The Publication of Controversial Parliamentary Papaers
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01897.x |
| Published date | 01 September 1993 |
| Date | 01 September 1993 |
| Author | Patricia M. Leopold |
REPORTS
The Publication
of
Controversial Parliamentary Papers
Patricia
M.
Leopold*
Since October
1992
five controversial reports have been published by a
parliamentary procedure which ensures that those named in a report have no means
of legal redress against its author
or
publisher. The reports in question were the
Bingham Report,’ the reports of the Fife and Orkney Child Care Inquiries,2 the
second May Rep~rt,~ and the Nimmo-Smith/Friel Rep~rt.~ The procedure used
was the ‘motion for an unopposed return,’5 the effect of which is to ensure that a
named report is ‘returned’ to the House of Commons and in consequence is
covered by absolute legal privilege under section
1
of the Parliamentary Papers
Act
1840.
It is the purpose of this note to look at this procedure and to suggest that
it is open to criticism on various grounds.
The Parliamentary Papers
Act
1840
The
1840
Act was designed to ensure that parliamentary papers could be made as
widely available as possible and that those who, on the authority of either House,
publish such papers should not find themselves facing legal action on account of its
criminal
or
defamatory content.6 The important requirement of the
1840
Act is
that the publication of a paper
or
report has been authorised by one of the Houses
and is, as a result, a House of Commons (or House of Lords) paper. The usual, and
most satisfactory, way of achieving this is for a paper to be presented to the House
which then orders its publication.
This is the method used for the publication of Select Committee reports and
evidence and Act papers; that is, papers which in accordance with an Act of
Parliament have to be laid before Parliament. This procedure ensures that the
paper is presented to the House before the House authorises its publication. An
*Department of Law, University of Reading.
1
This was the report of Lord Justice Bingham’s inquiry into the supervision of the Bank of Credit and
Commerce International (BCCI); HC
198 (1992-93);
HC Deb
vol212 col547, 576-591
(27
October
1992).
2
HC
191,
HC
195 (1992-93),
both published on
27
October
1992;
HC Deb
vol212
col
849,
867- 881.
Both these inquiries were set up by the Secretary of State for Scotland under the Children
Act
1975.
The Fife Inquiry, conducted by Sheriff Kearney, looked into child care policies in Fife. The
Orkney Inquiry, conducted by Lord Clyde, was concerned with the removal of children from Orkney
to
a place of safety in February
1991.
HC
296 (1992-93);
HC Deb vol
215
col
378 (3
December
1992).
This was the second report by the
Rt Hon Sir John May on the
Muguire
case, which arose out of the circumstances surrounding the
1974
Guildford and Woolwich bombs. The interim report, HC
556 (1989-go),
was also published under
the unopposed return procedure.
4
HC
377 (1992-93) (26
January
1993).
This was the report
of
the investigation into the allegation by a
senior officer in the Lothian and Borders Police of
a
conspiracy to pervert the course of justice in
Scotland.
5
A return from a department headed by a Secretary of State is called for by means of Humble Address
to the Queen to give directions that the report is laid before the House. In respect of other departments,
the House will order the person concerned to ‘return’ the report to the House.
The
1840
Act was passed as a consequence of
Stockdale
v
Hunsurd
(1839) 9
A
&
E
1.
See Leopold,
‘The Parliamentary Papers Act
1840
and its Application Today’
[1990]
PL
183.
3
6
0
The Modern Law Review Limited
1993
(MLR
565,
September). Published by Blackwell Publishers,
108
Cowley Road, Oxford
OX4
1
JF
and
238
Main Street, Cambridge, MA
M142,
USA.
690
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