Parliamentary Privilege

Parliamentary Privilege First Report

CHAPTER 8: PUBLICATION OF PAPERS AND REPORTING OF PARLIAMENTARY PROCEEDINGS

339. Two topics are separate from the mainstream of parliamentary privilege: publication of papers, and reporting of parliamentary proceedings. The immunity attaching to these activities derives from the common law and from statute, not the law and custom of Parliament.

340. Parliamentary privilege does not cloak parliamentary publications with any form of protection. This was decided in 1839 in the celebrated case of Stockdale v Hansard[387], where Messrs Hansard printed by order of the House of Commons a report prepared by the inspector of prisons. The inspector's report described as indecent and obscene a book on anatomy found in Newgate prison library. Mr Stockdale, the publisher of the book, sued for libel. The court held that parliamentary privilege protected papers printed by order of the House for the use of its own members, but that this protection did not extend to papers made available outside the House to members of the public.

Parliamentary Papers Act 1840

341. The Parliamentary Papers Act 1840 was passed to reverse this decision. Parliamentary freedom of speech would be of little value if what is said in Parliament by members, ministers and witnesses could not be freely communicated outside Parliament. There is an important public interest in the public knowing what is being debated and done in Parliament.

342. Section 1 of the 1840 Act provided that any civil or criminal proceedings in respect of a `report, paper, votes or proceedings' published by order of either House shall be stopped (`stayed'). Hansard is the best known example of such a report. Section 2 conferred similar protection on copies of such publications. Section 3 conferred a lesser degree of protection on `any extract from or abstract of' such publications. An extract or abstract, when published in good faith and without malice, is immune from civil and criminal liability. An abstract means a summary or epitome. The Act was drafted in a somewhat impenetrable early Victorian style. The text of the Act, as subsequently amended, appears in annex H.

Publications

343. Apart from Hansard, both Houses publish many papers relating to their own proceedings or those of their committees, such as committee reports. These papers are protected under sections 1 and 2 of the 1840 Act. The House of Commons, but not the House of Lords, also orders many other types of paper to be printed. These are predominantly papers laid before the House either by a minister of the Crown, or on behalf of the Comptroller and Auditor General or one or other of the parliamentary commissioners, to meet a statutory requirement or to comply with an order of the House. Between 7 May 1997 and 30 June 1998, 432 such documents received a printing order. Some of these papers were directly connected with the work of the House, such as public expenditure estimates. In other cases the connection was less direct. A large category of `Act papers' consisted of reports and accounts of government or other public bodies.

344. In both Houses the order to print and the printing number appear on the document as evidence that it has been formally received by the House and that the House has ordered its publication. In the House of Commons, printing numbers for House papers and for papers laid pursuant to Act are allocated by the Journal Office at the request of a committee or the government department responsible for laying the paper before Parliament. A printing order is entered in the Votes and Proceedings on the day the paper is laid before the House. In the House of Lords there is a similar procedure which differs in its details, but with the important exception that the Lords only orders the printing of its own documents.

345. As the Clerk of the House of Commons pointed out in a memorandum, the practice of giving Commons printing orders to publications presented to the House is far from new.[388] Presenting papers to the House of Commons is a well-established means used by government to publish its documents. The House of Commons has long insisted that it should be fully informed by government and should be the first to be informed. In the nineteenth century orders for the return of official papers were made frequently. Today, many statutes contain a requirement that papers, usually annual reports and accounts, should be laid before Parliament. The case of Stockdale v Hansard referred to above concerned a report presented to Parliament by the inspector of prisons in accordance with statute. The annual report of the chief inspector of prisons is still required by statute to be laid before Parliament and is ordered to be printed by the House.[389] Now, as a result of the 1840 Act, this report enjoys absolute protection.

346. As already noted, the 1840 Act owed its origin to Stockdale v Hansard and the risk of defamation claims in the courts. Today, few government papers seem likely to be the subject of actions for defamation. Many are laid before Parliament `by command of Her Majesty'. The responsibility for presentation is that of the minister in charge of the relevant department. These `command papers' include statements of government policy (`white papers') and policy proposals issued for consultation (`green papers') but they may be on any aspect of government policy. Despite two court decisions to the contrary at the turn of the century, the generally accepted view is that command papers are not printed by order of the House and so do not fall within the 1840 Act.[390]

347. There do not appear to have been any defamation cases relating to command papers since early this century. However, the government still has a means available to invoke the protection afforded by the 1840 Act. When a government minister considers that a document, typically a report of an inquiry into a matter of public concern, may be subject to libel action, it is often presented not as a command paper but in response to a motion (which may not be opposed by other members) moved in the House of Commons by a minister. Such `unopposed returns' are always ordered to be printed by the House of Commons. This procedure is used, on average, two or three times a year.[391] It is only used where the public interest in publishing the report outweighs the public interest in withholding the report because of the potential damage to individuals or companies.[392]

348. One of the themes of our report is the importance of confining the absolute legal immunity afforded by parliamentary privilege to those areas which need this immunity if Parliament is to be effective. This principle should apply as much to the immunity afforded by the 1840 Act as to the immunity given to proceedings by article 9 of the Bill of Rights. The extent to which the House of Commons currently grants this privilege, as a matter of course, to papers laid before it under statute contradicts this principle.

349. As the written evidence received by the Joint Committee demonstrates[393], there are several reasons why certain categories of papers have regularly been given a printing order. These include the coherent ordering by the House of its own papers for the current session, maintaining the continuity of an established series of documents, exercising control over the style and format of documents, and ensuring the availability of papers for members and the public. Conferring the protection given by the 1840 Act has often been an incidental consideration when printing orders are sought and granted. On the other hand, we have noted the strong views expressed by the Comptroller and Auditor General on the legal protection he considers necessary for his reports on departmental accounts. Many of the reports laid under statute contain these accounts and it is Treasury practice, supported by the Commons committees which deal with financial matters, that reports and accounts should, where possible, be printed together.

350. There are occasions where the balance of the public interest is on the side of absolute protection. Although it is a curious survival, the unopposed return procedure seems to fulfil a useful purpose in this connection.[394] We accept that the Comptroller and Auditor General's reports to the House of Commons should not be inhibited by the risk of actions for defamation. Similarly the reports of parliamentary commissioners for administration, health, or for Northern Ireland have a strong case for absolute protection. However, we find it hard to see why the annual reports of bodies such as the Forestry Commission or the agencies of the Ministry of Agriculture, to take but two examples, should receive legal immunity.

351. This is primarily a House of Commons matter. We recognise that considerations other than privilege are involved. Disentangling practices developed over two centuries will require detailed examination. The 1970 joint committee on the publication of proceedings in Parliament drew attention to the `somewhat haphazard manner' in which printing orders were accorded to some Act papers but not others, and recommended that rules should be prescribed. Neither House took any action on this recommendation. In 1980 the House of Commons Journal Office sought to institute a policy whereby printing orders would be restricted to reports and associated papers of committees of the House and reports and accounts accompanied by reports of the Comptroller and Auditor General. The policy met with opposition.[395]

352. The Joint Committee considers the presumption should be that, unless there are strong reasons in the public interest, no paper other than one emanating from the House or its committees should be absolutely privileged. We recommend that the House of Commons procedure committee should act on this matter.

Deposited papers

353. As already noted, the House does not order publication of all papers laid before it. Since 1832 the House of Commons library has maintained a series of papers known as `deposited papers' which are formally deposited in the library by the Speaker or by a minister for the use of members and their staff.[396] Ministers place the vast majority in reply to parliamentary questions. Deposited documents cover a wide range, including research reports, statements issued after conferences, transcripts of radio and television interviews, and exchanges of correspondence. Private members may not deposit such papers. The library is not open to the public, and the papers may therefore be inaccessible to the media and other interested parties unless they are otherwise made generally available.[397]

354. Deposited papers are seldom confidential or sensitive. However, members should bear in mind that the act of depositing a paper in the library does not constitute publication by order of the House for the purposes of the 1840 Act. Consequently, unauthorised publication of these papers is not protected by that Act.[398] The status of deposited papers and the extent of their distribution should be examined by the Commons procedure committee as part of the review we recommend above.[399]

Reporting

355. Each House has the right to prohibit publication of its debates and proceedings. This right is an aspect of Parliament's general right to control its own affairs. Publication of debates, especially false or misleading reports, was in the past repeatedly declared to be a breach of privilege. In the House of Lords, standing orders provide that the printing or publishing of anything relating to the proceedings of the House is subject to the privilege of the House.[400] On 16 July 1971 the House of Commons resolved that:

`notwithstanding the resolution of the House of 3 March 1762 and other such resolutions, this House will not entertain any complaint of contempt of the House or breach of privilege in respect of the publication of debates or proceedings of the House or of its committees, except when any such debates or proceedings shall have been conducted with closed doors or in private, or when such publication shall have been expressly prohibited by the House.'[401]

This resolution, which followed recommendations of the 1967 committee, brought the rules of the House into conformity with long-standing practice.

Newspaper reports

356. Newspaper reports are not usually taken from Hansard. Accordingly, since they are not taken from a report published by order of the House, they do not fall within the (qualified) protection afforded by section 3 of the 1840 Act. However, they do enjoy privilege, either absolute or qualified, at common law. This was decided in 1868 in Wason v Walter.[402] By analogy with reports of court proceedings, a publisher of a report of a parliamentary debate is protected at common law from actions for defamation. If the whole debate is published the protection is absolute; if less than the whole is published, the protection is qualified and not available at all when the extracts are shown to have been published maliciously.

357. This common law protection has now been augmented by a modern statute. Under section 15 of the Defamation Act 1996, fair and accurate reports of the proceedings in public of a legislature anywhere in the world enjoy qualified privilege for defamation purposes. So does a fair and accurate copy of, or extract from, material published by or on the authority of a government or legislature anywhere in the world.[403] However, this statutory provision is not yet in force.

Broadcasting

358. Radio and television are now firmly established as important media for communicating proceedings in Parliament to the public. Regular sound broadcasting from both Houses began in 1978. Televising of the House of Lords began in 1985 and of the House of Commons in 1989.[404] Radio signals are provided to broadcasters by a company under contract to the broadcasting committees of each House. Arrangements for televising the proceedings of each House are more complicated. Television signals (that is, the pictures) are produced by an independent operator contracted to a private company, Parliamentary Broadcasting Unit Ltd (PARBUL). The directors of PARBUL are drawn from both Houses and from broadcasting organisations, and the chairman is appointed by the Speaker of the House of Commons. PARBUL operates under licences granted by the Speaker and the Clerk of the Parliaments. From the several cameras operating inside the chamber of each House PARBUL, by means of a continuous signal, makes a clean feed of sound and vision available to television organisations and radio stations. As required from time to time, proceedings of committees of either House are also made available for radio and television.

359. Radio and television broadcasts, comprising signals or copies of signals authorised by each House, might possibly fall within sections 1 and 2 of the 1840 Act. These sections apply to court proceedings in respect of the `publication' of reports and proceedings. This language might be capable of being interpreted widely as applying to publication by any means, including radio and television, even though radio and television were unknown in 1840.[405] Section 3 does not lend itself so easily to such a broad interpretation. Section 3 applies to civil and criminal liability for `printing' extracts or abstracts of reports published by order of the House.

360. To meet this difficulty, section 3 was widened by statute in 1952 to include broadcasting by means of wireless telegraphy.[406] In 1990 section 3 was widened further to include any television or sound broadcasting service.[407] In the ordinary way these provisions are apt to provide an adequate degree of protection in respect of radio and television broadcasts. The only proper source of sound and television signals is the source authorised by each House. Hence section 3 of the 1840 Act, as amended, is applicable. Whether the common law defence of privilege, as decided in Wason v Walter, is also available to broadcasters has never been determined, but it would be surprising if it were not.

361. There is a further complication with sound and television broadcasting. In addition to live or recorded broadcasts of the actual proceedings of the House or a committee, broadcasting takes the form of radio and television reports by others of what occurred in Parliament. Depending upon whether the source of the information was one authorised by Parliament or not, section 3 will or will not apply. Even if the section 3 defence is not available, here also the (qualified) common law protection would seem to be available, together with the qualified protection afforded by section 15 of the Defamation Act 1996 when it is brought into effect.

Proof of improper motive

362. In one respect broadcasters, who look for their defence primarily to section 3 of the 1840 Act (as amended), are less favourably placed than newspapers who look to the common law defence. In 1970 the joint committee on publication of proceedings in Parliament drew attention to the difference in the onus of proof of malice under section 3 of the 1840 Act and at common law. At common law the burden of proving malice lies upon the person who alleges it; namely the plaintiff in the defamation proceedings. Under section 3, the printer (or, now, the broadcaster) must prove a negative: that he was not actuated by improper motive.

363. The reason why section 3 was framed in this way is not clear. The 1970 joint committee preferred the common law approach.[408] We agree. Proof of malice is an essential ingredient in the plaintiff's ability to recover damages. The point is not of major importance, and in practice there seems to have been no difficulty, but if there is to be legislation it would be useful to clarify this area of the law.

Contempt of court and criminal liability

364. Conversely, in another respect the press are less well placed than live broadcasters. Section 3 protects against all civil and criminal liability, but the press generally are not able to rely on section 3 because their reports are not taken from Hansard. The press must rely on the protection of the common law. The common law affords protection against claims for defamation. It is doubtful whether the common law affords protection against a contempt of court claim, or against prosecution for a breach of the official secrets legislation, when a newspaper carries a report of statements made in Parliament in breach of a court `no-publicity' injunction or in breach of the Official Secrets Act.

365. In practice such claims are unlikely, but if there is to be legislation the position should sensibly be clarified, in favour of the press. As the Clerks of the two Houses put it: why expose the media to criminal liability for publishing the same speech that the public can read in Hansard ?[409]

Defamatory interjections

366. Broadcasters are exposed to one hazard inherent in live broadcasts. The expression `proceedings' in the 1840 Act presumably has the same meaning as `proceedings in parliament' in article 9 of the Bill or Rights and, accordingly, does not include comments which are made during proceedings in the House or a committee but which do not form part of those proceedings.[410] In particular, `proceedings' do not include a defamatory interjection made by another member or by a spectator in the gallery. Thus, a broadcaster would not have the protection of section 3 if he were to broadcast such a defamatory remark.[411]

367. We think this is a theoretical rather than a real risk. The sound signal from the House or committee room is concentrated on the member (or, in a committee, the witness) who is speaking. As for television, it is most unlikely that the `clean feed' of television signals would include a defamatory visual display. In practice no difficulties seem to have arisen since sound and television broadcasting were introduced. We see no need for any special statutory provision in respect of this risk.

Sound and video archives

368. Archive tapes, both sound and video, are preserved by the parliamentary recording unit for about two years and then deposited at the National Film Archive. The tapes are available to members and officers of both Houses, and may be supplied on a commercial basis to broadcasters and others seeking them for private use or other legitimate purposes, such as an education video.

369. These arrangements and, indeed, the very supply of sound and television signals by each House, raise the question of how far each House and its officers enjoy protection in respect of defamatory material made available in this way to the public. As already noted, sections 1 and 2 of the 1840 Act will apply if these modern methods of communication can be regarded as `publication' for the purposes of that Act. So far as the Joint Committee is aware, no difficulties have arisen on this score, but this is another point that should be clarified by modern legislation.[412]

Internet

370. Members whose speeches or questions are reported in Hansard have an opportunity to check and correct the transcript immediately after delivery, before the authoritative version is published. The scope for correction is strictly limited. If a member has made an error of substance, he must correct it in debate or on a point of order. Transcripts of the proceedings of each House are now made available on the Internet on a daily basis. These daily transcripts are, necessarily, made available before all members have had a full opportunity to check them.[413] Corrections to the `daily part' are few and mainly confined to errors in transcription or printing. The daily part is published as the official report of proceedings on the authority of the two Houses and, on that basis, attracts privilege under the 1840 Act, even though in due course the daily parts are superseded by sessional bound volumes incorporating further corrections.

371. Persons who give evidence to select committees of both Houses also have an opportunity to correct errors in transcripts of their evidence before publication of the official report of the proceedings. Sometimes they may amplify their evidence in explanatory footnotes or supplementary memoranda. The final decision on the extent of correction permitted rests in each case with the committee. Corrections may be substantial and are often necessary where witnesses are inexperienced and find close questioning in public difficult and confusing. In these circumstances it has been the practice not to make the transcript generally available until after the witness has had the opportunity to reflect upon it, correct it, and when necessary amplify it. This may mean that statements made by a minister or other witness at a committee hearing are not available on the Internet until some weeks later, even though the proceedings of the committee may have been broadcast live.

372. The chairman of the House of Commons liaison committee represented to the Joint Committee that this practice is inconvenient to members, who wish to see the text of the minister's evidence sooner rather than later.[414] The House of Commons Commission also asked the Joint Committee to look at the privilege aspects of this issue.[415] This is not a matter we can resolve authoritatively since it is primarily a question of interpretation of the 1840 Act. It would not be appropriate for the Joint Committee to presume to give legal advice. In principle, distribution on the Internet of uncorrected transcripts of evidence given by witnesses to committees of the House, if ordered to be published by the House, would seem to stand on the same legal footing as publication of the text of members' speeches in Hansard which may be subject to subsequent correction. In practice, however, there is a difference to which we have drawn attention between the extent of the corrections permitted for members' speeches and witnesses' evidence.

373. In one respect immediate publication of committee transcripts would conflict with the Joint Committee's report. Earlier in this report we stressed the importance of fairness to witnesses.[416] Evidence is not debate. Committees take evidence from witnesses in order to obtain, as exactly as possible, the witnesses' opinion or expert advice. The witnesses may not have foreknowledge of the questions. In many cases it would be unfair to a witness to publish widely in printed form what many will assume to be an authoritative text of the witness's considered views, with or without a published disclaimer. This would obviously not apply to prepared statements made in select committees, but these are rare.

Recommendations on reporting

374. The Joint Committee considers the protection given to the media by the 1840 Act and the common law itself should be retained.[417] We consider, further, that the statutory protection would be more transparent and accessible if it were included in a modern statute, whose language and style would be easier to understand than the 1840 Act. We recommend that the 1840 Act, as amended, should be replaced with a modern statute.

375. The Joint Committee expresses no view on wider issues of the law of defamation, such as the desirability of according qualified privilege to the publication, in good faith and after reasonably careful investigation, of comments about political or public figures which later turn out to be untrue. The considerations involved in this type of issue do not concern parliamentary privilege. Nor do they relate solely, or even primarily, to members of Parliament.

387 (1839) 112 ER 1160. Back

388 Vol 3, p 161. Back

389 e.g. C J (1996-97) 45. Back

390 See Erskine May, 22nd ed (1997), p 87; Mangena v Edward Lloyd Ltd (1908) 98 LT 640 appears to be based on a misreading of the earlier case of Houghton v Plimsoll (The Times, 2 April 1874). Mangena v Edward Lloyd Ltd was followed in the later case of Mangena v Wright [1909] 2 KB 958. A very few command papers directly relating to expenditure (e.g. the Estimates) are also ordered to be printed by the House of Commons. Back

391 e.g. The Narey Inquiry into the Maze Prison, CJ (1997-98) 506, 507; The Eyre Review on The Lyric Theatre in London, CJ (1997-98) 647, 649; the Legg report on Sierra Leone, CJ (1997-98) 723, 727. See also Patricia Leopold, `The Parliamentary Papers Act 1840 and its application', Public Law, Summer 1990, p 183 and `The Publication of Controversial Parliamentary Papers' (1993) 56 Modern Law Review 690. Back

392 See letter from the Leader of the House of Commons to the chairman of the Joint Committee, vol 3, p 157. Back

393 See memorandum by the Clerk of the House of Commons, vol 3, p 159; letter from the Leader of the House of Commons, vol 3, p 157; and letter from the Comptroller and Auditor General, vol 3, p 158. Back

394 The procedure is described in paragraph 3 of the Clerk of the House of Commons' memorandum, vol 3, p 160. Back

395 See memorandum by the Clerk of the House of Commons, vol 3, p 162. Back

396 House of Commons Public Information Office Factsheet No 38: House of Commons library deposited papers and other unpublished papers is available on the internet at www.parliament.uk/commons/lib/fact.htm. Back

397 This may not be widely understood. For example, the Daily Mail complained to the Joint Committee that reporters could not gain easy access to the library to inspect deposited papers and that this `anomaly' should be removed: vol 3, p 156. Back

398 Erskine May, 22nd edition (1997), p 206. Back