Parliamentary Privileges and Parliamentary Independence

Introduction

The principle of parliamentary privilege gives the members of the Parliament the freedom to speak with impunity within the parliament. This has been considered essential for the independent working of the parliament. The Joint Committee on Parliamentary Privilege has noted in its report that

“freedom of speech and expression is central to parliament’s role. Members must be able to speak and criticise without fear of penalty. This is fundamental to the effective working of the Parliament, and is achieved by the primary parliamentary privilege, guaranteed by Article 9” (Joint Committee on Parliamentary Privilege, 1999, para 12).

The Bill of Rights, 1689, Article 9 provided that “freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament” (Article 9). The principle of parliamentary privilege of freedom of speech was also provided in the Parliamentary Privilege Act 1770, section 1, which provided that the legislation does not abridge the ancient privilege of speech in parliament. The principle provides that parliamentarians are immune from both civil as well as criminal liability for their speech and actions within the parliament (HM Government, 2012). The doctrine of parliamentary privileges is generally associated with Article 9 of the Bill of Rights, 1689 (Bamforth, 2013). This essay considers the utility of the principle of parliamentary privilege in protecting the independence and integrity of parliament from outside influence and interference.

Parliamentary privileges: Independence and integrity of Parliament

Parliamentary privileges include the freedom of speech and expression, the freedom from civil arrest and the right to regulate the parliamentary procedures. These privileges indicate the unique and important position that the parliament holds within the constitutional system. Recently, the Supreme Court observed in an important decision on parliamentary accountability and privileges, that the roots of parliamentary privileges lay in the Article 9 of the Bill of Rights, 1689, and the exclusive jurisdiction that the parliament has in particular areas (R v Chaytor, [2010] UKSC 52, 2010). However, the question as to how far members of the parliament can be protected under the principle of parliamentary privilege, and in what situations do such protections apply, do arise from time to time. Such questions are not however, within the domain of the present essay. What this essay seeks to address is the utility of the parliamentary privileges for the independent working of the parliament. There are two components to parliamentary privilege. In the first component, the parliament exercises control over its own affairs, also known as ‘exclusive congnisance’, and in the second component, freedom of speech is guaranteed by Article 9 of the Bill of Rights Act 1969 (Gay & Tomlinson, 2014). The present essay focusses on the second component of the parliamentary privileges.

The freedom of speech for parliamentarians is considered to be the cornerstone of the constitution (Gay & Tomlinson, 2014). What is protected by the parliamentary privilege of free speech is any speech made by a member of parliament on the floor of either House as well as anything spoken in a committee or during answering oral or written questions (Gay & Tomlinson, 2014). In other words, speeches made or words spoken outside the formal parliamentary proceedings do not attract Article 9 protection (Gay & Tomlinson, 2014). This principle of parliamentary privilege has long been established as an essential part of parliamentary functions and has been time and again invoked by the British courts. For instance, in Bradlaugh v Gossett, Lord Coleridge CJ related the principle of parliamentary privilege to the “great dignity” of the House of Commons (Bradlaugh v Gossett, (1884) 12 QBD 271, 1884, p. 273). It was considered by Lord Coleridge CJ that whatever was spoken in the House of Commons by a member of parliament should be outside the inquiry of the courts (Bradlaugh v Gossett, (1884) 12 QBD 271, 1884, p. 275). The principle of parliamentary privileges allows the parliament to function and perform their constitutional duties and functions without the interference from the courts and the Crown (Tomkins, 2003). In A v United Kingdom, the principle of parliamentary sovereignty and the role it plays in the enabling of representatives of people to fulfil their functions was considered to be an important aspect of Parliamentary functioning by the European Court of Human Rights (A v United Kingdom, [2003] 36 EHRR 51, 2003).

In the UK, there is a strong tradition of defamation liability within the common law. In that context, parliamentary privileges acquire a special significance. Speeches that are made in the parliament by members of the parliament, which defame other citizens may at times raise potential conflicts in the courts (Loveland, 2015, p. 245). Common law has a strong tradition of protecting the right to reputation, which is violated by defamation. However, the possibility of being successfully sued for defamation, may act as an impediment for the members of parliament in exercising their right to free speech (Loveland, 2015, p. 245). In case, the defamatory speeches are against the public bodies, courts have tended to depend of the principle of parliamentary privilege and make the suits by the public bodies . In Derbyshire County Council v Times Newspapers, the House of Lords held that public bodies cannot as a matter of right sue for defamation as that would impede free expression (Derbyshire County Council v Times Newspapers, [1993] AC 534, 1993). Again, in Reynolds v Times Newspapers, the court held that political figures may fail in their suits for defamation by the defence of a qualified privilege (Reynolds v Times Newspapers, [2001] 2 AC 127, 2001). Defamation actions brought by those who are referred to in parliamentary debates is a common threat for the members of parliament (Gay & Tomlinson, 2014). If this threat is easily realised members of the parliament will find it difficult to exercise their parliamentary functions without fear of actions of defamation in court.

The principle of parliamentary sovereignty also requires the supremacy of parliament and freedom of speech is also to be understood in this context. The Parliament is the the paramount forum of the land and therefore it “must be free to go about its business without fear or favour, and individuals must be able to contribute to the best of their abilities to Parliament carrying out its functions” (HM Government, 2012, p. 11). There may be instances where a person speaking in Parliament may be required to divulge facts that are pertinent to issues being discussed in the Parliament, and at such times, the integrity of the Parliament is compromised if the person is deterred from raising the facts due to a prospect of criminal or civil penalty (HM Government, 2012).

In recent times, the issue of parliamentary privileges has been involved in debates because of the MPs Expenses scandal of 2009. News reports that were later verified indicated that MPs has misused their allowances for private benefit (HM Government, 2012). This case led to the concerns that MPs may use their privileges to avoid prosecution and reopened the questions regarding the extent to which the MPs must enjoy parliamentary privileges (HM Government, 2012). At this point it is relevant to mention that the fact that parliamentary proceedings may be used to interpret Acts of Parliament has been established (Pepper v. Hart [1993] 1 AC 593, 1993). Therefore, the use of parliamentary proceedings for the purpose of case proceedings is permissible provided that there is no encroachment on parliamentary privileges (HM Government, 2012). The Supreme Court recently has gone so far as to hold that persons being prosecuted cannot seek to exclude the evidence that is contained in the proceedings of the Parliament on the ground that such proceedings are privileged (HM Government, 2012). This suggests that the court is trying to ensure a balance between parliamentary privileges and the need to ensure that proceedings are not used as a ground to exclude evidence in prosecution of offenders.

Conclusion

Parliamentary privileges are essential to ensuring the independent working of the Parliament, without interference from the courts. The threats of defamation actions, is one of the major threats to freedom of speech in the Parliament. It is necessary that the members of the Parliament are able to freely express themselves in parliamentary proceedings and are not deterred from sharing their opinions, beliefs or facts that are related to the issues under discussion in the Parliament.

Bibliography

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