My Lords, I should like to join other noble Lords in congratulating and thanking the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on bringing this Motion forward for debate. The incident to which the noble and learned Lord referred—that involving the noble Lord, Lord Hain—raises an important issue which ought not to be left unaired.
The time-honoured privilege of being able to speak in this House without fear of being pursued for libel or some other breach of the law was established by the Bill of Rights to allow noble Lords to speak their mind freely when contributing to debates and other proceedings in this House. It is a necessary and valuable privilege which is generally understood and accepted, but it must not be—I was going to say “abused”, but perhaps I should say “misused”.
There are matters and cases where it should not be exercised; if it is misused, that will call into question whether the privilege should be regulated, further controlled, or even abolished. Everyone would accept that it should not be used to expose official secrets or matters that demand a high degree of confidentiality for other reasons. As a general rule, the sub judice rule is important; we should not use the privilege to frustrate a judicial decision in a court of law.
It would be difficult to define a range of issues on which the exercise of this privilege should be banned or limited by legislation or Standing Order. Misuse of the privilege is recognisable when it happens, just as Dr Johnson knew a stone when he kicked it. So what is needed is some sanction which will cause a noble Lord to think twice, or even more often, before deciding to exercise the privilege.
My suggestion is that, if a noble Lord has exercised the privilege in a sense that might be regarded as misuse—against the advice of the Lord Speaker, or without taking the Lord Speaker’s advice—a House committee such as the Committee for Privileges and Conduct should have the right and duty to examine and investigate the matter, and to report to the House of Lords on whether the use of the privilege was justified in that instance. I believe that that—without the need for a ban by definition—would oblige those minded to exercise the privilege in a manner that might be seen as a form of misuse to consider not twice but even more often whether to go ahead.