Parliamentary Privilege

Lord Brabazon of Tara Excerpts

Thursday 20th March 2014 Lords Chamber

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[Lord Brabazon of Tara]

That this House takes note of the report of the Joint Committee on Parliamentary Privilege (HL Paper 30).

[Lord Brabazon of Tara (Con)]

My Lords, privilege carries connotations of social exclusivity or of favouritism, so it is important that occasionally we remind ourselves what parliamentary privilege actually is. We, as members of this legislature, are accountable to the people. We make laws. Our colleagues in the House of Commons approve taxation. We hold the Executive to account. To perform those tasks effectively and without fear, we need certain rights and immunities. We need to be able to regulate our own affairs without interference from government or the courts. Above all, we need to be able to speak and act freely in the course of our parliamentary work without fear of consequences. So the existence of some form of parliamentary privilege is a necessary precondition for a free and democratic society. It is not a special immunity that attaches to us personally. It is the freedom of the House itself, the foundation for everything that we, as parliamentarians, do here.

It is important to restate these principles, however self-evident they are, because at the time the Joint Committee which I chaired was set up they were being widely questioned. In early 2010, four parliamentarians—three MPs and one Member of this House—sought to persuade the courts that parliamentary privilege protected them from being prosecuted for false accounting in respect of parliamentary expenses. That case was still being heard at the time of the 2010 election, and the coalition agreement included a commitment to bring forward proposals to ensure that privilege could not be used by Members of either House to evade justice.

The case brought by the four Members was subsequently dismissed by the courts at every stage, culminating in the judgment of the Supreme Court in R v Chaytor. In that judgment, the Supreme Court reaffirmed something which the two Houses themselves have acknowledged for many years—that a crime is a crime and that Members of Parliament who have committed crimes enjoy no special protection from prosecution. I will quote briefly from the Supreme Court’s judgment:

“for centuries the House of Commons”—

the same applies to this House—

“has not claimed the privilege of exclusive cognizance of conduct which constitutes an ‘ordinary crime’—even when committed by a Member of Parliament within the precincts of the House”.

It follows that a false expenses claim knowingly submitted by a Member of Parliament is fraud, pure and simple—so the main rationale for the Government’s draft Bill had disappeared by the time it was finally published in spring 2012.

What we were left with was, frankly, a bit of a rag-bag. The fundamental question at the heart of the Green Paper, and at the heart of our report, was whether or not we in the UK should seek to codify parliamentary privilege by means of a comprehensive modern statute. That was the central recommendation of the last Joint Committee to consider these issues, chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, in 1999. However, the Government were against codification and so, ultimately, were we.

There are arguments for and against codification. In its favour is the prospect of certainty and clarity. Against it is the inflexibility inherent in statutory codification and the loss of the possibility of evolution. Accordingly, we did not rule out legislation but regarded it as a last resort. If we ever get to a point where the courts or the Executive interfere with privilege to such an extent that freedom of debate in Parliament is compromised, then, and only then, Parliament may have no option but to legislate once again, as it did in 1689 in the Bill of Rights, to put privilege on a clear and unquestionable statutory basis. But we have not reached that crisis point yet, and I hope we never do.

I shall briefly outline some of the Joint Committee’s other conclusions before concluding by addressing the Motion in the name of my noble friend the Leader of the House, which is being debated jointly with this report. We were unanimous in rejecting the Government’s draft clauses which would have vested in the prosecuting authorities the power to waive the protection afforded by Article 9 of the Bill of Rights, thereby allowing parliamentary proceedings to be admitted as evidence in criminal prosecutions. As the Chaytor judgment clearly demonstrated, a crime is a crime, and membership of Parliament is no protection from prosecution. Privilege exists to protect not Members but proceedings themselves from impeachment or questioning in the courts, which is why witnesses before Select Committees enjoy the same protection as Members. Removal of that protection would have a disastrous chilling effect on free parliamentary debate. I am delighted that the Government, in their response to our report, have accepted our conclusion and abandoned their proposal to waive Article 9 in respect of criminal prosecutions.

Secondly, we considered the penal powers of the two Houses and, in particular, their powers to punish those who, either by refusing to give evidence to Select Committees or by giving false evidence, may be guilty of contempt. I do not intend to speak to this complex issue in detail—chapter 3 of our report speaks for itself—but I want to underline that the existence or not of these penal powers has rarely been an issue for Lords committees, which work best when they engage with willing and co-operative witnesses. I know there have been very rare occasions—one involving the Communications Committee comes to mind—when Lords committees have encountered difficulty, but our focus was very much on the Commons, and we will watch developments in that House with interest.

Thirdly, we considered judicial questioning of parliamentary proceedings. In some countries, judicial interference has been the trigger for legislation: in Australia in the 1980s, and currently, although for rather different reasons, in New Zealand. We are fortunate that in the United Kingdom our judges generally show the utmost respect for parliamentary privilege, just as we, in Parliament, show our respect for judicial proceedings by observing the sub judice rule. The noble and learned Lord, Lord Judge, the then Lord Chief Justice, gave particularly valuable evidence to the Joint Committee on this mutual respect. There have been some problems, particularly in judicial review cases, but we concluded that these were exceptions, rather than the rule, and that there was no need for Parliament to take action at this time.

Finally, before turning to the Leader’s Motion, I would like to mention the reporting and repetition of parliamentary proceedings, which is covered in chapter 7 of our report. This is the one area of significant disagreement between the Joint Committee and the Government. The Government say that they are not convinced by our conclusion that the vague wording of the Parliamentary Papers Act 1840,

“significantly inhibits press reporting of … Parliament”.

Instead, the Government believe that such reporting,

“has sufficient qualified protection under the common law”.

I cannot agree. The evidence of media witnesses was clear. Section 3 of the Parliamentary Papers Act 1840, as amended, refers only to extracts or abstracts of documents published or broadcast by authority of the House, terms which do not appear to extend to general media reports. As a result, the media are genuinely confused over the possible risks they may face in reporting parliamentary proceedings. This confusion was exemplified by the chaotic reaction to John Hemming MP’s disclosure in the House of Commons in 2011 that the footballer Ryan Giggs was the subject of an anonymity injunction.

I was therefore pleased to see that the noble Lord, Lord Lester of Herne Hill, had introduced a Private Member’s Bill seeking to give effect to the Joint Committee’s recommendation that qualified privilege should apply to all fair and accurate reports of parliamentary proceedings, a recommendation that we believe would resolve this anomaly. Unfortunately, the noble Lord has been unable to secure a Second Reading for his Bill, and I understand that in the next Session of Parliament he plans to introduce a much narrower Bill, whose scope will be limited to the repeal of Section 13 of the Defamation Act 1996, which allows Members of either House to waive the protection of Article 9 of the Bill of Rights for the purposes of a suit for defamation.

I would certainly welcome the repeal of Section 13, which has created a number of dangerous anomalies, but I regret that the noble Lord is not pursuing the more ambitious proposals contained in his current Bill. As our report indicates, successive Joint Committees —the 1999 Joint Committee on Parliamentary Privilege, the Joint Committees on the Draft Defamation Bill and on Privacy and Injunctions and the committee that I chaired—have concluded that the current blend of statutory and common law protection enjoyed by media reports of parliamentary proceedings is inadequate. I hope the Leader of the House will be able to tell us that the Government have had a change of heart and are ready to bring forward their own Bill in the new Session. In the mean time, I hope the Government will support the repeal of Section 13 of the Defamation Act.

Finally, I turn to the second Motion in today’s debate, which stands in the name of my noble friend the Leader of the House. I would like to put on record my personal thanks to the Leader for his willingness, as Leader of the whole House, to put his name to it. I shall briefly explain the background. Legislation has over the years created innumerable individual rights in areas such as employment, health and safety, data protection, clean air and so on. Businesses, schools, charities and other organisations across the country have to comply with such legislation, and as a point of principle both Houses, as responsible employers, and as custodians of this great palace, should similarly be bound by it. The problem is that, in 1935, in the case of R v Graham-Campbell ex parte Herbert, the courts decided that they were not. The result of the Graham-Campbell judgment, which was never appealed, was a mess. It came to be a common-law presumption that legislation did not apply to Parliament unless it expressly said that it did.

This presumption was reinforced by the fact that some legislation did expressly extend to Parliament. To give a current example, Schedule 1 to the Deregulation Bill, currently in Committee in the House of Commons, contains provisions relating to apprenticeships. New Section A7 in that schedule states expressly that it applies to parliamentary staff. That seems to me to be the right way to go about it, avoiding any doubt or ambiguity. The same approach was adopted in Sections 194 and 195 of the Employment Rights Act 1996, to which the Deregulation Bill refers.

As the noble and learned Lord, Lord Judge, told the Joint Committee, if in one place you say,

“this Act applies to Parliament”,

but in another place you say nothing about it,

“it will be assumed that it does not apply to Parliament”.

That, in a nutshell, is the problem. The Joint Committee therefore concluded that, as a point of principle, all legislation of general effect, covering such areas as health and safety, employment or fire safety, should be extended by means of express provision to Parliament. In fact, as the letter from the Treasury Solicitor printed in the appendix to our report shows, this position has also been government policy since 2002, although not always observed in practice. By adopting this resolution today, we will demonstrate the House’s strong support for this approach and, I hope, contribute to clearer and more consistent legislative drafting in future.

Before I finish, I should like to thank the excellent clerks we had from both Houses who helped us produce what I hope noble Lords will agree is a good report. We also had some very good witnesses. I have already mentioned the noble and learned Lord, Lord Judge, but I should also like to thank in particular the clerks of both Houses of the Australian Parliament, the clerks from the New Zealand and Canadian Parliaments and the former parliamentarian of the United States House of Representatives, not forgetting our own Clerk of the Parliaments and the Clerk of the House of Commons.

In conclusion, I repeat my thanks to the Leader of the House for putting his name to the second Motion, and I hope that the House will agree it without dissent. I very much look forward to the debate. I beg to move.

--- Later in debate ---

[Lord Brabazon of Tara]

My Lords, I am grateful to my noble friend the Leader of the House for his positive response, and to everyone who has spoken in what I think has been an interesting and informative debate. I hope that this report does not suffer the same fate as the 1999 report, about which I think absolutely nothing has been done. We have at least taken a step in the right direction today because one of our recommendations is being acted upon right now. With that, I commend the report.

Motion agreed.