Parliamentary privilege in the United Kingdom

Parliamentary privilege in the United Kingdom is a legal immunity enjoyed by members of the House of Commons and House of Lords designed to ensure that parliamentarians are able to carry out their duties free from interference. The privileges are freedom of speech, freedom from arrest on civil matters, freedom of access to the sovereign, and that 'the most favourable construction should be placed on all the Houses' proceedings'.^[1] Fair and accurate reporting of the proceedings of parliament is also protected by parliamentary privilege.^[2]

Parliamentary privilege is, however, something that forms part of the law rather than putting Members of Parliament above the law: for example, the MPs Chris Huhne and Fiona Onasanya were both successfully convicted of non-parliamentary criminal offences in the 2010s;^[3] and the 2010 Supreme Court case R v Chaytor, argued in the wake of the parliamentary expenses scandal, ruled that MPs were not immune to prosecution for crimes such as fraud conducted in relation to their parliamentary activities.^[4]

Components

Parliamentary privilege has two main components:

Freedom of speech as guaranteed by the Bill of Rights, but also without any possible defamation claims.^[5] An example of this is when, in 2018, Labour peer Lord Hain named Sir Philip Green as the person at the centre of allegations of sexual and racial harassment.^[6]
Exclusive cognisance, the freedom of Parliament to control its own internal affairs.

History

The doctrine was first enshrined in law after the Glorious Revolution following the passage of the Bill of Rights 1689.^[7] Prior to the Bill of Rights, Parliament had no statutory protection, but nevertheless had asserted both the freedom of speech and freedom from arrest, especially against what they perceived to be tyrannical acts by the king. Since the late 15th century, members of the Commons enjoyed 'an undefined right to freedom of speech, as a matter of tradition rather than by virtue of a privilege'.^[8] One of the flashpoints that led to the English Civil War was the attempted arrest by King Charles I of the Five Members for treason, which Parliament viewed as being in violation of its ancient liberties.

Lewis Namier gives a number of examples of criminals escaping prosecution, public officials escaping censure and bankrupts escaping creditors, claiming that it was a significant reason for many men to try to become MPs.^[9]

After the case of Stockdale v Hansard (1839) found that Hansard, although ordered by Parliament to publish transcripts of its debates, did not enjoy the protection of parliamentary privilege, Parliament immediately passed the Parliamentary Papers Act 1840, which gave absolute civil or criminal immunity to papers published by order of Parliament, and qualified immunity to any publication outside of Parliament that published extracts from Hansard without malice.^[2]

Examples

There are multiple modern examples of Members exercising the right to parliamentary privilege, most notably related to freedom of speech and immunity from prosecution.

In October 2009, Paul Farrelly submitted a written parliamentary question regarding a so-called "super-injunction" against The Guardian newspaper which prevented them from naming Trafigura as the company responsible for the 2006 Ivory Coast toxic waste dump, and the efforts by legal firm Carter-Ruck to prevent The Guardian from reporting on the question or even the existence of the injunction.^[10]
In May 2011, John Hemming exercised parliamentary privilege to name footballer Ryan Giggs as the litigant involved in the case CTB v News Group Newspapers. Giggs had applied for a super-injunction in England and Wales to prevent reporting by The Sun of his extramarital affair, but his failure to apply for an injunction in Scotland led to the information being widely known after it was published by the Sunday Herald.^[11]
In October 2018, Lord Hain used parliamentary privilege to name Philip Green as the subject of accusations of bullying and sexual harassment due to Green obtaining an injunction preventing the allegations from being reported.^[6]
In July 2021, Social Democratic and Labour Party leader Colum Eastwood exercised parliamentary privilege to name "Soldier F", the British paratrooper who killed five unarmed civilians during the Bloody Sunday massacre of 1972.^[12]
In February 2022, Layla Moran used parliamentary privilege to name 35 people who she claimed were Russian oligarchs, arguing that they should be sanctioned due to their closeness to Russia's president during the Russo-Ukrainian war.^[13]

Select committees

Witnesses to parliamentary select committees also enjoy parliamentary privilege if their evidence is formally accepted.^[14] As an example, this was used in 2009 by Private Eye editor Ian Hislop when giving evidence to a select committee on press standards, privacy and libel, to publish details of a legal threat received confidentially from the lawyers of Richard Granger. ^[15]

Case law

Strode's Case (1512)
The Case of the Five Members (1641)
Ashby v White (1703)
R v Paty (1705)
Stockdale v Hansard (1837)
Bradlaugh v Gossett (1840)
The Case of the Sheriff of Middlesex (1840)
Pepper v Hart (1993)
R v Chaytor (2010)

Legislation

Parliamentary Privilege Act 1770

Scotland, Wales and Northern Ireland

Members of the Scottish Parliament do not have parliamentary privilege,^[16] however the Scotland Act 1998 incorporates a number of legal protections for parliamentary debate and reporting, including absolute privilege for the purpose of the law of defamation, limits to the remedies which can be ordered by courts against the Parliament in civil cases, and qualified protection from strict liability contempt under the Contempt of Court Act 1981.^[17]

Equivalent protections apply to proceedings of the Welsh and Northern Irish Assembles under the Government of Wales Act 2006 and the Northern Ireland Act 1998.

References

^ "Parliamentary privilege - Glossary page". UK Parliament. Retrieved 26 October 2018.
^ ^a ^b Hutton, Mark; Natzler, David, eds. (2019). "Protections for publication outside Parliament of parliamentary proceedings". Erskine May: Parliamentary Practice (25th ed.). Parliament of the United Kingdom.
^ Bush, Stephen (19 December 2018). "Peterborough Labour MP Fiona Onasanya found guilty of perverting the course of justice". New Statesman. Retrieved 11 October 2022.
^ "Q&A: Parliamentary privilege". BBC News. 11 June 2010. Retrieved 11 October 2022.
^ "MPs' Guide to Procedure: Freedom of speech". UK Parliament. Retrieved 21 January 2024.
^ ^a ^b Savage, Michael (27 October 2018). "Lord Hain named Philip Green 'to promote justice and liberty'". The Guardian. ISSN 0029-7712. Retrieved 19 November 2019.
^ Verkaik, Robert (9 February 2010). "The Big Question: What is parliamentary privilege, and is it being abused?". The Independent. Archived from the original on 25 May 2022. Retrieved 26 October 2018.
^ Hutton, Mark; Natzler, David, eds. (2019). "Freedom of speech". Erskine May: Parliamentary Practice (25th ed.). Parliament of the United Kingdom.
^ Page 60,Lewis Namier, The Structure of Politics at the Accession of George III (2nd edition - London: St Martin's Press, 1957)
^ Staff reporter (16 October 2009). "How the Trafigura story came to be told". the Guardian. Retrieved 5 March 2022.
^ "Ryan Giggs named by MP as injunction footballer". BBC News. 23 May 2011. Retrieved 11 October 2022.
^ "SDLP leader Colum Eastwood names Soldier F using parliamentary privilege". BelfastTelegraph.co.uk. 13 July 2021. ISSN 0307-1235. Retrieved 9 July 2023.
^ MP uses parliamentary privilege to name Russian oligarchs, 23 February 2022, retrieved 5 March 2022
^ "Guide for witnesses giving written or oral evidence to a House of Commons select committee" (PDF). parliament.uk. February 2016. Retrieved 26 September 2023.
^ (Leveson Inquiry, Royal Courts of Justice 17 January 2012) ("Jay: And Schillings was his solicitors. Can you just remind us what happened there? Hislop: The journalist in question put a number of questions to Mr Granger, and then, rather than reply to them, we had a threatening letter from his lawyers saying, "These are private and confidential matters", and again, this was the man who under whose on whose watch, under whose directorship, a vast amount of public money had been effectively wasted, something like £12 billion. You can take whatever the last estimate is on this utterly useless system which we'd been writing about for quite a long time. So we thought it was a reasonable question to find out what he was doing next: is he going back into public employ? Is he a consultant? Where has he ended up? But he said, "This is private, this is none of your business", and his lawyers sent that letter, and when they send that letter, the immediate question is: how much is it worth fighting this? Is it worth going on with this? How much is this going to cost? Do we need this as well as whatever else we're doing? Jay: The letter itself from Schillings I think was put in evidence before the Select Committee. Hislop: Yes. Jay: What did Private Eye do in response to that letter? Did it publish? Hislop: Well, I read it out under privilege in that committee, so I didn't have to worry about any further ramifications."), Text.
^ "Scotland needs to think once again about strengthening its institutions". British Politics and Policy at LSE. 7 April 2021. Retrieved 4 May 2021.
^ Tickell, Andrew (2022). "The fragile parliamentary privilege of devolved legislatures: feature or bug?". Public Law: 376–385 – via Westlaw.

External links

Parliamentary privilege - UK Constitutional Law Group

[1] "Parliamentary privilege - Glossary page". UK Parliament. Retrieved 26 October 2018.

[:1-2] Hutton, Mark; Natzler, David, eds. (2019). "Protections for publication outside Parliament of parliamentary proceedings". Erskine May: Parliamentary Practice (25th ed.). Parliament of the United Kingdom.

[3] Bush, Stephen (19 December 2018). "Peterborough Labour MP Fiona Onasanya found guilty of perverting the course of justice". New Statesman. Retrieved 11 October 2022.

[4] "Q&A: Parliamentary privilege". BBC News. 11 June 2010. Retrieved 11 October 2022.

[5] "MPs' Guide to Procedure: Freedom of speech". UK Parliament. Retrieved 21 January 2024.

[Savage-Guardian2018-6] Savage, Michael (27 October 2018). "Lord Hain named Philip Green 'to promote justice and liberty'". The Guardian. ISSN 0029-7712. Retrieved 19 November 2019.

[:0-7] Verkaik, Robert (9 February 2010). "The Big Question: What is parliamentary privilege, and is it being abused?". The Independent. Archived from the original on 25 May 2022. Retrieved 26 October 2018.

[:12-8] Hutton, Mark; Natzler, David, eds. (2019). "Freedom of speech". Erskine May: Parliamentary Practice (25th ed.). Parliament of the United Kingdom.

[9] Page 60,Lewis Namier, The Structure of Politics at the Accession of George III (2nd edition - London: St Martin's Press, 1957)

[10] Staff reporter (16 October 2009). "How the Trafigura story came to be told". the Guardian. Retrieved 5 March 2022.

[11] "Ryan Giggs named by MP as injunction footballer". BBC News. 23 May 2011. Retrieved 11 October 2022.

[12] "SDLP leader Colum Eastwood names Soldier F using parliamentary privilege". BelfastTelegraph.co.uk. 13 July 2021. ISSN 0307-1235. Retrieved 9 July 2023.

[13] MP uses parliamentary privilege to name Russian oligarchs, 23 February 2022, retrieved 5 March 2022

[14] "Guide for witnesses giving written or oral evidence to a House of Commons select committee" (PDF). parliament.uk. February 2016. Retrieved 26 September 2023.

[15] (Leveson Inquiry, Royal Courts of Justice 17 January 2012) ("Jay: And Schillings was his solicitors. Can you just remind us what happened there? Hislop: The journalist in question put a number of questions to Mr Granger, and then, rather than reply to them, we had a threatening letter from his lawyers saying, "These are private and confidential matters", and again, this was the man who under whose on whose watch, under whose directorship, a vast amount of public money had been effectively wasted, something like £12 billion. You can take whatever the last estimate is on this utterly useless system which we'd been writing about for quite a long time. So we thought it was a reasonable question to find out what he was doing next: is he going back into public employ? Is he a consultant? Where has he ended up? But he said, "This is private, this is none of your business", and his lawyers sent that letter, and when they send that letter, the immediate question is: how much is it worth fighting this? Is it worth going on with this? How much is this going to cost? Do we need this as well as whatever else we're doing? Jay: The letter itself from Schillings I think was put in evidence before the Select Committee. Hislop: Yes. Jay: What did Private Eye do in response to that letter? Did it publish? Hislop: Well, I read it out under privilege in that committee, so I didn't have to worry about any further ramifications."), Text.

[16] "Scotland needs to think once again about strengthening its institutions". British Politics and Policy at LSE. 7 April 2021. Retrieved 4 May 2021.

[17] Tickell, Andrew (2022). "The fragile parliamentary privilege of devolved legislatures: feature or bug?". Public Law: 376–385 – via Westlaw.

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