Examination of Witnesses (Questions 700
TUESDAY 24 MARCH 1998
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 clearlydepending
on whether or not the Clerks at the Table recognised what is happeningto
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 difficultto pick up the
problem in the question itselfis 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 judgmentsnot necessarily instant
judgments; possibly very controversial judgmentsabout 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.
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
(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 penaltymore-or-less automaticallyfor
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
(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,
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
(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
Sir Patrick Cormack: No, no.
710. Let us move on then to questions 8 to 11,
which really deal with the questions of privilege that a Member
of Parliament enjoysin 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
(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.
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 occasionsthis is not related
to ministerial correspondencebut 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 Ministersthe
chiefs of local Benefit Agency officers and the likeare
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
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
(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 discoverit may be the current view of the Housethat
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.
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 beyondit is an extension of
the point that John MacGregor was making about informal committeesbackbench
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
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 representationsbe 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 constituentsif 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.