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Why we are privileged to have protection of parliament

By Paul Connolly

Published 25/09/2015

File of evidence: Jamie Bryson
File of evidence: Jamie Bryson

The Nama hearings this week didn't just unleash a wave of claim, counter-claim and predictions that the skies over Stormont could soon be thick with writs.

It also provoked interest in the legal protections that surround the ability of people to speak out in parliament, and also of the media to report on these comments.

The mechanism is a legal protection called "privilege" which provides a kind of legal immunity to members of parliaments, and particularly in countries that were in the sphere of the former British empire or which adopted Westminster-style government.

The concept of privilege is hard-wired into the various pieces of defamation legislation in the UK. Indeed, it even appears in the Bill of Rights as far back in 1689 and beyond.

There are two main types of privilege: "absolute" and "qualified". With absolute privilege, MPs and MLAs are granted protection against liability for statements made in the course of their legislative duties.

Specifically, an MLA cannot be sued for libel because of what he or she says in parliament. Legislation also covers "the making of a statement in proceedings of the Assembly".

The proceedings of the Assembly don't just mean what's said in the main chamber: committee hearings, Assembly papers, reports and more are all "privileged".

So when people give evidence to committees - whether they be an MLA like Martin McGuinness or a member of the public like Jamie Bryson - they can't be sued for what they say.

Absolute privilege is a complete defence against an action for defamation, and it doesn't matter what the speaker's motive was, even if they acted with malice or if knew what they were saying was untrue or if they acted with the sole aim of damaging the reputation of another person.

For the rest of us, particularly the media, "qualified privilege" applies. This means that reports of proceedings in parliament are protected, but only under certain conditions.

These are fairly straightforward: mostly, it means that fair, accurate reports made without malice are protected against libel writs.

It should be noted that privilege applies to other arenas too, for example, courts, councils, official documents and so on.

Parliamentary privilege is not uncontroversial.

This is due to the potential for abuse. MPs could, for example, maliciously make allegations about other people they would not make ordinarily for fear of being sued.

Or leak national security or diplomatic secrets.

On several occasions during the Troubles people were identified as leading IRA members by MPs shielded by the cloak of parliamentary immunity.

So why allow people to get away with saying pretty much what they like, not matter what the controversy or even damage caused? It's because of the overwhelming benefits that democracy, openness and the free flow of ideas brings to states.

Transgressions are in fact few and far between. MPs and MLAs are generally a responsible lot. Members of the public who give evidence to parliaments regard it as both an honourable and serious matter.

It's no coincidence that the most prosperous and successful nations are also advanced liberal democracies - and the concept of 'privilege' plays a key part in this.

Belfast Telegraph

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