Letter from the Chairman to the Lord Chief
Justice of England
The Joint Committee on Parliamentary Privilege
is now considering its draft report. The Committee is grateful
for the substantial assistance you have already given, and is
reluctant to trouble you further. However, the Committee think
the following points should be drawn to your attention, perhaps
particularly point number three, in case you wish to make any
observations for the Committee's consideration. The points concern
the reporting and broadcasting of parliamentary proceedings, and
the publication of parliamentary papers. This topic differs from
mainstream parliamentary privilege, because it is based, not on
the law and custom of Parliament, but on the common law and statute.
1. Sections 1 to 3 of the Parliamentary
Papers Act 1840 (24 Halsbury's Statutes, p 84) give absolute protection,
against all civil and criminal liability, to the publication of
reports, papers or proceedings by authority of either House of
Parliament, and copies thereof. Section 3 gives protection, against
all civil and criminal liability, to the printing of extracts
from such reports, etc, in the absence of malice. Is the degree
of protection conferred by these three sections still appropriate
2. Assuming the 1840 Act is still justifiable
today, it seems desirable, in order to keep pace with advances
in technology, to enact that these sections apply to reproduction
by radio, television, video or on the Internet. This will remove
any risk of either House being liable to publishers in respect
of the sound and film track of its proceedings which each House
makes available to radio and television stations and on the Internet
and, through its own sound and film archives, to others. (Section
3 already applies to radio and television: see the Defamation
Act 1952, section 9, and the Broadcasting Act 1990, section 203
and schedule 20, paragraph 1.)
3. The 1840 Act does not apply to reports
of parliamentary proceedings not taken from Hansard. The common
law accords qualified privilege to fair and accurate reports,
and so will statute when section 15 of the Defamation Act 1996
is brought into force. Unlike the absolute protection given by
the 1840 Act, the protection afforded by the common law and the
Defamation Act does not extend to liability for contempt of court
for breach of a no-publicity order or to criminal liability for
an offence under the Official Secrets Acts. A report of a speech
or an early day motion in the Commons may exceptionally give rise
to such liability. Although in practice this seems not to have
caused serious problems, it may be sensible that in this respect
the law should be brought into line with section 3 of the 1840
4. Burden of proof. At common law and under
the Defamation Act 1996 the burden of proving malice lies on he
who alleges it, usually the plaintiff. Under section 3 of the
1840 Act the printer, such as a newspaper, is required to prove
a negative: that he acted in good faith and without malice. The
common law approach seems preferable.
5. The procedure by which the approval of
the House of Commons is given, for the purposes of the 1840 Act,
is for the most part informal, even haphazard. There are no prescribed
guidelines on the criteria to be applied by the House or its officers
in giving or withholding approval to particular documents emanating
from government departments. One obvious category of document
where a House of Commons "printing number" may be appropriate
is a report of a government enquiry which in the public interest
ought to be published but which carries a risk of defamation proceedings.
Another category comprises the House's own papers, such as reports
of committees. A further class is documents prepared especially
for the House, such as Treasury estimates.
Have you any comment on the criteria which should
make it (a) appropriate or (b) inappropriate for a document to
be athorised for printing by the House and, therefore, absolutely
privileged under the 1840 Act?
30 October 1998
Reply from the Lord Chief Justice of England
Thank you very much for your letter of 30 October
1998. I address your numbered points in turn.
1. It seems to me that the protection given
by sections 1 to 3 of the Parliamentary Papers Act 1840 remains
appropriate in modern conditions.
2. I agree with the suggestion that the 1840
Act should be extended to cover reproduction by radio, television,
video or the internet.
3. I have a little more hesitation about
the suggestion in your paragraph 3. It seems to me undesirable
that additional publicity should be given to information which
is the subject of a no-publicity order or to the revelation of
an official secret. But once the information is in the public
domain via Hansard, it may be futile attempt to restrict publicity.
So I would not argue against your suggestion.
4. I think that anyone who wishes to allege
actual malice should have the burden of proving it.
5. I fear that I can suggest no test which
is not very general and rather question-begging. But I think the
question must always be: Is the document in question (whatever
it is) of such a character that, in the public interest, absolute
privilege should protect its publication? The answer to that question
will inevitably depend on the circumstances of any given case.
But the public's right to be informed, the importance of free
discussion in a modern liberal democracy, the need to encourage
informants to come forward and the need for those engaged in the
conduct of public affairs to be freed from the risk of proceedings
which (even if ill-founded) may be a potent source of harassment
seem to me considerations which will often be very material.
Thank you for giving me a chance to comment.
Needless to say, I shall be delighted to elaborate any of these
points if it would be helpful.
5 November 1998