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 no 3, 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. The points assume that in all material respects the law of Scotland is the same as English law. If this is not so, it would assist if you could briefly indicate the differences.

  1.  Sections 1 to 3 of the Parliamentary Papers Act 1840 (24 Halsbury's Statues, 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 as 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 Act. 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 is 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 authorised for printing by the House and, therefore, absolutely privileged under the 1840 Act?

30 October 1998

  Thank you for your letter of 30 October. I am not sure that there is very much which I can add which would be of assistance to the Committee. I can, however, confirm that, so far as I can see, there are no relevant differences between English and Scots Law. I would agree that it seems sensible to extend the protection in the 1840 Act to modern forms of communication. Although I have no experience of the point which is referred to in paragraph 3, I can see the force in the argument for extending protection to those cases.

  One point does strike me in relation to the questions posed as to the Parliamentary Papers Act 1840. The questions all presuppose that any steps to invoke the Act would be taken in the House of Commons. The terms of Section 1 show, however, that the protection applies to publications with the authority of either House. Doubtless the occasions when the authority of the House of Lords is sought will be rare. It so happens, however, that I recall that we certainly considered obtaining House of Lords authority in January 1993 when a report on allegations about a supposed conspiracy involving the Crown Office and the Scottish Judiciary was published. The report was one addressed to me as Lord Advocate and I made the Government statement on the matter in the House of Lords, while the then Secretary of State for Scotland repeated it in the House of Commons. I know that we explored the mechanism which could be used for obtaining the necessary authority from the House of Lords, but I cannot now recall whether in the end the authority came from the House of Lords or the House of Commons.

  I do, however, recall very clearly just how tricky and uncertain the whole procedure for obtaining authority was and I certainly believe that it would be helpful to have the steps clarified. The potential cost of getting them wrong is enormous and the strain on officials operating an uncertain procedure is correspondingly great. This seems to me to be an area where it is particularly desirable that there should be no doubt about the steps which need to be taken. One of the difficulties which I principally recall was that, of course, the authority is in no sense retrospective. This meant that it was impossible to distribute copies of the report, even to Opposition spokesmen, before the necessary resolution was in place. That did not help to ensure useful questions on the statement in the House, though it is fair to say that, in an appropriate case, there could, of course, be full discussion at a later stage.

  Perhaps because of my experience with the 1993 report, I am a firm supporter of a system such as that which is provided by the 1840 Act and I consider that any watering down of the degree of protection would be unfortunate. The subject-matter of the investigation leading to the 1993 report was extremely sensitive and it could readily be anticipated, and was indeed anticipated, by the persons whom we asked to undertake the investigation that they might require to make findings which would be damaging to individuals. It was therefore extremely easy to anticipate that those individuals might comtemplate raising actions of defamation. The Government were prepared to give an indemnity to the investigators in what was apparently a standard form, but I have to say that the individuals whom we asked to carry out the investigation would not have agreed to do it if they had comtemplated that they might be exposed to actions of defamation, even with a Government indemnity covering all damages and costs. The fact that we could anticipate publishing the resulting report under the authority of Parliament and so obtain the protection of the 1840 Act was a significant factor in obtaining the services of the two excellent investigators whom we instructed. Moreover, it was clear after the report was published that, had it not been for the protection of the 1840 Act, the authors of the report would indeed have been harassed with actions of defamation—even though the individuals who actually found themselves criticised in the report might at the outset have expected to be so criticised.

  The 1993 report seems to me to be an excellent example of the kind of enquiry which you mention in your letter. I note the other examples of publications which would be suitable for the use of the 1840 Act procedure. I find it difficult to specify a class of documents which should not be covered, but the best which I could do would be to say that documents which serve a predominantly party political purpose should not be covered. I realise that it might be very difficult to draw such a line, but I have a feeling that the extreme degree of protection should be availabe only where it can genuinely be said to be in the public interest, rather than in the interest of a particular party, that a document should be published.

11 November 1998