On privilege, absolute or qualified

The House of Representatives' Privileges Committee is considering whether or not public servants should be given free reign to defame completely innocent individuals to their Ministers. Well, that's an exaggeration ... but read on anyway.

Upon my return to New Zealand (did I tell you I've been away? To America!?), I found a very nice letter waiting for me from the Hon Chris Finlayson. He was writing to me in his capacity as chair of the House of Representative's Privileges Committee, wondering if I would care to make a submission to its upcoming inquiry into a "Question of privilege concerning the defamation action Attorney-General and Gow v Leigh."

I would have liked to have done so. Unfortunately, by the time I opened and read this letter (did I tell you I've been away? To America!?), the submission date was a good two weeks past. So I shrugged, laid it aside and thought no more of the matter. Until, that is, I read Vernon Small's account of the Privileges Committee hearings into the matter.

This column got me thinking again about what I might have said to the Committee. And seeing as I've started using Pundit posts as a forum to say things I really ought to have said earlier, I'll do so again.

The central issue that the Privileges Committee is considering is relatively straightforward to understand, but tricky to resolve. It arose out of the Supreme Court's decision in Gow v Leigh - a case I discussed in a previous post here, so won't cover in detail again. In the course of that judgment, the Supreme Court ruled that the absolute privilege against any legal consequence that attaches to those who speak during a proceeding in Parliament does not extend to public servants who are advising Ministers of what to say to Parliament. Consequently, if a civil servant gives a Minister information about an individual or organisation that is false and defamatory, and the Minister subsequently repeats it in Parliament, then the civil servant potentially can be sued for defamation (even though the Minister cannot be, because the Minister enjoys absolute privilege with respect to her or his remarks).

It would appear from Vernon Small's account of the hearings on this matter that at least some members of the Privileges Committee are somewhat unhappy with this outcome and think that Parliament ought to legislate to override it. That conclusion is one that is open to it. The scope of parliamentary privilege is, after all, a question of law and Parliament is the highest lawmaking institution in the land. If it wants to change the law as decided by the Supreme Court to instead say that civil servants do enjoy absolute privilege, then of course it can do so.

However, before Parliament decides that the Supreme Court's decision on where the boundary of privilege should lie is so wrong as to merit legislative override, there are a few points to consider.

First, and most obviously, there is an unavoidable element of self-interest involved when Parliament legislates in regards its own privileges. That doesn't mean that Parliament shouldn't ever visit this topic - after all, someone has to decide the matter, and Parliament is (as I say) our highest lawmaker - but it does warrant taking an extra-hard look at the reasons why it wants to make changes in order to correct for any bias that may have crept in to MPs' thinking on the issue.

Second, any decision to reverse the Court's decision on the law ought to reflect an assessment of the merits and/or consequences of the actual judgment and not be a convenient occasion to make a statement about the respective roles of the judicial and legislative branches. It would be wrong, for instance, to change the law simply to "send a message" to the Court about Parliament's status at the apex of our constitutional whare. 

I hasten to note that I'm not alleging this is what the Committee is thinking of doing here. Rather, I'm just reflecting on the fact that there is an occasional tendency for New Zealand politicians to react to perceived judicial slights or challenges to their activities with grumblings that the judiciary really needs to be put back in its proper place. While there always will be a tension around the boundaries of each branch's role in our constitutional set up, responding to that tension with muscle-flexing demands to "respect my authoritah!" is not conducive to the sort of mutual respect and consideration that we want to see between the judiciary and Parliament.

Finally, there is the substantive question as to whether or not the Supreme Court did get it wrong in its Gow v Leigh decision, thus necessitating some parliamentary action to change the law. To decide that, we need to actually look at what the Court said. As I've noted, the Court concluded that civil servants generally (and Mr Gow in particular) do not enjoy absolute privilege with respect to their communications with Ministers - even where those communications are for the purpose of providing the Minister with information to convey to the House of Representatives. However, as I also noted in my previous post on the topic; 

Even if Mr Gow's briefings to Trevor Mallard contained some inaccuracies ... [the Supreme Court found] he enjoys the protection of "qualified privilege". This permits a person who is communicating to another who has a right or a need to know the relevant information to pass on an untruth about another, provided the speaker is not motivated by ill-will or takes improper advantage [of the occasion].

Obviously a public servant briefing a Minister on a question the Minister must answer in the House is communicating information that the Minister has a right or need to know. Which means that if Erin Leigh is to be successful in showing that the briefing defamed her, she will have to do more than show the briefing contained falsehoods. She also will have to prove (on the balance of probabilities) that Mr Gow was motivated by "ill will" towards her, or that he "otherwise took improper advantage" of the opportunity to brief the Minister.

So the real question for the Privileges Committee is whether the Supreme Court was correct to afford Mr Gow (and other civil servants in his position) a merely qualified privilege, or ought he (and other civil servants) enjoy the same absolute privilege that MPs and others enjoy when speaking during a "proceeding of Parliament".

Well, let's consider this issue from first principles. Why does absolute privilege attach to speech during a proceeding of Parliament? The law recognises it for two interconnected reasons.

One is to do with "comity", or the respect that Parliament and the courts ought to show to one-another's respective constitutional roles. So, Parliament's status as the highest lawmaker in the land means it ought to have full and exclusive control over its own internal proceedings (including deciding whether or not someone has told untruths during its proceedings, as well as what ought to happen as a consequence). The courts ought not to try and exert any form of control over those proceedings, as this would be to in effect subject Parliament to an external institutional authority. Furthermore, members of the judiciary ought not to get involved in assessing the rights and wrongs of what it said in Parliament (much less the motivations of those speaking), least doing so exacerbate the ever-present tension that exists between these two institutions. Basically, the courts should stay off Parliament's turf (just as Parliament should stay off the courts' turf when it comes to deciding individual cases according to law).

The other is a  consequentialist-based claim that in order for Parliament to function properly as an institution - in terms of making law, holding the Government to account and representing the people - those who are involved in its proceedings need to be able to operate free from concerns about how their words may be viewed by the courts. Note that this isn't the same as saying those involved in parliamentary proceedings ought to be free from concern about how their words will be viewed outside of Parliament, full stop. Of course MPs (and perhaps others) will be (and should be) very worried about how the ordinary punters view what they say while engaged in parliamentary proceedings. Instead, they should not have to be thinking about any particular legal consequences that may follow from their words, because otherwise they may hedge and trim their views to avoid the risk of subsequent court cases. And we don't want those speaking in Parliament to be hedging and trimming their views to avoid legal trouble - we want them to be forthright and bold in saying what they believe to be true for the benefit of us all.

Put together, these two reasons then are considered weighty enough to trump any individual's right to gain a legal remedy if their reputation is unfairly and falsely maligned during a parliamentary proceeding. In other words, we are prepared to impose an individual loss (in the sense of preventing a person from gaining a remedy for harm caused to them) for the sake of some greater collective benefit (in the sense of a smoothly functioning, sovereign legislative body). But the fact that we are balancing potential harm to the individual against assumed societal good is then critical to the issue - the absolute privilege that Parliament enjoys is not costless, and the wider that privilege is drawn, the greater the potential cost to some individual or set of individuals may be.

So how then do these twin reasons for granting and absolute privilege play out when we consider the position of public servants (and perhaps others?) who are called on to brief Ministers (and perhaps MPs?) for the purpose of enabling those Ministers (and perhaps MPs?) to answer questions in the House (and perhaps ask questions or contribute to general parliamentary debates)?

Well, it is hard to see how the "keep off Parliament's turf" rationale really applies here. After all, the House exercises no control over the relationship between Ministers and their officials, much less MPs and other possible sources of information. Sure, it could try to do so as a matter of theory, by deeming those who provide a Minister with false information that then gets passed on to the House to be in contempt. But I think a degree of realism is called for here - there simply is no chance that this theoretical power would ever be exercised in practice. Rather, the House would leave the issue to be dealt with by the State Services Commission, as a matter of employment law.

Consequently, if a court were to entertain a defamation action against a public servant  on the basis of what that public servant told a Minister, it would not be intruding into territory that ought to be the sole preserve of Parliament to monitor. This fact then means that the sole justification for extending absolute privilege to the public servant when providing information to the Minister lies in the consequentialist-based harm that may be done to that institution if public servant's do not have the benefit of that privilege. In other words, if public servants don't feel able to speak fully and freely with Ministers without fear of attracting subsequent legal liability, then they may hedge and trim their communications in a way that denies Ministers the information they need to fully answer questions posed to them by the House.

Obviously, this would be a bad outcome for the House as an institution. But how likely is it to occur? Remember first of all that under the Supreme Court's reading of the law, public servants still enjoy qualified privilege to protect them when speaking with Ministers (as, indeed, does anyone who is speaking to an MP in the course of their duties). This fact means that unless a plaintiff can prove that a public servant abused that privilege by acting out of ill will or otherwise taking advantage of the opportunity, the public servant enjoys the same degree of legal protection as if the privilege was absolute. Therefore, the only speech that will attract actual liability is where a public servant sees a chance to settle some score with an individual or group that the public servant doesn't like and gives a Minister false and defamatory information, which the Minister then passes on to the House .

Deterring public servants from that sort of behaviour (or, providing a legal remedy where they still do so) does not seem problematic. In fact, stopping it would actually improve the functioning of the House - there is no benefit in the House receiving false and defamatory information. However, the fear is that public servants won't just stop maliciously passing on false and defamatory information to Ministers. Rather, any fear of potential legal liability may lead them to be overly cautious in repeating controversial or unproven allegations, least they later be found to be false and a court decides that the public servant acted outside the bounds of their qualified privilege. So, the desire to avoid any possible liability may lead public servants to not pass on true as well as false information to Ministers. Which in turn may lead to Ministers misleading the House by not having the true information needed to respond to its questions.

I suppose it could be the case that individual public servants become so risk-averse that they deliberately run the risk of sending their Minister into the House with less information than they themselves hold. But I wonder if this fear does not misread public service culture - my observation of "inside the beltway" practice is that public servants are more terrified of being the cause of a Minister's embarrassment and wrath than anything else in this world. Furthermore, we need to remember what a public servant becoming liable for a defamatory statement to a Minister actually means in practice. The public servant won't have to hire lawyers and worry about damages. Those will be covered by the public servant's department. So at most the public servant will be somewhat inconvenienced by having to provide affidavits in defence of the action. And that would seem to be a risk that public servants face on a daily basis, insofar as their advice may result in Ministerial actions that are subject to judicial review and the like.

Finally,  the question ultimately is an empirical one: does giving public servants a qualified as opposed to an absolute privilege when advising Ministers on how to answer questions in the House lead to those public servants to be less forthcoming with information? And because it is an empirical one, it should be answerable by observation. The Supreme Court's ruling in Gow v Leigh is now over a year old. So, has there been an appreciable change in public service behaviour when supplying Ministers with information to answer questions in the House? Have Ministers had to return to the House to correct their answers more often than in the past, due to receiving less true information from their advisors and thus providing misleading original answers? Is there survey evidence of public servants to support a claim that, since this ruling, they have become less prepared to pass on controversial or unproven allegations to their Ministers?

Because in the absence of such evidence, we simply are left with a claim about the result of the Supreme Court's decision ("Ministers won't get as truthful advice, which means the House will not get the information it needs") that may or may not be true. And it seems to me there is more reason to doubt that it will be true than there is to believe it. And so if there is no appreciable net benefit to the House in giving public servants an absolute privilege, then there is no reason to deny the rare individual who is maliciously defamed by a public servant to her or his Minister the right to gain a remedy from the courts.

One last point. Granting public servants an absolute privilege in respect of their advice to Ministers on how to answer questions in the House means just that - they will face no legal consequences for their speech. I've been talking about this issue in the context of liability for defamation. But let's imagine a situation where a public servant actually does maliciously pass on false information to a Minister while advising her or him on how to answer a parliamentary question, causing that Minister to defame some individual in the House. If that public servant does enjoy absolute privilege, can the State Services Commission impose employment consequences on that public servant for that action? And would doing so be a potential contempt of the House, in the same way as TVNZ's actions towards Mr Fraser were?