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Copyright Meetin G Further submission from Sir Robert Rogers KCB, Clerk of the House of Commons Strauss revisited — are MPs’ letters proceedings in Parliament? At the oral evidence session on Tuesday 12 February 2013 (Q 229), I offered to submit further written evidence on the extent to which Members’ correspondence may be covered by Article 9 of the Bill of Rights as proceedings in Parliament. Duncan Sandys 1938 In the Duncan Sandys case (1938-39) the House had agreed with the Select Committee on the Official Secrets Acts that the working definition of ‘proceedings’ should be extended to communications between one Member and another or between a Member and a Minister so closely related to some matter pending in or expected to be brought before the House that they form part of the business of the House. Mr Sandys, the Conservative Member for Norwood, was also a serving officer in the Territorial Army. He had sent a written draft of parliamentary question to the Secretary of State for War, which incorporated highly sensitive and detailed information about the deficiencies of anti-aircraft provision in London. Subsequently the Attorney General informed Mr Sandys that he had a legal obligation to reveal the source of his information, or face the consequences under the Official Secrets Act. Although the Attorney General later assured Mr Sandys that he personally would not face prosecution, Mr Sandys raised the issue as a matter of privilege, which was referred to an ad hoc Select Committee. In its Report, the Select Committee on the Official Secrets Act referred to matters ‘so closely related to some matter pending in, or expected to be brought before, the House, that though they do not take place in the chamber or a committee room they form part of the business of the House, as, for example, where a member sends to a Minister the draft of a question he is thinking of putting down or shows it to another member with a view to obtaining advice as to the propriety of putting it down or as to the manner in which it should be framed.’ The Attorney-General told the Select Committee that, should such a case come before the courts, he could not but think that they would give a broad construction to the term ‘proceeding in parliament’ having regard to the great fundamental purpose which the privilege of freedom of speech served, and that he could ‘see a possible construction of “proceedings” which would extend to matters outside the precincts if they were related to what is to happen in the House’. George Strauss 1958 In the Strauss case (1958), the House of Commons decided not to endorse the view of the Committee of Privileges that a letter written by a Member of the House of Commons to a Minister concerning the day-to-day administration of a nationalised industry was a proceeding in Parliament. Speaking in the debate on the Strauss case, the Leader of the House (R. A. Butler) expressed the opinion that the 1939 decision in the Sandys case had marked the “high tide” of Parliamentary privilege. The Strauss case also dealt with communications between a Member and a Minister, but the connection to parliamentary proceedings was not as clear as in the Sandys case. George Strauss, the Member for Vauxhall, had written to the Paymaster General, Reginald Maudling (Conservative) criticising the scrap metal dealings of the London Electricity Board as “a scandal” open to “strong suspicion” and alleging that there had been “day to day maladministration’ …. "in the nature of a public scandal”. Mr Strauss declared in his letter to the Minister that he had an indirect personal financial interest, in that a subsidiary of his firm were scrap metal merchants who shared the view of the LEB’s behaviour held by the National Association of Non-Ferrous Scrap Metal Merchants. Under the rules applying to parliamentary questions at the time, Mr Strauss would have been unable to raise in a parliamentary question such a matter of day-to-day administration by a nationalised industry. The Minister passed Mr Strauss’s letter on to the LEB, who threatened to sue Mr Strauss for defamation. Mr Strauss’s complaint of a breach of privilege was referred to the Committee of Privileges. The Committee of Privileges “adopted and followed” the reasoning of the Select Committee in the Duncan Sandys case by concluding that Mr Strauss in writing to the Paymaster General directing his attention to matters of administration in a nationalised industry was conducting or engaged in a “proceeding in Parliament” and that in so doing he was protected by Article 9 of the Bill of Rights. But a motion to approve the Committee’s Reports on the case was debated on 8 July 1958 (HC Deb volume 591 columns 208 to 345). Herbert Morrison successfully moved an amendment “to leave out from “House" to the end of the Question and to add instead thereof: “does not consider that Mr. Strauss’s letter of the 8th February, 1957, was ‘a proceeding in Parliament’ and is of opinion therefore that the letters from the Chairman of the London Electricity Board and the Board's Solicitors constituted no breach of Privilege”.’” Joint Committee on the Publication of Proceedings in Parliament 1970 The Joint Committee on the Publication of Proceedings in Parliament recommended that “proceedings in Parliament” should be defined by statute, and offered the following definition (Second Report, Session 1969–70, HL 109/ HC 261, paragraph 27)— “(1) For the purpose of the defence of absolute privilege in an action or prosecution for defamation the expression ‘proceedings in Parliament’ shall without prejudice to the generality thereof include a) all things said done or written by a Member or by any officer of either House of Parliament or by any person ordered or authorised to attend before such House, in or in the presence of such House and in the course of a sitting of such House, and for the purpose of the business being or about to be transacted, wherever such sitting may be held and whether or not it be held in the presence of strangers to such House: provided that for the purpose aforesaid the expression ‘House’ shall be deemed to include any Committee sub-Committee or other group or body of members or members and officers of either House of Parliament appointed by or with the authority of such House for the purpose of carrying out any of the functions of or of representing such House; and b) all things said done or written between Members or between Members and officers of either House of Parliament or between Members and Ministers of the Crown for the purpose of enabling any Member or any such officer to carry out his functions as such 2 provided that publication thereof be no wider than is reasonably necessary for that purpose.” Australia 1987 As the Joint Committee is aware, the Australian Parliamentary Privileges Act 1987 provides in section 16(2) that— ‘For the purposes of the provisions of article 9 of the Bill of Rights, 1688 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes: (a) the giving of evidence before a House or a committee, and evidence so given; (b) the presentation or submission of a document to a House or a committee; (c) the preparation of a document for purposes of or incidental to the transacting of any such business; and (d) the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published’. Defamation Act 1996 In the 2010 Chaytor judgement, the President of the Supreme Court, Lord Phillips of Worth Matravers, referred to the wording of section 13 of the Defamation Act 1996, which he held could not extend the ambit of Article 9 of the Bill of Rights. Section 13(4) of that Act provides that – “Nothing in this section affects any enactment or rule of law so far as it protects a person (including a person who has waived the protection referred to above) from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.” The following subsection 13(3) amplifies the point, by providing that “Without prejudice to the generality of subsection (4), that subsection applies to — (a) the giving of evidence before either House or a committee; (b) the presentation or submission of a document to either House or a committee; (c) the preparation of a document for the purposes of or incidental to the transacting of any such business; (d) the formulation, making or publication of a document, including a report, by or pursuant to an order to either House or a committee; and (e) any communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of members’ interests. Joint Committee on Parliamentary Privilege 1999 The Joint Committee on Parliamentary Privilege’s Report of 1999 stated that “Proceedings are broadly interpreted to mean what is said or done in the formal proceedings of either House or the committees of either House together with conversations, letters and other documentation directly connected with those proceedings.” (HL 43-1/HC214-1, paragraph 12) In the Joint Committee’s view, Members’ correspondence did not form part of parliamentary proceedings: “Article 9 protects parliamentary proceedings: activities which 3 are recognisably part of the formal collegiate activities of Parliament.” (HL 43-1/HC214-1, paragraph 55).
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