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Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 480 - 499)




  480. Can we move on, to the question what should be the extent of the freedom of speech of a Member of Parliament? What is the reason why certain parts of his activities should have absolute privilege and other parts only have qualified privilege? Have we got the dividing line right?
  (Professor Bradley) There is no doubt that matters that are contained in speech in the House or in a Committee are subject to absolute privilege under Article 9 and so, for that matter, are matters contained in House of Commons papers. We have the supporting authority of the Parliamentary Papers Act in that context. To enable the House and Members to perform their function, documents that are ancillary to those matters must surely also be protected, whether drafts of questions or Members' notes he or she may use in a speech, and other ancillary matters. At the borderline is the question of an MP's letter to the minister which, in my view, raises the difficult issue of where you draw the line. If the argument is that this may be preliminary to or instead of a question in Parliament, why should not such a letter by a Member to a minister be a proceeding in Parliament? If we stop short of that and we have, for example, constituents' letters to MPs or MPs' letters to constituents, or what is said in a surgery or what is said at a protest meeting that a Member attends in his constituency, those do not seem to me to be parliamentary proceedings. They relate to the Member's presence and functions in the constituency. Therefore, I would at the moment not wish to argue that proceedings in Parliament should be widened to include everything that is done by a Member in his or her capacity as a Member. I believe there is a good deal of support for that proposition to be found both in this country and abroad. Of course, what is said in correspondence between a constituent and a Member of Parliament will almost certainly be covered by qualified privilege at common law. As I have indicated earlier today, it seems as if Members of Parliament since the 1950s have been able to carry out their duties on that basis. While I accept that there may be an argument for putting letters to ministers within the definition of proceedings in Parliament, it may not be that there is a real need shown at the present time for that to be done.
  (Mrs Leopold) It is a matter on which I have changed my mind from time to time. I have drawn attention to the fact that we have quite a lot of illogicalities, but the law is full of illogicalities. I think the idea that we can get rid of them here or in any other field is quite impossible. We have illogicalities but provided you think, and people think, that these illogicalities actually work, then surely that is the answer. It may be strange to say that your communication with a minister is not absolutely privileged in parliamentary terms but only subject to qualified privilege but, if that works, then why change it? It may be there was a good reason to give communications with the Parliamentary Commissioner for Administration a special standing but, if that works, fine. I do still feel it is slightly odd that we are getting letters from chief executives published in Hansard and they are suddenly getting a greater protection than your letter to the minister would, but parliamentary procedure has to adapt to changing conditions and that is an example of it. It is illogical but, if it works, then provided you are happy that it does work I do not think there is any point in tinkering with it.

Mr Michie

  481. On page five, in paragraph nine, Professor Bradley makes the point that the courts must accept that the contempt jurisdiction extends to matters outside Parliament etc. This is subparagraph (4), which I assume is to do with the 1957 rule on letters to a minister. Letters to a constituent, which basically could be a reply from the minister, leave themselves open to a charge. Is that what you are saying?
  (Professor Bradley) Yes. Could I maybe clarify what I was trying to convey in that paragraph? What I am saying there is that this is the essence of parliamentary privilege as I see it, the privilege of the House, the internal procedure and discipline of each House. The House's powers include the power to deal with contempt of court and, in the last paragraph to which Mr Michie has referred, to the contempt jurisdiction which can be used to prevent Members of Parliament, in carrying out their essential functions, even if those functions extend beyond proceedings in Parliament. Any hypothetical example is going to be unsatisfactory but, for example, if some racist group seizes on the fact that a Member is going to hold a session in their constituency to deal with black constituents' problems over immigration and organises a protest to prevent that happening, that would seem to me to be a contempt of Parliament and one which the House would have jurisdiction to deal with, even though the event in question, a discussion between a Member and constituents, would not of itself be a proceeding in Parliament. Having given that example, of course one has to say: do we need to bring in Parliament at this stage? Could not the police deal with it properly under the ordinary criminal law? So it may not be an ideal example, but it was intended to give an example of molestation or harassment of an MP in their essential functions, although those essential functions are not proceedings in Parliament.

  482. It is a different kind of communication, is it?
  (Professor Bradley) A different kind of communication. If I could say, we have been talking about letters from constituents to MPs and MPs to ministers, but when the reply comes, if the MP sends it back to the constituent, that is surely within at least the area of qualified privilege. I would not regard it as being within the proceedings of Parliament in the absolute sense any more than when a Member says outside Parliament what he has said inside the chamber. That is not covered as a proceeding of Parliament. But in the case of a letter and genuine complaint from a constituent, that would be covered by qualified privilege.
  (Mrs Leopold) Yes, in the law of defamation.


  483. You did refer to the Official Secrets Act before, what do you say the position of a Member of Parliament should be if—very unlikely—he got up and made a speech which was manifestly a breach of the Official Secrets Act? Perhaps, Mrs Leopold, you might deal, in addition to that, with the position of the media when they are reporting such an event?
  (Mrs Leopold) Yes, and indeed not only a breach of the Official Secrets Act but a contempt of court, because we do have breaches of injunctions and things like that. I actually believe MPs ought still be able to commit these offences because I think, certainly if we are dealing with court orders, there are occasions where, for example, we get interim injunctions which are not always used for the best of motives and one suspects that they are being used to stop information being in the public domain, and if there is not somewhere where something can be said, can be challenged, then it would be a shame because I do not think interim injunctions are always necessary. What I would say is that I think that there ought to be a tightening up of Parliament's own internal rules. I think we need a tightening up here. I think the sub judice rule needs reforming. I disagree with the suggestion that we do not need to amend the rule to have a presumption that MPs would not breach court orders, I think they should be allowed to do so but I think Parliament should have its own procedure whereby the Speaker could perhaps give a ruling, where it is at the Speaker's discretion. I think there are circumstances where this could happen, indeed Lord Merlyn-Rees himself was involved in one in the House of Commons some years ago—

Lord Merlyn-Rees

  484. Remind me.
  (Mrs Leopold) There was an injunction restraining the BBC from broadcasting a programme. I am not sure, I think it was My Country, Right or Wrong, I cannot remember which programme it was. You in fact repeated the information which the BBC was not allowed to broadcast in the course of proceedings in Parliament, and absolutely nothing was done. In the case of Re Z, the girl whose name was mentioned in the Early Day Motion, I do not think that should have been done. I think that should be against Parliament's own rules. The other thing is that Parliament should be willing to discipline its members who breach these rules—the sub judice rule and the expanded sub judice rule. I feel Parliament ought to be more willing to discipline its own members for breaching clear rules it has laid down, but that is another problem. We saw this in the Nolan Report, we saw it in the Report on Re Z (HC 252, 1995-96). In fact a lot of Parliament's own rules are not well-known to Members of Parliament. They are not necessarily aware of these resolutions or conventions. Perhaps Parliament has some obligation—and I have seen this mentioned in several reports—to make its members more aware and then, if they are more aware, to ensure they keep to them. But I certainly would not be keen on having members prosecuted for breaching injunctions or court orders or breaching the Official Secrets Act, particularly as the newest Official Secrets Act makes these breaches perhaps less likely. The other side of it which perhaps we do not want to get on to, is the liability of those who then report the breach of the Official Secrets Act; and that is very technical, I accept, but that is a real difficulty.


  485. Are you saying that if there was what appeared to the Director of Public Prosecutions to be a very serious breach of the Official Secrets Act, he would be powerless or he should be powerless?
  (Mrs Leopold) I think he would be powerless, yes.

  486. And he should be powerless?
  (Mrs Leopold) This is difficult. Does free speech or proceedings in Parliament include bribery, should it include being able to breach the law in this way? I do not really know. I am inclined to say he should be powerless but I acknowledge that is perhaps illogical in the light of saying, "If you are going to prosecute them for bribery, why not for official secrets"?

  487. If the House had this ability to waive its privilege, this might solve the problem, might it?
  (Professor Bradley) My Lord, I have already indicated my answer to the last question that was asked, because I think that the absolute freedom of speech in Parliament needs to be preserved, and therefore I am not suggesting, and would not be in favour of, a general power in the House to waive Article IX whenever a criminal prosecution might be involved. I would be very firmly against that. If I can repeat, I think the House of Commons Privileges Committee in 1987 on the Zircon affair considered this very question, whether it should be proposed there should be an exemption for parliamentary freedom of speech in the case of official secrets, and they firmly said no, 10[69] and that was accepted by the House. Could I underline what Mrs Leopold has been saying, that along with this concept of freedom of course comes the responsibility that it should not be abused. It does seem as if within each House there are ways and means of dealing with members who abuse their freedom of speech. Sometimes it may be necessary to name a person inside Parliament in a way which would be defamatory if one did so outside Parliament, but it must be the freedom of an MP to decide to do so, subject presumably to being able to satisfy other members of the House there was a good public reason for doing so.

Sir Patrick Cormack

  488. Do you agree with Mrs Leopold that there should be a clear code of parliamentary practice, which was in effect what she was advocating in her remarks a few minutes ago?
  (Professor Bradley) Yes, if there is doubt, and I believe Mrs Leopold is right to mention the sub judice rule as one that this Committee should be looking at. For example, the Contempt of Court Act 1981 has made certain modifications in the definition of court proceedings, and I am not sure that the House has come back to the sub judice rule since then. There is the strange position that once the matter has been concluded before the courts, the sub judice rule seems not to apply. Therefore there may be a need in respect of injunctions, a gagging injunction, for some guidance on the position. May I say that there are rules of the House which exist. For example, if a member wishes to criticise a judge they are not permitted to do so save on a substantive motion.

  489. Mrs Leopold, as I understood it and I may have inferred wrongly, was suggesting that yes, these rules exist but they are not as well-known as they should be perhaps by members. We are at the moment operating in a new Parliament where 260 or thereabouts members have never sat before. As I understood her, she was saying there would be merit in Parliament drawing up its own code of practice on these matters, not necessarily with statutory force but a code of practice or code of guidance. She is nodding, therefore I seem to have interpreted her correctly. I was asking whether you agree with that.
  (Professor Bradley) I believe there could be a benefit if there are established principles of behaviour which members should observe if they are in these difficult areas of commenting on the courts or revealing information which a court had decided should not be made public. I am sure there would be value to members in these statements of principle being readily available. I am not, however, able to say whether there is a crying need for this to be done and whether it would lead to innumerable members being disciplined. I do not want to see headmasters all over the place, but if it is a matter of knowledge as to what the accepted principles are, and indeed any rulings the House may have given in the past, then obviously there is value in it being available and accessible to all members.
  (Mrs Leopold) The very fact that Article IX says, "freedom of speech and proceedings in Parliament ought not be questioned in any court or place outside Parliament", implies it can be dealt with in Parliament. If that is going to be the case then it seems right that, if there are going to be limitations, that those limitations should be known and also reviewed. The sub judice rule is an interesting one because it suffers, I think, from being too narrow—because I think your free speech is unduly restricted by the sub judice rule compared to outside Parliament, which is odd—but it is also too narrow on the basis that it cannot cover proceedings once they are over, on positions like injunctions. So I think that needs to be looked at. But if there was some sort of code, then members would be better informed. You will still have people who wish to go against it and that is why I say the sub judice rule is subject to the discretion of the Speaker, and that is quite right because there are times when it is right that things will be said in Parliament that could not be said elsewhere, but Parliament must not misuse its freedom of speech. If there is guidance and there is discretion, then it is still possible to say things in Parliament that cannot be said elsewhere. I do believe that is important.


  490. What do you say is the degree of privilege which should attach to the media, the broadcasting authorities and the press, particularly the broadcasting authorities who are doing something live, when they report what appears to be a breach of an injunction or an apparently seditious speech by a member?
  (Mrs Leopold) A type of qualified privilege whereby if Parliament decides, and it has decided, its proceedings should be broadcast, it does seem to me rather strange not to be able to give the broadcaster some protection, particularly if we are having live broadcasts. If we have broadcasting going out a minute and a half after it has been said, then you have a chance of pressing buttons. Likewise, when you are seeing edited highlights, the broadcasters then have a duty not to broadcast deliberately the interesting bits.

Lord Archer of Sandwell

  491. Could we explore that a fraction further? Supposing something has been said on the floor of the House where the mischief may be on a massive scale, someone has given information which would result in the deaths of a number of our agents overseas or something of that sort? I follow you might under the existing law bring proceedings against people who then broadcast it or repeat it in newspapers, but ought there not be some authority which then had a power to issue a kind of injunction and enforce it? I do not think it has ever been suggested before but would you deny Parliament the right to say, "We forbid anyone to repeat this"?
  (Mrs Leopold) If it is being broadcast, it is too late.

  492. If it is being broadcast simultaneously, it is too late.
  (Mrs Leopold) Yes, simultaneously, it is too late.

  493. Yes, I follow that.
  (Mrs Leopold) That is the problem there is generally if something is being broadcast live, it is too late.

  Sir Patrick Cormack: The trouble now is that everything is broadcast. There is one channel on television which broadcasts every minute that the House of Commons is sitting.

Lord Archer of Sandwell

  494. But it might still be wise to prevent any further repetition? We all know that putting together a number of different reports can be quite effective for somebody who wants to know these secrets.
  (Mrs Leopold) The truth is that once it is in the public domain as a broadcast, it is impossible. We have not even contemplated what you are going to do about the Internet. I think most of us have tried not to think about that. If you take other examples, if the Re Z case was put on the Internet, we have an enormous problem and I have no idea how to solve it. Once we have accepted live broadcasts, it seems very strange then to say, "We are going to stop the newspaper reporting it the next day", because the newspaper will merely report they were stopped reporting what you could see if you happened to be watching television.

  Mr Michie: It is almost impossible because you are going down a dangerous road if you stop somebody from quoting something which is already in the public domain. It gets very, very complicated and is almost impossible.


  495. Can we go on to consider the question of tribunals of inquiries or courts who wish to examine what it is that has been said or done in Parliament on a particular occasion?
  (Professor Bradley) My Lord, I am grateful for this question because I have never thought of this as a problem before, but as soon the question is asked then plainly it is a strange position that the Tribunals of Inquiry Act does not allow this to be done. Subject to correction, such a Tribunal of Inquiry has ultimately the powers of a court to compel evidence, to which Article IX might be relevant. Let me say that a Tribunal of Inquiry would be on a matter of public interest, otherwise it would not have been set up, and it would be in the public interest that there should be a thorough examination. I would find it difficult to imagine, for example, a Government, where a resolution has been taken to set up a public inquiry, then denying facilities to the inquiry. If it be right that Lord Justice Scott in his inquiry simply ignored Article IX or said he would until somebody objected, that seems to me a very practical answer to a problem which in law may be a matter of surprise. One could add that the Parliamentary Commissioner Act 1967, which set up the Ombudsman, does provide in terms that a minister's functions may be inquired into and if they are in the exercise of administrative functions these could include what is said in Parliament. There was one report in the 1970s, the Court Line affair, where I believe Mr Benn was found in his speech as Minister in the House of Commons to have spoken maladministratively, and there seems to have been no objection taken in 1975 to the fact that the Ombudsman was commenting adversely on what a member had said in the House of Commons11[70]. But, maybe that comes from the statutory powers the Ombudsman has. My short answer is that while I am grateful for having had cause to think about the matter of tribunals of inquiry, it does not seem to have caused practical problems hitherto. Maybe there were problems which have not been made public in this respect.
  (Mrs Leopold) I would like to draw attention to another slightly strange situation which was that nobody seemed to get too worried about what was done by Sir Richard Scott, but he was "questioning proceedings in Parliament", and this is what people are getting very worried about when we come to bribery. They are going to be "questioning proceedings in Parliament". If you have parliamentary proceedings questioned anywhere, I would rather have them questioned in a court of law than have them questioned in some sort of tribunal which has been set up with a variety of powers, or indeed the press. At least in a court of law you have the protection of the various discretions which have been exercised before the prosecution is brought, you have the protection of the rules of evidence, the protection of counsel, you have the judge there to make sure it is not abuse of process. You have greater protection, surely, for questioning proceedings in Parliament in a court of law than you have in front of some of these investigations. Yet there has never been the same concern about this, I suspect, as we are getting with regard to bribery.

  496. But is that not because it has been set up by Parliament for an express purpose?
  (Mrs Leopold) Yes, but did Parliament include "questioning its proceedings" in the express purpose—they perhaps turned a blind eye, I think is the answer—the fact that what it was going to do was going to be questioning its procedures?

Sir Patrick Cormack

  497. I think that is the answer.
  (Professor Bradley) Is it possibly that the current significance of a provision like Article IX changes from time to time? It must take account of changing political circumstances and governmental problems. There is no doubt at all that one primary effect of Article IX is on personal liability, protecting the individual member from liability in defamation or criminal prosecution for what he or she says in Parliament. What Sir Richard Scott was doing in his inquiry was in fact investigating and passing judgment upon speeches and answers to questions which many ministers had given which was relevant to their political reputation, if you like, but would not have involved questions of personal liability either in damages or criminal law. The Government wished it to happen, Parliament wished it to happen, the press wanted to know what Sir Richard Scott would say; everybody wanted to hear Sir Richard Scott's conclusions on these matters. I would be interested to know what would have happened if in fact Article IX had entered into the Scott Inquiry in a significant way. That was an informal inquiry and, of course, there can be all manner of informal inquiries but if one is talking of the 1921 Act then one is in the area of formal inquiries with powers of a court, which Sir Richard Scott did not have.

  Sir Patrick Cormack: He had a ticket to go on an ego trip.


  498. Let us come to one matter which you have touched on earlier, which is section 13 of the Defamation Act of 1996. What are your views as to what should be done about that?
  (Mrs Leopold) Repeal it!
  (Professor Bradley) I would like it repealed. As a second best, if this Committee were persuaded of the case for retaining something equivalent to the present section 13, then it must be for the House to decide whether to waive its privilege. Knowing that I was going to be here today, I did take advantage yesterday of trying to read through all Hansard discussions on what is now section 13. The first mention of it, I believe, was in the House of Lords debate on 8th March in the Second Reading Debate when Lord Finsberg raised this matter and said, "Surely the Bill of Rights never intended that an individual MP or peer could not waive his own privilege." 12[71] He wished to see an amendment to the Bill to enable a member or a peer to waive his own privilege. I do believe the parliamentary change in the law got off to a very bad start at that point because it plainly was not the MP's own privilege which was in question. I would be disappointed at least if this Committee were not able to take up the very cogent points made in debate on this matter.

Mr Michie

  499. There has always been an argument whether the privilege belonged to the member, that is the problem.
  (Professor Bradley) It benefits him or her in a way. I do not think it belongs to him.

69   10 HC 365 (1986-87). Back

70   11 HC 498 (1974-75).<jf11>Mr Williams Back

71   12 HL Deb, vol 570, col 597 (8 March 1996) (Lord Finsberg).<jf11>Sir Patrick Cormack Back

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