UK: Parliamentary Privilege (Defamation) Bill introduced to the Lords - waving goodbye to waiver?
By way of background, Article IX of the Bill of Rights 1689 ("Article IX") established "[t]hat the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament." However, section 13 of the Defamation Act 1996 ("Section 13") provides:
"Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings, so far as concerns him, the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament."
Accordingly, an MP accused of accepting money to ask parliamentary questions may avail himself of Section 13 to waive the privilege conferred by Article IX, thus allowing evidence to be adduced about his or her conduct without infringing parliamentary privilege.
Section 13 was passed as an amendment to the Defamation Act 1996 after Neil Hamilton MP was left, as a result of Article IX, unable to pursue a defamation claim against The Guardian for allegations of corruption. The provision has, however, been the subject of much criticism.
For example, the 1999 Report of the Joint Committee on Parliamentary Privilege (the "1999 Committee"), chaired by Lord Nicholls of Birkenhead, criticised Section 13 as undermining the basis of privilege and creating anomalies:
"A fundamental flaw is that it undermines the basis of privilege: freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it. Application of the new provision could also be impracticable in complicated cases; for example where two members […] are closely involved in the same action and one waives privilege and the other does not. Section 13 is also anomalous: it is available only in defamation proceedings […] The Committee considers these criticisms are unanswerable."
The 1999 Committee thus recommended that Section 13 be repealed and replaced by a new provision under which either House, on the advice of a committee, could grant a general waiver of Article IX in appropriate circumstances.
Subsequently, the 2013 Joint Committee on Parliamentary Privilege (the "2013 Committee") heard evidence on this issue from the Newspaper Society to the effect that a discretionary power to waive privilege would be unpredictable and retrospective, and could therefore create a chilling effect that would be detrimental to openness of debate and press reporting of proceedings in Parliament. In a similar vein, Government also acknowledged "concerns with introducing a general power of waiver for Parliament given the potential chilling effect on debate."
The 2013 Committee ultimately concluded that Section 13 should be repealed without replacement, on the basis that the anomalies it creates are more damaging than the mischief it was intended to cure, and that there is no persuasive argument for granting either House a power of waiver, which could undermine the fundamental constitutional principle of freedom of speech in Parliament. The Bill introduced by Lord Lester proposes the repeal of Section 13, thus abolishing the waiver, and would once again prevent the proceedings of Parliament from being impeached or questioned in any defamation hearing.
The media storm surrounding the arrest of Damian Green MP and the furore over the MP expenses scandal have led to heated debate on parliamentary privilege in recent years. Policymakers have always been mindful, however, of the difficult balance to be struck between freedom of speech and legal accountability. It will therefore be interesting to see whether this latest attempt at reform, by leading public law and human rights barrister, succeeds where others before it have failed.