The Joint Committee on Parliamentary Privilege is now considering its draft report. The Committee is grateful for the substantial assistance you have already given, and is reluctant to trouble you further. However, the Committee think the following points should be drawn to your attention, perhaps particularly point number three, in case you wish to make any observations for the Committee's consideration. The points concern the reporting and broadcasting of parliamentary proceedings, and the publication of parliamentary papers. This topic differs from mainstream parliamentary privilege, because it is based, not on the law and custom of Parliament, but on the common law and statute.

  1.  Sections 1 to 3 of the Parliamentary Papers Act 1840 (24 Halsbury's Statutes, p 84) give absolute protection, against all civil and criminal liability, to the publication of reports, papers or proceedings by authority of either House of Parliament, and copies thereof. Section 3 gives protection, against all civil and criminal liability, to the printing of extracts from such reports, etc, in the absence of malice. Is the degree of protection conferred by these three sections still appropriate today?

  2.  Assuming the 1840 Act is still justifiable today, it seems desirable, in order to keep pace with advances in technology, to enact that these sections apply to reproduction by radio, television, video or on the Internet. This will remove any risk of either House being liable to publishers in respect of the sound and film track of its proceedings which each House makes available to radio and television stations and on the Internet and, through its own sound and film archives, to others. (Section 3 already applies to radio and television: see the Defamation Act 1952, section 9, and the Broadcasting Act 1990, section 203 and schedule 20, paragraph 1.)

  3.  The 1840 Act does not apply to reports of parliamentary proceedings not taken from Hansard. The common law accords qualified privilege to fair and accurate reports, and so will statute when section 15 of the Defamation Act 1996 is brought into force. Unlike the absolute protection given by the 1840 Act, the protection afforded by the common law and the Defamation Act does not extend to liability for contempt of court for breach of a no-publicity order or to criminal liability for an offence under the Official Secrets Acts. A report of a speech or an early day motion in the Commons may exceptionally give rise to such liability. Although in practice this seems not to have caused serious problems, it may be sensible that in this respect the law should be brought into line with section 3 of the 1840 Act.

  4.  Burden of proof. At common law and under the Defamation Act 1996 the burden of proving malice lies on he who alleges it, usually the plaintiff. Under section 3 of the 1840 Act the printer, such as a newspaper, is required to prove a negative: that he acted in good faith and without malice. The common law approach seems preferable.

  5.  The procedure by which the approval of the House of Commons is given, for the purposes of the 1840 Act, is for the most part informal, even haphazard. There are no prescribed guidelines on the criteria to be applied by the House or its officers in giving or withholding approval to particular documents emanating from government departments. One obvious category of document where a House of Commons "printing number" may be appropriate is a report of a government enquiry which in the public interest ought to be published but which carries a risk of defamation proceedings. Another category comprises the House's own papers, such as reports of committees. A further class is documents prepared especially for the House, such as Treasury estimates.

  Have you any comment on the criteria which should make it (a) appropriate or (b) inappropriate for a document to be athorised for printing by the House and, therefore, absolutely privileged under the 1840 Act?

30 October 1998

  Thank you very much for your letter of 30 October 1998. I address your numbered points in turn.

1.  It seems to me that the protection given by sections 1 to 3 of the Parliamentary Papers Act 1840 remains appropriate in modern conditions.

2.  I agree with the suggestion that the 1840 Act should be extended to cover reproduction by radio, television, video or the internet.

3.  I have a little more hesitation about the suggestion in your paragraph 3. It seems to me undesirable that additional publicity should be given to information which is the subject of a no-publicity order or to the revelation of an official secret. But once the information is in the public domain via Hansard, it may be futile attempt to restrict publicity. So I would not argue against your suggestion.

4.  I think that anyone who wishes to allege actual malice should have the burden of proving it.

5.  I fear that I can suggest no test which is not very general and rather question-begging. But I think the question must always be: Is the document in question (whatever it is) of such a character that, in the public interest, absolute privilege should protect its publication? The answer to that question will inevitably depend on the circumstances of any given case. But the public's right to be informed, the importance of free discussion in a modern liberal democracy, the need to encourage informants to come forward and the need for those engaged in the conduct of public affairs to be freed from the risk of proceedings which (even if ill-founded) may be a potent source of harassment seem to me considerations which will often be very material.

  Thank you for giving me a chance to comment. Needless to say, I shall be delighted to elaborate any of these points if it would be helpful.

5 November 1998