Parliamentary Privilege Minutes of Evidence

Examination of Witness (Questions 420 - 439)



  420. But he would have no protection at all, would he, against a constant flow of vexatious litigation and that would be very liable to discourage him, would it not, from doing his duty?

  A. I think there is really no answer to the risk of vexatious litigation. Judges get writs issued against them with quite considerable regularity. I do not think it would be easy to introduce a rule that would eliminate that risk. But most people do not litigate for the fun of it and once they are told they are going to lose and that it will be expensive, they drop it. I am not alive to the fact that the risk you are alluding to is a particularly prevalent mischief. Perhaps it is.

  421. If there were absolute privilege the proceedings would be summarily terminated, would they not? If there was qualified privilege there would always be a constant risk that the matter would go to trial one way or another.

  A. It could do.


  422. That may be the present position but I am not sure that at the moment there is any general acceptance that a communication by a whistle-blower to a Member and a Member onwards is the subject of Article IX privilege.

  A. It is certainly my understanding that it is not. If the mischief were to be prevalent it might be necessary to think about it. I do not think what I have described is any change in the law. It is what the law now is.

Mr Benton

  423. Lord Chief Justice, I think your assumption is right that most MPs act in good faith in the main. As a Member you formulate an opinion on what you receive, whether by written or verbal communication, and very often find that whilst you might be unsure of an answer or the direction in which to go, you do from time to time give the benefit of your advice to, say, a constituent, if you do not take more direct action by means of referring to a Minister or one of the parliamentary procedures. I wondered if, when you referred to qualified privilege, you were thinking in terms of, for example, the giving of advice to a constituent on a particular problem and, based on the advice given, it then extends to another party into a separate court action, nothing to do with the parliamentary proceeding, but at the same time much of what takes place hinges upon the advice that I have given. Do I interpret correctly that you would say in that given situation, where in fact I could be judged as the person who has given the wrong advice, that would be subject to the qualified privilege that you are talking about?

  A. Yes. I think the principle is that qualified privilege attaches to any complaint made by a person to a person who has interest to receive it and to anything which that person does to communicate in a suitable court. Taking an entirely different example, if I think that a jockey has pulled a horse in a race and deliberately avoided winning for reasons best known to him or the horse's owner, and I write to the Jockey Club and make that suggestion, assuming that the Jockey Club is the appropriate person to write to (which I think it would be), I would not be liable if it represented my genuine belief. If on the other hand I was another jockey who had it in for this particular jockey because he was a champion jockey and had pipped me for the title, then if I did not have belief in the truth of what I was saying, it would be malicious and false and I would not be protected, but nor should I be in my view.

Lord Waddington

  424. I am a bit worried about the position regarding the reporting of what has happened in Parliament. Let us go back to your original example. The MP receives a letter from a constituent who says that he believes child abuse is going on in a children's home and the MP goes straight along to the floor of the House and makes a speech in the course of which he says, "Yesterday I received a letter from a constituent alleging that in such and such a children's home the most appalling child abuse is going on", and there is then a programme on television and a bald announcement that yesterday on the floor of the House of Commons David Waddington alleged on the basis of what he had heard from a constituent that it was believed that abuse was going on in a particular children's home, what then is the protection afforded to that broadcaster and what should be the protection in your view?

  A. I think the protection accorded it is for a fair and accurate report of proceedings in Parliament and if it was a fair and accurate report of what the Member had said on the floor of the House, then that is certainly the subject of qualified privilege and perhaps of absolute privilege, but I may be wrong about that, but certainly there is protection for fair and accurate reports of proceedings in Parliament. I would think it unfortunate if that train of events took place and I think it would be very much preferable if a Member of Parliament, instead of making the accusation on the floor of the House, made the communication more discreetly to an appropriate quarter, seeking that the matter should be investigated and looked into. I think one has to be very careful about any legal restraint on absolute privilege for the statements made in Parliament on the floor of either House.

Mr Tyler

  425. May I just pursue Lord Waddington's point? At the moment if in an adjournment debate a Member of Parliament made some such accusation and introduced such material that he or she had, there would surely be absolutely nothing to stop the broadcasters simply taking the transmission from the floor of the House straight out, and that is where broadcasting has changed the proceedings somewhat. Until the broadcasting of radio and television, Hansard was able to sanitise to some extent what was being said. Since live broadcasting that is not true. If the Member then went straight off to the Newsnight studio and repeated the allegation, clearly that would be then only qualified privilege.

  A. No, I think the Member would have no privilege at all then, because he would not be making the complaint to an appropriate place to get the matter investigated or put right. He would be, on your example, re-publishing a statement in an unprivileged environment that he had earlier made in a privileged environment. I think there is a distinction between his repeating it and a fair and accurate report of proceedings in Parliament.

  426. I think we all need to know this. We may not be all as well educated in the legal niceties as the Lord Chief Justice. A Member of Parliament, in writing to a Minister, is covered by qualified privilege, is not publishing it in that sense. If he raises it on the floor of the House he has got absolute privilege.

  A. Yes.

  427. If he walks down the road and repeats that, even if he includes some qualification that that is what he has heard and so on, in a television studio, that is not covered by any privilege?

  A. Assuming it is a defamatory statement that he makes.

  428. So communication to a Minister is qualified; communication to the general public is not?

  A. That would ordinarily be the rule.

Mr Michie

  429. In other words, if an MP or a Lord wants to expose an issue covered by absolute privilege in the House and then this Member happens to be interviewed on television about the statement in the House, how far can that Member answer any questions in a TV interview about that statement?

  A. He has got to be rather careful about it. I think this is really what one does see in real life. Occasionally members of the public say, "I invite Mr So-and-So to make that statement outside the House", which is tantamount to saying, "If he says that outside I will sue him".

Lord Merlyn-Rees

  430. What is the situation if an allegation is made in the House and the Member who makes it is covered by absolute privilege, and then another Member goes on television and the matter crops up and he says, "This was alleged in the House of Commons earlier this evening"? Is he in a different position?

  A. Not unless he was giving a fair and accurate report of proceedings in the House. I think in your example he is simply repeating an allegation and he probably would not be.

Lord Archer of Sandwell

  431. Is the mischief not what is said in the House but what is reproduced to the public in the media? I am wondering whether the Lord Chief Justice thinks that there might be a case for reviewing not privilege about what is said on the floor of the House but the privilege about a fair and accurate reproduction of what is said? Is that necessarily a case for saying if you reproduce what is said, however harmful, you ought to enjoy any form of privilege?

  A. I think that is getting into very dangerous territory if one restricts reports of what takes place in Parliament, and indeed I think, but I may be wrong about this, that the 1996 Defamation Act strengthened the protection against proceedings in Parliament. I say that in italics because I am not sure it is correct.


  432. And it certainly becomes quite difficult when you have instantaneous broadcasting at once of what is said in the House. It then becomes very difficult to devise any satisfactory system.

  A. Very difficult.

Mr Michie

  433. You have mentioned the 1996 Defamation Act and you have in your memorandum suggested that the Committee should look at it. Are there some problems over it, or is it just that it needs strengthening?

  A. No. I think it is an anomalous provision for this reason, that the privilege of Parliament is there for the protection of Parliament. It is not as it were there as a perk of individual Members but because this privilege is necessary to protect the functioning of Parliament, and if that is the basis of the privilege then it seems anomalous to me that it can be waived at the insistence of an individual Member. It also would seem to me that it would be anomalous if it could be waived by an individual Member who wants to sue as a plaintiff but could remain in place if the same Member is sued as a defendant. This just suggests that he can switch it on when it helps him and switch it off when it does not.


  434. Underlying this area there is something of a paradox, is there not, that if the whistle-blower makes a complaint to a Member and the Member then responds by passing on that complaint in an appropriate fashion he will have qualified privilege but no more, but if he were to respond in an inappropriate fashion by standing up and repeating the matter in the House he would enjoy absolute privilege?

  A. Yes.

  435. But that paradox—I think this is the thrust of what you are saying—does not suggest that the way forward is to widen the scope of the absolute privilege which exists in respect of that which is said in the House?

  A. No.

Lord Mayhew of Twysden

  436. Would I be right in thinking, Lord Chief Justice, that the horror that has been traditionally expressed by judges of investigating matters that take place in the chamber of either House really derives from an appreciation of the inappropriateness of the judiciary having to determine matters that have motivated people in the chamber? We were discussing in earlier sessions the possibility that other Members would be called on one side or the other to explain why they behaved in a particular way in the chamber, so that although there is a paradox, as the Chairman has pointed out, none the less it is a paradox which is worth the keeping by reason of the horrific consequences that would ensue if the judges were invited to get into the motivation about what was said or done in the chamber in a debate?

  A. I think we have all grown up with such an instinctive understanding that there is no question of investigating what has gone on in the chamber that none of us have really rationalised why we think it is inconceivable, but I think the reasons that you give are very powerful reasons.


  437. Could I move on next, Lord Chief Justice, to the question of bribery and corruption. As you know, the Government is considering introducing criminal legislation and in your written observations and again this morning you have indicated what in principle is your favoured approach to that subject. Do you have any view on whether if Members of Parliament were to be the subject of criminal legislation it would be better for them to be the subject of a specific offence directed at them rather than caught within a general offence involving everybody at large?

  A. No. If it was the intention of Parliament that Members were to be subject to the legislation, then it would be desirable to make that quite clear because otherwise one will encounter the argument that for historical reasons it should be construed as not applying to Members of Parliament. Provided the Act makes it absolutely plain whether it does or it does not, there is no particular virtue in a particular offence for Members of Parliament and, indeed, possibly a disadvantage if there were a suggestion that there was a problem so rife that it needed a particular criminal offence to deal with it.

  438. But there does need to be clarity, does there not?

  A. Yes.

  439. And if the generally expressed offence leads to a lack of clarity, having regard to the particular position of Members of either House, then that would need to be dealt with?

  A. I think it is desirable that it should be, yes, otherwise one is going to be leafing through pages of Hansard to see what Ministers said when they introduced a Bill and so on.

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Prepared 9 April 1999