Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 773 - 779)




  773. Dr Marshall, the Committee is very grateful to you for coming today and for submitting your written memorandum in advance. You have put forward one or two radical suggestions which will certainly cause the Committee to consider some of the fundamentals underlying parliamentary privilege and Article IX of the Bill of Rights. Before we embark on our discussion with you, is there anything you would like to say to us?

  (Dr Marshall) Just one point that I had not reflected on in the submission I made, and that was the question of whether the whole of parliamentary privilege should be in some way codified. I am very clear that there are a lot more pressing practical questions and that it would be a great error to try and codify the whole of the contents of Erskine May and the rulings of Committees and so on. I feel this in the same way that I am against codifying the British constitution or its conventions. Australia tried to codify all the conventions of the constitution and it all ended in disagreement and hopelessness. I think for the same reason that if you start to codify you run into a lot of statutory provisions that you have to try and summarise, and you may get them wrong or inconsistently summarised, and there are many more things which are worth doing than legislating in that kind of way. I think that is the only general thought I had. There are one or two points which I have reflected on since writing about them, looking at what other people have said, and I would like to amend one or two points, and perhaps I can amend my written remarks later but I think those points will probably come out in discussion.

  774. Insofar as they do not, please at some stage raise them yourself. Can we just pursue the line of thought you have yourself raised? When we talk about possible codification, I suppose the first big area we are naturally concerned with is Article IX; freedom of speech is such an important part of privilege. As I understand it, what you would advocate in fact would involve really re-writing Article IX, is that right?

  A. Yes, I think it would. I would like Article IX to be both broader but slightly shallower, and the point of the re-writing would be to make it possible to broaden the scope of Article IX. The way I thought that might be possible would be to take what I think historically is the main thrust of Article IX, to protect Members against the executive and against criminal prosecution for what they say. That was historically the reason for Article IX but it has come to be an all-purpose protection against suits of a civil kind, particularly for defamation. I think that consideration could be given to that general point and, if it were, my suggestion would be to produce what I think is still a substantial degree of protection for Members by providing that all speech in the course of proceedings should be privileged unless it is spoken recklessly or maliciously, and the burden of proof for showing that should be on any plaintiff. I think that would be a very high obstacle to surmount and the benefit I see in it is that it would allow one to extend the scope of the protection and the ambit of the protection if the general standard were qualified privilege, because one might then make it extend to things not just directly connected to House business but one could widen the definition of proceedings to take in some of the functions of Members which are not directly related to proceedings. There is an American definition somewhere which says that the Speech and Debate Clause should extend to everything done in the course of a Member's function in the nature of that function, and that extends rather more widely than what most people think of as proceedings in Parliament. The reason we cannot extend it more widely is because the protection is absolute, and it would strike many people as unprincipled to have absolute protection extending beyond the narrowest form of protection for parliamentary proceedings. But there is a case for spreading it, and therefore I think the slightly lesser degree of absoluteness in the protection against civil proceedings only might be something which should be thought about.

  775. I suspect what might trouble many Members about that suggestion would be that whilst as a matter of legal consequence the end result might be thought to be satisfactory in theory, in practical terms the real prospect of being involved in defamation litigation, even if it is bound eventually to fail, would itself be inhibiting to Members, particularly in the Commons. Can you help on that?

  A. I fully take that point; I think there is something in it. On the other hand, it is a point which applies to a great many people in public life and it applies to Ministers. I think one has to ask, would there be a real prospect of a flood of actions, of litigants trying to sue for defamation knowing that it would be almost impossible to surmount the obstacle of proving malice and bad faith. I think it would be no more in practice than one finds assailing Ministers, for example. Ministers are not even protected by qualified privilege if they are speaking outside the House, but there is not a constant fear on the part of Ministers, or the Prime Minister, that malicious litigants will try and drag them into court. So although I understand there is a kind of potential chilling effect of being subject to proceedings, it is something which affects everybody in public life, Ministers and members of local authorities, and there does not in fact seem to be a real risk of a flood of hopeless civil suits being launched against them. So I think if one did venture on it, it would not lead to a flood.

Sir Patrick Cormack

  776. Dr Marshall, it is not an exact analogy, is it, to liken the Member of Parliament to the Minister or the Prime Minister making a speech on public policy or propounding a political philosophy? The sort of case we are talking of, and to which Mr Christopher Price has made reference in his written submission to us, tends to be the personal case. The Member of Parliament, when he is at risk, is generally dealing with either an individual or a particular specific institution, not the sort of thing a Minister would normally be making a speech about, so I do not think your analogy is an absolutely exact one, and I am fearful of the point our Chairman has made.

  A. As I say, I quite accept that. I think sometimes there are speeches made by Ministers—one might think that the Chancellor of the Exchequer was saying something derogatory about a particular firm or a particular group of individuals—and people do not rush to sue. Mr Price's case is, of course, rather special, I think. It was a rather unusual case and one complaint he made was that he was advised to settle because he had written a harmless comment in a book. Of course, Article IX of the Bill of Rights would not have helped him with his book, he would not have had any protection, absolute or qualified, for what he had written in his book. That is a general difficulty about defamation law, that it is almost always better to settle if somebody threatens you, because the cost of defending if you lose, and there is a risk of losing, is very, very high. I have had it myself when I have written things in books, and if somebody says, "We will settle for £20,000", you may well be advised to settle because of the terror of being taken to appeal and losing your case and paying the other side's costs. So there is a great deal of difficulty about the law of defamation which afflicts everybody, and I quite see that, being right in the firing line, MPs may have this fear. I think it may be exaggerated but I quite understand it, and it is not a point that I press. I think there are other points about the Bill of Rights, but removing absolute privilege is not a thing I would give great priority to. I think it is a matter of principle and it would help to spread the scope of privilege, but it would not surprise or distress me if Members thought it was too much of a risk to take.

Mr Michie

  777. One of the problems that faces this Committee, and faces both Houses, is not the person who decides to take a case against a Member with qualified privilege, hoping they will win, but the case of a vexatious person making an allegation against a Member. If that person loses the case, the Member has nothing to answer for and is covered by privilege, end of story, but the publicity during the period of the case may be just enough to encourage the mischievous person at least to have a go. This is the problem, the mischievous side of it.

  A. Yes. I suppose it is conceivable. There are circumstances in which people have to get leave. If you are a vexatious litigant or asking for legal aid, you may have to get the permission of a court to actually let you start a case, and I suppose one could devise a procedure where someone had to show cause or get leave of the court to start a case against involving proceedings in Parliament, so one could think of some protections. But I quite accept what you say.

Lord Merlyn-Rees

  778. I do not want to major on Christopher Price and the Confait case, in which I was involved to some degree, but was Christopher Price arguing not that he had protection in writing a book but that he had protection in quoting what he had said in the House of Commons? Would that be the case?

  A. Yes. He would not have absolute protection if he was quoting what he had said in the House of Commons. I think at common law you would have exactly what I am discussing, qualified privilege. If what he had said, even if it were mistaken, he believed and he said it honestly and had no personal grudge in the matter and was not reckless in what he said, then he would have a complete defence. But it would not be an absolute defence as it would be if he had said it in the House.


  779. Novelty, of course, is no bar to the believing of anything, and there has to be a first time for everything, but would I be right in thinking that this particular proposal is not a route which has been taken in any of the countries, or any of the states, where there is a Parliament on the Westminster model?

  A. That is true as far as the British Commonwealth goes. If one thinks about the United States, the majority view is that absolute privilege is enjoyed by Congress, but there are some suggestions in some cases that bad faith might allow it to be negatived, and of course there are many cases in which Congressional proceedings have been contested in the courts on constitutional grounds. But I think it is true to say that absolute privilege is the common standard for legislatures in the Commonwealth at any rate.

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Prepared 9 April 1999