The Law Society of Scotland has considered the invitation to submit evidence to the Joint Committee on Parliamentary Privilege and has the following comments to make:

1.   What is the purpose and scope of parliamentary privilege?

  Members enjoy individual privileges to enable each House to effect the unimpeded discharge of its collective functions. It is in the public interest that members of either House are able to speak freely without the fear of incurring civil or criminal liability as the parliamentary system is designed to operate through the medium of adversarial debate. Members are elected to make statements which hold Government accountable. In order to do so they must have freedom of speech. They must be able to say anything via a proceeding in Parliament without fear that the comments might subsequently be held against them in any legal action.

  The main privilege is that, subject to the rules of order in debate, a Member can say anything in debate however derogatory or scathing on someone's character, without fearing an action for libel in England and Wales or for Defamation or Convicium in Scotland. There have been occasions when the House has not insisted upon its privileges, and allowed a Member to be sued or not entertain complaints of breach of privilege.

  The scope includes freedom of speech in debate, freedom from arrest other than under criminal law, corporate privilege of each House of freedom of access to Her Majesty, that the most favourable construction should be placed upon all proceedings, and each House is the sole judge of the lawfulness of its own proceedings. The publication of debates or proceedings outside Parliament of a fair and accurate account of a debate in either House is protected by the principle that the public interest outweighs a private injury resulting from the publication, unless malice is proved.

  The privilege applies to any matter whether related or not to a matter currently being or to be discussed in the House. It applies to anything said on the floor of either House, any Committee, or any other parliamentary proceedings over which either House exercises control.

  The privilege attaches to all reports, papers, votes and proceedings published by or under the authority of either House. It applies to persons who are not members of either House but who are acting for or on the authority of either House eg: witnesses to a Select Committee and persons responsible for statements in a petition addressed to Parliament.

  The fact that the activity occurred within the precincts of Parliament does not categorically mean it is privileged. There are decided categories of absolute privilege but the doors are not closed to new ones.

2.   What uncertainties are there at present in the application of parliamentary privilege?

  The categories of the privilege are not closed and are therefore open to extension if the demands of policy are met. This brings flexibility but also uncertainty. Provisions relating to the qualified privilege of certain reports covered by ss14-15 and Schedule 1 of the 1996 Defamation Act are not yet in force. The division of privilege into absolute and qualified may be unnecessary and an all-encompassing phrase could be formulated to express the protection that Parliament enjoys.

3.   Should the scope and application of parliamentary privilege be modified to meet present day needs: what are the essential protections each House needs for the proper conduct of parliamentary business as we move towards the 21st century?

  As the Home Secretary the Rt Hon Jack Straw MP said recently when giving evidence to the Joint Committee, the protection should not be used to protect dishonest Members of Parliament.

  There should be protection from proceedings where the person does or says something which was not done with intention to defame. Statements made with malicious intent, whether in Parliament or not, should however not be immune from the consequences. The purpose of the protection must be identified and how best to meet that. The extent of the protections laid down will decide the nature of parliamentary proceedings and the quality of open debate generated in the Houses.

  Freedom of debate is sufficiently protected if members enjoy absolute privilege from criminal and civil actions directed at what they say in the course of debate or proceedings in the House.

4.   What are the merits of having the necessary protections of the two Houses codified, either comprehensively or in part, in legislation or in a new set of Resolutions of each House?

  The merits of codification are certainty and clarity. The demerits are inflexibility and the procedural hurdles and delays in amending legislation if changes are required. Case by case analysis allows conclusions to be drawn after detailed examination of the individual circumstances. If resolutions were chosen, what would their authority be in relation to legal proceedings?

5.   Is there a more modern and better phrase to replace "parliamentary privilege"?

  Change "privilege" to "public policy protection". This changes the emphasis from a seemingly individualistic provision to one which is to protect the proper workings of Parliament.

6.   What are the issues arising out of Article 9 of the Bill of Rights (1688) and freedom of speech?

  The Article states that freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. It protects a member as regards criminal law in respect of anything said as part of proceedings in Parliament. It is doubtful whether it covers criminal acts committed in Parliament.

  As legislation, it cannot be waived or not insisted upon and it can only be removed by an amendment to the statute. By implication, the article has been amended by various statutes which have imposed penalties eg for irregular voting in the House, false evidence given on oath before Committees of either House.

  However, Article 9 of the Bill of Rights does not apply in Scotland whereas the Claim of Right (1689) does. This document by a Convention held in Edinburgh on 14 March 1689 and adopted 11 April 1689 asserted certain rights and offered the Scottish Crown to William and Mary. The Claim of Right is remarkably concise on the point—"That, for redress of all grievances, and for the amending and preserving of the Laws, Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members."

7.   What remedies should there be for citizens wronged by words or actions in Parliament?

  This depends on the balance society wants between freedom of speech and the rights of individuals involved. It is really a political matter depending on those affected and the mood of the country at the time. Aggrieved individuals could have a formal right to reply to anything said in Parliament, in an appropriate forum such as Parliament itself. A Parliamentary Ombudsman could hear complaints about abuses of privilege. The Ombudsman could instruct members of parliament to apologise or allow the public to insert a statement of rebuttal in Hansard and perhaps go as far as allowing the statement to be read out in Parliament. However, inevitable time delays would diminish the effect of this allowance.

8.   What is the scope of the phrase (used in the Bill of Rights) "proceedings in Parliament": what aspects of parliamentary activity (in addition to freedom of speech) should be treated as "proceedings in Parliament"?

  This has never been exhaustively defined and has been left to the courts in individual cases to decide on its scope. Generally, this means some form of formal action, usually a decision, taken by the House in its collective capacity, thus including the debate by which it reached the decision. Taking part in proceedings can mean voting, presenting a petition or report from a Committee, giving evidence, carrying out the orders of the proceedings. A precise definition might lead to disputes in court.

  Phrases such as "Other parliamentary proceedings over which either House exercises control" and "persons who are not members of either House but are acting for or on the authority of either House" are open to interpretation. With the surge of information technology, the interpretation of "publication" is open to review.

9.   What issues arise from the exclusive jurisdiction of the two Houses over their members and internal proceedings?

  In relation to investigations of complaints of breach of privilege or contempt it was suggested in the Report of the Select Committee of Parliamentary Privilege (1966-67) that the House should sparingly exercise its penal jurisdiction.

  The courts will not review acts or omissions of Members individually in connection with the proceedings of the House. Members thus cannot be compelled to give evidence in the courts regarding proceedings in either House without the permission of the House.

  It is questionable whether criminal acts committed in Parliament remain within the exclusive cognisance of the House in which they are committed.

10.   What issues arise from Members' freedom from arrest and molestation and protection from interference?

  Members should be seen to be subject to the rule of law. In all cases where Members of either House are arrested on criminal charges the House must be informed of the cause for which they are detained.

  However, Members are liable to be detained under Mental Health legislation. Privilege from arrest has never been allowed to interfere with the administration of criminal justice or emergency legislation ie war legislation. Members are entitled as of right to be excused from jury service and from court attendance as a witness.

11.   What response should Parliament make to the announcement by the Government that it intends to legislate on corruption? Should the improper influencing or bribery or attempted bribery of Members of either House be subject to the criminal law and the jurisdiction of the courts? If so, are safeguards necessary to protect Members' freedom of speech? The Joint Committee wishes to make an early report on the improper influencing or bribery of Members.

  Members of Parliament should be advocates for their constituents and personal advantage should not come into the equation. In order to emphasise this, legislation might be necessary to make improper influencing and bribery an offence. However detection and prosecution of these offences would need to be stringent otherwise the law would be pointless. The public require to have confidence in the people who run their affairs and the present situation is not satisfactory. Accountability is crucial in Parliament as the MPs and Peers are representative of the tax paying public.

12.   Section 13 of the Defamation Act 1996: to what extent (if any) should proceedings in Parliament be subject to the scrutiny of the courts in actions for defamation?

  Section 13 of the Defamation Act 1996 (c.31) states that MPs and Peers and any other person whose conduct in relation to proceedings in Parliament is in issue in any action for defamation, may waive the protection of privilege in order to pursue a defamation action.

  The scope of this section is limited to defamation proceedings, and applies to both Houses. In such actions, a person whose conduct, in or in relation to proceedings in Parliament, is in issue may waive the protection which prevents the proceedings being impeached or questioned in any court or place out of Parliament. The person cannot thereafter prevent evidence being given, questions asked, or statements or submissions, or findings being made about his conduct. The waiver does not affect the operation of the protection in relation to others who have not waived it.

  Outside this limited area of waiver, the protection relating to conduct in the course of, or for the purposes of or incidental to, proceedings in Parliament remains eg, the giving of evidence before either House or Committee, the presentation or submission of a document for the purposes of or incidental to the transacting of any such business, the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a Committee, and a communication with the Parliamentary Commissioner for Standards, or any other person having functions in connection with the registration of Members interests.

13.   What in modern circumstances should constitute contempt of the House: should those actions which either House may treat as a contempt be codified either by Resolution or in Standing Orders or even in legisation?

  Acts or omissions (not being breaches of specific privileges) which obstruct or impede either House in the performance of its functions, or which obstructs or impedes any Member or officer of such, or which has a tendency, directly or indirectly, to produce such results may be treated as contempt. There is no precedent necessary for the particular offence and the power to punish is discretionary.

  Misleading the House is contempt of Parliament and therefore punishable by the House. This may have been by giving inconsistent evidence to a Select Committee of the House. This should continue to constitute contempt.

  As with out answer to question 4, it is impossible to list every act which could be considered to amount to contempt. The extent of the protection depends on the circumstances.

14.   The powers of each House to punish those who have committed contempts of the House; whether the penalties for contempt of the two Houses need to be modified and updated (for example, should the Commons have the same power as the Lords to impose fines on non-Members, and should the two Houses have power to award damages?)

  The Society agrees that the penalties for contempt should be modified and updated. The power to punish is discretionary at present. There is a distinction made between an action to compel performance of a civil obligation and process to punish conduct which is to some degree criminal. There have been cases in the past where Members have been fined or even imprisoned. Members can be suspended or expelled also. In cases of quasi-criminal contempts Members of either House may be committed without an invasion of privilege.

15.   What are the implications for Parliamentary Privilege of:

(i) the incorporation of the European Convention on Human Rights into UK Law;

  The incorporation of the Convention is really a matter which will have procedural implications on our system of law, rather than substantial changes to our substantive law.

  However, the European Court of Human Rights decisions on criminal libel have indicated obiter that civil law of defamation in the Convention's signatory states must draw some distinction between political and private libels. High hurdles must be leaped in order to succeed in political actions. Political speech must enjoy greater freedom than non-political speech as its dissemination and discussion is essential to the maintenance of a responsive democratic policy.

  Under European Court decisions, smaller quantum damages are awarded for libel/defamation actions.

(ii) a Freedom of Information Act;

  The Society's Privacy Committee is considering the White Paper but it is anticipated that the provisions of the Act will not cut across Parliamentary privilege as it deals with the secrecy and disclosure of information, not the use of the information once disclosed.

(iii) the Official Secrets Act?

  In a Select Committee on the Official Secrets Act in 1938 decided a casual conversation in the House could not be said to be a proceeding in Parliament. A Member who disclosed information in the course of a conversation would not be protected by privilege.

16.   Any other relevant issues

  Devolution for Scotland and Wales and two new Parliaments:

Decisions will have to be made as to whether the new Scottish Parliament will follow Westminster's example and adopt the privilege in its current form or establish its own separate system of protection. Should the MSPs be given the same privileges as their Westminster counterparts?

Clause 37 of the Scotland Bill states "(1) For the purposes of the law of defamation (a) any statement made in proceedings in Parliament, and (b) the publication under the authority of the Parliament of any statement, shall be absolutely privileged. (2) In subsection (1) "statement" has the same meaning as in the Defamation Act 1996. Clause 38 relates to contempt of court provisions.

Clause 76 of the Government of Wales Bill is similar.

17.   The lessons which can be drawn at Westminister from the experience of other countries with similar parliamentary systems.

  In Australia there has been some comment that only two immunities are justified. These are immunity from suit or prosecution for anything said or done by a member or a witness in Parliament, and anything said or done by a member in Parliament or a witness before a Committee should not be used to support legal proceedings against that person arising out of matters that happened outside of Parliament. Legal opinion in Australia has stated that a right to reply and a right of appropriate publicity to publish the reply is best.

  In New South Wales, in R v. Murphy 1986 NSWLR 18, the issue was whether the equivalent of article 9 precluded use of legislative proceedings as evidence in a libel suit. Article 9 was originally enacted to give absolute protection to MPS only against legal actions launched by the Crown. If the dispute is between an MP and an individual, Article 9 must recognise freedom given by common law to all to express publicly their honest opinion concerning the conduct of members of Parliament, no matter to what extent that opinion may impeach or question that conduct. The electorate have an interest to ascertain the truth.

  In the United States of America—any speech or debate in either House of Congress shall not be questioned in any other place. Some of the case law suggests that legislative privilege is an insufficiently important factor to justify the automatic exclusion of legislative proceedings as evidence in defamation suits. There is some authority that a legislator's speech in the House or Senate may be the subject of a defamation action if the speaker has knowingly or recklessly disseminated lies.

  Prebble v Television New Zealand Ltd [1995] AC 321—Privy Council—The television company wished to refer to statements made by a Government Minister in the New Zealand legislature as part of its defence. The equivalent to article 9 did not permit this. The company was unable to mount a defence and in the interests of justice, the proceedings were stayed. The main objection to this case is that it ignored the audience interest in having courts resolve political libel actions.

  In the Neil Hamilton libel case against the Guardian in 1995, the judge ordered a stay of proceedings as he was bound by Prebble. Modified versions of Prebble have been adopted by the Australian High Court and the Indian Supreme Court. These jurisdictions require politicians to prove the falsehood of factual claims and that the disseminator knew they were false or was reckless in failing to investigate their accuracy.

30 January 1998