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Parliamentary Privilege and Qualified Privilege

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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.
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