Andrew Geddis: Let public control privilege

In his Perspectives article, retired Court of Appeal judge Ted Thomas opposed a change to the law governing the free-speech privilege of Parliament, as recommended by Parliament's privileges committee.

That recommendation, in turn, calls for a legislative over-ride of the Privy Council's recent decision in the case of Jennings v Buchanan.

Mr Thomas' argument for opposing the committee's recommendation - that MPs be able to confirm outside the House defamatory statements they have made under parliamentary privilege without fear of being sued - is essentially twofold.

First, he thinks that because the Privy Council decided the basic issues in the right way, it would be a mistake to now amend its ruling on the law.

But even if that were not the case, he opposes Parliament intervening in the matter on a point of principle. Because MPs benefit most from the privileges of Parliament, he argues they should not decide what those privileges are.

Therefore, even if MPs genuinely believe that the Privy Council got it wrong, they still should leave the matter alone. It is better, he says, for neutral and objective judges to make these decisions, even if they may decide them in a sub-optimal fashion.

I disagree with both these points.

With regard to the basic correctness of the Privy Council's decision, let's put to one side the question of whether or not it improperly involves the courts judging the internal workings of Parliament. Mr Thomas has attached the pejorative word "academic" to this issue, which tends to be the death knell for public debate.

Of more moment is the practical effect of the court ruling. Remember, following the Jennings v Buchanan decision, any "effective repetition" of words spoken during parliamentary proceedings removes the absolute privilege enjoyed by all participants (whether an MP or other) in parliamentary proceedings. Exactly what constitutes such an "effective repetition" is left unclear.

How can parliamentary participants ever know if they are courting potential liability by later commenting on what they have said in Parliament?

The Privy Council's response to this problem, which Mr Thomas echoes, is to tell such persons to, in essence, shut up once outside Parliament.

Which is all well and good - but is it a realistic option? We live in a media-saturated society, where those involved in parliamentary affairs are constantly bombarded with queries about their actions and words.

To tell such people that silence (or, "circumspection", in the Privy Council's words) is required once they have spoken in Parliament is perhaps somewhat utopian. Furthermore, is such advice even desirable? As it stands, those who have made parliamentary claims now refuse to even acknowledge in public that the claim was made, let alone seek to defend or substantiate it.

The public is thus denied the opportunity to hear them held accountable for their words. It is strongly arguable that this actually undermines the public's ability to judge such actors, and to punish those who are abusing the privileges of Parliament.

Any questioning of whether the Privy Council's decision was correct leads directly to the second point Mr Thomas addresses. Who should decide this sort of matter?

It is true that the issue involves a balancing exercise between an individual's reputation and the value of free and uninhibited dialogue.

Mr Thomas argues that the courts, without any direct interest in the matter, provide the most objective forum for striking that balance. But the courts - and the judges who sit in those courts - are largely free from the kind of intense media attention and challenge that is directed at MPs.

Judges are not expected to comment on or justify their decisions. The words in their judgments speak for themselves.

MPs, however, operate in a completely different environment. They should have to front to the public and explain themselves. Whether the judiciary has fully understood this difference in roles is debatable.

Furthermore, the courts are individual-centred, in the sense that they are presented with a limited set of facts and one claimant asking for a remedy.

It is equally debatable whether this forum is the best for working out broad policy issues, such as the appropriate scope for free public debate over parliamentary matters.

The final point to note is that the privileges committee report is not exactly a novel constitutional development. Parliament always has had the final word on issues regarding its own privileges. And that is a good thing.

If New Zealanders think Parliament is getting the issue wrong, they can do something about it. Any legislative change will go through the select committee process, as well as being subject to the full blast of public opinion through the media and other channels.

Simply put, if the public think Parliament is claiming too much by way of privilege for itself, they can make their displeasure so apparent that MPs will have to reconsider their actions.

What, however, can we do if we think the judges have got this kind of matter wrong? Nothing. And that, in the end, is the main point to remember.

* Andrew Geddis, a senior lecturer in law at Otago University, was one of the privileges committee's advisers on the free-speech issue.