Central government and accountability - Parliamentary privil...

Learning Outcomes

This article explains parliamentary privilege in the UK, including:

• Legal basis and main features, including freedom of speech in Parliament, exclusive cognisance, and immunity from legal action
• Scope and limits of these privileges and their role in central government accountability
• Interaction with the rule of law and modern challenges
• Distinction between absolute and qualified privilege, and what counts as “proceedings in Parliament”
• Effects of privilege on defamation claims, injunctions, and contempt of court
• Leading authorities, including Stockdale v Hansard, Pepper v Hart, Pickin v British Railways Board, R (HS2 Action Alliance) v Secretary of State for Transport, and R v Chaytor
• The sub judice rule and permissible use of parliamentary material in court
• Parliament’s mechanisms for enforcing standards and addressing contempt

SQE1 Syllabus

For SQE1, you are required to understand the concept and operation of parliamentary privilege as it relates to central government and accountability, with a focus on the following syllabus points:

• the legal basis and main principles of parliamentary privilege in the UK
• the scope and limits of freedom of speech in Parliament
• the principle of exclusive cognisance (Parliament’s control over its own proceedings)
• the relationship between parliamentary privilege, the courts, and the rule of law
• how parliamentary privilege supports or limits accountability of central government
• publication of parliamentary proceedings (Parliamentary Papers Act 1840) and qualified privilege for fair and accurate reporting
• use of Hansard to interpret legislation (Pepper v Hart) and judicial treatment of “proceedings in Parliament”
• enforcement of breaches of privilege and standards (contempt, sanctions, Recall of MPs Act 2015)
• the sub judice rule and its role in maintaining comity with the courts.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the legal source of parliamentary privilege in the UK?
2. Which principle protects Members of Parliament from being sued for statements made during debates?
3. Can parliamentary privilege be used to shield MPs from criminal prosecution for actions unrelated to parliamentary proceedings?
4. What does exclusive cognisance mean in the context of parliamentary privilege?
5. How does parliamentary privilege interact with the rule of law and accountability?

Introduction

Parliamentary privilege is a set of legal immunities and powers that protect Parliament and its members from outside interference, enabling them to perform their legislative functions independently. These privileges are essential for the effective operation of central government and for holding the executive to account. However, they also raise important questions about the balance between legislative autonomy and the rule of law. The courts recognise privilege and respect the separation of powers by avoiding scrutiny of core proceedings, while retaining a limited role in defining the scope of privilege and determining whether particular activities fall within “proceedings in Parliament”.

Key Term: parliamentary privilege
Parliamentary privilege refers to the special legal rights and immunities enjoyed by Parliament and its members, protecting their independence in carrying out parliamentary functions.

The Legal Basis of Parliamentary Privilege

Parliamentary privilege in the UK is primarily derived from Article 9 of the Bill of Rights 1689, which 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."

This provision ensures that Parliament can debate and legislate without fear of legal consequences or interference from the courts or the executive.

Article 9 is statutory and has been treated by the courts as a constitutional pillar. In R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, the Supreme Court reiterated the fundamental status of parliamentary processes protected by the Bill of Rights and indicated that the protections cannot be displaced by implication. The courts determine the boundaries of privilege, but they do not “question” what is said or done in proceedings.

Key Term: proceedings in Parliament
The formal business of Parliament, including debates, questions, motions, votes, committee evidence and reports, and closely connected preparatory or follow‑up steps that are necessary to those proceedings.

Key Term: freedom of speech (Parliament)
The right of MPs and peers to speak freely in parliamentary proceedings without fear of legal action or outside interference.

Main Principles of Parliamentary Privilege

Freedom of Speech

The core of parliamentary privilege is the protection of freedom of speech within parliamentary proceedings. Members of Parliament (MPs) and peers can speak, debate, and vote without risk of being sued or prosecuted for what they say or do in Parliament.

This protection covers debates, questions, committee work, and other official proceedings. It does not extend to statements made outside Parliament, such as in the media or at public events. In Church of Scientology v Johnson‑Smith [1972] 1 All ER 37, the court confirmed that statements in the House are absolutely privileged and cannot be used to prove malice in defamation litigation. Conversely, in Buchanan v Jennings [2005] 1 AC 115, repetition of allegations outside Parliament was not protected.

Key Term: absolute privilege
A complete defence that protects statements made in proceedings in Parliament from liability (e.g., defamation, contempt), even if false or malicious.

Absolute privilege attaches to proceedings and extends to select committee work and official parliamentary publications. The protection can cover closely connected steps where necessary to the work of a committee. In Makudi v Baron Triesman of Tottenham [2014] EWCA Civ 179, repeating allegations to a Football Association inquiry at the committee’s request was within the protective scope because of the close and necessary connection to the committee’s investigation.

Where communications do not amount to proceedings but are made in the public interest, qualified privilege in defamation may be available. For example, forwarding constituent complaints to appropriate authorities has been held to attract qualified privilege: Beech v Freeson [1972] 1 QB 14; R v Rule [1937] 2 KB 375.

Key Term: qualified privilege
A defence in defamation that protects fair and honest communications made pursuant to a duty or in the public interest, unless the claimant proves malice.

Exclusive Cognisance

Parliament has the exclusive right to regulate its own internal affairs, free from judicial intervention. This is known as exclusive cognisance.

Key Term: exclusive cognisance
The principle that Parliament alone determines its own procedures, discipline, and internal matters, without interference from the courts or executive.

This means that only Parliament can decide on issues such as the conduct of its members, the validity of its proceedings, and the discipline of MPs and peers. The courts apply the “enrolled bill rule” and will not examine how legislation was passed: Pickin v British Railways Board [1974] AC 765. They also avoid adjudicating on internal management decisions (Bradlaugh v Gossett (1884) 12 QBD 271). However, the courts may decide whether a claim falls within privilege and may interpret statutes that bear on parliamentary procedure (for example, the Parliament Acts in R (Jackson) v Attorney General [2005] UKHL 56).

Immunity from Legal Action

Parliamentary privilege provides immunity from civil or criminal proceedings for actions and statements made in the course of parliamentary business.

Key Term: immunity from legal action (Parliament)
The protection that prevents MPs and peers from being sued or prosecuted for actions or statements made in the course of parliamentary proceedings.

This immunity is not absolute. It applies only to activities that are part of "proceedings in Parliament." It does not protect members from prosecution for criminal acts unrelated to their parliamentary duties. In R v Chaytor [2010] UKSC 52, the Supreme Court held that claims and payments of MPs’ allowances were administrative matters, not proceedings, so privilege did not prevent prosecution for fraud.

Scope and Limits of Parliamentary Privilege

What Is Covered?

Parliamentary privilege covers:

• speeches, debates, questions, motions, and votes in Parliament
• committee evidence, deliberations, and reports
• official parliamentary publications (e.g., Hansard, committee papers) and closely connected necessary steps

It does not cover:

• statements made outside Parliament (e.g., to the press, social media, public meetings), even if they repeat what was said inside
• communications that lack a necessary connection to proceedings (e.g., general correspondence with ministers: the House determined in 1958 in the Strauss matter that forwarding a constituent’s letter to a minister was not a proceeding)
• administrative decisions by parliamentary officials (unless directly connected to proceedings)
• criminal acts unrelated to parliamentary business, even if committed within the precincts

Parliament has long ensured legal protection for official publication of its proceedings. Following Stockdale v Hansard (1839) 9 Ad & El 1, Parliament enacted the Parliamentary Papers Act 1840 to confer absolute privilege on official papers published by authority of either House. Fair and accurate media reports of parliamentary proceedings benefit from qualified privilege at common law and under statute (Defamation Act 1996, Sch 1), so long as reporting is fair and accurate and avoids gratuitous commentary: Wason v Walter (1868) LR 4 QB 73; Curistan v Times Newspapers [2007] EWHC 926.

Key Term: sub judice rule
A self‑imposed parliamentary rule that restricts reference to active court cases in debates to avoid prejudicing proceedings and to respect the separation of powers.

Relationship with the Courts

Courts cannot question or investigate what is said or done in Parliament. This is known as the "non-interference" rule flowing from Article 9. However, courts may interpret the scope of privilege and decide whether a particular activity falls within "proceedings in Parliament." Parliamentary records may be consulted for limited purposes. In Pepper v Hart [1993] AC 593, the House of Lords allowed reference to statements in Hansard to resolve an ambiguity, obscurity or absurdity in a statute, provided the ministerial statement is clear and directed to the point. Courts will not examine proceedings to test their adequacy or propriety (R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3) and will exclude parliamentary material as evidence where its use would “question” proceedings (e.g., malice in a libel claim).

Limits and Accountability

Parliamentary privilege is not a shield for criminal conduct. In R v Chaytor, the Supreme Court held that MPs could not use privilege to avoid prosecution for expenses fraud, as such actions were not part of parliamentary proceedings.

Parliament has its own disciplinary mechanisms, such as the Parliamentary Commissioner for Standards and the Committee on Standards, to investigate and sanction misconduct by members. Sanctions include admonishment, suspension without pay, and expulsion, each requiring House approval. The Recall of MPs Act 2015 adds a constituency‑triggered mechanism: a recall petition may be opened if an MP is suspended for at least 10 sitting days, convicted and sentenced to imprisonment, or convicted of an offence relating to expenses. Privilege does not prevent the application of criminal law to conduct in the precincts where offences are charged outside Article 9’s protection.

Parliament can treat interference with its work as contempt (e.g., obstructing members or witnesses, premature disclosure of private committee deliberations, or attempts to intimidate MPs because of their parliamentary activity). While the Houses have powers to address contempts, they do not impose fines, and detention powers have fallen into disuse. Sanctions on non‑members typically take the form of reprimand or withdrawal of access to parliamentary facilities.

Standards and Publication

Parliament maintains the Register of Members’ Interests and enforces lobbying and conflicts rules through codes of conduct. The Parliamentary Commissioner for Standards investigates alleged breaches; serious matters are referred to the Committee on Standards. The Independent Parliamentary Standards Authority (IPSA), established by the Parliamentary Standards Act 2009, regulates MPs’ pay and expenses and enforces compliance; privilege does not bar prosecution for fraud relating to expenses.

Parliamentary Privilege and Central Government Accountability

Parliamentary privilege is essential for effective scrutiny of central government. It allows MPs and peers to:

• question ministers robustly
• debate government policy without fear of legal reprisals
• investigate executive actions through select committees

This independence supports the separation of powers and ensures that the executive can be held to account by the legislature. Select committees have power to send for persons, papers and records and to report to the House. Ministers are expected to ensure civil servants assist committees, and while the House may admonish recalcitrant witnesses for contempt, it does not ordinarily compel attendance by criminal sanction.

Privilege enables candid interrogation of policy and performance. At the same time, Parliament proceeds with respect for judicial processes. The sub judice rule tempers debate in live cases, recognising that the courts, not Parliament, decide legal disputes. Courts in turn recognise parliamentary privilege and avoid any criticism of what is said or decided in proceedings, maintaining comity between institutions.

However, privilege must be balanced with the need for transparency and accountability. Parliament has developed internal mechanisms, such as codes of conduct and independent standards bodies, to maintain ethical standards and address misconduct. Privilege does not prevent scrutiny by oversight bodies created by statute, nor does it insulate administrative arrangements (such as expenses) from criminal law.

Contemporary Issues and Challenges

Digital Communication and Media

The rise of digital communication and social media has created new challenges for parliamentary privilege. Information can be shared instantly, blurring the line between parliamentary and non‑parliamentary statements. MPs must be cautious not to assume that privilege applies to all communications. Tweets, blogs, interviews and constituency newsletters lie outside proceedings and are not protected by absolute privilege. Repetition of statements made in the House is particularly risky: once outside, the protection is lost unless a qualified privilege defence applies and malice cannot be proved.

Publication of proceedings is robustly protected when made under parliamentary authority (Hansard and official papers). Media reports benefit from qualified privilege if fair and accurate, as recognised by statute and common law. Editors should avoid gratuitous commentary and ensure reports reflect proceedings, not private deliberations.

Public Interest and the Rule of Law

There is ongoing debate about whether parliamentary privilege should ever be set aside in the public interest, especially in cases of alleged corruption or serious wrongdoing. The courts have consistently held that privilege is a matter for Parliament, not the judiciary, but public expectations of accountability continue to develop. MPs have occasionally named individuals protected by court injunctions during debates, relying on absolute privilege. While such speech is protected, the Joint Committee on Parliamentary Privilege has urged restraint: members should weigh the public interest carefully and respect privacy and due process where possible. The overarching principle remains that Article 9 protects proceedings, but misuse of privilege may attract political sanction or reputational consequences.

Interactions with Statutory Interpretation

Judicial reference to Hansard under Pepper v Hart is exceptional and limited to resolving genuine ambiguity, obscurity or absurdity. Courts must avoid “questioning” proceedings and should not roam through debates to evaluate merits or motivations. This careful boundary preserves privilege while ensuring statutes can be applied consistent with parliamentary intention.

Worked Example 1.1

A journalist wants to sue an MP for defamation based on statements the MP made during a parliamentary debate. Can the journalist bring a claim?

Answer:
No. Statements made in the course of parliamentary proceedings are absolutely protected by parliamentary privilege. The journalist cannot sue the MP for defamation for anything said in Parliament.

Worked Example 1.2

An MP is accused of submitting false expense claims. Can the MP claim parliamentary privilege to avoid criminal prosecution?

Answer:
No. Parliamentary privilege does not protect MPs from prosecution for criminal acts that are not part of parliamentary proceedings. Submitting false expense claims is not covered by privilege.

Worked Example 1.3

A newspaper publishes a selective summary of a Commons debate that criticises a company. The report is broadly accurate but omits minor points. The company sues for libel. Is the newspaper protected?

Answer:
Likely yes, if the report is fair and accurate overall. Fair and accurate reports of parliamentary proceedings attract qualified privilege (including under the Defamation Act 1996, Sch 1). The report should avoid gratuitous commentary and reflect what occurred.

Worked Example 1.4

During a TV interview, an MP repeats an allegation made in the House the previous day. The claimant sues. Does privilege apply?

Answer:
No. Repetition outside Parliament is not protected by absolute privilege (Buchanan v Jennings). The MP must rely, if possible, on qualified privilege, which fails if malice is proved.

Worked Example 1.5

In a statutory appeal, the court finds the relevant provision ambiguous. Counsel invites the judge to consider a minister’s statement in Hansard explaining the provision’s intended scope. Is this permissible?

Answer:
Yes, in limited circumstances. Under Pepper v Hart, courts may refer to clear ministerial statements in Hansard to resolve ambiguity, obscurity or absurdity. The use must aid interpretation without “questioning” proceedings.

Worked Example 1.6

A witness refuses to attend a select committee when summoned. Can the committee compel attendance and impose penalties?

Answer:
The House can treat the refusal as a contempt and may admonish the witness or withdraw parliamentary access, but it does not impose fines; criminal sanctions are not routinely available. The committee reports to the House, which decides the response.

Exam Warning

Parliamentary privilege does not protect members from legal action for activities outside the scope of parliamentary proceedings. Do not assume that all actions by MPs are immune from court scrutiny.

Revision Tip

When answering SQE1 questions, always identify whether the activity in question is part of "proceedings in Parliament." Privilege applies only to official parliamentary business.

Key Point Checklist

This article has covered the following key knowledge points:

• Parliamentary privilege is based on Article 9 of the Bill of Rights 1689.
• The main principles are freedom of speech in Parliament, exclusive cognisance, and immunity from legal action for parliamentary proceedings.
• Absolute privilege protects statements in proceedings; qualified privilege may protect fair and honest communications in the public interest outside proceedings.
• Privilege covers only official parliamentary business, not statements or actions outside Parliament (e.g., media interviews or social media posts).
• Official publications attract absolute privilege under the Parliamentary Papers Act 1840; fair and accurate reports by the media attract qualified privilege.
• Courts cannot question or investigate parliamentary proceedings, but may interpret the scope of privilege and consult Hansard in limited cases (Pepper v Hart).
• Privilege does not shield MPs from prosecution for criminal acts unrelated to their parliamentary duties (R v Chaytor).
• Exclusive cognisance secures Parliament’s control over its own procedures and discipline; courts apply the enrolled bill rule and avoid internal management disputes.
• Parliamentary privilege supports central government accountability by enabling robust scrutiny of the executive through debates and committees, tempered by the sub judice rule.
• Parliament has internal mechanisms to address misconduct and maintain ethical standards, including the Parliamentary Commissioner for Standards, Committee on Standards, IPSA, and recall procedures.

Key Terms and Concepts

• parliamentary privilege
• freedom of speech (Parliament)
• exclusive cognisance
• immunity from legal action (Parliament)
• absolute privilege
• qualified privilege
• proceedings in Parliament
• sub judice rule