Moved by Lord Lester of Herne Hill

That the Bill be read a second time.

My Lords, Section 13 of the Defamation Act 1996 provides that:

“Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings”,

he or she may waive the protection of parliamentary privilege given by Article 9 of the Bill of Rights for the purpose of those proceedings. The purpose of my essentially one-Clause Bill is simply to repeal Section 13 of the 1996 Act. I am very pleased that my noble and learned friend Lord Mackay of Clashfern has been able to remain in the Chamber because he will remember, as I do, what happened 14 years ago.

First, I should say what this Bill does not deal with. It does not deal at all with the merits of the Defamation Act, to which my noble friend Lord McNally made such a contribution as Minister. It does not deal with the passionate arguments about press regulations, Hacked Off or any of those matters. It is confined to a very important issue about parliamentary privilege in the context of defamation and nothing more.

If this Bill is read a second time, it may well not have to go any further because the Deregulation Bill that reached this House on Tuesday says in Clause 82—to be read with paragraph 40 in Part 8 of Schedule 20—exactly the same as my Bill. If the Deregulation Bill goes through this House, I will not take the House’s time seeking to push my Bill any further because it will be completely unnecessary.

A bit of background: on 7 May 1996, with my noble and learned friend Lord Mackay of Clashfern on the Woolsack, the noble and learned Lord, Lord Hoffmann, moved an Amendment that was addressed to the Neil Hamilton problem. The problem of Neil Hamilton MP was that he sued the Guardian for defamation and a High Court judge decided that parliamentary privilege under Article 9 of the Bill of Rights of 1689 prevented him doing so since it involved questioning proceedings in Parliament outside Parliament. Hamilton did not appeal against that judgment—as I, if I had advised him, would have recommended. Instead, he lobbied for an amendment to be made to the Defamation Bill which had been introduced as a Private Member’s Bill by the noble and learned Lord, Lord Hoffmann.

There was then a strong and well attended debate in which the noble and learned Lord, Lord Hoffmann, made it clear that he was agnostic about his own amendment; he expressed the arguments in favour and against very fairly. Since he was at the time a sitting judge it was obviously a delicate matter. Nor did he reply to the debate. Again, that might have caused some difficulty. Instead, both he and my noble and learned friend Lord Mackay of Clashfern showed their attitude towards the Bill by not voting in the Division called on it. The Bill was carried in this House and the other place and has been on the statute book ever since.

Every commission that has looked at the matter has criticised Section 13 and recommended its repeal. The first example was in the heavyweight 1999 Joint Committee on Parliamentary Privilege chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, which strongly criticised Section 13. In my Private Member’s Bill in 2010, I sought to do what the Bill is intended to do today. The noble Lord, Lord McNally, indicated in debate on the Bill that the Government were thinking about other matters of reform of parliamentary privilege and, therefore, it was unlikely that they would want Section 13 removed at that stage. Indeed, in their draft Bill and actual Bill, they did not do so. The noble and learned Lord, Lord Hoffmann, said at Second Reading of my Bill:

“I am sure that the noble and learned Lord, Lord Mackay of Clashfern, who piloted that Bill through the House, will agree that Section 13 was hastily put together at the last minute, and that hasty reforms tend to cause trouble”.—[Hansard, 9/7/2010; col. 431.]

That was a fair observation of the position.

On Second Reading of the Defamation Bill, Mr Robert Buckland, Member of Parliament for South Swindon, again criticised the section and urged its removal. At that stage, the Government did not have a firm position. Then there was the report of the 2013 Joint Committee on Parliamentary Privilege. It, too, reported that Section 13 creates great damage, and the Government agreed in December 2013 that repealing Section 13 would be the wisest course.

In the debate on a Motion to take note of the committee’s report on 20 March 2013, the noble Lord, Lord Brabazon of Tara, the chairman of the committee, said that he would welcome the repeal of Section 13, the noble Lord, Lord Bew, said that the committee was disturbed by the failure to take action, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said much the same, and the noble Lord the Leader of the House, Lord Hill of Oareford, said that the Government adhered to the committee’s reservations about Section 13. He continued:

“I understand that my noble friend Lord Lester of Herne Hill … proposes to introduce a Private Member’s Bill to deal … with this small but important change. The Government are in principle supportive of this measure to make that clear, and we look forward to seeing if it can make progress”.—[Hansard, 20/3/13; col 344.]

In the other place, in the debate on the Deregulation Bill, Sir William Cash and other Members from both main parties joined together to say that the section should be got rid of. Thomas Docherty, MP for Dunfermline and West Fife, made a strong speech advocating reform.

Everybody, as far as I am aware, agrees that we should now undo what we did 14 years ago and remove that unconstitutional provision. In the original debate, it was condemned by jurists who are, sadly, no longer with us, such as Lord Simon of Glaisdale and Lord Renton, for constitutional reasons. I submit that it is undesirable for a Member of Parliament or Member of this House to be able to pick and choose on an individual basis whether or not to waive parliamentary privilege according to whether it suits them as claimants or defendants in individual proceedings. No other legislature in the world allows that, and this is a day on which one can at last begin to get rid of it. I beg to move.

My Lords, I offer my congratulations to the noble, Lord Lester, for his Parliamentary Privilege (Defamation) Bill, which I support on the balance of the arguments. As the noble Lord pointed out, it arises from a dispute between a Member of Parliament in The other House and a paper, the Guardian. Therefore, this conflict raises a number of points in my mind about parliamentary privilege.

The first point arises from a decision taken in the courts in dealing with Rebekah Brooks. Before the committee of the House that dealt with the matter, she gave evidence that she or they had been involved in payments to the police. That is a matter of considerable concern but, despite being covered by all the press, it could not be put in the court for consideration because parliamentary privilege prevented it being presented there. That may have been right but it meant that the jury in the court did not get an important point which they should have considered.

Secondly, can the Minister confirm—or perhaps the noble Lord, Lord Lester, can comment on this—whether the defamation case against the media is affected by the changes made in the Legal Aid, Sentencing and Punishment of Offenders Act? With the transfer of costs that were taking place under that legislation, which we recall debating in this House, an exemption was made for the media cases. That was for a number of reasons. Under the old Act the transfer of costs, whether they were to do with the premiums for insurance or the actual costs and success fees, remained the same. Can the Minister confirm whether that is still the case? It is particularly important for many of those who might want to sue for defamation in regard to the hacking cases that are now before the courts. Is that still the position or do the Government intend to repeal that? There was some talk about a repeal perhaps being considered against the background of the introduction of the royal charter, given what Leveson pointed out was a means of dealing with some of these claims. Perhaps the Minister could write to me about that, as there is a complication of things here, but I would be grateful if he could give a statement on that.

Thirdly, is the Minister aware that during the recent Joint Committee on Privacy and Injunctions, which took evidence on super-injunctions and reported to this Chamber, a man called Mr Burby gave evidence to that committee? I protested about that because Mr Burby was involved in the courts for blackmail and harassment. He was under an injunction not to say anything about the case but he simply went to the committee and gave his statement, which was exactly what the court had prevented. The committee then published the whole of the accusations he was making and his case, completely in defiance of the injunction. How was it able to do that? By parliamentary privilege, as on the one hand the committee was able to claim, “We produce under the name and principle of parliamentary privilege”, yet the paper which could not do so under the court injunction then reported everything that he had said, using the report published by the committee, and claimed parliamentary privilege for that.

The only person who really suffered from that lack of the proper application of parliamentary privilege was the woman who was in court trying to protect her name. The court supported her and gave an injunction against this man but she was the one who suffered. The court was not able to protect under what we would normally have thought its role was, simply because Parliament had decided, “Publish and be damned”. That gives no satisfaction to the poor woman before the courts who was trying to secure justice for charges made against her on a matter of harassment and blackmail, so that raised a number of questions in my mind about the use of parliamentary privilege.

I have a couple of other points about the operation of parliamentary privilege. We have a rule in both Houses, or so I thought, about sub judice so that if a matter is before the court we are prevented from speaking about it. No law actually says that; it is apparently up to the Speaker, if he can get in before anybody makes a sub judice statement. There are number of examples of that. It can almost be raised, although it is not quite right to do so, in regard to the Prime Minister making a statement before they were finished in the court. We have heard the exchanges between the judge and the Prime Minister. It could be argued that it was not made here but in No. 10, but does parliamentary privilege extend there? In regard to sub judice, the judge certainly made a point about politicians—and we can include in that the Prime Minister—going out and making a statement. The Prime Minister judged that he should make an apology that everybody thought was necessary; however, he did it while the case was under way. All politicians were warned about that. I think that both sides ran in a bit too fast, but one certainly led to the other. Was that under the protection of parliamentary privilege? Was it a breach of sub judice?

Recently in the other place there was an MP who decided that he wanted to get something on the record because he had told the press that he was going to say something, even though it was sub judice. What did he do? He jumped up before the Speaker could say anything. He got the relevant few words out before the Speaker said, “Now, now, sub judice”, and the press printed it because it was protected by parliamentary privilege. If you ask, “What is the power of the Speaker?”, you are told, “Ah, you won’t get into debates in future”—that is, the Speaker’s eye will never find you in the Chamber. Still, I am afraid that if someone is looking for a word or two in the papers and wants to abuse the parliamentary protection system, then that is an abuse.

The examples I have referred to show that we have parliamentary privilege. It is an important privilege, provided that it is not abused. It is true that there may be some different interpretations of what I have said here, but it is important that parliamentary privilege is maintained and not abused. There are examples of such abuse through ignorance, through intention or because of a partnership between the press and some Member who wants to get a few lines in the papers and then uses parliamentary privilege to achieve it, and parliamentary privilege was not intended for that. I simply want to raise the issue that this is an important principle that we enjoy, and over my 40 years in Parliament I have sometimes seen it abused in different ways. In the main it has worked properly but, since we are now talking about parliamentary privilege, it is about time that we considered preventing this kind of abuse of it.

My Lords, as the noble Lord, Lord Lester, said, I was Lord Chancellor when the Amendment that this Private Member’s Bill seeks to delete was passed. The noble Lord has suggested that it was introduced for a particular case. There certainly was a case that was prominent at the time, but the Privy Council had already made a decision in a case from New Zealand called Prebble that said, in effect, that if a Member of Parliament—I think that at that time he was a Minister—is defamed by someone outside Parliament in respect of something that he has done in Parliament, then there is nothing that the Member can do about it. I felt that that was not particularly fair; on the other hand, it is for Members of Parliament to decide whether they wish to be defamed in Parliament without remedy.

The question was how this could be dealt with in a way that would be fair. The amendment that the Government prepared, and which the noble and learned Lord, Lord Hoffmann, moved, was intended to deal with that problem. It is not a problem only about a past case that the individual involved might have been wise not to pursue; the question is whether it is right that a Member of Parliament can be defamed by people in respect of something that he or she has said or done in Parliament and that, if that happens, he or she has no remedy.

The Bill would bring that about once more. There is no way that a Member of either House of Parliament can do anything if he or she is defamed in respect of what he or she has said or done in Parliament. As far as I am concerned, the Government have decided to accept an amendment moved in the House of Commons to do exactly this. At this juncture, therefore, the Bill from the noble Lord, Lord Lester, seems on the whole not very necessary because the Government have taken this on themselves in their Deregulation Bill. Now that I no longer have responsibility for trying to look after Members of Parliament, I am not concerned; if they prefer not to have this protection, so be it. This Government are willing to accept that, so I shall simply point out that there is that problem but say no more about it. I do not propose to get involved on this point when the Government’s Bill comes along.

My Lords, I am grateful to the noble Lord, Lord Lester, for introducing this Bill. I voted against the Hoffmann Amendment on Third Reading in May 1996. I did so for two reasons. First, I was persuaded by the arguments used by the noble Lord, Lord Lester, and others that this was tampering with Article 9 of the Bill of Rights and that that should not be done by simply tacking an amendment onto some Bill or other going through this House but should be properly considered. I was less impressed by the conduct of the Government of the day on the procedure. The noble Lord, Lord Lester, has described how it all started, and the noble and learned Lord, Lord Mackay of Clashfern, has confirmed that the noble and learned Lord, Lord Hoffmann, was put up to this by the Government. To have a serving Law Lord, even in those days, putting forward an amendment of extreme constitutional importance seemed slightly exaggerated.

I did not say that he was put up. The idea of putting the noble and learned Lord, Lord Hoffmann, up to anything is quite remote from my idea. It struck me that it was a constitutional matter. It was a matter on which the Privy Council, of which he was a member, had made a decision, and in those days it was perfectly reasonable for a Law Lord to move amendments to legislation. I asked him whether he would be willing to consider doing that, and after some time, he decided he would. That is the answer. If I was wrong in asking him, I am extremely sorry, but I do not think I was. It was perfectly reasonable to ask him. I could not do anything more than ask him, and it was for him to decide whether he wanted to do it. He decided to do it, and I well remember the circumstances in which he did it.

The noble and learned Lord has accepted responsibility for the Intervention by the noble and learned Lord, Lord Hoffmann. I am quite happy to accept that it was up to the noble and learned Lord, Lord Hoffmann, whether he accepted the Government’s remit.

Nevertheless, to follow the narrative of the noble Lord, Lord Lester, at Second Reading, the noble and learned Lord, Lord Hoffmann, referred to this problem. I shall not go into the basis of the problem because that has been well aired and discussed. I want to consider further the procedure of this House in April and May 1996 and to see just how far this Amendment should have been on the statute book in the first place. In Committee, the noble and learned Lord, Lord Hoffmann, moved his amendment. It was discussed and withdrawn. On Report, the noble and learned Lord, Lord Hoffmann, was not in his place to move his amendment. It was then taken over by Lord Finsberg, who moved the amendment, and then the noble and learned Lord, Lord Hoffmann, came in and spoke to it. It then became the Finsberg amendment. Lord Simon of Glaisdale had put down an amendment of a slightly different nature, but the Lord Chancellor of the day quite rightly pointed out that it had to be considered as an amendment to the Finsberg amendment. The problem was that the Public Bill Office had advised Lord Simon of Glaisdale that his amendment was out of order as it was not relevant to the Bill. Indeed, the Lord Chancellor of the day stood up and said that he had to advise the House that the amendment was not relevant to the Bill. Lord Simon of Glaisdale then said that he had not realised that, but he was still going to move his amendment and have it discussed. The Lord Chancellor of the day then said that he was perfectly entitled to do that and that in that sense the advice of the Clerk of the Parliaments was academic.

The debate went on around the Simon amendment. Then Lord Simon of Glaisdale said that he could not divide on the amendment because it was out of order, so he withdrew it. The House then came to the Finsberg amendment, and at the end of the debate on that amendment there was a question of whether there should be a Division. I remember that Lady Seear said that the House was too thin for that. Nevertheless, Lord Finsberg said that he was going to push the amendment. He did so. Nobody went into the Division Lobbies. The House was vacant and, at this point, the then Lord Chancellor, the noble and learned Lord, Lord Mackay, got up and quite rightly said on the second question that the amendment was negatived.

The Companion tells us clearly that when an amendment is negatived, having been discussed and decided upon, it should not come back at Third Reading. Nevertheless, Viscount Cranborne got up after a few days and said that he had been advised that many noble Lords wished to have the matter ventilated again at Third Reading. How and why he had been so advised, because there had been endless discussions on the matter, I know not; if I look again at the noble and learned Lord, Lord Mackay of Clashfern, I may see a little twinkle in his eye. The Leader of the House was advised that he should get up and say, in spite of all that the

Companion says, that we should have this again at Third Reading.

That was therefore done. At the end of Third Reading, we had a Division. By that time, the Hamiltonians—if I may refer to them as such—had got their act together, and it was passed. I do not believe that that is a proper and right way to introduce an amendment that may be tampering with Article 9 of the Bill of Rights.

I welcome the noble Lord’s Bill. We have to move on and find some way, if there is a mischief, of doing proper justice to those Members of the House of Commons or Members of this House who have a problem. However, that was not the way to do it, and I hope that we will never repeat that. Of course, what happened was that Mr Hamilton sued the Guardian, lost, and went to join UKIP.

My Lords, it is for me a particular privilege with an element of déjà vu to be standing here. Almost three years ago, on 9 July 2011, as the noble Lord, Lord Lester, said, I was fortunate to make my maiden speech during the introduction of his Private Member’s Bill. The noble Lord, Lord McNally, who is not in his place, was then of course the Minister. My noble friend Lord Prescott stood by me, more or less holding my hand as I spoke. It is therefore nice to be back here for another Private Member’s Bill moved, as usual, so ably and succinctly by the noble Lord, Lord Lester.

It is also for my noble friend Lady Wheeler and myself something of a privilege to sit here—still, perhaps, as the new girls—and hear from the very mouths of the noble Lords who were here and who spoke in that debate of the machinations that took place in the passing of that legislation. It is also a privilege to hear from my noble friend Lord Prescott about some outstanding issues, including that of costs.

The Bill is short, simple and, as well as being necessary, one with which we would all concur and would happily send on its way—except, of course, that it is perhaps a little unnecessary given that, as the noble Lord, Lord Lester, says, on page 203 of the Deregulation Bill we have almost exactly the same words, which have been through the House of Commons. Although I am not in the prediction business, I have a feeling that those words will go through this House without too many difficulties.

There is one little lesson we might take from this, which we have found before with the Dangerous Dogs Act and others: legislation passed either in haste, as the noble Lord, Lord Lester, says, or to answer one particular case, is rarely good legislation. This Hamilton Amendment was passed by the previous Conservative Government—disgracefully, as my Honourable Friend said in the other place—to assist a then Tory MP, who, as has been said, is now a UKIP fundraiser, in a dispute with the

Guardian

. I also take another lesson from this: namely, that it is probably best not to take on that newspaper. I think of Jonathan Aitken, Mr Coulson and various others.

We on this side are very content that this section of the 1996 Act disappears, and concur with the June 2013 view of the Joint Committee on Parliamentary Privilege that any replacement discretionary waiver would cause uncertainty and a possible chill. I am glad to see the noble Lord, Lord Lester, nodding, because when he gave evidence to the 1999 Joint Committee he said that a replacement might be appropriate. I think we are now all agreed that this simple “thank you and goodbye” is appropriate.

My Lords, we have all learnt some interesting things in this debate, which are no doubt well known to some of us, but certainly not to all of us. The noble Lord, Lord Prescott, raised some important and delicate legal issues on which it is much better for me to offer to write to make sure that we get it entirely accurate, rather than try to answer now.

The Government are, of course, strongly supportive of the reform of Section 13 of the Defamation Act. As has already been said, two Joint Committees have recommended that, and the Government were simply waiting for the appropriate place in a Bill going through the House on to which it might be tacked. The Government agree that Section 13 is at odds with the principle that free speech is a privilege of the House—and of Parliament—as a whole rather than of individual Members. The Government recognise that Section 13 also creates an imbalance whereby one party to proceedings can choose to use the parliamentary record but not the other.

For that reason, following the recommendations of the two Joint Committees, the Government accepted an Amendment to the Deregulation Bill on Report in the House of Commons. The Deregulation Bill has had its First Reading in this House; it will have its Second Reading on 7 July, and will move through Committee and Report stages after the summer, when we return in October. It is also for that reason that I express reservations about the Bill before us today. We entirely accept the policy intent of the Bill, but we do not believe that it is necessary given that the House of Commons has already included exactly the same provision in another Bill now moving through Parliament. Provided that noble Lords do not seek to amend the Bill on this issue—I entirely agree with the noble Baroness, Lady Hayter, that that seems extremely unlikely—my noble friend Lord Lester will have secured his aim, and therefore need not detain this House further.

I understand my noble friend Lord Lester’s desire to have a contingency plan given the determination and tirelessness with which he has campaigned on this issue. However, in the light of what I have said, I hope that he can rest assured that Section 13 will be repealed when the Deregulation Bill completes its remaining parliamentary stages.

Before the Minister sits down, I will make just two points. First, does he agree that one can never take anything for granted? In other words, we cannot know at this stage what the fate of Schedule 20 will be: therefore, this is a belt and braces approach. Secondly—I think I gave notice of this—can he clarify the Sewel Amendment? My Bill says that it applies to the whole of the United Kingdom. The Explanatory Notes to the Deregulation Bill go into the Sewel amendment in various ways. Can he confirm that if the Deregulation Bill goes through in its present form, because this is about parliamentary privilege it will apply to Scotland and Northern Ireland as well as to England and Wales? It is not absolutely clear from the language that that is so; obviously it should be so, but I would be grateful if my noble friend could clarify that.

My Lords, on the first point, I entirely take the noble Lord’s belt and braces approach—nothing is certain in life apart from death and taxes, and some people are quite good at getting around taxes, too.

On page 146 of the Explanatory Notes, it states very clearly:

“This repeal forms part of the law of England and Wales and Scotland”,

and Northern Ireland, and,

“will come into force at the end of the period of 2 months beginning with the day on which the Bill becomes an Act”.

I hope that that provides the reassurance that the noble Lord looks for.

I am very grateful to the Minister and to all noble Lords and noble and learned Lords who have spoken. Listening to the noble Lord, Lord Williams of Elvel, I thought that what he was saying sounded like Hilary Mantel’s Bring Up the Bodies. It certainly reminded me of a great deal that I had forgotten about those events. It would not be conducive to an entirely harmonious situation were I to add to the noble Lord’s description as I could. The noble and learned Lord, Lord Mackay, said at the time that the Government were neutral about the Amendment; those were his words. All I can say is that it was a strange form of neutrality, and seemed so to me at the time. I thought that it was inappropriate for a serving senior judge to have moved the amendment—and I have said so in the past. However, having said all that, I do not think that there is any point now in doing much about what happened then.

The noble Lord, Lord McNally, has criticised me for my lack of arithmetic, because that happened not 14 years but 18 years ago—and he said that I would be hopeless in the Treasury, which is probably true.

I thank everybody. I hope that the Bill will be read a second time.

Bill read a second time and committed to a Committee of the Whole House.

House adjourned at 3.12 pm.