PRIVILEGED CLASSES
SIR,—You lead off in your article 'Privileged Classes' with the assertion that the Observer and the Man- chester Guardian seem to have misunderstood the Strauss privilege case. The difficulty about demon- strating to you that these two newspapers did not misunderstand the issues is that nowhere in nearly two columns of your paper do you state in what respect they have erred. Your own treatment of the /natter leads one to suppose that it is you, perhaps, who have misunderstood the issues. For example : 1. The Judicial Committee of the Privy Council did not answer the question about the Parliamentary Privilege Act, 1770, 'solely by examining the Act of 1700.' What they said was that the Act of 1770 could only be interpreted in the light of a series of Acts, the first of which was 1700. The apparently unequivocal terms of Section 1 of the 1770 Act had to be limited to the purposes of the earlier Acts. Furthermore, the Judicial Committee had to consider the effect, if any, this eighteenth-century legislation had upon Article 9 of the Bill of Rights, 1688, which established the privilege in respect of a 'proceeding in Parliament.' The question posed by the House of Commons was not, in any event, a 'silly' one.
2. It is not correct to say that the Attorney-General was ill-advised about the Act of 1770. While most lawyers would agree with the findings of the Judicial Committee, the point was considered perfectly arguable.
3. You are not tight in saying that the House of Commons only referred the narrow point to the Judicial Committee because 'they were rightly fearful of the answer they would receive' on the other issues. They need not have referred anything to the Judicial Committee and any view that that body did express could be rejected by the House.
4. Your précis of the decision in Stockdale v. Hansard is oversimplified. The parliamentary printers, Hansard, were held to have no defence of privilege to a libel action. The court said nothing• about an MP raising such a defence.
Is it fair to say that the behaviour of the House of Commons in privilege cases has been 'ludicrous'? Oversensitivity there has been; the Strauss case is not, I suggest, a case of sensitivity. You weaken the argument for handing over the matter to the courts by failing to state the opposition's case.—Yours faithfully, L. J. BLOM-COOPER 2 Hare Court, Temple, EC4
[The Manchester Guardian wrote : 'The Committee has now advised that . . . Parliament is entitled to treat the issue of a writ as a breach of privilege.' In fact, the Committee said 'they express no opinion . . . on the question whether the mere issue of a writ could in any circumstances be a breach of privilege.' The Guardian was evidently also unaware that letters written by MPs to Ministers are already privileged provided they are written in good faith.
The Observer said 'seven law lords in the Judicial Committee of the Privy Council last week appeared as champions of Parliamentary privilege.' Their Lordships did nothing of the kind. Indeed, they went out of their way.to say that they were 'mindful of the inalienable right of Her Majesty's subjects to have recourse to her Courts of Law for the remedy of their wrongs' and, by dint of quotation from Erskine May, they reminded the House of Commons that an action could proceed in the Courts however strongly the Commons objected that it was a matter of privilege, The Observer further said that 'freedom of speech in Parliament has triumphed over freedom of speech outside Parliament.' This also is untrue. The Judicial Committee merely confirmed what everybody has always thought to be the position.
As to (1) we merely said that it was odd that the Judicial Committee answered a question about the 1770 Act solely by examining an Act of 1700, and that is what they did. They did not even quote the words of the 1770 Act.
(2) Can Mr. Blom-Cooper name any constitutional lawyer or authority in the last 190 years who has thought the constitutional position to be different from what the Judicial Committee said it was?
(3) We said 'presumably because they were rightly fearful' and the remark was fairly obviously ironical. But good advice may still be unwelcome even if one is free to reject it.
(4) We said 'the classic case of Stockdale v. Han- sard decided that the publication of reports by order of the House as a whole was not privileged'—a per- fectly fair summary of the decision. The printers were represented by the Attorney-General of the day, whose opening words were: 'The House of Commons is called before an inferior tribunal for authorising a publication. . . .' Naturally we did not discuss what the case did not decide.—Editor, Spectator.]
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