Parliamentary Privilege

In these days when legislatures and their members are so often distrusted and under attack from the media; conspiracy theorists; and individual members of the public - the term "parliamentary privilege" seems a needless provocation. Why should MPs; Congressmen and other legislators have privileges that the people they represent don't have?

The answer can be found throughout history. Legislatures, and democracy itself, have come under attack from outside. Powerful interests have sought to intimidate Parliaments and parliamentarians. Parliamentary privilege is designed to ensure that legislators can do the job we expect of them.

 

Robert Maxwell - himself a former MP - demonstrated effectively how criticism of powerful individuals can be silenced. His strategy was anyone who dared criticise him - or point out what he was doing - faced the EXPENSIVE threat of being sued for defamation. Truth is a defence to such an action - but failing, even on a technicality can bankrupt the individual sued. Maxwell knew that individuals, and those who could uncover wrongdoing would be silenced by that fear. So it proved to be.

MPs can bring up allegations in Parliament - which, without 'parliamentary privilege', could lead them to face the reality of legal action. Legal aid isn't available - and a powerful individual like Maxwell can (and in his case, frequently did) hire the most expensive lawyers. If the defendant has costs awarded against them, they can be financially ruined. In any case to defend an action they need to get good legal representation. Defamation law can be a great good - allowing an individual to protect themselves from malicious and damaging assertions. But it can also be used to suppress free speech.

Some sections of the press can do a great job in uncovering wrongdoing - but a newspaper's editors need to take into account the danger to their publication of being sued. That's what Maxwell knew - and counted on. Parliamentarians receive complaints from their constituents about the actions of powerful individuals and companies. Sometimes it is necessary to use parliamentary privilege to expose and hold to account. The use of privilege is taken seriously [the Committee of Privileges in 1986-87 stated "We should use our freedom of speech...with the greatest care, particularly if we impute any motives or dishonourable conduct to those outside the House who have no right of reply."- and a legislator who abused the privilege could find themselves in deep trouble with the legislative body itself.

In 1955, Kim Philby was named in the House of Commons as a Soviet spy. The academic author of a textbook on Constitutional Law, Hilaire Barnett commented - "...which surely would not have been made without the protection of privilege."

In its disputes with the Stuart Monarchs - and in response to James I's assertion that Parliament's rights were derived only from the 'grace and permission of our ancestors [former Monarchs] and us [James I using the 'royal we'] - the House of Commons asserted in its Protestation of 18th December 1621 that

"every member of the House of Parliament hath, and of right ought to have, freedom of speech to propound, treat, reason, and bring to conclusion the same"

Last week the Court of Appeal ruled on the issue last week - this report is from the BBC:

"John Bercow has said he is "absolutely delighted" that an attempt to sue a former Football Association boss for libel over comments he made to a parliamentary committee has failed. Lord Triesman made corruption allegations against some members of the sport's governing body, FIFA, in 2011. But the Court of Appeal ruled he could not be sued, as he had spoken while protected by "parliamentary privilege".

House of Commons Speaker Mr Bercow called this a "victory" for Parliament. Lord Triesman, a Labour peer and former minister, was part of the team involved in England's failed bid to host the World Cup in 2018. In 2011, when he appeared before MPs on the Commons Culture Committee, he made corruption allegations against some members of FIFA. Worwawi Makudi, former head of Thailand's football federation, attempted to sue Lord Triesman, former FA chairman, for defamation. Mr Makudi has denied any wrongdoing and Lord Triesman's allegations...

The Court of Appeal ruled last week that the comments to the committee had been covered by the legal protection of parliamentary privilege, established by the Bill of Rights in 1689, which bars MPs' and peers' proceedings from being "questioned in any court or place outside of parliament".

The chairman of the Culture Committee, Conservative MP John Whittingdale, said this was "a significant re-establishment of the rights of this House". Had the court decided otherwise, it could have had a "severe effect in terms of preventing us exposing truth", he added.

Mr Bercow, who wrote to the Court of Appeal last year expressing his views, said he had shared the "grave concern" of Mr Whittingdale and that he was "delighted... the court found as it did". He added: "That was a victory not just for Lord Triesman but for the precious principle of parliamentary privilege and a victory for Parliament itself." "

Erskine May, the handbook of Parliamentary procedure, defined privilege as being "...the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus, privilege, though part of the law of the land, is to a certain extent an exemption from the general law."

The Glorious Revolution

A century before the American and French revolutions that will be celebrated this month, we in Britain had our own - very British - revolution. To paraphrase - James II got too big for his boots and tried, like his father, to push Parliament around. He was run out of town. William and Mary were invited to become the new monarchs - but with strictly limited powers. If there had been any doubt before, it was expressly resolved - that the Sovereign [the ultimate source of power within the State] was no longer the monarch, but Parliament.

The "Bill of Rights" 1689 is not a charter of individual rights (as the first 10 amendments to the US Constitution are), but a clear statement of the rights of Parliament. Like the Magna Carta, it is an important statute within UK Constitutional Law.

It can be read here and its significance explained here.

Freedom of Speech Within Parliament

One of the key provisions of the Bill of Rights 1689 - and a central principle of the British Constitution - is that the Courts cannot question what is said or done in Parliament. The current Clerk of the House of Commons has warned that this may be compromised by provisions in the Parliamentary Standards Bill - which is set to be pushed through all its Commons stages today; tomorrow and Wednesday.

He writes in a memorandum to the Justice Committee

1. This memorandum addresses privilege aspects of the Parliamentary Standards Bill. Since the Bill seeks to make statutory provision in relation to matters which fall with Parliament’s exclusive cognisance or may affect proceedings in Parliament, it affects the established privileges of the House of Commons, thereby upsetting the essential comity established between Parliament and the Courts...

17. Clause 10(c) allows any evidence of proceedings in Parliament to be admissible in proceedings for an offence under clause 9. This is a very wide qualification of the principle under Article IX of the Bill of Rights that such evidence is not admitted. It would mean that the words of Members generally, the evidence given by witnesses (including non-Members) before committees and advice given by House officials on questions, amendments and other House business could be admitted as evidence in criminal proceedings. This could have a chilling effect on the freedom of speech of Members and of witnesses before committees and would hamper the ability of House officials to give advice to Members.

18. It is for consideration whether the scope of this qualification could be narrowed – as in the current draft Bribery Bill – by confining the provision to the words or actions in Parliament of the Member concerned in the specific case. This reflects the compromise agreed to last time this issue was considered by a Parliamentary committee – the Joint Committee on the Draft Corruption Bill in 2003. At that time the Liaison Committee expressed concern that a wider provision might deter witnesses from speaking frankly before select committees.

19. However, even the qualification were narrowed, the accused Member would be put in the position of having his words used against him, without being given the opportunity to adduce words spoken by other Members which might tend to exculpate him. This would create a very real risk of the trial being unfair and contrary to the requirements of Article 6 ECHR.7 This demonstrates the difficulty caused by admitting evidence of proceedings in Parliament: either the admission is on such a wide basis that it has a chilling effect on Parliamentary proceedings (by prejudicing or effectively removing the right of free speech), or it is on such a narrow basis that the fairness of trials is put at risk.

20. I have argued in evidence to the current Joint Committee on the draft Bribery Bill that there is a case for not tinkering with parliamentary privilege on a piecemeal basis but implementing the recommendation of the Joint Committee on parliamentary privilege in 1999 that there should be a Parliamentary Privileges Act. Such an act would clarify the application of provisions of Article IX; define Parliament's control of its internal affairs and replace existing statute on the reporting of parliamentary proceedings. The experience of the Defamation Act of 1996, intended to address one perceived anomaly of parliamentary privilege, has led to others. The provision of section 13 of the Act was later held to undermine the collective right of the House to immunity in respect of proceedings by allowing an individual Member to waive privilege. Other difficulties of a practical nature where more than one Member was involved led the Joint Committee to recommend repeal of the section. Other encroachments on parliamentary privilege suggest that a piecemeal approach to defining and defending the Houses' legitimate right to function effectively is no longer sufficient. The Australian model for a Parliamentary Privileges Act is at hand for adaptation toBritish circumstances.

21. Lastly, Clause 11(4) and (7) suggests that the actions of the Speaker of the House of Commons could be the subject of judicial review. Since they concern the conferring of a statutory power on the IPSA to carry out a ‘registration function’ pursuant to an ‘agreement’ under Clause 11(4), judicial review of the making of an agreement and of its scope could be expected. Conceivably, a decision of the Speaker not to make an agreement could also be the subject of an application for judicial review.

The full memorandum can be read at http://www.parliament.uk/documents/upload/MemoCRR01.pdf