Clause 36
Criminal Justice and Immigration Bill
9:30 am
Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)
I do not want to have too long a discussion about it, but there are various sorts of privilege, with which we must be careful not to confuse ourselves. I shall come to the law of privilege within the common law on defamation, or statutory law as it will be if I succeed in my amendment. For the moment, I do not want to guess whether a report published by the commissioner in breach of a consent or without the consent of a personal representative of the deceased would take the commissioner outside any protections that he might have, either expressly or by implication. The Minister may well have something to say about that.
My amendment would expressly protect from defamation law both the commissioner and anybody who might wish to carry a fair and accurate report of what the commissioner reported. We all understand that deaths in custody, or deaths that come within the death remit, are hugely emotionally sensitive. Sometimes the commissioner will have to make some pretty hard criticisms of managers or individuals who work within—I shall use the expression, even though I have made fun of it—the custody setting. It is not in the public interest for the commissioner to feel inhibited, merely through fear of an action in defamation, from saying precisely what he thinks based on the evidence he has discovered. I need not give examples; I am sure that Committee members can easily understand the sort of inhibiting factor that might influence the commissioner. That is why I am suggesting a new subsection (8) in the terms of the amendment.
Absolute privilege is the privilege that protects us as Members of Parliament when we speak either in Committee or on the Floor of the House. Anything that we say is absolved from the law of defamation; it might breach the rules and regulations of the House, but we cannot be sued by a third party for saying it. Equally, a newspaper has absolute protection in reporting what we have said, so long as what it publishes is fair and accurate and is published contemporaneously. Protection from libel suit becomes qualified if the report is non-contemporaneous, and in that case issues of malice apply. The Minister suggests that a fair and accurate contemporaneous report is covered only by qualified privilege.