Parliamentary Privilege First Report

Further memorandum by the Clerk of the House of Commons


  1.  I understand from the Commons Clerk to the Joint Committee that it proposes to consider the application of the Parliamentary Papers Act 1840 to House and Government papers. The Joint Committee would, in particular, like me to clarify:

    i.  What categories of papers are ordered to be printed by the House of Commons?

    ii.  What are the criteria upon which such orders to print are given?

    iii.  What are the procedures for obtaining such orders?

    iv.  What are the problems arising from current procedures? What solutions would I suggest?

  2.  The answers to the specific questions are as follows:


    i.  With few exceptions all papers ordered to be printed consist of two broad categories:

      —  papers emanating from the House itself, from a Committee or other body appointed by the House; or which relate to matters directly relevant to the House or its Members (eg Members' pensions)

      —  papers presented on the authority of the Government. These are almost invariably papers which the Government is required by statute to lay before the House (and are therefore known as "Act Papers".[82] Government statements of policy (White Papers) and a miscellany of other documents are laid as Command Papers and are not generally ordered to be printed by the House.[83]


    ii.  Typically, House papers are tabled by members carrying out a specific function on behalf of the House (eg the Chairman of a Select Committee making a report from that Committee). Some papers (eg reports of the Comptroller and Auditor General or the Parliamentary Commissioner for Administration; both Officers of the House) are laid on their behalf by the Clerk of the House. The Speaker also lays certain papers (eg reports of the House of Commons Commission). The large majority of Government Papers (including those of Agencies and Non Departmental Public Bodies) are laid by Ministers of the Crown: some departmental audits are, however, presented to the House by the Comptroller and Auditor General and therefore laid upon the Table by the Clerk. A private Member, acting in that capacity, has no right to formally lay a paper.

    All House papers customarily receive an order to print. Many papers required to be laid by statute also receive an order to print including virtually all papers relevant to the financial responsibilities of the House. In most cases Departments take the view that it is more appropriate for papers they are required to lay before the House of Commons to be published under the authority of the House than issued as a Departmental paper.


    iii.  Printing orders are given automatically to House papers, and to other papers at the request of the Department concerned. All papers presented by the Comptroller and Auditor General, by the Parliamentary Commissioner for Administration and by other Parliamentary Commissioners established by statute also regularly receive orders to print. A printing order is entered in the Votes and Proceedings on the day on which the Paper is laid before the House and appears as part of the entry recording that it has been formally received by the House. No statistics are routinely kept of the number of printing orders given to different categories of paper. An analysis of the orders given in the current session to June of this year is given in Annex A.


    iv.  One might question whether it remains necessary for so wide a range of Government papers to be absolutely protected from legal action by the 1840 Act. The Joint Committee may recall that the Clerk of the Parliaments and I drew attention to this matter in our memorandum to the Committee. It is considered further in paragraphs 8 to 15 below.


  3.  Apart from Act Papers there are two other categories of Papers which it is relevant to consider:

    (i)   Command Papers—It is not established with any certainty whether or not the Parliamentary Papers Act 1840 applies to Command Papers. In the last case in the courts in which the issue was considered[84] it was accepted that papers laid before Parliament by a Minister "by Her Majesty's Command", and not published until so laid, were protected by the Act. This is, perhaps, a surprising interpretation of the Act. The matter was examined in 1970 by the Joint Committee on the Publication of Proceedings in Parliament. Their opinion was that "the present situation is unsatisfactory and requires clarification". After careful consideration the Joint Committee decided that "Command Papers should not, as such, receive the protection afforded by the 1840 Act" (paragraph 56). No action has since been taken to clarify the position, but Departments generally act on the basis that the 1840 Act does not apply to Command Papers. In our memorandum the Clerk of the Parliaments and I suggested to the Committee that it might recommend legislation to exclude Command Papers definitively from the 1840 Act.[85]

    (ii)  "Unopposed Returns"—Governments may also lay papers by an older procedure: by moving a motion in the House for the "unopposed return" of the document they wish to lay before the House and be printed on its authority. The large number of papers now required to be laid by statute, combined with the more frequent use of "Command Papers" might have been expected to make this procedure obsolete. It has survived very largely[86] because of uncertainty over the extent to which Command Papers have absolute privilege. The procedure of an "unopposed" return was introduced originally to avoid the inconvenience of the House of having formally to consider motions by ministers for returns of largely uncontroversial information from their own Departments. It is now used by ministers almost exclusively in order to ensure that a report of a ministerial inquiry will not be subject to actions for defamation. Use of the procedure is infrequent. It is not popular with Departments since it involves three stages: a motion for the return in the name of the minister must be tabled (like any other motion) on a sitting day, moved (like any other motion) on a sitting day, and the return made (by publication of the report) on a sitting day. Most typically the report is of such moment that it is published on the day on which the motion is moved (though this is not essential) and the Minister will make a statement upon it to the House at 3.30 pm. Although other Members cannot oppose the motion, the procedure ensures that Members receive clear notice of presentation. A list of recent unopposed returns is set out in Annex B.


  4.  There are some considerations which the Joint Committee may wish to bear in mind when looking at the current practice and possible changes.

  5.  At lease since the beginning of the nineteenth century, laying papers before the House has been as much a means of achieving wider publication as of informing the House. There are two strands in the development of the practice. The first is the most obvious: the House needed a means to inform not only its own members but the wider public of its proceedings, particularly as it became more dependent on an expanding electorate and an informed press. The second strand may be the older one: Governments have long needed to place before the House and publicise more widely a very wide range of information. Much of this information relates directly to the role of the Commons in granting supply, raising revenue, and in scrutinising the accounts afterwards. But not all. For a very long time, governments have also presented to the House a much wider range of documents. The mid-nineteenth century Journals provide many examples of printed papers relating to such matters as defence, law and order, or events in British possessions overseas, as well as a great deal of statistical material.

  6.  Thus, presenting papers to the House of Commons has long been a primary means of government publication. This has been encouraged by the repeatedly expressed view of the House of Commons that it must be kept fully informed and that it must be the first to be informed. Motions for the return of papers (often moved by Ministers) have given way increasingly to Command Papers and to papers laid in response to a requirement in statute, but the principle remains the same. It is therefore simplistic to look at Stockdale v Hansard in strictly parliamentary terms. That case arose in relation to a report laid upon the Table by the inspector of prisons as required by statute and published as a matter of course on the authority of the House. The annual report of the Chief Inspector of Prisons is still ordered to be printed by the House and enjoys the protection of the 1840 Act. While it may seem logical that that Act should apply only to papers emanating from Parliament this was never the exclusive, or even the primary, purpose of its authors.


  7.  There are other considerations. An order to print a paper has the effect of including that paper within the series of Parliamentary papers for the session: indeed another term for them, more commonly used in the past than in the present, is "sessional papers". Inevitably the Joint Committee will be looking at the issue of a printing order primarily within the context of the absolute legal immunity conferred upon that paper. This has never been the main reason for including a paper within the House of Commons printed series. More important has been the coherent ordering by the House of its own papers, and of the papers required by statute to be laid before it, and maintaining the continuity of established series of documents. (The Joint Committee may wish to take evidence from the Library on this aspect). An order to print affirms the status of a paper as a parliamentary paper, and gives the authorities of the House an appreciable measure of control over its presentation and format. For example, although the recently adopted practice of incorporating audited accounts within the reports of Executive Agencies and other public bodies is adding a large category of documents to those receiving printing orders, the fact that they thereby become parliamentary papers has enabled the authorities of the House, in conjunction with the Treasury and the National Audit Office, to impose conditions in respect of their content, format, and availability. Many Act Papers place before the House information which is directly relevant to the work of the Departmental Select Committees. The requirements of these Committees, too, influence their presentation and content. Finally, and perhaps most important of all, by giving an otherwise departmental document the status of a House paper, the House ensures its ready availability to members, and its availability to the public nationally through the House's publisher. Members are frequently concerned by the lack of availability of public documents which only appear ephemerally or which have limited circulation.


  8.  In 1970 the Joint Committee on the Publication of Proceedings in Parliament set itself the following questions:

    (i)  Should Act Papers be protected by absolute privilege in respect of any defamatory matter they may contain, so that no action whatever can be brought in respect thereof?

    (ii)  Should a differentiation be made so that those Act Papers which are ordered to be printed and published by order or under the authority of either House would be entitled to absolute privilege under the 1840 Act: while all others would receive qualified privilege? (paragraph 42)

  9.  The Joint Committee considered that there was no reason for withdrawing from Act Papers published by order or under the authority of the House the absolute privilege they already attract under the 1840 Act. "The same reasons which led Parliament to pass that Act following upon the decision of the Court in Stockdale v. Hansard apply to such papers". It saw no reason why absolute privilege should be extended to other Act Papers. However it drew attention to "the somewhat haphazard manner" in which printing orders were accorded to some Act Papers, but not to others and recommended that "rules should be prescribed to regulate this matter". (paragraph 44). The Joint Committee had not taken detailed evidence on this point; nor had they taken into account consideration of factors other than privilege which might affect whether a paper might be included within the sessional series of House papers. The recommendation was never formally adopted by the House of Commons.

  10.  Following a review of practice relating to the laying of papers[87] in the 1970's, the Journal Office sought in 1980 to institute a policy by which printing orders would be restricted to Act Papers in the following broad categories:

    (a)  reports and associated papers of committees of the House itself;

    (b)  reports and accounts which were accompanied by Reports of the Comptroller and Auditor General.

  11.  This policy met with strong resistance both from Government Departments and from within the House. Consequently it had only limited success. Departments tended to take the view that a statutory requirement to lay a document before the House of Commons implied that it ought to be published on the authority of that House, and be within the numbered series of "sessional papers". The Vote Office and the Printed Papers Office drew attention to the fact that they received parliamentary papers for distribution to Members as a matter of course, but papers not in the parliamentary series were not always readily provided by the originating departments, or in the quantity required for distribution. The Libraries drew attention to the administrative advantages in handling properly numbered documents and to the interruption that would occur in established series of annual papers. Parliamentary papers together with Command Papers were in those days given much higher printing priority than Departmental papers. Although the privatisation of HMSO has brought changes, it remains the case that parliamentary publications are very often more readily available to Members, and to members of the public, than departmental papers; and remain available for a longer period of time.

  12.  It might be that a new attempt should be made to reduce the number of papers which receive a printing order. The criteria adopted by the Journal Office in 1980 might not be entirely appropriate at a time when, as has been noted above, the number of agency and other reports and Accounts incorporating reports by the Comptroller and Auditor General is rapidly increasing as a result of the policy of successive Governments (encouraged by Select Committees) to ensure that newly created agencies and other bodies are properly accountable to the House. It is difficult to think of other criteria which would not be arbitrary to some extent or which would not create new anomalies.

  13.  An alternative may be to separate the granting of absolute privilege from the classification of a paper as a parliamentary paper. Absolute privilege might be confined to papers originated by the House itself or otherwise forming part of proceedings (eg evidence to a Select Committee, Petitions). It might be that such a change would lead to a disintegration of the system of professional papers, unless the House ordered that certain categories of papers should continue to be laid as parliamentary papers and be subject to a measure of control by the House in content and format. This difficulty does not seem insuperable though finding a solution would require careful and detailed examination. The unopposed return procedure might be used by the Government in those cases where the public interest requires protection. The risk would be that many Act Papers might simply be presented as returns.

  14.  I make this suggestion with some diffidence; clearly Government departments will have their own views and should be consulted. The unopposed return procedure is not open to the Comptroller and Auditor General (or his Northern Ireland counterpart) or to the Parliamentary Commissioner for Administration, or other Parliamentary Commissioners, all of whom have special responsibilities towards the House. Since a substantial number of papers are ordered to be printed because they contain reports by the Comptroller and Auditor General, and since the National Audit Office also publishes an increasing number of audit reports and value for money (see Annex A) his views are especially important.

  15.  Opinion generally is more conscious now than in the past of the need to limit absolute legal immunity of the kind provided by the 1840 Act. While the Official Report, and Select Committee reports and evidence should continue to enjoy the protection of the Act, its application seems less justifiable in other cases: eg a small agency whose affairs are seldom considered by Parliament. I hope that the Joint Committee will draw attention to this apparently needless extension of parliamentary immunity and (since it is almost exclusively a House of Commons problem) make recommendations which might form the basis of a broader inquiry into parliamentary papers by the Procedure, Administration or Information Committee of that House.

W R McKay

11 November 1998

Annex A

  The total number of printing orders for papers made by the House of Commons and recorded in the Votes and Proceedings between 7 May 1997 and 30 June 1998 is as follows:—


Select Committee Reports - 274

Daily parts of evidence of Select Committees - 581

Bills: Minutes of Proceedings of Standing Committees: Reports of Joint Committee on Consolidation &c - 47

(Note: Departmental observations on public petitions printed in the Votes are not counted)

Report on a Measure by the Ecclesiastical Committee - 1


1. Papers relating to supply and public finance (Financial Statements, Estimates, Appropriation Accounts, etc) - 52

2. Papers subject to affirmative resolution by the House - 20

3. Parliamentary Commissioner for Administration, Health Services Commissioner; Parliamentary Ombudsman for Northern Ireland and Northern Ireland Commissioner for Complaints - 14

4. The Law Commissions - 10

5. Reports from statutory bodies (including Executive Agencies, Non Departmental Public Bodies, Trading Funds required to be laid by Act and incorporating Reports of the Comptroller and Auditor General[88] - 104

6. Miscellaneous Accounts ordered to be laid by statute together with reports of the Comptroller and Auditor General thereon - 121

7. Other Reports laid by the Comptroller and Auditor General (and the Comptroller and Auditor General of Northern Ireland) (mainly audit reports) - 63

8. Audited accounts (by the Comptroller and Auditor General) relating to Members - 3

9. Report by the Comptroller and Auditor General on the Annual Report of the European Court of Auditors - 1

10. Miscellaneous reports required to be laid by Ministers by statute - 40

11. Returns to Addresses or motions for unopposed return -- 4

(Two of these returns related to the Contingencies Fund; see Annex B)

Annex B

Session 1992-93
Date -- Journal page references[89]
On motion:
Bank of Credit and Commerce International: 22 Oct -- 202,203
Contingencies Fund:4 Feb -- 398,400
Serious Fraud Office:1 Jul -- 720,722
On Address:
Election Expenses:15 Apr -- 559,560
Fife Child Care Inquiry Report:27 Oct -- 208,211
Maguire Case (Second Report):3 Dec -- 289,291
Nimmo Smith/Friel Report:26 Jan -- 369,372
Orkney Inquiry Report:27 Oct -- 208,211
Session 1993-94Date -- Journal page references
On motion:
Contingencies Fund:28 Feb -- 205,207
On address:
May Inquiry (Final Report)30 Jun -- 417,419
Session 1994-95Date -- Journal page references
On motion:
Barings18 Jul -- 462,465
Contingencies Fund:8 Mar -- 205,209
On Address:
Session 1995-96Date -- Journal page references
On motion:
Contingencies Fund:1 Apr -- 274,285
On Address:
Child Care Procedures and Practice in North Wales: 17 Jun -- 414,417
Export of Defence and Dual-use Goods to Iraq: 15 Feb -- 171,172
Session 1996-97Date -- Journal page references
On motion:
Session 1997-98Date -- Journal page references[90]
On motion:
Contingencies Fund:3 June -- 38, 42
Contingencies Fund:14 May -- 566,568
On Address:
Maze Prison (Narey Inquiry)2 April -- 506,507
Eyre Review (Lyric theatre)30 June -- 647,649
Legg Report (Arms Sales to Sierra Leone) 27 July -- 723,727

82   As will be seen from Annex A accounts laid by statute constitute one significant category of printed papers. Another major category is comprised of reports on the activities of departmental bodies and executive agencies. These incorporate accounts audited under statute by the Comptroller and Auditor General (who is an Officer of the House of Commons with particular responsibility to the Public Accounts Committee) and therefore obtain a printing number. The only category not laid by statute are papers laid by unopposed return (paragraph 3). Back

83   A very few Command Papers directly related to expenditure (the Vote on Account, the Estimates) are also ordered to be printed by the House. Back

84   Mangena V Edward Lloyd (1908) LT. 98. 640. Back

85   Memorandum of the Clerk of the Parliaments and the Clerk of the House of Commons, paragraph 41. Back

86   Until comparatively recently a variety of annual statistical and financial information was laid before the House under the procedure. As can be seen from Appendix B a few cases survive. The Financial Statement and Budget Report is also laid in response to a motion for a Return moved by the Chancellor of the Exchequer. Back

87   One result of the review was to end a common Departmental practice of laying parliamentary papers in the Votes and Proceedings Office in "dummy" (ie incomplete) form. Back

88   Including Northern Ireland Accounts reported on by the C and AG (Northern Ireland). Back

89   The first page number refers to the moving of the motion or Address, the second to the record of the order to print in the papers appendix. Back

90   Page references are to the first proof of the 1997-98 Journal. Back

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