Police Searches on the Parliamentary Estate - Committee on the Issue of Privilege Contents


E-mail from Professor A W Bradley to the Clerk of the Committee

  Thank you for your regular e-mail message regarding the oral evidence given to the Committee. I have now been able to view this Monday's session on Parliament-live, although I have not seen the transcript. The Committee is surely in an excellent position, in the light of all the evidence that it has received, to report fully on the events affecting Mr Green.

I venture to comment that (by way of contrast) the evidence given to the Committee has not explored in depth all the general issues relating to parliamentary privilege that potentially arise from the Green affair. That there is a need for measures to make it difficult for such events to occur again is undoubted; and a recommendation that there is a need for legislation on parliamentary privilege would be justifiable.

  However, several issues arising from the interface between parliamentary privilege and the ordinary process of criminal law are not easy to resolve—and they were not considered by the Joint Committee on Parliamentary Privilege in 1998-99. You will already be aware of my Opinion that Mr Green included in his written evidence. I doubt whether these issues were resolved by the Attorney General in her advice of April 2009.

  I mention just one reason for referring to this doubt again here, since the point has featured several times in evidence given to the Committee. This is the bald statement that Article 9 of the Bill of Rights is a matter for the courts to interpret, "just like any other statute". This misses the point that Article 9 is not just like any other statute. It contains an expression of a fundamental constitutional principle that arguably has a stronger claim today than Magna Carta to be regarded as a foundation of our parliamentary democracy.

  From Article 9 can be derived a number of legal rules (not merely the protection from defamation that it gives to MPs in debate). A constitutional document of this kind must surely be regarded as a "living instrument", which has to be interpreted in the light of changing constitutional needs. Since Article 9 directly affects the work of Parliament, the view that the elected House may take of what it currently needs to perform its constitutional functions will be relevant when issues of interpretation (for example, as to the meaning of "proceedings in Parliament") arise in the courts.

  Two other brief points may reinforce the foregoing. First, there are important areas of parliamentary privilege which do not derive from Article 9 (as the Clerk of the House recognised on Monday) and the content of which is not to be regarded as frozen over the centuries. Secondly, while it must be for a court ultimately to interpret Article 9 should a disputed issue to which it is relevant come before it for decision, this does not directly bear upon what happens before the matter reaches that stage (and when there may be a need for the House to give a lead as to what good constitutional practice requires).

21 January 2010






 
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