Parliamentary Privilege First Report

Memorandum by the Newspaper Society

  The Newspaper Society is the association of publishers of regional and local newspapers. Its members publish around 1,300 titles, selling over 36 million copies each week, with a further 28 million delivered free. These include daily morning and evening newspapers (around seven million adults read a regional daily but no national daily newspaper) and weekly and Sunday titles, paid for and free.

  Nine out of 10 adults read a regional newspaper. The regional press also supplies electronic, online and broadcast news and information services. Regional titles are therefore relied upon as an authoritative source of international, national, regional and local news and information. These all involve reports of the regional and local impact of government policy and initiatives, Parliamentary proceedings and reports, in addition to coverage of the national and constituency activities of local Members of Parliament. Regional newspapers' specialist political reporters and editors constitute a substantial proportion of the Parliamentary press gallery.

  The Newspaper Society's interest in the Committee's enquiry relates to the interaction of Parliamentary privilege and the public scrutiny of the legislature's activities, which is fundamental to a democracy. The media plays a supporting role in such scrutiny. It informs the public about matters in respect of which Parliamentary privilege is enjoyed. The Society is therefore interested by the inter relationship between freedom of expression, freedom of information and open government, with reference to the role of the media. As the Committee's terms of reference acknowledge, this raises specific issues for legal reform, especially in respect of defamation and contempt.


  Members of Parliament enjoy the right to speak freely and without fear of legal proceedings in respect of what they say or do in the course of Parliamentary proceedings. The Committee is considering whether there should be changes to the scope of parliamentary privilege. In doing so, we suggest that consideration ought to be given to the separate but related question of privilege for the media's reports of Parliamentary proceedings or matters which might require reference back to such proceedings. There is legitimate public interest in the wider dissemination to the public of fair and accurate reports of Members' statements and actions, and in the analysis and summary of Parliamentary papers, reports, orders, motions or other documents generated by Parliamentary activities. Therefore, if the scope of parliamentary privilege is increased, perhaps because of clarification of the definition of parliamentary proceedings, the media ought to enjoy parallel extension of its defences to legal action. However, the media should not lose legal protection for fair and accurate reports of parliamentary proceedings, if the Committee recommends the converse, that citizens should have increased rights and remedies against Members and officials for words and deeds in the course of parliamentary proceedings. The media's reports should not be infected by any wrongdoing inherent in the Parliamentary perpetrator of the publication, words or deeds reported. This would penalise the media and curtail coverage of Parliament in a manner incompatible with democratic tradition or freedom of expression.

  There are some deficiencies in the current protection of fair and accurate reports circulated to the public, which need to be remedied.

  Although the media enjoy qualified privilege at commonlaw against defamation claims in respect of fair and accurate reports, until the remainder of the Defamation Act 1996 is brought into effect, only paid for publications and the broadcast media benefit from statutory privilege for such reports, provided that they are of matters of public concern and for the public benefit published without malice. (It would be helpful for further indication to be given as to when the Act is to be implemented). Given the nature of modern communications, as well as the particular requirements of the regional press and specialist publications, there ought to be explicit recognition that the defence applies to reports highlighting particular matters and not, as the older caselaw suggests, only those dealing with the whole day's proceedings.

  Implementation of the remainder of the Defamation Act 1996 would also improve protection for reports dealing with parliamentary papers. Under the Parliamentary Papers Act 1840, no civil and criminal proceedings can be pursued against those who publish, without malice, extracts or abstracts of Parliamentary papers by print or broadcast means. Yet no protection is given to fair and accurate summaries or reports. Publication by reading aloud or by the new media would not qualify for protection. Nor does the protection extend to drafts or material connected with parliamentary proceedings but not ordered to be published. Furthermore, unusually, the burden of proof lies upon the defendant to establish that his publication was free from malice.

  In respect of defamation actions only, some of these problems will partially be relieved by the Schedule to the Defamation Act, which will provide a statutory qualified privilege defence, rebuttable by proof of malice, for fair and accurate copies or extracts published by or on the authority of any legislature or issued for the information of the public, whatever the form of the publication, if of public concern and for the public benefit.

  Nonetheless, this does not solve all problems.

  First, the protection does not extend to fair and accurate reports or summaries of such documents. Such an extension would be helpful in improving protection for more comprehensive reports so that these could be disseminated without fear of legal challenge.

  Second, no protection is given against legal actions other than for defamation. The publisher has to rely on the 1840 Act, which would be of no avail to some media unless updated.

  Thus, it would be helpful if legal protection could be extended, particularly if the Committee recommends changes which widen parliamentary privilege.

  Such protection is also needed to protect reports of parliamentary proceedings against criminal and civil legal proceedings, other than defamation.

  We hope that the Committee will be considering clarification—and possibly extension—of parliamentary privilege in relation to the laws of contempt.

  It is arguable that the present conventions and resolutions might sometimes unduly curtail Parliamentary discussion of matters of public interest because criminal legal proceedings have been set in train or a civil trial date set. The Committee might consider whether the scope of Parliamentary debate and questioning is too easily curbed or delayed or too tightly restricted, so that wider debate is unnecessarily prevented.

  This is also relevant to actions pursued by the Law Officers of the Crown, raises questions of independence and whether Parliamentary scrutiny could be unnecessarily restrained.

  The respective position of Members of Parliament and the media are unclear. For example, the issues as to liability raised by the Colonel B affair and Spycatcher have not been satisfactorily resolved. Fair and accurate media reports of parliamentary proceedings and papers ought to be protected against action for contempt of court in any event, but particularly so if Members of either House or officials do enjoy parliamentary privilege and are not themselves in contempt of Parliament for the words or action reported. As the Spycatcher litigation demonstrated, there is scope for restrictions upon UK Parliamentary discussions and reports of them (an injunction had to be varied expressly to permit reporting of Parliamentary proceedings), untenable elsewhere. Only if formal legal challenge is mounted is the necessity for secrecy questioned.

  The operation of the Human Rights Bill and principles behind the Government's freedom of information initiative suggest that free speech, press freedom and the public right to know ought to be given greater priority and legal protection. We are pleased that the Committee is examining the inter relation of privilege with the Official Secrets Acts, European Convention of Human Rights and Freedom of Information.

  The solution to some of these issues might be reform of the substantive law rather than special protection for Members of Parliament and others involved in Parliamentary proceedings. The introduction of significant and actual harm tests and a public interest defence into Official Secrets legislation would be helpful. Ensuring that courts do not too readily restrict reporting of court proceedings or trial judges too readily fear prejudice to proceedings are other alternatives. Consideration should be given to the use of public interest immunity certificates in preventing matters being adduced at trial, recent caselaw notwithstanding.

  One particular area where radical reform is necessary is defamation law.

  If the Committee decides to widen the scope of Parliamentary privilege, then appropriate changes ought to be made to extend legal protection to fair and accurate reports of those activities. This might be most relevant, for example, to statements by Members of Parliament outside the House, correspondence with Ministers, draft Parliamentary papers. The Defamation Act 1996 does permit the extension of qualified privilege defences to some matters published by persons designated by the Lord Chancellor and we understand that consultation is to be held on suitable categories.

  We also believe that there should at least be reconsideration of section 13 of that Act, as set out below, in the absence of the best remedy, which would be radical reform of the libel laws.


  The exercise of Parliamentary privilege should not be abused. Clearly, care is necessary to avoid its use as a shield against unwelcome criticism or justified investigation. Nor should Parliament seek to hold the media or others in contempt of the House for investigations or criticism of legitimate public interest.

  Members of the Houses of Parliament are in a favoured position in that they can publicly make and reply to allegations, knowing that they are protected from legal action and that there is some protection for others' dissemination of their statements.

  They are also free to take legal action against others, in the same way as any other citizen. This includes actions for libel. The operation of parliamentary privilege does not prevent this. Indeed it is more likely to hinder a defendant who seeks to justify a statement made about a Member of Parliament. The Defamation Act 1996 has added further complications to this problem, so that all relevant matters still cannot be placed before a jury at trial.

  The Society is pleased that the Committee is considering the operation of Section 13 of the Defamation Act 1996. The problems inherent in this section were raised by the Society and other media organisations during the passage of the Bill. The then Opposition ensured that the difficulties of principle and practice were at least alluded to in debate by the House, even if they were not successful in ensuring that full and detailed consideration by such a Committee could be given before any legislation was passed.

  The Society regrets that many of the theoretical problems pointed out during the passage of the Bill became a reality as soon as the section came into use.

  Article 9 of the Bill of Rights prevents the courts from questioning or impeaching the freedom of speech and debate in proceedings in Parliament. A newspaper sued for libel by a Member of Parliament cannot therefore bring forward evidence in its defence of matters which infringes such privilege. Although reference might be made to Hansard to demonstrate that an event took place, or that something was said or done, as a matter of historical fact, no inference could be made as to the motive for doing so. No evidence can be admitted, no suggestion made or inference drawn in cross examination which might lead the court into such inquiry and so fall foul of the Bill of Rights. However, only in extreme cases where the exclusion of such material meant that the defendant could not prove the truth of his publication, will the court decide to stay the action because, in the particular circumstances of that case, it would be impossible to determine the matter fairly between the parties. It would be too serious an inroad into freedom of speech if the media were forced to abstain from the truthful disclosure of a Member's misbehaviour. Nonetheless, in all other cases, the action could proceed, but the defence would be deprived of relevant evidence which supported his case.

  Section 13 of the Defamation Act 1996 now permits a Member of either House and officials to waive the privilege insofar as it protects them. This perpetuates injustice. The privilege and its waiver can be manipulated to serve the plaintiff who benefits from the privilege. He might waive it where it would be certain that a court might otherwise stay the proceedings. Alternatively, he might sue, but retain the privilege himself or know that others will do so, and so ensuring that the defence will be thereby gravely hindered in establishing the truth of the matter at a trial.

  For example, the plaintiff can choose not to waive the privilege if he might therefore benefit by the defendant's inability to put all relevant evidence before the court, which supports the defence and the truth of its allegation. The defence will be disadvantaged but the case proceed. Alternatively, the case might concern the linked actions of two Members. One might choose to waive the privilege. The other, however, might retain its protection. No evidence cold be adduced, no cross examination carried out, no inference drawn in respect of the second Member. Indeed, he might successfully request the deletion of all reference to him in pleadings and witness statements. It might be difficult in such circumstances to suggest that all relevant matters have been fairly disclosed and evaluated in hearing and determining the case. It was also suggested in the course of Parliamentary debate that a document or evidence given to a Committee of the House which contained a number of allegations about several Members, could not be automatically adduced in a case where its submitter had waived privilege, because it would be for the Committee to decide if privilege should be waived.

  Section 13 therefore does not establish an equitable means for production and examination of evidence perhaps crucial to proper determining of defamation actions. Any widening of parliamentary privilege would increase these problems. It should not be used as a model for waiver of privilege in respect of other legal proceedings. Consideration needs to be given to its reform.

  Indeed, alleviation of the problem, so far as defamation laws are concerned might better lie with radical reform of the libel laws in addition to review of parliamentary privilege. If the burden of proof were reversed and if a "public figure" defence were introduced, there might be a more equitable balance between the beneficiary of parliamentary privilege and other citizens which supported free speech and the democratic process for all those involved within it.

  The Newspaper Society has responded to the consultations by the Law Society and the Committee on Standards in Public Life on proposals for legislation on corruption and misuse of public office. Copies are enclosed.

  The review of the scope of Parliamentary privilege and the degree to which the work of Members relies upon the unfettered free speech which it bestows upon them, might well demonstrate to the Joint Committee the extent of restrictions which do constrain others' freedom of expression. We hope that the Joint Committee's recommendations will therefore include significant improvements of the rights of ordinary citizens to freedom, enabling properly informed and unconstrained scrutiny, report, comment and criticism of the institutions and all those involved in the democratic process.

  The Newspaper Society is grateful to the Committee for its invitation to submit evidence. It would be happy to provide any information which the Committee might find helpful.

20 January 1998

Memorandum by the Newspaper Society to the Home Office


  As you know, the Nolan Committee has invited comments on the proposals contained in its Consultation Paper.

  The Newspaper Society has submitted its preliminary views to the Law Commission after consideration of their paper on corruption. I enclose a copy of this submission for your perusal. You will see that we make the point that the "criminalising" of certain methods of gathering news could have an adverse effect on investigative journalism.

  In similar vein, we are concerned to ensure that a statutory offence of misuse of public office should not be couched in such a way that it could be employed to inhibit the release of information to journalists.

  We note that in attempting to define the common law offence of misconduct in a public office Halsbury's Laws of England describes it as an umbrella term for a bundle of different acts, including "disclosure of information". You will be aware that on occasion journalists obtain information from people who carry out public functions. Often this is information which the organisation would prefer to keep under wraps but which the office-holder in question believes should be released in the public interest.

  The Consultation Paper acknowledges that it should be a defence to criminal proceedings that the office-holder acted in good faith—that is, reasonably and honestly. It may be that a specific defence should be included to cover those situations where an office-holder is justified in the public interest in releasing the information. Such justification has been recognised under the common law; in order to constitute an offence the misconduct impugned must be such as is calculated to injure the public interest (see R v Dytham [1979] QB 722). It would of course be preferable for any satutory offence to be drafted in a way which acknowledges as fundamental the importance of the public's right to know about matters of genuine public interest.

  We would be grateful if the Newspaper Society could be included in any further consultations on this issue.

Catherine Courtney


30 October 1997


Submission from the Newspaper Society to the Law Commission


  I am writing on behalf of the Newspaper society to set out our preliminary views on the issues canvassed in the Consultation Paper. I regret the fact that we were unable to meet the preferred deadline for the submission of comments.

  We take the view (in answer to one of the most fundamental questions raised by the Law Commission) that a moral element is inherent in corruption and that a person's reasons for acting in a particular way should be taken into account. There are circumstances in which it is important to distinguish between a course of action undertaken with a reprehensive motive and one embarked upon with a laudable aim.

  As you will appreciate, the Newspaper Society represents publishers of the local and regional press. Given that private sector employees owe duties of loyalty and confidence to their Principal we can envisage situations in which journalists might encourage or facilitate a breach of duty and thereby act "corruptly" as defined by the Consultation Paper. This would not necessarily be "entrapment" as envisaged in para 8.101 (ie to expose the corrupt conduct of the person offered a reward). It could be more in the nature of whistleblowing: a desire to uncover information about the employer's questionable activities, an aim to which no moral obloquy can attach. The "inducement or reward" might be the promise of some small payment, travel expenses, or the provision of lunch etc.

  We believe that a person's reasons for acting in particular way are a significant factor. Our concern is that the "criminalising" of this kind of newsgathering could inhibit investigative journalism. This could be avoided either through the exclusion of such conduct from the definition of "corrupt" behaviour or perhaps (less attractively) via the introduction of a public interest defence. You are no doubt aware that the Code of Practice adhered to by newspapers, magazines and periodicals defines the public interest (non-exhaustively) as follows:

    (i)  detecting or exposing crime or a serious misdemeanour;

    (ii)  protecting public health and safety; and

    (iii)  preventing the public from being misled by some statement or action of an individual or organisation.

  It seems evident that the broad definition of corruption formulated in para 1.41 would catch a wide range of activities which are normal business practice and viewed since time immemorial as wholly unexceptionable. In the main, corporate hospitality and the provision of small gifts are intended to create a positive image of the giver; they are invariably morally neutral.

  The consultation paper says (at para 8.52) that "ordinary business hospitality" is not corrupt because it "creates no substantial conflict between the recipients' interests and their duty". This would seem to suggest that such hospitality should fall outside the offence of corruption altogether. It would surely be extremely difficult to enforce such a rule. The consequence of that unenforceability would be that what is now open and "above board" would be concealed. Transparency would be replaced by concealment.

  Para 8.58 goes on to state that it should not be a defence that what was done was normal practice but that this factor (inter alia) should be capable of "having a bearing" on whether or not the defendant's conduct was corrupt. I presume that "ordinary business hospitality" is synonymous with "normal practice". It is not entirely clear whether the intention is to exclude such conduct altogether from the scope of any offence.

  We do not believe that "advantages" of small value should be caught; in practice, benefits which are "de minimis" would be ignored by the authorities. There seems little merit in introducing a legislative yardstick which would not be observed.

  We are not convinced that to abandon the distinction between public and private duties is the right course to take. In our opinion, there may be valid reasons for maintaining the distinction (in part because of the evidential difficulties involved) although the definition of what constitutes a "public body" needs to be revised. There may well be scope for extending its ambit.

  I hope that these views can be taken into account and that the Society will be included in the consultation process in the event that a draft Bill is to ensue.

Catherine Courtney


31 July 1997

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