Examination of Witnesses (Questions 480
TUESDAY 24 FEBRUARY 1998
480. Can we move on, to the question what should
be the extent of the freedom of speech of a Member of Parliament?
What is the reason why certain parts of his activities should
have absolute privilege and other parts only have qualified privilege?
Have we got the dividing line right?
(Professor Bradley) There is no doubt that matters
that are contained in speech in the House or in a Committee are
subject to absolute privilege under Article 9 and so, for that
matter, are matters contained in House of Commons papers. We have
the supporting authority of the Parliamentary Papers Act in that
context. To enable the House and Members to perform their function,
documents that are ancillary to those matters must surely also
be protected, whether drafts of questions or Members' notes he
or she may use in a speech, and other ancillary matters. At the
borderline is the question of an MP's letter to the minister which,
in my view, raises the difficult issue of where you draw the line.
If the argument is that this may be preliminary to or instead
of a question in Parliament, why should not such a letter by a
Member to a minister be a proceeding in Parliament? If we stop
short of that and we have, for example, constituents' letters
to MPs or MPs' letters to constituents, or what is said in a surgery
or what is said at a protest meeting that a Member attends in
his constituency, those do not seem to me to be parliamentary
proceedings. They relate to the Member's presence and functions
in the constituency. Therefore, I would at the moment not wish
to argue that proceedings in Parliament should be widened to include
everything that is done by a Member in his or her capacity as
a Member. I believe there is a good deal of support for that proposition
to be found both in this country and abroad. Of course, what is
said in correspondence between a constituent and a Member of Parliament
will almost certainly be covered by qualified privilege at common
law. As I have indicated earlier today, it seems as if Members
of Parliament since the 1950s have been able to carry out their
duties on that basis. While I accept that there may be an argument
for putting letters to ministers within the definition of proceedings
in Parliament, it may not be that there is a real need shown at
the present time for that to be done.
(Mrs Leopold) It is a matter on which I have changed
my mind from time to time. I have drawn attention to the fact
that we have quite a lot of illogicalities, but the law is full
of illogicalities. I think the idea that we can get rid of them
here or in any other field is quite impossible. We have illogicalities
but provided you think, and people think, that these illogicalities
actually work, then surely that is the answer. It may be strange
to say that your communication with a minister is not absolutely
privileged in parliamentary terms but only subject to qualified
privilege but, if that works, then why change it? It may be there
was a good reason to give communications with the Parliamentary
Commissioner for Administration a special standing but, if that
works, fine. I do still feel it is slightly odd that we are getting
letters from chief executives published in Hansard and they are
suddenly getting a greater protection than your letter to the
minister would, but parliamentary procedure has to adapt to changing
conditions and that is an example of it. It is illogical but,
if it works, then provided you are happy that it does work I do
not think there is any point in tinkering with it.
481. On page five, in paragraph nine, Professor
Bradley makes the point that the courts must accept that the contempt
jurisdiction extends to matters outside Parliament etc. This is
subparagraph (4), which I assume is to do with the 1957 rule on
letters to a minister. Letters to a constituent, which basically
could be a reply from the minister, leave themselves open to a
charge. Is that what you are saying?
(Professor Bradley) Yes. Could I maybe clarify what
I was trying to convey in that paragraph? What I am saying there
is that this is the essence of parliamentary privilege as I see
it, the privilege of the House, the internal procedure and discipline
of each House. The House's powers include the power to deal with
contempt of court and, in the last paragraph to which Mr Michie
has referred, to the contempt jurisdiction which can be used to
prevent Members of Parliament, in carrying out their essential
functions, even if those functions extend beyond proceedings in
Parliament. Any hypothetical example is going to be unsatisfactory
but, for example, if some racist group seizes on the fact that
a Member is going to hold a session in their constituency to deal
with black constituents' problems over immigration and organises
a protest to prevent that happening, that would seem to me to
be a contempt of Parliament and one which the House would have
jurisdiction to deal with, even though the event in question,
a discussion between a Member and constituents, would not of itself
be a proceeding in Parliament. Having given that example, of course
one has to say: do we need to bring in Parliament at this stage?
Could not the police deal with it properly under the ordinary
criminal law? So it may not be an ideal example, but it was intended
to give an example of molestation or harassment of an MP in their
essential functions, although those essential functions are not
proceedings in Parliament.
482. It is a different kind of communication,
(Professor Bradley) A different kind of communication.
If I could say, we have been talking about letters from constituents
to MPs and MPs to ministers, but when the reply comes, if the
MP sends it back to the constituent, that is surely within at
least the area of qualified privilege. I would not regard it as
being within the proceedings of Parliament in the absolute sense
any more than when a Member says outside Parliament what he has
said inside the chamber. That is not covered as a proceeding of
Parliament. But in the case of a letter and genuine complaint
from a constituent, that would be covered by qualified privilege.
(Mrs Leopold) Yes, in the law of defamation.
483. You did refer to the Official Secrets Act
before, what do you say the position of a Member of Parliament
should be ifvery unlikelyhe got up and made a speech
which was manifestly a breach of the Official Secrets Act? Perhaps,
Mrs Leopold, you might deal, in addition to that, with the position
of the media when they are reporting such an event?
(Mrs Leopold) Yes, and indeed not only a breach of
the Official Secrets Act but a contempt of court, because we do
have breaches of injunctions and things like that. I actually
believe MPs ought still be able to commit these offences because
I think, certainly if we are dealing with court orders, there
are occasions where, for example, we get interim injunctions which
are not always used for the best of motives and one suspects that
they are being used to stop information being in the public domain,
and if there is not somewhere where something can be said, can
be challenged, then it would be a shame because I do not think
interim injunctions are always necessary. What I would say is
that I think that there ought to be a tightening up of Parliament's
own internal rules. I think we need a tightening up here. I think
the sub judice rule needs reforming. I disagree with the
suggestion that we do not need to amend the rule to have a presumption
that MPs would not breach court orders, I think they should be
allowed to do so but I think Parliament should have its own procedure
whereby the Speaker could perhaps give a ruling, where it is at
the Speaker's discretion. I think there are circumstances where
this could happen, indeed Lord Merlyn-Rees himself was involved
in one in the House of Commons some years ago
484. Remind me.
(Mrs Leopold) There was an injunction restraining
the BBC from broadcasting a programme. I am not sure, I think
it was My Country, Right or Wrong, I cannot remember which
programme it was. You in fact repeated the information which the
BBC was not allowed to broadcast in the course of proceedings
in Parliament, and absolutely nothing was done. In the case of
Re Z, the girl whose name was mentioned in the Early Day
Motion, I do not think that should have been done. I think that
should be against Parliament's own rules. The other thing is that
Parliament should be willing to discipline its members who breach
these rulesthe sub judice rule and the expanded
sub judice rule. I feel Parliament ought to be more willing
to discipline its own members for breaching clear rules it has
laid down, but that is another problem. We saw this in the Nolan
Report, we saw it in the Report on Re Z (HC 252, 1995-96).
In fact a lot of Parliament's own rules are not well-known to
Members of Parliament. They are not necessarily aware of these
resolutions or conventions. Perhaps Parliament has some obligationand
I have seen this mentioned in several reportsto make its
members more aware and then, if they are more aware, to ensure
they keep to them. But I certainly would not be keen on having
members prosecuted for breaching injunctions or court orders or
breaching the Official Secrets Act, particularly as the newest
Official Secrets Act makes these breaches perhaps less likely.
The other side of it which perhaps we do not want to get on to,
is the liability of those who then report the breach of the Official
Secrets Act; and that is very technical, I accept, but that is
a real difficulty.
485. Are you saying that if there was what appeared
to the Director of Public Prosecutions to be a very serious breach
of the Official Secrets Act, he would be powerless or he should
(Mrs Leopold) I think he would be powerless, yes.
486. And he should be powerless?
(Mrs Leopold) This is difficult. Does free speech
or proceedings in Parliament include bribery, should it include
being able to breach the law in this way? I do not really know.
I am inclined to say he should be powerless but I acknowledge
that is perhaps illogical in the light of saying, "If you
are going to prosecute them for bribery, why not for official
487. If the House had this ability to waive
its privilege, this might solve the problem, might it?
(Professor Bradley) My Lord, I have already indicated
my answer to the last question that was asked, because I think
that the absolute freedom of speech in Parliament needs to be
preserved, and therefore I am not suggesting, and would not be
in favour of, a general power in the House to waive Article IX
whenever a criminal prosecution might be involved. I would be
very firmly against that. If I can repeat, I think the House of
Commons Privileges Committee in 1987 on the Zircon affair considered
this very question, whether it should be proposed there should
be an exemption for parliamentary freedom of speech in the case
of official secrets, and they firmly said no, 10
and that was accepted by the House. Could I underline what Mrs
Leopold has been saying, that along with this concept of freedom
of course comes the responsibility that it should not be abused.
It does seem as if within each House there are ways and means
of dealing with members who abuse their freedom of speech. Sometimes
it may be necessary to name a person inside Parliament in a way
which would be defamatory if one did so outside Parliament, but
it must be the freedom of an MP to decide to do so, subject presumably
to being able to satisfy other members of the House there was
a good public reason for doing so.
Sir Patrick Cormack
488. Do you agree with Mrs Leopold that there
should be a clear code of parliamentary practice, which was in
effect what she was advocating in her remarks a few minutes ago?
(Professor Bradley) Yes, if there is doubt, and I
believe Mrs Leopold is right to mention the sub judice
rule as one that this Committee should be looking at. For example,
the Contempt of Court Act 1981 has made certain modifications
in the definition of court proceedings, and I am not sure that
the House has come back to the sub judice rule since then.
There is the strange position that once the matter has been concluded
before the courts, the sub judice rule seems not to apply.
Therefore there may be a need in respect of injunctions, a gagging
injunction, for some guidance on the position. May I say that
there are rules of the House which exist. For example, if a member
wishes to criticise a judge they are not permitted to do so save
on a substantive motion.
489. Mrs Leopold, as I understood it and I may
have inferred wrongly, was suggesting that yes, these rules exist
but they are not as well-known as they should be perhaps by members.
We are at the moment operating in a new Parliament where 260 or
thereabouts members have never sat before. As I understood her,
she was saying there would be merit in Parliament drawing up its
own code of practice on these matters, not necessarily with statutory
force but a code of practice or code of guidance. She is nodding,
therefore I seem to have interpreted her correctly. I was asking
whether you agree with that.
(Professor Bradley) I believe there could be a benefit
if there are established principles of behaviour which members
should observe if they are in these difficult areas of commenting
on the courts or revealing information which a court had decided
should not be made public. I am sure there would be value to members
in these statements of principle being readily available. I am
not, however, able to say whether there is a crying need for this
to be done and whether it would lead to innumerable members being
disciplined. I do not want to see headmasters all over the place,
but if it is a matter of knowledge as to what the accepted principles
are, and indeed any rulings the House may have given in the past,
then obviously there is value in it being available and accessible
to all members.
(Mrs Leopold) The very fact that Article IX says,
"freedom of speech and proceedings in Parliament ought not
be questioned in any court or place outside Parliament",
implies it can be dealt with in Parliament. If that is going to
be the case then it seems right that, if there are going to be
limitations, that those limitations should be known and also reviewed.
The sub judice rule is an interesting one because it suffers,
I think, from being too narrowbecause I think your free
speech is unduly restricted by the sub judice rule compared
to outside Parliament, which is oddbut it is also too narrow
on the basis that it cannot cover proceedings once they are over,
on positions like injunctions. So I think that needs to be looked
at. But if there was some sort of code, then members would be
better informed. You will still have people who wish to go against
it and that is why I say the sub judice rule is subject
to the discretion of the Speaker, and that is quite right because
there are times when it is right that things will be said in Parliament
that could not be said elsewhere, but Parliament must not misuse
its freedom of speech. If there is guidance and there is discretion,
then it is still possible to say things in Parliament that cannot
be said elsewhere. I do believe that is important.
490. What do you say is the degree of privilege
which should attach to the media, the broadcasting authorities
and the press, particularly the broadcasting authorities who are
doing something live, when they report what appears to be a breach
of an injunction or an apparently seditious speech by a member?
(Mrs Leopold) A type of qualified privilege whereby
if Parliament decides, and it has decided, its proceedings should
be broadcast, it does seem to me rather strange not to be able
to give the broadcaster some protection, particularly if we are
having live broadcasts. If we have broadcasting going out a minute
and a half after it has been said, then you have a chance of pressing
buttons. Likewise, when you are seeing edited highlights, the
broadcasters then have a duty not to broadcast deliberately the
Lord Archer of Sandwell
491. Could we explore that a fraction further?
Supposing something has been said on the floor of the House where
the mischief may be on a massive scale, someone has given information
which would result in the deaths of a number of our agents overseas
or something of that sort? I follow you might under the existing
law bring proceedings against people who then broadcast it or
repeat it in newspapers, but ought there not be some authority
which then had a power to issue a kind of injunction and enforce
it? I do not think it has ever been suggested before but would
you deny Parliament the right to say, "We forbid anyone to
(Mrs Leopold) If it is being broadcast, it is too
492. If it is being broadcast simultaneously,
it is too late.
(Mrs Leopold) Yes, simultaneously, it is too late.
493. Yes, I follow that.
(Mrs Leopold) That is the problem there is generally
if something is being broadcast live, it is too late.
Sir Patrick Cormack: The trouble now is that
everything is broadcast. There is one channel on television which
broadcasts every minute that the House of Commons is sitting.
Lord Archer of Sandwell
494. But it might still be wise to prevent any
further repetition? We all know that putting together a number
of different reports can be quite effective for somebody who wants
to know these secrets.
(Mrs Leopold) The truth is that once it is in the
public domain as a broadcast, it is impossible. We have not even
contemplated what you are going to do about the Internet. I think
most of us have tried not to think about that. If you take other
examples, if the Re Z case was put on the Internet, we
have an enormous problem and I have no idea how to solve it. Once
we have accepted live broadcasts, it seems very strange then to
say, "We are going to stop the newspaper reporting it the
next day", because the newspaper will merely report they
were stopped reporting what you could see if you happened to be
Mr Michie: It is almost impossible because you
are going down a dangerous road if you stop somebody from quoting
something which is already in the public domain. It gets very,
very complicated and is almost impossible.
495. Can we go on to consider the question of
tribunals of inquiries or courts who wish to examine what it is
that has been said or done in Parliament on a particular occasion?
(Professor Bradley) My Lord, I am grateful for this
question because I have never thought of this as a problem before,
but as soon the question is asked then plainly it is a strange
position that the Tribunals of Inquiry Act does not allow this
to be done. Subject to correction, such a Tribunal of Inquiry
has ultimately the powers of a court to compel evidence, to which
Article IX might be relevant. Let me say that a Tribunal of Inquiry
would be on a matter of public interest, otherwise it would not
have been set up, and it would be in the public interest that
there should be a thorough examination. I would find it difficult
to imagine, for example, a Government, where a resolution has
been taken to set up a public inquiry, then denying facilities
to the inquiry. If it be right that Lord Justice Scott in his
inquiry simply ignored Article IX or said he would until somebody
objected, that seems to me a very practical answer to a problem
which in law may be a matter of surprise. One could add that the
Parliamentary Commissioner Act 1967, which set up the Ombudsman,
does provide in terms that a minister's functions may be inquired
into and if they are in the exercise of administrative functions
these could include what is said in Parliament. There was one
report in the 1970s, the Court Line affair, where I believe Mr
Benn was found in his speech as Minister in the House of Commons
to have spoken maladministratively, and there seems to have been
no objection taken in 1975 to the fact that the Ombudsman was
commenting adversely on what a member had said in the House of
But, maybe that comes from the statutory powers the Ombudsman
has. My short answer is that while I am grateful for having had
cause to think about the matter of tribunals of inquiry, it does
not seem to have caused practical problems hitherto. Maybe there
were problems which have not been made public in this respect.
(Mrs Leopold) I would like to draw attention to another
slightly strange situation which was that nobody seemed to get
too worried about what was done by Sir Richard Scott, but he was
"questioning proceedings in Parliament", and this is
what people are getting very worried about when we come to bribery.
They are going to be "questioning proceedings in Parliament".
If you have parliamentary proceedings questioned anywhere, I would
rather have them questioned in a court of law than have them questioned
in some sort of tribunal which has been set up with a variety
of powers, or indeed the press. At least in a court of law you
have the protection of the various discretions which have been
exercised before the prosecution is brought, you have the protection
of the rules of evidence, the protection of counsel, you have
the judge there to make sure it is not abuse of process. You have
greater protection, surely, for questioning proceedings in Parliament
in a court of law than you have in front of some of these investigations.
Yet there has never been the same concern about this, I suspect,
as we are getting with regard to bribery.
496. But is that not because it has been set
up by Parliament for an express purpose?
(Mrs Leopold) Yes, but did Parliament include "questioning
its proceedings" in the express purposethey perhaps
turned a blind eye, I think is the answerthe fact that
what it was going to do was going to be questioning its procedures?
Sir Patrick Cormack
497. I think that is the answer.
(Professor Bradley) Is it possibly that the current
significance of a provision like Article IX changes from time
to time? It must take account of changing political circumstances
and governmental problems. There is no doubt at all that one primary
effect of Article IX is on personal liability, protecting the
individual member from liability in defamation or criminal prosecution
for what he or she says in Parliament. What Sir Richard Scott
was doing in his inquiry was in fact investigating and passing
judgment upon speeches and answers to questions which many ministers
had given which was relevant to their political reputation, if
you like, but would not have involved questions of personal liability
either in damages or criminal law. The Government wished it to
happen, Parliament wished it to happen, the press wanted to know
what Sir Richard Scott would say; everybody wanted to hear Sir
Richard Scott's conclusions on these matters. I would be interested
to know what would have happened if in fact Article IX had entered
into the Scott Inquiry in a significant way. That was an informal
inquiry and, of course, there can be all manner of informal inquiries
but if one is talking of the 1921 Act then one is in the area
of formal inquiries with powers of a court, which Sir Richard
Scott did not have.
Sir Patrick Cormack: He had a ticket to go on
an ego trip.
498. Let us come to one matter which you have
touched on earlier, which is section 13 of the Defamation Act
of 1996. What are your views as to what should be done about that?
(Mrs Leopold) Repeal it!
(Professor Bradley) I would like it repealed. As a
second best, if this Committee were persuaded of the case for
retaining something equivalent to the present section 13, then
it must be for the House to decide whether to waive its privilege.
Knowing that I was going to be here today, I did take advantage
yesterday of trying to read through all Hansard discussions on
what is now section 13. The first mention of it, I believe, was
in the House of Lords debate on 8th March in the Second Reading
Debate when Lord Finsberg raised this matter and said, "Surely
the Bill of Rights never intended that an individual MP or peer
could not waive his own privilege." 12
He wished to see an amendment to the Bill to enable a member or
a peer to waive his own privilege. I do believe the parliamentary
change in the law got off to a very bad start at that point because
it plainly was not the MP's own privilege which was in question.
I would be disappointed at least if this Committee were not able
to take up the very cogent points made in debate on this matter.
499. There has always been an argument whether
the privilege belonged to the member, that is the problem.
(Professor Bradley) It benefits him or her in a way.
I do not think it belongs to him.
69 10 HC 365 (1986-87). Back
11 HC 498 (1974-75).<jf11>Mr Williams Back
12 HL Deb, vol 570, col 597 (8 March 1996) (Lord Finsberg).<jf11>Sir
Patrick Cormack Back