Orders of the Day — Access to House of Commons (Complaint of Privilege)

– in the House of Commons at 12:00 am on 24th July 1951.

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12.22 a.m.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I beg to move, That the complaint [18th July] of the hon. Member for Bolton, West, be referred to the Committee of Privileges. I should like to make it quite clear that this Motion does not say anything at all as to whether the complaint of my hon. Friend the Member for Bolton, West (Mr. J. Lewis) is well or ill founded. It merely asserts that his complaint did raise a matter of Privilege and that matter of Privilege having been raised by the hon. Member it is his right that this House should adjudicate on it, and that the matter should be reported upon by the Committee of Privileges.

At the commencement of this Session, as of all Sessions, this House ordered that direction should be given to the Commissioner of Police that …during the Session of Parliament the passages through the streets leading to this House be kept free and open, and that no obstruction be permitted to hinder the passage of Members to and from this House… It should be made clear that the privilege of unobstructed access to Parliament does not arise from that Order. The Order arises from the privilege, and it is an ancient privilege of this House, that we should be unobstructed in our passage here.

On 3rd July my hon. Friend the Member for Bolton, West, rightly or wrongly alleged that he was so obstructed on his way to the House. When he was, as he alleged, obstructed he told the policeman—and I think this rather important—that he would report the matter to the House of Commons. On arriving here on that day he reported it to Mr. Speaker and he further telephoned to the police station concerned and informed that police station that the matter had been reported to Mr. Speaker.

At that time no question of prosecution had arisen. The hon. Member had not been asked to produce his licence or insurance certificate, or anything of that sort. Some days later, he received a pink slip of paper saying that a prosecution was being considered. I do not think that any objection can be taken to that. The Road Traffic Act provides that notice of a possible prosecution must be given within a stated time, and this slip is the formal notice.

On the 16th, the hon. Member put down a Motion. That Motion was in these terms: That a Select Committee be appointed to inquire into the obstruction by the Police of Mr. John Lewis, the Member for Bolton, West, when on his way to this House on 3rd July, 1951, and to report thereon to the House. Of course, putting down a Motion is one of the two ways by which the attention of the House may be brought to a matter of Privilege. One can make a complaint, and that is in effect charging somebody with a breach of Privilege; or one can raise the general matter, without charging an individual, by means of a Motion. It was the latter method which was here selected.

On the following day, that is the 17th July—and that, of course, would be after the Motion put down had been reported in the newspapers—an application was made by the police for summonses. On the 18th July, those summonses were served. There were three of them. The first summons was for driving without due consideration. That, in this case, amounted to pulling out of a queue of traffic. The second summons was for obstructing a constable on traffic duty; and the third one was for failing to obey a traffic signal—a signal to stop.

In my submission, those various summonses express the consequence of the hon. Member's acts if his claim of Privilege were ill-founded. If I, for instance, tried to enter Palace Yard, and a policeman tried to stop me and I pushed past him, either I would have been right because of my Privilege, or I would have committed the offence of pushing, or obstructing, the policeman in the course of his duties. These summonses, as I understand, simply express the legal consequences of the actions of the hon. Member, if he was wrong. Thus the question of Privilege is directly raised. By these summonses, the court is asked to adjudicate as to whether the actions of the hon. Member on this occasion were, or were not, a proper assertion of Privilege.

The Sessional Order is vague. Some hon. Members take the view that it ought to be defined, and that one ought to know just where it applies. If that be so, the Committee of Privileges is the body to advise this House as to how it ought to act. Other hon. Members take the view that it is better left vague, and not too closely defined; but that is a view which can only be held if one takes the further view that each case must be considered on its merits. Again, the Committee of Privileges is the correct body so to consider each case.

The complaint here is that after the police had been notified, and a Motion put down that this House was taking notice of the matter, they applied for a summons, and, thereby, they said—

Photo of Mr Stephen Davies Mr Stephen Davies , Merthyr Tydfil

On a point of order. Am I correct in assuming, Mr. Deputy Speaker, that so far as ordinary folks are concerned this case is sub judice at this moment? If so, is it right and proper for us, as hon. Members of this House, although not all connected with the legal profession to discuss this matter here tonight?

Photo of Mr James Milner Mr James Milner , Leeds South East

This is a question of Parliamentary Privilege; the question of court proceedings being sub judice does not arise.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

The case hue is that those who applied for the summons sought to set in motion an inferior court upon a matter of Privilege, and one of which Parliament was fully seized. The important thing here—the very thing which the magistrate was being asked to adjudicate upon—was an assertion, rightly or wrongly, of Privilege. Erskine May, on page 172, says this: The House of Commons claims that its admitted right to adjudicate on breaches of privileges implies in theory the right to determine the existence and the extent of the privileges themselves. It has never expressly abandoned its claim to treat as a breach of privilege the institution of proceedings for the purpose of bringing its privileges into discussion or decision before any court or tribunal elsewhere than in Parliament. In other words, it claims to be the exclusive and absolute judge of its own privileges, and that its judgments are not examinable by any other court, or subject to appeal. The question with which the House is now concerned brings attention to the famous case of Mr. Stockdale, who brought various libel actions against Mr. Hansard. Hansard's defence was that he published by order of Parliament, and that his act in publication was the exercise of a Privilege of Parliament.

The man who issued the writs on Stockdale's behalf, his solicitor, was a man named Howard; and Howard was imprisoned by the order of this House for having issued those writs. That was setting in motion another court—in that case, the High Court—to adjudicate upon a matter which was claimed to be the exercise of Privilege. Mr. Stockdale, in. one of these actions, obtained damages, and the sheriffs of Middlesex levied on Hansard for those damages.

For that act, they were imprisoned by this House. That indicates the unfortunate circumstances which are apt to arise where the jurisdiction of this House and of the courts on Privilege may come into conflict with the courts. It may be said—and I have heard it said in argument—that Stockdale was a civil action and that this is a criminal question. I think we should remember that the privileges of this House originate in the protection which hon. Members required from the Executive and that, if it is a breach of Privilege for the ordinary man to bring before the courts an act which is claimed as Privilege, it is certainly equally a breach of Privilege for my right hon. Friend the Home Secretary, as a member of the Executive, to do that same thing.

If it be a breach of Privilege to allege that an action claimed as a Privilege of this House is a civil wrong, it is all the more a breach of Privilege to allege that it be a crime. Of course, this does not for one moment give any general claim to criminal immunity, nor can it be suggested—as, I think, Mr. Speaker did to some degree suggest—that any hon. Member who may be summoned, can either obstruct or delay these proceedings by putting a Motion upon the Order Paper about it. The only circumstances in which this House claims the prior right to decide is where the very action which is alleged to be a crime is claimed as a Privilege. That is the only circumstance in which this conflict arises.

This matter was considered very directly by this House quite recently in the case of the right hon. Gentleman the Member for Streatham (Mr. Sandys), who then sat for Norwood. I will quote from the Votes and Proceedings of the House of Commons on 29th June, 1938. It said: Privilege.—Complaint made to the House by Mr. Sandys, Member for the Norwood Division of Lambeth, of an order by a military Court of Inquiry summoning him to appear in uniform before that Court To-morrow morning for the purpose of giving evidence."— [OFFICIAL REPORT, 30th June, 1938; Vol. 337, c. 2132.] That was immediately referred, on the Motion of the Prime Minister, to the Committee of Privileges and the Committee of Privileges found that that was a breach of Privilege. It said: …. that the House, having taken note of the statement of the hon. Member for Norwood on the 27th instant, had in effect recognised that important issues were involved and was about to set up special machinery to investigate those circumstances. Before, however, the Select Committee had actually set up, the hon. Member for Norwood, being a Territorial Officer. received a summons to appear before a military Court of Inquiry … That summons was held to be a breach of Privilege. It seems to me that the two cases have a very close resemblance.

I do feel that we ought also to have regard to the position of the magistrate here in being asked to adjudicate upon a matter of Privilege. He is put in an unfair position, because this House is the judge of Privilege, but, none the less, Privilege is part of the law of the land, and magistrates, therefore, and judges have to adjudicate upon Privilege if it arises before them in cases. But they do so at their peril, and if they are wrong in their adjudication then they are liable to penalties from this House.

Two learned judges, Mr. Justice Pemberton and Mr. Justice Jones, were, in fact, imprisoned by this House for refusing to or rule that a defence of Privilege which had been raised in the case of Jay and Topham was well founded; and the Sheriffs of Middlesex also, as officers of the court, were imprisoned in another case.

That does seem to put the learned magistrate in an utterly unfair position. We all wish to avoid any conflict between this House and the courts. We only do that if we do our job, deal with questions of Privilege as they arise, and so provide the magistrates with guidance as to whether a claim to Privilege is or is not well founded. I do submit that this matter quite clearly ought to be referred to the Committee.

I would ask hon. Members to put aside any adverse opinions which they may have borne as to the conduct of the hon. Member in this case. I say that for two reasons. First, because such opinions are irrelevant. A number of protagonists in many of our great constitutional issues have not been particularly attractive.

But there is a little more to it than that, because in this case there has been something of a whispering campaign which most of us have heard, and I believe that one of the things that the Committee of Privileges should apply its mind to is where that whispering campaign originated. It has been a rather unhappy thing, and we ought to see to it, because that sort of thing ought not to happen.

I will conclude by saying that here we have the case of an hon. Member who has asserted Privilege and asked for the justice of Parliament. It is his right that Parliament should consider and judge. It is the right, in my submission, of any hon. Member, and it is a right that we should grant.

12.44 a.m.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

I beg to second the Motion.

I hope to do so very shortly because the House is not called upon tonight to decide any of the issues which are raised in the Motion, except the one issue as to whether there is or is not a proper case to inquire into—a proper case for the House to consider and a proper case to have a report upon from the Committee of Privileges so that we may consider it, with all the evidence having already been sifted in the right context.

I would say at once that nothing could do greater harm to the dignity, the prestige, and the Privileges of this House than our claiming that Members are in any way above the law and not amenable to the courts in the ordinary way, as is every other citizen. As my hon. and learned Friend the Member for Northampton (Mr. Paget) has already said, in the facts alleged in this case there is no evidence whatever of any breach of the law, except such breach as would in any case he necessary if there were indeed the Privilege claimed, and if somebody had obstructed the hon. Member in the exercise of that Privilege.

Therefore, the whole question which has arisen in this matter is the simple question—which I will not say one word to prejudge in any way—of whether the hon. Member was obstructing the policeman in the course of the policeman's duty, or whether the policeman was obstructing the hon. Member in the exercise of a privilege which he had. That question cannot be determined without some examination of the facts, some examination of what is the basis of the privilege claimed, and some examination of the facts which followed upon the event.

I can conceive—and I hope it is no disrespect to anybody to say so—no valid reason at all for saying that this is not a proper matter to inquire into. We could only say that this was not a proper matter to inquire into if we were to do what Erskine May says the House of Commons has never yet done, namely, to reside in some other tribunal—in this case to an inferior court—the determination and adjudication of the question of what is a Parliamentary Privilege, what is its extent, and what are the privileges of the House of Commons. It is quite true that ever since Stockdale v. Hansard—and, indeed, in that very case—both the courts outside and the House of Commons have done everything that lay in their power to avoid an unseemly contest of jurisdiction between them; a number of rules were laid down, and both authorities have done their best to observe them.

If on these facts we were to say that there is nothing here with which the House of Commons need concern itself, then we should be abandoning, for the first time, and making it impossible for us ever again to claim, any right whatever to be the judge of our own Privileges. Whatever may be the result of the inquiry now to be held, whether it justifies the hon. Member in what he did or whether it comes to the conclusion in the end that what he claimed went beyond any privilege that could justifiably be claimed, or would be supported by this House, I think that the House would be abandoning one of the most ancient of its rights if it were to come to the conclusion that there was nothing here with which it need concern itself.

12.49 a.m.

Photo of Mr James Ede Mr James Ede , South Shields

I must not he taken as accepting all the statements made by my hon. and learned Friend the Member for Northampton (Mr. Paget) as being statements of fact in this matter. Quite clearly, he has, I will not say been listening to whispered rumours, been told certain things on which he has based his speech. I think the House will agree with me in this: that if there is one thing we should attempt to avoid it is anything that might lead to conflict between this House and any court of law in the country, and that it would be very unfortunate if we separated for the Recess without having had an opportunity of considering the position that has arisen with regard to this matter.

I would therefore suggest to the House that it will not be expressing any view at all on the facts as they may finally emerge if they accept the Motion that has been moved by my hon. and learned Friend (Mr. Paget) and seconded by the hon. Member for Nelson and Colne (Mr. S. Silverman). I think this is a matter which should receive the calm consideration of the House and that hon. and right hon. Members should have before them, when considering it, a report which gives, as far as it is possible to elucidate them, all the facts that should be known to the House when it wants to form a judgment.

My hon. and learned Friend said that because this was a matter of privilege, it must be adjudicated upon by the Committee of Privileges. That is not so. It is, of course, perfectly competent for the House tonight, if it so decided, to proceed to consider this matter, or even at this stage to declare there had been a breach of Privilege or there had not been a breach of Privilege. But I venture to say that in a matter of this importance, that would be a very injudicious step to take, no matter which way the House might wish to reach a decision tonight.

Of course, if we are to settle this before the House rises for the Recess, it will mean that the Committee of Privileges will have to meet comparatively early. I hope that they will be able to meet tomorrow—what is now today—and that the hon. Member for Bolton. West (Mr. j. Lewis) will find it convenient to be in attendance upon them. The Committee will, of course, have to decide whether they wish to have any other witnesses or whether they wish to get advice as to the history of this matter, which is a somewhat complicated one, for my hon. and learned Friend, with the ingenuousness which always characterises him, left off his quotation from Erskine May at the most interesting point. If he had read the next paragraph.…

Photo of Mr James Ede Mr James Ede , South Shields

I do not want to waste the time of the House by quoting too much, and I think the next paragraph would have been sufficient to show there have been two points of view on this matter. It says: On the other hand, the courts regard the privileges of Parliament as part of the law of the land of which they are bound to take judicial notice. They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction, and to decide it according to their own interpretation of the law.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

I did say that. I quoted the paragraph which was the view of this House, and then I went on, but I did not read it, although I stated almost exactly the same thing.

Photo of Mr James Ede Mr James Ede , South Shields

I am bound to say it seemed to me not to have quite the same force as obiter dicta from my hon. and learned Friend as when being quoted from Erskine May, which is generally supposed to settle all arguments, even with more exalted people than the Home Secretary.

I want to submit to the House that I think we should be ill-advised this evening to continue the argument, if we are willing to submit the matter to the Committee of Privileges. One of the defects—and I am sure the right hon. Gentleman the Member for Gainsborough (Captain Crookshank) who has served on the Committee for many years will agree —is that sometimes in the deliberations of the Committee we are a bit hampered by random sayings of previous Members of the House who, on occasions like this, have expressed their views. Since I have been Chairman of the Committee of Privileges we have had the views of Mr. Disraeli submitted to us, and the views of Mr. Gladstone, quite obviously directed to some rather small point that had arisen at the time.

I would suggest to the House this evening that if we continue this discussion I am not sure we shall help the Committee in their deliberations; indeed, we may quite possibly be misleading a future House when a Member may quote a random saying of a Member who may become a quite distinguished parliamentarian, and whose earlier observations may well be quoted with all the weight that attaches to his future eminence.

I am not, therefore, to be taken as accepting necessarily all the statements that have been made by the mover and seconder of the Motion as representing the unchallenged position on Privilege in cases such as this. I think it would be advisable—and I commend this to the House—if we referred this matter to the Committee of Privileges so that all the implications of the incident as outlined by my hon. and learned Friend can be investigated and a report submitted to the House, I hope in time for hon. Members to have an informed discussion if they so wish it before the House rises for the Summer Recess so that the views of the House may be known well before the time when the summonses are returnable.

12.59 a.m.

Photo of Mr Henry Strauss Mr Henry Strauss , Norwich South

I am sorry not to be able. [Interruption.] If hon. Gentlemen opposite are not willing to listen, my speech will be a good deal longer than would otherwise be necessary. I am sorry that I cannot at once accede to the request made by the right hon. Gentleman. It would have been possible if he had got up a little later, well knowing that I wished to put another point of view. [Interruption.] Hon. Gentlemen opposite had better get used to the idea that debate in this House is still permitted. If they wish to delay proceedings they can do so. I propose to be reasonably brief if they allow me, and to make a speech which will not be in opposition to the Home Secretary's proposal.

Photo of Mr James Ede Mr James Ede , South Shields

May I be allowed to say that I owe the hon. and learned Gentleman an apology, because he did indicate to me last night that he wished to put a certain point of view? I discussed the matter at length with him. But I must say that, as sometimes happens in this House, the course a debate takes may make it rather difficult to carry on with the line one anticipated might have been taken. I hope the House will give the hon. and learned Gentleman an attentive hearing, because —and I want to make this clear—he approached me on the matter and I feel in some way that I might have let him down.

Photo of Mr Henry Strauss Mr Henry Strauss , Norwich South

I need hardly say that I am making no accusations of any sort against the right hon. Gentleman. In fact, I am going to support the main proposal he has made—that this matter should go to the Committee of Privileges.

The only need for saying something further arises because of some things said on the previous occasion and on this by the hon. Members who moved and seconded the Motion. It is a need which, however misguided hon. Members may think that I am, I. assure the House I emphatically believe in. As they put forward many doctrines which I think are unsound and dangerous, it is not in the interests of the House that no other point of view should be put forward promptly in the House.

The questions raised in the complaint of the hon. Member for Bolton, West (Mr. J. Lewis) can be conveniently divided into two parts. The first is that which is connected with his complaint of the interpretation by the police of the Sessional Order or his allegation that it was disregarded. Let me say at once that I agree with the hon. and learned Member for Northampton (Mr. Paget), who moved the Motion, that it is eminently right that this matter should be referred to the Committee of Privileges. When the question was raised in 1834, Mr. Speaker said this: As to any particular case in which this Order has been infringed, whether it be in the case of hon. Members who have been obstructed by parties not knowing them, or by accident, that is matter of inquiry for the House. Hon. Members do right in bringing their complaint here. I need hardly say that in everything I say I am making no assumption whatever against the hon. Member for Bolton, West. It is equally clear that I am making no assumption whatever against the police, and I am not expressing, needless to say, any doubt regarding the Committee of Privileges to whom it is proposed to refer this matter. I think that a difficulty has been introduced—on which I certainly wish to give my opinion to the House, and I know that it is shared by a number of hon. Members on both sides—by the hon. Member's complaint of the service of summonses in criminal proceedings as a breach of Privilege, because on the authorities I am convinced that the House could decide straight away that no privilege has been thereby infringed.

I think it is particularly important to correct certain statements that were made by the hon. and learned Member who moved the Motion and by the hon. Member who seconded. On the last occasion, perhaps, they were not so well prepared, but the statements were repeated to some extent today. Mention was made of a police court compared with this House as being an inferior court. That expression in that connection involves a misconception. One talks, rightly, of an inferior court in contrast with a superior court when a matter can come before the superior court from the lower court on appeal, and the inferior court may be said to be subject to the superior court. But there is no such subordination of the criminal courts of this country to this House, nor does any good democrat desire that there should be. It is clear that we claim no privilege to interfere with the administration of criminal justice.

Let me take one of the best known of Parliamentary privileges, the privilege of freedom from arrest. After a lengthy history the present position is clearly laid down in Erskine May in these words: The privilege of freedom from arrest is limited to civil causes, and has not been allowed to interfere with the administration of criminal justice or emergency legislation. It would be strange if there were no freedom from arrest on criminal charges, but it could be claimed that the service of a summons was a breach of Privilege. Since 1704 it has been clear that neither House claims any power to create new privileges. Both the right hon. Gentleman the Home Secretary and the hon. and learned Gentleman who moved the Motion mentioned the danger of conflict between this House and the courts. There is such a danger, but, happily, we have been free from it for more than 100 years. The reason is given in Erskine May and other leading works.

Let me mention what the conflict is. This is what Erskine May says: At first sight there seemed to be a complete antimony or contradiction in law between two equally respectable principles, urged with conviction and occasionally with heat by two constitutional authorities, each supreme in its own sphere, and neither of which could compel the submission of the other. On the one hand, the House of Lords or the House of Commons, while admitting that it could not create a new privilege, claimed to be the sole and exclusive judge of its own privilege. On the other hand, the courts maintained that privilege was part of the law of the land, and that they were bound to decide questions coming before them in any case within their jurisdiction, even if privilege were involved. No formal reconciliation of these conflicting doctrines is possible, but in the course of applying them to a series of cases a considerable measure of agreement has been reached. Erskine May goes on to point out how the doctrines have been reconciled and the difficulties avoided: The solution gradually marked out by the courts is to insist on their right in principle to decide all questions of privilege arising in litigation before them, with certain large exceptions in favour of parliamentary jurisdiction. Two of these, which are supported by a great weight of authority, are the exclusive jurisdiction of each House over its own internal proceedings, and the right of either House to commit and punish for contempt. While it cannot he claimed that either House has formally acquiesced in this assumption of jurisdiction by the courts, the absence of any conflict for over a century may indicate a certain measure of tacit acceptance. I could quote a great deal more. [HON. MEMBERS: "Hear, hear,"] I think there are many Members on both sides of the House who realise that this is a serious matter. Nevertheless, I am not going to quote a great deal more. I will only speak of the method by which the House has avoided conflict. In the passage immediately following that which the Home Secretary quoted hon. Members will find that four principles are set out, which are recognised as largely avoiding the danger of conflict and, as long as we observe them, we will avoid conflict.

One thing that is absolutely clear is that we must not interfere with the course of criminal justice and we should not wish to claim to interfere with, or even to delay, the course of criminal justice. I commend to hon. Members a study of the leading cases—Stockdale v. Hansard and Bradlaugh v. Gossett. Such interference would produce fantastic results. It was claimed that the service of summonses in criminal proceedings was a breach of Privilege.

The hon. Member for Nelson and Colne (Mr. S. Silverman), on an earlier occasion, talked about the exclusive right of this House to determine Privilege. Any consultation of the legal authorities would show him that there is no such exclusive right in this case. In this case, if the matter went before the court and any defence based on Privilege were raised before it, the court would have to determine it. If it went to a higher court that higher court would have to determine it. The one party that could not possibly determine it from the point of view of the courts would be this House.

Photo of Mr Samuel Silverman Mr Samuel Silverman , Nelson and Colne

I did not intend to convey, and I do not think my words did convey—if they did I would alter them—any claim that the courts can or ought to be prevented from considering any relevant fact which they had to consider to determine the issue before them. Undoubtedly, Privilege is part of the law of the land and in so far as it arises before the court that court must consider and determine it. But what I did say, and I repeat, is that with our authority Erskine May and the decided cases we have decided to make it perfectly clear that this House has never parted with the claim to be the only tribunal in the end which can determine what are our privileges and what are their limits and I am surprised that any hon. Member of this House should at this time abandon that.

Photo of Mr Henry Strauss Mr Henry Strauss , Norwich South

I am also surprised that any hon. Member, if he has examined this matter, should completely abandon half Erskine May. Let him study what is said about Stockdale v. Hansard and other leading cases. The words of the hon. Member that I had in mind were: Has it not always been held that the only tribunal which can determine the extent of a Parliamentary Privilege, where there is one, and, if there is one, what are the limits of it, is the House of Commons itself."—[OFFICIAL REPORT, 18th July, 1951; Vol. 490, c. 1258.] There is no doctrine which has been so completely overthrown. [An HON. MEMBER: "Nonsense."] An hon. Member says that that is nonsense, but I will tell the House what the four principles are as set out in Erskine May. I quote from page 173: In practice, however, there is much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect. Then follow these four principles which are now generally accepted: (1) It seems to be recognised that, for the purpose of adjudicating on questions of privilege, neither House is by itself entitled to claim the supremacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, consisting of the King and the two Houses, is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly.(2) It is admitted by both Houses that, since neither House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable, and reinforces the doctrine that it is known by the courts.On the other hand the courts admit.(3) That the control of each House over its internal proceedings is absolute and cannot be interfered with by the courts.(4) That committal for contempt by either House is in practice within its exclusive juridiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

How do the courts ascertain the privilege without reference to the resolutions of this House?

Photo of Mr Henry Strauss Mr Henry Strauss , Norwich South

I would beg the hon. and learned Member to study the decisions of the courts. If he studies Burdett v. Abbott and Mr. Justice Stephen's judgment in the case of Bradlaugh and Gossett and the judgment of Lord Denman in Stockdale v. Hansard he will have a full reply to that question.

That is the general case against considering service of a summons in a criminal case as a breach of Privilege. But I would beg the House to notice this further matter which the hon. and learned Gentleman mentioned—though I think he omitted one important point. Where a person is prosecuted for various road offences—exceeding the maximum speed at which a motor vehicle may be driven, or reckless or dangerous driving, or careless driving—it is a condition precedent to a prosecution that one of three things must be done: he must be warned at the time, which obviously may be sometimes impossible, or the summons must be served within 14 days, or within the said 14 days a notice not of a possible prosecution, but of the intended prosecution, must be served. If the hon. and learned Member were right in saying that service of a summons constituted a breach of Privilege, or could have constituted a prima facie breach of Privilege in this case, the same would apply to service of a notice of intended prosecution, and it would follow that a Member of Parliament could be made completely immune from prosecution for such offences.

Photo of Mr Reginald Paget Mr Reginald Paget , Northampton

The notice was here served in accordance with the statutory requirements.

Photo of Mr Henry Strauss Mr Henry Strauss , Norwich South

What I said was that every argument that a summons was a breach of Privilege applies equally to a notice of intended prosecution. That is my contention, and it is a serious contention. I say that reference of the complaint, apart from the question of the summons, to the Committee of Privileges, is obviously right. Since we obviously have confidence in that Committee, I agree, also, with the Home Secretary, that nothing should be excluded from the consideration of that Committee.

Photo of Mr John Lewis Mr John Lewis , Bolton West

I think that I ought to make it clear that my only complaint was one that the summonses were served after, in fact, the Motion was put down. I was advised by Mr. Speaker that it was too late to raise the original issue as a matter of Privilege, and my sole complaint is that, after the Motion had been put down, the summonses were issued.

Photo of Mr Henry Strauss Mr Henry Strauss , Norwich South

I do not criticise the hon. Member in any form; what I was criticising was hon. Members saying that there was a breach of Privilege. It is equally open to me to say that I believe that such a claim to Privilege is unsound, contrary to precedent, and injurious to the reputation of this House.

I believe that it is contrary to the interests of this House that we should appear to make the novel claim that an hon. Member of this House is in any way immune from the ordinary processes of criminal justice. My only complaint, if it be a complaint, of the hon. and learned Member for Northampton is that he gave a great many facts, otherwise unknown to us, regarding the summonses, while the hon. Member for Nelson and Collie said that the summonses arose directly out of the matters claimed to be matters of Privilege. They may be right, or they may be wrong; none of us knows.

The matter has not been tried and, in those circumstances, I submit that it is wrong and dangerous in principle to say that any service of a summons was a breach of the Privileges of this House. Mr. Speaker's Ruling was a right one, but because there is something which ought to go to the Committee of Privileges, I agree with the suggestion of the Home Secretary to refer the whole complaint to the Committee.

1.23 a.m.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I am not moved by tributes paid to my profession, but I should like to make one brief observation which arises from what happened when this matter was mentioned before and discussed in the House. We are told that my hon. Friend, the Member for Bolton, West (Mr. J. Lewis) whether right in his intention or not, at once sought the advice of the Chair. Now, I have always thought that the proper course when in any difficulty about the privileges of this House, was for an hon. Member to do just that. We were told by Mr. Speaker that he had not been able to give any advice to my hon. Friend, and had told him that the only course open to him was to put the matter down for the Select Committee.

That, I submit, is a completely new Ruling, because Erskine May makes it quite clear that one of the duties of Mr. Speaker is to give a Ruling when hon. Members are in any difficulty, especially on the issue of Privilege, in this House. If advice is not to be given from some quarter, then hon. Members may, time after time, be worried by things which are purely frivolous while they are helpless to get advice and guidance. This is what Erskine May says, on page 235: The opinion of the Speaker cannot be sought in the House about any matter arising or likely to arise in a committee The Speaker is always ready to advise Members of all parties who consult him privately, whether upon any action which they propose to take in the House, or upon any questions of order which are likely to arise in its proceedings. What we are concerned with is that no advice was given, and what was said from the Chair. The matter was about to drift until this unfortunate matter arose, a position, which I suspect, most hon. Members on both sides regret. The matter, with respect, was added to by an unfortunate statement from the Chair, which was premeditated. [HON. MEMBERS: "Oh."] I am discussing a substantive Motion, under which a Select Committee will have to investigate all the circumstances, including what action was taken by the Chair. What I am asking is that the Committee of Privileges should consider what is the duty of a right hon. or hon. Member who is in difficulty and whether it is his duty to seek the advice of the Chair and, if not, then whose advice he shall take on a matter.

Photo of Captain Harry Crookshank Captain Harry Crookshank , Gainsborough

On a point of order. I am not concerned with the main matter at all, but it seems that from what the hon. Member for Oldham, West (Mr. L. Hale) is saying that he is directing specific criticism against the action of Mr. Speaker and what he said. Is it in order to do that during a debate on another subject? May I ask whether, if he wants to make a criticism of Mr. Speaker, he can only do that on a Motion against Mr. Speaker himself? I submit it is not in order to discuss what Mr. Speaker said.

Photo of Mr George Wigg Mr George Wigg , Dudley

Further to that point of order. Are we not guided by the principle established by the right hon. Gentleman the Member for Saffron Walden (Mr. R. A. Butler)? On a recent occasion in this House, he called into question the impartiality of Mr. Speaker.

Photo of Mr James Milner Mr James Milner , Leeds South East

Clearly, the action of Mr. Speaker cannot be reflected upon on this Motion, which deals with an entirely different matter. I did, however, understand that the hon. Member for Oldham, West (Mr. Hale), in whatever form he put the matter, is asking that the Committee should, if it so decided, give advice to right hon. and hon. Members as to the course they should take. I do not think that necessarily means that the hon. Member is reflecting on Mr. Speaker. In any event he must certainly not do so.

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I am seeking guidance and the Committee of Privileges should give that guidance, of which we are in very real need. I will conclude by quoting the words I was about to quote when I was interrupted. Mr. Speaker said: Privilege does not protect hon. Members from the service of summonses, and an hon. Member cannot prevent the police from prosecuting him for an alleged motoring offence by putting a notice of Motion on the Order Paper."—[OFFICIAL REPORT, 18th July, 1951; Vol. 490, c. 1258.] No one would dissent from that, but what would be the position, having sought the guidance and advice of the Chair, if the hon. Member for Bolton, West, were to go to a court and try to raise a question of Privilege after that. It was an unfortunate observation, because—

Photo of Mr Will Nally Mr Will Nally , Bilston

On a point of order. We really must have this point clear. In Erskine May it is clearly laid down that one of the things Mr. Speaker is bound to do is to give advice to right hon. and hon. Members who seek his counsel. But there is no obligation whatsoever laid down in Erskine May, or anywhere else, that Mr. Speaker cannot please himself as to the nature of the advice he gives. In this particular case, he advised the hon. Member for Bolton, West (Mr. J. Lewis) as to what he could do if he intended to pursue the matter. He cast no doubt upon the merits of the position. I am submitting that there is no obligation whatever in Erskine May which binds Mr. Speaker to advise any hon. Member as to what exactly are his rights.

The Deputy-Speaker:

The hon. Gentleman is now arguing the merits of another matter—Mr. Speaker's action. He is not entitled to do that.

Photo of Mr Will Nally Mr Will Nally , Bilston

In my submission, Mr. Deputy-Speaker, if I may use the phraseology we have been entertained with for a considerable time tonight, reflections are being made, either direct or implied, that Mr. Speaker did not do his duty in this case, and that is completely out of order.

Photo of Mr John Boyd-Carpenter Mr John Boyd-Carpenter , Kingston upon Thames

Further to that point of order. As I understood it, at the moment the hon. Gentleman the Member for Bilston (Mr. Nally) intervened the hon. Gentleman the Member for Oldham, West (Mr. Hale) was quoting an observation made by Mr. Speaker, and adding the comment that that was an unfortunate observation. The point on which I seek your guidance, Mr. Deputy Speaker, is whether it is in order for an hon. Member to make a statement of that sort, other than on a Motion directly criticising Mr. Speaker.

Photo of Mr James Milner Mr James Milner , Leeds South East

The hon. Member has stated the correct position.

Photo of Mr John Boyd-Carpenter Mr John Boyd-Carpenter , Kingston upon Thames

That is to say that such an observation is out of order?

Photo of Mr Charles Hale Mr Charles Hale , Oldham West

I will not argue the matter. [HON. MEMBERS: "The hon. Member may not"] Surely, after two long points of order, one of them raised by a Member on a back bench who told me not to speak and then made a longer speech than I have made, I am entitled to point out that I will not argue the matter, and that I do not propose to follow the point.

I have made my point. I am asking that the Committee of Privileges should consider this matter and also consider what is the appropriate procedure for an hon. Member to take in such a matter as this, so that we may know.

Question put, and agreed to.

Resolved: That the complaint [18th July] of the hon. Member for Bolton, West, be referred to the Committee of Privileges.