That this House takes note of the potential conflict between the right of members to speak freely in Parliament and the obligation under the rule of law to obey court orders.
My Lords, I respectfully remind your Lordships that the advisory speaking time in this debate is six minutes. When the clock shows six that means the six minutes are up.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, it will be obvious to all that the impetus for this debate, its essential backdrop, was the statement made by the noble Lord, Lord Hain, in the Chamber on 25 October last year, naming Philip Green under parliamentary privilege as the subject of an anonymity order issued by the court two days earlier.
I should make plain at the outset that my central objective in this debate is not to criticise the noble Lord, Lord Hain—although inevitably I will need to persuade your Lordships that he acted wrongly before I can hope to ask the House to change its procedures. To that end, I will have to spell out why I regard his statement as a misuse—indeed, I would suggest, a clear abuse—of privilege.
Still less do I seek to have the noble Lord, Lord Hain, disciplined. Indeed, as to that, while several complaints were made against him by members of the public, as well as by Philip Green’s solicitors, the Commissioner for Standards rightly recognised that the only complaint within her jurisdiction was an alleged breach of the noble Lord’s obligation to declare his role as global and governmental adviser to the law firm Gordon Dadds, which was acting for the Daily Telegraph in the litigation. Against that complaint, the noble Lord had a complete defence: he had no idea that Gordon Dadds was involved in the litigation. He would have known had he looked at the court judgment, because the solicitors’ name was prominently shown there—but he did not. Whether, overall, that is to his credit I leave to others. To set oneself up as a one-person or one-Peer court of final appeal over a fully considered Court of Appeal judgment without even reading the judgment might be thought a touch presumptuous. Indeed, the noble Lord in his evidence to the commissioner went further and said that he did not think it would have made any difference even if he had read the judgment—a judgment that had granted a short interim injunction pending a speedy trial of the issue so as not to pre-empt the final decision on the merits of anonymity.
I am terribly sorry, I am not proposing to take interventions. This is a strictly time-limited debate and I need my 15 minutes.
The noble Lord, Lord Hain, does not suggest that the court’s judgment was in any way wrong, but rather that, whatever the legal position, he thought it his moral duty to name Green. He said that he believed he was acting honourably in naming him and:
“The sovereignty of judges is vital but should never override the sovereignty of parliament”.
Of course I accept that the noble Lord is an honourable man, but I reject utterly his suggestion that his own subjective view of what is right must always prevail over a court order.
My central concern is for the future. Indeed, the very fact that, as I understand it, the noble Lord, Lord Hain, does not accept that he was guilty even of a misjudgment in his use of the privilege increases that concern. Why would he and perhaps others of like mind, if there be such, not act similarly in the future unless the House now clarifies and, as I suggest, modifies the position? Doing what we now can to guard against any such egregious exercise of parliamentary privilege is essential to protect both the rule of law and the reputation of this House. Here I should declare an interest as a member of the House’s Privileges and Conduct Committee and as the chair of its Sub-Committee on Lords’ Conduct until these were recently restructured.
My essential concern is for the House’s loss of reputation if its Members breach the rule of law. Of course I recognise the fundamental importance of a Member’s right to speak freely in Parliament. Parliamentary privilege is enshrined in Article 9 of the Bill of Rights. It is of foundational significance in our constitution and I am certainly not proposing any legislative change to its scope. But I cannot accept that parliamentary privilege must always prevail over all competing interests. Are Members invariably to be free to breach court orders protecting, say, the identity of children, sometimes even the safety of children? Take the notorious Thompson and Venables case: could a Member have decided off his own bat to reveal their whereabouts and thus imperil their lives—or, say, trade secrets or intelligence material?
Essentially, the privilege is to prevent Members being vulnerable to claims of defamation, breach of privacy and so forth—indeed, to any other risks inhibiting the discharge of their duty to speak fearlessly on an issue in the House. But surely it is one thing to say that the privilege should not be whittled down, and quite another to claim for it so exorbitant a reach as is asserted here—namely the right, with total impunity, to breach any court order that the Member dislikes.
11:53 am
Lord Mackay of Clashfern (Con)
My Lords, I put my name down to speak in this debate when it was a two-and-a-half hour debate and I had intended to go by plane to Inverness later today, at a time that would have allowed me to be here until the very end of the debate and after. Unfortunately, for some reason a strike has taken place at Inverness Airport and my flight was cancelled. I have therefore had to make alternative arrangements to fly to Edinburgh and get the train, which as your Lordships can imagine is a slightly longer procedure. I may therefore have to leave before the end of this debate. I am extremely sorry about that and I shall attend as long as I possibly can—but I gather that the Jubilee line is not perfect today, which is another difficulty.
I want to look at this issue in a general way, and do not propose to deal with a particular case. The right of free speech in Parliament is well-established and has been ever since the present arrangements of Parliament came into being. There are two difficulties with that. One is that Parliament might seek to affect a judgment in a case before the courts—the so-called rule of sub judice. On the other hand, Parliament has free speech when there is no current case and, as mentioned by the noble and learned Lord, Lord Brown, when there is a decided case about a matter. My understanding of the law on this is that that right to speak freely is to be exercised responsibly by Members of Parliament.
That is the general rule. The rule for sub judice is different because here, there is a perceived conflict on the final decision between the court—which has been set up to decide these matters as part of our constitution —and Parliament, if it has stepped in to alter the judgment or make it instead of the court. That is a special problem that, over the years, Parliament has thought needs to be dealt with. Parliament has no desire, as a corporate body, to replace the courts of law, which are independent and set up for that purpose, with severe oaths affecting the judges and so on.
That issue has been thoroughly discussed in this House. A committee, under the distinguished chairmanship of Lord Nicholls of Birkenhead, came up with a resolution that Parliament adopted, at page 60 of the volume of the Companion to the Standing Ordersthat we all have. That sets out what a sub judice case is and the attitude that Members of Parliament should have to it. A Member of Parliament who seeks to make a statement that may, in some way, affect a judgment or resolution still to be made, should give notice to the Lord Speaker in our House. In the House of Commons, a similar resolution was passed to give notice to the Speaker. The Lord Speaker here has the discretion to see whether the statement proposed by the Member is likely to interfere with the course of the judgment. Even if it refers to it, as long as it does not seek to interfere with the course of the judgment, it might be allowed at the Lord Speaker’s discretion. That seems an entirely satisfactory arrangement and I have no reason to seek to change it.
My Lords, I have great respect for the judicial expertise and eminent career of the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I remind your Lordships that the Commissioner for Standards completely exonerated me in dismissing complaints from Sir Philip Green after I had named him on 25 October 2018. I explained to her that I acted for moral reasons and was not second-guessing or criticising the judiciary, nor have I done so since. To explain why, I am revealing for the first time in public exactly what one of Sir Philip Green’s victims told me while pleading with me to name him under parliamentary privilege.
I quote: “He was touching and repeatedly slapping women staff’s bottoms, grabbing thighs and touching legs. Hundreds of grievance cases were raised with HR. The company lawyer who interviewed me then lied. Sir Philip screamed and shouted at staff ‘to go to psychologists’. Victims went to an employment tribunal but were told it would not get anywhere so settled with an NDA. Some were worn down with spiralling legal costs costing them a fortune. He broke some in the end. It was horrible. He is still doing exactly the same thing. It is rife, it happened all the time. I saw him grab the breasts of others. This has gone on for a long time”.
After I named Sir Philip, numerous former employees and executives of his made similar allegations in various newspapers. My motive was to stand up for ordinary employees against a very powerful and wealthy boss who, as described to me, seemed to think he was above the rules of decent respectful behaviour. Part of the injustice I acted against is the misuse of non-disclosure agreements—NDAs—which Sir Philip Green deployed to suppress victims from obtaining redress, as did Harvey Weinstein to silence his sexual harassment victims, as did organisers of the Presidents Club dinner in January last year, when 130 women were required to sign NDAs in a bid to stop any details of harassment, groping and propositioning going public.
My Lords, naturally the disclosure of material contrary to a court order offends against the training of all lawyers. We are brought up to respect the rule of law, to keep our mouths shut when it is appropriate, to respect the courts and their judgments and not to criticise them. I am wary that this approach may not have the same cataclysmic effect upon those who are not lawyers.
This issue came to a head in 2011 with John Hemming, the Liberal Democrat Member of Parliament for Birmingham, Yardley from 2005 to 2015. I have been a guest in his house and I know him very well. John Hemming was a scholar in theoretical, atomic and nuclear physics at Magdalen College, Oxford, and he became a millionaire with a software business by the age of 27, at which point he took up Liberal politics. He really was a good, old-fashioned Liberal campaigner. He passionately opposed super-injunctions, orders forbidding the revelation not just of the parties but even of the existence of the injunction itself. He considered that their use was the preserve of the rich, because only the rich could go to court and obtain them. I was very interested to hear from the noble Lord, Lord Hain, that Jess Phillips, who succeeded him in Birmingham, Yardley, made precisely the same point—that this is the preserve of the rich. In 2011 John Hemming revealed a number of well-known figures under parliamentary privilege: the chairman of Barclays Bank, Mr Goodwin and a well-known Welsh footballer. The result of that seems to be that the use of super-injunctions has declined—you can spend a lot of money and find that, if it is mentioned in Parliament, you have wasted it all.
Similarly, another friend of mine, Paul Farrelly, Member of Parliament for Newcastle-under-Lyme in Staffordshire, disclosed the existence of a super-injunction in the Trafigura scandal by means of a Parliamentary Question. Trafigura was dumping toxic waste products in Côte d’Ivoire, causing injury in the nature of burns to skin and lungs to 30,000 people. These are exceptional cases involving very considerable public interest. I oppose altering our disciplinary procedures so as to make such disclosures a breach of the Code of Conduct. It seems to me that, in exceptional circumstances, it may be justified to do what the noble Lord, Lord Hain, did—although I must say that, as a lawyer, I was shocked at the time, I can tell him that, and I do not think it quite comes into the category of some of the other disclosures that have been made. However, I think it is highly unwise to make such disclosures.
My Lords, I congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on arranging this important and topical debate. While aware in general terms of the concept and protection provided by parliamentary privilege, I was grateful for the additional information in the helpful Library briefing note provided by Nicola Newson.
Rather than dwell on any specific instances of reliance on the privilege, I will add a couple of general points to this debate. I was struck by the explanation that parliamentary privilege is the privilege of each House as a whole, not just of an individual Member. In effect, all Members of a House—not just a spokesperson —are sheltered by privilege, even if they endorse or otherwise support the contribution of the spokesperson. They are sheltered even if they inadvertently say something deemed defamatory.
If all thus benefit, so too should they collectively be responsible for upholding the principles of comity. I further believe that Members of the other place have a greater need of privilege protection than Members here in your Lordships’ House. MPs face re-election to retain their place in Parliament; Members of this largely appointed House do not. This in turn seems to place a greater obligation on this House to abide very closely by the carefully structured rules of sub judice and the essential principles of comity.
Noble Lords should be careful never to use parliamentary privilege which might not be prayed in use in the other place. Although this House no longer includes the Appellate Committee, I like to feel that there remains a deep commitment to upholding the rule of law coursing through the veins of this House.
I fully endorse the description of the 1999 Joint Committee on Parliamentary Privilege that the legislature and the judiciary are, in their respective spheres, estates of the realm of—I stress this—equal status. As the Joint Committee on Privacy and Injunctions concluded in 2012, there should be a presumption that,
My Lords, I too congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on raising this important issue. I will focus on the sub judice rule. Like my noble and learned friend Lord Mackay of Clashfern, who is still with us, I do not propose to comment on any particular case.
As the 2012 Green Paper and 2013 report of the Joint Committee on Parliamentary Privilege noted, references to privilege may appear archaic and misleading. They mask the importance of Article 9 of the Bill of Rights; it is fundamental to Parliament being able to discharge its functions.
As so often, rights need to be matched by responsibilities. The sub judice rule, as the noble and learned Lord, Lord Nicholls of Birkenhead, stressed some years ago in evidence to the House of Commons Procedure Committee, is a self-imposed rule. Its embodiment in the rules of both Houses has developed over time, with some uniformity now between the two. The first edition of Erskine May made no reference to it. As Eve Samson points out in her study of privilege, it first appeared unambiguously in the 10th edition in 1893, which stated:
“A matter, whilst under adjudication by a court of law, should not be brought before the house by a motion or otherwise”.
The rule has been developed and reported on by Joint Committees and the Commons Procedure Committee. There is a recognition of its importance, not just for comity between the legislature and the courts; as Lord Nicholls said, it,
“goes much deeper than that, because it is inherent in the proper discharge by the courts and Parliament of their separate constitutional roles”.
It is vital that both Houses retain freedom of speech to carry out their functions, but it is essential to the courts in fulfilling theirs that the rule is observed. The courts must operate free of parliamentary interference and must be seen to do so. Judges may well be able to ignore or resist MPs or Peers making comments about live cases, but they need to be seen to be free of such interference.
My Lords, it is with great trepidation that I venture, as a non-lawyer, into this debate with so many distinguished experts, but I congratulate the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on calling it as it concerns a fundamental aspect of our democracy. I have three short points for consideration.
I may be convicted of simplism, but my starting point is that law is not only for lawyers, and perhaps it is not even primarily for lawyers, any more than water is for water engineers. It is one of the essential protections of the citizen. It is for the people. Of course that does not mean that citizens are necessarily able to interpret or advise on the import of the law, but it is for them.
Secondly, the law as it stands is never quite coterminous with justice. It is our best shot at justice at one time and in one context. I think this must be so or the law would not be amended and reinterpreted as culture and values change. Non-disclosure agreements may be a case in point. What I look for in the law as a citizen, before redress, is first the correct attribution of responsibility for harmful acts. Among other things, that seems to me to be about establishing accountability.
My third point concerns the role of the rule of law—which of course I wholly support, on the basis above—in its crucial underpinning of democracy. My understanding is that it protects the citizen against exploitation or oppression by more powerful agents. It protects minorities against majoritarian bias, for instance. Thus it upholds the dignity of our fellow human beings, in particular through human rights law.
Looking at the conflict between a legal injunction and the conduct that is our subject, I am driven to think that the vulnerable citizen is not Sir Philip Green. Allegations of acts for which, I think, we would all agree that responsibility should be attributed were prevented from being disclosed. Accountability was not possible. The wrong conduct was protected.
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I advocate two distinct steps. First, the Companion, our guide to proceedings in the House, should be tightened up on this point. It is 250 pages long but there is not a word about disobeying court orders. All there is is our resolution some years back on the sub judice rule, which I can summarise simply: the privilege of freedom of speech in Parliament should be used responsibly. It requires both Houses to,
“abstain from discussing the merits of disputes about to be tried and decided in the courts of law”.
Essentially the rule requires Members in most proceedings before the House not to refer to active court proceedings, except where the Lord Speaker, in his discretion, allows it, and the Lord Speaker must be given at least 24 hours’ notice of any proposal to refer to a matter which is sub judice. Civil proceedings cease to be “active” on judgment.
I have three comments. First, the rule contemplates the issue arising in the context of,
“any motion, debate or question”.
I suggest that it does not envisage doing what the noble Lord, Lord Hain, did here—rising unannounced before the House after the conclusion of one unrelated, busy debate, and before the start of the next, to make a “personal statement”.
Secondly, in his evidence to the commissioner, the noble Lord asserted not only that he did not consult the Lord Speaker before making his statement but that he consulted no one. He merely notified the Deputy Speaker on the Woolsack at the time that he would say something once the ongoing debate had ended.
Thirdly, the noble Lord’s statement was contrary to the sub judice rule, but only because the court’s order was for an interim injunction. Had it been a final court order at the conclusion of proceedings, it would not have been covered by the rule. I suggest that the very least the House should do now is revise the Companionto make plain that in addition to the sub judice rule—indeed, more important than the sub judice rule—there is an obligation on Members to respect the independence of the courts and the rule of law, as the Lord Speaker said in his brief, well-judged Statement four days after the noble Lord’s statement, so that,
“we do not set ourselves in conflict with the courts or seek to supplant them”.
The sub judice rule is, after all, intended merely to discourage Members without good reason from discussing the merits of a case, so that their views will not risk prejudicing the court in deciding it. Intentionally flouting an actual court order after it has decided the case is surely altogether more extreme, and clashes directly with the rule of law.
I might add that the action of the noble Lord, Lord Hain, in the Green case had the effect of preventing the court ever deciding the important final question that the interim injunction was intended to leave for decision—namely, the correct approach to non-disclosure agreements in this context. The court’s open judgment, a full and measured judgment, expressly recognised the conflicting interests and arguments in play. The Court of Appeal took account of a recent House of Commons report by its Women and Equalities Committee on sexual harassment in the workplace, which recognised a legitimate role for NDAs, not least—as in the Green case—in settling employment tribunal claims. Two of the five employees supported Green’s application for an injunction. All five had been separately and independently legally advised, and each agreement expressly allowed disclosure to people such as the police and any regulatory and statutory bodies.
Unsurprisingly, Green discontinued his action after the statement of the noble Lord, Lord Hain, had pre-empted the result. Anonymity, of course, was lost for ever—but surely even unpopular people such as Philip Green are entitled to the protection of the courts. Shortly after the statement the noble Lord, Lord Pannick, described it in his Times column as,
“a clear abuse of parliamentary privilege”,
and suggested that the House should,
“amend its procedures to deter such conduct in future cases”.
He advocated Standing Orders in both Houses forbidding disclosure of information,
“without first seeking and then complying with a ruling by the Speaker”—
a failure to comply with that being a breach of the Code of Conduct. Whether that approach would put too heavy a responsibility on the Speaker is for consideration, but it is difficult to think of many cases where the Speaker would support the proposed breach of a considered court order.
Moreover, there is another important factor to have in mind here, which is the European Convention on Human Rights. In 2002 Strasbourg, in A v UK, accepted by a majority that the rule of absolute parliamentary immunity was justified even when it operates to defeat convention rights. The court’s reasoning, however, included that:
“General control is exercised over debates by the Speaker of each House of Parliament”,
and that,
“the immunity attaches only to statements made in the course of parliamentary debates on the floor of the House”.
The privilege there had been used to prevent a defamation claim—not, as in the case of the noble Lord, Lord Hain, a statement wholly outwith the control of the Speaker and unrelated to any debate on the Floor of the House, simply oversetting a court order. As Erskine May tells us on pages 222 and 301, even in A’s case,
“the judges were not uncritical of the exercise of privilege without recognition of … human rights”.
They expressed the view that a national Parliament should incorporate into its procedures,
“some system of redress for citizens”.
For my part, I seriously doubt whether the case of the noble Lord, Lord Hain, would survive a Strasbourg challenge today.
As the admirable Library note makes plain, there have been a number of relevant committee reports down the years. In the context of super-injunctions, a 2012 Joint Committee on Privacy and Injunctions concluded that the use of privilege to defeat them, as in the Ryan Giggs and Fred Goodwin cases, had not yet reached the point where Parliament needed to act; a high threshold for taking action had not yet been crossed. I suggest that it now has been and that we should not kick this can further down the road.
We all of course enjoy our privileges and it is understandable that we should cherish them and wish to guard them jealously. But it is my contention that the time has come when we should recognise an abuse for what it is and try to limit its recurrence in future. I greatly look forward to hearing what the noble Lord, Lord Hain, and all others have to say in this debate—the non-lawyers at least as much as the lawyers. I beg to move.
This is fundamental to the more general aspect referred to by the noble and learned Lord, Lord Brown. Strictly speaking, if you analyse it properly, the courts have no jurisdiction to restrict the speech of a Member in Parliament. It is not part of their jurisdiction. Therefore, if somebody in Parliament makes a statement that conflicts with a decision of the court, because the court’s jurisdiction does not extend to Parliament, it is not a breach of the order. On the other hand, it could give rise to confusion. The rule, therefore, which seems general and appropriate, is to exercise these rights responsibly, as for every other right we have. That includes consideration of the effect of what you are doing on the general position in the country for which we are responsible.
Maria Miller MP, chair of the Women and Equalities Committee, said the Philip Green case had,
“thrown a spotlight on the way NDAs can be used repeatedly to cover up alleged wrongdoing … If an NDA hadn’t been used in this case then maybe the managers and the board of the company involved could have taken action to avoid this repeated behaviour, and that is what is so concerning about the way NDAs are being misused”.
She added that she personally would like to see NDAs outlawed in employment severance agreements. Jess Phillips also said that:
“It seems that our laws allow rich and powerful men to … do whatever they want, as long as they can pay to keep it quiet”.—[Official Report, Commons, 24/10/18; col. 274.]
Parliamentary privilege is a fundamental part of our constitution and is the only absolute free speech right entrenched in the law. It is a part of the rule of law itself, and the prospect that it may be used should surely be a deterrent to anyone minded to seek a secrecy order from the courts to cover up allegations of misconduct, as in the Philip Green case. Despite similar outrage from the legal establishment, it was used to name the notorious spy Kim Philby. It was vindicated again in 1977 when MPs used it to expose the bogus secrecy of “Colonel B”, who was wrongly—as the judges later found—given anonymity by the court to bolster an oppressive official secrecy case against journalists. When the DPP immediately threatened the press with prosecution, newspapers, led by the Times, defied him. That said, it should be used responsibly, sparingly and only when absolutely necessary. In my 30-year parliamentary career I have used it just twice before: in 2000 when I named traffickers selling arms for “blood diamonds” fuelling wars in Africa; and then in 2017-18 to name, in this House, British corporations complicit in former President Zuma’s corrupt activities in South Africa. These, like my Sir Philip Green intervention, exposed gross injustice in the public interest when the law was clearly failing to do so, and are living proof of parliamentary sovereignty, irrespective of the wishes of the Executive, the powerful and the wealthy, and even rulings by the legal establishment when it covers up allegations of misconduct.
Some noble Lords would make parliamentary sovereignty subject to the power of judges, who perhaps have granted secrecy orders—as, notoriously, in the Colonel B case—at the behest of an oppressive Executive. In such cases, a parliamentarian’s right to exercise privilege conscientiously and responsibly is an important safeguard for the liberty of the subject. It should not be whittled away by turning the Speaker or the Lord Speaker into pre-vetting police officers with a censorship role. Nor should the sovereignty of judges override the sovereignty of Parliament—the path down which, I fear, the noble and learned Lord, Lord Brown, and others might be leading us.
First, I think that a Member of Parliament who does so must examine his own motives. It may be a vehicle for a lowly Member of Parliament to indulge in publicity he would not otherwise get, as a result of the dramatic disclosure he makes and all the press that follows.
Secondly, it is obviously wide open to abuse. I do not suggest that abuse has taken place in any of the cases I have mentioned, but it would be possible for parties to proceedings and the press to approach a particular Member and induce him in one way or another to ask a Parliamentary Question under the cloak of privilege. We should be very concerned about that.
Thirdly, the Member in question is not a caped crusader, going around the world to seek justice and end injustice wherever it may be; someone must put him up to the particular issue, as we have heard from the noble Lord, Lord Hain. Whether it could amount to a criminal conspiracy to perform an unlawful act is doubtful, but it is inappropriate for a representative of the people to engage in an unlawful act, and it is unlawful to breach a court injunction. The fact that you are an MP and will not be punished for mentioning it in Parliament is an exercise of the privilege of Parliament, not the privilege of the Member. The Member is not cloaked and protected by the armour of this principle. It rests with Parliament itself.
I do not criticise the noble Lord, Lord Hain, for doing what he did. I am sure that he had very good reasons and was moved to do so. However, it is unwise, and anyone who seeks to do it should examine their conscience very carefully.
“court orders are respected in Parliament”.
Should a Member of either House decide not to comply, he or she should,
“demonstrate that it is in the public interest”.
But there is more than one “public interest” at stake here. Undoubtedly the upholding of the rule of law—not least injunctions—is a clear public interest. What seems to be missing is what else may be honourably brigaded together under the heading “public interest”.
I do not think it upholds the unique importance of the rule of law to claim, for example, that totally different, additional, even contrary “public interests” coexist in any equivalent way: say, some issue, or some persons, that have been the subject of a media onslaught of hearsay and innuendo and which must be further highlighted and enlarged upon by means of parliamentary privilege. That seems to besmirch the importance and value of this unique privilege. Public interest is widely defined in common law, but in relation to parliamentary privilege, should it not be seen as more for matters of national importance and not just some partisan or parochial interest, let alone a personal or private one?
I will make one final point. A truth, from time immemorial, is that one should not blame the messenger if the message is not to one’s liking. However, in these Brexit-charged days, this dictum seems to be more and more overlooked—regrettably only last week over the selection of the chair of Wilton Park, when the individual as the messenger, rather than her message, was traduced in a way that did no credit to your Lordships’ House.
I have long believed, and tried to practise, that by extolling the strength of the case that one espouses, rather than only seeking to rubbish that of the opposition, one may be more likely to succeed. To the outside observer, negative attacks on the opposition suggest, subliminally, that one’s own case is weak and lacks the support and commitment to it that one might expect one to have and to express. Reliance on parliamentary privilege gives protection for defaming a person or issue at stake. But it is also fair to ask, when observing on a use of this privilege: has it been about a matter of national and positive value rather than a vehicle for negativism and spite?
To make use of parliamentary privilege—such a unique, omnipotent privilege—requires the House of the user to seek to ensure that its use is never abused. Not to do so in this media-savvy world might ultimately even call into question the medieval provenance of this privilege itself.
For reasons of time, I shall make just a few core points. The Motion refers to the right of Members to speak freely in Parliament but, as has already been touched on, the essential constitutional point is that the right exists for the benefit of the House. Members in exercising their freedom of speech need to have regard not only to protecting the rule of law, but also to protecting the reputation and role of the House of which they are Members. There have been various problems with breaches in the past, not least in this House in respect of coroners’ courts. Both Houses have since agreed changes to the Standing Orders. If there is a problem, is it with the rule as embodied in the Standing Orders, is it with Members not knowing the rule and its importance, or is it both? I see no reason why Members should not be reminded regularly of the rule. It should form part of the induction process for new Members. It need not be in the form of repeating the Standing Orders, but rather simply in the form of, “If a matter is before a court—any court—it is best not to raise it”. I would add, “If you do plan to raise it, take advice first”.
There is also a case for considering how we deal with the rule. The difference between the two Chambers is in the position of the Speakers. The Speaker in the House of Commons can intervene in a way that the Lord Speaker cannot. The briefing note for the debate reminds us that it is open to any Peer to move,
“that the noble Lord be no longer heard”.
That is a blunt weapon and depends on a Member of the House recognising that the rule is being broken, that it is being broken inappropriately, and being quick- witted enough to get to their feet to move the Motion, which itself is debatable. I think we need a more robust way of dealing with transgressions along the lines indicated by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. For that reason, I would favour the matter being referred to the Procedure Committee. Rather than coming up with any particular solutions today, that is the route to take, and the very fact of the committee considering the matter and inviting comments will itself raise awareness of the rule. My question to my noble and learned friend Lord Keen and the noble Lord, Lord McFall, is this: do you not agree?
We think, of course rightly, of the rule of law as essential to democracy. In so doing, we have put democracy as the primary objective. We do not say that democracy is essential to the rule of law. I am not sure that it is, unfortunately. So when a legal decision does not serve democracy, it is in a different place from those laws and judicial procedures that preserve rights.
I would not presume to question a court order, but there is a balance to be struck between juridical decisions and constitutional freedom to expose injustice. I submit that that balance lies in the exercise of parliamentary privilege, including in this case, and that it should not be undermined.