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Lord Archer of Sandwell: Perhaps the noble and learned Lord will forgive me. While, of course, I appreciate what he says, namely, that the committee has done a great deal of work, it is some little distance from reporting, as he knows. In those circumstances it would be difficult for the Government to give consideration to its conclusions.

Lord Rodger of Earlsferry: I fully accept the caveat which the noble and learned Lord puts because I think he is a member of the Committee. Nonetheless, I think he may have been struck, as I was, by the fact that we seemed to be going down one road when the committee was considering these matters in relation to Westminster. Here we are taking decisions in connection with the parliament in Edinburgh which seem not altogether to be synchronised.

Lord Hardie: I am grateful for the comments of noble Lords and noble and learned Lords. I particularly enjoyed the exposition of the noble Lord, Lord Thomas of Gresford, with regard to the history of the question of privilege. I am also grateful to the noble and learned Lord, Lord Mackay of Drumadoon, for moving this amendment, as it gives me an opportunity to explain why we have included Clause 37 in the Bill. This may go some way towards answering the question posed by the noble and learned Lord, Lord Rodger of Earlsferry.

I think it is important to understand the thinking behind the way in which we have approached the issue of defamation. As noble Lords and noble and learned Lords have acknowledged, it is quite proper that we should provide the parliament's proceedings with some shelter from the risk of actions of defamation. Absolute privilege is, of course, the strongest form of legal protection from defamation proceedings. It confers a powerful protection in any circumstances in which it applies.

For that reason we need to be clear about why that protection is conferred and to be sure that we have applied it no more widely than is justified. I believe that was the thrust of some of the comments of the noble Lord, Lord Thomas of Gresford, and of the noble and learned Lord, Lord Hope of Craighead. For that reason we have deliberately framed Clause 37 so that absolute privilege applies only to any statement made in the proceedings of the parliament, and to any publication made under the parliament's authority. This is deliberately done to ensure that the work of the parliament is not hindered or inhibited by fear that actions for defamation may be raised, while at the same time restricting the areas which are protected.

I hope it will be helpful to the Committee if I clarify that we intend that the same broad construction should be placed on the term "proceedings of the parliament"

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in this Bill as applies in relation to the equivalent privilege at Westminster. Therefore we are going no further than the Westminster privilege but we would hope that the same approach would be taken. The words "proceedings of parliament" have not been defined in statute for the purposes of Westminster. However, their meaning has been established by convention and case law over many years.

We are aware that attempts have been made for some purposes to make explicit what activities the term "proceedings of the parliament" may include, albeit not in an exhaustive way. The noble Lord, Lord Thomas of Gresford, referred to the Defamation Act 1996. Section 13(4) of that Act sets out a range of activities which are to be construed as falling within the definition of things said or done,


    "in the course of, or for the purposes of or incidental to, any proceedings in Parliament".

These include, for example, communications with the Parliamentary Commissioner for Standards or with any person having functions in connection with the registration of members' interests.

In this Bill we are deliberately choosing to make a simple reference to "proceedings of the parliament". However, I recognise that there is an element of judgment being exercised in taking this approach. As I have mentioned, we intend that this reference should be taken to have the same broad scope as it has in the case of this Parliament. By relying on this general term, we also leave room for the development of new ways of working in the parliament which may not be easily foreseen at present, and we ensure that the privilege conferred by this clause need not be limited only to the particular types of parliamentary activity we are able to identify at the present time.

We cannot accept this amendment. We have deliberately drawn the line around parliamentary proceedings. Provided that a particular statement can be construed as being made in that context, we think it right that it should benefit from this broad protection. The amendment, by contrast, seeks to protect in general terms communications between members of the Scottish parliament and particular types of person. Many of those may well in practice fall within the boundaries of parliamentary proceedings. For example, communications between a member of the Scottish parliament and the presiding officer may well fall within that category in certain circumstances. However, where for any reason such a communication does not fall into that category, we do not see that we could justify conferring this privilege upon it. Absolute privilege absolves a person from having to defend his statements on grounds of truth or absence of malice. Accordingly, the protection must be restricted.

I do not think it is helpful to speculate on the circumstances in which the types of communication mentioned in the amendment might, or might not, be deemed to fall within the definition of being made in proceedings. Members of the Scottish parliament will have to judge where the boundaries lie in any particular case--as indeed do Members of this Parliament at present. We see no good reason for introducing any kind of blanket exemption on the lines proposed--that would

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not be in line with the thinking behind this clause, which is properly concerned with the context within which statements are made.

Finally, perhaps I may deal with the point raised by the noble and learned Lord, Lord Rodger of Earlsferry. Once the Nicholls Committee reports, the contents and recommendations of the report will be taken on board and will be given proper and full consideration. With that, I invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Drumadoon: This has been a useful debate arising out of what I originally saw as a comparatively small amendment. I fully accept the force of what the noble and learned Lord, the Lord Advocate, says about not wishing to extend to members of the Scottish parliament greater protection than might be available to Members of this House or another place. Equally, it is important that we raise the issue. As I understand it, the Nicholls Committee is seeking to examine the whole issue thoroughly. We may well return to some of the matters discussed by the committee in the taking of evidence when we consider Amendment No. 219G. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 37 agreed to.

Clause 38 [Contempt of court]:

The Deputy Chairman of Committees (Baroness Lockwood): I must point out that, if Amendment No. 252 is agreed to, I cannot call Amendment No. 252A under the rules.

Lord Mackay of Drumadoon had given notice of his intention to move Amendment No. 252:


Page 18, line 25, leave out ("a") and insert ("an accurate").

The noble and learned Lord said: I can put the Minister out of his agony. I do not propose to insist on my Amendment No. 252. It is clear that Amendment No. 252A addresses the same issue in a broader way. We are uniquely agreed that Amendment No. 253 should be allowed. I hope that these two small amendments will prove acceptable to both sides of the Committee.

[Amendment No. 252 not moved.]

Lord Hardie moved Amendment No. 252A:


Page 18, line 25, after ("a") insert ("fair and accurate").

The noble and learned Lord said: The noble and learned Lord, Lord Mackay of Drumadoon, tabled Amendment No. 252, which has not been moved. I am pleased to say that Amendments Nos. 252A and 253, in the name of both the noble and learned Lord, Lord Mackay of Drumadoon, and my noble friend Lord Sewel, seek to address a minor defect in the Bill. We are in the happy position of accepting the suggestion put forward by the noble and learned Lord. My only regret is that the noble Baroness, Lady Carnegy of Lour, did not put her name to these amendments, in view of the discussion that we had outwith the Chamber.

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The position is that, as framed, the provision in Clause 38 does not get the balance quite right so far as concerns the reports of proceedings. Our intention is to ensure that those reporting proceedings are not hampered in their work of keeping the public properly informed. The purpose of the amendments is to rectify the minor defect in Clause 38. I beg to move.

10 p.m.

Lord Thomas of Gresford: I support the amendments but ask the noble and learned Lord to draw to the attention of the noble Lord, Lord Williams of Mostyn, in relation to the Government of Wales Act, that the wording which the noble and learned Lord has just condemned as defective appears in its full glory in the Government of Wales Bill.

Lord Hardie: I cannot be responsible for the Welsh!

On Question, amendment agreed to.


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