I move the amendment in my name which appears on the Order Paper:—
To delete "adopted" and substitute "referred back for reconsideration".
I do so for a number of reasons. This is a very important matter. It not only affects newspapers that are published in this country and circulating in it, but it affects the rights of Deputies and, to a large extent, it affects the rights of the public.
I have endeavoured to get some information in regard to this claim, in the first instance, of privilege, and secondly, in regard to its operation. As Deputies will realise, in considering a matter of privilege, one has to take into account the experiences of other Parliaments and the general principles which they have laid down to guide them in matters of this kind. I believe that I will be able to satisfy the Dáil that there was no breach of privilege in this instance. In considering this matter of parliamentary privilege, obviously Deputies will refer, as I have referred, to what is the standard work on this—May's Parliamentary Practice.I have endeavoured to get fromMay's Parliamentary Practice,and from the cases quoted in that work, some idea of what privilege is and how it operates. I think it will be agreed that it is almost impossible to list—that is in the British Parliament—all the acts that may be considered as contempt, because the power to punish for contempt in the British Parliament is discretionary; but I think I would be stating the law correctly if I quoted this from May:—
"It may be stated generally that any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty or which has a tendency, directly or indirectly, to produce such results,may be treated as a contempt, even though there is no precedent in the House."
That is, in a general way, a description of contempt, and of the power of the House of Commons or the House of Lords to punish for contempt. Those are very extensive powers, and, in the British Parliament, they are based, as far as I can see, on the custom or law of Parliament. The custom or law of Parliament is of long acceptance in the British Parliament. It is based, as I say, entirely on tradition.
Under that custom of the British Parliament, they have made matters the subject of privilege, a breach of which they punish. If I may, I shall just briefly refer to some of the major matters which they have considered to be privilege, and breaches of which they have dealt with as a breach of privilege. They have so dealt with disobedience to rules or orders of either House or disobedience to orders of a committee. To prevent, delay, obstruct or interfere with the execution of the order of either House or of a committee is a contempt of such House. Conspiracy to deceive either House or any committee of the House has also been treated as a breach of privilege. To attempt to influence members in their conduct by threats is also a breach of privilege. To molest any member on account of his conduct in the House is a breach of privilege. To publish any libel reflecting upon a member relating to his service therein is considered a high violation of the rights and privileges of the House. Similarly, imputations against a member may amount in the British Parliament to a breach of privilege. Interrupting or disturbing the proceedings of either House of the Parliament has been considered to be a breach of privilege, and is punished as contempt. Remaining in the House, after being ordered to withdraw, or taking notes of what is passing in the House, and refusing to desist when requested to do so by an officer of the House has been considered a breach of privilege, and is punished as contempt.
This is important in regard to newspapers particularly. The following areinstances of misconduct in connection with the publication of debates which have been treated as a breach of privilege: publishing a false report of proceedings of the House; publishing scandalous misrepresentations of what had passed in either House or of what had been said in debates; publishing under colour of a member's speech a gross libel on the character and conduct of another member; suppressing speeches of particular members. I would like to pause on that. It has been considered to be a breach of privilege. I have been subjected to that very often myself. The following are further instances: publishing proceedings which the House had ordered to be expunged from the journals.
In matters in committee, or in investigations where counsel appears before the House or a committee and reflects on the proceedings in Parliament or upon the members of the House, that has been considered a breach of privilege. Likewise, witnesses summoned before Parliament or a committee are guilty of contempt if they refuse to be sworn, or to take an oath or some corresponding obligation to speak the truth, or if they refuse to answer questions or are guilty of prevarication or of trifling with the committee by returning insulting answers to the committee, or appear in a state of intoxication, or if they destroy, after a first examination before a committee, a material document relevant to the inquiry. All these are breaches of privilege, as well as the acceptance by a member of either House of a bribe to influence him in his conduct as such member, or of any fee, compensation or award in connection with the promotion of, or opposition to, any Bill, Resolution, matter or thing submitted or intended to be submitted to the House or to a committee therein.
In 1858, the House of Commons resolved:—
"That it is contrary to the usage and derogatory to the dignity of this House that any of its members should bring forward, promote or advocate in this House any proceeding or measure in which he may haveacted, or been concerned, for or in consideration of any pecuniary fee or award."
I may say that it has been held in respect of a counsel that where he has appeared in criminal proceedings which have finished he would be entitled to participate in a debate in Parliament in regard to it. The last of the important declarations in the British House of Parliament was on the 15th July, 1947, when it declared by resolution that:—
"It is inconsistent with the dignity of the House, with the duty of a member to his constituents, and with the maintenance of the privilege of freedom of speech, for any member of this House to enter into any contractual agreement with an outside body controlling or limiting the member's complete independence and freedom of action in Parliament or stipulating that he shall act in any way as the representative of such outside body in regard to any matters to be transacted in Parliament; the duty of a member being to his constituents and to the country as a whole, rather than to any particular section thereof."
I think the House will recollect that case, that of a member named Brown who was, I think, secretary of a Civil Service organisation. On the question of the administration of this law of privileges I quote the following:—
"The two Houses of Parliament in England are of equal authority in the administration of a common body of privileges. Each House, as a constituent part of Parliament, exercises its own privileges independently of the other. They are enjoyed, however, not by any separate right peculiar to each but solely by virtue of the law and custom of Parliament. Each House may declare and expound privileges and may punish breaches of privilege, but it is the law of Parliament that is thus administered. Although either House may expound the law of Parliament and vindicate its own privileges, it has been agreed since 1704——"
and I want to stress that
"——it has been agreed since 1704 by the House of Lords and the House of Commons that neither House has power by any vote or declaration, to create to themselves new privileges not warranted by the known laws and customs of Parliament."
That, in a general way, relates to privileges. The particular matter of the publication of documents has been dealt with in this way:—
"By the ancient custom of Parliament no act done at any committee should be divulged before the same be reported to the House."
On that principle the House of Commons resolved on 21st April, 1837:—
"that the evidence taken by any Select Committee of this House and the documents presented to such committee and which have not been reported to the House, ought not to be published by any member of such committee or any other person."
I am coming now to the particular matter that is for the decision of the House. Where the public were admitted to a committee that rule was not enforced. In a case known as Sheehan's case in 1831-32 it was held that:—
"The publication of proceedings of committees conducted with closed doors or of reports of committees before they are available to members will, however, constitute a breach of privilege."
On the question of the premature publication of reports May sets out at page 601 of his 1950 edition:—
"Any publication of a draft report, which has been submitted to a committee, before such report has been agreed to by the committee and presented to the House or of the report of the committee before it has been presented to the House is treated as a breach of privilege."
I would like to stress this point. It is also laid down:—
"When the report of the committee which has been presented to the House but was not yet available tomembers in printed form, was communicated to the Press, the Speaker stated that the more regular practice was that the members of the House should be the first to be put in possession of the deliberations of the Select Committee."
Let me emphasise the last two points I have made. First and foremost, where there has been the publication of a draft report, which has been submitted to a committee, before the report has been made to the House, that is clearly a breach of privilege, but where a report has been made to the House of Commons or to Parliament there has been no declaration in the British Parliament that its publication before distribution is a breach of privilege. That question has been considered by the British Parliament on two occasions. It was considered in 1893-94 and in 1947-48. I would like to quote for the House these short references. They are in connection with cases which are exactly similar to that which we are here debating—the premature publication of a committee's report. As will be clear from what I have said already, the British Parliament by the custom of Parliament has felt itself to have inherent power to deal with breaches of privileges and there is a whole body of law relating to privilege and breach of privilege. However, in 1893, when there was what was considered to be the premature publication of a committee's report, the matter was referred to the Speaker of the House in regard to publication in a newspaper.
The question was raised by Mr. Ellis, a member of Parliament. At column 811, chapter 14 of the Parliamentary Debates of the House of Commons, 1893-94, he says:—
"I beg to ask the Secretary of State for the Home Department whether he has seen a very full report in the Yorkshire Postof Friday, 30th June, of the provisions of the Building Societies Bill and the deliberations of the select committee on building societies; and whether, as chairman of the committee, he can explain how these matters became public although the House is not yet in possession of them.
The Under-Secretary of State for the Home Department (Mr. H. Gladstone, Leeds, W.): The report in question, which is practically verbatim,was brought to my notice. As theYorkshire Postis a Tory journal, published in Leeds I at once wrote to the right honourable gentleman the member for North Leeds expressing, as chairman of the committee, my strong regret that the Building Societies Bill, as amended by the committee, should have been given to a newspaper before being issued to honourable members. The right honourable gentleman informs me that he is responsible for having given the information to the representatives of theYorkshire Post, having been under the impression that the report was public property. He says that if unintentionally he has shown disrespect to the House he is exceedingly sorry.
Mr. Jackson (Leeds, N.): I hope I may be allowed to explain. The position of the matter is this. The committee had been sitting for some time. Their labours had terminated, and their report had been made to the House. I was under the impression that when a committee was discharged and its report made to the House there was no longer any reason for reticence with regard to the conclusions at which the committee had arrived. It is certainly within my recollection that a great many reports of committees have been made public at once after having been laid on the Table. During the evening of Thursday last one of the Lobby representatives asked me whether I could tell him what conclusion the committee had arrived at, and I did so. I was under the impression, and still am, that I was within my rights in doing so. I think it would be convenient if Mr. Speaker would be good enough to guide us with his opinion on the subject—namely, whether, when a committee to which a matter has been referred have reported to the House, an honourable member is any longer debarred from stating the conclusionsat which the committee have arrived?
Mr. J. E. Ellis: I was about, with your permission, to ask Sir, whether, although a report on amended Bill may have been formally communicated to the House, it is not more regular before communicating their contents to the public, to allow the print to be distributed to members."
Here is the ruling of the Speaker, which is short:—
"Mr. Speaker: There has been a prevalent impression that when a committee's report was laid upon this Table it at once becomes public property. That view has been acted upon in several instances; but I am bound to say that the more regular practice is that the members of the House should be the first to be put in possession of the results of the deliberations of a Select Committee. Still, I am quite aware that the contrary practice has prevailed more than once."
Now, the point I want to make is that the matter was definitely brought before Parliament and the Speaker said what the regular practice ought to be; but there was no question of declaring the publication to be a breach of privilege. That was in 1893. The other authority to which I have to refer is much shorter than that. It is reported in the House of Commons Debates, 1947-48, Volume 454, columns 1125 and 1126, as follows:—
"QUESTION OF PRIVILEGE.
Mr. Kirby: I should like, Mr. Speaker, with your permission, to bring to your notice two items appearing in newspapers to-day, and to ask for your ruling whether or not they constitute a breach of privilege. I raise this matter because on Wednesday of last week the Select Committee on Estimates laid on the Table of this House a report concerning the use of petrol by Government Departments, and although that report was laid last week it will not be printed and published for general knowledge by the public until about Wednesday or Thursday of next week.
The two newspapers concerned are The Daily Telegraphand theLiverpool Daily Postof to-day's date. On page 1 ofThe Daily Telegraphthere is a small paragraph headed:
‘PETROL ECONOMY.
By our Political Correspondent,' which reads:—
‘Criticism of lack of economy and control of petrol used by Government Departments will be made in a report by the Select Committee on the Estimates shortly to be published. The Select Committee's interest in Government petrol has led to a rapid tightening up in most Departments, and the report will show substantial savings have already been made.'
On page 2 of the Liverpool Daily Postin what is called the ‘London Letter’ appears this paragraph:—
‘BEFORE AND AFTER.
‘The report on petrol consumption by Government Departments, which, as I said the other day is coming from the Select Committee on Estimates, will have an appendix showing, I am told, a striking contrast of figures. Each Department's consumption will be given in two sets of figures, one before full checks on petrol consumption were introduced, the other afterwards.'
The point at issue is the fact that that report has been laid on the Table of the House but has not yet been published for the members of the public, and the Press to read. I ask you, Sir, for your ruling whether a breach of privilege has been committed."
Here is what the Speaker says—and this, as I mentioned to the House, was in the year 1948:—
"Mr. Speaker: I am obliged to the honourable member, who gave me notice that this question might be raised. Now, had the report not been technically laid before the House—and it is technically before the House, because it has been presented to the Clerks and, therefore, sent to the printers—and had thereport not been sent to the printers, there would definitely have been a prima faciebreach of privilege. My predecessors have ruled that once a report has gone to the printers it has technically been laid before the House, and a breach of privilege does not exist.”
I think that is very clear, that a breach of privilege does not exist when the report has been laid on the Table of the House, because technically, as it says here, it is then supposed to be sent to the printers. Mr. Speaker continued:—
"But—and here again I am in line with some of my predecessors—the fact must remain that it is a wholly undesirable principle that before honourable members themselves have had a chance of reading what is in the report of the Select Committee something should have taken place which ought not to have happened. I regret very much that some of the report of this Select Committee should have been disclosed to the Press; and I also regret that that should have been printed in the Press. The articles are not breaches of privilege, but they call for my displeasure."
Now, could that be clearer, that they are not breaches of privilege?
