The interaction between the judicial system and parliamentary privilege is well settled, and specifically defined in the sub judice rules of Parliament. The rules were extensively revised by this House in November 2001, following the recommendations by the Joint Committee on Parliamentary Privilege, and set out on page 437 of the current edition of “Erskine May”. The issue occasionally arises incidentally in ministerial discussions but, as it is a matter for Parliament and not for the Executive, I can recall no occasion on which it has been an agenda item for ministerial deliberation.
I am grateful to the Secretary of State for that answer. He will know that the Police and Criminal Evidence Act 1984 created three categories of material susceptible to searches, one of which was legally privileged material. If the police think that a piece of evidence is legally privileged, they are unable to seize it. Has the Secretary of State considered whether it would be worth extending that definition to include items that are subject to parliamentary privilege, so as to make clear the legal position and to put it beyond doubt?
The hon. Gentleman raises an important point, and I am perfectly happy to consider such recommendations, but I suggest that, in the first instance, they should come from the privileges Committee and not from the Executive.
Yesterday, the Leader of the House suggested that a High Court judge might be the appropriate person to grant a warrant, if one were required, for a police search of these premises, and of Members’ correspondence in offices or homes around the country. How would that proposal be carried forward, given that, according to the Government’s motion, the Committee to consider the matter is not allowed to meet other than for the purpose of electing a Chairman, and that the Prime Minister has indicated that nothing will change until he has had the results of that Committee’s inquiry?
On the specific proposition, as the Queen’s Speech made clear, there will be a police Bill and a Bill in respect of justice and coroners. The right hon. Gentleman is an experienced parliamentarian, and I would be astonished if he could not ensure that amendments to achieve what he suggests were in order, if he wished to table such amendments. Of course we would be happy to consider them without waiting for a particular report from a specific inquiry.
Would the Secretary of State resist the temptation to freeze into statute law the complex system of principles and precedents that constitute parliamentary privilege, as if an Act attempted to do so, it would be judiciable outside the House, whereas privilege is in fact better defended by ourselves as it has been over the centuries? In any case, many of us have little faith in the Government’s ability to deal with this in an unpartisan way, especially in the light of recent events, so any Bill that they bring forward could further weaken the powers of this House and allow outside authorities unnecessary further access.
On the issue of parliamentary privilege—in other words further defining what is in article 9 of the 1689 Bill of Rights—I agree with the right hon. Gentleman that the Joint Committee on Parliamentary Privilege said in 1999 that the matter was best defined by this House. However, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) spoke about changing criminal procedures and if the House wished to proceed with that—I am not committing the Government, but we would certainly be happy to consider it—it could be effected only by a change in the general criminal law because it applies not only to behaviours in the House or in respect of the House, but to outside agencies such as the police.
On the subject of interaction with the judicial system, the Justice Secretary recently thought it right roundly to attack what he described as “nervous judges” for applying the Human Rights Act, which made the European convention on human rights justiciable in our courts. Although we came to expect the right hon. Gentleman’s successors as Home Secretary to abuse judges for party political advantage, are we now to expect the Lord Chancellor, whose statutory duty is to uphold the independence of the judiciary, routinely to make attacks on judges who apply the laws enacted by Parliament at his Government’s request?
I think that that is a slightly extravagant interpretation of what I said. I think that citing my comment on nervous judges as if it were an attack on the judiciary is an abuse of language. The article also made it clear that I had been extremely careful not to pass any adverse comment on the judiciary—nor have I. I recognise my responsibilities in respect of the protection of the independence of the judiciary acutely.