Parliamentary Privilege and Qualified Privilege

Parliamentary privilege and qualified privilege

Standard Note: SN/PC/02024 Last updated: 24 May 2011

Authors: Oonagh Gay and Alexander Horne Section Parliament and Constitution Centre

This Note examines the concept of privilege as it applies to Members, staff, and publications of the House, press reports of Parliament, and members of public authorities. It compares qualified privilege with the absolute nature of parliamentary privilege, by examining a number of areas where privilege may be applicable. Apart from quoting the statutory authorities, it does not seek to deal with the wider question of media publications on matters of public interest, which may involve a different kind of qualified privilege.1 Library Standard Note 5978 Privacy deals with the Neuberger Report into Super-Injunctions and the subsequent decision to establish a Joint Committee of both Houses to examine the balance between privacy and freedom of expression.

Contents

1 Freedom of speech in Parliament 2

2 Qualified privilege the common law privilege and associated case law 3

3 Statutory protection for qualified privilege 3

4 The reporting of proceedings in Parliament 4 4.1 Parliamentary Papers Act 1840 4 4.2 Joint Committee on Parliamentary Privilege 1999 4 4.3 The Neuberger Report on Super-injunctions 7

5 Injunctions and contempt of court 9 5.1 Trafigura 9 5.2 Recent developments 11

6 Members’ Correspondence 13

1 For which, however, see for example Chapter 12 of Carter-Ruck on Libel and Privacy (6th ed) 2010. This information is provided to Members of Parliament in support of their parliamentary duties and is not intended to address the specific circumstances of any particular individual. It should not be relied upon as being up to date; the law or policies may have changed since it was last updated; and it should not be relied upon as legal or professional advice or as a substitute for it. A suitably qualified professional should be consulted if specific advice or information is required.

This information is provided subject to our general terms and conditions which are available online or may be provided on request in hard copy. Authors are available to discuss the content of this briefing with Members and their staff, but not with the general public. 7 Some practical examples 14

Appendix: Defamation Act 1996 16

1 Freedom of speech in Parliament Parliamentary privilege has two main components:

• Freedom of speech, which is guaranteed by Article 9 of the Bill of Rights 1689 • The exercise by Parliament of control over its own affairs, known technically as ‘exclusive cognisance’.

The privilege of freedom of speech protects what is said in debate in either House. As Article 9 states:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

Possible meanings of the word ‘impeach’ include hinder, charge with a crime, challenge and censure. Thus, Article 9 gives the members of each House the right to say what they will (freedom of speech) and discuss what they will (freedom of debate). It is therefore generally regarded as “a cornerstone of parliamentary democracy”.2 The uncertain extent of the term ‘proceedings in Parliament’ was examined by a specially constituted Joint Committee on Parliamentary Privilege in 1998-99. It recommended statute to clarify a number of outstanding issues, but this awaits implementation.3

A Member may waive that protection for the purpose of any defamation proceedings in which his or her conduct is questioned.4 This amendment to the Defamation Act 1996 was criticised by several witnesses to the Joint Committee on Parliamentary Privilege, and the Committee recommended appeal in favour of a right to waiver possessed by each House themselves. This recommendation has not been implemented.5

The application of the European Convention of Human Rights (ECHR) has been tested in a case involving a Member who made allegations during a proceeding in parliament about the behaviour of a constituent, who subsequently appealed to the European Court of Human Rights. The Court found that the inability of a member of the public to sue a Member for defamatory words spoken in Parliament was justified as a proportionate way of promoting the legitimate aim of protecting free debate in Parliament in the public interest and regulating the relationship between the legislature and the judiciary.6

2 Report of the Joint Committee on Parliamentary Privilege, HL Paper 43/ HC 214-I, 1998-99, 9 April 1999, http://www.parliament.the-stationery-office.co.uk/pa/jt199899/jtselect/jtpriv/43/4302.htm 3 HL Paper 43/HC 214 1998-99 4 Defamation Act 1996,(cap. 31) s. 13 5 HL Paper 43/ HC 214 1998-99 paras 60-82 6 A v the United Kingdom (2003) 36 EHHR 51

2 2 Qualified privilege the common law privilege and associated case law Qualified privilege is a legal concept extending well beyond the scope of parliamentary privilege.7 The remainder of this paper discusses qualified privilege mainly as it relates to Members and staff of Parliament and of other legislative and official bodies.

According to Words and Phrases Legally Defined, qualified privilege means:

On grounds of public policy the law affords protection on certain occasions to a person acting in good faith and without any improper motive who makes a statement about another person which is in fact untrue and defamatory. Such occasions are called occasions of qualified privilege. As a general rule, there must be a common and corresponding duty or interest between the person who makes the communication and the person who receives it.8

The standard judicial definition of a privileged occasion is that made by Lord Atkinson in Adam v Ward9

“A privileged occasion is an occasion where the person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential”

Malice on the part of a person who communicated information always disapplies the privilege.

The rule was tested in 1930 in a case (Watt v Longsdon) where one director of a company passed allegations about the sexual misconduct of another director to the Chairman, and also to that person’s wife. The court held on appeal that communication with the chairman was privileged, as both the maker and the receiver had a common interest in the probity of the company, but that no such reciprocity existed with the wife, and hence that that communication was not privileged.10

3 Statutory protection for qualified privilege This protection applies mainly to the media, as to the common law concept of qualified privilege quoted above. It is included here mainly for the sake of completeness.

Publication of reports in newspapers and other media was afforded explicit qualified privilege as far back as 1888, when the Law of Libel Amendment Act was passed.11 This Act applied the criterion of malice expounded in the Parliamentary Papers Act 1840 to reports of meetings of public bodies, and is still in force as far as criminal libel is concerned.12

The 1888 Act was restated and substantially updated by the Defamation Act 195213. In turn, this Act was repealed prospectively by the Defamation Act 1996,14 which was brought into

7 See, e.g. Chapter 12 of Carter-Ruck on Libel and Privacy, op cit 8 Vol 3, p427 9 1917 AC 309, at p.334 10 1930 1KB, pp 130-159 11 51 & 52 Vict cap 64 12 24 Halsbury’s Statutes, 1998 reissue, p 106n. 13 16 &17 Geo.6 and 1 Eliz. 2 cap 66 14 1996 cap 31; http://www.hmso.gov.uk/acts/acts1996/96031--f.htm

3 force on 1 April 1999. This Act provides that publication of any report mentioned in the schedule be privileged unless malice is shown. In the case of those reports mentioned in part II, no defence is available if the organ concerned declined to afford a suitable opportunity for publication of a statement of case by an offended party.

A copy of the relevant sections of the 1996 Act is in the Appendix.

4 The reporting of proceedings in Parliament There have been some long standing concerns about the legal uncertainties surrounding media reporting of proceedings in Parliament.

4.1 Parliamentary Papers Act 1840 Parliamentary publications are protected by parliamentary privilege, by virtue of the Parliamentary Papers Act 1840.15 This Act was introduced as a result of the case Stockdale v Hansard16 which found that papers published under the authority of the House were not privileged. The effect of the Act was, if the Speaker duly issues a certificate, to accord absolute privilege to the “publication of any such report, paper, votes, or proceedings...by or under the authority of either House of Parliament”.17 The making of extracts or abstracts was also covered if the extract or abstract was published bona fide and without malice.18

The Report of the Committee on Super-Injunctions, chaired by Lord Neuberger which was published on 20 May 2011, has suggested that the law requires clarification. This is discussed further below.

Publishers of reports of Parliamentary debates are also more generally protected under the common law. Erskine May comments:

But the publication, whether by the order of the House or not, of a fair and accurate account of a debate in either House is protected by the same principle as that which protects fair reports of proceedings in courts of justice, that the advantage of publicity to the community at large outweighs any private injury resulting from the publication, unless malice is proved. This is a matter of common law, rather than of parliamentary privilege.19

4.2 Joint Committee on Parliamentary Privilege 1999 During evidence sessions on taken by the Joint Committee on Parliamentary Privilege for their report of March 1999, Lord Bingham of Cornhill, then Lord Chief Justice pointed out some remaining uncertainties about reporting of proceedings in Parliament:

Mr Benton

423. Lord Chief Justice, I think your assumption is right that most MPs act in good faith in the main. As a Member you formulate an opinion on what you receive, whether by written or verbal communication, and very often find that whilst you might be unsure of an answer or the direction in which to go, you do from time to time give the benefit of your advice to, say, a constituent, if you do not take more direct action by means of

15 3 & 4 Vict, cap. 9 16 9 Ad & El 1, 8LJQB, 294 17 s. 1 18 s. 3. The definition of bona fide or without malice is “if such be the opinion of the jury”. 19 Erskine May Parliamentary Practice 23rd ed 2004 pp89-90. The case of Wason v Walter (1868-9) 4QB 73 is the most relevant

4 referring to a Minister or one of the parliamentary procedures. I wondered if, when you referred to qualified privilege, you were thinking in terms of, for example, the giving of advice to a constituent on a particular problem and, based on the advice given, it then extends to another party into a separate court action, nothing to do with the parliamentary proceeding, but at the same time much of what takes place hinges upon the advice that I have given. Do I interpret correctly that you would say in that given situation, where in fact I could be judged as the person who has given the wrong advice, that would be subject to the qualified privilege that you are talking about?

A. Yes. I think the principle is that qualified privilege attaches to any complaint made by a person to a person who has interest to receive it and to anything which that person does to communicate in a suitable court. Taking an entirely different example, if I think that a jockey has pulled a horse in a race and deliberately avoided winning for reasons best known to him or the horse's owner, and I write to the Jockey Club and make that suggestion, assuming that the Jockey Club is the appropriate person to write to (which I think it would be), I would not be liable if it represented my genuine belief. If on the other hand I was another jockey who had it in for this particular jockey because he was a champion jockey and had pipped me for the title, then if I did not have belief in the truth of what I was saying, it would be malicious and false and I would not be protected, but nor should I be in my view.

Lord Waddington

424. I am a bit worried about the position regarding the reporting of what has happened in Parliament. Let us go back to your original example. The MP receives a letter from a constituent who says that he believes child abuse is going on in a children's home and the MP goes straight along to the floor of the House and makes a speech in the course of which he says, "Yesterday I received a letter from a constituent alleging that in such and such a children's home the most appalling child abuse is going on", and there is then a programme on television and a bald announcement that yesterday on the floor of the House of Commons David Waddington alleged on the basis of what he had heard from a constituent that it was believed that abuse was going on in a particular children's home, what then is the protection afforded to that broadcaster and what should be the protection in your view?

A. I think the protection accorded it is for a fair and accurate report of proceedings in Parliament and if it was a fair and accurate report of what the Member had said on the floor of the House, then that is certainly the subject of qualified privilege and perhaps of absolute privilege, but I may be wrong about that, but certainly there is protection for fair and accurate reports of proceedings in Parliament. I would think it unfortunate if that train of events took place and I think it would be very much preferable if a Member of Parliament, instead of making the accusation on the floor of the House, made the communication more discreetly to an appropriate quarter, seeking that the matter should be investigated and looked into. I think one has to be very careful about any legal restraint on absolute privilege for the statements made in Parliament on the floor of either House.

Mr Tyler

425. May I just pursue Lord Waddington's point? At the moment if in an adjournment debate a Member of Parliament made some such accusation and introduced such material that he or she had, there would surely be absolutely nothing to stop the broadcasters simply taking the transmission from the floor of the House straight out, and that is where broadcasting has changed the proceedings somewhat. Until the broadcasting of radio and television, Hansard was able to sanitise to some extent what was being said. Since live broadcasting that is not true. If the Member then went

5 straight off to the Newsnight studio and repeated the allegation, clearly that would be then only qualified privilege.

A. No, I think the Member would have no privilege at all then, because he would not be making the complaint to an appropriate place to get the matter investigated or put right. He would be, on your example, re-publishing a statement in an unprivileged environment that he had earlier made in a privileged environment. I think there is a distinction between his repeating it and a fair and accurate report of proceedings in Parliament.

426. I think we all need to know this. We may not be all as well educated in the legal niceties as the Lord Chief Justice. A Member of Parliament, in writing to a Minister, is covered by qualified privilege, is not publishing it in that sense. If he raises it on the floor of the House he has got absolute privilege.

A. Yes.

427. If he walks down the road and repeats that, even if he includes some qualification that that is what he has heard and so on, in a television studio, that is not covered by any privilege?

A. Assuming it is a defamatory statement that he makes.

428. So communication to a Minister is qualified; communication to the general public is not?

A. That would ordinarily be the rule.

Mr Michie

429. In other words, if an MP or a Lord wants to expose an issue covered by absolute privilege in the House and then this Member happens to be interviewed on television about the statement in the House, how far can that Member answer any questions in a TV interview about that statement?

A. He has got to be rather careful about it. I think this is really what one does see in real life. Occasionally members of the public say, "I invite Mr So-and-So to make that statement outside the House", which is tantamount to saying, "If he says that outside I will sue him".

Lord Merlyn-Rees

430. What is the situation if an allegation is made in the House and the Member who makes it is covered by absolute privilege, and then another Member goes on television and the matter crops up and he says, "This was alleged in the House of Commons earlier this evening"? Is he in a different position?

A. Not unless he was giving a fair and accurate report of proceedings in the House. I think in your example he is simply repeating an allegation and he probably would not be. 20

In a memorandum to the Committee, Lord Bingham had commented:

3. It is obviously debatable where the limits of absolute privilege should lie. My own preference, I think, would be:

20 HC 214-III, 1998-99, pp116-7

6 (1) that members of both Houses should continue to enjoy absolute privilege for anything said in debate or in any parliamentary question or answer written or oral (ie, effectively, for anything reported in Hansard);

(2) that members of both Houses should enjoy qualified privilege for anything else said or written in their capacity as members.

Thus the protection under (2) would be lost if the member where shown to have made the statement in question without believing it to be true or from some ulterior or wrongful motive. And there would (as now) be no special protection for defamatory statements made by members otherwise than in their capacity as such.21

The Joint Committee report expressed some concerns about the position in respect of possible proceedings for contempt of court. It concluded that reform was necessary:

It is doubtful whether the common law affords protection against a contempt of court claim, or against prosecution for a breach of the official secrets legislation, when a newspaper carries a report of statements made in Parliament in breach of a court ‘no- publicity’ injunction or in breach of the Official Secrets Act.

In practice such claims are unlikely, but if there is to be legislation the position should sensibly be clarified, in favour of the press. As the Clerks of the two Houses put it: why expose the media to criminal liability for publishing the same speech that the public can read in Hansard.22

The Joint Committee was also concerned about the position of broadcasters reporting live, where interjections might be broadcast, but might not be considered to be proceedings and therefore attract the protection of the 1840 Act.23

4.3 The Neuberger Report on Super-injunctions The committee chaired by the Master of the Rolls, Lord Neuberger, reported on 20 May 2011. The report as a whole is discussed in Standard Note 5978 Privacy. In a separate chapter on parliamentary privilege, the report set out its understanding of the current position with respect to the media reporting of parliamentary proceedings. It upheld the constitutional importance of the Bill of Rights 1689:

• Article 9 of the Bill of Rights 1689 recognises and enshrines a longstanding privilege of Parliament: freedom of speech and debate. It is an absolute privilege and is of the highest constitutional importance.

Any attempt by the courts to go beyond that constitutional boundary would be unconstitutional. No super-injunction, or any other court order, could conceivably restrict or prohibit Parliamentary debate or proceedings 24

The report also commented on communications between a constituent and his or her MP:

Erskine May states that Parliamentary privilege does not extend as a general rule to communications between a constituent and his or her MP. Where it does arise, and to

21 HC 214-III, p109 22 Joint Committee on Parliamentary Privilege Report HL Paper 43-I/HC 214 1998-99, paras 364-5 23 Joint Committee on Parliamentary Privilege Report HL Paper 43-I/HC 214 1998-99, paras 366-9 24 Report of the Committee on Super-Injunctions May 2011 Summary of Conclusions and Recommendations

7 the extend that it does arise, court orders cannot oust that privilege nor is there any evidence that any order has purported to do so.25

Neuberger suggested that where the media did more than simply set out a summary or reprint Hansard, the report might not attract qualified privilege:

(iii) Media reporting of Parliamentary Proceedings

Media reporting of Parliamentary proceedings is protected by the Parliamentary Papers Act 1840, which provides an absolute immunity in respect of civil or criminal proceedings for Hansard and any other publication made by order of Parliament. It also provides an absolute privilege for any individual who publishes a copy of Hansard.

The 1840 Act also provides a qualified privilege in civil or criminal proceedings for individuals who publish a summary of material published in Hansard.

Qualified privilege arises where such a summary is published in good faith and without malice. There is no judicial decision as to whether a summary of material published in Hansard which intentionally had the effect of frustrating a court order would be in good faith and without malice.

Where media reporting of Parliamentary proceedings does not simply reprint copies of Hansard or amount to summaries of Hansard or parliamentary proceedings they may well not attract qualified privilege.

This might affect the protection at common law from contempt proceedings if the media breached a court order:

Where media reporting of Parliamentary proceedings does not attract qualified privilege, it is unclear whether it would be protected at common law from contempt proceedings if it breached a court order. There is such protection in defamation proceedings for honest, fair and accurate reporting of Parliamentary proceedings. There is no reported case which decides whether the common law protection from contempt applies. There is an argument that the common law should adopt the same position in respect of reports of Parliamentary proceedings as it does in respect of reports of court proceedings 26

The report suggested that legislative change would be feasible:

6.34 It is a matter of substantive policy whether Parliament wishes to clarify the law in this area, and it may well do so in the Defamation Bill, of which a draft is currently being considered by a Parliamentary Joint Committee, or in the proposed Parliamentary Privilege Draft Bill. It may be that the law will be clarified by the courts in due course. All this Committee can do is to say that, on the first question identified in paragraph 6.1 above, the law is quite clear, and, on the second question, it is not.27

On 23 May the Attorney General, Dominic Grieve, announced that a joint Committee of both Houses would be established to consider the correct balance between freedom of expression and privacy.28 Following this statement, there were several questions concerning the appropriate separation of powers between the courts and Parliament. The Government has

25 Report of the Committee on Super-Injunctions May 2011 Summary of Conclusions and Recommendations 26 Report of the Committee on Super-Injunctions May 2011 Summary of Conclusions and Recommendations 27 Report of the Committee on Super-Injunctions May 2011 28 HC Deb 13 May 2011 c634

8 announced plans for a draft parliamentary privilege bill in this session which is likely to be subject to parliamentary scrutiny by a separate joint select committee.29

5 Injunctions and contempt of court The ability of the media to report on parliamentary proceedings where the courts have imposed injunctions precluding the publication of material is under current discussion. This section provides further background.

5.1 Trafigura In October 2009, an issue arose about the freedom of a newspaper to report details of a parliamentary question, when the paper concerned (the Guardian) appeared to be constrained by what was described by the press as a “super injunction”.30 A summary only is given of the issues raised.

The question, laid by Paul Farrelly MP, concerned a super-injunction obtained by the law firm Carter-Ruck on behalf of Trafigura, a large London-based trading company. Among the legal issues raised, the Guardian identified for debate the question of whether an injunction issued by the courts could preclude the reporting of parliamentary proceedings.

In a letter to the Speaker on 14 October, Carter-Ruck stated that there had never been any question of Trafigura applying for an injunction that had as its purpose the prevention of publication of any matter arising in Parliament. The letter went on:

Nevertheless, as formulated (and as The Guardian apparently accepts) the Order would indeed have prevented The Guardian from reporting on the Parliamentary Question which had been tabled for later this week. Following correspondence yesterday, we made clear to The Guardian that we would take further instructions on their request to vary the Order and respond to them as soon as possible today, but despite (or because) of that they chose to publish their article last night and this morning regardless.

There is no question of Trafigura seeking to "gag" the media from reporting Parliamentary proceedings, and the parties have now agreed to an amendment to the existing Order so as to reflect that.

Copies of the Carter-Ruck letter were sent to Members of both Houses and it is also available online as a deposited paper.31 The Speaker, John Bercow, responded by letter, stating that the applicability of the sub judice ruling was a matter for the Chair.

As the parties agreed to a variation of the injunction, the question raised by the Guardian was not considered by the courts, and the situation remains unclear, although as discussed

29 Queens’ Speech: Parliamentary Privilege Draft Bill 25 May 2010 No 10 website 30 A "super-injunction" is often defined as an injunction which not only prevents publication, but which is itself secret 31 Letter from Carter-Ruck to Speaker of the House of Commons, 14 October 2009 Dep 2009/2953

9 above the Parliamentary Papers Act 1840 might offer a defence where a person published a bona-fide extract without malice (see comments on s 3 of the 1840 Act above).32

An issue remains; however, as it appears that to gain the benefit of such protection, any report of parliamentary proceedings would, inter alia, have to be taken from Hansard. While the common law accords qualified privilege to other fair and accurate reports, the protection afforded by the common law and the Defamation Act does not appear to extend to liability for contempt of court for breach of a no-publicity order or to criminal liability for an offence under the Official Secrets Acts. This point was made by the Neuberger report and discussed above.

This issue (and other potential issues that could arise from the sound and film track of Parliamentary proceedings, which each House makes available to radio and television stations and on the Internet) was raised in a letter by the Chairman of the Joint Committee on Parliamentary Privilege to the Lord Chief Justice in October 1998.33

In the light of various concerns expressed in the media, the Judicial Communications Office published a statement from Mr Justice Tugendhat which said that:

The Court ordered on 13 October 2009, with the consent of the parties, that nothing in the previous orders shall prevent any person from reporting proceedings in Parliament.34

On 20 October 2009, the Lord Chief Justice, Lord Judge, outlined his views on super- injunctions.35 In relation to the issue of injunctions precluding the reporting of parliamentary proceedings, the Lord Chief Justice said:

I am speaking entirely personally but I should need some very powerful persuasion indeed - and that, I suppose, is close to saying I simply cannot envisage - that it would be constitutionally possible, or proper, for a court to make an order which might prevent or hinder or limit discussion of any topic in Parliament. Or that any judge would intentionally formulate an injunction which would purport to have that effect. 36

On 21 October 2009, a debate entitled English Libel Law (Parliamentary Proceedings) was held in Westminster Hall, despite concerns expressed by Carter-Ruck. During the course of

32 The issue is not a new one, and was referred to by the Newspaper Society in its submission to the Joint Committee on Parliamentary Privilege in January 1998. In that submission, the society argued that: “The respective position of Members of Parliament and the media are unclear. For example, the issues as to liability raised by the Colonel B affair and Spycatcher have not been satisfactorily resolved. Fair and accurate media reports of parliamentary proceedings and papers ought to be protected against action for contempt of court in any event, but particularly so if Members of either House or officials do enjoy parliamentary privilege and are not themselves in contempt of Parliament for the words or action reported. As the Spycatcher litigation demonstrated, there is scope for restrictions upon UK Parliamentary discussions and reports of them (an injunction had to be varied expressly to permit reporting of Parliamentary proceedings), untenable elsewhere. Only if formal legal challenge is mounted is the necessity for secrecy questioned.” The Committee concluded (at paras 364-365 of its report Parliamentary Privilege, HC 214-I, 9 April 1999) that: “Section 3 protects against all civil and criminal liability, but the press generally are not able to rely on section 3 because their reports are not taken from Hansard. The press must rely on the protection of the common law. The common law affords protection against claims for defamation. It is doubtful whether the common law affords protection against a contempt of court claim, or against prosecution for a breach of the official secrets legislation, when a newspaper carries a report of statements made in Parliament in breach of a court `no-publicity' injunction or in breach of the Official Secrets Act. […] In practice such claims are unlikely, but if there is to be legislation the position should sensibly be clarified, in favour of the press.” 33 Correspondence between the Chairman of the Joint Committee on Parliamentary Privilege and the Lord Chief Justice. October 1998 34 http://www.judiciary.gov.uk/media/media-releases/2009/News-release-2709 35 Judicial Communications Office, Press Release, 20 October 2009 36 Ibid

10 that debate, the issue of the protection offered by the Parliamentary Papers Act 1840 was again debated and the minister, Bridget Prentice, assured the House that the Act was still in force.37

The Culture Media and Sport Committee’s report Press Standards, Privacy and Libel published in February 201038 commented on the Trafigura case, recommending urgent changes in the Parliamentary Papers Act 1840:

101. The free and fair reporting of proceedings in Parliament is a cornerstone of a democracy. In the UK, publication of fair extracts of reports of proceedings in Parliament made without malice are protected by the Parliamentary Papers Act 1840.

They cannot be fettered by a court order. However, the confusion over this issue has caused us the very gravest concern that this freedom is being undermined. We therefore repeat previous recommendations from the Committee on Parliamentary Privilege that the Ministry of Justice replace the Parliamentary Papers Act 1840 with a clear and comprehensible modern statute.

102. These events involving Trafigura occurred after the conclusion of our oral evidence sessions. In a debate in Westminster Hall on 21 October 2009, Bridget Prentice MP, the Parliamentary Under-Secretary of State for Justice, said that the Ministry of Justice was examining the use of super-injunctions outside the areas of fraud and child protection with the judiciary and lawyers from major newspapers.105 Notwithstanding the controversy already, Carter-Ruck had also sought to persuade the Speaker of the House of Commons that this debate should not proceed as the case was sub judice under the House’s own rules.

The Speaker, however, exercised his absolute discretion and allowed the debate. We welcome the Speaker’s determination to defend freedom of speech in Parliament, as well as the comments by the Lord Chief Justice on the Trafigura affair, and strongly urge that a way is found to limit the use of super-injunctions as far as is possible and to make clear that they are not intended to fetter the fundamental rights of the press to report the proceedings of Parliament. Given the importance of these issues, we hope that a clear statement regarding the way forward is made before the end of this Parliament.

The Government response to the Committee report in April 2010 referred to the committee established by the Master of the Rolls as likely to establish a way forward.39

5.2 Recent developments Members of both Houses have expressed frustration at the scope of super-injunctions. On 19 May the Liberal Democrat peer Lord Stoneham, on behalf of Lord Oakeshott, named a banker who had taken out an injunction during the course of a Lords debate.40 This was subsequently reported in the press. That afternoon Lord Tugendhat granted a variation of the injunction. In his judgment which was published on 23 May, Lord Tugendhat drew attention to inaccuracies in press reporting about the injunction.41

37 HC Deb 21 October 2009 c295WH 38 Second Report Culture Media and Sport Committee HC 362 2009-10 39 Culture Media and Sport Committee First Special Report HC 532 2009-10 40 HL Deb 19 May 2011 c1491 41 Goodwin v News Group Newspapers 19 May 2011 Lord Justice Tugendhat

11 At a press conference to launch the Neuberger Report, Lord Judge, the Lord Chief Justice, said:

It is, of course, wonderful for you if a Member of Parliament stands up in Parliament and says something which in effect means that an order of the court on anonymity is breached. But you do need to think, do you not, whether it is a very good idea for our law makers to be in effect flouting a court order just because they disagree with the order, or for that matter because they disagree with the law of privacy which Parliament has created. It is a very serious issue, in my view. There has never been any question in any of these orders - not in any single one of them - of the court challenging the Sovereignty of Parliament. That is not the issue. We are following the law as best we understand it at the level of the judiciary where the issues have been canvassed. But, as the Master of the Rolls has just said, our constitutional arrangements have for centuries worked on the basis of mutual respect and comity. It is very interesting, as the Report makes clear in paragraphs 5.3 and 5.4, to see how Parliament has looked at this issue. In 5.3 there is a quotation from the 1999 Joint Committee on Parliamentary Privilege (and I quote from the Committee's own Report). The sub judice rules need "to strike a balance between two sets of principles. On the one hand, the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions. On the other hand, Parliament has a constitutional right to discuss any matter it pleases". That is Parliament's view. If I may say so, with respect, I entirely agree with it.42

The Neuberger report of 20 May 2011 examined issues arising from the Trafigura case, as well as the operation of the sub judice rule in Parliament. It discussed whether there should be a mechanism to alert Parliament, through the Commons Table Office where the sub judice rule might be in danger of being breached. It recommended that senior parliamentary officials have access to a Court Service database with details of anonymised and/or super- injunctions.

The report also considered media reporting in the light of Trafigura:

6.3 The supposed scope of the Trafigura order therefore, unsurprisingly, raised considerable disquiet amongst a wide range of organisations, the media, MPs, the government and the public188. The issue was debated in Parliament. Questions were raised whether and to what extent the order breached Article 9 of the Bill of Rights 1689 and the ability of the press to freely report Parliamentary proceedings. Further questions were raised regarding the Parliamentary Papers Act 1840, whether it was still in force, and whether it was applicable. Questions were raised about the separation of powers.

6.4 In answer to a question raised at a press conference, Lord Judge CJ explained that, in his personal view, it would not be constitutionally proper or possible for a court to enjoin Parliament. He was not asked whether reporting Parliamentary proceedings could, in any circumstances, be a contempt of court. The Lord Chancellor, subsequently, discussed the issue with the media, and through his officials, raised their concerns with the senior judiciary.

6.5 These concerns, and the two questions, were not tested in the courts as the injunction in Trafigura was amended by consent to make it clear that it did not prevent

42 Press Conference held by the Lord Chief Justice of England and Wales and the Master of the Rolls 20 May 2011 p4-5

12 the publication or reporting of proceedings of Parliament. Nor have they been tested since.

Following the statement made by the Attorney General on 23 May, John Hemming named a footballer who had taken out an injunction 43.At the time of writing, the injunction has not been lifted, but the press reported the name. 44

6 Members’ Correspondence The communication of defamatory material by a Member in writing or orally outside the House is not covered by absolute privilege. The Privileges Committee’s finding in the Strauss case that a communication between a Member and a minister was a proceeding in Parliament was not supported by the whole House in 1958.45 However, it may well be subject to qualified privilege.

The reporting by a Member of a complaint made by a constituent to a person who has an interest in or may be in a position to act on the complaint would be likely to attract qualified privilege. In 1969, Reg Freeson communicated certain complaints about a firm of solicitors, which he knew were defamatory, to the Law Society and to the Lord Chancellor. It was held by the Court that an MP had “both an interest and a duty to communicate to the appropriate body at the request of a constituent any substantial complaint from the constituent concerning a professional man in practice at the service of the public...”. It thus ruled that Mr Freeson’s letter was subject to qualified privilege.46

Professor Anthony Bradley, Emeritus Professor of Constitutional Law, University of Edinburgh, commented during his evidence session to the Joint Committee on Parliamentary Privilege on the question of Members’ correspondence:

There is no doubt that matters that are contained in speech in the House or in a Committee are subject to absolute privilege under Article 9 and so, for that matter, are matters contained in House of Commons papers. We have the supporting authority of the Parliamentary Papers Act in that context. To enable the House and Members to perform their function, documents that are ancillary to those matters must surely also be protected, whether drafts of questions or Members' notes he or she may use in a speech, and other ancillary matters. At the borderline is the question of an MP's letter to the minister which, in my view, raises the difficult issue of where you draw the line. If the argument is that this may be preliminary to or instead of a question in Parliament, why should not such a letter by a Member to a minister be a proceeding in Parliament?

If we stop short of that and we have, for example, constituents' letters to MPs or MPs' letters to constituents, or what is said in a surgery or what is said at a protest meeting that a Member attends in his constituency, those do not seem to me to be parliamentary proceedings. They relate to the Member's presence and functions in the constituency. Therefore, I would at the moment not wish to argue that proceedings in Parliament should be widened to include everything that is done by a Member in his or her capacity as a Member. I believe there is a good deal of support for that proposition to be found both in this country and abroad. Of course, what is said in correspondence between a constituent and a Member of Parliament will almost certainly be covered by qualified privilege at common law. As I have indicated earlier today, it seems as if

43 HC Deb 23 May 2011 c639 44 See judgment by Mr Justice Tugendhat CBT v News Group Newspapers 23 May 2011 45 HC 227 1957-58. The report was debated at HC Deb 8 July 1958. See Parliament: Functions, Practice and Procedures Robert Blackburn and Andrew Kennon 2003 para 3-11 46 Beach and anor. v Freeson, 1QB[1972] p 14

13 Members of Parliament since the 1950s have been able to carry out their duties on that basis. While I accept that there may be an argument for putting letters to ministers within the definition of proceedings in Parliament, it may not be that there is a real need shown at the present time for that to be done.47

Since the Freeson case, Members have effectively had protection for their constituency correspondence, always provided the channel of communication was a proper one for the transmission of a complaint or other defamatory comment, to a responsible authority, and that no malice was involved.48 But it must be stressed this is a common-law right based on case law; every case is different, and Members are open to continued challenge in the courts in this respect.

A Member has been sued for comments made to a newspaper about an issue in his constituency. Although the courts dismissed the action, he incurred costs in defending the action. The Commons passed a motion on 23 May 2000 to provide for his expenses to be reimbursed. The House also agreed to establish an insurance scheme for Members covering their role as employers and ‘the cost of defending a civil claim for defamation and of payment in respect of any award made by a court in such a claim, where the act complained of was not covered by parliamentary privilege, but arose from the Member’s duty as a Member.’49 A further specific resolution was agreed to provide the Member, Jack Straw, with compensation for legal costs in an action for negligence brought against him:50

Bearing in mind the impact of the Data Protection Act 1998, a statutory instrument has been passed to enable the Member (or someone acting with their authority) to process sensitive personal information about the constituent in the course of the Member’s “functions as a representative” (e.g. constituency casework) without having to establish “explicit consent”. The order also gives others (e.g. agencies or organisations) who are contacted by Members authority to disclose sensitive personal information to them where this is necessary to help with their functions, without having to obtain the explicit consent of the individual concerned.51

7 Some practical examples The law on qualified privilege is based mostly on case law, and is thus in a state of continual evolution. The following examples are illustrative of general principles, but must not be regarded as statements of the law:

1. Member raising constituent’s allegation with appropriate authority A Member referring an allegation to a Minister, government body, council or company would not be protected by absolute privilege, since letters and telephone calls originating with Members are not proceedings in Parliament for the purposes of the Bill of Rights. See section A above. See Section E above for the applicability of qualified privilege to Members’ correspondence.

2. Member repeating allegation made in House outside

47 Ibid, p137 48 See comment by Lord Bingham in section B above, Q 428. 49 HC Deb 23 May 2000 c938. Details of the scheme are available on the intranet at http://intranet.parliament.uk/finances/insurance/mps-insurance 50 HC Deb 5 July 2001 Vol 371 c 477. The issue is discussed in Library Standard Note SN/PC 1010 Members’ Constituency Role: Parliamentary Privilege and Insurance 51 Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2002 [SI 2002/2905] This is discussed in Library Standard Note SN/HA 1936 Data Protection: Constituency Casework

14 The Member would not be protected when repeating his/her own allegation. A Member quoting an allegation made by another Member might not be protected by qualified privilege, depending whether the repetition was or was not part of a fair and accurate report of the debate, and, if not, whether the repetition was to the general public (unlikely to be privileged) or to another person within the community of interest (e.g. a minister, councillor, or peer) in which case qualified privilege would be more likely to apply.

3. Defamatory material in debates, questions, committee sittings, etc The member has absolute privilege under the Bill of Rights. The Official Report, issued under the authority of the House, has absolute privilege under the Parliamentary Papers Act 1840.

4. Third party publishes extract of debate containing defamatory material. The publisher is protected by qualified privilege only, as provided for by the 1996 Act. Absolute privilege would apply if the whole debate was published rather than an extract.52

5. Notes for speeches etc. In his comment quoted above in Section 6, Prof. Bradley gave his opinion that material preparatory to a proceeding in Parliament would be covered by absolute privilege under the Bill of Rights. This has not been tested in the courts.

6. Member of public repeating Member’s accusation The member of the public would not be protected by qualified privilege unless the allegation was part of a fair and accurate account of the parliamentary proceedings.

7. Newspaper reporting Member’s comments in House The same as 2 above.

8. Staff of House quoting Member’s accusation made in the House to outside enquirer This would be protected by qualified privilege, but the test of malice would still apply.

9. Staff of member repeating allegation made by his/her Member in House Always provided there is no malice involved, a person employed by a member would be protected as an agent or representative.

“The protection provided by qualified privilege extends to statements published by an agent or representative of the person who has the requisite interest or duty, provided the agent is acting within the scope of his express or implied authority”53

10. Staff of Member receiving allegations from a constituent If the Member had qualified privilege in receiving the information, so would the secretary or researcher in receiving it on the Member’s behalf.54

11. Member giving unfavourable reference for former member of staff A person supplying details of irregularities to a potential employer would be covered by qualified privilege. However, there may be a duty of care towards an ex-employee which might result in the ex-employer being held negligent.55

52 Wason v Walter (1868-69) 4 QB 73; Cook v Alexander 1973, 3 WLR 617ff 53 D Price, op cit, p. 97,.See in particular: Toogood v Spyring (1834) 1 C.M.&R. 181; Watts and Times Newspapers Ltd [1996] 1 W.L.R 427; Regan v Taylor [2000] E.M.L.R 549; and, Egger v Viscount Chelmsford [1965] 1 Q.B. 248 54 Ibid.

15 Appendix: Defamation Act 1996

SCHEDULE 1

QUALIFIED PRIVILEGE

PART I

STATEMENTS HAVING QUALIFIED PRIVILEGE WITHOUT EXPLANATION OR CONTRADICTION

1 A fair and accurate report of proceedings in public of a legislature anywhere in the world.

2. A fair and accurate report of proceedings in public before a court anywhere in the world.

3. A fair and accurate report of proceedings in public of a person appointed to hold a public inquiry by a government or legislature anywhere in the world.

4. A fair and accurate report of proceedings in public anywhere in the world of an international organisation or an international conference.

5. A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.

6. A notice or advertisement published by or on the authority of a court, or of a judge or officer of a court, anywhere in the world.

7. A fair and accurate copy of or extract from matter published by or on the authority of a government or legislature anywhere in the world.

8. A fair and accurate copy of or extract from matter published anywhere in the world by an international organisation or an international conference.

PART II STATEMENTS PRIVILEGED SUBJECT TO EXPLANATION OR CONTRADICTION . –

(1) A fair and accurate copy of or extract from a notice or other matter issued for the information of the public by or on behalf of-

(a) a legislature in any member State or the European Parliament;

(b) the government of any member State, or any authority performing governmental functions in any member State or part of a member State, or the European Commission;

(2) In this paragraph "governmental functions" includes police functions.

10. A fair and accurate copy of or extract from a document made available by a court in any member State or the European Court of Justice (or any court attached to that court), or by a judge or officer of any such court.

11. - (1) A fair and accurate report of proceedings at any public meeting or sitting in the United Kingdom of-

55 Ibid, p.88, quoting Spring v Guardian Insurance, 1995 2AC, p.296

16 (a) a local authority or local authority committee;

(b) a justice or justices of the peace acting otherwise than as a court exercising judicial authority;

(c) a commission, tribunal, committee or person appointed for the purposes of any inquiry by any statutory provision, by Her Majesty or by a Minister of the Crown or a Northern Ireland Department;

(d) a person appointed by a local authority to hold a local inquiry in pursuance of any statutory provision;

(e) any other tribunal, board, committee or body constituted by or under, and exercising functions under, any statutory provision.

(2) In sub-paragraph (1)(a)-

"local authority" means-

(a) in relation to England and Wales, a principal council within the meaning of the Local Government Act 1972, any body falling within any paragraph of section 100J(1) of that Act or an authority or body to which the Public Bodies (Admission to Meetings) Act 1960 applies,

(b) in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 or an authority or body to which the Public Bodies (Admission to Meetings) Act 1960 applies,

(c) in relation to Northern Ireland, any authority or body to which sections 23 to 27 of the Local Government Act (Northern Ireland) 1972 apply; and

"local authority committee" means any committee of a local authority or of local authorities, and includes-

(a) any committee or sub-committee in relation to which sections 100A to 100D of the Local Government Act 1972 apply by virtue of section 100E of that Act (whether or not also by virtue of section 100J of that Act), and

(b) any committee or sub-committee in relation to which sections 50A to 50D of the Local Government (Scotland) Act 1973 apply by virtue of section 50E of that Act.

(3) A fair and accurate report of any corresponding proceedings in any of the Channel Islands or the Isle of Man or in another member State.

12. - (1) A fair and accurate report of proceedings at any public meeting held in a member State.

(2) In this paragraph a "public meeting" means a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of a matter of public concern, whether admission to the meeting is general or restricted.

13. - (1) A fair and accurate report of proceedings at a general meeting of a UK public company.

(2) A fair and accurate copy of or extract from any document circulated to members of a UK public company-

17 (a) by or with the authority of the board of directors of the company,

(b) by the auditors of the company, or

(3) A fair and accurate copy of or extract from any document circulated to members of a UK public company which relates to the appointment, resignation, retirement or dismissal of directors of the company.

(4) In this paragraph "UK public company" means-

(a) a public company within the meaning of section 1(3) of the Companies Act 1985 or Article 12(3) of the Companies (Northern Ireland) Order 1986, or

(b) a body corporate incorporated by or registered under any other statutory provision, or by Royal Charter, or formed in pursuance of letters patent.

(5) A fair and accurate report of proceedings at any corresponding meeting of, or copy of or extract from any corresponding document circulated to members of, a public company formed under the law of any of the Channel Islands or the Isle of Man or of another member State. 14. A fair and accurate report of any finding or decision of any of the following descriptions of association, formed in the United Kingdom or another member State, or of any committee or governing body of such an association-

(a) an association formed for the purpose of promoting or encouraging the exercise of or interest in any art, science, religion or learning, and empowered by its constitution to exercise control over or adjudicate on matters of interest or concern to the association, or the actions or conduct of any person subject to such control or adjudication;

(b) an association formed for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business, industry or profession, and empowered by its constitution to exercise control over or adjudicate upon matters connected with that trade, business, industry or profession, or the actions or conduct of those persons;

(c) an association formed for the purpose of promoting or safeguarding the interests of a game, sport or pastime to the playing or exercise of which members of the public are invited or admitted, and empowered by its constitution to exercise control over or adjudicate upon persons connected with or taking part in the game, sport or pastime;

(d) an association formed for the purpose of promoting charitable objects or other objects beneficial to the community and empowered by its constitution to exercise control over or to adjudicate on matters of interest or concern to the association, or the actions or conduct of any person subject to such control or adjudication.

15. - (1) A fair and accurate report of, or copy of or extract from, any adjudication, report, statement or notice issued by a body, officer or other person designated for the purposes of this paragraph-

(a) for England and Wales or Northern Ireland, by order of the Lord Chancellor, and

18 (b) for Scotland, by order of the Secretary of State.

(2) An order under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.