Parliamentary Privilege is a principle that allows parliamentarians to carry out their duties as an MP or Lord without fear of legal repercussions. So why does it exist and what examples of its invocation have there been?
What is Parliamentary Privilege?
A privilege is an immunity in law that exists for a certain group of people and is essential to the operation of the legal system. It provides immunity in certain situations. Some examples include:
Attorney-Client Privilege – The privilege that means a lawyer cannot be forced to disclose information given to them by their client.
Spousal Privilege – The privilege that means that a spouse cannot be forced to testify against their partner.
Parliamentary Privilege allows any member of Parliament, either from the Commons or the Lords, to speak freely whilst exercising their role within Parliament. This means that they cannot be sued for slander or libel and cannot be prosecuted for contempt of court or breaching the Official Secrets Act. It also protects Parliament’s internal deliberations from being interfered with by the courts. This is what is known as ‘exclusive cognisance’.
The most important part of parliamentary privilege is the right of MPs to have freedom of speech and action on any parliamentary matter and should be able to raise any matter without fear or criminal charges of being sued. However, this privilege is not entirely absolute, as the case of R. v Chaytor found.
When and why did the privilege emerge?
Before the Glorious Revolution of 1688 the rights of Members of Parliament to exercise their role without fear of persecution by the Crown were not clear. Indeed, between 1394 and 1535 seven Speakers of the House of Commons were executed by beheading. There were a number of famous occasions whereby the Crown tried to intimidate Members of Parliament. By far the most famous example was when Charles I entered the House of Commons to arrest five members of Parliament on 4th January 1642:
When the Glorious Revolution occurred Britain essentially became a constitutional monarchy. In 1689 the Bill of Rights received Royal Assent. The Bill of Rights outlined a number of limits on the monarch and codified a number of rights of Parliament, many of which had previously been conventions. One of these included:
” That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament. “
It was this clause that saw the birth of parliamentary privilege. Parliamentary privilege is checked on by the Committee on Privileges. This is headed by Labour MP Chris Bryant and can suspend a member for abusing their right to parliamentary privilege.
What examples of the privilege been invoked?
The Zircon Affair
In 1985 BBC Scotland produced a television documentary series called Secret Society. As part of this the programme was going to reveal details about a spy satellite that the Government had not disclosed to the Public Account Committee, which was meant to be able to have financial oversight over the Government. GCHQ, one of Britain’s spy agencies tried to stop the BBC from airing the programme, when they refused, Special Branch raided the offices of BBC Scotland. With the help of MPs, the producer of the programme arranged for a showing in the House of Commons. Despite it being a breach of the Official Secrets Act, the MPs who watched it were exercising Parliamentary Privilege in doing so. This was a catalyst for the issue becoming public knowledge and it was extremely embarrassing to the Government.
John Hemming and Ryan Giggs
In 2011 a Premier League footballer was reported to be having an affair by major news outlets. However, the footballer in question had taken out an injunction at the High Court to stop publication of his name. This meant that no-one, including the newspapers, were able to reveal the identity of the footballer in question and if they had done so they would be in contempt of court. The problem with injunctions in modern society is that social media allows information to be shared to millions of people at the touch of a button – in essence making them unfeasible and unenforceable. Everyone on social media knew the identity of the footballer in question, however, ridiculously, it could not be published in the newspapers. The Liberal Democrat MP, John Hemming, recognised the nonsensical nature of this situation and used his right of Parliamentary Privilege to highlight that the footballer in question was, in fact, Manchester United superstar Ryan Giggs. Although he had breached an injunction, Hemming could not be punished because of Parliamentary Privilege. Although he was ticked off by the Speaker, Hemming had effectively made his point.
Lord Hain and Philip Green
In 2018 newspapers were reporting that a very senior British businessman had been at the centre of a sexual harassment scandal. They reported that, amongst other appalling behaviours, he had kissed and groped female members of staff without their consent. The employees had then been paid off and forced to sign Non-Disclosure Agreements meaning that they could not discuss the improper behaviour. However, the businessman had taken out an injunction to stop the newspaper naming him as the person concerned. This was highly worrying. Whereas the Ryan Giggs behaviour was subjectively immoral, the behaviour of Green was potentially criminal. Not only that, but he had used his wealth and power to force the young women to sign NDA’s and not disclose the culture that existed around him. As a result of these concerns, the Labour Lord Philip Hain decided to name Sir Philip Green as the businessman concerned from the benches of the House of Lords and was protected from being found in contempt of court because of parliamentary privilege:
Bob Seely and Russian Oligarchs
During the Russian invasion of Ukraine in 2022 a number of sanctions were placed on Russia, Russian businesses and Russian oligarchs by Britain and its western partners. Despite these efforts, there was concern that a number of Russian oligarchs were being supported in legal battles against these restrictions. As such, Conservative backbench MP Bob Seely used parliamentary privilege to name some of the British lawyers who were supporting Russian Oligarchs. Had Seely made these remarks outside of Parliament he would likely have been sued for defamation:
What controversies have there been relating to the privilege?
Using the privilege is inherently controversial as an MP is likely to be doing something that they would not be able to do outside of their parliamentary duties. However, there are a couple of particularly noteworthy controversies surrounding the privilege.
Damien Green and Leaked Home Office information
In 2009 Damien Green, then the Shadow Immigration Minister, was arrested and detained by the Metropolitan Police. Both his home, his constituency office and his parliamentary office were also searched. This arrest was into alleged leaks of sensitive information from the Home Office. In transpired that Green had been handed this information by a civil servant and had been arrested for “conspiring to commit misconduct in a public office”.
Controversially, the Speaker of the House of Commons allowed the police into Damien Green’s office in Parliament without a warrant. His office was searched. This made a number of MPs extremely angry because the police would have come into material that was privileged due to Green’s role as an MP. This might include casework files that were even about police matters. Many MPs believed that if any otherwise incriminating material was found in Green’s office it would nevertheless be inadmissible in court due to its privileged nature. In the end the Crown Prosecution Service dropped its case against Green and this was never tested in court. Green said following the incident:
“One of my jobs as Conservative immigration spokesman is to expose the many failings of the government’s immigration policy. That’s precisely what I was doing in this case and that’s why ministers were so embarrassed”
Following the incident the Speaker agreed with a committee of senior MPs that in future the police could not search an MPs office without a warrant issued by a judge (which would be unlikely to be granted unless in the most extreme circumstances).
R v Chaytor – a failed attempt to exercise Parliamentary Privilege
In 2010, the Daily Telegraph began publishing the stories relating to a long investigation into MPs expenses. What became known as the MPs Expenses Scandal was one of the most embarrassing episodes in parliamentary history. Whilst many cases were shocking, the worst among them were the cases of three Labour MPs: David Chaytor, Elliot Morley and Jim Devine.
These MPs had not just made claims on their expenses that were morally questionable, they had made claims that were outright fraudulent. As such, not only were they punished by the parliamentary authorities the Crown Prosecution Service also launched a criminal charges against them. However, when their case when to trial the MPs all claims that they could not be prosecuted because their expenses claims fell under the remit of parliamentary privilege and were therefore part of the exclusive cognisance of Parliament and outside the jurisdiction of the court. The appeal to their sentences went all the way to the Supreme Court. However, the Supreme Court ruled unanimously that parliamentary privilege was no defence for the criminal actions over their expenses.
Not only were they punished by parliamentary authorities, criminal charges were also bought against them. During their trials, each MP claimed that they could not be prosecuted because their expenses claims fell under the remit of Parliamentary Privilege. The cases went all the way to the Supreme Court. However, the Supreme Court unanimously ruled that Parliamentary Privilege was no justification for their criminal actions over their expenses.
Why is it such an important principle in the operation of Parliament?
Parliamentary Privilege helps to underpin the doctrine of Parliamentary Sovereignty. Without Parliamentary Privilege, MPs would not be able to fully represent their constituents interests and MPs would not be able to scrutinise the Government without fear of falling foul of legislation, such as the Official Secrets Act. As such, it is an essential element of a modern parliamentary democracy.
Parliamentary Privilege is an important principle that protects the ability of MPs to carry out their role without fear of legal repercussions. This privilege is not absolute, but it does have a very high threshold and anything short of serious criminality is likely to be protected if an MPs actions were carried out in line with their duties as parliamentarian.
Parliamentary Privilege – Parliamentary Privilege is an important principle that protects the ability of MPs to carry out their role without fear of legal repercussions.
Exclusive Cognisance – The right of Parliament to regulate its own affairs without interference from an outside body such as the courts.