Select Committee on Modernisation of the House of Commons Appendices to the Minutes of Evidence


Further memorandum from the Clerk of the House


  1.  The Editor of the Official Report has submitted a note to the Committee on permitting Members to receive transcripts of their speeches in advance of final publication of the day's Hansard. This brief paper is intended to expand on the observation in paragraph 3 of the Editor's paper that I have reservations about the suggestion. These reservations are entirely derived from my concern about the degree of protection afforded to such a publication by parliamentary privilege.

  2.  What Members say in the House is directly protected from legal consequences by article IX of the Bill of Rights. Those who, on behalf of the House, publish the written version of what is said in the House—the Official Report—are similarly protected, in this case by the Parliamentary Papers Act 1840. That Act stays legal proceedings once it has been shown that publication is by order of or under the authority of the House.

  3.  A Member who repeats outside the House what he or she (or indeed any other Member) said in the House or in a committee—even if in the same words—is not covered by parliamentary privilege. The 1840 Act will not apply. Legal privilege may afford some protection, but it is not as absolute as parliamentary privilege, and may be forfeited if the courts find that the publication of a statement was actuated by malice.

  4.  The Editor's proposal puts Members in possession of part of the Hansard record with the specific purpose of allowing them to make it available to the media, so that the possibility of court action arising from releases to the media will be greater than at present. Of course, as paragraph 3 above makes clear, even in such a situation, the Member is likely to have a convincing defence. It might be practicable to devise a means by which such independent publications could be authorised by the House, and so brought within the cover of the 1840 Act. But this would be an untested expedient in a difficult area.

  5.  The climate in the courts where concepts such as human rights come into conflict with the rights of Members, and indeed the cost of defending such an action, would lead one to recommend that the very closest consideration be given to the potential risks of the proposal. For example, there is a case currently before the European Court of Human Rights (A-v-UK) in which a former Member is sought to be held liable in damages for something said actually in the House. The court has given a preliminary judgement that the complaint is admissible. That challenge and the possible consequences of difficulty arising from the Editor's proposal are not on all fours. The preliminary decision, in a much more fundamental area, does however illustrate my observation about the difficult climate for the House which may exist in the courts.

  6.  Finally, I should mention the recommendation of the Joint Committee on Parliamentary Privilege that privilege should be codified in statute. Were that suggestion to be taken up, it might then be possible to take the necessary steps to clarify and protect the kind of publication which the Editor has in mind.

William McKay

Clerk of the House

11 June 2002

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