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
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
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
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