I want to use this opportunity to draw the attention of the House to the report by the House of Lords and House of Commons Joint Committee on Parliamentary Privilege, which was produced only a month or two ago. I believe that it sets down the terms on which we should consider parliamentary privilege, its importance and its relevance. In particular, chapter 2, on general principles, draws attention to privilege’s continuing relevance and value and notes that parliamentary
“proceedings must be immune from interference by the executive, the courts or anyone else who may wish to impede or influence those proceedings in pursuit of their own ends.”
The principle of parliamentary privilege rests on the concept of exclusive cognisance. That is referred to at the beginning of schedule 1, which quotes an extract from the 1689 Bill of Rights and refers to any matter that
“otherwise affects the scope of the exclusive cognisance of Parliament.”
The term “cognisance” might seem rather archaic, but it encapsulates what privilege is about. That is, as our report states:
“Parliament enjoys sole jurisdiction—normally described by the archaic term ‘exclusive cognisance’—over all matters subject to parliamentary privilege.”
That concept underpins parliamentary privilege. As we explain:
“Thus Article 9 of the Bill of Rights, the most important statutory expression of parliamentary privilege, states 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’.”
We go on to explain that the most important part of that is that
“both Members and non-Members… are not legally liable for things said or done in the course”
of our parliamentary proceedings,
“nor are those outside who are adversely affected by things said or done in Parliament able to seek redress through the courts.”
That causes a lot of concern in some people’s mind because it is, in fact, an exception to the rule of law, which seems to be a fundamental principle of our democracy. But as one of our witnesses, Adam Tucker, a lecturer in law, told us:
“The rule of law is not, however, an absolute principle. Its claims must be balanced against the competing claims of other principles. One of those competing principles is the separation of powers”.
It is even accepted by the European Court of Human Rights that the immunity of parliamentary proceedings is an important fundamental constitutional principle. Its only limitation is a doctrine that has been developed by the courts, known as the doctrine of necessity. That is the test that the courts apply. If Parliament claims privilege, the courts will apply the doctrine—is it necessary to allow Parliament this protection in order that it should be able to carry on its proceedings?
We are engaged in the possibility, in this Bill, of legislating on parliamentary privilege, and this is the most important part of our report in respect of this part of the Bill. As we learned in the Chaytor case, the extent of parliamentary privilege is ultimately a matter for the court, but the courts, as we say in our report, can only interpret and apply the law; Parliament alone can make the law. And as the Lord Chief Justice of England and Wales, Lord Judge, in oral evidence, said to us,
“ultimately it is Parliament that is sovereign”.
That was demonstrated in the Stockdale v. Hansard case, when Hansard was sued for reporting Parliament and we had to pass the Parliamentary Papers Act 1840, which afforded the immunity of Parliament to the proceedings as reported in Hansard so that is on a statutory basis.
It is always a choice for Parliament whether to legislate in order to express what we hold should be immune from the courts, but there are significant disadvantages in legislating. First, parliamentary privilege has to evolve as Parliament evolves and as the law evolves. If we were to try and define what parliamentary privilege is in
detail—well, all the advice that our Committee had was not to try and do so. Indeed, were we to try and do so in statute, we would be tempting the courts into limiting parliamentary privilege, perhaps far further than we intended.