Parliamentary privilege guarantees MPs and peers total freedom of speech, and freedom from arrest on civil matters, when they are speaking on the floor of either the Commons or the Lords, or in a Westminster Hall debate or a session of a select committee. The rules on privilege go back to the Bill of Rights of 1689. This declared that "freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any place or court outside Parliament". This means that MPs or peers cannot, for example, be sued for libel for any statement they make in Parliament. And the BBC cannot in theory be sued for broadcasting that statement either.(1)
and Lord Falconer, as Lord Chancellor, made this very clear, when he said:
"The purpose of Parliament having privilege is so that there can be free debate in Parliament. There is no point in free debate in Parliament if the free debate is then kept secret by the media. The purpose of the privilege rule is that, as long as there is an accurate account of what is said in Parliament, it can then be broadcast or put in national newspapers." (1)
But Jersey has seen a shift away from this kind of privilege. In 2009, it was decided that Hansard should be edited to remove individuals who were named in breach of standing orders, and sneaked away in the small items in the JEP tonight is a proposition by Privileges and Procedures, who want to edit old Hansard transcripts to remove any names of non-States members mentioned before 2009, when the States agreed that the Bailiff should be able to remove any names of if they were mentioned:
to agree that the Bailiff should be empowered to direct that any names found in the transcript of States proceedings from the establishment of the Official Report in 2005 until the coming into force of the amendment to Standing Orders approved on 10th March 2009 should be removed from the transcript, providing that the presiding officer had, at the time the name was used, ruled that the use of the name had been in breach of Standing Orders; and to further agree that when any name is removed retrospectively from the transcript in accordance with the use of this power a note should be inserted in the revised transcript stating "name omitted in accordance with States decision of [date this proposition is adopted]".(2)
While I understand the reason why the ruling was introduced, largely because of former Senator Stuart Syvret's misuse of Parliamentary Privilege, I regard it as an extremely bad form of censorship because the matter (as with current Hansard) is subject to the ruling - and hence the judgment of the presiding officer - and not done according to strictly objective criteria. And yet there is no reason why this should not be the case.
In Hansard, Official Report - 21st October 2008, the following exchange took place (which being in the public domain, I am reproducing), although I am removing the named individual because of my own sense of responsibility:
4.3.8 Senator S. Syvret: Does the Chief Minister really not consider, given the seriousness of the issue and the nature of the investigations that are taking place, that it is wholly inappropriate for M**** L****, the Chief Officer of the Education Department to remain at work? M***** L****.
The Deputy Bailiff: Senator Syvret, you, along with everyone else, are aware of Standing Order 104 which says that you should not refer to an individual's name unless it is unavoidable. You deliberately...
Senator S. Syvret: It is unavoidable and it is necessary in the public interest.
The Deputy Bailiff: Can I perhaps remind Members why that rule is there. Parliamentary privilege is an absolutely vital part of a democracy, Members must be free to speak their minds but with that comes responsibility to not cast aspersions on those who are not in a position to defend themselves before this Assembly.
Senator S. Syvret: Do you accept, on a point of order, that it is in fact done from time to time in the House of Commons, for example, that M.P.s (Members of Parliament) name individuals when there is a public interest reason for doing so?
The Deputy Bailiff: I have accepted that parliamentary privilege exists. It is up to Members to exercise restraint and responsibility. We come then, I think, to the next question, which is a question that Deputy Southern will ask of the Minister for Education, Sport and Culture.
I think it was wholly inappropriate of Senator Syvret to make allegations against Mr L****, when the man is unable to defend himself, and moreover has not been charged with any offense, or judged guilty. This is a McCarthy style naming of names. But it is also quite inappropriate for Jersey to introduce measures which are quite draconian, and based upon the judgment of one individual as to whether it is in the public interest. It is an over-reaction, and one which leaves a legacy of censorship which is not the case in England. It also seems wholly perverse that Jersey should follow the United Kingdom in minor matters, such as imposing a dress code for members which is not codified, and yet disregard the far more important realm of Parliamentary Privilege.
I think that States members should be able to name individuals in exceptional circumstances, and that should not be censored by the Bailiff. Equally, I believe that an honorable practice would be to follow that of Ernest Bevin, who in a commons debate stated the following:
Mr. Bevin: I am justifying the statement, without particularising individuals. If I proceeded to substantiate my case by naming individuals, I should be in honour bound to do that outside, to give them the opportunity to defend themselves. That may not be Parliamentary practice, but it is equity. If I mention a person in this House and then protect myself with Parliamentary privilege, that is a cowardly thing to do.