Law and Custom of Parliament

Parliamentary privilege is part of what is known as the lex et consuetudo parliamenti (law and custom of Parliament) and is derived from a number of sources such as parliamentary practices, statute, or precedent, by either judicial decisions or House resolutions. Historically, parliamentary privileges derive from the rights exercised over the monarchy to stop them from interfering with the workings of Parliament. Preserved within the Bill of Rights 1689, Article 9 outlines this collection of rights and immunities as:

‘…the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals’. [1]

These rights extend to MP’s, members and officers of the two Houses and are essential for them to carry out their functions independently and without the fear of arrest, imprisonment and molestation. Parliamentary privilege also confers the right of each House to handle its own affairs without external interference, including the courts. Protection is offered to members of Parliament such that no criminal or civil proceedings can generally be brought against them, or any other persons, in respect of words used in parliamentary proceedings. However, the term proceedings of parliament, ‘ … has never been precisely defined either by statute, the Commons or the courts but clearly applies to debates, speeches and questions in the House, deliberations and evidence given by the committee and actions taken by officers of the House in pursuance of its orders’. [2] However, the term proceeding in Parliament does not cover everything said and done within the precincts of Parliament. In the case of Rivlin v Bilainkin [3] , it was held that letters, which were sent within the geographical location of Parliament, were not in fact covered. On the other hand, if formal sessions were to take place overseas with members of Parliament, under English law, they would be covered by absolute privilege.

In the outlined scenario, Julian Black tabled his question during Ministers’ Question Time in the House of Commons. This type of formal stage is considered a proceeding in parliament and so whatever he said during such a proceeding would attract parliamentary protection under absolute privilege. The description of absolute privilege is that of legal immunity against civil or criminal liability, for things said and done in the course of duties in proceedings of parliament, undertaken by a member of parliament or its officers. However, if a private conversation took place between MP’s absolute privilege would not apply, as it would not have constituted a proceeding in parliament and therefore, would not be covered under this privilege. In Dillion v Balfour [4] , a Minister had made defamatory comments within the House. ‘So, when an action for defamation was brought against a Member of Commons… the court recognised that it had no jurisdiction in the matter, and ordered that the writ should be removed from the records’. [5]

The concept of absolute privilege was challenged in the European Court of Human Rights, in the case of A v UK [6] where allegations made on the floor in House of Commons were repeated in the press. The challenge ultimately failed and further reinforced Article 9 of the Bill of Rights 1689, which states:

‘That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or any place outside Parliament’.

The most notable implication of absolute privilege is the susceptibility for it to be abused by MP’s for making defamatory remarks. As absolute privilege is not destroyed by malicious intent, MP’s could make use of it and avoid criminal prosecution. Black, tabled the question of ignoring the victims of the released prisoner, to the Minister, named, and accused Jon Green of bribing. ‘Members of neither House are at present subject, by statute, to the law of bribery in respect of proceedings in Parliament’. [7] The facts do not state the bribing actually took place. However, in cases where bribery, primarily to influence an MP, has taken place, it would be subject to punishment as contempt of parliament as well as being a criminal offence. The bribery accusation against Green was tantamount to defamation, but under the rules of absolute privilege, Black would not be liable for any action claimed against him. However, if Black were to repeat his statements outside the proceedings of parliament, Green could pursue him for a claim under defamation.

The publishing of Almondson’s letters to the Minister of Justice, by a daily newspaper, is not a matter covered by absolute privilege. The position as to letters is not so clear. Any correspondence on official matters will have protection under qualified privilege as long as:

the person who makes a communication has an interest or duty (whether legal, social or moral) to make it to the person to whom it is made; and

the person to whom it is made has a corresponding interest or duty to receive it; and

the person who makes the communication is not motivated by malice. [8]

In the case of George Strauss, [9] comments made about London Electricity Board were alleged to be defamatory and they intended to sue him for libel. Strauss argued that this would be an infringement of his privilege and that the ‘mere threat of defamation proceedings … could constitute a contempt’. [10] There was dispute as to the decision of this case by the Committee and the full House. It was held by a majority view that qualified privilege should be used as a defence here. Similarly, in the case of Beech v Freeson [11] , a letter from a constituent to an MP complaining about a solicitors firm was also to be protected by qualified privilege due to the absence of malice.

It was in 1972, during Church of Scientology v Johnson Smith [12] Browne LJ said “what is said or done in the House in the course of proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House”. During the Neil Hamilton MP case against the Guardian Newspaper it was May J that used Prebble v Television New Zealand Ltd, [13] to point out how that case exposed Article 9 of the Bill of Rights as having too wide ranging a scope and not providing a comprehensive definition of parliamentary privilege. Parliament later amended the Bill of Rights in 1996, and the amendment, ‘Section 13’, later became known as Defamation Act 1996. Section 13, prompted in part by the Guardian action, ‘allows an individual member to waive their privilege so that an action may be brought’. [14]

Using the rule defined under this premise, the leaked letters would be subject to the immunity of qualified privilege as they relate to the initial question, tabled by Black, at Ministers’ Question Time. It is plausible then, that the letters, if orally communicated within parliament, would automatically attract absolute privilege, as they would constitute as a proceeding in parliament.

In Stockdale v Hansard [15] it was held the parliamentary privilege only extended to papers published on the order of the House for use by its own members, but not to papers made available to the public. This led to the enactment of the parliamentary Papers Act. The provisions within the Act state:

Section 1: confers absolute privilege in relation to the publication of reports, papers, votes, or proceedings printed by order of either House.

Section 2: confers absolute privilege in relation to correct copies of authorised paper etc

Section 3: confers qualified privilege in relation to extracts or abstracts of authorised papers etc.

The area of newspaper reports, however, does not fall within the above statute. In this case, the courts will look at what the newspaper published and decide if it could be held for an action in defamation, as the report was not on parliamentary proceedings. The case of Wason v Walter [16] made it apparent that if publication on the proceedings of parliament is faithful and made without malice, a claim for defamation would not be upheld.The facts do not state as to whether the article published alongside the leaked letters was fair and accurate. The report does not have to be word for word for qualified protection. So long as, the report was honest and fair as in Cook v Alexander [17] , it would attract qualified privilege.

Julian Black was reported to have been arrested and at first glance it would seem that this is a contravention of his Parliamentary privilege which grants freedom of arrest. However, it would not apply to ‘members of either House in respect of criminal charges, or to any matter which includes an element of criminality, such as criminal contempt of court’. [18] The implication of this is brought to bear, where `in recent cases, members committed by the courts for contempt have failed in obtaining their release by virtue of the privilege’. [19]

Parliament has an almost unlimited jurisdiction in its self-appointed authority for self-regulation. Although it cannot create ‘new privileges’ it still posses the residual ability to invoke ‘lost’ or ‘forgotten’ privileges that would be of equal force and effect today. The power to punish with fines or imprisonment has not been imposed in quite a few decades, but in the eighteenth and nineteenth century, it was frequently made use of.

The police’s removal and subsequent seizure of documents from Black’s office in the House of Commons could constitute a breach of parliamentary privilege. Parliament has the right to regulate its own affairs free from outside interference. In the case of MP Damian Green, it was made apparent that the evidence collected by police from his parliamentary office would not be admissible in court as it was protected by Parliamentary privilege. This would be true in the case of Black, as the documents from his office would be protected.

Question 2:

Discuss the extent to which Parliament has relinquished its right under parliamentary privilege to exercise control over its own affairs in the light of scandal over MP’s expenses.

Point 1: Rights of Parliament

Point 2: Public Interest (Confidence in the government)

Point 3: Rights Relinqushed by Parliament.

Point 4: Transparency / Fairness (seen to do the right thing

determine the validity of payments of the Additional Costs Allowance (ACA) made to Members of Parliament

The ACA system was deeply flawed. In particular, the rules were vague, and MPs were themselves self-certifying as to the propriety of their use of the allowance.

apply the rules and standards governing the ACA. MP’s option to designate and re-designate his or her second home, the size of mortgages and whether a second home was needed at all.

decision by the Independent Parliamentary Standards Authority as part of the future system, in light of the report of the Committee on Standards in Public Life.

Sir Thomas Legg, who has been contracted by the House

authorities to lead a reassessment of all claims over the over the last four years

Flaws of the system

25. In May 2009, after the House had decided to accept the judgment of the Divisional Court that records of MPs’ expenses could not be withheld under the Freedom of Information Act, but before its own planned release of ‘redacted’ versions of these records, the Daily Telegraph published voluminous and detailed stories of MPs’ claims and payments, apparently sourced by someone with authorised access. This publication brought many of the key dealings of MPs with the ACA and other allowances into the public domain. There followed, and continues, widespread criticism of the way the system appears to have worked to the excessive and unjustified benefit of MPs.

It was not until the judicial decisions of 2008 that the Freedom of Information Act began to allow more light on the way the system worked. This too was a further factor undermining the ACA system.

Further Principles

66. Also at the time of the July 2006 revision, a new section was introduced to the GreenBook, headed “Principles”. This provided as follows:-

“You must ensure that arrangements for your ACA claims are above reproach and

that there can be no grounds for a suggestion of misuse of public money. Members

should bear in mind the need to obtain value for money from accommodation, goods or

services funded from the allowances.

You must avoid any arrangement which may give rise to an accusation that you are, or someone close to you is, obtaining an immediate benefit or subsidy from public funds or that public money is being diverted for the benefit of a political organisation.

Public confidence has been damaged.

‘In responding, our national institutions, including a free press, an independent judiciary and in the end the executive government, political parties and above all the House of Commons itself, are showing that, when things do go wrong, we have together the will and the means to put matters right, heal and reform the systems and the culture, and move forward’. – ACA REVIEW Report by Sir Thomas Legg 1st Feb 2010)