parliamentary privilege uk 2012 april

7/31/2019 Parliamentary Privilege UK 2012 April

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Parliamentary

Privilege


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Parliamentary

Privilege

Presented to Parliamentby the Leader of the House of Commons and Lord Privy Seal

by Command of Her Majesty

April 2012

Cm 8318 21.25


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Crown copyright 2012

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Contents

Ministerial oreword 5

7

10

10

16

16

25

42

48

48

52

60

70

70

77

83

84

Executive summary

Green Paper

1. Overview and general approach

Part One: Freedom o speech

2. Freedom o speech: general issues

3. Freedom o speech and criminality

4. Freedom o speech and civil law

Part Two: Exclusive Cognisance

5. Application o legislation to Parliament

6. Regulation o Members

7. Select Committee powers

Part Three: Other Privileges

8. Reporting o parliamentary proceedings

9. Miscellaneous issues

10. Conclusion

Summary o questions


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4 Parliamentary Privilege


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Parliamentary Privilege 5

Foreword

All strong democracies have at their core the recognition that parliamentarians must be ree to speaktheir mind in debates and MPs to represent their constituents views - without ear or avour. This is atthe heart o the privileges o Parliament which are an integral part o our constitutional arrangements.Indeed, the privileges o the Westminster Parliament are the model or the privileges o many legislaturesaround the world.

But parliamentary privilege is little understood outside o Westminster, and the connotation o theword privilege is unortunate in its suggestion o special treatment or Members o Parliament. Thatconnotation was reinorced in 2010 when some MPs and peers attempted to invoke parliamentaryprivilege to prevent criminal prosecutions or oences relating to their parliamentary expenses. O course,

this attempt ultimately ailed; it was reassuring that it did so, because it showed that privilege is onlyintended to provide protection in relation to the core unctions o Parliament. Nonetheless, it served as areminder that even the most durable o constitutional tenets should periodically be reviewed.

Nor was this the only recent occasion when public attention has been drawn to the application oparliamentary privilege in a modern context. Members o both Houses have relied on privilege toreveal inormation subject to court injunctions; there has been a renewed ocus on the powers o selectcommittees; and the arrest in 2008 o our colleague Damian Green MP raised questions about therelationship between parliamentary privilege and police investigations.

This is the rst Government-led review o parliamentary privilege o which we are aware. PreviousGovernments have looked at various questions regarding the operation o privilege in isolation; webelieve the time is now right to take a comprehensive look at its scope and operation, to ensure thatparliamentary privilege continues to operate to protect the eective unctioning o our democracy. Indoing so, we are guided by many in Parliament who have considered these questions beore above all

the 1998-99 Joint Committee on Parliamentary Privilege.

We raise the question o whether changes are needed to ensure that privilege does not providean inappropriate immunity or parliamentarians rom criminal prosecution, to reinorce the principleo air and equal treatment in law. At the same time, we consider whether changes are needed tostrengthen the appropriate protections or ree expression in proceedings and in the reporting o those

proceedings in the media.

The Government has no wish to make any changes without thorough consultation. The intention othis paper is to acilitate a wide-ranging and open debate on parliamentary privilege. We hope as manypeople as possible will contribute their thoughts, either to us or directly to Parliament. Ultimately, though,

these are Parliaments privileges, and it is right or Parliament to have a proper opportunity to refect ontheir continuing purpose. That is why we believe it would be appropriate or Parliament to establish aJoint Committee to look at the issues raised in this paper.

We look orward to discussing the questions raised here with such a Joint Committee, and to an openand inormed debate on this important, but little understood, part o our constitutional arrangements.

Sir George Young David HeathLeader o the House o Commons Deputy Leader o theand Lord Privy Seal House o Commons


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Executive summary

1. Parliamentary privilege is an essential part o our parliamentary democracy. It ensures thatMembers o Parliament are able to speak reely in debates, and protects Parliaments internal aairsrom intererence rom the courts. Following the MPs expenses scandal there were concerns

that parliamentary privilege could be used by Members o Parliament to avoid prosecution orexpenses raud. While the cour ts concluded that a Members expenses were not protected byprivilege, the Government elt that, in light o the questions this case raised, the time was right or acomprehensive review o the privileges o Parliament.

2. This is a consultation paper which poses questions as to how each o the issues identied shouldbe addressed. Responses are welcome rom any interested party. Ultimately, though, these areParliaments privileges, and it is or Parliament to decide on their uture. The Government believesit would be appropriate or these issues to be scrutinised by a Joint Committee, and will be holdingearly discussions in both Houses about the establishment o, and timetable or, such a committee.

Part 1 Freedom of speech

3. Freedom of speech is arguably the most important parliamentary privilege; or a democracy tounction properly the peoples elected representatives must be ree to raise any matter. I a personspeaking in Parliament believes a act or opinion needs to be raised in a debate, that person shouldnot be deterred rom raising it by ear o a criminal or civil liability. This protection has long beenclaimed, and ound concrete expression in Article IX o the Bill o Rights 1689 and in the Claim oRight Act 1689 in Scotland.

4. The Government does not consider that it is necessary to make any changes to the protectiono privilege in civil cases. To ensure reedom o speech in Parliament it is right that parliamentaryproceedings cannot be relied upon to sue a Member o Parliament or a witness to a selectcommittee or deamation. The Government also considers that no legislative changes areappropriate in relation to injunctions and super-injunctions where, on occasion, parliamentaryprivilege has been used to circumvent the injunction.

5. However, it is open to question whether it should be possible or parliamentary privilege everto prevent Members being successully prosecuted or criminal oences. The paper consults onwhether the protection o privilege should be disapplied in cases o alleged criminality, to enable


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the use o proceedings in Parliament as evidence. The paper also contains drat clauses whichillustrate how this change could be implemented.

6. I privilege were partially disapplied, it would be important to minimise any chilling eect on reespeech in Parliament. Participants in proceedings should not be deterred rom expressing theirgenuinely held opinions or sharing inormation with the House by having to consider whether theymay be acting in breach o laws which limit ree speech outside o proceedings. For this reason

the protection o privilege would need to continue to apply to speech oences. The drat clausescontain an illustrative list o oences or which the protection o privilege might continue to apply,and the Government seeks views both on the list and on the general approach.

Part 2 Exclusive Cognisance

7. Exclusive cognisance is the right o each House o Parliament to regulate its own proceedingsand internal aairs without intererence rom any outside body. This includes the conduct o itsMembers, and o other participants such as witnesses beore select committees.

8. One current area o uncertainty caused by the doctrine o exclusive cognisance is the extentto which statute law applies to Parliament. The purpose o exclusive cognisance is to protectParliament in its role as a legislative and deliberative assembly. However, it is sometimes argued

that this privilege coners a much wider protection - exempting Parliament rom having to complywith legislation governing day-to-day activities such as employment and health and saety. The mostrecent court judgment in this area suggests that the line likely to be taken by the courts in utureis reasonably clear ; statute law does apply unless the law would interere with Parliaments core

unctions. Thereore the Government does not believe that there is a case or legislation at thistime.

9. Both Houses o Parliament are ultimately responsible or the regulation of their Members,including disciplining their Members or breaches o the Houses rules about Members conduct.The Committee on Standards in Public Lie has recommended reorming this system by allowinglay members to serve on the Select Committee responsible or regulating Members o the Houseo Commons. The House o Commons recently voted to appoint lay members to this Committee,but without ull voting rights. The Green Paper contains drat clauses which would clariy that, ivoting rights were given to the lay members, the Committees proceedings would still be protectedby parliamentary privilege.

10. Select committees have come to play an increasingly important role in national political lie,providing an ocial orum in which Members o either House undertake detailed scrutiny oGovernment policy and hold the Government to account or its decisions. Recent events haveraised questions about whether these committees have the powers they need to perorm theseimportant unctions. The Green Paper consults on the desirability o a number o possible reorms,such as legislating to give the two Houses enorceable powers by codiying their existing powers, orcreating criminal oences or committing contempts o Parliament, to allow Parliaments powers tobe enorced through the courts.


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Part 3 Other privileges

11. The nal section o the Green Paper discusses those privileges that do not all under the two mainheadings o reedom o speech and exclusive cognisance.

12. The paper consults on the desirability o changes to the law on reporting of parliamentaryproceedings. In par ticular, individuals who publish documents which either House o Parliament hasordered to be printed are protected rom legal action arising rom publishing these documents, asis anyone producing copies, extracts or abstracts o these documents. The Green Paper containsdrat clauses that would clariy that broadly analogous protection applies to those who broadcastparliamentary proceedings.

13. Also, documents ordered to be produced by Parliament currently receive an absolute protection,while there is a qualied protection or publishing extracts and abstracts. This means the publisher

or broadcaster o an extract or abstract will only be protected i they can show that thepublication was air, accurate and without malice. This is dierent rom the normal burden o prooin deamation cases where qualied privilege is asserted, where it is the person who alleges that

the report is deamatory that must prove that they have been maliciously misrepresented, ratherthan the publisher who must prove that the treatment is properly motivated. The Green Papercontains drat clauses that would bring the burden o proo in line with that in other deamationproceedings.

14. Miscellaneous issues. The nal section o the Green Paper consults on the uture o a number oother privileges including Members reedom rom arrest in civil matters, Members reedom rombeing compelled to appear in court as witnesses, and a number o privileges that are expressed in

the Standing Orders o the House o Lords.


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countries provide a wide reedom rom arrest or legislators, and so are reliant on the relevantlegislature to ensure that any misconduct is punished.8

30. As with reedom o speech, the Government believes that it continues to be an impor tantmaniestation o parliamentary sovereignty that the two Houses are ree to determine andenorce their own procedures without reerence to the cour ts; and that this necessarily includesthe regulation o conduct in those proceedings. It ollows that we continue to recognise theimportance o the Houses right to control their own internal aairs.

Why review parliamentary privilege now?

31. The genesis o the Governments commitment to review the operation o parliamentary privilegelay in the announcement in February 2010 by lawyers representing three MPs and one peer thatthey would be making the case that criminal proceedings could not be brought against them

because the court proceedings would inringe parliamentary privilege. The court proceedings inquestion were to consider charges o alse accounting relating to parliamentary expenses claimsmade by the our deendants. The Programme or Government subsequently stated that we willprevent the possible misuse o parliamentary privilege by MPs accused o serious wrongdoing.9

32. Although ultimately the Supreme Court held that parliamentary privilege did not prevent thebringing o criminal proceedings in these cases, the cases raised signicant public concern. ThePrime Minister identied the key outstanding question as whether the balance is right in all casesbetween the necessary protection aorded by privilege, and the important principle that MPs andpeers should be subject wherever possible to ordinary criminal and civil laws.10 In par ticular, morethan one Joint Committee o both Houses have questioned whether there are circumstancesin which parliamentary privilege could act to prevent successul and merited prosecutions orbribery.11

33. A Government-led review o par liamentary privilege is, in any event, long overdue. While it is rightthat the appropriate extent and operation o parliamentary privilege is ultimately determined byParliament, there is a place or Government in the debate on the various public interests involved.The then Government never responded to the report o the 1998-99 Joint Committee onParliamentary Privilege, but that Committee produced a comprehensive consideration o issuesarising rom privilege, which deserves a considered response.12

34. There have also been a number o other occasions since the Joint Committee on ParliamentaryPrivilege reported on which the extent or the operation o parliamentary privilege has comeunder discussion, all o which ought to be considered in the light o a general review. These include:

8 The French, German and Danish Constitutions all contain variants o an article that Members may not be charged orimprisoned without the consent o Parliament, except i he/she is caught fagrante delicto see article 26 o the FrenchConstitution, article 46 o the German Basic Law, section 57 o the Danish Constitutional Act.

9The Coalition: Our Programme for Government, May 2010, p27

10 Letter rom the Prime Minister to the Rt Hon Kevin Barron MP, 14 September 2011 published at http://www.publications.parliament.uk/pa/cm201012/cmselect/cmliaisn/608/11090605.htm

11 Joint Committee on Parliamentary Privilege, para 167; Joint Committee on the Drat Corruption Bill, report o session2002-03, HL157 / HC705, paras 134-135

12 Joint Committee on Parliamentary Privilege
http://www.publications.parliament.uk/pa/cm201012/cmselect/cmliaisn/608/11090605.htmhttp://www.publications.parliament.uk/pa/cm201012/cmselect/cmliaisn/608/11090605.htmhttp://www.publications.parliament.uk/pa/cm201012/cmselect/cmliaisn/608/11090605.htmhttp://www.publications.parliament.uk/pa/cm201012/cmselect/cmliaisn/608/11090605.htm


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the arrest in 2009 o Damian Green MP on charges relating to misconduct in public oce,including the searching o his parliamentary oces by the Metropolitan Police and the report othe Select Committee which ollowed this;13

attempts by the previous Government to make limited exemptions to Article IX in the dratCorruption and Bribery Bills, and in the Bill which became the Parliamentary Standards Act2009 (none o which exemptions ultimately became law);14

a number o occasions on which Members o either House have used parliamentary privilegeapparently to circumvent injunctions made by order o a court, which has led to reports romthe Culture, Media and Sport Select Committee, by a special Committee on Super-Injunctionsestablished under the chairmanship o the Master o the Rolls, and most recently by a JointCommittee on Privacy and Injunctions;15 and

the inquiry by the Culture, Media and Sport Select Committee into phone hacking by the press,which has raised questions over the powers o select committees in the House o Commons.16

Our overall approach

35. As this is the rst Government-led review o parliamentary privilege o which we are aware, wehave attempted in this paper to produce a comprehensive review o the major issues relating tothe operation o parliamentary privilege today, using as our starting point the review undertakenby the 1998-99 Joint Committee. The paper considers each o the chie areas considered by theJoint Committee, and attempts a consideration o each o its main recommendations and thoseo subsequent relevant committees. As it is a consultation paper, it also poses questions as to howeach o these issues should be addressed. Responses are welcome rom any interested par ty.

36. A partial exception to this is where committees go into matters o internal procedures whichare properly or the consideration o the two Houses. We do not attempt to design internalprocedural mechanisms or either House, although it is legitimate or the Government to expressopinions, and we do so on occasion.

37. While the Green Paper attempts to be a comprehensive review, the Government does not believethe case has yet been made or a comprehensive codication o privilege in a ParliamentaryPrivilege Act as was done in Australia in 1987. The 1999 Joint Committee, having made a series o

recommendations or legislation in par ticular areas, considered that overall statement as a code isthe natural next step in a modern presentation o parliamentary privilege, and that a code wouldassist non-members as well as members, because it would enable the ordinary citizen to haveaccess to the privileges o his member o Parliament. 17

13 Committee on Issue o Privilege, First Report o session 2009-10, Police Searches on the Parliamentary Estate, HC 62,15 March 2010

14 Drat Corruption Bill 2003, clause 12; drat Bribery Bill 2009, clause 15; Parliamentary Standards Bill 2009 (as introduced),clause 10

15 Culture, Media and Sport Select Committee, Second Report o Session 2009-10, Press standards, privacy and libel, HC 362-I,

24 February 2010; Report o the Committee on Super-Injunctions, Super-Injunctions, Anonymised Injunctions and Open Justice,20 May 2011; Joint Committee on Privacy and Injunctions, Report o Session 2010-12, Privacy and Injunctions, HL 273 / HC1443, 27 March 2012

16 To be published as HC 903-vi17 Joint Committee on Parliamentary Privilege, para 385


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38. While we go through our reasoning in individual chapters and agree with a great many o the1999 Committees individual recommendations, in general the Government does not see enoughevidence o problems in practice to justiy such a signicant exercise, which would inevitably

have other consequences that may not be currently oreseen. This contrasts with the position inAustralia in 1987, where there was a clear view that privilege was being applied by the courts in away contrary to the view o Parliament as to how it ought to operate.

39. In the UK, since 1689 the boundaries o parliamentary privilege have in practice largely beendetermined by the courts, within the ramework set by the Bill o Rights, the Claim o RightAct and pre-existing common law. The Government believes that, notwithstanding the discreteareas discussed in this paper where there may be a case or legislative change, the boundaries oparliamentary privilege have or the most part been very clear, and its operation has not beensuciently problematic to justiy such a radical departure rom the UKs basic constitutionalunderpinning.

Q1: Do you agree that the case has not been made or a comprehensive codifcation o parliamentaryprivilege?


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Part One: Freedom of speech

Chapter 2 Freedom of speech: general issues

Introduction

40. The protection o reedom o speech in Parliament by the exclusion o any role or the courts in

questioning proceedings in Parliament is set out in Article IX o the Bill o Rights 1689. The twenty-ourth edition o Erskine May, the acknowledged authoritative work on parliamentary procedure,describes it as ollows:

In 1689, by the Bill o Rights, statute law brought into sharper ocus an important part (but only apart) o what the English Parliament had long claimed. The statute did not supersede the privilege

o reedom o speech but it put the claim on a more defned basis. The continued exclusion ointererence in or by the courts in the proceedings o either House was succinctly and robustlyasserted.

18

41. Article IX o the Bill o Rights 1689 states that:

the reedom o speech and debates or proceedings in Parliament ought not to be impeached orquestioned in any court or place out o Parliament.

42. The Bill o Rights was passed by the English Parliament. In Scotland, a separate but similar Act, the

Claim o Right Act 1689, was passed by the Scottish Convention. It states in this regard:

That or redress o all grievances, and or the amending, strengthening, and preserving o thelaws, Parliament ought to be requently called and allowed to sit, and the reedom o speech anddebate secured to the members.

43. Although the Bill o Rights was passed by the English Parliament, the 1999 Joint Committee onParliamentary Privilege took evidence rom the then Lord President o the Court o Session, LordRodger o Earlserry, and the then Lord Chie Justice o Northern Ireland, Sir Robert, now Lord,Carswell, who were convinced that the law would be interpreted in Scotland and NorthernIreland so as to reect closely the interpretations placed upon parliamentary privilege by the

English courts, even though the interpretation in every case might not be precisely the same.

18Erskine May, 24

thedition (London, 2011), p 227


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Issues

49. The 1999 Joint Committee on Parliamentary Privilege stated that there was a lack o certaintyregarding key terms that are used in Article IX: what is meant by proceedings in Parliament, themeaning o impeached or questioned and the meaning o in any ... place out o Parliament. Theollowing issues are considered here:

whether the term proceedings in Parliamentshould be defned in statute;whether and to what extent Members correspondence with Ministers or constituentsshould

be protected by privilege;

whether there should be any clarifcation o the definition of place out of Parliament, inparticular coverage o tribunals o inquiry; and

the use of parliamentary proceedings in the courts in cer tain circumstances, notwithstandingArticle IX, when it is not considered to be impeaching or questioning.

Defning proceedings in Parliament

50. The question o how and whether to defne what constitutes a proceeding has long been raised

by those advocating reorm o parliamentary privilege or two main reasons: frstly, to provideclarity; and secondly, to amend the scope o privilege.

51. The argument made is that it is unsatisactory that anyone should not know, in any givencircumstance, whether the actions they are undertaking are covered by absolute privilege. This

applies primarily to Members, but also to ofcials o both Houses, to witnesses beore selectcommittees and other par ticipants in proceedings. The Joint Committee on Parliamentary Privilegerecommended a statutory defnition o proceedings in Parliament, based on the defnition used in

the Parliamentary Privileges Act 1987 (Australia).

52. Erskine May states that the primary meaning o proceedings is some ormal action, usually a

decision, taken by the House in its collective capacity. While business which involves actions anddecisions o the House are clearly proceedings, debate is an intrinsic par t o that process whichis recognised by its inclusion in the ormulation o Article IX.23 In most instances it is very clearwhether an action is a proceeding and thereore covered by the protection in Article IX. A

speech in the chamber, a written or oral parliamentary question, a motion or a committee reportwill be a proceeding. A speech at a private event, a request to either House under the Freedom oInormation Act 2000, or a TV interview will not be.

53. The Government has considered whether there are sufcient areas o ambiguity to justiyattempting to produce a statutory defnition o proceedings in Parliament. Over the years therehave been a number o court cases in which the boundaries o the defnition o proceedings havebeen tested.

54. In Rost v Edwardsin 1990 Popplewell J considered that the Register o Members Interests (andby extension the other registers kept by the two Houses) was not a proceeding in Parliament.24

The Joint Committee on Parliamentary Privilege stated that, assuming the decision in Rost vEdwardsto be correct, the law should be changed to make it clear that keeping the registers, and

23Erskine May, 24

thedition (London, 2011), pp 235-236

24Rost v. Edwards [1990] 2 QB 460


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the registers themselves, should be proceedings in Parliament, and thereore would be protectedby parliamentary privilege.25 The current law is, however, unambiguous that the registers are notproceedings in Parliament.

55. More recently, there was a signifcant concern when the deendants in criminal trials relating toMPs and peers expense claims raised the suggestion that they could not be prosecuted on thebasis that submitting claims or expenses was part o proceedings; however, this argument was

unanimously rejected by the Supreme Court in R v Chaytorand by the courts below.26

56. A urther issue relates to the work o the Parliamentary Commissioner or Standards. In 1998

an application by Mohamed Al Fayed or judicial review o a decision o the ParliamentaryCommissioner was dismissed on the grounds that such matters were properly within the exclusivecognisance o Parliament.27 The Joint Committee stated that once a complaint is taken up orinvestigation by the Parliamentary Commissioner it becomes a proceeding in Parliament, a view

reected in the guidance o the Commissioner. The Joint Committee urther recommended thatthis be placed on a statutory ooting.28 However, this does not seem to be an area o signifcantambiguity.

57. One area o possible ambiguity is the extent to which absolute privilege attaches to material thatcould be considered preparatory to or incidental to proceedings or example, early dratso speeches or submissions to select committees, or material collected to inorm such drats. Thisparticular issue arose in the instance o the arrest o Damian Green MP, where the police seizedmaterial that may have been privileged, but as the case was never brought to court the extent o

that privilege was not tested.29

58. The Australian Parliamentary Privileges Act 1987 does extend absolute privilege to materialincidental to proceedings, which includes material used in the preparation o speeches,questions, and other activities that the Member undertakes in Parliament. The Joint Committee onParliamentary Privilege suggested the defnition may be too loose and recommended instead the

use o necessarily incidental to proceedings.

59. Neither o these approaches would eliminate the current ambiguity, however; and by making

statutory provision, the determination o whether any particular material was subject to privilegeor not would be considered by the courts as a matter o modern statutory interpretation, whichmay have the unintended eect o eroding or weakening parliamentary privilege.

60. The lack o a statutory defnition can be seen as allowing or exibility and allows or evolution othe concept over time. Sir William Blackstone in Book 1 o his Commentaries said:

I thereore all the privileges o parliament were once to be set down and ascertained, and noprivilege to be allowed but what was so defned and determined, it were easy or the executive

power to devise some new case, not within the line o pr ivilege, and under pretence thereoto harass any reractory member and violate the reedom o parliament. The dignity andindependence o the two houses are thereore in great measure preserved by keeping theirprivileges indefnite.30

25The correctness oRost v Edwardswas doubted in the Privy Council case oPrebble v Television New Zealand[1995] 1 AC 321.

26

R v. Chaytor and others, [2010] UKSC 52.27R v. Parliamentary Commissioner or Standards ex parte Al-Fayed[2001] 1AC 295 HL

28Joint Committee on Parliamentary Privilege, Parliamentary Privilege, para 126

29Committee on Issue o Privilege, Session 200910, Police Searches on the Parliamentary Estate,HC 62 [incorporating HC1040-i, -ii and iii o Session 2008-09]. See in par ticular chapter 6.

30Sir William Blackstone, Commentaries on the Laws of England(London, 1765 ), Book 1, 164


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61. Recent court cases and recent legislative and administrative changes, such as the establishment othe Independent Parliamentary Standards Authority in the atermath o the parliamentary expensesscandal, serve ur ther to weaken the argument that there is a lack o clarity.

62. The Government believes that the current situation is satisactory, and it is not persuaded o theneed or change. The Government thereore does not plan to legislate in this area.

Q2: Do you think that proceedings in Parliament should be defned in legislation?

Privilege and communication with MPs

63. It has been argued that absolute privilege should be extended to correspondence, including emails,between constituents and their MPs.

64. Although there have been very ew cases in which the House has considered the question owhether parliamentary privilege applies to communications between a constituent and their MP,it is clear that correspondence between MPs and their constituents has never been considered tobe a proceeding. Certain correspondence (although not most correspondence between MPs and

their constituents) might be held to be already subject to absolute privilege i closely connected orpreparatory to parliamentary proceedings.

65. The case oR v Rule in 1937 determined that letters rom constituents to MPs are not proceedingsin Parliament.31 It stated instead that letters rom constituents to MPs might instead enjoy qualifedprivilege in the law o deamation, i they are about matters o public concern, local or national, ormight reasonably be said to relate to the MPs (or Ministers) unctions and responsibilities.

66. This means that a Member or a constituent has a good deence to deamation proceedings so longas they acted in good aith and without malice although it should be noted that i the letter raisesa purely personal matter having nothing to do with any business o the House there is no privilege.

67. Similarly, the House o Commons narrowly decided in 1958 that a letter rom an MP to a Ministerwas not a proceeding.32 That decision has since been considered by at least our parliamentarycommittees to be right in law, although some have argued that the law ought to be changed.33

68. In 2011, the Joint Committee on the Drat Deamation Bill recommended that the Government

adds a provision in the Deamation Bill protecting all forms of communication between constituentsand their MP (acting in his or her ofcial capacity as an MP) by qualied privilege.34

69. The 1999 Joint Committee on Parliamentary Privilege did not recommend changing the law andextending proceedings to cover correspondence between MPs and Ministers. While it recognisedan argument that it was difcult to draw a line o principle between parliamentary questions andsuch correspondence, the Committee concluded that a line had to be drawn somewhere, and that

there was insufcient evidence o a current problem in practice to justiy a re-drawing.

31R v Rule [1937] 2KB 375

32 Strauss case,(1958)33Report rom Select Committee on Parliamentary Privilege, HC 34 (196768); Second Report o Joint Committee on

Publication o Proceedings (196970) HL 109, HC 261; Report o the Committee o Privileges, HC 417 (197677); and

Joint Committee on Parliamentary Privilege (199899) HL 43 / HC 214.34

Joint Committee on Drat Deamation Bill, First report o Session 201012, Draft Defamation Bill, HL 203 HC 930, para 52


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Arguments or and against extension o privilege

70. So ar as deamation is concerned, Gatley on Libel and Slander states that qualifed privilegeprotects a member o the public who passes inormation about a persons conduct to those whocontrol or are concerned with the conduct in question or the person who has the power or duty

to remove, punish or reprimand the oender, or merely to inquire into the subject-matter o thecomplaint.35 This is subject to the usual test that the member o the public is acting in good aithand without malice.

71. It is not entirely clear that the degree o protection o privilege described above exists in the very

dierent context o constituents wishing to discuss court proceedings with their MP where this hasapparently been restricted by a court order, but the Committee on Super-Injunctions chaired by

the Master o the Rolls said in their recent report that:

it seems possible that the same privilege would be extended to a person who wished tocommunicate to an MP inormation which was otherwise precluded rom dissemination by aninjunction. However, Erskine May appears to suggest that such a communication would only beprotected i it was connected with proceedings in Parliament and was not communicated by theconstituent in a personal capacity.36

72. In one circumstance there clearly now is some protection or constituents who wish to discussinjuncted matters with a Member o either House, and that is in the circumstances o amilycourt proceedings. The Family Procedure Rules now make provision explicitly entitling a party

to proceedings to communicate inormation to an elected representative or peer without thepermission o the cour t, where this is or the purpose o enabling the elected representative or

peer to give advice, investigate any complaint or raise any question o policy or procedure.37

73. Though an individuals right to approach their MP is an essential part o the democratic process,this has to be balanced against the rights o others, including potentially the right to a air trialand the right to privacy. Extending qualifed privilege to all orms o correspondence could allowconstituents eectively to ignore any legislation or court order that required inormation to bekept confdential. This would potentially include breaches o the Ofcial Secrets Act 1989 or theContempt o Court Act 1981, and could undermine the rule o law.

74. For example, extending qualifed privilege could undermine the right to privacy, and more

particularly the ability o the courts to protect it through anonymity injunctions (as parties to ananonymity injunction would be able to reely ignore it in communicating with their MP, who couldthen circumvent the order in Parliament).

75. Whilst acknowledging the importance or both constituents and MPs that there is an opendialogue between them, the Government believes that the current situation is appropriate,and that extending qualifed privilege to all orms o correspondence is neither necessary nordesirable. Given the limited protections already extant here, extending qualifed privilege toall correspondence between MPs and constituents would seem to run the risk o potentially

encouraging correspondence to MPs intended to circumvent court orders and damage the privacy

35 Patrick Milmo, QC; W V H Rogers MA (Cantab); Richard Parkes, QC, Godwin Busuttil, Proessor Clive Walker eds, Gatley onLibel and Slander(London, 2010)

36Report o the Committee on Super-Injunctions, Super-Injunctions, Anonymised Injunctions and Open Justice, 2011

37Practice Direction 14E Communication o Inormation relating to proceedings, HM Courts and Tribunals Service,

www.justice.gov.uk
http://www.justice.gov.uk/http://www.justice.gov.uk/


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or reputation o third parties, in eect extending the protection o privilege to those matterswhere there seems to be little justifcation or it applying. Constituents would already be able toobtain the necessary protection in deamation proceedings due to the qualifed privilege attaching

to correspondence made in good aith and without malice.

76. Due to these broader difculties, and as the position in the context o deamation proceedingsis already clear under the common law, the Government view is that on balance it would bepreerable to allow the current position which enables the courts to determine the boundarieso privilege in individual cases to continue, rather than introduce a statutory qualifed privilege orconstituents correspondence.

Q3: Do you agree with the recommendation o the Joint Committee on Parliamentary Privilege thatthe current protection o qualifed privilege or Members correspondence is sufcient?

Defning place out o Parliament

77. It can be argued that there is a lack o clarity as to what a place out o Parliament means. TheJoint Committee on Parliamentary Privilege recommended that a place should be defned instatute to include any tribunal having power to examine witnesses on oath, so any statutory inquirywould be a place.38

78. Such a defnition would provide clarity and certainty as to which type o organisation or bodycould not question or impeach proceedings in Parliament.

79. The Parliamentary Privileges Act 1987 (Australia) replaces the phrase court or place ... with any

court or tribunal, and defnes tribunal as any person or body having power to examine witnesseson oath, an approach which was broadly supported by the Joint Committee on ParliamentaryPrivilege. I such an approach were adopted in the UK, non-statutory inquiries would not beincluded as they do not have powers to examine witnesses on oath.

80. The term court or place out o Parliament has never been read as meaning anyplace, as this

would have the absurd eect o stopping questioning o what was said in Parliament on thestreets or in newspapers. Instead, in keeping with legal principles o interpretation, the assumptionhas been that the term applies to bodies which are similar to courts the most obvious being

tribunals.

81. Indeed, the Joint Committee acknowledged that, were a court to adjudicate on the matter, it wouldbe likely to fnd that the statutory defnition suggested by the Joint Committee would actuallyreect the current situation.

82. The Government thereore does not believe it is necessary or desirable to defne court or placeout o Parliament as there is no evidence that this is not generally well understood.

Q4: Do you think that place out o Parliament should be defned in legislation?

The use o parliamentary proceedings in the courts

83. There is no blanket prohibition on the use o parliamentary debates and proceedings in court. In1981, the House o Commons discontinued the practice o requiring leave o the House beore



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such debates and proceedings could be reerred to in court. The prohibition in Article IX is onimpeaching or questioning such proceedings only. There is a question as to whether it is desirable

that the boundaries o such usage be enshrined in statute.

84. Over recent decades, courts have made the ollowing uses o proceedings:

Where there is an ambiguity in primary legislation, clear statements made by the ministerpromoting the Bill may be relied upon as an aid to interpreting that legislation (Pepper v Hart

1993);39

When evaluating whether primary legislation is compatible with the European Convention onHuman Rights, courts may rely on ministerial statements as background inormation (Wilson vFirst County Trust Ltd (No 2) 2003);40

Hansard can be reerenced to prove what was done and said in Parliament as a matter ohistory, provided that this is not used to suggest that the words were improperly spoken(Prebble v Television New Zealand 1995);41

In judicial reviews, courts have admitted Ministerial statements to Parliament to demonstratewhat Government policy is (ex parte Brind 1991);42 and

Similarly, the Privy Council accepted that a Ministers statement in Parliament could be relied

upon to explain the motivation or executive action outside o Parliament (even to the extentthat that statement was evidence that the action was an improper exercise o power) (Toussaint

2007).

43

85. The reason that these apparent exceptions have arisen is that none o these uses o proceedingsby the court is seen to impeach or question proceedings; in each case, the courts areinterrogating matters o act. These uses o parliamentary materials by the cour ts are widelyaccepted in Parliament, Government and the courts as representing sensible, pragmatic positions.

86. The Joint Committee on Parliamentary Privilege noted the shared interest courts and Parliamenthave in scrutinising the activities o Government, and concluded that it would be bizarre ichallenges to the legality o executive decisions could be hampered by ring-encing what ministerssaid in Parliament and excluding such statements rom the purview o the courts. The Joint

Committee argued that the current position should be enshrined in law, along the lines o theprovision in the Australian Act.

87. The Joint Committees suggested approach was to provide in law that Article IX should notpreclude the use o parliamentary proceedings in court or the purpose o judicial review ogovernmental decisions or in other court proceedings in which a governmental decision ismaterial.44

39Pepper v. Hart[1993] 1 AC 593

40 Wilson v Fir st County Trust Ltd (No 2)[2003] UKHL 4041Prebble v Television New Zealand[1995] 1 AC 321

42R v Secretary of State for the Home Department, ex parte Brind[1991] AC 696

43Toussaint v. Attorney General of Saint Vincent and the Grenadines [2007] UKPC 48



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88. It is not clear that such statutory provision would maintain the existing status quo, which the JointCommittee appeared to consider was satisactory. The Government believes that the currentsituation, whereby the courts can use proceedings in Parliament as long as they are not questioned

or impeached, is perectly satisactory, and that providing a defnition in statute, in the absence o acomplete codifcation o privilege, would not be necessary or desirable.

Q5: Do you think that the situations when the courts can use proceedings in Parliament should beset out in legislation?


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Chapter 3 Freedom of speech and criminality

89. There have been questions in recent years as to whether the protection aorded to reedom ospeech in Parliament might act as an obstacle to the prosecution o criminal oences.

90. The potential barrier to any prosecution would be the prohibition on the questioning oproceedings in Parliament by a court, as set out in Article IX o the Bill o Rights 1689:

the reedom o speech and debates or proceedings in Parliament ought not to be impeached or

questioned in any court or place out o Parliament.

91. In Scotland the Claim o Right Act 1689 states:

That or redress o all grievances, and or the amending, strengthening, and preserving o thelaws, Parliament ought to be requently called and allowed to sit, and the reedom o speech and

debate secured to the members.

92. As set out in Chapter 2, the protection o reedom o speech provided by parliamentary privilegeis a vital part o the constitutional abric o the United Kingdom. It is intended to enable Parliamentto ull all o its proper unctions, without intererence rom the Crown or the courts. In particular,both the Bill o Rights and the Claim o Right Act highlight the reedom o speech and debate

which are clearly central to the ability o parliamentarians to reach inormed decisions, whether inconsidering proposals or legislation, scrutinising Government perormance or debating issues oconcern to members o the public.

93. There is though a strong argument that it would be wrong i MPs or peers accused o seriouscriminal oences could use parliamentary privilege to avoid criminal prosecutions, where theseare not related to the key elements o reedom o speech and debate. The 1999 Joint Committeeon Parliamentary Privilege suggested disapplying the protection o privilege in cases o corruptionor bribery, so that proceedings in Parliament could be questioned in court, and the previousGovernment published drat legislation to disapply the protection o privilege in bribery andcorruption cases.45



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Relevant oences

102. There are a number o criminal oences that theoretically could be committed in proceedings inParliament by an MP, peer, or non-member. The questioning o parliamentary proceedings also maybe relevant or criminal oences which are not alleged to have been committed in proceedingsin Parliament, but or which proceedings in Parliament may be relevant evidence. In addition, thedeendant may wish to have proceedings in Parliament questioned, as part o the deence case.

103. Where criminal oences have been committed recently in Parliament, such as when a personparticipating in proceedings has been assaulted, the existence o parliamentary privilege has notprevented a prosecution being brought. The act that the criminal oence has taken place duringproceedings is not the same as stating that it has taken place in proceedings. Erskine May statesit would be hard to show how a criminal act committed by a Member ... could orm part o theproceedings o the House.48

104. In the case o the vast majority o criminal oences, it is very dicult to see how they couldever be committed in parliamentary proceedings (although there could be conessions made inproceedings). Examples o oences that could not be committed in proceedings would include anyorm o thet, arson, or alsication o a passport.

105. It is thereore in practice not likely that the disapplication o the protection o privilege would berelevant in all that many situations; however, there are some situations where it is possible thatnot being able to question proceedings in Parliament could prevent a criminal prosecution beingsuccessully brought, and some examples are set out below.

Bribery and corruption

106. One area where concern has been expressed that the protection o privilege could preventa successul prosecution being brought is or bribery and corruption oences. Currently, orexample, an MP could be accused o accepting a bribe to change his or her vote on an issue, orto ask questions in Parliament. It would be likely that the oer o bribery took place outside oproceedings, while the conduct took place in proceedings. However, the evidence that actuallydemonstrates the action or which the bribe was paid could not be questioned in court (eventhough it might be able to be cited as act), which could potentially undermine any criminalproceeding.

107. To prove bribery or corruption it may be sucient to prove that the oer o a bribe was madeor sought, or that an unlawul agreement was reached, and so not necessary to demonstrate thatthe bribe actually led to any par ticular conduct. In such a scenario proceedings in Parliament wouldnot need to be questioned, hence the protection o privilege would not need to be disapplied.It is possible to cite successul prosecutions in the USA and elsewhere which support this line oargument the lead case being US v Brewsterin 1972.49

108. However, notwithstanding that some bribery cases have been successully prosecuted in otherjurisdictions through direct proo that a bribe was oered or solicited, it does not necessarily ollowthat prosecutors should be required to rely on such an approach in all investigations into alleged

bribery. As in other criminal cases, prosecutions can in principle also be made by producing apatchwork o evidence o dierent types, where no individual component is suciently compelling

48Erskine May, 24th edition (London, 2011), p 242

49US v Brewster(1972) 408 US 501


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but the cumulative eect is overwhelming. Proceedings in Parliament could very easily orm anecessary part o that patchwork. The key question would seem to be whether it is right inprinciple to deny the courts access to any relevant evidence when the allegation is as serious as

bribery.

109. A dissenting opinion rom the Brewster case, related in particular to the way the indictment wasramed, suggested that any consideration o whether a bribe was taken will naturally also cause acourt to question (i only by inerence) whether the recipient o the bribe then acted on it. In lighto the dissenting opinion, it seems at the least open to question whether a bribery case againstan MP or peer accused o taking payments to change their vote could be successully conductedwithout the ability to question proceedings in Parliament. This raises the issue o whetherdisapplication o privilege is needed i Members are to be subject to this criminal oence.

110. Equally, it is very possible that a deendant in such circumstances would seek to use proceedings

(possibly comparable to his or her own alleged criminal conduct) in a case, and would claim he orshe could not mount a deence and obtain a air trial without reerence to such proceedings.

111. The previous Government and the Joint Committee on Parliamentary Privilege saw the need orlegislation here as greater than the danger o the potential chilling eect.50 The drat clauses wouldhave the eect that proceedings in Parliament can be examined in prosecutions or bribery andcorruption as part o the general disapplication o parliamentary privilege in criminal proceedings.

Other oences

112. As well as the bribery and corruption example discussed above, other hypothetical possibilities ocriminal oences or which proceedings in Parliament could contain relevant evidence include:

making a alse or misleading statement which induces a person to make an investment (section397 o the Financial Services and Markets Act 2000);

conspiracy to deraud, contrary to common law (or example, i an MP were to agree to makean untrue speech questioning the nancial stability o a company, in order to prot rom a dropin its share price); and

blackmail (or example an MP could in theory use a debate in Parliament to make statements

that, unknown to the audience in the House, but known to the target outside the House,amount to an act o blackmail).

113. Notwithstanding the unlikeliness o the situations, the arguments here are the same as those orbribery. To enable criminal proceedings to take place it could be necessary or the prosecution andthe deence to be able to question the motives behind any such statement or action, rather thansimply being able to show that it was said. It is dicult, i not impossible, to think o circumstancesin which it would be appropriate or anyone to commit any o these oences in proceedings. Thisbeing the case, the chilling eect in allowing prosecutions or these oences to use parliamentarymaterial would be limited: participants participating in good aith in proceedings would have noreason to be nervous owing to a ear o being prosecuted or any o these oences. There could,

50Joint Committee on Parliamentary Privilege, Parliamentary Privilege, para 167. The Joint Committee on the Drat CorruptionBill, (para 134-135) had the same view. See also the Drat Corruption Bill 2003, the Drat Bribery Bill 2009, and the JointCommittee on the Drat Bribery Bill, Report o session 200809, para 224-228


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though, remain the ear that participants could be called to court as witnesses and end up havingto justiy what they said.

114. In addition, it is possible that evidence contained in proceedings in Parliament might be introducedby the prosecution where such evidence may not directly show the commission o an oence,but would be supporting evidence which would serve, or example, to prove the motive or theoence.

115. Clause 1 would provide that the protection o privilege would be disapplied to enable proceedingsin Parliament to be questioned in criminal proceedings generally, including where a prosecutionwas brought or the above oences. An alternative approach would be to limit any disapplication tosome or all o the above oences.

Q6. Do you believe that the protection o privilege should be disapplied in cases o alleged

criminality, to enable the use o proceedings in Parliament as evidence?

Q7: I so, do you believe that this disapplication should apply to all cases o alleged criminalityunless specifcally excepted, or should disapplication be restricted to certain specifc oencessuch as bribery?

Oences to be excluded

116. A general disapplication o the protection o privilege would cover all criminal oences. Were thereto be no exceptions to this rule, there would undoubtedly be a chilling eect which would limit thereedom o speech o Members, and have a negative eect on the rank deliberations o Parliament.

117. Parliament is the paramount orum o the nation. It passes legislation, is a orum or debate, andscrutinises the activities o the Government, and in doing so as in carrying out all o its unctions it should be able to have access to any act or opinion which might infuence its deliberations,in order to make the best possible decisions. Participants in proceedings should not thereore bedeterred rom expressing their genuinely held opinions or sharing inormation with the Houseby having to even consider whether they may be acting in breach o laws which limit ree speechoutside o proceedings.

118. An example might be i either House was debating legislation on obscenity. In order to do so,

Members might regularly need to make reerence to material that currently might be consideredto be in breach o the law, and discuss whether the position ought to change. In having thatdiscussion, Members would potentially be severely curtailed in their ability to contribute to anydebate i they had to consider whether each statement they made risked being itsel a breach othe current law. This would in turn clearly restrict the value o the debate, and could result in lessully considered legislation. Similarly, the activities and report o a select committee in, or example,an investigation into hate speech, could be cur tailed by ear o a prosecution.

119. The drat clauses at the end o this chapter refect a view that there is a category o such criminaloences, which might broadly be described as speech oences, to which individuals shouldcontinue not to be subject while they are participating in parliamentary proceedings. Broadly,

these oences can be committed by speech or the dissemination o inormation. In addition,parliamentary proceedings should not be able to be questioned by the courts i a third party isbeing prosecuted or any o these oences. This refects the primary purpose o parliamentaryprivilege: the protection o ree speech and debate in Parliament.


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120. Subsection (2) o clause 1 would provide that certain criminal oences, which are listed in theSchedule, would be excepted rom the disapplication o the protection o privilege. Proceedingsin Parliament would not be able to be questioned by the courts in proceedings or those oences

and the current situation would continue to apply. The list is intended to be illustrative rather thanexhaustive at this stage, as arguments can be made as to the desirability o including or excludingthese or other oences rom the list o exceptions.

121. Clause 2 contains a limited power to amend the list in the Schedule, which would only beexercisable i the Minister considered it necessary to do so as a result o a change in the criminallaw made ater any legislation on privilege had been passed. As oences can be created bysecondary legislation, as well as by primary legislation, it is considered necessary to include thispower. As drated, the power would be subject to the armative resolution procedure: that is, itwould have to be approved by each House beore becoming law.

122. This power is designed to ensure that new oences can be added to the list, obsolete oencesdeleted to keep the list up to date, or tecical amendments to the criminal law refected. Thelimitation at subsection (2) would prevent the overall scope o the Schedule being altered otherthan by primary legislation.

123. The list set out in the Schedule includes the ollowing speech oences:

Use o threatening words or behaviour intended to stir up racial or religious hatred, under thePublic Order Act 1986 as amended by the Racial and Religious Hatred Act 2006;

Use o threatening words or behaviour intended to stir up hatred on the grounds o sexualorientation, under the Public Order Act 1986 as amended by the Criminal Justice andImmigration Act 2008;

Threatening or abusive behaviour under Criminal Justice and Licensing (Scotland) Act 2010;

Encouragement o terrorism, under the Terrorism Act 2006;

Criminal contempt o court under the Contempt o Court Act 1981 (which makes it a strictliability oence to publish material which creates a substantial risk o prejudice or impediment toactive court proceedings. Publication includes communication by speech); and

Breach o the Ocial Secrets Act 1989.

124. Although these oences would remain protected by parliamentary privilege, it would be opento the two Houses (as now) to make rules limiting the speech o their Members and otherparticipants in their proceedings. For example, the sub judice rules o the two Houses limit thecircumstances in which Members are permitted to discuss cases in which proceedings are active inUK courts. Similar rules could in principle be adopted to limit (or example) the exposure o ocialsecrets, were they so desired by either House.

Oences related to passing inormation125. There are a number o oences related to passing inormation which could be committed when

inormation is passed to an MP or peer. Examples include:


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Disclosure o documents, inormation or other articles relating to security, intelligence, deenceor damaging to international relations (Ocial Secrets Act 1989);

The obtaining, disclosing or procuring o personal inormation without the consent o the datacontroller (Data Protection Act 1998);

Wrongul disclosure breaking taxpayer condentiality (Commissioners or Revenue andCustoms Act 2005); and

Disclosure o inormation that might prejudice a trial (Contempt o Court Act 1981).

126. In such cases the alleged act o criminality would have been likely to have been committed notby the MP or peer but by the person passing the inormation to them. However, it may be thatthe only way to establish that such inormation was passed would be to examine proceedings

in Parliament to show that the inormation was acted upon. In such a case a successul criminalprosecution may depend on what was said by a Member in proceedings, which is not currentlyadmissible in court.

127. The Government does not condone unlawul conduct by holders o protected inormation.However, participants in parliamentary proceedings should not have to worry in stating inormationto the House that criminal consequences could fow to others as a result. Such a situation wouldbe an example o the chilling eect, and could potentially act to deter whistleblowers. The list oexceptions set out in the Schedule thereore includes a number o oences related to the passingo inormation, so that proceedings in Parliament continue to attract the protection o privilege in

regard to these matters. As now, where unlawul disclosure o inormation has occurred, criminalproceedings can be brought without the use o proceedings in Parliament.

Q8: Do you agree that i the protection o privilege were disapplied in criminal cases, exceptionswould need to be made?

Q9: I so, are the oences specifed in the drat Schedule the correct ones? I not, which oencesshould be included or excluded?

Specifc acts o incitement

128. It is in theory currently possible in proceedings in Parliament or a speaker to incite or encourageany criminal act, not just in abstract terms but directly and specically.

129. Under the clauses as currently drated, such acts o incitement or encouragement to any criminaloence would be included in the list o exceptions or which the protection o privilege wouldcontinue to apply.

130. The question arises as to whether that is desirable, or whether it would be preerable to disapplythe protection o privilege so that proceedings in Parliament could be used to bring a criminalcharge o incitement to a specic act o violence. Arguably, there is a qualitative dierence betweenexpressing views in the course o a debate in general terms, and inciting or encouraging specic

acts o violence.


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131. The Government is interested in views as to whether incitement to violence should be consideredas a speech oence, and so continue to be protected by parliamentary privilege due to theimportance o protecting reedom o speech in proceedings in Parliament, or whether such

protection should be disapplied.

Q10: Should the protection o privilege be disapplied where a person incites specifc acts o violenceor terrorism in proceedings in Parliament?

Misconduct in public ofce

132. It is possible that an MP could be charged with misconduct in public oce, a common law oencein England and Wales. Committing misconduct in a public oce can be a serious criminal oencepunishable by a maximum sentence o lie imprisonment. There is no exhaustive denition owhat misconduct covers: indeed action which amounts to misconduct is highly likely to also be

contrary to other laws. As a result the boundaries o the oence are uncertain, and despite therebeing relatively ew prosecutions each year, a dispropor tionately high number o those cases areappealed.

133. When the rst successul prosecution was made recently under the Bribery Act 2010, the guiltyparty (a court clerk) was also convicted o misconduct in public oce, which had the eect oextending the sentence. It would be considered to be dicult i privileged evidence could beconsidered in light o one oence, e.g. bribery, and not in light o any misconduct in public ocecharge or the same behaviour.

134. On the other hand, due to the uncertainty as to precisely what activities the oence covers, itis possible that a charge o misconduct in public oce could be brought relating to an oencewhich is on the list o exceptions in the drat Schedule. It would be wrong in principle i a chargeo misconduct in public oce were to be substituted or a charge on the list o exceptions, andproceedings in Parliament thereby questioned in court through a back door route or conductwhich Parliament had specically decided to protect.

135. For that latter reason the common law oence o misconduct in public oce is on the list oexceptions.

136. In 2010, in relation to Damian Green MPs arrest, the Committee on Issues o Privilege (Police

Searches on the Parliamentary Estate) made the ollowing comment and recommendation:

In our view the current law on misconduct in public ofce remains unsatisactory, not leastbecause it is punishable with up to a lie sentence. We recommend that the Law Commission re-visit its 1997 recommendation that misconduct in public ofce be made a statutory oence, inthe light o developments o the past dozen years.

137. The Law Commission is due to undertake a review o the oence o misconduct in public oce,starting in early 2014, aiming to open a consultation in early 2015 and produce a nal reportin summer 2016.51 I legislation were enacted on the basis o the drat clauses published here,the position o the oence o misconduct in public oce could be reconsidered ater the Law

Commissions review.

51 Misconduct in Public Oce, Law Commission, http://lawcommission.justice.gov.uk/areas/misconduct.htm


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Q11: Do you agree that the oence o misconduct in public ofce should be on the list oexceptions?

Saeguards138. When the 1999 Joint Committee recommended that Members o both Houses should be brought

within the law o bribery through disapplication o the protection o privilege, it considered that asaeguard was necessary to protect against vexatious prosecutions and the unnecessary questioningo parliamentary materials by the courts. The Government has thereore explored what orm sucha saeguard might take.

139. The purpose o any saeguard would be to ensure that there is a check at an appropriately seniorlevel on the use o evidence o proceedings in Parliament, which balances the importance oprotecting reedom o speech and debate in Parliament, and thereore minimising any chilling

eect, against the importance o ensuring that justice is done in criminal cases. In practice suchan assessment would be likely to include a consideration o the likelihood o conviction i suchevidence is not considered by the court.

140. The Joint Committees preerred saeguard was that prosecutions o Members o either Houseshould require the personal consent o the Attorney General or, in Scotland, the express consento the Lord Advocate. The Committee did however note that the then Attorney Generaltold them it would be unsatisactory or the Attorney General, as a Member o the House oCommons, to have the task o deciding whether another Member should be prosecuted, a viewshared by successive Attorneys General.

141. The drat clauses in this chapter would thereore instead provide a similar saeguard to the consento the Attorney General, by requiring the consent o the relevant prosecuting authority to theuse o proceedings in Parliament as evidence in a prosecution. The relevant prosecuting authoritywould be, in England and Wales, the Director o Public Prosecutions (DPP), the Director o theSerious Fraud Oce, or the Director o Revenue and Customs Prosecutions; and in NorthernIreland, the Director o Public Prosecutions or Northern Ireland, or the Director o the SeriousFraud Oce. I the relevant prosecuting authority were unavailable, the clause provides that itwould be possible or consent to be given by a designated person (subsection (7) o clause 3would ensure that personal consent would also be required in Northern Ireland, and disapply theusual ability o delegation there).

142. Subsection (3) o clause 3 would provide that when giving consent, the relevant prosecutingauthority would have regard to the public interest in the consent being given, considering thecircumstances o the case including the seriousness o the oence and the public interest in thecontinuing protection o privilege, including the protection o reedom o speech and debate inParliament.

143. The position in Scotland is distinct and requiring the consent o the Lord Advocate is not deemednecessary. Solemn proceedings (which cover the most serious cases) run in the name o theLord Advocate and are prepared and conducted by Crown Counsel. Crown Counsel act on thedelegated authority o the Lord Advocate and must authorise such proceedings. They ensure

consistency in prosecution approach to such proceedings. The use o evidence o proceedings inParliament, bearing in mind the rarity o any cases in the courts in Scotland, would be careullyconsidered. For these reasons explicit provision does not need to be set out in the drat clauses.


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144. The saeguard o requiring the consent o the relevant prosecuting authority would be in additionto the normal operation o the rules o evidence, determining that only relevant and reliableevidence is admissible. These rules prevent the unnecessary questioning o evidence o proceedings

in Parliament either by the prosecution or the deence, where such questioning would not berelevant or the trial in question.

145. The possibility o vexatious private prosecutions might also be perceived as a risk. However, arequirement or the consent o the relevant prosecuting authority would mean that the authoritywould be made aware o any private prosecution being brought seeking to rely on evidence oproceedings in Parliament, and would be able to reuse or grant consent. Additionally, the DPPwould be able to exercise the existing power to take over private prosecutions and continue orhalt them, all o which mitigates the risk o vexatious private prosecutions, while allowing thoseproperly brought to continue. A similar situation pertains in Northern Ireland, where privateprosecutions are not common. In Scotland private prosecutions are very rare and require an

application to the High Cour t: there were only two in the whole o the twentieth century.

146. For a number o the oences in which proceedings in Parliament may be relevant, including casesbrought under the Bribery Act 2010, the DPP or DPP (NI) is in any case required to give personalconsent to any prosecution being brought. No change is proposed to this, so the requirement toobtain this consent or bribery and other specied oences would remain.

147. It should be noted that gaining consent or the use o evidence o proceedings in Parliamentwould be novel. Consent is usually, but not exclusively, given due to the type o oence committed(e.g. consent is required to prosecute or bribery oences). The requirement to gain consent to

the use o evidence would apply to proceedings or any criminal oence that is not on the list oexceptions where it is desired by the prosecution to rely on proceedings in Parliament as evidence.

148. To avoid devising a wholly new mechanism, the Government also considered an alternative optionwhereby a judge, possibly in the High Court, would be required to give consent to the use oevidence o proceedings in Parliament. The shortcomings o this approach are primarily that a courtwould be involved in deciding whether the courts should be questioning proceedings in Parliament.For this reason this route has not been pursued.

Deence use o material

149. The Joint Committee did not consider whether a saeguard was necessary beore use oproceedings in Parliament as evidence by the deence in a criminal prosecution. This may refecta lesser concern about any potential chilling eect arising rom deence use o proceedings inParliament; the chilling eect o allowing deence use would be expected to be minimal, as it wouldbe unlikely to directly lead to criminal liability or any individual not already under prosecution. Thedrat clauses do not thereore provide any requirement or the deence to obtain consent to useo proceedings in Parliament as evidence. The rules o evidence, determining that only relevant andreliable evidence is admissible, would o course continue to operate as normal.

150. Subsection (3)(b) o clause 1 would provide that, where the deence chose to introduceproceedings in Parliament as evidence, the prosecution would then be allowed to use proceedings

in Parliament without recourse to the relevant prosecuting authority.


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Q12: Do you believe that, i the protection o privilege were disapplied in certain circumstances, asaeguard would be desirable beore proceedings in Parliament could be used in evidence by theprosecution in specifc cases?

Q13: I so, do you support the approach in the drat clauses?

Retrospection

151. The drat clauses published here would only take eect with regard to criminal proceedings oroences committed ater any legislation came into orce, and would not be applied retrospectively.

152. This would be to ensure that a person could not be prosecuted, or example, or saying somethingbeore a select committee that would suggest that a criminal oence had been committed bythat person, when at the time the witness could have legitimately assumed that the protection o

privilege would apply to any evidence given.

153. Clause 1 subsection (4) would also provide that i, on the day that an oence is alleged to havebeen committed, or on the last day i it is alleged to have been committed on more than one day,an oence is on the list o exceptions, then it would be treated as being on the list o exceptionsregardless o whether it is subsequently removed, and so thereore proceedings in Parliamentcannot be questioned in court. This would apply equally to an oence which is subsequently added the continued protection o privilege would only apply i the oence was listed at the time it wasalleged to have been committed.

Disapplication o parliamentary privilege with regard to non-members154. It is possible that some oences (e.g., blackmail, acting upon a bribe, or talking up share prices)

could be committed in proceedings by non-members, most notably witnesses to select committees(although non-members can otherwise participate in proceedings).

155. Other oences could be committed where the oence did not take place in the proceedingsthemselves, but where the consideration by the court o proceedings in Parliament would beessential to the eective prosecution o the case. This could be the case in, or example, anallegation o bribery against the person alleged to have given the bribe. This might be eitherbecause the prosecution needs to rely on the evidence, or because without recourse to suchevidence the deendant might successully claim that he or she could not have a air trial.

156. For these reasons, there is a case or the protection o privilege being disapplied or non-memberson the same basis as or Members.

157. However, disapplying parliamentary privilege or non-members highlights particular diculties.Foremost among these is the potential chilling eect or witnesses giving evidence to selectcommittees. This approach would end the current situation where a witness can give evidenceknowing that the evidence cannot be questioned by the courts (unless the evidence is given underoath, which is very rare). It would also increase the risk (inherent in the proposals more generally)that evidence given to a select committee might be the subject o subsequent cross-examination in

court, even i the witnesses were not themselves the subject o prosecution.


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158. The Government is interested in any views as to whether this approach would in practice have asignicant eect on the nature and tone o select committee proceedings. It would likely mean thatwitnesses would be more careul about the evidence they gave to a select committee, and more

likely to claim a right to legal advice in giving evidence, possibly even reusing to answer a question.This may especially be the case in high-prole select committee hearings dealing with matterswhere criminality may be an issue. The issue o select committee powers is addressed elsewhere inthe Green Paper.

Sel-incrimination

159. I it were possible or proceedings in Parliament to be admissible as evidence in criminal proceedings,this would raise the potential or sel-incrimination, most notably or the statements o witnessesexamined in select committees. The right to a air trial52 includes the right to remain silent and not tocontribute to incriminating himsel.53 In protecting against sel-incrimination, the nature and degree o

compulsion used to obtain the evidence, the existence o saeguards and ultimate use o evidence areall relevant. Sta o committees would need to make witnesses to committees aware o the possibilityo sel-incrimination and the committee would need to be aware o this in their questioning.

160. The Joint Committee on Parliamentary Privilege set out a list o contempts o Parliament in theirreport, which included without reasonable excuse, reusing to answer a question or provideinormation or produce papers ormally required by the House or a committee.54 While it wouldbe up to the House to determine what constitutes a reasonable excuse, the risk o sel-incriminationmight be considered to be one, limiting the degree o compulsion required. In addition, the saeguardo requiring the consent o the relevant prosecuting authority or the prosecution use o evidenceo proceedings in Parliament would protect against the use o proceedings in Parliament as evidence

where the public interest was not in avour o prosecution (this could include where the evidencewas considered sel-incriminatory). These actors would diminish the r isk o sel-incrimination.

Limited disapplication

161. An alternative option would be or a more limited disapplication o the protection o privilege onlyor when a non-member is being tried on the same acts as an MP or peer, along the lines o theproposal put orward in clause 15 o the drat Bribery Bill 2009.

162. Clause 15 provided that the protection o privilege should be disapplied in a limited manner ornon-members, so as to capture a non-member being prosecuted on the same acts as an MP or

peer, but not a general disapplication or non-members. These provisions were not included inthe Bribery Act 2010 (although the reasons or this were connected to general concerns aboutprivilege, rather than the specic proposals about the treatment o non-members alone).

Q14: Do you believe the protection o privilege should in certain circumstances be disapplied ornon-members as well as or Members?

Q15: I so, do you believe this should be:

a) in all the same situations as or Members; or

b) only when a non-member is being tried on the same acts as a Member?

52 Article 6 o the European Convention on Human Rights.53

Funke v France (1993) 16 EHRR 297; Saunders v UK(1996) 23 EHRR 31354Joint Committee on Parliamentary Privilege, Parliamentary Privilege, para 264


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Drat clauses

Evidence relating to proceedings in Parliament

1 Admissibility of evidence relating to proceedings in Parliament

(1) No enactment or rule of law preventing the freedom of speech and debates or

proceedings in Parliament being impeached or questioned in any court orplace out of Parliament is to prevent any evidence being admissible inproceedings for an offence.

(2) Subsection (1) does not apply to proceedings for an offence that is specified inthe Schedule to this Act.

(3) Subsection (1) does not apply to evidence sought to be led by the prosecutionin proceedings in England and Wales or in Northern Ireland unless

(a) consent to the leading of that evidence by the prosecution has beengiven in accordance with section 3, or

(b) evidence has already been led by the defence that would not have beenadmissible apart from this section.

(4) The reference in subsection (2) to an offence being specified in the Schedule tothis Act is to its being specified in the Schedule as it has effect

(a) on the day the offence is alleged to have been committed, or

(b) where the offence is alleged to have been committed over a period oftwo or more days, or at some time during a period of two or more days,on the last of those days.

2 Power to amend Schedule

(1) The Minister may by order made by statutory instrument amend the Scheduleto this Act.

(2) That power may only be exercised if it appears to the Minister appropriate todo so as a result of a change in the criminal law made after this Act is passed.

(3) An order under this section must not be made unless a draft of the statutoryinstrument containing it has been laid before, and approved by a resolution of,each House of Parliament.

(4) An order under this section may make transitional, transitory or savingprovision.

(5) In this section the Minister means the Lord President of the Council or theSecretary of State.

3 Consent to use by prosecution of evidence of proceedings in Parliament

(1) The function of giving consent for the purposes of section 1(3)(a) is to beexercised by the relevant prosecuting authority.


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(2) The relevant prosecuting authority means

(a) in relation to proceedings in England and Wales(i) the Director of Public Prosecutions,(ii) the Director of the Serious Fraud Office, or

(iii) the Director of Revenue and Customs Prosecutions;(b) in relation to proceedings in Northern Ireland

(i) the Director of Public Prosecutions for Northern Ireland, or(ii) the Director of the Serious Fraud Office.

(3) In deciding whether to give consent the relevant prosecuting authority musthave regard to

(a) the circumstances of the case, including the seriousness of the allegedoffence, and

(b) the need to protect the freedom of speech in Parliament.

(4) Consent must be(a) in writing, and(b) given personally by the relevant prosecuting authority.

(5) Subsection (4)(b) does not apply to consent given in relation to proceedings inEngland and Wales if

(a) the relevant prosecuting authority is unavailable, and(b) the consent is given personally by a designated person.

(6) A designated person means a person who is designated in writing by therelevant prosecuting authority acting personally as authorised to give consentfor the purposes of section 1(3)(a) when the relevant prosecuting authority isunavailable.

(7) Subsection (4)(b) does not apply to consent given in relation to proceedings inNorthern Ireland if

(a) apart from that provision, the consent could be given by the DeputyDirector by virtue of section 30(4) or (7) of the Justice (Northern Ireland)Act 2002 (exercise of functions of Director by Deputy Director), and

(b) the consent is given personally by the Deputy Director.

(8) The Deputy Director means the Deputy Director of Public Prosecutions forNorthern Ireland.


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Schedule Offences to which section 1 does not apply

S C H E D U L E Section 1

OFFENCESTOWHICHSECTION 1 DOESNOTAPPLY

Common law offences

Contempt of court under the strict liability rule (within the meaning of theContempt of Court Act 1981: see section 1 of that Act).

Misconduct in public office.

Statutory offences

An offence under section 4 of the Offences Against the Person Act 1861(conspiring or soliciting to commit murder).

An offence under any of the following sections of the Incitement toDisaffection Act 1934

(a) section 1 (endeavouring to seduce member of forces from duty orallegiance);

(b) section 2 (having possession or control of document in connectionwith an offence under section 1).

An offence under section 2 of the Obscene Publications Act 1959 (prohibitionof publication of obscene matter).

An offence under section 42 of the Police (Scotland) Act 1967 (causingdisaffection in police force etc).

An offence under section 1 of the Indecent Displays (Control) Act 1981(indecent displays).

An offence under section 51 of the Civic Government (Scotland) Act 1982(obscene material).

An offence under any of the following sections of the Public Order Act1986

(a) section 4A (intentional harassment, alarm or distress);(b) section 5 (harassment, alarm or distress);(c) section 18 (use of words or behaviour or display of written material);(d) section 19 (publishing or distributing written material);(e) section 29B (use of words or behaviour or display of written

material);(f) section 29C (publishing or distributing written material);(g) section 29E (distributing,

parliamentary privilege uk 2012 april

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