Parliamentary Privilege

Members of Parliament enjoy long-standing privileges. These privileges apply to both the Westminster Parliament and 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 right follows from Parliament’s inherent sovereignty or supremacy.

Parliamentary privilege derives from long-standing constitutional settlements that arose following clashes between the Crown and Parliament in the 17th century. Parliament determines the scope of its own privileges, with its rules embodied in the rules of the Houses of Parliament. However, it’s established that these privileges are relatively fixed and cannot be extended. They are accepted not to go beyond those that traditionally exist through long-standing custom.

Parliament has the ability to grant itself further privileges by statute, placing these privileges on a statutory basis. It also retains the power to withdraw privileges.

Courts have a limited role in relation to parliamentary procedure. If a court determines that a 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. The separation of powers claimed judicial powers for Parliament many years ago. However, this form of judicial power does not refer to the judicial function of the House of Lords, which was separated into the Supreme Court in 2009.

An inherent aspect of privilege is the privilege from arrest. This starts 40 days before the commencement of a session and continues until the session ends. Members of the House of Lords are immune from arrest at all times. However, freedom from arrest does not imply freedom from criminal law or from imprisonment or detention.

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

Privilege is largely limited to civil matters for which imprisonment may arise only in highly exceptional circumstances.

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

This privilege extends to debates on the floors of the House and in Select Committees. It is not limited to votes and debates but also extends to proceedings of Parliament. This covers the asking of parliamentary questions and replies. It covers everything done or said in the functions or exercise of functions of a Member in a Committee of either House, and also covers 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, for example, if 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 becomes the subject of an independent course of action. The Privy Council has decided that what is said in Parliament may be relied upon in evidence in a libel action regarding a statement made outside Parliament.

Exceptionally, privilege may be extended to statements made outside Parliament that have a close connection to evidence given in Parliament. But this will be highly exceptional and the connection would have to be close. The 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 where 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. 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 parliamentary proceedings, protection of any rule of law which prevents proceedings in Parliament being impeached or questioned outside Parliament. Accordingly, an MP may take action for defamation, provided the MP waives the protection and allows the defence to give evidence that 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 includes any act or omission that obstructs or impedes either House of Parliament in the performance of its functions, or that obstructs or impedes Ministers or officers in the discharge of their duties, or has a tendency directly or indirectly to produce such a result. It constitutes material significant misconduct, obstruction, falsifying documents, willful misrepresentation, and other categories, disobedience of rules or orders of the Houses or Committees.

All Members of Parliament must record their interests in a Register of Members’ Interests. This register is published annually and includes directorships of companies, paid employments, professions, sponsorship, donations and support, details of clients for whom a Member played a 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.

Requirements also apply under the ministerial code, which requires resignation from directorships and has higher-level requirements regarding rent and 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 paid 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 for which 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 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 include efficiency, cost effectiveness, and transparency in the discharge of its functions. It also determines members’ salaries.

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

The Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act 2014 creates a register of lobbyists, covering 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 or 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 are 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 loss of salaries and privileges. The House of Lords may impose fines, although it appears that the House of Commons now has an 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, presenting 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, the 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, require the production of documents, and 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.”