House of Commons

Members of Parliament enjoy long-standing privileges. These privileges apply both to the Westminster Parliament and to the devolved Parliaments and Assemblies in Scotland, Northern Ireland, and Wales.

A central aspect of parliamentary privilege is Parliament’s right to organize its own procedures. This follows from Parliament’s inherent sovereignty or supremacy.

Parliamentary privilege is derived from long-standing constitutional settlements following clashes between the Crown and Parliament in the 17th century. Parliament determines the scope of its own privileges. Its rules are embodied in the rules of the Houses of Parliament.

However, it is now established that these privileges are relatively crystallized and cannot be extended. It is accepted that they ought not to be extended beyond those which traditionally exist by long-standing custom.

Parliament has the authority to grant itself further privileges by statute. They place privileges on a statutory basis and may also withdraw privileges.

Courts will have a limited role in relation to parliamentary procedure. If the court determines that the matter falls within the scope of parliamentary privilege, the courts will not intervene.

Historically, Parliament was the High Court of Parliament with both judicial and legislative powers. Judicial powers of Parliament were claimed many years ago through the separation of powers. This form of judicial power does not refer to the judicial going of the House of Lords, which was separated into the Supreme Court in 2009.

A latent aspect of privilege is the privilege for arrest. This commences 40 days before the commencement of the session and endures until the end of the session. Members of the House of Lords are immune from arrest at all times. The freedom from arrest does not imply freedom from criminal law or freedom from imprisonment or detention.

If a Member of Parliament is arrested on criminal charges, the Speaker is notified, and he reports to the House. If he is detained under mental health legislation, a report is made to the Speaker who may obtain reports on his mental competence. If his incapacity is proved, then the seat may be vacated.

These privileges are limited largely to civil matters for which imprisonment may arise only in highly exceptional circumstances.

Members of Parliament have significant enhanced freedom of speech in the House in the interest of free debate and the democratic process. Members in the House are immune from liability for defamation or other actions, whether criminal or civil. This privilege is expressly embodied in the Bill of Rights, and jurisdiction falls to Parliament and not the courts.

This privilege extends to the debates on the floors of the House and in Select Committees. The privilege is not limited to voting and debate; it also extends to proceedings of Parliament. This covers asking of parliamentary questions and replies, as well as everything done or said in the functions and exercise of functions of a Member in a Committee of either House, and also things done in either House in the course of parliamentary business.

Communications by constituents do not enjoy privilege but may enjoy qualified privilege under general principles of defamation if, for example, they are passed on to appropriate parties such as government departments or Ministers.

Privilege will not cover matters such as false accounting in respect of parliamentary offences.

If a libel is republished or repeated outside Parliament, it is the subject of an independent course of action. The Privy Council has decided that what is said in Parliament may be relied on in evidence in a libel action in respect of a libel made outside Parliament.

Exceptionally, privilege may be extended to statements made outside Parliament which have any close connection to evidence given in Parliament. But this will be highly exceptional, and the connection would have to be close. Freedom of parliamentary privilege has been held consistent with the European Convention on Human Rights.

The Committee of Privileges may review the legitimacy of statements made in Parliament. It relies largely on self-restraint on the part of the members and does not readily use its disciplinary powers.

The Privilege of Parliament is also reflected in the general principle that proceedings of Parliament are not generally referred to in the interpretation of legislation. Modern practice has allowed for relaxation of the rule where legislation is ambiguous or obscure or leads to absurdity or the material relied on is statements made by a Minister or promoter of the bill together with parliamentary material necessary to understand the statements and the statements relied on are clear. The United Kingdom courts have not upheld the suggested approaches of the European Court in reviewing the adequacy and implementation of Directive.

The Defamation Act allows a person to waive in defamation proceedings in relation to their conduct in relation to parliamentary proceedings, protecting any rule of law which prevents proceedings in Parliament being impeached or questioned outside Parliament. Accordingly, an MP may take an action for defamation, provided the MP waives the protection and allows the defense to give evidence of what would otherwise be excluded by reason of parliamentary privilege.

Another aspect of parliamentary privilege is the principle that the courts will not intervene in the proceedings of Parliament. The Houses regulate their own procedures.

Contempt of Parliament is any act or omission which obstructs or impedes either House of Parliament in the performance of its functions or obstructs or impedes Ministers or officers in the discharge of their duty or which has a tendency directly or indirectly to produce such a result, constituting material significant misconduct, obstruction, falsifying documents, willful misrepresentation, and other categories of disobedience of rules or orders of the Houses or Committees.

All Members of Parliament must record their interest in a Register of Members’ Interests. It is published annually and includes directorships of companies, paid employments, professions, sponsorship, donations, and support. Details of clients for whom a Member played the parliamentary role, overseas visits, benefits and gifts overseas, land and property, shareholdings, control transactions including loans and credit, family members employed and paid in respect of parliamentary duties. The Members’ Interest Register is established by the resolution of the Houses.

Tithe requirements apply under the ministerial code, which requires a resignation from directorships and has higher-level requirements to rent, conflicts of interest.

Over half of the members of the Houses have representative roles or consultancies with external bodies, whether charitable or business. Following allegations of cash for questions in the past, the Nolan Enquiry reviewed the position. However, it did not recommend that such arrangements be prohibited.

Following the report, Members of the Houses must deposit contracts involving arrangements with any organization so they are available for public inspection. They must reveal any remuneration and benefits. Any other agreements that involve the party member acting in a parliamentary capacity must especially so provide.

Members should disclose their interests every time they approach a Minister or other Member on a subject in which they have a financial interest. Ministers and public servants should not accept gifts, hospitality, or services from anyone which would or might appear to place them under an obligation. Following the Nolan Enquiry, the House approved a code of conduct with its enhanced principles on conduct in public life. Payment for anything promoting in Parliament is prohibited.

The Parliamentary Standards Act 2009 creates an independent Parliamentary Standards Authority to regulate pay and allowances to Members of Parliament and to make rules relating to financial interests and codes of conduct relating to them. The Constitutional Reform and Governance Act 2010 expanded the role of the Authority to efficiency and cost-effectiveness and transparency in the discharge of its functions. It is also to determine members’ salaries.

The compliance officer is provided for and may review decisions with the authority to refuse expenses, claims, and may conduct investigations into payments if there is reason to believe that they are improperly made. The Authority has made a scheme for payment of Members’ expenses.

The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 creates a register of lobbyists. This covers professional lobbyists and consultant lobbyists. There are provisions for supervision and enforcement. It is an offence to be a lobbyist under the legislation without being registered as such.

A consultant lobbyist is a person engaged in commercial business and communicates personally and orally with UK Government Ministers, Permanent Secretaries about government policy, legislation, contracts, licenses, and other benefits on behalf of another person in return for payment.

Lobbyists must register and keep their entries up-to-date. The register is published online.

There are criminal and civil penalties for failures to comply. It is a criminal offence to engage in the business of a lobbyist without being properly registered. A range of other offences is provided.

The Houses may commit persons to prison for breach of privilege and contempt of Parliament, including third parties. Equally and in modern practice, they may decide to allow the matter to be handled by the police. The House may suspend Members with the loss of salaries and privileges. The House of Lords may impose fines, although it appears that the House of Commons now has equivalent power.

The Parliamentary Commissioner for Standards advises Members on compliance with registration and the code of conduct and investigates contraventions. The Commissioner publishes annual reports.

Members must deposit agreements in relation to parliamentary duties with the Parliamentary Commissioner for Standards, whether formal or informal. Advocacy is prohibited in relation to certain matters, including initiating parliamentary proceedings, presentation of bills, petitions, parliamentary questions, moving motions, or amendments.

Allegations of breach of privilege or contempt are made in the first instance to the Speaker. Notice is given to the Member concerned. If the Speaker is satisfied that the complaint involves privilege and is substantial, the complainant is advised, and the motion may be put down for debate.

Generally, that matter is referred to the House Committee on Standards and Privileges, which is made up of members of all parties and chaired by the leader of the House. It may investigate matters, call witnesses, and require the production of documents. It may compel the member concerned to attend.

Strict rules of evidence do not apply, and legal representation is not usually present. If there is a breach, the Committee makes recommendations for punishment. The matter is then referred to the House, and the House as a whole votes.

The Lords Commissioner for Standards has an equivalent role to the House of Commons Commissioner for Standards and deals with alleged breaches of the codes in relation to the House of Lords.