Parliamentary privilege: clear as mud but not quite so dirty

Privilege: a word that calls to mind the protection the rich or the powerful from the rules of ordinary people. Viewing this phrase in light of the Supreme Court decision of last year on the trial of three MPs and a Lord for offences relating to expenses does little to dispel this image. Parliamentary privilege has had more attention of late than for many years, as the FAQs that littered newspaper websites show [1].

So what is parliamentary privilege?  In short, privilege is made up of two rights of parliament. First, that “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” arises from article 9 of  Bill of Rights 1689. Second, Parliament has the exclusive jurisdiction over its own affairs as developed through case law.

Why is this so important? If parliamentarians can’t be sued for defamation for what they say in parliamentary business, they can speak freely without fear of legal costs, and if Parliament takes responsibility for disciplining those who break its rules it cannot be improperly influenced by those outside.

A parliamentary question would clearly be part of parliamentary proceedings, as Parliament needs information. Giving evidence to a select committee is also covered, as keeping the identities of those giving evidence helps ensure that evidence is complete and honest. Recent high profile examples of the use of privilege are more sensational: the search of Damian Green’s office as part of a police inquiry into allegations that he conspired to commit misconduct in a public office, the prosecution of Harry Greenway MP for alleged bribery offences, and most recently the Supreme Court case that decided that expenses claims were not similarly protected. Whatever the rights or wrongs of the actions of those involved, privilege does not keep good company in the media.

Why, then, is there so little understanding of parliamentary privilege? First, the development of the concept through the common law means that information about privilege is just not that accessible to the general public. Even though the expenses scandal captured the public attention, few will have read the Supreme Court’s 48-page analysis. Second, where the mystique of the courts meets that of Parliament the situation is unlikely to be improved. Finally, when MPs are seen trying to use privilege to cover their misdeeds, the public are unlikely to feel much sympathy.  

So where next? While reform fell by the wayside in 1999, perhaps an Act codifying and modifying parliamentary privilege could combat misunderstandings, and provide an opportunity to address some of the stranger historical quirks. Such a proposal appeared in last year’s Queen’s speech, but meanwhile, in the wake of the expenses scandal, the name “parliamentary privilege” seems to fulfil every prejudice people have of parliamentarians and can do nothing to help their public image.

[1] The Independent, Guardian, Telegraph and BBC all published guides or FAQs on the topic




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