Examination of Witness (Questions 420
TUESDAY 17 FEBRUARY 1998
420. But he would have no protection at all,
would he, against a constant flow of vexatious litigation and
that would be very liable to discourage him, would it not, from
doing his duty?
A. I think there is really no answer to the
risk of vexatious litigation. Judges get writs issued against
them with quite considerable regularity. I do not think it would
be easy to introduce a rule that would eliminate that risk. But
most people do not litigate for the fun of it and once they are
told they are going to lose and that it will be expensive, they
drop it. I am not alive to the fact that the risk you are alluding
to is a particularly prevalent mischief. Perhaps it is.
421. If there were absolute privilege the proceedings
would be summarily terminated, would they not? If there was qualified
privilege there would always be a constant risk that the matter
would go to trial one way or another.
A. It could do.
422. That may be the present position but I
am not sure that at the moment there is any general acceptance
that a communication by a whistle-blower to a Member and a Member
onwards is the subject of Article IX privilege.
A. It is certainly my understanding that it
is not. If the mischief were to be prevalent it might be necessary
to think about it. I do not think what I have described is any
change in the law. It is what the law now is.
423. Lord Chief Justice, I think your assumption
is right that most MPs act in good faith in the main. As a Member
you formulate an opinion on what you receive, whether by written
or verbal communication, and very often find that whilst you might
be unsure of an answer or the direction in which to go, you do
from time to time give the benefit of your advice to, say, a constituent,
if you do not take more direct action by means of referring to
a Minister or one of the parliamentary procedures. I wondered
if, when you referred to qualified privilege, you were thinking
in terms of, for example, the giving of advice to a constituent
on a particular problem and, based on the advice given, it then
extends to another party into a separate court action, nothing
to do with the parliamentary proceeding, but at the same time
much of what takes place hinges upon the advice that I have given.
Do I interpret correctly that you would say in that given situation,
where in fact I could be judged as the person who has given the
wrong advice, that would be subject to the qualified privilege
that you are talking about?
A. Yes. I think the principle is that qualified
privilege attaches to any complaint made by a person to a person
who has interest to receive it and to anything which that person
does to communicate in a suitable court. Taking an entirely different
example, if I think that a jockey has pulled a horse in a race
and deliberately avoided winning for reasons best known to him
or the horse's owner, and I write to the Jockey Club and make
that suggestion, assuming that the Jockey Club is the appropriate
person to write to (which I think it would be), I would not be
liable if it represented my genuine belief. If on the other hand
I was another jockey who had it in for this particular jockey
because he was a champion jockey and had pipped me for the title,
then if I did not have belief in the truth of what I was saying,
it would be malicious and false and I would not be protected,
but nor should I be in my view.
424. I am a bit worried about the position regarding
the reporting of what has happened in Parliament. Let us go back
to your original example. The MP receives a letter from a constituent
who says that he believes child abuse is going on in a children's
home and the MP goes straight along to the floor of the House
and makes a speech in the course of which he says, "Yesterday
I received a letter from a constituent alleging that in such and
such a children's home the most appalling child abuse is going
on", and there is then a programme on television and a bald
announcement that yesterday on the floor of the House of Commons
David Waddington alleged on the basis of what he had heard from
a constituent that it was believed that abuse was going on in
a particular children's home, what then is the protection afforded
to that broadcaster and what should be the protection in your
A. I think the protection accorded it is for
a fair and accurate report of proceedings in Parliament and if
it was a fair and accurate report of what the Member had said
on the floor of the House, then that is certainly the subject
of qualified privilege and perhaps of absolute privilege, but
I may be wrong about that, but certainly there is protection for
fair and accurate reports of proceedings in Parliament. I would
think it unfortunate if that train of events took place and I
think it would be very much preferable if a Member of Parliament,
instead of making the accusation on the floor of the House, made
the communication more discreetly to an appropriate quarter, seeking
that the matter should be investigated and looked into. I think
one has to be very careful about any legal restraint on absolute
privilege for the statements made in Parliament on the floor of
425. May I just pursue Lord Waddington's point?
At the moment if in an adjournment debate a Member of Parliament
made some such accusation and introduced such material that he
or she had, there would surely be absolutely nothing to stop the
broadcasters simply taking the transmission from the floor of
the House straight out, and that is where broadcasting has changed
the proceedings somewhat. Until the broadcasting of radio and
television, Hansard was able to sanitise to some extent what was
being said. Since live broadcasting that is not true. If the Member
then went straight off to the Newsnight studio and repeated the
allegation, clearly that would be then only qualified privilege.
A. No, I think the Member would have no privilege
at all then, because he would not be making the complaint to an
appropriate place to get the matter investigated or put right.
He would be, on your example, re-publishing a statement in an
unprivileged environment that he had earlier made in a privileged
environment. I think there is a distinction between his repeating
it and a fair and accurate report of proceedings in Parliament.
426. I think we all need to know this. We may
not be all as well educated in the legal niceties as the Lord
Chief Justice. A Member of Parliament, in writing to a Minister,
is covered by qualified privilege, is not publishing it in that
sense. If he raises it on the floor of the House he has got absolute
427. If he walks down the road and repeats that,
even if he includes some qualification that that is what he has
heard and so on, in a television studio, that is not covered by
A. Assuming it is a defamatory statement that
428. So communication to a Minister is qualified;
communication to the general public is not?
A. That would ordinarily be the rule.
429. In other words, if an MP or a Lord wants
to expose an issue covered by absolute privilege in the House
and then this Member happens to be interviewed on television about
the statement in the House, how far can that Member answer any
questions in a TV interview about that statement?
A. He has got to be rather careful about it.
I think this is really what one does see in real life. Occasionally
members of the public say, "I invite Mr So-and-So to make
that statement outside the House", which is tantamount to
saying, "If he says that outside I will sue him".
430. What is the situation if an allegation
is made in the House and the Member who makes it is covered by
absolute privilege, and then another Member goes on television
and the matter crops up and he says, "This was alleged in
the House of Commons earlier this evening"? Is he in a different
A. Not unless he was giving a fair and accurate
report of proceedings in the House. I think in your example he
is simply repeating an allegation and he probably would not be.
Lord Archer of Sandwell
431. Is the mischief not what is said in the
House but what is reproduced to the public in the media? I am
wondering whether the Lord Chief Justice thinks that there might
be a case for reviewing not privilege about what is said on the
floor of the House but the privilege about a fair and accurate
reproduction of what is said? Is that necessarily a case for saying
if you reproduce what is said, however harmful, you ought to enjoy
any form of privilege?
A. I think that is getting into very dangerous
territory if one restricts reports of what takes place in Parliament,
and indeed I think, but I may be wrong about this, that the 1996
Defamation Act strengthened the protection against proceedings
in Parliament. I say that in italics because I am not sure it
432. And it certainly becomes quite difficult
when you have instantaneous broadcasting at once of what is said
in the House. It then becomes very difficult to devise any satisfactory
A. Very difficult.
433. You have mentioned the 1996 Defamation
Act and you have in your memorandum suggested that the Committee
should look at it. Are there some problems over it, or is it just
that it needs strengthening?
A. No. I think it is an anomalous provision
for this reason, that the privilege of Parliament is there for
the protection of Parliament. It is not as it were there as a
perk of individual Members but because this privilege is necessary
to protect the functioning of Parliament, and if that is the basis
of the privilege then it seems anomalous to me that it can be
waived at the insistence of an individual Member. It also would
seem to me that it would be anomalous if it could be waived by
an individual Member who wants to sue as a plaintiff but could
remain in place if the same Member is sued as a defendant. This
just suggests that he can switch it on when it helps him and switch
it off when it does not.
434. Underlying this area there is something
of a paradox, is there not, that if the whistle-blower makes a
complaint to a Member and the Member then responds by passing
on that complaint in an appropriate fashion he will have qualified
privilege but no more, but if he were to respond in an inappropriate
fashion by standing up and repeating the matter in the House he
would enjoy absolute privilege?
435. But that paradoxI think this is
the thrust of what you are sayingdoes not suggest that
the way forward is to widen the scope of the absolute privilege
which exists in respect of that which is said in the House?
Lord Mayhew of Twysden
436. Would I be right in thinking, Lord Chief
Justice, that the horror that has been traditionally expressed
by judges of investigating matters that take place in the chamber
of either House really derives from an appreciation of the inappropriateness
of the judiciary having to determine matters that have motivated
people in the chamber? We were discussing in earlier sessions
the possibility that other Members would be called on one side
or the other to explain why they behaved in a particular way in
the chamber, so that although there is a paradox, as the Chairman
has pointed out, none the less it is a paradox which is worth
the keeping by reason of the horrific consequences that would
ensue if the judges were invited to get into the motivation about
what was said or done in the chamber in a debate?
A. I think we have all grown up with such an
instinctive understanding that there is no question of investigating
what has gone on in the chamber that none of us have really rationalised
why we think it is inconceivable, but I think the reasons that
you give are very powerful reasons.
437. Could I move on next, Lord Chief Justice,
to the question of bribery and corruption. As you know, the Government
is considering introducing criminal legislation and in your written
observations and again this morning you have indicated what in
principle is your favoured approach to that subject. Do you have
any view on whether if Members of Parliament were to be the subject
of criminal legislation it would be better for them to be the
subject of a specific offence directed at them rather than caught
within a general offence involving everybody at large?
A. No. If it was the intention of Parliament
that Members were to be subject to the legislation, then it would
be desirable to make that quite clear because otherwise one will
encounter the argument that for historical reasons it should be
construed as not applying to Members of Parliament. Provided the
Act makes it absolutely plain whether it does or it does not,
there is no particular virtue in a particular offence for Members
of Parliament and, indeed, possibly a disadvantage if there were
a suggestion that there was a problem so rife that it needed a
particular criminal offence to deal with it.
438. But there does need to be clarity, does
439. And if the generally expressed offence
leads to a lack of clarity, having regard to the particular position
of Members of either House, then that would need to be dealt with?
A. I think it is desirable that it should be,
yes, otherwise one is going to be leafing through pages of Hansard
to see what Ministers said when they introduced a Bill and so