Parliamentary Privilege First Report

Memorandum by the Guild of Editors

  Membership of the Guild of Editors is drawn from the editors of national, regional and local newspapers and their broadcasting counterparts. The Joint Committee's review of Parliamentary privilege raises questions of freedom of expression and the public right to know about and comment upon the Government, legislature and those involved in their proceedings.

  The Committee's invitation to submit evidence refers to Parliamentary privilege as the "rights and immunity the two Houses and their members must have in order to carry out their work properly" and its inclusion of the right to speak freely and without fear in Parliament. The necessity for such rights is only too well understood by editors, given their daily negotiations of the restrictive operation of the laws of libel, contempt, and confidence combined with an institutional culture of secrecy, of which official secrets legislation is but one part.

  The Guild hopes that the Committee's recommendations will ultimately ensure that public access to, understanding of and accurate information about, the operation of Parliament and its Members' performance of their duties is enhanced rather than reduced as a result of the Committee's review. Such public scrutiny is fundamental to democratic accountability.

  For example, there is a public interest in fair and accurate media reports of Parliamentary proceedings, and Parliamentary publications. The type of legal protection for such reports, such as qualified privilege defences under the libel laws, could be extended to protect reports against claims or prosecution under other areas of the law in respect of which Members of Parliament enjoy immunity. This should include protection from action for contempt of court, confidence and official secrets legislation. If Members of the House were to be rendered liable to legal action by citizens as a result of reduction of parliamentary privilege, protection should still be given to reports of proceedings and actions.

  There could be scope for extension of such protection for media reports: for example, to reports of papers not covered by the Parliamentary Papers Act 1840 (eg command papers; drafts) and reports of papers or activities unprotected against legal action, other than defamation claims, (when the Defamation Act 1996 is implemented). Media reports might be protected against libel but are still vulnerable to legal action under official secrets legislation, the laws of confidence, contempt and court orders which restrict reporting. If the definition of Parliamentary proceedings is widened, defences for reports should be correspondingly extended to enable full coverage of Parliamentary activity and that of members of both Houses and officials. This ought to assist selective but fair and accurate coverage of constituency matters, as well as affairs of State, since this might include matters raised by Members of Parliament out of the House, in statements, or in correspondence with Ministers. Conversely, the ability to put such matters in evidence before the courts ought not to be automatically prohibited (and see below Section 13 of the Defamation Act 1996).

  The Guild hopes that the Committee will examine whether debate, or enquiry by Committee, Parliamentary questions or motions have been unduly or unnaturally restricted by Parliamentary resolutions. This might include self censorship because of fears of prejudice to legal proceedings, even in relation to debate on general issues, albeit raised by specific investigations and trials.

  The Guild hopes that the Committee will not seek to increase Parliamentary powers to punish either Members of the House or non-members (including journalists) for contempt of Parliament, where questions of freedom of information and freedom of expression are raised. Democratic institutions should be subject to the public right to know and not seek to punish investigation, report and comment, however critical. Powers to fine, award damages (or even, theoretically, imprison) should not be used nor threatened so as to stifle proper disclosure and debate of issues which may well transpire to be of proper public interest.

  The Guild welcomes the Committee's review of Section 13 of the Defamation Act 1996. This requires reconsideration, particularly if Parliamentary privilege were extended. Parliamentary privilege does prevent the full evidence relevant to a libel action from being tested at trial. The power of waiver under Section 13 has not altered this. Irrespective of waivers under Section 13, the courts do not automatically stay all libel proceedings brought against the media and others by Members of Parliament, simply because one party seeks to put forward evidence of, from or about some documents or activity, which might bring proceedings in Parliament into question. Such evidence might be excluded but the action permitted to proceed, despite disadvantage to the defendant—or plaintiff—who sought to adduce it. Section 13 of the Defamation Act 1996 does not produce a fair regime. It only enables inquiry into the person who chooses to waive his or her privilege. Waiver and use of Section 13 can therefore be manipulated. An MP who sues may choose not to waive privilege and thereby ensure that his Parliamentary conduct cannot be called into question. Other Parliamentary witnesses or documents which might otherwise support the defendant's case cannot be mentioned, called, examined or produced if all appropriate waivers are not forthcoming. The action need not be stayed, but the defendant is unduly prejudiced. Indeed, stays of action are unlikely to be granted save in exceptional cases, where Parliamentary conduct is at the heart of the matter at issue. The libel laws therefore continue to curtail investigation, report and comment on the conduct of those involved in Parliamentary activity. Section 13 requires reform. A more equitable system is required.

  No doubt, the Committee will have to consider such a system in a wider context if new legislation is introduced on corruption. Presumably, any review of the law relating to improper influence or bribery would have to call into question Parliamentary conduct and could not be thwarted by voluntary, individual waiver of privilege.

  The Guild has responded to the Consultation paper issued last year by the Committee on the Standards in Public Life and its response is enclosed (see below).

  In reviewing the interaction of Parliamentary privilege and the incorporation of the European Convention on Human Rights, Freedom of Information and official secrets, the Committee should also consider whether changes to Parliamentary privilege are the correct approach to the problem. The introduction of a right to freedom of expression under the Human Rights Bill ought to require consideration of the legal restrictions posed by the libel laws (including burden of proof and need for extended defences of privilege, particularly in respect of reports of those in public life), official secrets legislation (which lacks a public interest defence for disclosure and too widely defined offences) which will not be counterbalanced by freedom of information legislation.

  If the Committee concludes that Parliamentary privilege is still necessary to protect Members of the Houses of Parliament so that they are able to do their work properly, then this must be a powerful argument for changes to the general laws which restrict freedom of expression, in order to enable the public to be properly informed and allow debate about issues of real public interest.

Nick Carter


28 January 1998


Submission from Guild of Editors to Home Office


  The Guild of Editors' membership is drawn from editors of local, regional and national newspapers and those holding equivalent positions in broadcasting and news agencies. The Guild has submitted oral and written evidence to the Committee on Standards in Public Life about public and press access to information and scrutiny over those holding public office.

  Perhaps one general point should be made in relation to creation of new offences of corruption covering public and private sectors, misconduct other than that entailing bribery or corruption, and the interrelation with freedom of information legislation and any statutory protection of "whistleblowers". It is important that corruption and misconduct offences cannot be used against those who have sought to publicise issues of public interest or bring questionable matters to the public attention, including where this has involved contact with journalists and irrespective of whether the release of information was "unsolicited" or prompted by investigative journalism. You will be aware of some of the concerns raised by the Newspaper Society in response to the Law Commission's consultation on "Legislating the Criminal Code: Corruption" which are shared by the Guild of Editors.

  The specific proposals put forward by the Nolan Committee in its consultation paper seem unlikely to raise these problems. However, we would be grateful if the Guild could be included in any further Home Office consultations on this issue, including any consultation on draft legislation.

Santha Rasaiah


14 October 1997

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Prepared 9 April 1999