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Published online by Cambridge University Press: 02 January 2018
After years of debate, and pages of parliamentary reports, the House of Commons has agreed in principle to allow the televising of its proceedings, both in the Chamber and in Select Committee hearings.’ The purpose of this article is to consider the application of parliamentary privilege to the broadcasting of Parliament by radio or television. The issue of parliamentary privilege arises because of the absolute privilege’ of freedom of speech for Members, which enables them in the course of ‘proceedings in Parliament’ to say or do something which, had it been said or done elsewhere, could have given rise to civil or criminal liability by the person concerned. Absolute privilege exists because it is of outstanding public importance that Members should be able to speak their minds, and this outweighs any consequential harm that may be suffered by an individual or the State. Examples of the use of the protection of absolute privilege are the making of a statement that appears to be defamatory, and the oral commission of one of a variety of criminal offences.
1. 127 HC Official Report (6th series), 9 February 1988.
2. Privilege is used here in its parliamentary sense. The policy of Parliament has been to severely restrict the extent to which anyone other than Members has this type of privilege.
3. Bill of Rights 1689, article 9.
4. Duncan Sandys case, HC 101 (1939–40).
5. For example, blasphemy, contempt of court, incitement to racial hatred, breach of the Official Secrets Act, obscenity.
6. HL 284 (1966–67), p 6.
7. This article is only concerned with how new legislation should regulate the broadcasting of Parliamentary proceedings. However, if legislation is introduced it should also reform the existing law on written reports of parliamentary proceedings.
8. As amended by the Defamation Act 1952. This Act was passed as a result of the various court actions brought by Stockdale against Mews Hansard, the House of Commons printers; (1839) 9 A & E I; see Hood Phillips Constitutional and Administrative Law (1987) p 240, 250.
9. The word ‘ordered’ is used to refer to all publications which have been produced ‘by order or under the authority’ of Parliament.
10. See HL 109/HC 261 (1969–70), para 3.
11. Section 2 of the 1840 Act is not of any concern here, since it extends the application of section 1 to copies of Reports etc.
12. Eg some ‘Act Papers’, and probably most Command papers. See HL 109/HC 261 (1969–70), p 34–40.
13. Originally it had been proposed to create a House of Commons Broadcasting Unit which would have enabled the House to retain control over broadcasting; HC 146 (1965–66).
14. By ‘unofficial’ is meant a report not taken from Hansard because it was compiled before the publication of that day's Hansard.
15. Defamation Act 1952, s 9(1).
16. HC 146 (1965–66) App 38 para 8. It should be noted that in Barker v Wilson (1980) 2 All ER 81 the Divisional Court rejected the argument that records kept on microfilm were not ‘bankers’ books' for the purpose of the Bankers' Book Evidence Act 1879. Bridge LJ said that the Act must be construed in relation to the practice of bankers today. It is possible that a court would be willing to apply a similar argument to the 1840 Act.
17. (1868) LR 4 QB 73.
18. See Carter-Ruck, Libel and Slander (1985), p 170.
19. The view of the Committee of Privileges in 1978 was that ‘no such qualified privilege is available in criminal proceedings apart from criminal libel.’ HC 222 (1978), para 5.
20. Note 16 supra, App 38, para 10.
21. This is similar to s 70(2)(b) of the Race Relations Act 1976 (repealed). There was no comparable section in the Race Relations Act 1965 where the offence was introduced.
22. Westminster Cable provides an almost continuous broadcast of the House of Lords. This is achieved by an agreement with ITN which does not broadcast all it televises. When its cameras are in the House televising proceedings it makes the ‘feed’ available to Westminster Cable.
23. See ss (3), (4), (5), (6) - all of which place the burden of proof on the defendant. The most likely is ss (6) which provides that: ‘A person who is not shown to have intended to stir up racial hatred is not guilty of an offence … if he did not know, and had no reason to suspect, that the offending material was threatening, abusive or insulting’.
24. See Carter-Ruck (1985) (n 18 above), p 176. The Faulks Committee Report on Defamation, Cmnd 5909 (1975) recommended that the law of criminal libel should apply to broadcasting (para 436).
25. Section 28(1).
26. HC 376 (1981–2), paras 86, 87.
27. British Telecom has proposed a ‘dial a debate’ service for the House of Commons; see HC 281 (1986–87) and Leopold (1987) PL 524.
28. HL 109/HC 261 (1969–1970).
29. Erskine May Parliamentary Practice 20th edn (hereafter Erskine May), pp 434–442.
30. Erskine May, pp 442–450.
31. The House of Commons Procedure Committee is currently reviewing the disciplining of Members.
32. Which has happened in Singapore in The Parliament (Privileges, Immunities and Powers) (Amendment) Act 1986. Where a Member of the Singapore Parliament has been found guilty of abuse of privilege, Parliament may suspend for a period the Member's privileges and immunities in respect of things said or done by him in Parliament.
33. CJ (1962–3) Vol 219, p297,23 July 1963; CJ (1971-2) Vol 227, p407–8, 28 June 1972; Erskine May, p 429.
34. HC 156 (1962–63) Q 303.
35. See HC 667 (1977–78).
36. HC 222 (1978–9), para 10; and see Leopold (1981) PL 30.
37. Para 4(a) of the 1963 resolution.
38. See HC 222 (1978–9), paras 50, 51.
39. Erskine May, p 94; and see HC 101 p IX (1938–39); HL 109/HC 261 (1969-70) paras 18–19.
40. On the far from certain assumption that the court would be willing to apply qualified privilege to a broadcast.
41. For a summary of the resolutions governing the radio broadcasting of Parliament see Erskine May, p 269, 270; HC 376 (1981–82), paras 63–71; HL 299 (1983-84). There are Select Committees on sound broadcasting in both Houses, which have power to join together, and are likely to have their powers extended to cover the televising of parliament.
42. 20 May 1980, and 9 December 1980; see HC 376 (1981-82), paras 63–71, at para 69.
43. HC 142 (1975–76), App 6.
44. See Erskine May, ch 10; HC 34 (1966–67).
45. HL 123/HC 284 (1976–77), para 47.
46. See HC 270 (1982–83), para 15.
47. Erskine May, p 430; HC 222 (1978–79), paras 44, 45.
48. At p 396.
49. 20th edn, p 378; and see HC 222 (1978–79), para 49.
50. For example the War Damage Bill 1965 went through Parliament although several cases on the subject matter of the Bill were pending. See 705 HC Official Report (5th series) col 1091 (1964-65).
51. HC 376 (1981–82), para 84.
52. See eg s 15 of the Australian Parliamentary Proceedings Broadcasting Act 1946. This is a very sweeping provision which protects broadcasters of both live and recorded proceedings, as well as extracts from such proceedings.
53. See n 56 and associated text.
54. See the suggestion in the Faulks Committee Report, supra n 24, paras 218–222.
55. R v Abington (1794) 1 Esp 226–228; R v Creezy (1813) 1 M & S 273; HC 109(1969), para 3.
56. See for example: HC 34 (1967–68); HC 48/HL 26, HC 48/HL 109 (1969-70); Faulks Committee Cmnd 5909 (1975); HC 417 (1976-77); HC 365 (1986-87).
57. HC 270 (1982–83), para 18.
58. 1 Commentaries 164.
59. HC 431(i) (1987–88), para 7, p 3.
