Parliamentary Privilege First Report

Memorandum by the News of the World

  The right of Members of both Houses to speak freely in Parliament without fear of facing defamation proceedings is a long held and cherished one. It is rightly regarded as one of the most important cornerstones of our democratic heritage. The privilege is bestowed upon Members to enable them to properly represent their constituents and to fearlessly pursue matters for the public good. The right to name names has enabled Parliament over the years to address wrongdoing, corruption and abuse of power. Equally without the privilege enjoyed by the press to report on statements made in Parliament and to disseminate that information the purpose and effect of such privilege would be of considerably less value to the public.

  The privilege is a unique one. It was granted to Parliament by itself. It is enshrined in Article 9 of the Bill of Rights 1689. But, as a self-granted right it has to be exercised with great responsibility and must not be abused. A Century before Parliament bestowed this privilege upon itself, Sir Edward Coke, in 1593 reminded Parliament that: ". . . Her Majesty granted you liberal but not licentious speech". It is a right which the News of the World fully supports and would wish to see retained. However, there are certain modifications which we would urge the Committee to consider and which we feel would be for the public benefit. These points will be addressed later in our submission. The News of the World endorses the cautionary words of Mr Speaker Bernard Weatherill in 1986. It was his belief that it is the responsibility of every MP to ensure that he uses his freedom in a way that does not needlessly damage those who do not enjoy that privilege.

  As a Newspaper we regard the right to freedom of expression as paramount. This involves not only the right of the Press to disseminate information. It also involves the right of the public to be properly informed about the actions and motives of the Government and Members of Parliament. A member of the public, be he a journalist or otherwise, should not be at a disadvantage when pursuing a legal action in Court against a Member of Parliament. The capricious use of Parliamentary Privilege cannot be justified when it is used as a shield in defamation proceedings to prevent a full examination of a Members behaviour. We urge the Committee to be mindful of the words of Lord Browne-Wilkinson in Prebble v Television New Zealand Limited (1995) 1 AC 336: ". . . to preclude reliance on things said and done in the House in defence of libel proceedings brought by a member of the House could have a serious impact on a most important aspect of freedom of speech, viz. The right of the public to comment on and criticise the actions of those elected to power in a democratic society".

  Lord Browne-Wilkinson went on a identify three potentially conflicting issues arising from Article 9 of the Bill of Rights: "There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of the electors, with access to all the relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts . . . the law has been long settled that, of these three public interests, the first must prevail". As a result the Defendants were unable to: ". . . bring into question anything said or done in the House by suggesting . . . that the actions or words were inspired by improper motives or were untrue or misleading". No doubt Lord Browne-Wilkinson stated the Law correctly.

  Whether it is in the public interest that the law should so remain is open to considerable doubt. In the light of s13 of the Defamation Act 1996, we submit that the need for change has now become overwhelming. The proper monitoring of Members' behaviour must be of manifest importance to the public at large. It is part of a newspaper's duty to monitor that behaviour.

  S13 of the 1996 Defamation Act has already limited the effect of Article 9 of the Bill of Rights. It allows MPs to waive their privileges in order to effectively pursue an action for libel. We do not challenge this right. However, it is clearly arbitrary in denying an equal right to a member of the public. We submit that proceedings in Parliament should be fully admissible as evidence in order to enable a party to an action to properly pursue his case. The News of the World supports and is encouraged by the statement by the Leader of the House that: "The basic protection of freedom of speech in Parliament is very important. However the way Parliamentary Privilege works can prevent the Courts from looking at issues where there is a public interest".

  The News of the World reiterates its belief that Parliamentary Privilege has frequently served the public well. We accept that it is a right that should not be lightly eroded, but we feel that the mechanisms need to be adapted to meet current needs and public expectations. We therefore suggest to the Joint Committee that a new body should be established. This would have the power and responsibility of recommending whether in the interests of justice or freedom of speech a Member's privilege should be waived in any particular or exceptional case. This body would be an adjunct to the Committee of Privileges, but would contain an independent element. We recommend that it should consist of Members of both Houses, a Judge and an impartial member of the public. If the Committee of Privileges considered that it might be in the public interest for privilege to be waived, they would then refer the matter to the independent committee. If its finding was that the Member's privilege should be waived it would so report to the Committee of Privileges who would then refer their recommendation to Parliament. It may well be that in order not to prejudice any existent judicial proceedings some of the committee's sittings should be held in camera. The same contempt and sub judice rules that govern the House would apply to any Parliamentary discussions.

  In relation to the proposed intent of Parliament to legislate on corruption, the News of the World would like to remind the Joint Committee of the words of Mr Justice Buckley who stated in the Greenway case: "That a Member of Parliament against whom there is a prima facie case of corruption should be immune from prosecution in the Courts of law, is an unacceptable position at the present time". The News of the World appreciates that some Commonwealth countries have set up independent commissions to investigate allegations of corruption against Ministers and Members of Parliament. Such commissions are generally headed by a Judge, sit in public and publish their findings. However, in our view the public does not expect Members of Parliament or Government Ministers to be treated more favourably when facing serious allegations of corruption or other criminal activity. We submit that a Judge and Jury are quite capable of resolving such matters. Indeed, we can think of no better vindication of a person's reputation than for someone elected by the public to be cleared of any wrongdoing by the public.

  We are living in a more open society. The public has a thirst for knowledge, they are more questioning and more demanding in the standards they require from their elected officials. There is a danger that Parliament as a whole can undeservedly be tainted because of the public's disenchantment with the "sleaze" activities of a minority of its members. The public need to be re-assured that Parliament has not granted its members unnecessary powers and privileges. The need for more openness has been recognised by the Government's decision to incorporate the European Convention on Human Rights into domestic law and to introduce a Freedom of Information Bill.

  Article 10 of the ECHR gives: "The right to receive and impart information and ideas without interference by public authority". However, it is always a difficult challenge to balance the conflicting rights of privacy and the public's right to information and knowledge. Accordingly, notwithstanding the European Commission finding (Lord Spencer v the British Government, 16 January 1998) in which the Commission implicitly accepted the Government's argument that British Law provides adequate remedies for protection of privacy and allows for claims of breach of confidence to be heard in British courts, the News of the World is resolute in its conviction that the balance between the rights of privacy and the public right to information is best achieved through a responsive, flexible self-regulatory body such as the Press Complaints Commission.

  The Government's incorporation of the ECHR will, we believe, bring Privacy under the remit of the courts. The original intention of the ECHR was to protect the individual from the might of the state. Unless amended, the Human Rights Bill will have a detrimental effect on freedom of expression, opening the way to privacy law "through the back door".

  Thus, while the News of the World applauds a measure (Article 10, ECHR) that would appear to extend and strengthen the right to freedom of expression, we believe the provisions in Article 8 ECHR are both unnecessary and contrary to public interest. We have fears that their awareness of Article 8 may cause Members of Parliament to speak less freely. We find it difficult to reconcile the principles which underline both these provisions with the way that Parliamentary Privilege can currently be readily and freely invoked. The ECHR and a possible Freedom of Information Act, which we welcome, save for our stated reservations, gives an added impetus for Parliament to adapt its own rules to ensure that the very body that has created far-reaching new laws does not run foul of their spirit.

24 January 1998

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Prepared 9 April 1999