My Lords, the noble Baroness, Lady Whitaker, commented on the difficulty of non-lawyers speaking against a background of so many noble and learned colleagues, and I certainly come into the same category as her. But I do not think that this matter is for lawyers only; it affects everybody.
For more than 20 years I have had access to this particular privilege. I have never personally exercised it. However, it is clear that it is there for a purpose. At the end of the day, I suppose that one could say that it has the potential for the exercise of arbitrary power, which is a very serious thing. My anxiety is that, if you particularise this issue, as some noble Lords have in the case the noble Lord, Lord Hain, it misses the point. Where a particular privilege is granted, whether to a Member of Parliament or somebody else, there is always the potential for a mistake to be made. There is always the potential for somebody wrongly to make an accusation or misuse the privilege.
In recent years, people at the other end of the Corridor have joined in campaigns against what they believed to be inappropriate behaviour by a number of senior political figures of the past and made allegations against them that subsequently appeared to be untrue. Nevertheless, my anxiety about the conflict—and the noble and learned Lord, Lord Brown, is correct that this is not just the potential for conflict; there is conflict in many respects—is that once you start to put an envelope around the privilege, you are then in a position of having to decide where to draw the lines, and you are then subject to arbitration about whether you have crossed a particular line or not.
For instance, we could seek the guidance of the Speaker or the Lord Speaker. But if we take our present-day circumstances, one can imagine that one of the two current Speakers might be prepared to take a different view from the other—and I do not specify which one. Therefore, you start down a road at the thin end of the wedge where, ultimately, the privilege will become controlled. On balance, looking at the arguments between observing the rule of law on one hand and maintaining parliamentary privilege on the other, once you introduce a process where somebody or some institution has to judge whether the Member is right or wrong, that power will ultimately be reduced.
The noble Lord, Lord Norton, made a very good point when he talked about Members being advised on privilege at their induction. Although I was aware of it because I had been in an institution for some time, it was not part of my induction. The House could without any difficulty make it a normal part of the induction process. It does not require any additional committees or further reports; it just needs to be done. That would be a very positive contribution.
There is power in the ability to say something, I know that the noble Lord, Lord Thomas, made the point that when it is your training, your life and your career, you naturally give a precedence to something a court will decide that perhaps the general public does not. It is also the case that wealthy and powerful people can get greater access to and understand the potential of the courts more than most ordinary people. They have used and abused this—so the privilege requires protection.
I am nervous about committing to starting reports and going through the whole thing again, and then asking particular individuals, who will vary in judgment from time to time, to decide whether you can exercise the power. It must be done responsibly—I fully accept that—but I do not believe that the situation is so out of control that any radical steps need to be taken. The privilege is used sparingly. One can argue about each individual case, but I do not think that we have a huge constitutional problem on our hands. However, we may do if we start to diminish that privilege. The more people who are engaged in some kind of arbitration on whether you exercise your privilege, the greater the risk that the privilege will ultimately be lost. As a final protection in our constitution, Parliament must uphold that privilege, which should be left alone. Providing Members with guidance should be more than adequate, rather than setting up any further committees or inquiries.