Parliamentary Privilege Minutes of Evidence


Examination of Witnesses (Questions 700 - 719)

TUESDAY 24 MARCH 1998

RT HON THE LORD NEWTON OF BRAINTREE AND THE RT HON JOHN R R MACGREGOR

  700. You cannot prevent him, but nevertheless there are certain brakes you can apply within the system. You can refine the system of brakes you have.
  (Lord Newton of Braintree) As I recall the case, which is probably in most people's minds, it is the court injunction relating to Baby Z. If I remember rightly, that actually arose by means of tabling an Early Day Motion. Now, of course, in something that is, as it were, paper processed like that, and somebody has to press buttons to print it, it would be possible clearly—depending on whether or not the Clerks at the Table recognised what is happening—to seek the advice of the Speaker. There could be rules as to whether that should be done or not. So one can see various ways in which these things might occur when you could introduce a check or a balance. What I find much more difficult—to pick up the problem in the question itself—is where there is instant broadcasting of the proceedings going on, so that to some degree dissemination has already taken place. I saw in some of the earlier evidence, that a suggestion was made that at least you might limit the damage if newspapers were stopped from printing it, or the television people were stopped from rerunning it. Then what are you setting up? Presumably, the Speaker or somebody, is going to have a committee to make judgments—not necessarily instant judgments; possibly very controversial judgments—about what a Member of Parliament says in the House that can be reported and what he says which cannot be reported. It seems to me you would sink without a trace.

Mr Williams

  701. On this point, it seems to me that there is almost universal agreement every time we raise the issue of the Official Secrets Act, strangely enough we concentrate on it because of its magnitude, yet to individuals the injunction is the more serious.
  (Lord Newton of Braintree) I agree with that.

  702. We then have to differentiate between the question of stopping which, as you have said, is difficult but is possible in certain cases where it has been done in written form, where at least one has a sifting process, but you have no protection against the question of the speech on the floor of the House. That raises the second question, to my mind, in relation to injunctions. Should we, in-House, have a system of punishing people who deliberately breach injunctions? It would seem to me that it would be a bit arrogant to let individuals, as members of this court, set aside another court's decision. I would have no problem at all with a system of punishment for breach of injunction but you cannot stop the breach.
  (Lord Newton of Braintree) I see that. I do just wonder whether, in this case, Mr Williams may not be unduly influenced by the nature of the particular case that is in mind. It does not seem to me to be impossible to think of circumstances in which an injunction has been used to prevent the publication of something; that once it had been published, everybody recognised that the Member of Parliament had actually done a public service by bringing this out into the open. Would he then be punished merely by reason of the fact that he had technically broken a court injunction? In other words, at the end of the day, when you really get down to it, you would end up having to make judgments about what all the circumstances were further down the track.

  703. But he would then have a defence of just cause when he was facing the Privileges Committee of the Houses of Parliament.
  (Lord Newton of Braintree) That is true, yes.

Lord Archer of Sandwell

  704. Is there any difficulty in the Privileges Committee taking into account mitigating circumstances?
  (Lord Newton of Braintree) No, if it is on that basis. All I am saying is that we are now departing from the proposition that there should be some kind of penalty—more-or-less automatically—for breach of a court injunction.

Sir Patrick Cormack

  705. No, not automatic penalty.
  (Lord Newton of Braintree) In that case, we are coming very closely back to my original proposition. I do not find any great difficulty in what is being suggested, but it is not very distant from my original proposition that you are essentially resting on the judgment of the Member of Parliament.

  706. You are entirely right.
  (Mr MacGregor) There is some merit in looking at this further. At least it is some protection in that a Member of Parliament knows that there will be a sanction if they transgress, even if not a very powerful one.

  707. It is actually protection for the public.
  (Mr MacGregor) That is what we are after. Mr Williams is right about the court injunction. It is a protection of the public. It is an abuse of privilege which we are looking at, so that is why it might be appropriate. May I make one point. One of the things that worries me about some of the proceedings of the Privileges Committee, at the moment, is that some of them are televised and some of them get quite lot of instant publicity; so I think it can be terribly important with a case like this, that it is heard in private. Otherwise, you are giving an awful lot of publicity to the very thing you are trying to prevent getting publicity.
  (Lord Newton of Braintree) I should perhaps add, in view of my caution earlier, as I have listened to this conversation I find a case for the Privileges Committee, in mitigating circumstances, quite persuasive.

  Chairman: Does anybody want to pursue what Mr MacGregor said about the right of a reply?

Sir Patrick Cormack

  708. Only to agree with him whole-heartedly that you cannot allow the columns of Hansard to be used in that way.
  (Lord Newton of Braintree) I simply do not understand how it works. Obviously this has not been drafted in the way that a bill would be: "Right of reply for members of the public who consider that they have been libelled." Well, first of all you would have to have a committee or somebody to decide whether it was reasonable to consider that they have been libelled, and so on. It is totally unworkable.

  Sir Patrick Cormack: Absolutely.

  Chairman: They did, in fact, attempt to introduce this in Australia. They had some sort of sifting committee. The indications are that it is not working very satisfactorily.

Sir Patrick Cormack

  709. What is behind this, my Lord Chairman, is that there have been one or two cases where a Member of Parliament has made an accusation against someone which is quite demonstrably false and that, therefore, there should be an opportunity for the person so maligned to do or say something about it, because obviously he cannot sue a Member of Parliament if it is said within the House. The Speaker has recognised this in recent exhortations to Members to be particularly careful about what they do say in the House. I obviously think you cannot go much further than that.
  (Mr MacGregor) Certainly this right of reply is not a solution.

  Sir Patrick Cormack: No, no.

Chairman

  710. Let us move on then to questions 8 to 11, which really deal with the questions of privilege that a Member of Parliament enjoys—in some respects absolute and in some respects qualified. Have we got the boundaries right or should either the areas of qualifying or absolute privilege be extended or diminished?
  (Mr MacGregor) My own view is that obviously privilege has to be looked at in the context of what was said about bribery and corruption anyway, but in terms of defining privilege there is a case for protecting absolute privilege. I am not quite sure what qualified privilege is. Absolute privilege is Members' and Peers' correspondence with Ministers and executive agencies and replies, but I cannot see that there is a case beyond that in terms of constituents' letters. I can see all sorts of difficulties with that. I also think that in terms of question 9, extending privilege to casual conversations in the House, party meetings and backbench groups, is going far, far too far. Privilege is such a privilege that it needs to be limited and I am not aware of any problems in relation to privilege in all these other activities. Nor am I aware of a demand or a need for it.

Sir Patrick Cormack

  711. Just to clarify, you include correspondence between Ministers and Members and Government agencies, but not presumably local councils or bodies like that, or would you?
  (Mr MacGregor) I think Ministers, yes.

Lord Archer of Sandwell

  712. Would you need parliamentary privilege here? There is already qualified privilege for a letter to someone who has an interest in writing it or an interest in receiving it or a duty to act on it. Do we need any special provision in relation to this?
  (Mr MacGregor) What is qualified privilege?

  713. It is privilege when there is no malice. If you deliberately tell an untruth about someone, that is not covered by qualified privilege.
  (Mr MacGregor) Ah.

Mr Michie

  714. The problem we have found up to now in this Committee, on this particular issue, is that to have privilege from a Minister writing to a Member of Parliament is one thing, but for a Member of Parliament then to send that letter off to a constituent must surely be covered as well, otherwise you blow a hole in the privilege, do you not?
  (Mr MacGregor) Yes, but a constituent writing to a Member is different.
  (Lord Newton of Braintree) Broadly speaking, I agree with what John MacGregor said. I noted with interest that Professor Bradley in his evidence obviously thought there would be a strong case for extending full privilege, as it were, to correspondence with Ministers. So I can see a strong case but I am not actually aware of this having caused any problems.
  (Mr MacGregor) I agree with that.
  (Lord Newton of Braintree) Sometimes I am surprised about that because I too have not found it easy to define qualified privilege. I do know that on occasions—this is not related to ministerial correspondence—but when I was writing to people with what, (if it were untrue), was a libellous allegation that a constituent had brought to me, I used to phrase my letters with singular care. I am conscious that what Members of Parliament sometimes get from much less senior people than Ministers—the chiefs of local Benefit Agency officers and the like—are two letters. There has been some reference to this in the course of the proceedings; one letter is clearly designed to be sent to the constituent and the other is designed to let the Member of Parliament know that there is more to this than meets the eye in one way or another. I have often wondered what would be the case if the second letter goes, as does sometimes happen, (and I hope never happens to me), if the second letter goes out instead of the first—

Lord Merlyn-Rees

  715. It has been known to happen.
  (Lord Newton of Braintree)—and what the status of that letter would be if the person about whom it was written chose to seek to take legal action on it, for example.

Lord Archer of Sandwell

  716. Is not the answer, my Lord Chairman, that there would probably be a defence, unless it was written maliciously, but you would have to go to all the trouble of getting the action struck out in the High Court. It did actually happen to me once because I had a particularly assiduous secretary who said to me, "You forgot to include the other letter last night so I put it in."
  (Lord Newton of Braintree) As I say, I can see a theoretical case for worry here on a number of areas covered in evidence but this is a field in which, on the whole, I would take a view that if there is no evidence of actual practical problems, why bother to do anything about it? I am amazed, as I would observe in passing, to discover—it may be the current view of the House—that the proceedings of the House of Commons Commission are not covered by privilege, according to what is said here. Again, I cannot remember that this caused the House of Commons Commission in the last Parliament any sleepless nights.

Chairman

  717. Question 10 is one in which, I believe, you had a certain involvement?
  (Lord Newton of Braintree) My general view on this is that frankly, once you go beyond—it is an extension of the point that John MacGregor was making about informal committees—backbench groups, all-party groups and the like, once you go beyond formal proceedings of the House, you would find it virtually impossible to draw the line as between one type of informal activity within the House and another. So I think the safe course is to concentrate on formal proceedings in the House. I could be persuaded of one or two possible exceptions to that, but the basic proposition should be: formal proceedings of the House or its Committees.

Sir Patrick Cormack

  718. But there is a case, is there not, for including the House of Commons Commission, I would have thought; and also, I would have thought, having sat on it for 25 years or more, the Ecclesiastical Committee. They ought to be covered. They are much more like formal committees than the other bodies to which we are referring.
  (Lord Newton of Braintree) It would certainly be extraordinary if the House of Commons Commission is not covered, which I certainly did not know, and the bodies that are subsidiary to it like the Finance and Services Committees. The Accommodation and Works and the Catering Committees are covered by privilege. Frankly, it is the kind of anomaly I can live with, unless somebody can tell me there is actually a problem.
  (Mr MacGregor) There is actually a problem which has been raised already. Sir Donald Limon raised the problem that some of the issues that these Committees are dealing with are commercial issues; commercial contracts and so on. We really cannot have privilege applied, it seems to me, to those.

  Mr Michie: The Ecclesiastical Committee should rely on its faith!.

  Sir Patrick Cormack: You have not been on the Committee!

Mr Tyler

  719. May I go back to what I regard as the main dividing line. I agree with you on the points we have been touching upon. However, if we are saying that qualified privilege is sufficient to cover very important representations—be they to Ministers, Ministers back to Members, Members to major other official bodies, which is a very important part now of a Member's responsibility to his constituents—if qualified privilege is sufficient for that, then bearing in mind what Lord Archer says about having to prove malice, why do we regard it as necessary to retain absolute privilege for just one step beyond that situation, proceedings in the House or in Committee?
  (Lord Newton of Braintree) I think that once you create a position in which a Member of Parliament, making a speech in the House, could be challenged on the basis of what he said, and could be taken to court on the basis that he said it maliciously, I think you have real, real scope for interfering with people's freedom of speech in the House.

  Sir Patrick Cormack: Absolutely, especially near election time.


 
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