Clause 165 - Defamation: Part 4
Mr Nigel Waterson (Eastbourne, Conservative)
You may remember, Mr. Beard, that we had a short debate on defamation under a different clause, the number of which escapes me. I do not want to repeat that debate but I said then that I was quizzical about whether we should apply a blanket privilege in terms of the law of defamation to what was done earlier in the Bill. Our deliberations in Committee and in the Chamber are subject to absolute privilege, as are court and tribunal proceedings, but there are significant risks attached to qualified privilege, not least because if malice is proved, an action for defamation can be taken.
By way of parenthesis, one of the leading cases on parliamentary privilege involved a previous hon. Member for Wealden and the Church of Scientology. It established that parliamentary privilege is absolute in every respect, and I hope that my hon. Friend the Member for Wealden (Mr. Hendry) does not have go through any similar litigation during his long and distinguished career in this place.
I wanted to return to this subject because of the words
''in the exercise of any of their functions under this Part.''
Anything that remotely approximates to a judicial process or is equivalent our deliberations, including matters such as a Competition Appeal Tribunal hearing or a formal investigation by the Office of Fair Trading or the Competition Commission, should attract absolute privilege. However, the clause goes too far in giving that privilege in
''any of their functions under this Part.''
Some of the less important functions are not quasi-judicial or quasi-parliamentary and should attract only qualified privilege. There will be no risk at all to those involved if they say what they say on appropriate occasions and in the absence of malice. If there were an occasion—I cannot image one—when those conditions were not met, an action could properly lie. We are debating potentially highly explosive matters, including corporate reputation and share prices, in which ill-advised or malicious comments can have a disastrous effect on both individuals and companies.
The clause is drawn too widely. I have explained why qualified privilege has a place in the Bill, and I will be interested to hear the Minister's thoughts.
Miss Melanie Johnson (Parliamentary Under-Secretary, Department of Trade and Industry; Welwyn Hatfield, Labour)
I am grateful for hon. Members' interest in the clause and I agree that there are some important issues.
I should say first that the Fair Trading Act 1973 currently provides similar protection in undertakings and reports, and the clause will carry forward that protection and update the provision to ensure that all the authorities' functions are covered. Providing protection from actions for defamation is necessary to ensure that parties cannot seek redress from the authorities for statements that they made in carrying out their functions under the market's regime. That is why it is important that the measure covers all the functions of the authorities in question.
The procedures in the new legislation are different because we are seeking greater transparency and, as the hon. Gentleman will appreciate, a greater range of statements will be made. However, under the 1973 Act, the protection was attached to similar statements when they were made through Parliament, and we simply want to update the provision.