Privacy and Injunctions - Evidence - Parliament

David Beamish, Clerk of the Parliaments, Peter Milledge, Deputy Counsel to the Chairman
of Committees, House of Lords, Robert Rogers, Clerk of the House of Commons, and
Michael Carpenter, Speaker’s Counsel—Oral evidence (QQ 988–1020)
Q1014 Chair: Drawing slightly wider than the specific instance you are citing of a
newspaper feeding a member, given that it does appear still to be a little hazy as to precisely
how the Parliamentary Papers Act applies, particularly given the Attorney General’s
comments on it, is there a case for revisiting it and clarifying it?
Michael Carpenter: I think there are possibly two issues here. One is the actual
scope of the Parliamentary Papers Act, which is quite limited. It is talking about the
publication of abstracts or extracts; in other words, publishing the ipsissima verba, as it were,
of parliamentary proceedings. That is what that is concerned about. Under the general law,
you get into the territory of fair and accurate reports of parliamentary proceedings, and that
is now in the Defamation Act 1996, but it has long been there as a qualified privilege at
common law. That, however, is a qualified privilege in relation to actions for defamation; it
says nothing about contempt or the criminal law. The 1840 Act is very narrow in its actual
subject matter, but very broad in its coverage; whereas, under qualified privilege in
defamation, it is the converse position. It protects reports that are fair and accurate, but
only in respect of the law of defamation.
Q1015 Lord Boateng: Should there be greater clarity as to the extent to which
communications between constituents and their MPs be protected by parliamentary
privilege? Should that privilege be absolute or qualified? Does it make any difference
whether or not the communication is between the constituent and their own MP, another
MP, or even a member of the House of Lords?
Robert Rogers: I would not recommend making those relationships absolutely
privileged. I think members might be horrified at the latitude it would give their
constituents to say to them things that might be illegal, to make hugely defamatory
accusations, all entirely protected by absolute privilege—perhaps even to confess to a crime.
I would not regard it as being an appropriate response to the unease that I know members
feel sometimes about being put in this position. I think it is quite important also to look at
other protections that may relate to the information that passes between them. If it is the
processing of personal information, for example, it may be subject to provisions of the Data
Protection Act 1998. Michael, I think you have given some thought to this.
Michael Carpenter: It is the existing law that a communication from a person who
has a legal, moral or social duty in passing that information is protected by qualified privilege
in the hands of the person who has a corresponding legal, moral or social duty or interest.
That is going to cover the relationship between the constituent and a Member of Parliament
or, indeed, anybody, I think, and a Member of Parliament. That, however, is qualified
privilege under the law of defamation.
What that actually means is that, if the privilege is absolute, the person can make, for
example, a defamatory remark to the member knowing it is untrue. There does not seem
to be a reason for that. You are talking about statements that the person believes to be
true. It may turn out to be wrong, but of course that is what qualified privilege is: it
protects those kinds of statements. You think it is true, and therefore you feel you have to
tell your member about it. You may not know the full facts about it, but what you think you
know, you know to be true. It is quite different if you know what you are saying is untrue
or you simply do not care whether it is true or not.
I think one also has to remember the context of this. Our law of defamation and the
law of privacy protect rights that are human rights. They are personal rights to privacy and
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