Parliamentary Privilege - Joint Committee on Parliamentary Privilege Contents


7  Reporting and repetition of parliamentary proceedings

Background

171.  As the 1999 Joint Committee noted, "parliamentary privilege does not cloak parliamentary publications with any form of protection".[156] This was decided in 1839 in the case of Stockdale v. Hansard,[157] in which the court held that parliamentary privilege did not attach to the publishers of reports ordered to be printed by the House of Commons. The Parliamentary Papers Act 1840, passed in response to this decision, established that no action could be brought in court arising from the publication of the Official Report or other documents ordered to be published by either House. It also provided protection for "any extract or abstract" from such documents made by others, provided that it was published "bon® fide and without malice" (section 3). Such protection for publications by order of either House is a matter of statute law, not privilege.

172.  An "abstract" was defined by the 1999 Joint Committee as a "summary or epitome".[158] Thus media reports of what goes on in Parliament, even if they draw on documents published by order of the House, such as Hansard, do not generally enjoy the (qualified) protection afforded by section 3 of the 1840 Act—a point confirmed by Sarah McColl, Solicitor Advocate in the BBC Editorial Legal Department, in her oral evidence on behalf of the Media Lawyers Association.[159] Such reports do, however, enjoy privilege at common law in respect of defamation.[160] If the whole debate is published the protection is absolute; if only extracts are published the protection is qualified (that is to say, it is not available if the extracts are shown to have been published maliciously). The 1999 Joint Committee, while acknowledging that the matter had never been determined, commented that it would be surprising if the common law defence of privilege in respect of defamation was not also available to broadcasters.[161]

173.  This common law protection is buttressed by section 15 of the Defamation Act 1996, under which fair and accurate reports of the proceedings in public of a legislature anywhere in the world enjoy qualified privilege for defamation purposes, as does a fair and accurate copy of, or extract from, material published by or on behalf of a government or legislature anywhere in the world.[162]

174.  Outside the field of defamation, it does not appear that media reports of parliamentary proceedings (as opposed to extracts or abstracts) enjoy legal protection. This arises most obviously in the case of breaches of court injunctions; other examples cited by Mike Dodd, of the Press Association, were provisions in the Official Secrets Act 1989, the Sexual Offences (Amendment) Act 1992 and the Education Act 2011, all of which prohibit the publication of specific types of information.[163]

175.  This brief summary illustrates the patchwork quality of the different levels of protection afforded to reports, summaries or extracts of parliamentary proceedings. This patchwork includes a number of gaps and inconsistencies:

  • While the burden of proving malice under common law rests with the claimant, under section 3 of the Parliamentary Papers Act 1840 it is for the defendant to prove that he has not acted maliciously.
  • The protection afforded under the 1840 Act to extracts or abstracts extends to all court proceedings. But the protection under common law for reports of parliamentary proceedings extends only to defamation cases—as does the reinforcement of that protection in the Defamation Acts 1996 and 2013. It appears that reports of parliamentary proceedings (as opposed to extracts or abstracts) enjoy no protection in respect of other types of court proceedings.
  • Section 3 of the 1840 Act was limited to "printing"; later amendments have extended the same level of protection to any television or sound broadcast.[164] It is less clear whether the common law protection in respect of actions for defamation applies to broadcasts.
  • More generally, the protections derived from 19th century statute or common law do not sit comfortably with modern technology, where increasing volumes of data, rather than going through a formal "publication" process, are streamed live via the Internet. Such data are subject to instant comment or reporting via social networking sites, and their re-use, for instance by combining them with other data sources, is actively encouraged under the terms of the Open Parliament Licence.[165]

Proposals for change

176.  The 1999 Joint Committee criticised the drafting of the 1840 Act as being in a "somewhat impenetrable early Victorian style".[166] The Joint Committee considered the statutory protection given to the media by the 1840 Act and the common law itself should be maintained, and would be more transparent and accessible if it were included in a modern statute, whose language and style would be easier to understand than the 1840 Act.

177.  The 1999 Joint Committee recommended that this new statute should address a number of the anomalies identified above: to reverse the burden of proof under the 1840 Act, bringing it into line with the common law;[167] to confirm that the common law protection in respect of defamation applies to other legal proceedings, such as for contempt of court or for breaches of the Official Secrets Act; and to clarify the status of sound and video archives of proceedings, once they have been transferred to the National Film Archive. The 1999 Joint Committee also drew attention to the possible uncertainty around the status of broadcasts under common law. The Committee made no recommendation on the level of protection enjoyed by reports of parliamentary proceedings in defamation or other cases, noting that "The considerations involved in this type of issue do not concern parliamentary privilege. Nor do they relate solely, or even primarily, to members of Parliament".[168]

178.  The Joint Committee on the draft Defamation Bill, while not concerned with the issue of parliamentary privilege per se, recommended in 2011 that the press be provided with a "clear and unfettered right to report on what is said in Parliament and with the protection of absolute privilege for any such report which is fair and accurate".[169] This recommendation was not accepted by the Government, and the Defamation Act 2013 leaves the position of reports of parliamentary proceedings in defamation cases substantially unchanged.

179.  The Joint Committee on Privacy and Injunctions, unlike the Joint Committee on the draft Defamation Bill, did not consider that absolute privilege should be extended to media reports of parliamentary proceedings. Instead the Committee recommended only "that qualified privilege should apply to media reports of parliamentary proceedings in the same way as to abstracts and extracts from Hansard".[170] Thus the Joint Committee on Privacy and Injunctions did not consider that malicious publication should be protected.

180.  The Government's Defamation Bill was based on a private member's bill presented by Lord Lester of Herne Hill in 2010. This bill would have repealed the Parliamentary Papers Act 1840 in its entirety and given absolute immunity in respect of defamation cases to fair and accurate reports of proceedings in Parliament. In evidence to this Committee, Lord Lester again urged that the protection afforded to fair and accurate reports of proceedings in parliament in respect of actions for defamation only be made absolute—in other words, that the "without malice" qualification be removed in this specific case.[171] Such a change would leave qualified privilege attaching to fair and accurate reports of proceedings in Parliament in other circumstances, including breaches of court injunctions; Lord Lester noted that such a change would bring the law on reports of proceedings in Parliament into line with that on reports of court proceedings.

181.  The Newspaper Society, in evidence to us, called for far wider changes than those proposed by the 1999 Joint Committee to be made to the Parliamentary Papers Act 1840 and other relevant legislation. It wished to protect all reports at any time in any form.[172] Mike Dodd, of the Press Association, suggested to us that absolute privilege should be afforded to all fair and accurate reports of proceedings in Parliament, including media reports on breaches of injunctions. He justified his position by reference to freedom of speech: "The reason I find this situation unsatisfactory is that in the end, your freedom of expression depends a great deal on my freedom of expression. If I don't have full freedom of expression, then you don't have full freedom of expression either".[173]

182.  The Green Paper sets out the Government's opposition to the recommendation of the Joint Committee on the Draft Defamation Bill, and thus to the extension of absolute privilege to reports of proceedings in Parliament:

"An absolute privilege for 'fair and accurate reporting' would remove the existing conditions in common and statute law that reports of parliamentary proceedings are in good faith and without malice. The Government believes these protections remain crucial. For example, in considering these issues in its recent report, the Joint Committee on Privacy and Injunctions raised the possibility of the media passing private information covered by a court injunction to Members, encouraging them to use the information in parliamentary proceedings, and then reporting on those proceedings in the knowledge that no legal consequences can follow. The Government believes that in such circumstances it is right that the person who took out that injunction should have the right at least to ask the courts to consider whether the newspaper had acted in bad faith and so was in contempt of court".[174]

183.  The Green Paper also rejects the recommendation of the Joint Committee on Privacy and Injunctions, stating that it "would appear not to recreate the further conditions which would currently seem to apply to fair and accurate media reports not covered by the 1840 Act under the common law—namely that privilege does not extend to the publication of material which is not of public concern, or the publication of which is not for the public benefit."[175] This additional qualification of privilege, by reference to the public benefit, echoes the terms of section 15(3) of the Defamation Act 1996, but does not appear to have any foundation in common law. The judgment in Wason v. Walter, which expressed the common law protection afforded to reports of parliamentary proceedings, also confirmed the "paramount public and national importance that proceedings of the Houses of Parliament shall be communicated to the public".[176] Thus the "public benefit" of reporting proceedings in Parliament has been established as a general principle, and does not need to be demonstrated in each individual case.

184.  The Green Paper includes only two draft Clauses on publication and broadcasting of parliamentary proceedings: the first would reverse the burden of proof, so that the plaintiff rather than the defendant would have to show that the publication complained of had not been made bonâ fide and without malice. The second would provide absolute protection for broadcasts made by or under the authority of either House of Parliament, and qualified protection for broadcasts not made under the authority of either House. Subsection (5) of this second draft clause provides that the protection afforded to broadcasts is extended to the dissemination of "images, texts or sounds (or any combination of them) by any electronic means".

185.  It will be clear from the preceding paragraphs that the limited Government proposals do not fully implement the recommendations of the 1999 Joint Committee, and they fall far short of the recommendations of the Joint Committee on the draft Defamation Bill and of some witnesses to this inquiry.

186.  The Government's approach was welcomed and the Green Paper's analysis echoed by the Clerks of the two Houses. The Clerk of the Parliaments said that extending absolute privilege to reports of things said in Parliament would be "rather dangerous, in that it would encourage the media to have a field day if they can get things said in Parliament and then repeat them irresponsibly. It is right that privilege is not absolute".[177] The Clerk of the House agreed, while Speaker's Counsel highlighted the risk that "Members would be used as a channel, wittingly or unwittingly, for the creation of a record that could then be published with impunity".[178]

The views of the Committee

187.  We do not accept the argument that full freedom of expression in Parliament is dependent on a similar freedom being enjoyed by the media. The fundamental purpose of affording absolute privilege to proceedings in Parliament is to protect those proceedings themselves, so that the democratically elected representatives of the people can engage in free and fearless debate on issues of public concern. Such debate is a cornerstone of any democratic society. But Parliament's work can be done irrespective of whether or not it is reported—the two Houses and their committees can and do conduct sittings in private, and the illicit reporting of such proceedings may be deemed to be a contempt. So while the freedom to report of parliamentary debates in the media is of vital importance in a democratic society, it raises different issues, and it can be protected in different ways.

188.  We also agree with the 1999 Joint Committee that the protection afforded to the reporting of parliamentary proceedings is not fundamentally a matter of privilege at all—a fact established by the case of Stockdale v. Hansard. This is confirmed by Lord Lester of Herne Hill's evidence, in which he states that the protection afforded in defamation cases "is not in fact a matter of Parliamentary Privilege which ... is concerned with ensuring that MPs are able to speak freely in debates. Rather, it is to do with privilege in defamation cases, and the Defamation Bill would therefore have been the appropriate place to deal with it".[179]

189.  It is unfortunate that the Government, having chosen not to address the recommendation of the Joint Committee on the draft Defamation Bill by arguing that it had "broader implications beyond the law of defamation", then rejected that recommendation on the basis of irrelevant arguments relating to breaches of court injunctions, not to defamation law.[180] It would have been preferable if the Government could have expressed a principled position on the point of defamation law without involving the wider issue of parliamentary privilege. But as things stand the Government has passed responsibility to us to take a view on these issues.

190.  On balance, we do not support extending absolute privilege to all reports, including media sketches and summaries, of proceedings in Parliament. This is not because we see any great likelihood that Members would, in such circumstance, be commonly used by the media to "launder" defamatory information, though we acknowledge that risk, but because we consider that the existing protection of qualified privilege—that is, that all fair and accurate reports are protected, unless they can be proved by the claimant to have been made maliciously—already provides a robust defence of press freedom. To claim otherwise would be to argue that those reporting parliamentary debates should, in so doing, have carte blanche to publish malicious and defamatory stories about individuals, while leaving them no legal remedy.

191.  At the same time, we acknowledge that the media need clarity and certainty. The Parliamentary Papers Act 1840 provides qualified protection for all "extracts and abstracts" of parliamentary publications (including broadcasts), but as we have already said these terms do not appear to cover media reports or editorial comment. The wording of the1840 Act reflects a time when the re-publication by newspapers of large verbatim extracts from Hansard was commonplace; the style of reporting today is very different, to such an extent that the wording of section 3 of the Act is largely obsolete.

192.  The Green Paper says that "the Government is not aware of circumstances in which any media organisation has been prevented from publishing reports of parliamentary proceedings by doubts over the extent of the current protection in law"[181]—but that claim is contradicted by the clear evidence provided to this Committee by the BBC and the Press Association. Indeed, the Government's draft clause fails to address one obvious restriction on press reporting, described to us by Mike Dodd: "reporting Hansard verbatim requires a wait of at least two hours before the first draft comes out, whereas we have customers at the other end of the line, or the video feed or whatever who have seen something on Parliament TV and want it now or five minutes ago".[182] The Government's draft clause would give no protection to a reporter who, on the basis of a live broadcast, transcribed words said in the House, and then sought to re-publish those words online—the words spoken would not enjoy any protection under the 1840 Act until the online version of Hansard was published, under the authority of the House, some hours later. This state of affairs seems indefensible.

193.  It is therefore clear to us that there is uncertainty, and that this uncertainty significantly inhibits press reporting of the work of Parliament. We accordingly endorse the recommendation of the Joint Committee on Privacy and Injunctions that qualified privilege should attach, in all circumstances, to fair and accurate reports of things said or done in Parliament.

194.  We welcome the Government's proposal to extend the protection afforded by the 1840 Act to all "dissemination of images, text or sounds (or any combination of them) by any electronic means". In our view this definition is likely to be sufficiently broad to cover all forms of media, though it could usefully be supplemented by the addition of a delegated power which would allow the Secretary of State to update the definition as appropriate, without further primary legislation. But this change, in isolation, is insufficient, since subsection (1) of the Government's draft clause would limit such protection to broadcasts of proceedings in Parliament, thus replicating the out-dated model of the 1840 Act, where protection is only afforded to the extract or abstract from Hansard, rather than to the reporting of what has been said or done.

195.  We endorse the recommendation of the 1999 Joint Committee that the Parliamentary Papers Act 1840 should be replaced by modern statutory provisions.

196.  We recommend that these new provisions should:

  • confirm that publications and broadcasts made under the authority of either House enjoy absolute privilege, and that any proceedings initiated in respect of such publications or broadcasts shall be stayed upon production of a certificate signed by the Speaker or Clerk of either House;
  • establish that qualified privilege applies to all fair and accurate reports of parliamentary proceedings in the same way as to abstracts and extracts of those proceedings;
  • provide that in all court proceedings in respect of such fair and accurate reports, extracts or abstracts, the claimant or prosecution shall be required to prove that the defendant acted maliciously;
  • confirm that the term "broadcast" includes dissemination of images, text or sounds, or any combination of them, by any electronic means;
  • provide for a delegated power, subject to affirmative procedure, allowing the Secretary of State to update the definition of "broadcast" in light of further technological change, without the need for primary legislation.

"Effective repetition"

197.  The decision of the Judicial Committee of the Privy Council, which at that time was the highest judicial authority for New Zealand, in Jennings v. Buchanan[183] has caused us some concern. In that judgment, delivered by the late Lord Bingham of Cornhill, it was decided that Mr Jennings, a New Zealand MP, could be sued for defamation because he had told a newspaper that he "did not resile" from the remarks he made in the New Zealand House of Representatives about a New Zealand Wool Board official identifiable as Mr Buchanan. Jennings v. Buchanan was a New Zealand case, and is not binding in the British courts, though it would be highly persuasive.

198.  The Judicial Committee ruled that—

"A statement made out of Parliament may enjoy qualified privilege but will not enjoy absolute privilege, even if reference is made to the earlier privileged statement. A degree of circumspection is accordingly called for when a Member of Parliament is moved or pressed to repeat out of Parliament a potentially defamatory statement previously made in Parliament".[184]

199.  The Clerk of the New Zealand House of Representatives told us that the New Zealand House of Representatives Privileges Committee had recommended legislation to deal with the effective repetition problem from Jennings v. Buchanan, because it potentially inhibited public discussion of what went on in Parliament, but that nothing had happened.[185] Dr Rosemary Laing, the Clerk of the Australian Senate, told us that "we take great care to warn our Members about the possibility of a Jennings v. Buchanan-type action and urge them to be careful about what they say outside of the proceedings in Parliament".[186]

200.  In a recent United Kingdom case, Mr Justice Tugendhat struck out claims for slander and libel brought against a witness to a select committee, Lord Triesman, who had subsequently given evidence to a Football Association inquiry into allegations he had made at the select committee hearing concerning the reasons for the failure of England's bid to host the World Cup in 2022. The plaintiff alleged that Lord Triesman had adopted by reference and/or confirmed and/or repeated his statements made to the select committee.

201.  This case demonstrates that the principle stated in Jennings v. Buchanan is far from universal—each case is decided on very specific facts. The transcripts of the FA's inquiry showed that Lord Triesman had been careful not to go beyond what he had previously said to the select committee: for example, "my evidence in respect of this issue is set out in the transcript of the statement that I made to the Culture, Media and Sport Committee". Moreover, the judge ultimately ruled that the occasion (Lord Triesman's evidence to the FA's inquiry) was itself one of qualified privilege, and that there was no case in malice that could be left to a jury at trial.[187]

202.  These cases appear to have left Members of both Houses unsure of the extent to which they can subsequently repeat or refer to statements made by them in Parliament (statements which, as proceedings in parliament, are themselves protected by absolute privilege). The Government, on the other hand, told us in evidence that there was no uncertainty:

"There does not appear to be sufficient lack of clarity, or problems at present to justify legislating on this matter. The case of Jennings v. Buchanan made it clear that protection was not afforded to 'effective repetition' ... it is advisable not to say anything which could be interpreted as referring to the defamatory statement in a way which adopts or repeats it outside a parliamentary proceeding ... even words so neutral sounding as 'I do not resile from my statement in the House' can be actionable where referring to a defamatory statement made in the House".[188]

203.  The Government's comments are, in our view, untenable: they go wider than the fact-specific judgment in Jennings v. Buchanan and, in so doing, could have the effect of inhibiting Members of Parliament from pursuing campaigns or raising issues of public concern outside the House. It is right that absolute privilege should be reserved to proceedings in Parliament; but Members do not work only in the Chamber—their public duties extend to their relationships with constituents, to speeches, and to interactions with the media, and it is not right that they should be inhibited in performing these duties by fear of court proceedings. It is essential that the same qualified privilege that we have outlined above, in our recommendations regarding the replacement of the Parliamentary Papers Act 1840, should apply to parliamentarians themselves, in repeating or commenting on speeches made in Parliament.

204.  In practice, this would mean that a Member who, for instance, published on his website links to his contributions to debates, whether in the online version of Hansard or the webcast of the sitting, would enjoy absolute privilege—while the specific link might be to the Member's personal speech, that speech would be part of a file in which the entire day's sitting or webcast (both issued under the authority of the House) was contained. If, on the other hand, the Member reproduced the verbatim text of a speech (that is, an extract from Hansard), the protection would be qualified, so any claimant would have to prove malice in order to bring a successful suit. In normal circumstances (for instance, a collection, whether printed or online, of the Member's speeches on a variety of subjects), it would be very unlikely that malice could be proved.

205.  On the other hand, we acknowledge the risk that, just as conferring absolute privilege upon reports of proceedings could encourage the media to channel defamatory or other unlawful content through Members, thereby opening the door to unlimited publication, so extending absolute privilege to the repetition by Members outside Parliament of statements made by them in the course of proceedings might create a temptation for Members to make reckless or defamatory statements in the course of debate, with a view to repeating them outside. This could bring parliamentary proceedings themselves into disrepute.

206.  So while we share the concern of our colleagues in New Zealand and Australian legislatures at the potentially chilling effect of Lord Bingham's judgment in Jennings v. Buchanan, we do not under-estimate the complexity of legislating to extend Members' absolute privilege of freedom of speech beyond actual proceedings in Parliament. Every case will be unique, and cases where Members simply refer neutrally to speeches made in Parliament may shade into others where they "have nothing to add", "do not resile from" or "re-affirm" those speeches. We doubt that legislation to codify these imperceptible differences of emphasis is either feasible or desirable.

207.  We recommend that the statutory provisions which we have proposed in respect of the reporting of parliamentary proceedings should also confirm, for the avoidance of doubt, that Members of either House enjoy the same protection as non-Members in repeating or broadcasting extracts or abstracts of proceedings in Parliament.


156   Report from the 1999 Joint Committee on Parliamentary Privilege, paragraph 340 Back

157   Stockdale v. Hansard [1839] 112 ER 1160 Back

158   Report from the 1999 Joint Committee on Parliamentary Privilege, paragraph 342 Back

159   Q 97 Back

160   Wason v. Walter (1868-69) 4 QB 73 Back

161   Report from the 1999 Joint Committee on Parliamentary Privilege, paragraph 360 Back

162   Defamation Act 1996, schedule 1, as amended by section 7 of the Defamation Act 2013; see also the Report from the Joint Committee on the draft Defamation Bill, Session 2010-12, HL Paper 203-I/HC 930-I Back

163   Q 95 Back

164   Report from the 1999 Joint Committee on Parliamentary Privilege, paragraph 360 Back

165   The Open Parliament Licence is published on the www.parliament.uk website  Back

166   Report from the 1999 Joint Committee on Parliamentary Privilege, paragraph 342 Back

167   Ibid., paragraph 363 Back

168   Report from the 1999 Joint Committee on Parliamentary Privilege, paragraph 375 Back

169   Report from the Joint Committee on the draft Defamation Bill, Session 2010-12, HL Paper 203-I/HC 930-I, paragraph 51 Back

170   Report from the Joint Committee on Privacy and Injunctions, Session 2010-12, HL Paper 273/HC 1443, paragraph 241. Back

171   Written evidence from Lord Lester of Herne Hill, paragraph 8 Back

172   Written evidence from the Newspaper Society Back

173   Q 95 Back

174   Cm 8318, paragraph 311. Back

175   Ibid., paragraph 312 Back

176   Quoted by Lord Lester of Herne Hill in his written evidence at paragraph 4 Back

177   Q 226 Back

178   Ibid. Back

179   Written evidence from Lord Lester of Herne Hill, paragraph 9 Back

180   Government Response to the Report from the Joint Committee on the Draft Defamation Bill (Cm 8295), paragraphs 91 and 92; Cm 8318, paragraph 311 Back

181   Cm 8318, paragraph 313 Back

182   Q 103 Back

183   Jennings v. Buchanan [2004] UKPC 36 Back

184   Jennings v. Buchanan [2004] UKPC 36, paragraph 20 Back

185   QQ 133, 135; see Report of the New Zealand House of Representatives Privileges Committee, Question of privilege relating to the exercise of freedom of speech by members in the context of court orders, May 2009, I.17A, pages 6 and 7 Back

186   Q 182; see 134th Report (2008) from the Australian Senate's Committee of Privileges and Report No. 3 (2006) from the Western Australia Legislative Assembly Procedure and Privileges Committee, Effective repetition: decision in Jennings v. Buchanan  Back

187   Dato Worawi Makudi. v. Lord Triesman [2013] EWHC 142 (QB) Back

188   Written evidence from the Deputy Leader of the House of Commons, paragraph 12 Back


 
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