I recently discussed the work of your committee with Patrick Cormack and he suggested I write to you in case the Committee might feel I had something to contribute to your discussions. You may remember I wrote an article for The House Magazine on the occasion of the Commons debate on the Defamation Bill in June 1996. My involvement with your remit while I was an MP involved a Commons debate after the Col. B affair and evidence from me to the Privileges Committee which was reported in early 1979; and a motion in 1980, to which I replied from the opposition front bench, which finally exempted the courts from seeking formal leave to quote Hansard. I respond to Patrick's invitation in the belief that the Committee might be interested in the views of an ex-MP who always felt the psychological protection afforded by Article 9 to be essential in the performance of parliamentary duties.

  During my second spell in the Commons between 1974 and 1983 I was much involved with miscarriages of justice in general and the "Confait case" in particular—which concerned three constituents of mine. As a result I also became involved with the better-known miscarriages in the 1980s. Throughout both the five year Confait process (Home Office representations, an Appeal on reference, the Fisher Inquiry and the statement by the Attorney in 1979 which finally exonerated my constituents) and representations on the Maguires, Guildford and Birmingham, I was conscious that the "miscarriage battle" for the hearts and minds of judges, ministers, civil servants and policemen was, at least in part, being fought in the media—with reports driven by unequal confidential briefings by the Metropolitan Police and ministers on one side and a few MPs and journalists on the other. I was always aware that it was only article 9 that could protect myself and journalists from defamation proceedings—especially proceedings initiated in terrorem by the Police Federation (in the case of junior policemen) and the Home Office using taxpayers money (in that of senior ones). Indeed when I was sued for one inoffensive sentence in the introduction to a book I wrote about the case, I was advised strongly by counsel to settle.

  I realise that there are no current proposals to remove this protection of privilege from MPs. But there is a need for its role to be fully understood by MPs and the public. Your report could help in this regard. It was best stated by the Privileges Committee in 1939 responding to government threats to prosecute Duncan Sandys for asking a parliamentary question about Britain's anti-aircraft defences; the Committee responded with the robust assertion that privilege does not properly attach either to Parliament or to MPs but to the citizens whom MPs are elected to represent. So the Hoffman amendment must be repealed on principle. It is absurd for a single MP to be able to waive a privilege which does not belong to him or her. As Mr Justice Owen said in the Allason case, members should take the ill consequences of being an MP along with the good ones.

  I say this for practical as well as principled reasons. Any proposal which involves Parliament waiving classes of privileged material on a particular subject to enable MPs to sue (but not to be sued) would be both invidious in principle and fraught with difficulty in practice: indeed with as many difficulties around the boundaries of exactly what exactly is being waived as would have cropped up had Hamilton come to court. Tinkering in this way with Article 9 could also lead to constitutional drift, subtly over time changing the balance between parliament and the courts, leading first to common law interpretations of parliamentary process and eventual de facto judicial review of parliamentary "reasonableness".

  If, on the other hand, some practical conciliation process is needed to deal with the problem of individuals who believe themselves wronged by words spoken in Parliament under the cloak of privilege, it could be framed in the "informal" spirit of Nolan, initiated under strict rules by the Standards and Privileges Commissioner and adjudicated by an ombudsman, with the legislative framework of Article 9 intact: though such a process would inevitably beg the question of the need for parallel processes to cover privileged reports in the media and proceedings in courts of law; and would have to be very tightly drawn to prevent it being used as a political tool and an alternative to defamation proceedings by powerful lobbying groups.

16 February 1998

  The Defamation Bill, now in the House of Commons, looks set to hand over parliamentary freedom of speech for judges to arbitrate in future. Hitherto it has all been governed by Section 1 of Article 9 of the 1688 Bill of Rights: "Freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament." Three hundred years later two accidental events have colluded to destroy the essence of this hard won piece of parliamentary privilege. The Government has introduced an uncontroversial Defamation Bill into the Lords; and the Lords have tacked on to it a constitutional amendment to deal with the grievances of two MPs, who were prevented in the courts last year from suing two newspapers.

  The problem for both of them was that the law lords had insisted (in an appeal from the New Zealand courts) that Article 9 and parliamentary immunity worked both ways: if newspapers could not criticise MPs in the courts for what they said or did in their parliamentary business, they were equally prevented from mounting a proper defence when MPs sued them. So, there being no chance of a fair trial, the only answer was to have no trial at all.

  Rupert Allason had a libel case against Today newspaper stopped, with Mr Justice Owen telling him, with a degree of relish that "as a Member, he must take the ill consequences [of being an MP] together with the good consequences". A few days later, Neil Hamilton, suing The Guardian for allegations of accepting cash and a stay at the Paris Ritz for putting down parliamentary questions, had his case stopped for exactly the same reason. But in his case, the judge, Mr Justice May, proclaimed that: "Profound denial of justice to the plaintiff . . . denial of a forum to the defendants . . . licence to publish material about parliamentary proceedings which, if it is untrue, may go unremedied". It was all a judicial establishment signal to the House of Lords in their parliamentary capacity to tidy up the statute law.

  This the Lords have now done and the new clause is a can of worms. It purports to allow anyone who has said anything in Parliament to waive privilege in any defamation proceedings. The fundamental objection to this is that the Bill of Rights and the freedom of speech that goes with it does not belong to MPs or even to parliament. It belongs to every citizen in Britain. When, 40 years ago, Duncan Sandys had been threatened with prosecution under the Official Secrets Act simply for asking a question about the state of London's anti-aircraft defences, the subsequent report of the Privileges Committee, which was endorsed by the House, explained parliamentary freedom of speech with an impressive eloquence:

"The privilege of freedom of speech enjoyed by Members of Parliament is in truth the privilege of their constituents. It is secured to Members not for their personal benefit but to enable them to discharge the functions of their office without fear of prosecution, civil or criminal."

  But that was in 1939, with war in Europe looming and a consequent awareness of how precious democracy was. Now we are in another world. Respect for Parliament and MPs is low. There is no longer much public understanding of the historic links between freedom of speech and the democratic process.

  Article 9 was deliberately written in its sharp, concise form so that the judges could not tamper with freedom of speech. It was intended to reconfirm the seniority of the High Court of Parliament over the High Court of Justice, and the precedence of the democratic representatives of the people over the judicial appointees of the Crown. For the past century, there has been an armistice in this battle for supremacy between the courts and Parliament. The House of Commons has tended to proceed more by resolutions asserting its privileges rather than statute which, once passed, becomes subject to judicial interpretation. It did so in 1980 to allow Hansard to be quoted in court as a historical fact. It retained the position under which nothing said or done in Parliament can be questioned in the courts whether by way of direct evidence, cross examination or submission.

  The new clause will change all that. Its proponents imagine that it will only be used when MPs (presumably only those who are rich enough to do so), can waive their privilege and sue newspapers. It is a clause born of deteriorating relationships between Parliament and the press and of what many in Parliament see as an abuse of press freedom, something powerful interests, whether they be BCCI, Distillers, or the police also dislike and use the laws of libel to curtail.

  If only for this reason, the press should oppose it. Libel games between wealthy MPs and newspapers will not diminish press freedom. They will simply make the job of honest, campaigning MPs slowly but surely more difficult. A new self-censorship will creep into their activities.

  For with this new clause passed into law, if MPs are sued for words spoken outside the House and do not wish to waive privilege for similar statements inside the House, juries could be told of the fact. MPs could be publicly challenged by their opponents to waive privilege; and little by little the shadow of the laws of libel, the most dominant barrier to freedom of information in Britain, will seep into the political and parliamentary process.

  The immediate cause of all of this is a dislike of the press by an unpopular House of Commons. But the judges want the clause even more. They like acting as national referee and upsetting ministers. Today they regularly humiliate Michael Howard at the Home Office; 20 years ago they did the same to Fred Mulley over comprehensive schools in Thameside. It is easy for them to court popularity by curbing unpopular governments. But Tony Blair should remember they will turn on his ministers if he tries any radical legislation.

  So, it would be a profound mistake for the House of Commons to go along with the Lords amendment. Article 9 is the nearest thing we have to a written constitution and its influence goes far beyond Britain. Several Commonwealth states have linked their Bills of Rights to ours. Nor are there many MPs wanting to sue newspapers for libel; most cannot afford to anyway. Mr Justice Owen was right; there are upsides and downsides to privilege. MPs have plenty of occasions in Parliament to defend themselves in public; and now they have their own watchdog in Sir Gordon Downey, occasions for sleaze litigation should diminish. Reforming the House of Commons and the House of Lords will do far more for the image of British democracy than giving free rein to rich MPs to use the courts as a libel playground and judges to "interpret" our fragile constitutional freedoms.

Christopher Price is a former Labour MP

The House Magazine

24 June 1996