The history of parliamentary privilege

Jun 06, 2019

Written By Elizabeth Hurst

What happens when parliamentary privilege goes head to head with legal rulings in the age of social media? And does there need to be a new rule book on freedom of speech within the government?

According to the official definition, “Parliamentary privilege grants certain legal immunities for Members of both Houses to allow them to perform their duties without interference from outside of the House. Parliamentary privilege includes freedom of speech and the right of both Houses to regulate their own affairs.”

The origins of parliamentary privilege lie in the English Civil War, when the House made a stand against executive interference by the monarchy. Article 9 of the Bill of Rights (1689) states “the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of Parliament". At a time when the law was subject to the sovereign (at that time King William III), Parliament sought to rid itself of this influence and thus the concept of Parliamentary Privilege was born.

At the State Opening of Parliament, rituals are performed to symbolise the separation of the commons from the monarchy, and the protections afforded to those within the House. With the beginning of each new Parliament, the Speaker claims the ancient and undoubted rights and privileges of the Commons. The privileges are codified only in Erskine May's Parliamentary Practice, and are open to legal interpretation, particularly by MPs’ lawyers who often use it to their clients’ advantage.

Although many of the privileges are now obsolete, others are crucial in ensuring a fair and transparent parliament, namely: freedom of speech (members are not liable for defamation); freedom from arrest in civil matters; access of the Commons to the Crown (via the Speaker) and; that the most favourable construction should be placed upon the deliberations of the Commons. There are also a number of unmentioned privileges, such as the Right of the House to regulate its own composition and internal proceedings, the right to punish members for breach of privilege and contempt, and the right of freedom from interference.

How it operates today

Although the beginnings are grounded in the desire for self-governance and independence from the monarchy, the modern understanding of parliamentary privilege is more associated with judiciary freedom and is often related to immunity from litigation. However, parliamentary privilege forms part of the law as opposed to putting MPs above the law—they are only exempt from crimes relating to their office. MPs are still held accountable for any wrongdoings and can still be prosecuted. Recently, this was seen with Labour MP Fiona Onosanya, who was charged in July 2018 for perverting the course of justice in relation to two speeding incidents in the previous year.

The erosion of the power of the monarchy means that Parliament has surrendered some of its jurisdiction to the courts, and so MPs accused of these crimes are no longer dealt with by the authorities of the House of Commons and are instead made to face the full force of the law, just as any of their constituents would be. Over the years, there has been a handful of examples where MPs have exploited parliamentary privilege, with varying results. In 2010, Labour MPs Elliot Morley, David Chaytor and Jim Devine, and Tory peer Lord Hanningfield, were all charged with false accounting over their expenses claims. The group denied the offences and attempted to avoid a criminal trial by invoking the 1689 Bill of Rights. Representing the three MPs was Barrister Julian Knowles QC, who was keen to stress that invoking Parliamentary privilege did not mean that the defendants thought they were above the law, saying “that would be quite wrong”, adding that "parliamentary privilege is part of the law, and it is for parliament to apply the law in their cases".

Despite the 1689 Bill of Rights being designed to protect freedom of speech as opposed to protecting MPs against being brought to justice for any wrongdoings, Knowles maintained "that to prosecute them in the criminal courts for their parliamentary activities would infringe the principle of the separation of powers, which is one of the principles which underpins the UK's constitutional structure. The principle of the separation of powers means that whatever matter arises concerning the working of parliament should be dealt with by parliament and not elsewhere, and should be dealt with in a manner that is consistent with the way other members have been treated." In the case of these politicians, parliamentary privilege ultimately could not protect them. Mr Justice Saunders’ ruling in the Southwark Crown Court was that he could “see no logical, practical or moral justification for a claim for expenses being covered by privilege; and I can see no legal justification for it either”. The Lord Chief Justice gave the judgement of the court and was adamant that Parliamentary privilege was not designed to be used in this way. It can confidently be stated that parliamentary privilege or immunity from criminal prosecution has never ever attached to ordinary criminal activities by members of Parliament. [...] It is difficult to envisage circumstances in which the performance of the core responsibilities of a member of Parliament might require or permit him or her to commit crime. [...] Equally, we cannot discern from principle or authority that privilege or immunity in relation to such conduct may arise merely because the allegations are based on activities which have taken place ‘within the walls’ of Parliament.”

Naming and shaming

Another key use of parliamentary privilege by both peers and MPs has been on occasion to name individuals whose identities were protected by court injunctions. Due to the ultimate freedom of speech within parliament afforded to them by the 1689 Bill of Rights, members are able to speak freely despite injunctions and not be prosecuted for this act. This was particularly prevalent at the height of disputes around so-called superinjunctions and their enforcement. The most high profile example of this was by Liberal Democrat MP John Hemming in 2011, who used parliamentary privilege to name Ryan Giggs as the footballer who brought an injunction to prevent the publication of allegations he had an affair with a former reality TV star. Hemmings justified the move by the fact that Giggs was originally identified on Twitter by approximately 75,000 accounts. It allowed the mainstream press to report on the incident and prompted new questions into the complex issues surrounding how to regulate the internet, press standards, privacy and injunctions.

Hemming had previously been involved in a similar incident earlier that year when he revealed that the banker Sir Fred Goodwin had obtained a superinjunction to protect his identity. It was later revealed by Liberal Democrat peer Lord Stoneham that Goodwin attempted to prevent details of his alleged extramarital affair with a senior colleague being made public. Lord Stoneham asked the Lords, “How can it be right for a superinjunction to hide the alleged relationship between Sir Fred Goodwin and a senior colleague? If true, it would be a serious breach of corporate governance and not even the Financial Services Authority would know about it.” Hemming brought up issues surrounding injunctions and freedom of speech when powerful and influential people use ‘superinjunctions’ to avoid press scrutiny. He asked ministers “will the government have a debate or a statement on freedom of speech and whether there’s one rule for the rich like Fred Goodwin and one rule for the poor?” While the same could be said in relation to parliamentary privilege itself, the difference is that one (injunctions) tries to obscure information from the general public by people with the means to do so, and the other (parliamentary freedom of speech) attempts to bring information to light, by members chosen and elected by the public to serve their interests. pa In October 2018, this issue was reignited when Sir Philip Green was revealed as the businessman at the heart of what The Telegraph called ‘Britain’s #MeToo scandal’. The newspaper revealed this in a piece published on October 24 that, as a result of an injunction, did not identify the person behind the “alleged sexual harassment and racial abuse of staff”. The day before, the Court of Appeal in ABC v Telegraph granted the injunction that prevented The Telegraph from revealing the allegations that had previously been concealed thanks to non-disclosure agreements.

On October 25, Lord Peter Hain invoked parliamentary privilege to name the individual at the centre of the allegations in the House of Lords, announcing “having been contacted by someone intimately involved in the case of a powerful businessman using non-disclosure agreements and substantial payments to conceal the truth about serious and repeated sexual harassment, racist abuse and bullying, which is compulsively continuing, I feel it’s my duty under parliamentary privilege to name Philip Green as the individual in question, given that the media have been subject to an injunction preventing publication of the full details of a story which is clearly in the public interest”. Despite widespread outrage, Hain stood by his decision, saying, “Parliamentary privilege is a precious part of our constitution and an expression of parliament’s absolute sovereignty, but it should only ever be used sparingly, with total integrity and responsibility. It is not something that one should ever abuse and it should never be used randomly.

"On this occasion, I took a judgment, which others will, in turn, assess as being right or wrong and I respect that. I respect the view of lawyers who criticise it, though others have supported it.

"I have no quarrel with the appeals court or with any members of the judiciary on this point. They have a job to do, but so do parliamentarians. What is the point of being a member of parliament, either in the Commons or in the Lords, if you don’t discharge your responsibilities and, where appropriate, use the privileges that you have in order to promote justice and liberty?” When the issue erupted last in 2011, the then lord chief justice, Lord Judge, commented: “It is, of course, wonderful for you if a member of parliament stands up in parliament and says something which in effect means an order of the court on anonymity is breached. But you do need to think whether it’s a good idea for our lawmakers to be flouting a court order just because they disagree with a court order or they disagree with the privacy law created by parliament.” While the motivations of members invoking parliamentary privilege are hoped to be honourable, the system sadly can lend itself to rashness and misjudgement.

Going viral

After Hain’s controversial use of parliamentary privilege, the jury (so to say) is still out on its use both in the case of Sir Philip Green and more widely. Hain’s act provoked anger from some, such as superlawyer Lord Pannick who said “it cannot be right” that any parliamentarian could simply set aside the rulings of a court and name a name that it had ordered should not be disclosed. There are of course a multitude of reasons why parliamentary privilege can create more problems than it solves. For one, it allows details to be revealed that may be part of live court cases and can break both injunctions and the sub judice rule. Uses of parliamentary privilege, though rare, do have the potential to cause major difficulty in a way that could never have been imagined in 1689 when the Bill of Rights was introduced.

Anything uttered by members is broadcast live on BBC Parliament, and can easily be replicated, shared and discussed by the masses almost instantaneously on social media. The court of public opinion can very quickly be swayed and affect juries, bringing up human rights issues—what happens if parliamentary privilege infringes an individual’s right to a fair trial? Invoking parliamentary privilege often occurs when MPs act with public interest in mind. However, as with Green’s case, issues surrounding the anonymity and privacy of the victims involved must be considered, particularly in highly personal cases of this nature. Some possible solutions have been put forward, such as MPs or peers being required to justify their decisions in front of a committee, or discussing the issue with the Speaker or Lord Speaker first and facing disciplinary action if they go against their judgement. For now, parliamentary privilege remains a contentious issue without a clear resolution.

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