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Recently, the MP for Foyle, the Hon Colum Eastwood, named "Soldier F", who is facing charges of murder over Bloody Sunday in 1972. A judge in Northern Ireland had made an anonymity direction in the case, but Mr Eastwood used parliamentary privilege to circumvent this and publicly name Soldier F. As the linked article shows, the media have resolutely refused to repeat Mr Eastwood's identification, but it is not clear to me if this is for legal or ethical reasons.

Can anyone in the UK (especially anyone in Northern Ireland) now name Soldier F in the context of directly quoting Mr Eastwood's remark? Is the anonymity direction now a dead letter, or does anyone using the name in the context of quoting Mr Eastwood and are they thus protected as a consequence of parliamentary privilege? Or does the order still apply to everywhere outside of Parliament, and one could be arrested for contempt of court for using the name in public?

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  • 2
    I have added a northern-ireland tag, since it is a separate jurisdiction within the United Kingdom. (togeather with the existing scotland and england-wales tag ; there is no wales tag at present.) Jul 16, 2021 at 6:25
  • @MarkJohnson because England and Wales have a unified legal system.
    – phoog
    Jul 16, 2021 at 6:41
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    @phoog Yes, then the tags should now then be compleate. Wales as a jurisdiction As there is no criminal law within contemporary Welsh law, Wales is not considered a fourth jurisdiction of the United Kingdom. Jul 16, 2021 at 7:01
  • 1
    There's medieval Welsh law, which is pretty damned interesting, but it should be under a tag such as welsh-law and not under the misleading terse form "Wales".
    – lly
    Jul 16, 2021 at 15:03
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    What does surprise me in this case is that websites outside of the UK appear to be honoring the judge's ruling, too. Such rulings are entirely unenforceable under e.g. US law.
    – Kevin
    Jul 16, 2021 at 22:18

3 Answers 3

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At common law, parliamentary privilege does not extend to the republication of words spoken in Parliament: Stockdale v Hansard (1839) 112 ER 1160. To overcome this, Parliament passed the Parliamentary Papers Act 1840, which provides absolute privilege for a report published “by or under the authority of either House of Parliament” (ie. Hansard).

Section 3 of the Act provides qualified privilege for publishing an “extract or abstract” of Hansard. In relation to statements made under parliamentary privilege in breach of a court order, the Committee on Super-Injunctions wrote in its report on Super-Injunctions, Anonymised Injunctions and Open Justice (May 2011):

In order to obtain the benefit of the immunity from civil or criminal proceedings under section 3, the individual must prove, before a jury, that the relevant material was published in good faith and without malice. It is an open question whether publication of any extract from or abstract of Hansard which had the effect of frustrating a court order and was deliberately intended to do so would be held to be in good faith and without malice …

Where media reports go beyond, or fall outside, the ambit of protection provided by the 1840 Act, it is the common law which determines whether there is any protection from contempt proceedings for breach of court orders. Mr Woolf noted that while Wason v Walter (1868) 4 QB 73 established a limited common law protection in defamation proceedings for honest, fair and accurate reporting of Parliamentary proceedings, there was ‘no reported case which authoritatively decides the extent of protection against proceedings for contempt available in respect of fair and accurate reports of proceedings of Parliament’ …

It therefore appears to be an open question whether, and to what extent, the common law protects media reporting of Parliamentary proceedings where such reporting appears to breach the terms of a court order and is not covered by the protection provided by the 1840 Act. What is clear is that unfettered reporting of Parliamentary proceedings (in apparent breach of court orders) has not been established as a clear right.

In its report on Parliamentary Privilege (June 2013), the Joint Committee on Parliamentary Privilege said that the Parliamentary Papers Act would generally not apply to the contemporary media, and that the defence of qualified privilege was limited to defamation actions:

An “abstract” was defined by the 1999 Joint Committee as a “summary or epitome”. Thus media reports of what goes on in Parliament, even if they draw on documents published by order of the House, such as Hansard, do not generally enjoy the (qualified) protection afforded by section 3 of the 1840 Act—a point confirmed by Sarah McColl, Solicitor Advocate in the BBC Editorial Legal Department, in her oral evidence on behalf of the Media Lawyers Association …

Outside the field of defamation, it does not appear that media reports of parliamentary proceedings (as opposed to extracts or abstracts) enjoy legal protection. This arises most obviously in the case of breaches of court injunctions …

The Joint Committee recommended that the law should be reformed:

On balance, we do not support extending absolute privilege to all reports, including media sketches and summaries, of proceedings in Parliament … we consider that the existing protection of qualified privilege—that is, that all fair and accurate reports are protected, unless they can be proved by the claimant to have been made maliciously—already provides a robust defence of press freedom …

At the same time, we acknowledge that the media need clarity and certainty. The Parliamentary Papers Act 1840 provides qualified protection for all “extracts and abstracts” of parliamentary publications (including broadcasts), but as we have already said these terms do not appear to cover media reports or editorial comment …

We endorse the recommendation of the 1999 Joint Committee that [the] Parliamentary Papers Act 1840 should be replaced by modern statutory provisions … We recommend that these new provisions should …

  • establish that qualified privilege applies to all fair and accurate reports of parliamentary proceedings in the same way as to abstracts and extracts of those proceedings;

  • provide that in all court proceedings in respect of such fair and accurate reports, extracts or abstracts, the claimant or prosecution shall be required to prove that the defendant acted maliciously …

However, it appears that Parliament has not taken up the Joint Committee’s recommendation, and the extent of any common law protection remains an open question. Accordingly, the article linked in the question states that “The BBC is not naming Soldier F for legal reasons.”

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Can everyone name Soldier F now that an MP has?

Possibly, for the following reasons:

The Speaker responded by reminding members that anything that was mentioned in the House was in the public domain, and that it was for the BBC to make up its own mind what to report...

(I cannot yet find a relevant Hansard entry but strongly suspect this is an accurate account. The context was whether the BBC could broadcast Parliamentary Privilege years before the introduction of live TV - it was eventually decided that a broadcaster would probably be able to rely on the common law defence of qualified privilege.)

  • The Hansard public domain record of 13 July 2021 gives a verbatim account of the debate including Colum Eastwood's statement naming Soldier F.
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Things said in Parliament are privileged meaning that there are no legal consequences for saying them.

Things said outside Parliament, even if they are repeating things said inside Parliament, are not necessarily privileged.

The Parliamentary Papers Act 1840 provides absolute immunity for papers published by order of Parliament (such as the Hansard, government reports etc.) or correct and complete copies of these.

Extracts enjoy qualified privilege but the onus is on the defendant to prove that the extract was published without malice. Anyone who published the name would have to satisfy the court that the defiance of the court order was absent any intent to damage the defendant or the legal process: this might be difficult.

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  • Can someone explain why this answer is so heavily down-voted (it's at -9 as I write this)? I'm not seeing a huge difference, except in level of detail, between this and sjy's answer, which is currently at +18.
    – cjs
    Jun 22 at 11:32
  • @cjs “democracy simply doesn’t work” - Kent Brockman
    – Dale M
    Jun 22 at 11:50

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