1 Introduction and background
Overview
1. Parliaments need certain rights or immunities
to ensure they can operate freely and independently. As the report
of a predecessor Joint Committee on Parliamentary Privilege, published
in 1999, stated:
"Parliament makes the law and raises taxes.
It is also the place where ministers are called to account by
representatives of the whole nation for their decisions and their
expenditure of public money. Grievances, great and small, can
be aired, regardless of the power or wealth of those criticised.
In order to carry out these public duties without
fear or favour, Parliament and its members and officers need certain
rights and immunities. Parliament needs the right to regulate
its own affairs, free from intervention by the government or the
courts. Members need to be able to speak freely, uninhibited by
possible defamation claims".[1]
2. The precise rights and immunities a parliament
will have depend on the wider constitutional context, and different
countries protect parliaments in different ways. But whatever
the jurisdiction, it is normal for a democratic state to protect
parliamentary independence. Indeed, as the Irish Government argued
at the European Court of Human Rights, "parliamentary immunity
has developed throughout the world not as a constraint upon the
rights of the citizen, but as a fundamental liberty".[2]
3. In the United Kingdom Parliament such rights
and immunities are provided by means of "parliamentary
privilege". Privilege refers to the range of freedoms
and protections each House needs to function effectively: in brief,
it comprises the right of each House to control its own proceedings
and precincts, and the right of those participating in parliamentary
proceedings, whether or not they are Members, to speak freely
without fear of legal liability or other reprisal. There are jurisdictions
in which parliamentarians themselves are shielded from prosecution
for crimes unrelated to their office as long as they remain Members;
that is not the case in the United Kingdom.[3]
4. Parliamentary privilege came to public attention
in the wake of the 2009 expenses scandal, when three former MPs
and one member of the House of Lords accused of false accounting
over their expenses sought to argue that they ought not to be
prosecuted because of parliamentary privilege.[4]
On 8 February 2010, the then Leader of the Opposition, Mr David
Cameron, announced that, if elected, the Conservatives would legislate
to implement the recommendations of the 1999 Joint Committee on
Parliamentary Privilege, in order to remove what the then Shadow
Leader of the House of Commons, Sir George Young, described as
the "grey area" of whether parliamentary privilege precluded
criminal prosecution of Members accused of false accounting over
parliamentary expenses.[5]
5. The then Leader of the Opposition's pledge
to legislate was repeated in the Conservative Party manifesto
for the 2010 general election: "we will introduce a Parliamentary
Privilege Act to make clear that privilege cannot be abused by
MPs to evade justice".[6]
The Coalition Programme for Government of 20 May 2010 incorporated
a similar commitment; and the Queen's Speech of 25 May 2010 announced
"a draft Bill will be published on reforming parliamentary
privilege". The Government published its Green Paper on Parliamentary
Privilege on 26 April 2012.[7]
6. The Green Paper describes its purpose as follows:
"We believe the time is now right to take a comprehensive
look at its scope and operation, to ensure that parliamentary
privilege continues to operate to protect the effective functioning
of our democracy." It notes that "In doing so we are
guided by many in Parliament who have considered these questions
beforeabove all, the 1998-99 Joint Committee on Parliamentary
Privilege".[8]
7. The Joint Committee on Parliamentary Privilege
(hereafter referred to as the 1999 Joint Committee) was chaired
by Lord Nicholls of Birkenhead, a Lord of Appeal in Ordinary,
and first met in November 1997. Its report was published on 9
April 1999[9] and subsequently
debated in the House of Commons.[10]
While the Joint Committee considered that Parliament needed the
right to regulate its own affairs and Members needed to be able
to speak freely, it proposed clarification of the scope of various
privileges, and, in some cases, greater powers for the courts
to examine proceedings in Parliament. It recommended that all
the changes proposed in its report should be embodied in a new
and comprehensive Parliamentary Privileges Act, "codifying
parliamentary privilege as a whole".[11]
8. Neither House formally endorsed the Report.
While the Government generally supported its recommendations,[12]
no time was found for legislation in any of the subsequent ten
parliamentary Sessions, although the Report's recommendations
on sub judice[13]
formed the basis of new Resolutions in each House.[14]
Indeed, with regard to the Joint Committee's central conclusion,
the current Green Paper suggests that "the case has not been
made for a comprehensive codification of parliamentary privilege".[15]
Developments since 1999
9. The 1999 Joint Committee noted that "Although
of ancient origin, parliamentary privilege is not static or immutable".[16]
Since the 1999 Joint Committee reported, both the courts and parliamentary
committees have had cause to articulate their understanding of
privilege in relation to specific cases and, on occasion, more
broadly. Annex 1 to this Report outlines ways in which the two
Houses have exercised their jurisdiction since 1999, as well as
summarising key developments in case law.
10. The cases considered by the two Houses include
many "standards" casesalthough these are not
commonly thought of as privilege matters, the two House's internal
disciplinary systems are based on the privilege of control of
their own precincts and procedures. Following one set of "standards"
cases in 2009,[17] the
House of Lords successfully exercised its power to suspend its
Members, which had been questioned.
11. Other privilege cases have dealt with the
protection of a witness from punishment as a result of what was
said to a committee;[18]
attempts to influence committee members;[19]
attempts to intimidate a Member of Parliament; a former Minister
rebuked for giving misleading evidence to a committee;[20]
and police searches on the Parliamentary estate.[21]
Thus privilege is still regularly invoked as protection for those
who participate in proceedings.
12. There have also been significant developments
in the courts. In the 2002 case of A v. the United Kingdom
the European Court of Human Rights held that the absolute freedom
of speech in Parliament was proportionate, and did not violate
the European Convention on Human Rightsalthough the Court
also asserted its jurisdiction over national parliaments' privileges.[22]
There have been domestic cases in which lower courts have examined
proceedings in Parliament, for example to establish the proportionality
of legislation for human rights purposes, but there have also
been judgments which suggest the courts will be cautious in using
documents such as committee reports in evidence. In certain cases
originating outside the United Kingdom evidence derived from parliamentary
proceedings has been used to establish motivation for acts outside
Parliament,[23] and in
one case the Judicial Committee of the Privy Council held that
a Member who said that he "did not resile" from what
he had said in Parliament had effectively repeated a defamatory
statement.[24]
Conclusion
13. Parliamentary privilege is a living concept,
and still serves to protect Parliament, each House, their committees,
and all those involved in proceedings. Much has changed since
the publication of the report of the 1999 Joint Committee: privilege
evolves as Parliament evolves, and as the law evolves. Successive
committees have warned against a piecemeal consideration of privilege:[25]
we welcome the opportunity to examine privilege in the round,
and to revisit the issues explored by the 1999 Joint Committee,
which has been given by the 2012 Green Paper.
1 Report from the Joint Committee on Parliamentary
Privilege, Session 1998-99, HL Paper 43-I, HC 214-I (hereafter
Report from the 1999 Joint Committee on Parliamentary Privilege),
Executive Summary Back
2
A v. The United Kingdom [2002] ECHR 35373/97 Back
3
Details of the privileges and immunities of each of the Inter-Parliamentary
Union (IPU) member states can be found on the IPU PARLINE database
on the www.ipu.org website. Back
4
The Sunday Times, 3 January 2010; see also The Times
leader, 6 February 2010. The case brought by the four Members
was decided in R v. Chaytor and others [2010] UKSC 52. Back
5
Speech by Rt Hon David Cameron MP, Rebuilding trust in politics,
8 February 2010; Speech by Rt Hon Sir George Young MP to the Conservative
Spring Forum in Brighton, New Politics, 28 February 2010 Back
6
Conservative Party manifesto for the 2010 general election Back
7
Government Green Paper, Parliamentary Privilege, Cm 8318,
April 2012 (hereafter Cm 8318) Back
8
Ibid., Foreword Back
9
The Report from the 1999 Joint Committee on Parliamentary Privilege
had been laid on the Table in both Houses on 30 March 1999. Back
10
HC Deb 27 October 1999 Back
11
Report from the 1999 Joint Committee on Parliamentary Privilege,
recommendation 39 Back
12
In the House of Commons general debate on the Report on 27 October
1999, the Leader of House (Rt Hon Margaret Beckett MP) expressed
reservations on just two of the 1999 Joint Committee's 39 recommendations:
introducing a power to fine Members and treating as a contempt
premature publication of committee reports which were still under
embargo after having been formally laid on the Table. Back
13
Report from the 1999 Joint Committee on Parliamentary Privilege,
recommendation 15 Back
14
House of Commons Resolution of 15 November 2001, CJ (258) 194
to 195, and House of Lords Resolution of 11 May 2000, LJ (233)
389 Back
15
Cm 8318, page 15 Back
16
Report from the 1999 Joint Committee on Parliamentary Privilege,
paragraph 17 Back
17
In January 2009 The Sunday Times published a series
of allegations that four members of the House of Lords were willing
to amend legislation in return for payment: see Second Report
from the House of Lords Privileges Committee, The conduct of
Lord Moonie, Lord Snape, Lord Truscott and Lord Taylor of Blackburn,
Session 2008-09, HL Paper 88-I. Back
18
Fifth Report from the House of Commons Committee on Standards
and Privileges, Session 2003-04, Privilege: Protection of a
Witness, HC 447 Back
19
First Report from the House of Lords Committee for Privileges
and Conduct, Session 2010-12, Mr Trevor Phillips: Allegation
of Contempt, HL Paper 15 Back
20
Sixth Report from the House of Commons Committee on Standards
and Privileges, Session 2005-06, Mr Stephen Byers (Matter referred
on 19 October 2005), HC 854 Back
21
First Report from the House of Commons Committee on an Issue of
Privilege, Session 2009-10, Police Searches on the Parliamentary
Estate, HC 62 Back
22
A v. The United Kingdom [2002] ECHR 35373/97. The court
held that a "rule of parliamentary immunity ... cannot in
principle be regarded as imposing a disproportionate restriction
on the right of access to a court as embodied in Article 6 [of
the European Convention on Human Rights]"; the Court held
moreover that "the creation of exceptions to that immunity,
the application of which depended upon the individual facts of
any particular case, would seriously undermine the legitimate
aims pursued." Back
23
Toussaint v. Attorney General of Saint Vincent and the Grenadines
[2007] UKPC 48 Back
24
Jennings v. Buchanan [2004] UKPC 36 Back
25
Including the Joint Committee on the Draft Bribery Bill, First
Report of Session 2008-09, Draft Bribery Bill, HL 115-I/HC
430-I, paragraph 228; First Report from the House of Commons Committee
on an Issue of Privilege, Session 2009-10, Police Searches
on the Parliamentary Estate, HC 62, paragraph 169; Fourteenth
Report from the House of Commons Committee on Standards and Privileges,
Session 2010-12, Privilege: Hacking of Members' mobile phones,
HC 628, paragraph 72 Back
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