that proceedings in Parliament should continue to be protected by absolute privilege. They consider, however, that the time has come"—
that was in 1969 or 1970–
"when 'proceedings in Parliament' for this purpose should be defined by Statute."
We are talking about a resolution and amendment before us relating to the words "proceedings in Parliament". We are talking about something which10 years ago it was suggested should be defined. The right hon. and learned Gentleman said that he would accept the amendment, so are we being asked to pass tonight something that is quite literally regarded by a group of eminent lawyers and eminent Members of both Houses as meaningless?

If the right hon. Gentleman wishes to intervene, I shall willingly allow him to do so. However, the right hon. Gentleman determined the length of the debate. As a member of the Government with some influence over the Stationery Office, he determined that this House should not have these papers before it. He is also the man who said that we should have a limited time to discuss a limited subject, without knowing that it was part of a much wider subject and without having the documents on that subject. If the right hon. Gentleman wishes the debate to have a lengthier time, we could well adjourn until such time as he thinks fit.

I am grateful to the hon. Gentleman for giving way. I have no particular axe to grind about this. I merely wish the House to have an opportunity to discuss the various reports of the Privileges Committee. It seems logical to start with one and eventually go on to another. As to the other reports to which the hon. Gentleman referred, they were not referred to in the report of the Committee of Privileges. It is really not reasonable to suggest that they should be made available by me, using some influence over the Stationery Office that I only wish I did possess. Alas, I do not possess it.

I do not feel strongly on the issue. I tabled the motion. I hope that the House will have an opportunity to decide on it. If it does not, no doubt at some other time there will be another opportunity. We may have to wait a bit.

I am grateful to the right hon. Gentleman. It would be better to wait until the reports of the Joint Committee of both Houses on this subject has been considered. We have been described by the right hon. and learned Member for Hertfordshire, East as radicals acting like conservatives. We thought that the Committee of Privileges was supposed to act like conservatives, to act quasi-judicially and to act like a court. Here it is recommending changes in the law rather than interpreting what it is. But that job has already been done, on a much more massive scale, by a Joint Committee of both Houses, which is how it should be done. As was pointed out, it is parliamentary privilege that is at stake and not just the privileges of one House.

But let us consider what Lord Donovan suggested should be included but was not included. Remember that this was approved unanimously by his Committee after he drafted it. He said:
"(1) For the purpose of the defence of absolute privilege in an action or prosecution for defamation the expression 'proceedings in Parliament' shall without prejudice to the generality thereof include
  • (a) all things said done or written by a Member or by any officer of either House of Parliament or by any person ordered or authorised to attend before such House, in or in the presence of such House and in the course of a sitting of such House, and for the purpose of the business being or about to be transacted, wherever such sitting may be held and whether or not it be held in the presence of strangers to such House: provided that for the purpose aforesaid the expression 'House' shall be deemed to include any Committee sub-Committee or other group or body of members or members and officers of either House of Parliament appointed by or with the authority of such House for the purpose of carrying out any of the functions of or of representing such House; and
  • (b) all things said done or written between Members or between Members and officers of either House of Parliament or between Members and Ministers of the Crown for the purpose of enabling any Member or any such officer to carry out his functions as such provided that publication thereof be no wider than is reasonably necessary for that purpose.
  • (2) In this section 'Member' means a Member of either House of Parliament; and 'officers of either House of Parliament' means any person not being a Member whose duties require him from time to time to participate in proceedings in Parliament as herein defined."

    That definition is longer than the whole of the report that we are discussing tonight, but it illustrates that what the report misses out is in many ways much more important than the small points that it puts in. Of course, it is a seemingly small point that this House should consider first whether the wording of an Official Report can be used. It is not a small point when the alter ego of that Official Report, its slightly different brother or its sibling, the sound tape of our proceedings, is easily open and accessible to the courts.

    The House has not yet got round to considering what should be done with that sound broadcasting tape. We were rushed into broadcasting the House of Commons. We were told that, if we did so, as soon as the House of Commons Commission came into existence the copyright in the tape would be vested in it, and that, in the course of passing the necessary legislation on that, something would be considered on this question of how far it should be protected or the BBC should be protected. None of this has been done.

    The right hon. and learned Member for Hertfordshire, East is eminent in the law, but surely if it is now legally possible—

    rose in his place and claimed to move, That the Question be now put.

    I am grateful to you, Mr. Deputy Speaker. It is quite clear not only that the motion before the House is premature but that an utterly inadequate amount of time has been allowed for discussing these very important issues.

    I have seven reports of seven Select or Joint Committees of both Houses of Parliament, none of which has been mentioned so far, except by me. None is available in the Vote Office. It cannot be true that the motion should be—

    On a point of order, Mr. Deputy Speaker. Having moved the amendment in a real effort to get some finish to this business, would you accept from me a motion, That the question be now put?

    It being half-past Eleven o'clock, the debate stood adjourned.

    Debate to be resumed tomorrow.