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Is Parliament too Privileged?

Is Parliament too Privileged?

Parliamentary privilege is a legal immunity against things done or said in pursuance of fulfilling one’s duties as a Member of Parliament (MP), and it is a controversial issue – its controversial status assured because of its potential for abuse. Those who find themselves on the ‘wrong’ end of an MP exercising their parliamentary privilege have little recourse against such exercises. It is down to MPs to determine whether or not another MP must be reprimanded, unless their conduct is determined to not fall within the jurisdiction of Parliament. It originates from the Bill of Rights 1689:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament…

This position was reinforced by Lord Coleridge CJ in Bradlaugh v Gossett (1884) 12 QBD 271 when he said (at p. 275):

What is said or done within the walls of Parliament cannot be inquired into in a court of law… The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.

Lord Browne-Wilkinson added his distinguished commentary to the subject in Pepper v Hart [1993] AC 593:

Article 9 is a provision of the highest constitutional importance… It ensures the ability of democratically elected Members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech)…

Cockburn CJ referred to the immunity an MP receives because of parliamentary privilege in Ex p Wason (1869) LR 4 QB 573:

It is clear that statements made by members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person.

The Joint Committee on Parliamentary Privilege Report of 1999 HC214-1 gave detailed consideration to article 9. It commented:

Freedom of speech is central to Parliament’s role. Members must be able to speak and criticise without fear of penalty. This is fundamental to the effective working of Parliament, and is achieved by the primary parliamentary privilege: the absolute protection of ‘proceedings in Parliament’ guaranteed by article 9 of the Bill of Rights 1689. Members are not exposed to any civil or criminal liabilities in respect of what they say or do in the course of proceedings in Parliament.

The same day in which Justice Eady upheld the injunction preventing the identification of Ryan Giggs as CTB in CTB v News Group Newspapers [2011] EWHC 1232 QB Liberal Democrat John Hemming MP frustrated the injunction and named Ryan Giggs as CTB in the House of Commons. This is not the first time however that John Hemming MP has frustrated an injunction and relied on parliamentary privilege as he did when naming Fred Goodwin as the applicant of an injunction.

In a secret hearing, Fred Goodwin has obtained a super-injunction, preventing him being identified, [even] as a banker. Will the Government have a debate or a statement on freedom of speech and whether there’s one rule for the rich like Fred Goodwin and one rule for the poor?

Private individuals who revealed the same information would likely find themselves hauled before the courts for Contempt of Court as well as facing private legal action by the parties themselves for revealing their identity. However because the words were an MP’s in the House of Commons they are not subject to scrutiny by the courts. They may fall under the scrutiny of the House of Commons under V. 15 of the House of Commons Code of Conduct:

Members shall at all times conduct themselves in a manner which will tend to maintain and strengthen the public’s trust and confidence in the integrity of Parliament and never undertake any action which would bring the House of Commons, or its Members generally, into disrepute.

No such action by the House of Commons has been announced at this moment in time. It may have been decided unpolitic to address John Hemming MP’s comments however it highlights a further danger of Parliamentary Privilege. If it were the case that Parliamentary Privilege was being relied upon responsibly by raising important matters in the public interest such as when in 2009 Paul Farrelly, a Labour MP, disclosed the existence of a super-injunction obtained by the oil firm Trafigura, which banned reporting of toxic waste dumping in the Ivory Coast then one would not have pause to consider whether or not the scope of parliamentary privilege is too wide. In the previous example Paul Farrelly’s intention was to raise the situation of Trafigura dumping toxic waste in the Ivory Coast. It would not have been possible to discuss that particular issue without frustrating the injunction therefore frustrating the injunction was necessary to discuss the issue.

If one were optimistic about John Hemming’s intention by revealing the existence of Sir Fred Goodwin’s injunction or by revealing the identity of Ryan Giggs in CTB in CTB v News Group Newspapers it would be to highlight the use of injunctions. It wasn’t necessary to reveal the identity of either Sir Fred Goodwin or Ryan Giggs in order to have a debate over the use of injunctions and it wasn’t necessary to reveal either’s identity to have a debate over the freedom of speech. At its worst both acts were invasions into the privacy of both Sir Fred Goodwin and Ryan Giggs that were motivated by an MP’s desire to court press attention. The obvious answer to explain why the revelation was made would be to say that revealing their identities was in the public interest. However what is interesting to the public is not necessarily in the public interest (see HRH Prince of Wales v Associated Newspapers Ltd [2008] Ch. 57; McKennitt v Ash [2008] QB 73; In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593; Von Hannover v Germany (2004) 40 EHRR 1).

Prime Minister David Cameron speaking on ITV1’s Daybreak on 23 May 2011 said:

The danger is that judgments are effectively writing a new law which is what parliament is meant to do.

It is hard to conclude the Prime Minister foolish for all his education. His comment is a veiled jab at the Judiciary thrown in amongst other jabs on other issues such as voting rights for prisoner’s. He should, however, remember his history better as he failed to do in an interview with Sky News by suggesting that Britain was a junior partner to America in WWII in 1940. The Human Rights Act was given royal assent in 1998 and incorporated Article 8 – the right to privacy – and Article 10 – the right to freedom of speech – from the European Convention on Human Rights into British law. Developments in the law of privacy exist because it is the responsibility of the courts to interpret cases in light of Articles 8 and 10. If writing privacy law is a high priority to the incumbent Government then a Privacy Bill should be drafted and released rather jabbing at the judiciary for doing as they are sworn to do.

As part of John Hemming’s campaign to address the existence of injunctions, he made allegations that Doncaster Council sought to imprison Victoria Haigh for speaking in the Commons about the family courts. It has now come to light that Victoria Haigh, whom John Hemming sought to champion, manufactured child abuse allegations against a former partner which Sir Nicholas Wall has now refuted.

It isn’t the first time John Hemming MP has come before Sir Nicholas Wall. Sir Nicholas Wall said of John Hemming in RP v Nottingham City Council [2008] EWCA Civ 462:

I find it not only unacceptable but shocking, that a man in Mr Hemming’s position should feel able to make so serious an allegation without any evidence to support it. In my judgment, it is irresponsible and an abuse of his position. Unfortunately, as other aspects of this judgment will make clear, it is not the only part of the case in which Mr Hemming has been willing to scatter unfounded allegations of professional impropriety and malpractice without any evidence to support them.

Parliamentary privilege when used correctly and responsibly is not objectionable despite its controversial status. Parliamentary privilege when used incorrectly suggests to the electorate that the privilege is undeserved. If politicians require immunity to do work on behalf of the people then they should do their work in such a way that ensures the public have confidence in what they are doing. If politicians are going to do their work in such a way that gives the public cause for concern then perhaps parliamentary privilege should be reviewed and qualified so that it may only be relied upon when a parliamentarian relies upon it in a reasonable way. Perhaps John Hemming MPs words should be thrown back at him (paraphrased):

Will the Government have a debate or a statement on freedom of speech and whether there’s one rule for the rich like MPs and one rule for the poor?


Source: House of Commons Code of Conduct

 

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