Defamation Act 1996 and other attempts to make statutory exceptions to privilege

16.19Just such a statutory exception to article IX as was referred to by the Judicial Committee was shortly afterwards made in the United Kingdom, following a case in which the plaintiff, a Member, claimed that a newspaper article was defamatory, in that it alleged corruption by him in the discharge of his parliamentary responsibilities, and had led to his resignation as a Minister.1 It was claimed for the defence that the issues could not be inquired into without infringing the privileges of Parliament, and they asked for the action to be stayed. After hearing argument, the judge, May J, felt himself constrained by the authorities, especially Prebble, to grant a stay of proceedings.

It was against this background that Parliament enacted s 13 of the Defamation Act 1996. The scope of the section was expressly limited to defamation proceedings, and applied to both Houses. In such actions, where the conduct of a person in or in relation to proceedings in Parliament was in issue, the protection of any enactment or rule of law which—in an echo of the Bill of Rights which is not itself mentioned—prevented proceedings in Parliament from being impeached or questioned in any court or place out of Parliament could be waived by that person. When protection had been waived, any such enactment or rule of law was not to apply to prevent evidence being given, questions asked, or statements, submissions, or findings being made about that person's conduct. The waiver by one person of protection did not affect its operation in relation to another person who had not waived it. The section did not operate so as to remove the protection from legal liability in respect of words spoken or things done in the course of, or for the purposes of or incidental to proceedings in Parliament. Outside the limited area of the waiver, therefore, the protection afforded to Members, officers and those who had business in Parliament remained.2

The 1999 Joint Committee on Parliamentary Privilege drew attention to criticisms made of the Defamation Act 1996, s 13 and recommended its repeal. However, it also recommended that each House should be empowered to waive article IX of the Bill of Rights for any court proceedings (not limited to defamation) 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.3 (See para 12.10 regarding proposals for waiver of article IX in corruption cases.)

Following this, the Government sought to introduce further limited exceptions through statute, although these were all ultimately unsuccessful due to parliamentary opposition. The draft Corruption Bill published in 2003 contained a clause which would have provided an exception to privilege in relation to new criminal offences within the draft bill. The Government at the time sought to rely on the findings of the 1999 Joint Committee on Parliamentary Privilege to justify the clause. The Joint Committee examining the draft bill considered that the clause as drafted was overly broad and recommended that it should be narrowed to ensure that the exception only applied where a Member of either House was a defendant or co-defendant in a corruption case.4 After reflecting on a number of other criticisms by the Joint Committee, the Government decided not to proceed with the legislation. In 2009, the Government introduced the Parliamentary Standards Bill containing clauses which would have waived privilege to ensure that evidence would be admissible in proceedings against Members for offences within the bill concerning fraudulent claims for parliamentary allowances. In Committee of the whole House, one clause implementing this scheme was removed by agreement and a second was removed on division.5 In the same session, a draft Bribery Bill was published, containing an exception to privilege of narrow scope based on the recommendations of the Joint Committee on the Draft Corruption Bill of 2003. The Joint Committee on the Draft Bribery Bill concluded that the clause would be inconsistent with the broader approach that the Government had taken in the Parliamentary Standards Bill. Consistency in legislating around matters of privilege was considered to be important and the Joint Committee concluded that the most appropriate way of achieving this would be to return to the recommendations of the 1999 Joint Committee on Parliamentary Privilege and consider a Parliamentary Privilege Act. The Joint Committee on the Draft Bribery Bill accordingly recommended that the clause relating to privilege be removed.6 The Government in its response accepted this recommendation7 and the Bribery Act 2010 was enacted without any provisions concerning parliamentary privilege.

The 2013 Joint Committee on Parliamentary Privilege revisited s 13 of the Defamation Act 1996, supporting the conclusions of the predecessor 1999 Joint Committee that the section should be repealed, but disagreeing with the 1999 Joint Committee's recommendation on its replacement with a power of waiver for each House. The view was taken in 2013 that no persuasive case had been made to justify such a power being extended, whether restricted to defamation cases or not. It was also felt that such a power would create uncertainty and undermine the fundamental principle of freedom of speech in Parliament.8 The Government in its response accepted this recommendation, agreeing that repealing s 13 would be the wisest course of action and stating an intention to do so when parliamentary time and a suitable legislative opportunity allowed.9 The opportunity to repeal s 13 was taken in the Deregulation Act 2015, where the Government accepted a backbench Commons amendment to repeal the section.10

Footnotes

  1. 1. Hamilton v The Guardian (1995) Times, 8 June. See also Allason v Haines (1995) TLR 438, in which Owen J granted a stay in circumstances where, in order to defend a libel action, it would have been necessary to bring evidence of a Member's behaviour in the House of Commons, and such a defence would be in breach of the privilege of Parliament; while to enforce parliamentary privilege but refuse a stay would, the judge considered, be unjust to the defendants.
  2. 2. For an account of a case enabled by this provision, see Hamilton v Al Fayed [2001] 1 AC 395, [1999] 3 All ER 317; see also Erskine May (24th edn, 2011), pp 300–1.
  3. 3. HL 43-I, HC 214-I (1998–99) para 89.
  4. 4. Joint Committee on the Draft Corruption Bill, Report of Session 2002–03, Draft Corruption Bill, HL 157, HC 705.
  5. 5. CJ (2008–09) 489–90; HC Deb (1 July 2009) 485, c 387.
  6. 6. Joint Committee on the Draft Bribery Bill, First Report of Session 2008–09, Draft Bribery Bill, HL 115-I, HC 430-I, Ch 13.
  7. 7. HM Government, Government Response to the conclusions and recommendations of the Joint Committee Report on the Draft Bribery Bill, Cm 7748, November 2009, pp 18–19.
  8. 8. Joint Committee on Parliamentary Privilege, Report of Session 2013–14, Parliamentary Privilege, HL 30, HC 100, paras 163–70.
  9. 9. HM Government, Government Response to the Joint Committee on Parliamentary Privilege, Cm 8771, December 2013, p 4.
  10. 10. HC Deb (14 May 2014) 580, c 796.