Copeland Gordon: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
Copeland Gordon: Privilege — Consideration of Report of Privileges Committee Buchanan v Jennings—Question of Privilege 
[Volume:626;Page:20901] 
GORDON COPELAND (United Future) 
: 
 It is a privilege for me to participate in this debate concerning the report of the Privileges Committee on this very very important landmark decision of the Privy Council in  
Buchanan 
 v  
Jennings 
. Had the Hon Peter Dunne the leader of United Future been here today he would have been making this speech because he would have liked very much to contribute to the debate. He has been a member of the Privileges Committee in the many years that have elapsed since this matter first went to the committee in 1998. I have had the privilege of a briefing from Peter Dunne which has been very very helpful but the words that I will use in this speech nevertheless I claim as only my own. 
First of all I agree with the recommendation of the committee. I think the actual wording of that recommendation is extremely important because it does not give carte blanche in any shape or form for members of Parliament to repeat outside this House statements they have made under privilege inside this House. The proviso is: “but for the proceedings in Parliament”. In other words if members use words outside this House that are in themselves defamatory then they remain open to the possibility of an action for defamation. I think it is very very important to discuss that point absorb it and take it on board in relation to what Owen Jennings a member of Parliament at the time actually said. He said outside the House that he “did not resile from his claim about the official’s relationship”. Even if the recommendation of the committee is acted upon which I support a member of Parliament who uses those kinds of words in the future could still be open to a defamation action. Since I have been here I have heard a number of members quote Owen Jennings as having said that he “did not resile from” his remarks. That is only a partial quotation of what he said. He went on to say in terms of those remarks that they were about “his claim about the official’s relationship”. That second part of his quote would not be protected by the recommendations made by the committee. I think that is an important point to make. 
However let us go back to the implication of this whole question of “effective repetition”. As I have said I very much support the right of Parliament to ensure that the traditional understanding of its privileges is maintained into the future. But we would of course have a quite ridiculous situation if the opinion of the Privy Council were interpreted to say that for example if a member after having spoken in the House under privilege says to a journalist that what was said is on the record in  
Hansard 
 that member could be in trouble. It is not clear from the Privy Council report that even those remarks would not get a member into trouble in terms of a defamation case. It is completely ridiculous for a member not even to be able to say: “Well what I said is recorded in  
Hansard 
.”—in other words simply to point a journalist to the public record of this House which is all that would be being done there. There would be no repetition whatever of any defamation statement contained in that yet according to the decision of the Privy Council we could be caught in that regard. It is very very important that that kind of uncertainty is removed. As other members have said even the words: “I do not resile from what I said.” should in my view not be the cause of a defamation action. 
That is in terms of the privileges of this House but as other members have pointed out the decision also has implications in relation to the privilege that is contained in court actions. Let us consider a person who is a witness in a case before the court; in that context he or she may be deemed to have defamed somebody. If that person were to go outside the court and say to a journalist—who had said that the evidence was very interesting and had asked the person to elaborate—that what he or she had said is in the record of the court then under the Privy Council ruling even that may land that person in trouble because he or she had referred back to proceedings in the court. In my view the Privy Council has even risked restricting the privileges of information given before a court of law which is an extremely serious matter. That is plainly something we should not allow to happen. 
When we think about it there are also implications arising from that situation—where privilege relates to statements made in Parliament and also relates to statements made in court—for there to be a blurring of the line of the separation of powers that we have always had between Parliament on the one hand and courts on the other. That separation of powers is a cornerstone of the whole Westminster tradition on which the parliamentary and democratic system in virtually every genuinely democratic country in the world is based. We would be risking the undermining of that by allowing in both situations statements made under privilege to become the subject of a defamation action. We cannot and must not allow that to happen. 
As the member Rodney Hide has pointed out there are also implications for the press. If the press was subsequently to print for example exactly what Owen Jennings had said then it also would come under the “effective repetition” principle and also would open itself up to defamation proceedings. In fact Mr Buchanan could have taken to court for defamation not only Owen Jennings but also all the media that repeated the statement. That would really threaten the whole role of the fourth estate in our democracy. 
Really this is an amazing debate. We are talking about the privileges of Parliament and the privileges of the court and also about the freedom of the press to make its important contribution to the functioning of a free and open democratic society. In one fell swoop the Privy Council looks to have impeded all three and really has completely upset our traditional understanding of what privilege means and what is and is not the possible subject of a defamation case. 
The other thing I will mention is that I was flabbergasted in reading the report of the Privileges Committee to see that the Privy Council made such a mishmash of its interpretation of our Standing Order 396(1). That Standing Order states: “Subject to this Standing Order permission of the House is not required for reference to be made to proceedings in Parliament in any proceedings before a court.” 
Dail Jones 
: Have you got the right one? 
GORDON COPELAND 
: If Mr Jones does not think I have the right one then he can take a call later and dispute what I have said but I am quoting from the right Standing Order. [ 
Interruption 
] OK but I am still quoting from that Standing Order. 
Dail Jones 
: 2004? 
GORDON COPELAND 
: Yes the 2004 version. [ 
Interruption 
] OK but I do not think that Standing Order has been changed. But I am open to correction on that point. I say to Mr Jones that that is not really central to my argument if he will just let me finish it. 
I make two points about the Privy Council decision. First of all no evidence was presented to it on behalf of this Parliament as to the interpretation of that Standing Order and secondly it made no reference to Standing Order 396(2) which specifically states: “Reference to proceedings in Parliament is subject always to article 9 of section 1 of the Bill of Rights Act 1688”. That seems to me to be an amazing oversight on the part of what we have always regarded as being a very very fine court. On this occasion I think the Privy Council clearly did a less than stellar job in terms of coming to its decision. 
In summary United Future strongly supports the recommendation on this matter made to the House by the Privileges Committee.