Political Commentary: Too much privilege and not enough judicial courage
Sunday 30 July 1995
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.
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