Joint Committee on The Draft Corruption Bill Written Evidence


Memorandum by the Clerk of the Parliaments (DCB 6)

  This note is concerned with clause 12 of the draft Bill (proceedings in Parliament). It is fair to say that the House of Lords, which has seldom concerned itself with matters of privilege, does not feel as strongly as the House of Commons about this further erosion of Article 9 of the Bill of Rights. Even so, I entirely endorse what is said on the subject by Mr Roger Sands (Clerk of the House of Commons), Sir William McKay (his predecessor) and Mr Harry Evans (Clerk of the Australian Senate).

  This will be the third serious erosion of Article 9 in the last 10 years—the others being Pepper v Hart [1993] and section 13 of the Defamation Act 1996. If the present trend is not reversed, we could eventually lose the privilege of freedom of speech altogether. Mr Sands makes the same point in paragraph 8 of his memorandum.

  On the credit side, we have the recent judgment of the European Court of Human Rights in A v the United Kingdom. The Court concluded that "the parliamentary immunity enjoyed by the MP in the present case pursued the legitimate aims of protecting freedom of speech in Parliament and maintaining the separation of powers between the legislature and the judiciary." There are two other cases on Article 9 still to be determined, one in the Court and one in the House of Lords. If those cases go the same way, the position might not look quite so bleak. But the position would be a great deal better if the fifth recommendation of the Joint Committee on Parliamentary Privilege (replacement of section 13 of the Defamation Act 1996) were implemented.

May 2003

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