In speaking to Amendment 43, it may be convenient for me to speak also to Amendment 44 as they both deal with privilege. If that is not convenient, I shall speak to Amendment 43 only, but they are grouped together.
There is one defect in Amendment 43, which is that subsection (4) should not repeal the Parliamentary Papers Act 1840 for reasons that I shall explain.
I know that the Minister will say in his reply, “Leave it all to the Committee on Parliamentary Privilege”, but I hope that these amendments will eventually persuade the Government that that is not a convenient and sensible course. That will be particularly true when we come to the Neil Hamilton affair and Clause 13, which was being dealt with 13 years ago by the Joint Committee on Parliamentary Privilege of the noble and learned Lord, Lord Nicholls of Birkenhead. There has never been a more authoritative committee, crowded as it was with jurists, former law officers of the Crown and evidence given by every conceivable expert on parliamentary privilege. The idea that we should now revisit what that committee said about Clause 13 of the Defamation Act is not sensible.
However, before I come to that, I need to deal with Amendment 43. The amendment would have the effect of reinstating Clause 7 of the Bill that I produced to provide absolute privilege in defamation proceedings for fair and accurate reports of proceedings in Parliament. Section 1 of the Parliamentary Papers Act 1840 prevents any civil or criminal proceedings in respect of a report, paper, votes or proceedings published by order of either House. Section 2 confers similar protection on copies of such publications. Section 3 confers a lesser degree of protection on any extract from or abstract of such publications, which must be published in good faith and without malice.
Newspaper reports which are not taken from Hansard are also protected at common law. The case of Wason and Walter, 1868-69, 4 Queen’s Bench, 73, established that by analogy with reports of court proceedings, a publisher of a report of a parliamentary debate is protected at common law from actions for defamation. If the whole debate is published, the protection is absolute. If less than the whole is published, the protection is qualified by the requirement that it is published without malice, as stated in the Joint Committee on Parliamentary Privilege report 1999, paragraph 356.
Court proceedings now enjoy absolute privilege under Section 14 of the Defamation Act 1996. Section 15 confers qualified privilege on reports of the proceedings in public of a legislature anywhere in the world, as well as material published by or on the authority of a Government or legislature anywhere in the world, which we have just discussed. The report must be fair and accurate and published without malice and in the public interest.
Wason and Walter was decided by analogy with the privilege afforded to court proceedings. Chief Justice Cockburn said that given the,
“paramount public and national importance that proceedings of the Houses of Parliament shall be communicated to the public … to us it seems clear that the principles on which the publication of reports of proceedings of Courts of Justice have been held to be privileged apply to the reports of Parliamentary proceedings. The analogy between the two cases is in every respect complete”.
The same protection should therefore be conferred on fair and accurate reports of parliamentary proceedings as applies to court proceedings.
In 1999, the Joint Committee on Parliamentary Privilege of the noble and learned Lord, Lord Nicholls of Birkenhead, described the 1840 Act as being,
“drafted in a somewhat impenetrable early Victorian style”.
It recommended that the,
“protection given to the media by the 1840 Act and the common law itself should be retained.
We consider, further, that the statutory protection would be more transparent and accessible if it were included in a modern statute, whose language and style would be easier to understand than the 1840 Act. We recommend that the 1840 Act, as amended, should be replaced with a modern statute”.
The 1840 Act was considered more recently by the House of Commons Culture, Media and Sport Committee in its report Press Standards, Privacy and Libel, at paragraphs 94 to 102. Referring to the 2009 case between Trafigura and the Guardian newspaper, that committee concluded that Parliamentary Questions tabled regarding the case were clearly covered by these provisions and would not therefore be covered by the then existing super-injunction which prevented publication of any reference to the case. That interpretation was challenged by the firm of Carter-Ruck, acting for Trafigura. I do not think that I need to go through that, but the committee concluded:
“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”.
Neither committee specifically addressed the question of whether publication of reports of parliamentary proceedings should be absolute or remain qualified. The approach taken in my Bill was endorsed by the Joint Committee on the Draft Defamation Bill on the basis that it is of fundamental importance that proceedings in Parliament can be reported upon freely by the press to ensure that people can discover what is being said and done by elected representatives on their behalf. In paragraph 51 of its report, my noble friend Lord Mawhinney’s committee said:
“We recommend adding a provision to the Bill which provides the press with a clear and unfettered right to report on what is said in Parliament and with the protection of absolute privilege for any such report which is fair and accurate”.
The Government’s response left the issue to the Parliamentary Privilege Green Paper. I will not take further the time of the Committee by reading any of that, but some of the issues which they raise have nothing to do with defamation, but with privacy and contempt of court. I accept that the issues raised in their Green Paper on contempt and privacy may be best dealt with in more detail by the Joint Committee on Parliamentary Privilege or the Law Commission in its review, now pending, on the law of contempt of court. However, none of that is any good reason for not giving effect to what the committee of the noble Lord, Lord Nicholls, recommended 13 years ago, what
the Commons committee has recommended and what the Joint Committee on this Bill has recommended. That is three committees over more than 13 years concentrating only on defamation, not on privacy or contempt.
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Amendment 44 would repeal Section 13 of the Defamation Act 1996, effectively reinstating Clause 16 of my Bill. Clause 13(1) provides that:
“Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings”.
Accordingly, if a Member of Parliament is accused of accepting money to ask parliamentary questions, as happening in the Neil Hamilton affair, the MP may waive the privilege given by Article 9 of the Bill of Rights 1688 and, in that event, evidence may be given and questions asked about the MP’s conduct without infringing parliamentary privilege. It is not possible to counterclaim for damages for slander spoken in Parliament, even against the claimant MP, who has himself waived privilege for the purpose of the proceedings.
Section 13 was strongly criticised by the 1999 report of the Joint Committee on parliamentary privilege, chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, in some detail. It was attacked as undermining the basis of privilege and creating indefensible anomalies, and states:
“A fundamental flaw is that it undermines the basis of privilege: freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it. Application of the new provision could also be impracticable in complicated cases; for example where two members ... are closely involved in the same action and one waives privilege and the other does not. Section 13 is also anomalous: it is available only in defamation proceedings. ... The Committee considers these criticisms are unanswerable”.
The Joint Committee recommended that Section 13 should be repealed and replaced by a new provision under which either House on the advice of a committee would make a general waiver of Article 9 in an appropriate case. It states:
“We recommend that the mischief sought to be remedied by section 13 ... should be cured by a different means. Section 13 should be replaced by a short statutory provision empowering each House to waive Article 9 for the purpose of any court proceedings, whether relating to defamation or any other matter, where the words spoken or the acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the acts to any legal liability. Each House will need to consider appropriate machinery once the section has been repealed”.
The parliamentary privilege Green Paper noted these criticisms and Clause 16 of my Bill, and invited views on whether Section 13 should be,
“repealed without replacement, amended, or left as it is, given that the existing power of waiver has never been used”.
Given the huge authority of the committee of the noble and learned Lord, Lord Nicholls of Birkenhead, 13 years ago, and the evidence of law officers past and present, anyone could not but realise that it is remarkable that this Government, when dealing with parliamentary privilege generally, should not have the guts, or the
political will to get rid of a really disgraceful provision that is Section 13, which was put in to appease Neil Hamilton at the time. It was attacked by everybody in the House of Lords during the debates and by great jurists, such as Lord Simon of Glaisdale. It was put in and carried on a Whip. Every expert in the field ever since has said that it was completely unconscionable. Given the pressure on the parliamentary timetable, it seems to me that as this is only about defamation and nothing else, we should now do as past committees have said and get rid of it. It should be left to both Houses to work out the proper machinery afterwards.
I forgot, in my overlong remarks, to explain why my proposed new subsection (4) is wrong in proposing the repeal of the whole of the 1840 Act. The new provision should apply only to defamation. If one left out the whole of the Act, there would be a gap in relation to other matters. For that reason, that bit is wrong. I beg to move.