Parliamentary Privilege First Report


Memorandum by the Librarian of the House of Commons

  1.  The Joint Committee, in its review of Parliamentary Privilege, may wish to be aware of the impact which issues relating to privilege have on the House of Commons Library's work on behalf of Members and others, and the possible effects on that work of any changes it may propose.

  2.  Much of the Library's work for Members is done in confidence to individual Members, in order that they can be provided with assistance and information as fully and freely as possible so as to help them reach a considered view on an issue or problem. While we accept that not all our work is given direct protection by Parliamentary privilege as such,[43] any changes to the scope and application of Parliamentary privilege might make more transparent any inherent legal uncertainties as to the application of Parliamentary or qualified privilege to our work for Members. For example, if the Committee were to recommend a detailed definition of Parliamentary proceedings, we would hope that it would not be so restrictive as to exclude work done for Members contingent upon those proceedings, and would take account of Members' other activities such as constituency work. We would not wish any changes to require us to become more circumspect in our work for Members, to add disclaimers to much of what we write or send to them, or try to insist that material we produce is not passed on to constituents and others by Members (experience suggests that this last requirement would not be enforceable). Such changes would restrict our ability to be as helpful and useful as possible to Members, and thereby reduce the quality of the service that we provide. We would, in short, be less able than at present to discharge the responsibilities that the House has given us. These are issues not only for the Library as a provider of services to the House and its Members but also as a department of the House which is in a position of employing staff who have to operate under a legal regime that is at present of some uncertainty. We have been informed by the appropriate trade unions that their members share these concerns.

  3.  Many of the Library's dealings with Members of the House, their staff, and others involve the provision or use of documentation and information that could, in certain circumstances, form the basis of legal action, ultimately in the courts. Although the Library has not often been threatened with litigation, cases have very occasionally occurred and are not inconceivable in the future. Some examples of the areas that could lead to litigation follow:

    —  Some of the Library's Research Papers might quote or reproduce extracts from published sources, such as the press, which contain references to which organisations or individuals might take exception.

    —  It is not unknown for Members to send copies of the Library's replies to their enquiries to the relevant constituents or other correspondents, in full, with the author's name included. Members often hand to the Library's research staff a dossier in connection with a constituency or similar case and ask for the researcher's views on the merits of the case. Constituents and other correspondents, and third parties who have become aware of such correspondence, have been known to take exception to passages in the Library's letters, or at the forwarding of what they might regard as personal or confidential material, and have protested or even threatened litigation.

    —  The Library's Public Information Office might, on request, provide members of the public with text from a Parliamentary paper or document such as an Early Day Motion which could be regarded outside the House as being defamatory or otherwise potentially actionable.

  4.  Some questions related to the subject of privilege, and concerning the Library's work and holdings, have no clear answers at present. For example, the Library sometimes holds books and other documents—including those available in electronic form—that subsequently become the subject of injunctions and the like, occasionally leading to their withdrawal from sale. An example is Peter Wright's book Spycatcher, which was banned from sale but partly available in electronic form through databases used by the Library (extracts were published in the Washington Post). On this occasion advice was sought and, with the Speaker's authority, the Library made available extracts from the book to many Members. Cases of this sort are, however, often not clear-cut, especially with different legal jurisdictions in the UK and the availability of material through the Internet, as the recent case of the "Minister's son" demonstrated. The Library has, though, generally retained such books or documents both to assist the Speaker when they are discussed in the House and more generally as sources for Members who require as full a service as possible to support them in their Parliamentary duties and who wish to be informed of the policy issues involved in those legal proceedings. Recently, the development by the Library of a press comments database has encountered a related problem. In seeking permission from individual newspapers for their articles to be included in the database, the Library has been asked by some (both in the UK and overseas) for assurances that any articles that become the subject of a court case should be withdrawn from the database. It is a moot point as to whether such assurances can or indeed should be given, in the light of the Library's role in informing Members. The examples given here demonstrate both the existing ambiguities relating to the Library's work in relation to privilege and the possible need, should there be changes to the scope of privilege, for the Department to reconsider its current practices.

  5.  In situations such as those alluded to above, it may be that the Library, in conjunction with the Information Committee, will have to develop and codify guidelines so that both the department and Members can be clear about the status of documentation and the Library's work for individual Members. These would need to take account of existing guidance, such as the Speaker's ruling that all documents placed in the Library, which relate to their work in the House, should be made available to Members.[44]

  6.  A related issue is that of copyright. The Library, which is the repository (sometimes the sole or main repository) of much of the documentation used by the House and its Members, as well as a producer and publisher of much material in printed and electronic form, has continuing concerns in this field. Working under a loose cloak of privilege (legal and Parliamentary) it may be that we, and Members, do not always give full regard to all the provisions of copyright law in our daily work. In particular, the Copyright, Designs and Patents Act[45] provides that "copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings". Although the scope of this exemption appears not to have been tested in the courts, it seems likely that any change to the definition of "proceedings in Parliament" might affect the way in which this provision could be interpreted. More generally, greater transparency introduced by any changes the Committee proposes may require alterations in our work practices that could have a detrimental effect on the nature and quality of our service to Members.

  7.  The Department of the Library would be happy to supply more information to the committee, in writing or orally, if requested.

Jennifer Tanfield

Librarian

22 January 1998


43   Our understanding is that qualified (legal) privilege would normally apply to the Library's work for Members. Back

44   Erskine May, Parliamentary Practice, 22nd edition (1997) page 206. Back

45   Section 45(1). Back


 
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