Parliamentary privilege grants certain legal immunities for both MP’s and Lords. This is to allow them to perform their duties without outside interference.
Justification of Parliamentary Privilege:
Self-Regulation:
Parliament controls its own procedures. It can admit and expel MP’s and punish non-members for impeding its business. Therefore, Parliament does not need to rely on outside agencies to monitor and prosecute its members.
Dignity and Efficiency of Parliament:
Members of Parliament and Lords need to have certain immunities so that Parliament can function efficiently.
‘In order to carry out these public duties without fear or favour, Parliament and its members and officers need certain rights and immunities.’ [1]
‘Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts’. [2]
‘Members need to be able to speak freely, uninhibited by possible defamation claims’. [3]
‘These rights and immunities, rooted in this country’s constitutional history, are known as parliamentary privilege.’ [4]
Sources of Privilege:
Bill of Rights:
The Bill of Rights protects freedom of speech within Parliamentary proceedings for all. MP’s and Lords may say or do something in the course of a ‘proceeding of Parliament’, which would usually give rise to civil or criminal liability. This is because the democratic benefits of free and open speech outweigh any and all potential consequential harm suffered.
‘That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament’ [5]
‘[the] plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal, for what they said and were able... to discuss what they, as opposed to the monarch, chose to have discussed’ [6]
Their privilege of freedom of speech does not extend beyond the scope of Parliament’s proceedings, however. It also does not include everything that happens in the House of Commons; the courts have the jurisdiction to determine the scope of art 9. [7]
Conflict with Courts:
Rather ironically, Parliament enacted a statute that protects its members from being prosecuted in the courts for anything they say while in Parliament. However, it is the courts who interpret statute, so there is a tension here.
Parliamentary privilege is intended to ‘protect the integrity of the legislature from the executive and the courts’, not ‘a source of protection of the executive from the courts’. [8]
Peter Hain and Philip Green Case:
The Daily Telegraph published that a leading businessman (Green) was seeking an injunction against them reporting on sexual and racial abuse of staff.
Lord Hain intervened in a debate about bullying and harassment, naming Green. He uses his privilege to name Green, even though it was protected by a court injunction.
Lord Pannick QC described Hain’s actions as an ‘abuse of privilege’ as he was overriding the decision of the Court of Appeal.
Stockdale v Hansard (1839):
Hansard, under orders of the House of Commons, published a report stating that Stockdale had published an indecent book and that it was in circulation.
Stockdale sued Hansard for libel, denying that their publication contained obscenity. The House of Commons ordered Hansard to argue that they were protected by Parliamentary privilege.
The courts did not agree with the privilege argument. Parliament responded with the enactment of the Parliamentary Papers Act 1840 to prevent this in the future.
‘Exclusive Cognisance’:
The house has jurisdiction to judge, without interference, the lawfulness of its own proceedings and determine the scope of what those proceedings will be. This upholds parliamentary sovereignty and allows Parliament to function effectively.
‘Whatever is done within the walls of either assembly must pass without question in any other place’ [9]
Parliamentary privilege does not mean that members of both houses are above the law or immune to prosecution.
Contempt of Parliament:
Contempt of Parliament is any act or omission that obstructs or impedes Parliament, its members or officers from carrying out their functions.
Examples:
Disorderly conduct.
Refusal to give evidence.
Interference with others giving evidence.
Obstructing a member from accessing the house.
Bribery and corruption.
Premature disclosure of proceedings.
Punishment:
Reprimand by the speaker.
Suspension or expulsion of membership.
Dismissal from office.
Imprisonment.
Reform:
Codification of Rules:
The Joint Committee in 1999 encouraged the codification of Parliamentary privilege.
Removal of Privileges:
A green paper, published in 2012, proposes that a number of privileges are removed.
References:
[1] Joint Committee on Parliamentary Privilege, Report (1998-99) [2] Joint Committee on Parliamentary Privilege, Report (1998-99) [3] Joint Committee on Parliamentary Privilege, Report (1998-99) [4] Joint Committee on Parliamentary Privilege, Report (1998-99) [5] Bill of Rights (1689) Art 9 [6] Pepper v Hart [1993] AC 593 (Browne-Wilkinson LJ)
[7] R v Chaytor [2010] UKSC 52; Rost v Edwards [1990] 2 QB 460 [8] Toussaint v AG of St Vincent and the Grenadines [2007] UKPC 48 (Mance LJ) [51]; See Also R (Javed) [2001] EWCA Civ 789, [2002] QB 129 (Mance LJ) [37], Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39 [2014] 1 AC 700 (Lord Reed) [54] and Miller (No 2) [2019] UKSC 41 [69] [9] Stockdale
Comentarios