Political Commentary: Too much privilege and not enough judicial courage

IN THE past few weeks two Members of Parliament and one public relations consultant have had libel actions against newspapers stopped in the High Court. Mr Rupert Allason, the Conservative MP for Torbay, was trying to sue Mr Joe Haines, the political journalist, and Mr Richard Stott, the editor of Today. That was the first action to be stayed. In the second, Mr Neil Hamilton, the former minister who sits for Tatton, and Mr Ian Greer, who has his own public relations firm, had the Guardian in their sights until they were told to drop the gun.

In Mr Allason's case the judge was Mr Justice Owen; in Mr Hamilton's and Mr Greer's case, Mr Justice May. Both judges gave an identical reason for preventing the actions from going any further. This was that the newspapers and journalists concerned would not be able to defend themselves properly. They would be unable to do this, the judges said, because of parliamentary privilege. This, according to them, prevented the defendants from referring to debates or proceedings in Parliament. As they could not do so, justice required the plaintiffs' actions to be stopped.

Though Tory MPs are not these days the most popular figures in our national life, journalists rank still lower, lower even than estate agents. The benefits of a free press are not - alas! - widely appreciated in this land. Certainly, if there is any rough stuff flying around in the Royal Courts of Justice, the gentlemen of the press are usually to be found on the receiving end.

And yet here we have two libel actions being stopped because there is a risk of injustice to the newspapers concerned. It is as if the Devon and Somerset Staghounds were to take out a collective subscription to the RSPCA, though such is the oddness of the English that they may have one already. Anyway, these curious legal events clearly deserve further investigation.

The judges rely on article 9 of the Bill of Rights 1689, which is still the nearest we have to a written constitution. Indeed, when Lady Thatcher was once asked her opinion about a Bill of Rights, she replied: "Oh, but we have one already." The article in question goes: "That the freedom of speech and debates or proceedings in Parliament ought not be impeached or questioned in any court or place outside of Parliament."

Perhaps the most important consequence of this provision is that MPs can say exactly what they like on the floor of the House and cannot be sued: they have absolute privilege. The court will simply strike out any claim made because of what is said in the House. In addition, the would- be plaintiff may find himself or herself in trouble with MPs for having had the audacity to try to take action in the first place.

My own view is that it is a good thing that there should be somewhere in these islands, outside the pages of Private Eye, where people can say precisely what they like. The trouble is that there are several members who employ the privilege not to expose wrongdoing but to secure publicity for themselves. Madam Speaker Boothroyd is perhaps not as vigilant as she might be in silencing such characters before they have managed to cause unjustified injury to innocent outsiders. But in this respect she is no more lax than her predecessors were.

Parliamentary privilege has come up before in libel cases - usually to the advantage of the member concerned. For instance, in 1972 Sir Geoffrey Johnson Smith was sued for libel by the Church of Scientology of California. He had said something on television that annoyed them. In their action they were not allowed to use Sir Geoffrey's comments in the House in an attempt to show that he was actuated by malice (which, in libel cases, is a technical word).

The judges in the recent encounters did not, as far as I can see, refer to the Johnson Smith case. They relied instead on a New Zealand case which came before the Privy Council in 1994. A television company was accused of libelling a former minister. The defence involved investigation of what had happened in the New Zealand parliament. The action was halted. Delivering the opinion of the council, Lord Browne-Wilkinson said that the courts and parliament were both "astute to recognise their respective constitutional roles". The courts would "not allow any challenge to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges".

In reality the courts have been not so much astute in their relations with Parliament as scared out of their wits. With government and ministers they are bolder, as they have demonstrated over the past 30 years or so with the development of the doctrine of judicial review. Nevertheless, there have been two recent changes in relations between Parliament and courts. First, leave of the House used to be required for evidence to be given in court of anything that occurred in the course of parliamentary proceedings: in 1980 the rule was quietly dropped. Second, the courts used to refuse to consider Hansard in order to construe ambiguous statutes: in 1993 that rule too was overturned.

It is difficult to see why, in principle, Mr Haines, Mr Stott and the Guardian - not to mention the New Zealand television company and the Californian Scientologists - should be treated any differently. It is not as if they are seeking to prove than an Act was incorrectly amended because the Clerk of the House was asleep, or that a division was wrongly recorded because the tellers were drunk. They are trying to do little more than make use of matters which are already of public record.

Paradoxically, the injustice is being done not to them but to Mr Allason, Mr Hamilton and Mr Greer. It is they, after all, who are being excluded from he courts. I am not, I may say, specially well disposed either towards litigious MPs or towards the law of libel. But, so long as we have both, justice should prevail. In Mr Hamilton's case, Mr Justice Owen said that, as a Member of Parliament, he was able to enjoy the benefits of parliamentary privilege. But "as a member he must take the ill consequences as well as the good". While conveniently forgetting Mr Greer, the learned judge was here showing a surely somewhat unjudicial glee in the reversal of the normal terms of parliamentary-legal trade.

The truth is that the defensible and, as some would argue, essential right of free speech for MPs has been unnecessarily extended to cover any outside investigation of Parliament. By a parallel perversion of logic, parliamentary privilege is being urged as a reason for not implementing the Nolan Report. The worst solution would be for the Committee of Privileges to take a hand, as Mr Hamilton wants. It is a smug body which operates a kind of lynch law of its own. It is quite unqualified to try defamation cases or, indeed, cases of any kind. The best solution would be for the courts now to show some of the courage over parliamentary privilege which they have already shown over judicial review.

A survey carried out by Sainsbury's Finance found 20% of new university students have never washed their own clothes, while 14% cannot even boil an egg
science...and the results are not as pointless as that sounds
politicsIs David Cameron trying to prove he's down with the kids?
Dominique Alderweireld, also known as Dodo de Saumure, is the owner of a string of brothels in Belgium
newsPhilip Sweeney gets the inside track on France's trial of the year
Have you tried new the Independent Digital Edition apps?
Life and Style
ebookNow available in paperback
ebookPart of The Independent’s new eBook series The Great Composers
Cumberbatch was speaking on US television when he made the comment (Getty)
Life and Style
Arts and Entertainment
Tom DeLonge, Travis Barker and Mark Hoppus of Blink-182 pictured in 2011.
musicBassist Mark Hoppus and drummer Travis Barker say Tom Delonge is 'disrespectful and ungrateful'
Arts and Entertainment
Olivia Colman and David Tennant star in 'Broadchurch'
tvBroadchurch series 2, episode 4, review - contains spoilers
cyclingDisgraced cycling star says people will soon forgive his actions
Britain's Prince Philip attends a Garden Party at Buckingham Palace in London
Arts and Entertainment
Ed Sheeran will play three sell-out gigs at Wembley Stadium in July
Lena Dunham posing for an official portrait at Sundance 2015
Arts and Entertainment
Under the skin: Sarah Kane in May 1998
theatreThe story behind a new season of Sarah Kane plays
Arts and Entertainment
Preening: Johnny Depp in 'Mortdecai'
filmMortdecai becomes actor's fifth consecutive box office bomb
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating

By clicking 'Search' you
are agreeing to our
Terms of Use.

ES Rentals

    iJobs Job Widget
    iJobs General

    Ashdown Group: Assistant Management Accountant - Part Qualified CIMA / ACCA

    £30000 per annum + benefits: Ashdown Group: We are recruitment for an Assistan...

    Recruitment Genius: Field Sales Executive - OTE £50,000

    £45000 - £50000 per annum: Recruitment Genius: This leading provider of design...

    Recruitment Genius: Logistics Analyst

    £23000 - £28000 per annum: Recruitment Genius: Would you like to be a part of ...

    Recruitment Genius: Technical Manager - R&D - Paint

    £35000 - £45000 per annum: Recruitment Genius: This growing successful busines...

    Day In a Page

    Woman who was sent to three Nazi death camps describes how she escaped the gas chamber

    Auschwitz liberation 70th anniversary

    Woman sent to three Nazi death camps describes surviving gas chamber
    DSK, Dodo the Pimp, and the Carlton Hotel

    The inside track on France's trial of the year

    Dominique Strauss-Kahn, Dodo the Pimp, and the Carlton Hotel:
    As provocative now as they ever were

    Sarah Kane season

    Why her plays are as provocative now as when they were written
    Murder of Japanese hostage has grim echoes of a killing in Iraq 11 years ago

    Murder of Japanese hostage has grim echoes of another killing

    Japanese mood was against what was seen as irresponsible trips to a vicious war zone
    Syria crisis: Celebrities call on David Cameron to take more refugees as one young mother tells of torture by Assad regime

    Celebrities call on David Cameron to take more Syrian refugees

    One young mother tells of torture by Assad regime
    The enemy within: People who hear voices in their heads are being encouraged to talk back – with promising results

    The enemy within

    People who hear voices in their heads are being encouraged to talk back
    'In Auschwitz you got used to anything'

    'In Auschwitz you got used to anything'

    Survivors of the Nazi concentration camp remember its horror, 70 years on
    Autumn/winter menswear 2015: The uniforms that make up modern life come to the fore

    Autumn/winter menswear 2015

    The uniforms that make up modern life come to the fore
    'I'm gay, and plan to fight military homophobia'

    'I'm gay, and plan to fight military homophobia'

    Army general planning to come out
    Iraq invasion 2003: The bloody warnings six wise men gave to Tony Blair as he prepared to launch poorly planned campaign

    What the six wise men told Tony Blair

    Months before the invasion of Iraq in 2003, experts sought to warn the PM about his plans. Here, four of them recall that day
    25 years of The Independent on Sunday: The stories, the writers and the changes over the last quarter of a century

    25 years of The Independent on Sunday

    The stories, the writers and the changes over the last quarter of a century
    Homeless Veterans appeal: 'Really caring is a dangerous emotion in this kind of work'

    Homeless Veterans appeal

    As head of The Soldiers' Charity, Martin Rutledge has to temper compassion with realism. He tells Chris Green how his Army career prepared him
    Wu-Tang Clan and The Sexual Objects offer fans a chance to own the only copies of their latest albums

    Smash hit go under the hammer

    It's nice to pick up a new record once in a while, but the purchasers of two latest releases can go a step further - by buying the only copy
    Geeks who rocked the world: Documentary looks back at origins of the computer-games industry

    The geeks who rocked the world

    A new documentary looks back at origins of the computer-games industry
    Belle & Sebastian interview: Stuart Murdoch reveals how the band is taking a new direction

    Belle & Sebastian is taking a new direction

    Twenty years ago, Belle & Sebastian was a fey indie band from Glasgow. It still is – except today, as prime mover Stuart Murdoch admits, it has a global cult following, from Hollywood to South Korea