Parliamentary Privilege - Joint Committee on Parliamentary Privilege Contents

9  The way forward

275.  In Chapter 2 of our Report we concluded as follows: "We do not consider that comprehensive codification is needed at this time. This does not mean that we reject all legislation; but legislation should only be used when absolutely necessary, to resolve uncertainty or in the unlikely event of Parliament's exclusive cognisance being materially diminished by the courts."

276.  We therefore disagree with the major recommendation of our predecessor Joint Committee, which reported in 1999, that the various changes it proposed to the scope and interpretation of parliamentary privilege should be embodied in a new and comprehensive Parliamentary Privileges Act, "codifying parliamentary privilege as a whole". Times have changed, and as the summary of privilege cases in Annex 1 demonstrates, privilege has proved its ability to evolve and adapt to new circumstances. Codification would severely curtail such evolution.

277.  The years since the publication of the 1999 Joint Committee's report have also illustrated the dangers of piecemeal legislation, against which the Clerks of the two Houses warned us. By piecemeal legislation we mean legislation which, rather than addressing the specific issue of privilege, is driven by distinct and separate policy objectives, with privilege being addressed partially and tangentially. Piecemeal legislation, vulnerable to the law of unintended consequences, risks inflicting irreparable damage on the complex blend of statute and common law, and constitutional convention, which makes up privilege as we know it today.

278.  Some examples from the last twenty years of proposals for piecemeal and frequently ill-thought out modification of parliamentary privilege are:

  • Section 13 of the Defamation Act 1996, which provides for a waiver of Article 9 of the Bill of Rights in respect of defamation cases.
  • Clause 12 of the Draft Corruption Bill of 2003, which would have provided for a waiver of Article 9 in respect of prosecutions for corruption.[267]
  • Clause 15 of the Draft Bribery Bill of 2009, which would have provided for a similar waiver in respect of prosecutions for bribery (the relevant provision was omitted from the Bribery Act 2010).[268]
  • The Parliamentary Standards Bill of 2009, clause 10 of which would have waived privilege in relation to the work of the Independent Parliamentary Standards Authority. Clause 10 was removed on 1 July 2009 on a vote by the Committee of the Whole House.[269]
  • Amendments tabled to the Justice and Security Bill of 2012 which would have extended privilege, by statute, to the Intelligence and Security Committee.[270]

279.  Instead of either comprehensive codification or piecemeal legislation, we have adopted a pragmatic and evolutionary approach. We have acknowledged that legislation has a role, where Parliament feels compelled to protect core freedoms which have been threatened by the actions of either the Executive or the courts. But such legislation, like privilege as a whole, must be tested by reference to the "doctrine of necessity": it should be limited in scope to what is strictly necessary, and it should be a last, not a first, resort.

280.  We have, accordingly, been modest in our recommendations for legislation. Our main such recommendation is for the long overdue replacement of the Parliamentary Papers Act 1840—an updating of archaic legislation rather than the creation of new legislation. We have also recommended the repeal of section 13 of the Defamation Act 1996 and the restoration of the right of Members of both Houses to be excused from jury service in England and Wales, as they already are in Scotland and Northern Ireland.

281.  Elsewhere we have sought to make progress either by means of internal action on the part of the two Houses—to ensure they can realistically assert those powers and rights they already possess—or by encouraging better co-operation and mutual understanding between Parliament and the courts. In particular, we call upon the two Houses to affirm, by means of resolutions and new Standing Orders, the ability of Select Committees to secure the co-operation of witnesses and others and, underpinning the work of Committees, the power of the two Houses themselves to investigate and, where necessary, punish contempts.

282.  In other areas, such as the residual immunity of Members from civil arrest, we accept that legislation is the only means of resolving specific anomalies, but conclude that they are of little or no practical significance, and that legislation is therefore not a priority.

283.  Finally, in the crucial area of judicial questioning of parliamentary proceedings, we welcome the evidence provided by the Lord Chief Justice of England and Wales, and accept his assurances that the judiciary will continue to respect the proper boundaries between parliamentary and judicial proceedings.

284.  Yet, as the Lord Chief Justice also noted, in the last resort Parliament can legislate to protect and define its privileges. Legislation is a last resort, but if the problems we have identified in this Report, such as the uncertainty over the ability of Select Committees to perform their work effectively, or the questioning of parliamentary proceedings by the courts, are not resolved by other means, today's Parliament should stand ready to legislate, as its predecessor did in the late seventeenth century, to enshrine the fundamental values underpinning parliamentary privilege in statute.

267   See the Report of the Joint Committee on the Draft Corruption Bill, Session 2002-03, HL Paper 157, HC 703 Back

268   See the Report of the Joint Committee on the Draft Bribery Bill, Session 2008-09, HL Paper 115-I, HC 430-I Back

269   HC Deb 1 July 2009 col 382 Back

270   See, for instance, HL Deb, 9 July 2012, columns 910 to 919 Back

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Prepared 3 July 2013