Introduction and background: Parliamentary Privilege
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”.
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”.
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.
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. 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. 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”. 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.
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 before—above all, the 1998-99 Joint Committee on Parliamentary Privilege”.
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 and subsequently debated in the House of Commons. 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”.
8. Neither House formally endorsed the Report. While the Government generally supported its recommendations, no time was found for legislation in any of the subsequent ten parliamentary Sessions, although the Report’s recommendations on sub judice formed the basis of new Resolutions in each House. 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”.
Developments since 1999
9. The 1999 Joint Committee noted that “Although of ancient origin, parliamentary privilege is not static or immutable”. 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” cases—although 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, 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; attempts to influence committee members; attempts to intimidate a Member of Parliament; a former Minister rebuked for giving misleading evidence to a committee; and police searches on the Parliamentary estate. 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 Rights—although the Court also asserted its jurisdiction over national parliaments’ privileges. 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, 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.
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: 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
2 A v. The United Kingdom  ECHR 35373/97
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 http://www.ipu.org website.
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  UKSC 52.
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
6 Conservative Party manifesto for the 2010 general election
7 Government Green Paper, Parliamentary Privilege, Cm 8318, April 2012 (hereafter Cm 8318)
8 Ibid., Foreword
9 The Report from the 1999 Joint Committee on Parliamentary Privilege had been laid on the Table in both Houses on 30 March 1999.
10 HC Deb 27 October 1999
11 Report from the 1999 Joint Committee on Parliamentary Privilege, recommendation 39
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.
13 Report from the 1999 Joint Committee on Parliamentary Privilege, recommendation 15
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
15 Cm 8318, page 15
16 Report from the 1999 Joint Committee on Parliamentary Privilege, paragraph 17
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.
18 Fifth Report from the House of Commons Committee on Standards and Privileges, Session 2003-04, Privilege: Protection of a Witness, HC 447
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
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
22 A v. The United Kingdom  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.”
23 Toussaint v. Attorney General of Saint Vincent and the Grenadines  UKPC 48
24 Jennings v. Buchanan  UKPC 36
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
Acknowledgment: UK parliament