Lay membership of the Committee on Standards and Privileges

Memorandum submitted by Lord Nicholls (P 90, 2010-11)

1. What goes on within Parliament is, in general, a matter for control by Parliament alone. Such matters will not be reviewed by the courts. This broad principle, sometimes called ‘exclusive jurisdiction’ or ‘exclusive cognisance’, is well established. It is one facet of parliamentary privilege.

2. An important, present day exception to this principle should be noted. Proceedings in Parliament are excluded from the Human Rights Act 1998 and from the jurisdiction of the United Kingdom courts. But they may nevertheless be within the jurisdiction of the European Court of Human Rights. If procedures adopted by Parliament when exercising its disciplinary powers are not fair, they may be challenged by a member who is prejudiced. In recent years more than one parliamentary committee has recommended changes which should be made in parliamentary procedures to ensure that disciplinary proceedings are ‘fire proof’.

3. Against this background I turn to the recommendation in Sir Christopher Kelly’s report that at least two ‘lay’ members who have never been parliamentarians should be on the standards and privileges committee, and that these external members should have full voting rights. The question which has arisen is this: would a decision of the standards and privileges committee which included voting lay members enjoy the same immunity from court review as a committee composed wholly of parliamentarians?

4. I am firmly of the view the answer to this question is yes. The deliberations and decisions of a standards and privileges committee to which lay members have been co-opted are as much an exercise by Parliament of its control over parliamentary affairs as those of a committee comprised entirely of parliamentarians. In both cases the members of the committee, parliamentarian and lay, are appointed by Parliament in exercise of its non-statutory powers. In both cases the functions of the committee are the same. In both cases the source and nature of the committee’s powers are the same. In both instances the committee remains a committee of the House. The rationale on which immunity from court process is accorded to a committee composed entirely of parliamentarian is equally apt, no less and no more, to a committee onto which Parliament has chosen to invite non-parliamentarians to serve, whether in a purely advisory capacity or in a voting capacity. The presence and participation of lay members does not change, or detract from, the essential nature of the function being exercised by the committee.

March 2011