Memorandum by The Law Society of Scotland
The Law Society of Scotland has considered the
invitation to submit evidence to the Joint Committee on Parliamentary
Privilege and has the following comments to make:
1. What is the purpose and scope of parliamentary
Members enjoy individual privileges to enable
each House to effect the unimpeded discharge of its collective
functions. It is in the public interest that members of either
House are able to speak freely without the fear of incurring civil
or criminal liability as the parliamentary system is designed
to operate through the medium of adversarial debate. Members are
elected to make statements which hold Government accountable.
In order to do so they must have freedom of speech. They must
be able to say anything via a proceeding in Parliament without
fear that the comments might subsequently be held against them
in any legal action.
The main privilege is that, subject to the rules
of order in debate, a Member can say anything in debate however
derogatory or scathing on someone's character, without fearing
an action for libel in England and Wales or for Defamation or
Convicium in Scotland. There have been occasions when the House
has not insisted upon its privileges, and allowed a Member to
be sued or not entertain complaints of breach of privilege.
The scope includes freedom of speech in debate,
freedom from arrest other than under criminal law, corporate privilege
of each House of freedom of access to Her Majesty, that the most
favourable construction should be placed upon all proceedings,
and each House is the sole judge of the lawfulness of its own
proceedings. The publication of debates or proceedings outside
Parliament of a fair and accurate account of a debate in either
House is protected by the principle that the public interest outweighs
a private injury resulting from the publication, unless malice
The privilege applies to any matter whether
related or not to a matter currently being or to be discussed
in the House. It applies to anything said on the floor of either
House, any Committee, or any other parliamentary proceedings over
which either House exercises control.
The privilege attaches to all reports, papers,
votes and proceedings published by or under the authority of either
House. It applies to persons who are not members of either House
but who are acting for or on the authority of either House eg:
witnesses to a Select Committee and persons responsible for statements
in a petition addressed to Parliament.
The fact that the activity occurred within the
precincts of Parliament does not categorically mean it is privileged.
There are decided categories of absolute privilege but the doors
are not closed to new ones.
2. What uncertainties are there at present
in the application of parliamentary privilege?
The categories of the privilege are not closed
and are therefore open to extension if the demands of policy are
met. This brings flexibility but also uncertainty. Provisions
relating to the qualified privilege of certain reports covered
by ss14-15 and Schedule 1 of the 1996 Defamation Act are not yet
in force. The division of privilege into absolute and qualified
may be unnecessary and an all-encompassing phrase could be formulated
to express the protection that Parliament enjoys.
3. Should the scope and application of parliamentary
privilege be modified to meet present day needs: what are the
essential protections each House needs for the proper conduct
of parliamentary business as we move towards the 21st century?
As the Home Secretary the Rt Hon Jack Straw
MP said recently when giving evidence to the Joint Committee,
the protection should not be used to protect dishonest Members
There should be protection from proceedings
where the person does or says something which was not done with
intention to defame. Statements made with malicious intent, whether
in Parliament or not, should however not be immune from the consequences.
The purpose of the protection must be identified and how best
to meet that. The extent of the protections laid down will decide
the nature of parliamentary proceedings and the quality of open
debate generated in the Houses.
Freedom of debate is sufficiently protected
if members enjoy absolute privilege from criminal and civil actions
directed at what they say in the course of debate or proceedings
in the House.
4. What are the merits of having the necessary
protections of the two Houses codified, either comprehensively
or in part, in legislation or in a new set of Resolutions of each
The merits of codification are certainty and
clarity. The demerits are inflexibility and the procedural hurdles
and delays in amending legislation if changes are required. Case
by case analysis allows conclusions to be drawn after detailed
examination of the individual circumstances. If resolutions were
chosen, what would their authority be in relation to legal proceedings?
5. Is there a more modern and better phrase
to replace "parliamentary privilege"?
Change "privilege" to "public
policy protection". This changes the emphasis from a seemingly
individualistic provision to one which is to protect the proper
workings of Parliament.
6. What are the issues arising out of Article
9 of the Bill of Rights (1688) and freedom of speech?
The Article states that freedom of speech and
debates or proceedings in Parliament ought not to be impeached
or questioned in any court or place out of Parliament. It protects
a member as regards criminal law in respect of anything said as
part of proceedings in Parliament. It is doubtful whether it covers
criminal acts committed in Parliament.
As legislation, it cannot be waived or not insisted
upon and it can only be removed by an amendment to the statute.
By implication, the article has been amended by various statutes
which have imposed penalties eg for irregular voting in the House,
false evidence given on oath before Committees of either House.
However, Article 9 of the Bill of Rights does
not apply in Scotland whereas the Claim of Right (1689) does.
This document by a Convention held in Edinburgh on 14 March 1689
and adopted 11 April 1689 asserted certain rights and offered
the Scottish Crown to William and Mary. The Claim of Right is
remarkably concise on the point"That, for redress
of all grievances, and for the amending and preserving of the
Laws, Parliaments ought to be frequently called and allowed to
sit and the freedom of speech and debate secured to the members."
7. What remedies should there be for citizens
wronged by words or actions in Parliament?
This depends on the balance society wants between
freedom of speech and the rights of individuals involved. It is
really a political matter depending on those affected and the
mood of the country at the time. Aggrieved individuals could have
a formal right to reply to anything said in Parliament, in an
appropriate forum such as Parliament itself. A Parliamentary Ombudsman
could hear complaints about abuses of privilege. The Ombudsman
could instruct members of parliament to apologise or allow the
public to insert a statement of rebuttal in Hansard and perhaps
go as far as allowing the statement to be read out in Parliament.
However, inevitable time delays would diminish the effect of this
8. What is the scope of the phrase (used
in the Bill of Rights) "proceedings in Parliament":
what aspects of parliamentary activity (in addition to freedom
of speech) should be treated as "proceedings in Parliament"?
This has never been exhaustively defined and
has been left to the courts in individual cases to decide on its
scope. Generally, this means some form of formal action, usually
a decision, taken by the House in its collective capacity, thus
including the debate by which it reached the decision. Taking
part in proceedings can mean voting, presenting a petition or
report from a Committee, giving evidence, carrying out the orders
of the proceedings. A precise definition might lead to disputes
Phrases such as "Other parliamentary proceedings
over which either House exercises control" and "persons
who are not members of either House but are acting for or on the
authority of either House" are open to interpretation. With
the surge of information technology, the interpretation of "publication"
is open to review.
9. What issues arise from the exclusive jurisdiction
of the two Houses over their members and internal proceedings?
In relation to investigations of complaints
of breach of privilege or contempt it was suggested in the Report
of the Select Committee of Parliamentary Privilege (1966-67) that
the House should sparingly exercise its penal jurisdiction.
The courts will not review acts or omissions
of Members individually in connection with the proceedings of
the House. Members thus cannot be compelled to give evidence in
the courts regarding proceedings in either House without the permission
of the House.
It is questionable whether criminal acts committed
in Parliament remain within the exclusive cognisance of the House
in which they are committed.
10. What issues arise from Members' freedom
from arrest and molestation and protection from interference?
Members should be seen to be subject to the
rule of law. In all cases where Members of either House are arrested
on criminal charges the House must be informed of the cause for
which they are detained.
However, Members are liable to be detained under
Mental Health legislation. Privilege from arrest has never been
allowed to interfere with the administration of criminal justice
or emergency legislation ie war legislation. Members are entitled
as of right to be excused from jury service and from court attendance
as a witness.
11. What response should Parliament make
to the announcement by the Government that it intends to legislate
on corruption? Should the improper influencing or bribery or attempted
bribery of Members of either House be subject to the criminal
law and the jurisdiction of the courts? If so, are safeguards
necessary to protect Members' freedom of speech? The Joint Committee
wishes to make an early report on the improper influencing or
bribery of Members.
Members of Parliament should be advocates for
their constituents and personal advantage should not come into
the equation. In order to emphasise this, legislation might be
necessary to make improper influencing and bribery an offence.
However detection and prosecution of these offences would need
to be stringent otherwise the law would be pointless. The public
require to have confidence in the people who run their affairs
and the present situation is not satisfactory. Accountability
is crucial in Parliament as the MPs and Peers are representative
of the tax paying public.
12. Section 13 of the Defamation Act 1996:
to what extent (if any) should proceedings in Parliament be subject
to the scrutiny of the courts in actions for defamation?
Section 13 of the Defamation Act 1996 (c.31)
states that MPs and Peers and any other person whose conduct in
relation to proceedings in Parliament is in issue in any action
for defamation, may waive the protection of privilege in order
to pursue a defamation action.
The scope of this section is limited to defamation
proceedings, and applies to both Houses. In such actions, a person
whose conduct, in or in relation to proceedings in Parliament,
is in issue may waive the protection which prevents the proceedings
being impeached or questioned in any court or place out of Parliament.
The person cannot thereafter prevent evidence being given, questions
asked, or statements or submissions, or findings being made about
his conduct. The waiver does not affect the operation of the protection
in relation to others who have not waived it.
Outside this limited area of waiver, the protection
relating to conduct in the course of, or for the purposes of or
incidental to, proceedings in Parliament remains eg, the giving
of evidence before either House or Committee, the presentation
or submission of a document for the purposes of or incidental
to the transacting of any such business, the formulation, making
or publication of a document, including a report, by or pursuant
to an order of either House or a Committee, and a communication
with the Parliamentary Commissioner for Standards, or any other
person having functions in connection with the registration of
13. What in modern circumstances should constitute
contempt of the House: should those actions which either House
may treat as a contempt be codified either by Resolution or in
Standing Orders or even in legisation?
Acts or omissions (not being breaches of specific
privileges) which obstruct or impede either House in the performance
of its functions, or which obstructs or impedes any Member or
officer of such, or which has a tendency, directly or indirectly,
to produce such results may be treated as contempt. There is no
precedent necessary for the particular offence and the power to
punish is discretionary.
Misleading the House is contempt of Parliament
and therefore punishable by the House. This may have been by giving
inconsistent evidence to a Select Committee of the House. This
should continue to constitute contempt.
As with out answer to question 4, it is impossible
to list every act which could be considered to amount to contempt.
The extent of the protection depends on the circumstances.
14. The powers of each House to punish those
who have committed contempts of the House; whether the penalties
for contempt of the two Houses need to be modified and updated
(for example, should the Commons have the same power as the Lords
to impose fines on non-Members, and should the two Houses have
power to award damages?)
The Society agrees that the penalties for contempt
should be modified and updated. The power to punish is discretionary
at present. There is a distinction made between an action to compel
performance of a civil obligation and process to punish conduct
which is to some degree criminal. There have been cases in the
past where Members have been fined or even imprisoned. Members
can be suspended or expelled also. In cases of quasi-criminal
contempts Members of either House may be committed without an
invasion of privilege.
15. What are the implications for Parliamentary
(i) the incorporation of the European Convention
on Human Rights into UK Law;
The incorporation of the Convention is really
a matter which will have procedural implications on our system
of law, rather than substantial changes to our substantive law.
However, the European Court of Human Rights
decisions on criminal libel have indicated obiter that civil law
of defamation in the Convention's signatory states must draw some
distinction between political and private libels. High hurdles
must be leaped in order to succeed in political actions. Political
speech must enjoy greater freedom than non-political speech as
its dissemination and discussion is essential to the maintenance
of a responsive democratic policy.
Under European Court decisions, smaller quantum
damages are awarded for libel/defamation actions.
(ii) a Freedom of Information Act;
The Society's Privacy Committee is considering
the White Paper but it is anticipated that the provisions of the
Act will not cut across Parliamentary privilege as it deals with
the secrecy and disclosure of information, not the use of the
information once disclosed.
(iii) the Official Secrets Act?
In a Select Committee on the Official Secrets
Act in 1938 decided a casual conversation in the House could not
be said to be a proceeding in Parliament. A Member who disclosed
information in the course of a conversation would not be protected
16. Any other relevant issues
Devolution for Scotland and Wales and two new
Decisions will have to be made as to whether
the new Scottish Parliament will follow Westminster's example
and adopt the privilege in its current form or establish its own
separate system of protection. Should the MSPs be given the same
privileges as their Westminster counterparts?
Clause 37 of the Scotland Bill states "(1)
For the purposes of the law of defamation (a) any statement made
in proceedings in Parliament, and (b) the publication under the
authority of the Parliament of any statement, shall be absolutely
privileged. (2) In subsection (1) "statement" has the
same meaning as in the Defamation Act 1996. Clause 38 relates
to contempt of court provisions.
Clause 76 of the Government of Wales Bill is
17. The lessons which can be drawn at Westminister
from the experience of other countries with similar parliamentary
In Australia there has been some comment that
only two immunities are justified. These are immunity from suit
or prosecution for anything said or done by a member or a witness
in Parliament, and anything said or done by a member in Parliament
or a witness before a Committee should not be used to support
legal proceedings against that person arising out of matters that
happened outside of Parliament. Legal opinion in Australia has
stated that a right to reply and a right of appropriate publicity
to publish the reply is best.
In New South Wales, in R v. Murphy 1986
NSWLR 18, the issue was whether the equivalent of article 9 precluded
use of legislative proceedings as evidence in a libel suit. Article
9 was originally enacted to give absolute protection to MPS only
against legal actions launched by the Crown. If the dispute is
between an MP and an individual, Article 9 must recognise freedom
given by common law to all to express publicly their honest opinion
concerning the conduct of members of Parliament, no matter to
what extent that opinion may impeach or question that conduct.
The electorate have an interest to ascertain the truth.
In the United States of Americaany speech
or debate in either House of Congress shall not be questioned
in any other place. Some of the case law suggests that legislative
privilege is an insufficiently important factor to justify the
automatic exclusion of legislative proceedings as evidence in
defamation suits. There is some authority that a legislator's
speech in the House or Senate may be the subject of a defamation
action if the speaker has knowingly or recklessly disseminated
Prebble v Television New Zealand Ltd 
AC 321Privy CouncilThe television company wished
to refer to statements made by a Government Minister in the New
Zealand legislature as part of its defence. The equivalent to
article 9 did not permit this. The company was unable to mount
a defence and in the interests of justice, the proceedings were
stayed. The main objection to this case is that it ignored the
audience interest in having courts resolve political libel actions.
In the Neil Hamilton libel case against the
Guardian in 1995, the judge ordered a stay of proceedings as he
was bound by Prebble. Modified versions of Prebble have been adopted
by the Australian High Court and the Indian Supreme Court. These
jurisdictions require politicians to prove the falsehood of factual
claims and that the disseminator knew they were false or was reckless
in failing to investigate their accuracy.
30 January 1998