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Parliamentary Privilege Minutes of Evidence

Submission to the Joint Committee on Parliamentary Privilege by Patricia M Leopold, Senior Lecturer in Law, The University of Reading


  I have not attempted in this paper to cover anything like all the issues which the Joint Committee proposes to investigate. I have concentrated on areas that I have explored over the last few years and which touch on a variety of aspects of parliamentary privilege.

  1.  The reporting and publication of parliamentary proceedings. This may appear to be a peripheral area of parliamentary privilege. However it is connected with free speech in parliament, and is an area where there has been legislative reform, but of an ad hoc nature, resulting in a confused and confusing picture of legal liability.

    (i)  The procedure whereby parliamentary papers are published "by order" of the House to ensure that they are protected by the Parliamentary Papers Act 1840 is in need of reform. I have written about the issues elsewhere and will not repeat them here. [38]The reform of the Parliamentary Papers Act 1840 may be outside the remit of the Joint Committee, but the issues raised by it are of concern to the modern application of parliamentary privilege.

    (ii)  The position of those who publish or provide written reports or accounts of parliamentary proceedings, not taken from Hansard is also unclear. So far as reports that contain potentially defamatory statements there is qualified privilege (section 15(1) Defamation Act 1996). The position with respect to criminal words is not so clear. In 1976 when the Race Relations Act 1965 was being reformed, a provision was included to exclude from the criminal law "fair and accurate reports of proceedings in Parliament" where those proceedings included words that, if said elsewhere, could have resulted in a prosecution for the offence of incitement to racial hatred. [39]However there is no similar statutory protection for the reporting of fair and accurate accounts of parliamentary proceeding that could amount to criminal contempt of court, blasphemy or obscenity. If such reports are privileged then it will have to be on the basis of an, as yet unrecognised, common law defence. [40]

    (iii)  The law is unclear and variable with respect to those who broadcast parliamentary proceedings.

 (a)   Defamation

  The opportunity was taken in 1952 when enacting the Defamation Act to extend section 3 of the Parliamentary Papers Act 1840 to provide a defence of qualified privilege in defamation for the broadcasting by means of wireless telegraphy of an extract or abstract of a parliamentary paper. [41]This has limited use, and when the Commons agreed to allow live broadcasting of parliamentary proceedings it was acknowledged that neither live nor pre-recorded broadcasts had any specific statutory protection in respect of the broadcast of any criminal or defamatory words and that legislation should be introduced. [42]The 1996 Defamation Act in part remedies the uncertain position of the broadcaster of parliamentary proceedings by providing in section 15[43] a defence of qualified privilege for reports of proceedings in public of a legislature anywhere in the world. In addition section 1 of this statute gives live broadcasters a further and possible better protection, since the broadcaster of live parliamentary proceedings would appear to fall into the category of a "broadcaster of a live programme . . . [where] he has no effective control over the maker of the statement." This was not the purpose of section 1, indeed there was no discussion in either House of the effect of sections 1 or 15 on parliamentary broadcasting[44]. The Defamation Act 1996 was a vehicle for reform and parliamentary broadcasting just happened to fall under its umbrella.

 (b)   "Criminal Words, Court Orders"

  The reform of the law by the Defamation Act still leaves the live broadcasting of criminal words said in the course of parliamentary proceedings unprotected. [45]A particular problem that has been considered by both parliament and the courts, is with respect to court orders. In 1987 the Attorney-General successfully obtained an interim injunction restraining the BBC from broadcasting a series of programmes about the security services, "My Country Right or Wrong", on the basis that the government was concerned that former members of the security services might have given interviews which were in breach of confidence. The terms of the injunction were wide and inter alia prohibited the BBC from broadcasting the identity of current or former members of the security forces. [46]Several MPs drew attention to the problem this created for the reporting of parliamentary proceedings. The injunction could not stop them from identifying members of the security forces in the course of parliamentary proceedings, but would the BBC commit contempt of court if it broadcast those proceedings? The Speaker responded by reminding members that anything that was mentioned in the House was in the public domain, and that it was for the BBC to make up its own mind what to report; he would not be drawn on the question of possible liability of the BBC for contempt of court. [47]The following day in the Christmas Adjournment debate the action of the Attorney-General was raised and several MPs named members of the security services without any intervention by the Speaker. [48]

  It is possible that neither the Attorney-General nor the court had thought about the implication of the injunction for the reporting of proceedings of parliament. In the course of one of the many proceedings in the House of Fraser and Lonrho dispute the High Court varied the terms of injunction preventing The Observer newspaper and Lonrho from any further publication of a leaked DTI Report, to allow the reporting of parliamentary proceedings. [49]The fact that in The Observer case the terms of the injunction were altered, illustrates that the court recognised the particular role of parliament, and the danger that in certain circumstances an injunction could be seen in parliament as limiting the right to have its proceedings freely reported.

  The most recent incident was in 1996 when an Early Day Motion (EDM) breached an injunction prohibiting the identification of the parties in a case concerning a child referred to by the courts as Child Z, and restraining the publication of confidential information in respect of Child Z's medical condition or education. As a consequence of the EDM several papers in the course of reporting parliamentary proceedings also revealed the identity of Child Z, and enabled connections to be made between Child Z and a Court of Appeal decision in connection with the child in which details of the child's medical condition were reported. In effect the EDM impugned the protection given to Child Z by the courts. The matter was raised with the Speaker who stated that although the EDM did not breach any rule of the House, the general issues raised should be considered by the Procedure Committee. [50]Irrespective of the conflict between free speech in parliament and the administration of justice, this incident also raised issues as to the publication of parliamentary proceedings.

  What is the position of those who broadcast or publish, as part of proceedings in parliament, the breach of the court order? On many occasions the actual damage is done by the re-publication and dissemination outside parliament of the prohibited matter. In 1978 the Committee of Privileges accepted that such publications could amount to contempt of court, and the 1996 committee report agreed with this conclusion. [51]However it did so in the context of citing only a small part of an opinion prepared for the Committee of Privileges in 1978 by the then Mr Woolf (now Lord Woolf). The part cited dealt with whether the use of extracts from Hansard which contained the breaches of the court order could amount to contempt of court, and concluded that such extracts would come under section 3 of the Parliamentary Papers Act 1840, and could well be regarded as not published bona fide and without malice. The application of the 1840 Act did not arise in this case, nor in the 1978 affair. What arose in both these examples (which the 1996 report does not address) was the live broadcasting of breaches of court orders, or the next day publication of an account of parliamentary proceedings, neither of which are covered by the Parliamentary Papers Act 1840. The 1978 committee report had suggested that some sort of statutory protection should be given to this type of reporting of parliamentry proceedings, but the 1996 report did not look at this issue. Unless a court excludes the fair and accurate reports of parliamentary proceedings from the terms of an injunction, the publisher or broadcaster of such reports, if not taken from Hansard, could be legally liable. [52]The remedy lies with parliament. The suggestion by the 1996 committee that the remedy for the ill-effects of the breach of court orders by MPs, caused by the re-publication of the breaches outside parliament, lies in the courts, [53]is to miss the important connection between free speech and publication of proceedings.

  These examples illustrate the lack of legal protection for those who broadcast live parliamentary proceedings or publish accounts of parliament not taken from Hansard. They could also raise issues as to the need for further self limitation by parliament on free speech. [54]

 (c)   The Discretion to Prosecute

  The answer to the problems suggested above (and at 1.ii) is probably the practical one that the prosecution would exercise its discretion and not prosecute broadcasters or publishers in these circumstances. Whether or not that is an acceptable answer depends on ones view on whether it is more desirable, where possible, for the law to be clear, rather than for its proper application to be dependent upon the exercise of discretion.

    (iv)  The difference between section 3 of the Parliamentary Papers Act 1840 and section 15 of the Defamation Act 1996 should be noted. Where a publisher relies on section 3 of the 1840 Act it is for the publisher (the defendant) to show that the extract or abstract of the parliamentary report was published bona fide and without malice. Whereas when the publisher has published an account of proceedings not taken from Hansard and relies on section 15 of the 1996 Act it will be for the plaintiff to show malice by the publisher. [55]

    (v)  There are anomalies with respect to the protection from legal action in respect of members' correspondence with ministers and others. Letters from members to ministers are not regarded as proceedings in parliament, [56]and are not published in Hansard. Letters from members to the Parliamentary Commissioner in connection with the purposes of the Parliamentary Commissioner Act 1967 are absolutely privileged by section 10(5). Letters from members to the chief executives of executive agencies are unlikely to be regarded as proceedings in parliament and will not be covered by article 9. However, since 1992 such letters and the replies are published in Hansard and presumably they will be protected then by the Parliamentary Papers Act 1840. [57]


  The examples cited above seem to be part of a wider problem. In respect to parliamentary privilege issues parliament acts to stop a particular gap that has come to the fore. It does not consider the wider issues thrown up by that problem. In particular when it has acted in respect to defamation it has failed to consider the position with respect to criminal to criminal words or actions. [58]Although it is not concerned with the matter of the publication of parliamentary proceedings, section 13 of the Defamation Act 1996 is another example of this approach. If a member is accused of a criminal offence it may not be possible to use parliamentary proceedings as evidence, [59]and there is no provision for the waiving of the protection of article 9 of the Bill of Rights in respect of such proceedings. Whatever the Joint Committee considers is the best solution to the problem that gave rise to section 13, it must also consider how that solution will apply if the law is changed to make it clear that criminal proceedings can be brought against a member for bribery (or perjury or breaches of the Official Secrets Act) committed in the course of proceedings in parliament.

2.   Proceedings in Parliament

    (i)  I would support a definition of this phrase, but not one that would be "closed". There must be the possibility for parliament to continue to adapt its proceedings to meet current needs, without having to seek legislative amendments. I do not feel qualified to make any suggestions as to an appropriate definition.

    (ii)  If a legislative definition is proposed then it is important for it to apply in respect to all uses of this phrase. The phrase "proceedings" is used in the Parliamentary Papers Act 1840 in a context that suggests it should have the same meaning as in article 9. The phrase is also used in section 13 of the Defamation Act 1996, where a partial definition is given. Most recently it is found in clause 6 of the Human Rights Bill 1998. Any reform in this area must be suitable for application to all uses of the phrase. If it is not so suitable, then this must be made clear.

3.   The Penal Jurisdiction of Parliament

  There appear to be several problems here. I shall refer to a few of them.

    (i)  The punishments available to the House of Commons in respect to "strangers" appear either too minor (reprimand, admonish) or too major (imprison). This must affect parliament's penal powers. The likelihood of imprisonment appears remote, and if parliament did use this power, then it could find the "prisoner" eventually finding his way to the European Court of Human Rights. The risk of a reprimand for contempt of parliament may be worth taking. For example it is a contempt of parliament to refuse to answer questions put by a select committee, or to refuse to provide information. It may be worth taking this risk rather than risk incriminating oneself or revealing journalistic sources.

    (ii)  The punishments available with respect to members are more varied and better suited to the breaches of privilege or contempts committed. The ability to suspend members (without salary in some cases) and in the last resort to expel them are important powers. However, these punishments are not used frequently. It may be that if parliament had clearer internal rules or resolutions on members' behaviour and what could be contempt of parliament, then it could exercise its penal jurisdiction more frequently and more effectively against members. Parliament has got rules and resolutions governing the use of free speech in parliamentary proceedings, it may be that parliament needs to make these more accessible,[60] 60 and be more willing to act against those who ignore them.

    (iii)  The problem that is intimately connected with the punishments available to parliament, is the procedure for the investigation of contempts of parliaments and breaches of privilege. Again there appears to be the potential of a breach with the ECHR.

    (iv)  Clearly whatever conclusion is reached on the application of the laws of bribery to MPs has implications for parliament's penal jurisdiction. If criminal proceedings are to be allowed to be taken against members and parliamentary proceedings used in evidence, this will leave parliament with a limited role in respect of "convicted" members and strangers. If parliament is to be allowed to continue to treat corrupt conduct as contempt of parliament then its existing investigatory and penal powers are both inadequate and potentially unfair.

4.   Conclusion

  I welcome the decision to establish the Joint Committee on Parliamentary Privilege. I hope that it results in reforms that will enable parliament to meet the needs of today, and to avoid unnecessary risk of conflict with the courts. I also hope that reforms will address some of the anomalies between the application of the civil and criminal law to parliamentary proceedings.

38   See Leopold: "The Parliamentary Papers Act 1840 And Its Application Today" [1990] PL 183, "The Publication of Controversial Parliamentary Papers" (1993) 56 MLR 690. Back

39   There was no such provision in the 1965 Race Relations Act; now see section 26 Public Order Act 1986. Back

40   See, Second Report from the Committee of Privileges, "Publication of the Proceedings of the House", HC 222, (1978-79) where the Committee of Privileges doubted whether there was a defence of qualified privilege available in criminal proceedings brought in respect of a report of parliamentary proceedings not covered by the Parliamentary Papers Act 1840. Back

41   Sch 20, para 1 of the Broadcasting Act 1990 provides that the reference in section 3 of the 1840 Act is to have effect as if the reference to printing includes a reference to inclusion in a "programme service" as defined in the 1990 Act. Back

42   See in passing: HC 146 (1965-66), HC 261 (1969-70), HC 376 (1981-82), Faulks Committee Report on Defamation, Cmnd 5909. It was quite likely that had a defamation action arisen in respect to a live broadcast that the courts would have recognised a common law defence of qualified privilege. See Leopold "Parliamentary Privilege and the Broadcasting of Parliament" (1989) 9 LS 53-66. Back

43   In conjunction with schedule 1. Section 15 will apply to live and recorded broadcasts of proceedings. Back

44   The debates in both houses were rather taken over by the discussion of what became section 13 of the Act. Back

45   It may be that the courts would regard a broadcast of parliamentary proceedings as a "report" within section 26 of the Public Order Act 1986. If so, then it would be for the prosecution to show that the broadcast of the parliamentary proceedings which contained the word that amounted to racial hatred, was not fair and accurate. If this is the case than it merely draws attention to the inconsistency of the law with respect to the broadcasting of "criminal words". Back

46   Attorney-General v BBC, The Times, 5, 18 December 1987. The Speaker had allowed a private notice question to be put to the Attorney-General on the application for an injunction, Hansard HC Vol 123, col 1226-1236 (December 4, 1987). Back

47   Hansard HC Vol 124, col 22-27, 29-30 (December 7, 1987). Back

48   Hansard, HC Vol 124, col 200, (December 8, 1987). In the event no further legal action was taken by the government once it had heard the Zircon tapes and the programme was eventually broadcast. Back

49   Unreported but referred to in the course of debate in the Commons, Hansard HC Vol 150 col 19, (April 4, 1989). Back

50   Hansard HC Vol 270, col 77 (January 30, 1996). Back

51   HC 222 (1978-79), see note 3 above. There is of course the question of the desirability of prosecuting the publisher or broadcaster since this could draw further attention to the matter and cause further damage. Back

52   Unless the courts are willing to extend the common law defence devised in respect of defamatory reports to contempt of court etc. Back

53   "References to Matters Subject to Injunctions", HC 252 (1995-96) para 11. Back

54   I have discussed these examples and others and considered the possible need for the expansion of the sub judice rule in "Parliamentary Free Speech, Court Orders and European Law", to be published in summer 1998 by the Journal of Legislative Studies. Back

55   Section 26 of the Public Order Act requires the prosecution to show that a report is not fair and accurate. Back

56   This was as a result of the decision by the House of Commons in the matter of GR Strauss MP in 1958. Back

57   See Leopold, "Letters To and From `Next Step' Agency Chief Executives" [1994] PL 214. Back

58   The Parliamentary Papers Act 1840 is an exception to this, it covers both civil and criminal law, but it is limited to publications which were ordered to be published. Back

59   Unless the courts change their mind about the meaning of "questioned" in Article 9. Back

60   60 See the recommendation in HC 252 (1995-96) "Reference Matters Subject To Injunction". Back

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