Parliamentary Privilege

Baroness Healy of Primrose Hill Excerpts

Thursday 20th March 2014 Lords Chamber

[Baroness Healy of Primrose Hill (Lab)]

My Lords, I was honoured to serve on the Joint Committee on Parliamentary Privilege. The report will be a valuable contribution to the ongoing debate. As it says:

“Parliamentary privilege is a living concept, and still serves to protect Parliament, each House, their committees, and all those involved in proceedings. Much has changed since the publication of the report of the 1999 Joint Committee: privilege evolves as Parliament evolves, and as the law evolves”.

Our committee, wisely chaired by the noble Lord, Lord Brabazon of Tara, was fortunate to have a membership, from both Houses, of great parliamentary and constitutional experience and expertise, and I, as a relatively new Member of this House, learnt a lot. We took evidence from a wide range of experts and practitioners in the UK and abroad, and were very ably served by the clerks of both Houses, to whom I am most grateful for their guidance and expertise. I am pleased that the Government have responded so warmly to the report and I welcome the reiteration that they have,

“always been clear that Parliamentary privilege is a matter for Parliament and it is therefore right for Parliament to have a proper opportunity to reflect on its continuing purpose”.

Our committee found that there was no strong case for a comprehensive codification of parliamentary privilege, to which the Government have now agreed, as the noble Lord, Lord Brabazon, explained so comprehensively. But it is important to stress again the committee’s belief that steps may have to be taken both by Parliament and the Government to clarify the application of privilege where appropriate in the future. As the report states:

“This does not mean that we reject all legislation; but legislation should only be used when absolutely necessary, to resolve uncertainty or in the unlikely event of Parliament’s exclusive cognisance being materially diminished by the courts”.

One area I would like to highlight is the reporting of parliamentary proceedings. Our predecessor committee—the 1999 Joint Committee—noted:

“Parliamentary privilege does not cloak parliamentary publications with any form of protection”.

This was decided in 1839 in the case of Stockdale v Hansard, in which the court held that parliamentary privilege did not attach to the publishers of reports ordered to be printed by the House of Commons. The Parliamentary Papers Act 1840, passed in response to this decision, established that no action could be brought in court arising from the publication of the Official Report or other documents ordered to be published by either House. It also provided protection for “any extract or abstract” from such documents made by others, provided that they were published,

“bona fide and without malice”.

Such protection for publications by order of either House is a matter of statute law, not privilege.

As the House will certainly recognise, media reporting has moved on since then. The 1999 Joint Committee defined an “abstract” as a “summary or epitome”, and thus media reports of what goes on in Parliament, even if they draw on documents published by order of the House, such as Hansard, do not generally enjoy the qualified protection afforded by Section 3 of the 1840 Act. This was confirmed by Sarah McColl, solicitor advocate in the BBC, in her oral evidence on behalf of the Media Lawyers Association. But such reports do enjoy privilege in common law in respect of defamation. If the whole debate is published, the protection is absolute; if only extracts are published, the protection is qualified.

The 1999 Joint Committee said that it would be surprising if the common law defence of privilege in respect of defamation was not available also to broadcasters. But our committee found a problem in that, outside the field of defamation, media reports of parliamentary proceedings, as opposed to extracts or abstracts, do not enjoy legal protection. The protections enjoyed under 19th century statute or common law do not meet the current situation, where modern technology means that increasing volumes of data are streamed live via the internet. Such data are subject to instant comment or reporting via social networking sites, and their re-use, for instance by combining them with other data sources, is actively encouraged under the terms of the Open Parliament Licence.

Witnesses called for far wider changes than those proposed by the 1999 Joint Committee to be made to the 1840 Act and to other relevant legislation. The Newspaper Society wished to protect all reports at any time in any form, and the Press Association suggested that absolute privilege should be afforded to all fair and accurate reports of proceedings in Parliament, including media reports of breaches of injunctions.

After careful consideration, our committee did not accept the argument that full freedom of expression in Parliament is dependent on a similar freedom being enjoyed by the media. As our report says:

“The fundamental purpose of affording absolute privilege to proceedings in Parliament is to protect those proceedings themselves, so that the democratically elected representatives of the people can engage in free and fearless debate on issues of public concern”.

On balance, therefore, our committee did not support extending absolute privilege to all reports, including media sketches and summaries, of proceedings in Parliament; not because, as some argued, Members might be used by the media to launder defamatory information—although we could not rule out such a risk—but because the existing protection of qualified privilege, which covers all fair and accurate reports unless they can be proved by the claimant to have been made maliciously, already provides a robust defence of press freedom.

However, our committee recognises that the media need clarity and certainty, and that the 1840 Act does not appear to cover media reports or editorial comment —only “extracts and abstracts” of parliamentary publications, including broadcasts. The wording of the 1840 Act reflects a time when the re-publication by newspapers of large verbatim extracts from Hansard was commonplace; and, although some may regret it, the style of reporting today is very different, to such an extent that the wording of Section 3 of the Act is largely obsolete.

When the Government argued in their Green Paper that they were,

“not aware of circumstances in which any media organisation has been prevented from publishing reports of parliamentary proceedings by doubts over the extent of the current protection in law”,

this was contradicted by BBC and Press Association witnesses. Mike Dodd of PA explained that,

“reporting Hansard verbatim requires a wait of a least two hours before the first draft comes out, whereas we have customers … who have seen something on Parliament TV and want it now or five minutes ago”.

The Government’s draft clause would therefore give no protection to a reporter who, on the basis of a live broadcast, transcribed words said in the House, and then sought to re-publish the words online. The words spoken would not enjoy any protection under the 1840 Act until the online version of Hansard was published some hours later. The committee deemed this indefensible, and therefore endorsed the recommendation of the Joint Committee on Privacy and Injunctions that qualified privilege should attach, in all circumstances, to fair and accurate reports of things said or done in Parliament.

Our committee also endorsed the recommendation of the 1999 Joint Committee that the Parliamentary Papers Act 1840 should be replaced by modern statutory provisions, and that one of these new provisions should confirm that the term “broadcast” includes dissemination of images, text or sounds, or any combination of them by any electronic means. The provisions should also include a delegated power, subject to affirmative procedure, which allows the Secretary of State to update the definition of “broadcast” in the light of further technological change, without the need for primary legislation.

Of special interest to this House is our recommendation,

“that the statutory provisions which we have proposed in respect of the reporting of parliamentary proceedings should also confirm, for the avoidance of doubt, that Members of either House enjoy the same protection as non-Members in repeating or broadcasting extracts or abstracts of proceedings in Parliament”.

I certainly hope that the Government will actively consider wholesale repeal of the 1840 Act and its replacement by modern statutory provisions that clearly establish that qualified privilege applies to all fair and accurate reports of parliamentary proceedings in the same way as it does to abstracts and extracts of those proceedings. The freedom to report parliamentary debates in the media is of vital importance in a democratic society.