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Parliamentary privilege under the Defamation Act

Parliamentary privilege is the protection provided to Members of Parliament against the action for defamation under the Defamation Act 1996. This defence is not contained in the Defamation Act 1996, but rather is enshrined in common law. There is a provision in the Defamation Act 1996 which does allow a Member of Parliament to waive this privilege (s 13, Defamation Act 1996).

The privilege does not extend to all speech of a Member of Parliament. It only applies when Members of Parliament are speaking on the floor of the House of Common or the House of Lords. It also extends to contemporaneous records of these debates. Therefore, for example, it would extend to documents such as Hansard.

The effect of this is that it encourages freedom of speech by Members of Parliament and therefore allows free and full debates. This is essential as if the threat of an action under the Defamation Act 1996 hung over a Member of Parliament it would discourage such debates.

There are, however, a number of arguments which can be made against this. For example, a Member of Parliament could abuse this doctrine and make defamatory remarks yet avoid an action under the Defamation Act 1996. Moreover, the purpose of the Defamation Act 1996 is to discourage statements made without any foundation. This purpose can be subverted by such persons who are in a position of influence and authority and therefore who should avoid making such statements. Nevertheless, they can do so and avoid action under the Defamation Act 1996.

However, whilst action under the Defamation Act 1996 would be avoided through the use of this defence, there are rules of the House in place which do prevent the use of defamatory language.

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