CHAPTER 8: PUBLICATION OF PAPERS AND REPORTING OF
339. Two topics are separate from the mainstream
of parliamentary privilege: publication of papers, and reporting
of parliamentary proceedings. The immunity attaching to these
activities derives from the common law and from statute, not the
law and custom of Parliament.
340. Parliamentary privilege does not cloak
parliamentary publications with any form of protection. This was
decided in 1839 in the celebrated case of Stockdale v Hansard,
where Messrs Hansard printed by order of the House of Commons
a report prepared by the inspector of prisons. The inspector's
report described as indecent and obscene a book on anatomy found
in Newgate prison library. Mr Stockdale, the publisher of the
book, sued for libel. The court held that parliamentary privilege
protected papers printed by order of the House for the use of
its own members, but that this protection did not extend to papers
made available outside the House to members of the public.
Parliamentary Papers Act 1840
341. The Parliamentary Papers Act 1840 was
passed to reverse this decision. Parliamentary freedom of speech
would be of little value if what is said in Parliament by members,
ministers and witnesses could not be freely communicated outside
Parliament. There is an important public interest in the public
knowing what is being debated and done in Parliament.
342. Section 1 of the 1840 Act provided
that any civil or criminal proceedings in respect of a `report,
paper, votes or proceedings' published by order of either House
shall be stopped (`stayed'). Hansard is the best known
example of such a report. Section 2 conferred similar protection
on copies of such publications. Section 3 conferred a lesser degree
of protection on `any extract from or abstract of' such publications.
An extract or abstract, when published in good faith and without
malice, is immune from civil and criminal liability. An abstract
means a summary or epitome. The Act was drafted in a somewhat
impenetrable early Victorian style. The text of the Act, as subsequently
amended, appears in annex H.
343. Apart from Hansard, both Houses
publish many papers relating to their own proceedings or those
of their committees, such as committee reports. These papers are
protected under sections 1 and 2 of the 1840 Act. The House of
Commons, but not the House of Lords, also orders many other types
of paper to be printed. These are predominantly papers laid before
the House either by a minister of the Crown, or on behalf of the
Comptroller and Auditor General or one or other of the parliamentary
commissioners, to meet a statutory requirement or to comply with
an order of the House. Between 7 May 1997 and 30 June 1998, 432
such documents received a printing order. Some of these papers
were directly connected with the work of the House, such as public
expenditure estimates. In other cases the connection was less
direct. A large category of `Act papers' consisted of reports
and accounts of government or other public bodies.
344. In both Houses the order to print and
the printing number appear on the document as evidence that it
has been formally received by the House and that the House has
ordered its publication. In the House of Commons, printing numbers
for House papers and for papers laid pursuant to Act are allocated
by the Journal Office at the request of a committee or the government
department responsible for laying the paper before Parliament.
A printing order is entered in the Votes and Proceedings on the
day the paper is laid before the House. In the House of Lords
there is a similar procedure which differs in its details, but
with the important exception that the Lords only orders the printing
of its own documents.
345. As the Clerk of the House of Commons
pointed out in a memorandum, the practice of giving Commons printing
orders to publications presented to the House is far from new.
Presenting papers to the House of Commons is a well-established
means used by government to publish its documents. The House of
Commons has long insisted that it should be fully informed by
government and should be the first to be informed. In the nineteenth
century orders for the return of official papers were made frequently.
Today, many statutes contain a requirement that papers, usually
annual reports and accounts, should be laid before Parliament.
The case of Stockdale v Hansard referred to above concerned
a report presented to Parliament by the inspector of prisons in
accordance with statute. The annual report of the chief inspector
of prisons is still required by statute to be laid before Parliament
and is ordered to be printed by the House.
Now, as a result of the 1840 Act, this report enjoys absolute
346. As already noted, the 1840 Act owed
its origin to Stockdale v Hansard and the risk of defamation
claims in the courts. Today, few government papers seem likely
to be the subject of actions for defamation. Many are laid before
Parliament `by command of Her Majesty'. The responsibility for
presentation is that of the minister in charge of the relevant
department. These `command papers' include statements of government
policy (`white papers') and policy proposals issued for consultation
(`green papers') but they may be on any aspect of government policy.
Despite two court decisions to the contrary at the turn of the
century, the generally accepted view is that command papers are
not printed by order of the House and so do not fall within the
347. There do not appear to have been any
defamation cases relating to command papers since early this century.
However, the government still has a means available to invoke
the protection afforded by the 1840 Act. When a government minister
considers that a document, typically a report of an inquiry into
a matter of public concern, may be subject to libel action, it
is often presented not as a command paper but in response to a
motion (which may not be opposed by other members) moved in the
House of Commons by a minister. Such `unopposed returns' are always
ordered to be printed by the House of Commons. This procedure
is used, on average, two or three times a year.
It is only used where the public interest in publishing the report
outweighs the public interest in withholding the report because
of the potential damage to individuals or companies.
348. One of the themes of our report is
the importance of confining the absolute legal immunity afforded
by parliamentary privilege to those areas which need this immunity
if Parliament is to be effective. This principle should apply
as much to the immunity afforded by the 1840 Act as to the immunity
given to proceedings by article 9 of the Bill of Rights. The extent
to which the House of Commons currently grants this privilege,
as a matter of course, to papers laid before it under statute
contradicts this principle.
349. As the written evidence received by
the Joint Committee demonstrates,
there are several reasons why certain categories of papers have
regularly been given a printing order. These include the coherent
ordering by the House of its own papers for the current session,
maintaining the continuity of an established series of documents,
exercising control over the style and format of documents, and
ensuring the availability of papers for members and the public.
Conferring the protection given by the 1840 Act has often been
an incidental consideration when printing orders are sought and
granted. On the other hand, we have noted the strong views expressed
by the Comptroller and Auditor General on the legal protection
he considers necessary for his reports on departmental accounts.
Many of the reports laid under statute contain these accounts
and it is Treasury practice, supported by the Commons committees
which deal with financial matters, that reports and accounts should,
where possible, be printed together.
350. There are occasions where the balance
of the public interest is on the side of absolute protection.
Although it is a curious survival, the unopposed return procedure
seems to fulfil a useful purpose in this connection.
We accept that the Comptroller and Auditor General's reports
to the House of Commons should not be inhibited by the risk of
actions for defamation. Similarly the reports of parliamentary
commissioners for administration, health, or for Northern Ireland
have a strong case for absolute protection. However, we find it
hard to see why the annual reports of bodies such as the Forestry
Commission or the agencies of the Ministry of Agriculture, to
take but two examples, should receive legal immunity.
351. This is primarily a House of Commons
matter. We recognise that considerations other than privilege
are involved. Disentangling practices developed over two centuries
will require detailed examination. The 1970 joint committee on
the publication of proceedings in Parliament drew attention to
the `somewhat haphazard manner' in which printing orders were
accorded to some Act papers but not others, and recommended that
rules should be prescribed. Neither House took any action on this
recommendation. In 1980 the House of Commons Journal Office sought
to institute a policy whereby printing orders would be restricted
to reports and associated papers of committees of the House and
reports and accounts accompanied by reports of the Comptroller
and Auditor General. The policy met with opposition.
352. The Joint Committee considers the presumption
should be that, unless there are strong reasons in the public
interest, no paper other than one emanating from the House or
its committees should be absolutely privileged. We recommend
that the House of Commons procedure committee should act on this
353. As already noted, the House does not
order publication of all papers laid before it. Since 1832 the
House of Commons library has maintained a series of papers known
as `deposited papers' which are formally deposited in the library
by the Speaker or by a minister for the use of members and their
Ministers place the vast majority in reply to parliamentary questions.
Deposited documents cover a wide range, including research reports,
statements issued after conferences, transcripts of radio and
television interviews, and exchanges of correspondence. Private
members may not deposit such papers. The library is not open to
the public, and the papers may therefore be inaccessible to the
media and other interested parties unless they are otherwise made
354. Deposited papers are seldom confidential
or sensitive. However, members should bear in mind that the act
of depositing a paper in the library does not constitute publication
by order of the House for the purposes of the 1840 Act. Consequently,
unauthorised publication of these papers is not protected by that
The status of deposited papers and the extent of their distribution
should be examined by the Commons procedure committee as part
of the review we recommend above.
355. Each House has the right to prohibit
publication of its debates and proceedings. This right is an aspect
of Parliament's general right to control its own affairs. Publication
of debates, especially false or misleading reports, was in the
past repeatedly declared to be a breach of privilege. In the House
of Lords, standing orders provide that the printing or publishing
of anything relating to the proceedings of the House is subject
to the privilege of the House.
On 16 July 1971 the House of Commons resolved that:
`notwithstanding the resolution of the House of 3
March 1762 and other such resolutions, this House will not entertain
any complaint of contempt of the House or breach of privilege
in respect of the publication of debates or proceedings of the
House or of its committees, except when any such debates or proceedings
shall have been conducted with closed doors or in private, or
when such publication shall have been expressly prohibited by
This resolution, which followed recommendations of
the 1967 committee, brought the rules of the House into conformity
with long-standing practice.
356. Newspaper reports are not usually taken
from Hansard. Accordingly, since they are not taken from
a report published by order of the House, they do not fall within
the (qualified) protection afforded by section 3 of the 1840 Act.
However, they do enjoy privilege, either absolute or qualified,
at common law. This was decided in 1868 in Wason v Walter.
By analogy with reports of court proceedings, a publisher of
a report of a parliamentary debate is protected at common law
from actions for defamation. If the whole debate is published
the protection is absolute; if less than the whole is published,
the protection is qualified and not available at all when the
extracts are shown to have been published maliciously.
357. This common law protection has now
been augmented by a modern statute. Under section 15 of the Defamation
Act 1996, fair and accurate reports of the proceedings in public
of a legislature anywhere in the world enjoy qualified privilege
for defamation purposes. So does a fair and accurate copy of,
or extract from, material published by or on the authority of
a government or legislature anywhere in the world.
However, this statutory provision is not yet in force.
358. Radio and television are now firmly
established as important media for communicating proceedings in
Parliament to the public. Regular sound broadcasting from both
Houses began in 1978. Televising of the House of Lords began in
1985 and of the House of Commons in 1989.
Radio signals are provided to broadcasters by a company under
contract to the broadcasting committees of each House. Arrangements
for televising the proceedings of each House are more complicated.
Television signals (that is, the pictures) are produced by an
independent operator contracted to a private company, Parliamentary
Broadcasting Unit Ltd (PARBUL). The directors of PARBUL are drawn
from both Houses and from broadcasting organisations, and the
chairman is appointed by the Speaker of the House of Commons.
PARBUL operates under licences granted by the Speaker and the
Clerk of the Parliaments. From the several cameras operating inside
the chamber of each House PARBUL, by means of a continuous signal,
makes a clean feed of sound and vision available to television
organisations and radio stations. As required from time to time,
proceedings of committees of either House are also made available
for radio and television.
359. Radio and television broadcasts, comprising
signals or copies of signals authorised by each House, might possibly
fall within sections 1 and 2 of the 1840 Act. These sections apply
to court proceedings in respect of the `publication' of reports
and proceedings. This language might be capable of being interpreted
widely as applying to publication by any means, including radio
and television, even though radio and television were unknown
Section 3 does not lend itself so easily to such a broad interpretation.
Section 3 applies to civil and criminal liability for `printing'
extracts or abstracts of reports published by order of the House.
360. To meet this difficulty, section 3
was widened by statute in 1952 to include broadcasting by means
of wireless telegraphy.
In 1990 section 3 was widened further to include any television
or sound broadcasting service.
In the ordinary way these provisions are apt to provide an adequate
degree of protection in respect of radio and television broadcasts.
The only proper source of sound and television signals is the
source authorised by each House. Hence section 3 of the 1840 Act,
as amended, is applicable. Whether the common law defence of privilege,
as decided in Wason v Walter, is also available to broadcasters
has never been determined, but it would be surprising if it were
361. There is a further complication with
sound and television broadcasting. In addition to live or recorded
broadcasts of the actual proceedings of the House or a committee,
broadcasting takes the form of radio and television reports by
others of what occurred in Parliament. Depending upon whether
the source of the information was one authorised by Parliament
or not, section 3 will or will not apply. Even if the section
3 defence is not available, here also the (qualified) common law
protection would seem to be available, together with the qualified
protection afforded by section 15 of the Defamation Act 1996 when
it is brought into effect.
Proof of improper motive
362. In one respect broadcasters, who look
for their defence primarily to section 3 of the 1840 Act (as amended),
are less favourably placed than newspapers who look to the common
law defence. In 1970 the joint committee on publication of proceedings
in Parliament drew attention to the difference in the onus of
proof of malice under section 3 of the 1840 Act and at common
law. At common law the burden of proving malice lies upon the
person who alleges it; namely the plaintiff in the defamation
proceedings. Under section 3, the printer (or, now, the broadcaster)
must prove a negative: that he was not actuated by improper motive.
363. The reason why section 3 was framed
in this way is not clear. The 1970 joint committee preferred the
common law approach.
We agree. Proof of malice is an essential ingredient in the plaintiff's
ability to recover damages. The point is not of major importance,
and in practice there seems to have been no difficulty, but if
there is to be legislation it would be useful to clarify this
area of the law.
Contempt of court and criminal liability
364. Conversely, in another respect the
press are less well placed than live broadcasters. Section 3 protects
against all civil and criminal liability, but the press generally
are not able to rely on section 3 because their reports are not
taken from Hansard. The press must rely on the protection
of the common law. The common law affords protection against claims
for defamation. It is doubtful whether the common law affords
protection against a contempt of court claim, or against prosecution
for a breach of the official secrets legislation, when a newspaper
carries a report of statements made in Parliament in breach of
a court `no-publicity' injunction or in breach of the Official
365. In practice such claims are unlikely,
but if there is to be legislation the position should sensibly
be clarified, in favour of the press. As the Clerks of the two
Houses put it: why expose the media to criminal liability for
publishing the same speech that the public can read in Hansard
366. Broadcasters are exposed to one hazard
inherent in live broadcasts. The expression `proceedings' in the
1840 Act presumably has the same meaning as `proceedings in parliament'
in article 9 of the Bill or Rights and, accordingly, does not
include comments which are made during proceedings in the House
or a committee but which do not form part of those proceedings.
In particular, `proceedings' do not include a defamatory interjection
made by another member or by a spectator in the gallery. Thus,
a broadcaster would not have the protection of section 3 if he
were to broadcast such a defamatory remark.
367. We think this is a theoretical rather
than a real risk. The sound signal from the House or committee
room is concentrated on the member (or, in a committee, the witness)
who is speaking. As for television, it is most unlikely that the
`clean feed' of television signals would include a defamatory
visual display. In practice no difficulties seem to have arisen
since sound and television broadcasting were introduced. We see
no need for any special statutory provision in respect of this
Sound and video archives
368. Archive tapes, both sound and video,
are preserved by the parliamentary recording unit for about two
years and then deposited at the National Film Archive. The tapes
are available to members and officers of both Houses, and may
be supplied on a commercial basis to broadcasters and others seeking
them for private use or other legitimate purposes, such as an
369. These arrangements and, indeed, the
very supply of sound and television signals by each House, raise
the question of how far each House and its officers enjoy protection
in respect of defamatory material made available in this way to
the public. As already noted, sections 1 and 2 of the 1840 Act
will apply if these modern methods of communication can be regarded
as `publication' for the purposes of that Act. So far as the Joint
Committee is aware, no difficulties have arisen on this score,
but this is another point that should be clarified by modern legislation.
370. Members whose speeches or questions
are reported in Hansard have an opportunity to check and
correct the transcript immediately after delivery, before the
authoritative version is published. The scope for correction is
strictly limited. If a member has made an error of substance,
he must correct it in debate or on a point of order. Transcripts
of the proceedings of each House are now made available on the
Internet on a daily basis. These daily transcripts are, necessarily,
made available before all members have had a full opportunity
to check them.
Corrections to the `daily part' are few and mainly confined to
errors in transcription or printing. The daily part is published
as the official report of proceedings on the authority of the
two Houses and, on that basis, attracts privilege under the 1840
Act, even though in due course the daily parts are superseded
by sessional bound volumes incorporating further corrections.
371. Persons who give evidence to select
committees of both Houses also have an opportunity to correct
errors in transcripts of their evidence before publication of
the official report of the proceedings. Sometimes they may amplify
their evidence in explanatory footnotes or supplementary memoranda.
The final decision on the extent of correction permitted rests
in each case with the committee. Corrections may be substantial
and are often necessary where witnesses are inexperienced and
find close questioning in public difficult and confusing. In these
circumstances it has been the practice not to make the transcript
generally available until after the witness has had the opportunity
to reflect upon it, correct it, and when necessary amplify it.
This may mean that statements made by a minister or other witness
at a committee hearing are not available on the Internet until
some weeks later, even though the proceedings of the committee
may have been broadcast live.
372. The chairman of the House of Commons
liaison committee represented to the Joint Committee that this
practice is inconvenient to members, who wish to see the text
of the minister's evidence sooner rather than later.
The House of Commons Commission also asked the Joint Committee
to look at the privilege aspects of this issue.
This is not a matter we can resolve authoritatively since it
is primarily a question of interpretation of the 1840 Act. It
would not be appropriate for the Joint Committee to presume to
give legal advice. In principle, distribution on the Internet
of uncorrected transcripts of evidence given by witnesses to committees
of the House, if ordered to be published by the House, would seem
to stand on the same legal footing as publication of the text
of members' speeches in Hansard which may be subject to
subsequent correction. In practice, however, there is a difference
to which we have drawn attention between the extent of the corrections
permitted for members' speeches and witnesses' evidence.
373. In one respect immediate publication
of committee transcripts would conflict with the Joint Committee's
report. Earlier in this report we stressed the importance of fairness
Evidence is not debate. Committees take evidence from witnesses
in order to obtain, as exactly as possible, the witnesses' opinion
or expert advice. The witnesses may not have foreknowledge of
the questions. In many cases it would be unfair to a witness to
publish widely in printed form what many will assume to be an
authoritative text of the witness's considered views, with or
without a published disclaimer. This would obviously not apply
to prepared statements made in select committees, but these are
Recommendations on reporting
374. The Joint Committee considers the protection
given to the media by the 1840 Act and the common law itself should
We consider, further, that the statutory protection 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. We recommend that the 1840 Act, as amended,
should be replaced with a modern statute.
375. The Joint Committee expresses no view
on wider issues of the law of defamation, such as the desirability
of according qualified privilege to the publication, in good faith
and after reasonably careful investigation, of comments about
political or public figures which later turn out to be untrue.
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.
387 (1839) 112 ER 1160. Back
Vol 3, p 161. Back
e.g. C J (1996-97) 45. Back
See Erskine May, 22nd ed (1997), p 87; Mangena v Edward
Lloyd Ltd (1908) 98 LT 640 appears to be based on a misreading
of the earlier case of Houghton v Plimsoll (The Times,
2 April 1874). Mangena v Edward Lloyd Ltd was followed
in the later case of Mangena v Wright  2 KB 958.
A very few command papers directly relating to expenditure (e.g.
the Estimates) are also ordered to be printed by the House of
e.g. The Narey Inquiry into the Maze Prison, CJ (1997-98) 506,
507; The Eyre Review on The Lyric Theatre in London, CJ (1997-98)
647, 649; the Legg report on Sierra Leone, CJ (1997-98) 723, 727.
See also Patricia Leopold, `The Parliamentary Papers Act 1840
and its application', Public Law, Summer 1990, p 183 and
`The Publication of Controversial Parliamentary Papers' (1993)
56 Modern Law Review 690. Back
See letter from the Leader of the House of Commons to the chairman
of the Joint Committee, vol 3, p 157. Back
See memorandum by the Clerk of the House of Commons, vol 3, p
159; letter from the Leader of the House of Commons, vol 3, p
157; and letter from the Comptroller and Auditor General, vol
3, p 158. Back
The procedure is described in paragraph 3 of the Clerk of the
House of Commons' memorandum, vol 3, p 160. Back
See memorandum by the Clerk of the House of Commons, vol 3, p
House of Commons Public Information Office Factsheet No 38: House
of Commons library deposited papers and other unpublished papers
is available on the internet at www.parliament.uk/commons/lib/fact.htm. Back
This may not be widely understood. For example, the Daily
Mail complained to the Joint Committee that reporters could
not gain easy access to the library to inspect deposited papers
and that this `anomaly' should be removed: vol 3, p 156. Back
Erskine May, 22nd edition (1997), p 206. Back
Paragraph 352. Back
Lords S. O.13 (which dates from 1699). Back
CJ (1970-71) 548. For text of 1762 resolution, see CJ 29 (1761-64)
207 (4 March 1762). Back
(1868-69) 4 QB 73. Back
Section 15 and Schedule 1, paragraphs 1 and 7. Back
First Report by the Select Committee on televising the proceedings
of the House of Lords, HL (1966-67) 190; Report from the Committee
on broadcasting etc of proceedings of the House of Commons, HC
(1965-66) 146; First Report from the Select Committee on Sound
Broadcasting, HC (1982-83) 270; First Report from the Select Committee
on televising the proceedings of the House, HC (1988-89) 141;
First Report from the Select Committee on the televising of proceedings
of the House, HC (1989-90) 265; First Report from the Committee
(1990-91) on the arrangements for the permanent televising of
the proceedings of the House, HC (1990-91) 11 and HC (1990-91)
In 1966 the then Attorney General considered it was unsafe to
assume that the 1840 Act covered broadcasts or actual proceedings
in the House: HC (1965-66) 146, p 167, paragraphs 8-9; Report,
p xviii, paragraph 43. Back
Defamation Act 1952, section 9 (1). Back
Broadcasting Act 1990, section 203 (1) and Schedule 20, paragraph
First Report of the Joint Committee on the publication of proceedings
in Parliament, HL (1969-70) 26, HC (1969-70) 48, p 11. Back
Vol 3, p 136, paragraph 22. Back
See paragraphs 97-112 above. Back
He might have the benefit of other defences, such as section
1(3) (d) of the Defamation Act 1996 (broadcaster of a live programme
with no effective control over the maker of the defamatory statement). Back
The 1969 Joint Committee on Publication of Proceedings in Parliament
made similar recommendations on sections 1 and 2 of the 1840 Act:
see paragraphs 14-16, 23-24 of its First Report (1969-70), HL26,
Hansard is not designed to be a verbatim record of proceedings.
It is based on a recommendation of the 1893 select committee for
the preparation of a report `which, though not strictly verbatim,
is substantially the verbatim report, with repetitions and redundancies
omitted, and with obvious mistakes corrected, but which, on the
other hand, leaves out nothing that adds to the meaning of the
speech or illustrates the argument': see the Second Report from
the Joint Committee on Sound Broadcasting (1976-77) HL123, HC284,
p xviii. Back
Vol 3, p 177. Back
House of Commons Commission decision of July 1998. Back
Paragraphs 234-237. Back
A similar recommendation was made in the report of the Faulks
Committee on Defamation, Cmmd 5909, paragraph 216. A Parliamentary
Privileges Act Back