BUSINESS BULLETIN 38/1999
Friday 6 August 1999Announcements
At the meeting of the Parliament on Wednesday 23 June 1999, Mrs Margaret Ewing raised the question of "parliamentary privilege". The Presiding Officer wishes to offer the following guidance to members.
The starting point is that the Parliament, its members and staff are not beyond the law. Any "privileges" (i.e. legal protections and immunities) applicable in relation to the Parliament are those conferred by or under the Scotland Act 1998. The Parliament does not derive rights by reference to privileges which exist (whether by statute or otherwise) at Westminster and there is no concept of "parliamentary privilege" in relation to the Scottish Parliament or its members in the sense understood at Westminster.
The Scotland Act has a number of provisions designed to give sufficient protection to the Parliament to enable it properly to conduct its business. It prevents the validity of proceedings in relation to a Bill being questioned once the Bill becomes an Act of the Scottish Parliament (section 28(5)). It also limits the types of remedy, which can be sought against the Parliament (section 40). In addition it confers certain protections in relation to defamation and contempt of court and these are the subject of this guidance.
Section 41 of the Scotland Act provides that for the purposes of the law of defamation any statement made in "proceedings of the Parliament" and the publication under the authority of the Parliament of any statement is absolutely privileged. This means that any such statement cannot form the basis of an action for defamation. "Statement" in this context means "words, pictures, visual images, gestures or any other method of signifying meaning".
This section is intended to ensure that Members are free to debate and the Parliament to report on matters of public interest without fear of an action for defamation being raised. Although it provides absolute protection in that context, it does not shield members from the operation of the law in relation to other matters, for example incitement to racial hatred.
Contempt of court
The proceedings of the Parliament, unlike those at Westminster, are subject to the law of contempt of court. Rule 7.3.2 of the standing orders (Order in the Chamber) includes a requirement that members shall not conduct themselves in a manner which would constitute a contempt of court (or indeed which would constitute a criminal offence).
The Contempt of Court Act 1981 establishes a "strict liability" rule. This is "the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular proceedings regardless of intent to do so". This rule applies (with certain exceptions) to publications "which create a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced".
Section 42 of the Scotland Act provides that the strict liability rule does not apply in relation to any publication made (a) in "proceedings of the Parliament" in relation to a Bill or subordinate legislation or (b) to the extent that it consists of a fair and accurate report of such proceedings made in good faith. "Publication" in this context includes "any speech, writing, programme included in a programme service or other communication in whatever form, which is addressed to the public at large or any section of the public".
This section is intended to ensure that the Parliament is not prevented from legislating on any matter simply because anything said or done in the proceedings might be treated as a contempt of court under the strict liability rule. It is also designed to ensure that those reporting such proceedings are not hampered in their work of keeping the public properly informed.
Proceedings of the Parliament
Sections 41 and 42 of the Scotland Act refer to "proceedings of the Parliament". This expression is not defined in the Scotland Act, except to clarify that as well as proceedings at meetings of the Parliament, it includes proceedings of committees and sub-committees of the Parliament (section 126(1)).
The equivalent of the phrase "proceedings of the Parliament" in Westminster is "proceedings in Parliament". There is no comprehensive definition of the term at Westminster although some matters are defined in section 13 of the Defamation Act 1996. This is one of the matters upon which the Joint Committee on Parliamentary Privilege commented in its report published on 9 April 1999. At Westminster, "proceedings in Parliament" has generally been broadly interpreted and, although a definitive view cannot be given, it is expected that a similar broad construction will be placed on the expression "proceedings of the Parliament" in the context of the Scottish Parliament. For example, it is considered that in addition to proceedings during meetings of the Parliament, committees and sub-committees, "proceedings of the Parliament" also covers the lodging of PQs and giving notice of motions and amendments. Provided that a particular statement can be construed as being made in the context of proceedings of the Parliament, it will benefit from the protection given by the relevant section of the Scotland Act.
Publication of statements under the authority of the Parliament
Members may also wish to note Article 4 of the Scotland Act 1998 (Transitory and Transitional Provisions) (Standing Orders and Parliamentary Publications) Order 1999. This makes provision protecting a person against whom legal proceedings have been brought concerning a statement published by that person where the statement is published or has been published under the authority of the Parliament. It requires the court, on production of a certificate by the Clerk of the Parliament, to make an order bringing those proceedings to an end.
The expression "publication under the authority of the Parliament" is relevant for the purposes of section 41 of the Scotland Act (defamatory statements) and article 4 (above). Article 5 of the Order provides that any statement required or authorised to be published in pursuance of any of the rules set out in the Standing Orders should be treated as published under the authority of the Parliament.
This guidance cannot and must not be regarded as a comprehensive statement on this complex area of law, which is expected to develop over time. The senior staff of the Parliament will be happy to provide further advice and assistance as required.