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.