Ancient Parliamentary Privilege: Still Vital in Modern Democracy

Periodically ‘Parliamentary privilege’ is a term thrown into the spotlight by events.
In May 2011, Lib Dem MP John Hemming named aloud in Parliament Ryan Giggs as the footballing celebrity who had been granted a High Court ‘super injunction’ to gag anybody from speaking about, or reporting, his alleged affair with a former reality TV star. The order was so powerful that it could not even be acknowledged as existing.
Coming as part of a stream of big public names employing the same tactics to keep their lives private; the question of what the media should and could report was a sideshow, compared to the outrage some expressed that Hemming had ‘abused Parliamentary privilege’.
The previous year, ‘privilege’ was questioned when three Labour MPs, David Chaytor, Jim Devine and Elliot Morley, and Conservative peer Lord Hanningfield, were imprisoned for false accounting over their expenses claims. When they were first charged, they invoked ancient rights that give force to British Parliamentary privilege, preventing MPs and peers from being sued for defamation; They argued they shouldn’t even be charged.
They failed to prevent their trials, but the notion that somehow they were above the common laws ordinary citizens are subjected to, raised eyebrows in the media and public. Is there one law for MPs and one for other people? Should judges be able to question what elected representatives say and ask in the Chamber? Leader of the Commons Sir George Young has agreed: ‘privilege is unfortunate in its suggestion of special treatment’.

Historical Basis
The concept has been hard-fought for over centuries and is regarded as essential in the proper functioning of the House of Commons and the House of Lords. The Parliamentary website defines privilege as ‘certain legal immunities for Members of both Houses which allow them to perform their duties without interference from outside the House’.
Those 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 both Houses’ proceedings’. Members are immune from legal action in terms of slander, but must adhere to the principles of Parliamentary language.

Privilege was enshrined into British law with the 1689 Bill of Rights as a means of preventing any sovereign from interfering in the workings of Parliament. It followed the long and bitter years of the English Civil War between Parliament and the Crown, the execution of Charles I, the interregnum and the restoration of the monarchy under Charles II. It is an ancient right guarded jealously by Parliament ever since.

Reconsiderations
BBC News reported in late April 2012 that ministers were considering changes to the system, with the implications of expenses claims and super-injunctions being included. A consultation was started on ‘how to prevent possible misuse’ of these rights.
Government ministers are at pains to point out that freedom of speech in the House must be maintained. They ask if a ‘legislative definition of Parliamentary proceedings’ would clarify the situation.
The cardinal rule that an MP cannot be sued for remarks in Parliament that would be defamatory outside will stay, as will a Parliamentarian’s right to defy court injunctions guaranteeing anonymity.

The Government also consulted on whether to strengthen the powers of Select Committees to call witnesses and punish any who submit misleading evidence. The question of ‘contempt’ of Parliament is being revisited and so are the sanctions that should be imposed on transgressors.
The right to avoid appearing as a witness in a court is to be removed from Parliamentarians, and the issue of inciting racial/religious hatred or terrorism is also being examined.
Finally, there is apparently some doubt about whether peers can be detained under the Mental Health Act 1983, while MPs can be. The Government acknowledges no such loophole, but some observers believe a specific law is needed for the ‘avoidance of doubt’.