APPENDIX 49
Further memorandum from the Clerk of the
House
PROVISION TO MEMBERS OF HANSARD TRANSCRIPTS
IN ADVANCE OF PUBLICATION
1. The Editor of the Official Report has
submitted a note to the Committee on permitting Members to receive
transcripts of their speeches in advance of final publication
of the day's Hansard. This brief paper is intended to expand on
the observation in paragraph 3 of the Editor's paper that I have
reservations about the suggestion. These reservations are entirely
derived from my concern about the degree of protection afforded
to such a publication by parliamentary privilege.
2. What Members say in the House is directly
protected from legal consequences by article IX of the Bill of
Rights. Those who, on behalf of the House, publish the written
version of what is said in the House—the Official Report—are
similarly protected, in this case by the Parliamentary Papers
Act 1840. That Act stays legal proceedings once it has been shown
that publication is by order of or under the authority of the
House.
3. A Member who repeats outside the House
what he or she (or indeed any other Member) said in the House
or in a committee—even if in the same words—is not
covered by parliamentary privilege. The 1840 Act will not apply.
Legal privilege may afford some protection, but it is not as absolute
as parliamentary privilege, and may be forfeited if the courts
find that the publication of a statement was actuated by malice.
4. The Editor's proposal puts Members in
possession of part of the Hansard record with the specific purpose
of allowing them to make it available to the media, so that the
possibility of court action arising from releases to the media
will be greater than at present. Of course, as paragraph 3 above
makes clear, even in such a situation, the Member is likely to
have a convincing defence. It might be practicable to devise a
means by which such independent publications could be authorised
by the House, and so brought within the cover of the 1840 Act.
But this would be an untested expedient in a difficult area.
5. The climate in the courts where concepts
such as human rights come into conflict with the rights of Members,
and indeed the cost of defending such an action, would lead one
to recommend that the very closest consideration be given to the
potential risks of the proposal. For example, there is a case
currently before the European Court of Human Rights (A-v-UK)
in which a former Member is sought to be held liable in damages
for something said actually in the House. The court has given
a preliminary judgement that the complaint is admissible. That
challenge and the possible consequences of difficulty arising
from the Editor's proposal are not on all fours. The preliminary
decision, in a much more fundamental area, does however illustrate
my observation about the difficult climate for the House which
may exist in the courts.
6. Finally, I should mention the recommendation
of the Joint Committee on Parliamentary Privilege that privilege
should be codified in statute. Were that suggestion to be taken
up, it might then be possible to take the necessary steps to clarify
and protect the kind of publication which the Editor has in mind.
William McKay
Clerk of the House
11 June 2002
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