Memorandum by Mr Christopher Price
I recently discussed the work of your committee
with Patrick Cormack and he suggested I write to you in case the
Committee might feel I had something to contribute to your discussions.
You may remember I wrote an article for The House Magazine
on the occasion of the Commons debate on the Defamation Bill in
June 1996. My involvement with your remit while I was an MP involved
a Commons debate after the Col. B affair and evidence from me
to the Privileges Committee which was reported in early 1979;
and a motion in 1980, to which I replied from the opposition front
bench, which finally exempted the courts from seeking formal leave
to quote Hansard. I respond to Patrick's invitation in
the belief that the Committee might be interested in the views
of an ex-MP who always felt the psychological protection afforded
by Article 9 to be essential in the performance of parliamentary
During my second spell in the Commons between
1974 and 1983 I was much involved with miscarriages of justice
in general and the "Confait case" in particularwhich
concerned three constituents of mine. As a result I also became
involved with the better-known miscarriages in the 1980s. Throughout
both the five year Confait process (Home Office representations,
an Appeal on reference, the Fisher Inquiry and the statement by
the Attorney in 1979 which finally exonerated my constituents)
and representations on the Maguires, Guildford and Birmingham,
I was conscious that the "miscarriage battle" for the
hearts and minds of judges, ministers, civil servants and policemen
was, at least in part, being fought in the mediawith reports
driven by unequal confidential briefings by the Metropolitan Police
and ministers on one side and a few MPs and journalists on the
other. I was always aware that it was only article 9 that could
protect myself and journalists from defamation proceedingsespecially
proceedings initiated in terrorem by the Police Federation
(in the case of junior policemen) and the Home Office using taxpayers
money (in that of senior ones). Indeed when I was sued for one
inoffensive sentence in the introduction to a book I wrote about
the case, I was advised strongly by counsel to settle.
I realise that there are no current proposals
to remove this protection of privilege from MPs. But there is
a need for its role to be fully understood by MPs and the public.
Your report could help in this regard. It was best stated by the
Privileges Committee in 1939 responding to government threats
to prosecute Duncan Sandys for asking a parliamentary question
about Britain's anti-aircraft defences; the Committee responded
with the robust assertion that privilege does not properly attach
either to Parliament or to MPs but to the citizens whom MPs are
elected to represent. So the Hoffman amendment must be repealed
on principle. It is absurd for a single MP to be able to waive
a privilege which does not belong to him or her. As Mr Justice
Owen said in the Allason case, members should take the ill consequences
of being an MP along with the good ones.
I say this for practical as well as principled
reasons. Any proposal which involves Parliament waiving classes
of privileged material on a particular subject to enable MPs to
sue (but not to be sued) would be both invidious in principle
and fraught with difficulty in practice: indeed with as many difficulties
around the boundaries of exactly what exactly is being waived
as would have cropped up had Hamilton come to court. Tinkering
in this way with Article 9 could also lead to constitutional drift,
subtly over time changing the balance between parliament and the
courts, leading first to common law interpretations of parliamentary
process and eventual de facto judicial review of parliamentary
If, on the other hand, some practical conciliation
process is needed to deal with the problem of individuals who
believe themselves wronged by words spoken in Parliament under
the cloak of privilege, it could be framed in the "informal"
spirit of Nolan, initiated under strict rules by the Standards
and Privileges Commissioner and adjudicated by an ombudsman, with
the legislative framework of Article 9 intact: though such a process
would inevitably beg the question of the need for parallel processes
to cover privileged reports in the media and proceedings in courts
of law; and would have to be very tightly drawn to prevent it
being used as a political tool and an alternative to defamation
proceedings by powerful lobbying groups.
16 February 1998
Christopher Price argues reform of the
House is the key to restoring public confidence
[Extracted from the House Magazine, June
TAKING THE GOOD WITH THE BAD
The Defamation Bill, now in the House of Commons,
looks set to hand over parliamentary freedom of speech for judges
to arbitrate in future. Hitherto it has all been governed by Section
1 of Article 9 of the 1688 Bill of Rights: "Freedom of speech
and debates or proceedings in parliament ought not to be impeached
or questioned in any court or place out of parliament." Three
hundred years later two accidental events have colluded to destroy
the essence of this hard won piece of parliamentary privilege.
The Government has introduced an uncontroversial Defamation Bill
into the Lords; and the Lords have tacked on to it a constitutional
amendment to deal with the grievances of two MPs, who were prevented
in the courts last year from suing two newspapers.
The problem for both of them was that the law
lords had insisted (in an appeal from the New Zealand courts)
that Article 9 and parliamentary immunity worked both ways: if
newspapers could not criticise MPs in the courts for what they
said or did in their parliamentary business, they were equally
prevented from mounting a proper defence when MPs sued them. So,
there being no chance of a fair trial, the only answer was to
have no trial at all.
Rupert Allason had a libel case against Today
newspaper stopped, with Mr Justice Owen telling him, with
a degree of relish that "as a Member, he must take the ill
consequences [of being an MP] together with the good consequences".
A few days later, Neil Hamilton, suing The Guardian for
allegations of accepting cash and a stay at the Paris Ritz for
putting down parliamentary questions, had his case stopped for
exactly the same reason. But in his case, the judge, Mr Justice
May, proclaimed that: "Profound denial of justice to the
plaintiff . . . denial of a forum to the defendants . . . licence
to publish material about parliamentary proceedings which, if
it is untrue, may go unremedied". It was all a judicial establishment
signal to the House of Lords in their parliamentary capacity to
tidy up the statute law.
This the Lords have now done and the new clause
is a can of worms. It purports to allow anyone who has said anything
in Parliament to waive privilege in any defamation proceedings.
The fundamental objection to this is that the Bill of Rights and
the freedom of speech that goes with it does not belong to MPs
or even to parliament. It belongs to every citizen in Britain.
When, 40 years ago, Duncan Sandys had been threatened with prosecution
under the Official Secrets Act simply for asking a question about
the state of London's anti-aircraft defences, the subsequent report
of the Privileges Committee, which was endorsed by the House,
explained parliamentary freedom of speech with an impressive eloquence:
"The privilege of freedom of speech enjoyed
by Members of Parliament is in truth the privilege of their constituents.
It is secured to Members not for their personal benefit but to
enable them to discharge the functions of their office without
fear of prosecution, civil or criminal."
But that was in 1939, with war in Europe looming
and a consequent awareness of how precious democracy was. Now
we are in another world. Respect for Parliament and MPs is low.
There is no longer much public understanding of the historic links
between freedom of speech and the democratic process.
Article 9 was deliberately written in its sharp,
concise form so that the judges could not tamper with freedom
of speech. It was intended to reconfirm the seniority of the High
Court of Parliament over the High Court of Justice, and the precedence
of the democratic representatives of the people over the judicial
appointees of the Crown. For the past century, there has been
an armistice in this battle for supremacy between the courts and
Parliament. The House of Commons has tended to proceed more by
resolutions asserting its privileges rather than statute which,
once passed, becomes subject to judicial interpretation. It did
so in 1980 to allow Hansard to be quoted in court as a
historical fact. It retained the position under which nothing
said or done in Parliament can be questioned in the courts whether
by way of direct evidence, cross examination or submission.
The new clause will change all that. Its proponents
imagine that it will only be used when MPs (presumably only those
who are rich enough to do so), can waive their privilege and sue
newspapers. It is a clause born of deteriorating relationships
between Parliament and the press and of what many in Parliament
see as an abuse of press freedom, something powerful interests,
whether they be BCCI, Distillers, or the police also dislike and
use the laws of libel to curtail.
If only for this reason, the press should oppose
it. Libel games between wealthy MPs and newspapers will not diminish
press freedom. They will simply make the job of honest, campaigning
MPs slowly but surely more difficult. A new self-censorship will
creep into their activities.
For with this new clause passed into law, if
MPs are sued for words spoken outside the House and do not wish
to waive privilege for similar statements inside the House, juries
could be told of the fact. MPs could be publicly challenged by
their opponents to waive privilege; and little by little the shadow
of the laws of libel, the most dominant barrier to freedom of
information in Britain, will seep into the political and parliamentary
The immediate cause of all of this is a dislike
of the press by an unpopular House of Commons. But the judges
want the clause even more. They like acting as national referee
and upsetting ministers. Today they regularly humiliate Michael
Howard at the Home Office; 20 years ago they did the same to Fred
Mulley over comprehensive schools in Thameside. It is easy for
them to court popularity by curbing unpopular governments. But
Tony Blair should remember they will turn on his ministers if
he tries any radical legislation.
So, it would be a profound mistake for the House
of Commons to go along with the Lords amendment. Article 9 is
the nearest thing we have to a written constitution and its influence
goes far beyond Britain. Several Commonwealth states have linked
their Bills of Rights to ours. Nor are there many MPs wanting
to sue newspapers for libel; most cannot afford to anyway. Mr
Justice Owen was right; there are upsides and downsides to privilege.
MPs have plenty of occasions in Parliament to defend themselves
in public; and now they have their own watchdog in Sir Gordon
Downey, occasions for sleaze litigation should diminish. Reforming
the House of Commons and the House of Lords will do far more for
the image of British democracy than giving free rein to rich MPs
to use the courts as a libel playground and judges to "interpret"
our fragile constitutional freedoms.
Christopher Price is a former Labour MP
The House Magazine
24 June 1996