What is parliamentary privilege and why does it need reforming?

The recent story surrounding Sir Philip Green and Lord Peter Hain has put the spotlight on parliamentary privilege and thrown into doubt whether it is suited in its current form to modern day politics.

Parliamentary privilege is derived from statutory privilege and common law privilege.

Article 9 of the Bill of Rights 1969 creates an exception to the principle that everyone is equal in the eyes of the law. It states that “freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place outside of parliament.”

Historically, this protected parliamentarians from making comments some may have asserted amounted to treason against the monarchy and state.

The common law privilege of ‘exclusive cognisance’ is that the law of parliament operates under one rule: whatever matter arises in parliament must be debated and decided in parliament alone.

Lord Hain’s exercise of parliamentary privilege to subvert the Court of Appeal ruling protecting Sir Philip’s identity exposed a serious flaw in our constitution. He used it in such a way as to diminish the rule of law, separation of powers between the executive and judicial and Sir Philip’s human rights.

Indeed, when a MP exercises privilege to protect himself from what he says aware that what he says is not necessary to making his case, he is acting outside of the exception offered by the Bill of Rights.

Some might ask what Lord Hain’s case was and why he chose to act to the detriment of those claimants in the case of Sir Philip’s alleged harassment who specifically requested of the Court of Appeal judges that their anonymity under their non-disclosure settlement agreements made with Sir Philip be preserved?

At this point, I should add that Sir Philip is not on my list of favourite individuals and I would find his alleged actions deplorable if they were proven to be true but to my mind Lord Hain by his actions is clearly guilty of misusing his privilege.

It is not the first time a court injunction to protect the privacy of an individual has been subverted by the use of parliamentary privilege or a MP has avoided prosecution for a breach of an act of parliament.

In 1955, the press reported a MP’s privileged assertion that British intelligence officer Kim Philby was a Soviet spy without risk of libel or the Official Secrets Act.

In 1963, the Secretary of State for War John Profumo made a privileged statement to parliament denying any impropriety involving disclosure of state secrets with model Christine Keeler (who may also have been in a simultaneous relationship with a Soviet diplomat in London) which he later admitted to be untrue.

In 1978, four MPs under Parliamentary privilege named Colonel B who was the subject of an ongoing court case for having assisted in the publication by Time Out of sensitive information about GCHQ. The press ignored threats by the director of public prosecution of contempt of court and it was even suggested by MPs that the director himself be prosecuted for contempt of parliament. What a ridiculous situation.

In 1996, child Z’s welfare was threatened when named in parliament following a court injunction to safeguard their identity.

More recently, Ryan Giggs was named by a MP in 2011 for his alleged affair following a ‘super injunction’ (meaning not just his identity but the very story could not be reported by the press). Consequently, the press had a field day splashing his name and photo across the front pages free of prosecution.

Therein, lies the great responsibility which comes with this privilege. In practice, it protects not only the MP but by extension the press and can do immense harm.

If ministers take issue at the law of privacy, for example, then they should reform those laws through statute and not sabotage the court’s interpretation of the very law that parliament itself enacted.

In 1996, A’s MP specifically referred to the names of A and her children and their address whilst making unsubstantiated and derogatory comments about them in a parliamentary debate. A sued the government. In A v UK 1998, judges at the European Court of Human Rights acknowledged the importance of parliamentary privilege but also stated that freedom of speech should uphold the principle of fairness. In doing so, they appeared to raise the question of a means of compensation for those defamed or whose privacy has been invaded.

It is time that the UK adopts a more measured approach to parliamentary privilege than that given by Article 9 of universal protection so that there is greater control over what is currently an unchecked power.

Written by Dominic Danvers at Meaby&Co. Dominic can be contacted on 020 3861 5154 or ddanvers@meaby.co.uk.