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Stuart Lakin: Parliamentary Privilege, Parliamentary Sovereignty, and Constitutional Principle

stuart1While this was probably not its primary objective at the time, the Daily Telegraph scoop on MPs’ expenses  in 2008 has led to the reinvigoration of debates about Parliamentary privilege.    Since then, this area of law and Parliamentary practice has hardly left the news, both mainstream and legal.  We have had the Chaytor decision, the arrest of Damien Green MP, the flouting of super-injunctions by MPs, phone hacking as a possible contempt of Parliament, questions about whether certain forms of contempt of Parliament (e.g. refusing to give evidence to a Select Committee) should be enforceable by the courts, and so on.    The CLG held a brilliant seminar on this topic towards the end of last year.

The latest stage of this doctrinal resurgence is a Green Paper, Parliamentary privilege Cm 8318, published at the behest of the Government in April 2012 (all references in parenthesis below will be to this Paper unless otherwise indicated).    The overarching question in the Paper, in the words of David Cameron, is:

“whether the balance is right in all cases between the necessary protection afforded by privilege, and the important principle that MPs and peers should be subject wherever possible to ordinary criminal and civil laws”  (para 32, quoting a letter by the PM)

The Government broadly answers that question with a ‘yes’:

 “The Government believes that, notwithstanding the discrete areas discussed in this paper where there may be a case for legislative change, the boundaries of parliamentary privilege have for the most part been very clear, and its operation has not been sufficiently problematic to justify such a radical departure from the UK’s basic constitutional underpinning.”  (para 39)

Among some of the more interesting recommendations (or options) for legislative change  (or maintenance of the legislative status quo) are the following:

-  That codification of the law on privilege is not necessary (paras 37-39)

-  That the phrases ‘proceedings in Parliament’ and ‘place out of Parliament’ in Art IX of the Bill of Rights 1689 do not need to be clarified in legislation (para 59-61 and para 80-82)

-  That a general rule might be introduced disapplying privilege in cases of alleged criminality, subject to certain excepted offences “where the alleged criminal offence related closely to the principal reason for the protection of privilege” (see, generally chapter 3)

-  That a ‘safeguard’ should be introduced whereby the consent of the DPP (or equivalent) is needed before evidence of ‘proceedings in parliament’ can be used in a criminal prosecution (para 141)

-   That, given the Speaker’s discretion on the use of the House sub judice rules, there is no need for legislative change on civil liability (e.g. for defamation or breach of court injunctions) (para 167)

-  That, given the Chaytor decision, there is no need for legislation to clarify the exclusive cognisance of Parliament (para 206-217)

Discussion

In this post, I want to make three points about the issues covered in the Green Paper (and in debates about Parliamentary privilege more generally).     First, I want to say something about the nature of the privilege debate: the type of reasoning that can inform this issue.  I shall suggest that both the Green Paper and the decision in Chaytor correctly approach questions about the meaning and scope of Parliamentary privilege as a matter of constitutional principle.  Apologies to readers for banging the same old drum!

Secondly, I want to consider the relationship between the privilege debate and debates about Parliamentary sovereignty.    I shall argue that these two debates are coterminous:  they each involve competing arguments of constitutional principle about, for instance, the separation of powers, democracy, and the rule of law.     Both the powers of each House of Parliament to regulate its internal workings, and the powers of Parliament to legislate, will depend on the meaning that one ascribes to these principles.

Thirdly, I shall argue that constitutional principles of the sort just described, properly understood, recommend a narrow account of Parliamentary privilege and legislative power.    The undoubted democratic justification for these Parliamentary powers must always be sensitive, I shall say, to the demands of individual rights and the principle of equality before the law.    Judges must be left to strike the correct balance between these principles in each given case.   (For a compelling recent argument to this effect, see Sir Stephen Sedley’s recent LRB piece on privilege and superinjunctions).

I shall take these three points in turn.

A.   The Nature of the Privilege Debate

What is striking as one reads the Green paper is the normative character of its reasoning.  Each of the different issues for consideration are presented in terms of a range of competing principles.        We could begin with David Cameron’s words (above) which refer, in substance, to the balance between Parliamentary privilege and the principle of equality before the law.    Take the following additional examples:

Freedom of speech is necessary for “free and frank debate” and to “freely represent the views of [an MP’s] constituents”  (para 45).

 “[I]t is unsatisfactory that anyone should not know, in any given circumstance, whether the actions they are undertaking are covered by absolute privilege.” (para 51)

 “Though an individual’s right to approach their MP is an essential part of the democratic process, this has to be balanced against the rights of others, including potentially the right to a fair trial and the right to privacy. Extending qualified privilege to all forms of correspondence could…undermine the rule of law” (para 73)

 “It can be argued that it is wrong in principle to deny the courts access to any relevant evidence when the alleged act is serious enough to have been recognised as a criminal offence.” (para 94)

 “The draft clauses are therefore one way in which it might be possible to balance two competing requirements – ensuring that parliamentary privilege cannot be used to evade the reach of the courts where criminality is suspected, while protecting the right of free speech and debate in Parliament by minimising any chilling effect to free speech in parliamentary proceedings.” (para 101)

“the issues [in relation to super-injunctions]  are similar to a longstanding concern about anonymity injunctions and the balance between the legal and human rights of others and the ability of parliamentarians to make statements about them in proceedings under the protection of absolute privilege. (para 164)

Any lawyer could be forgiven for thinking that they were reading passages from a Lord Steyn judgment rather than a set of governmental proposals.    Expressed in this way, the debate about Parliamentary privilege is rightly cast as one of constitutional principle.     Where one stands on the correct balance between the principles mentioned above (and other relevant principles), will depend, in part, on one’s general theory of the correct distribution of powers between Parliament and courts.  Someone who believes that representative democracy is the paramount principle in the constitution will likely defend a robust account of Parliamentary privilege, one that elevates MPs’ freedom of speech and the exclusive cognisance of Parliament, over judicially enforceable individual rights.    Someone who, by contrast, believes that the rule of law and individual rights lie at the foundations of the constitution may advance a much weaker account of Parliamentary privilege.   He may think that democracy must sometimes give way to those principles – or that democracy entails the judicial protection of those principles.    I shall explain in the third section below why I am with those who favour the latter account.

The Chaytor decision sets the tone for the Green Paper.  Throughout its judgment, the Supreme Court places the concept of Parliamentary privilege in the context of the written and unwritten principles of the constitution.     The threshold question of kompetenz-kompetenz (i.e. who gets to decide on the limits of Parliamentary privilege) is a good early example.   That the courts have the power to decide on the scope of Parliamentary privilege is justified by the principle that the Houses of Parliament cannot be a judge in their own cause about the extent of their own jurisdiction (see paras 14-16 of Chaytor, applying the seminal case of Stockdale v Hansard).    Similarly, the key finding in Chaytor that privilege applies only to the ‘core or essential business of Parliament’ stems from the principles that justify the very purpose of the Bill of Rights 1689: the need for collective  deliberation and decision-making (para 62 of Chaytor).     I shall return to this reasoning about the Bill of Rights in the next section when I turn to the notion of Parliamentary sovereignty.

Two points occur about the privilege debate just described.    First, the type of reasoning in both the Green Paper and Chaytor is in stark contrast to more traditional debates on this topic.    One customarily finds dry, textual debates about the meaning of the phrases ‘proceedings in Parliament’ and ‘place out of Parliament’.     People compile and compare lists based on the ‘ordinary language’ meaning of those statutory phrases.   And when this exercise fails (as it inevitably does), they call for the creation of a new committee to draw up further lists.   The Green Paper and Chaytor decision are refreshing for their rejection of that unreflective approach.  As we have seen, they each focus instead on the constitutional principles that determine whether any given form of conduct should or should not be covered by Parliamentary privilege.   It is little surprise that the Government has counselled against codification of the law of privilege in the Green Paper.     Beyond relatively abstract statements of principle, constitutional law simply does not lend itself to this kind of formalism  (a point made very well by Forsyth and Elliott in relation to administrative law in their recent post).

Secondly, we should welcome the open-minded approach taken both by the Government and the Supreme Court towards constitutional doctrine in general.    Note the following phrase in the Ministerial Forward to the Green Paper:

 “[The Chaytor decision] served as a reminder that even the most durable of constitutional tenets should periodically be reviewed.”

A more elaborate way of putting this same point is as follows.   The correct understanding of the British constitution must depend on a constant reassessment of how the underlying principles of the constitution – democracy, individual rights, the rule of law, the separation of powers, and so on – impact on the practices of institutions, officials and individuals.

B.   Parliamentary Privilege and Parliamentary Sovereignty

The two points I have just made about the privilege debate bring me to my second argument in this post.   It is that debates about Parliamentary sovereignty (i.e. the legislative powers of Parliament) should be conducted in precisely the same way as debates about Parliamentary privilege.  Indeed, these two debates, I suggest, are coterminous:  they revolve around the same types of principles, and they generate identical accounts of the proper scope of Parliament’s powers (or each type) vis-a-vis courts.

Before I develop this argument, let me first contrast the privilege debate described in the last section with traditional Parliamentary sovereignty debates.    Where the debate about Parliamentary privilege in the Green Paper and Chaytor is principled and open-minded about the tenets of the constitution, the sovereignty debate in the UK is typically unprincipled and dogmatic (can you imagine a periodic review on the question of the whether or not Parliament is still sovereign?!)   Parliamentary sovereignty, it is often contended, is just a fact about law and the constitution; it requires no justification in its defence, and no argument of principle can dislodge it from its preeminent position.     This latter approach is, of course, the legacy of influential figures such as Dicey.   Dicey is often lauded as the Father of the constitution, but he is really the Father – or at least one important ancestor – of a morally sterile mode of constitutional argument, one that embraces empirical observation of what ‘actually happens’ in the constitution (as if everybody agrees on this!) over normative argument about why and how different facts about the constitution are morally significant.

This blog is not the place to delve too deeply into the case for one or other of these approaches (or some other approach) to constitutional analysis.  I have had a tentative go at this elsewhere.     For now, I shall take my lead from the Green Paper and the Chaytor decision, and explain how the principled arguments of the Government and Supreme Court about Parliamentary privilege can be applied equally to the issue of Parliamentary sovereignty.

Our starting point is John Locke, the Glorious Revolution of 1688, and the Bill of Rights 1689.    Locke’s arguments in his Second Treatise on Government are often thought to have precipitated the Glorious Revolution, or at least to have provided the ex post facto justification for it.    At the heart of Locke’s argument is a repudiation of the idea of absolute authority.     His immediate target was Monarchical power.   But his argument against absolute authority is wider than that. It is an argument against any form of absolute authority, and an argument in support of authority limited or defined by law.    Locke gives his own detailed account of the nature of those limits.    Parliament (or ‘the Commonwealth’), he said, must act in a way that honours peoples’ natural rights of liberty and quality, and the fundamental law of nature (the preservation of life).    But again, we should not lose sight of Locke’s bigger point.  It is this:  an authority only has the legal power to act in a way that accords with the principles or reasons that justify the existence of that authority (whatever those principles or reasons might be).

The Bill of Rights 1689, I suggest, is an attempt to enshrine the broad Lockean principle just stated.    Art IX tells us – to put it a plainly as possible – that Parliament has the legal right to do its particular job, and that, in so far as it is doing that job, no person or body has the legal power to interfere;  but Art IX also suggests that there may be a need for some other person or body to interfere if Parliament does things that are not part of its job.    This is precisely the way that the Supreme Court approached the Bill of Rights in Chaytor.   As noted above, Lord Phillips said, first, that Art IX should be given a “narrow ambit restricted to the important purpose for which it was enacted”  (para 62 of Chaytor); and secondly, that it must be the courts that decide what that purpose is, and whether or not Parliament has acted contrary to it.     Crucially, Lord Phillips’s point speaks as much to Parliamentary sovereignty as it does to Parliamentary privilege.    The idea that Parliament can do anything in its legislative capacity is equally inimical to the Lockean principle as the idea that Parliamentarians are protected by privilege for any type of conduct.    There is no principled basis, in my view, on which to treat these two sets of Parliamentary powers differently.      (It therefore makes no sense to suggest, as the Government occasionally does in the Green Paper (e.g. para 23), that Parliamentary privilege is justified by Parliamentary sovereignty.   This is entirely circular.)

Three points need to be made on the back of these conclusions.   First, a clarification.    I said above that the Bill of Rights 1689 enshrines the Lockean principle;  it does not create that principle.    In other words, even without the Bill of Rights, the powers of Parliament and courts would depend on the principles that justify the existence, role and functions of those institutions in the constitution.     The need for principled justification of the powers of Parliament and courts is fundamental to the constitution; it is not something that any Act of Parliament or judicial ruling can dispense with.

That first point leads to a second.   Given that Parliament’s powers arguably derive from the principle of democracy (properly understood), it is doubtful whether it even has the legislative power to control some of the issues canvassed in the Green Paper.   If, as I shall argue in the next section, the principle of democracy needs to be understood in the light of individual rights and the rule of law, then some individual rights (and corresponding civil or criminal law duties) may be among the principles that define Parliament’s powers (of each type).      In familiar public law parlance, certain proposals/recommendations in the Green Paper are arguably ultra vires the powers of Parliament.

That second point raises a third.  The conclusion that Parliament and courts must act in accordance with the principles that justify their existence, role and functions still leaves much work to do.    We need to advance arguments about which principles, understood in which way, have which effect in the constitution.    There is plenty of room for disagreement on these questions.  My point in this section is that these questions apply as much to the issue of Parliament’s legislative power as they do to the issue of Parliamentary privilege.

C. Parliamentary Power and the Role of Courts

And so we come to the crunch question.   What are Parliament’s powers (of each type) vis-a-vis courts in the British constitution?    Those who take an expansive view of the ‘core or essential business of Parliament’ rely, whether explicitly or implicitly, on a particular model of democracy, rights, the rule of law and the separation of powers.    Democracy, they suppose, means that elected representatives should be free to say or do whatever is necessary to promote the collective interest.    Individual rights and the principle of equality before the law must yield to that democratic imperative.   The role of courts, they say, is simply to implement Parliament’s will (or to acquiesce to the different forms of conduct of MPs): judges have no legitimate power to question any aspect of Parliament’s work.

These arguments, I think, misunderstand the principles of the constitution.   If democracy has any value at all, it must be that each member of a political community is treated as an equal in the way that political decisions are taken.  On this understanding, democracy entails that individuals enjoy certain political rights against Parliament, rights that protect them against discriminatory or arbitrary treatment (the right not to be defamed or subjected to hate speech may well be among such rights).     Closely allied to that conception of democracy is an egalitarian model of the rule of law.   The legal rights and duties that flow from Parliamentary enactments or judicial decisions must be applied rigorously and consistently to institutions, officials and individuals alike.    As Dicey himself said: noone is above the law.   And to return to Locke: “where law ends, tyranny begins”.

These understandings of democracy, rights and the rule of law recommend a narrow account of Parliamentary privilege and Parliamentary legislative power (or perhaps even the negation of the former).  Whether or not an individual MP, or Parliament as a legislature has the power act in a given way must depend on how that form of action impacts on individual rights.    Only exceptionally, if ever, can the interests of the many override these rights.    What concrete implications do these arguments of principle have for the questions raised in the Green Paper?     To take the central question of the Paper, I do not think that MPs should enjoy blanket protection against any form of criminal or civil liability.   Much is made in the Green Paper (and elsewhere) of the ‘chilling effect‘ on MPs of potential liability (para 100); but an MP’s licence to operate outside the law, I suggest, is a far more chilling prospect.     A judgment must be made in each case on whether MPs have acted lawfully or not.   For example, MPs should be free to debate hate speech, but not to engage in hate speech (see para 118-119).   The criminal law concept of mens rea should apply in Parliament as everywhere else.

What, then is the role of courts.   Should Parliament itself have the power to punish/prevent the infringement of individual rights through its contempt jurisdiction (and should Parliament have the power to determine the legality of its own enactments); or should courts have this power?    The answer, I think, is clear for at least two reasons.   First, Parliament cannot be a judge in its own cause about the legality of its Members’ conduct, or the legality of its own enactments.  An independent branch of government must perform this role (can Chaytor be read as a British Marbury v Madison?)    Secondly,  specifically in relation to privilege, for Parliament itself to exercise coercive powers, and impose coercive penalties and punishments would surely fall foul of ECHR art 6 and its common law equivalent.  If Parliament was once the ‘High Court’ of Parliament, that is manifestly no longer the case.

 Stuart Lakin is a Lecturer in Law at the University of Reading

 Suggested citation: S. Lakin ‘Parliamentary privilege, Parliamentary sovereignty, and Constitutional Principle’ UK Const. L. Blog (11th February 2013) (available at http://ukconstitutionallaw.org)

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Phil Larkin and Alexander Horne: report on October’s parliamentary privilege seminar

A seminar on parliamentary privilege, held jointly by the Study of Parliament Group and the UK Constitutional Law Group, took place in Parliament on 12 October, with talks given by three noted authorities: David Howarth (Department of Law, University of Cambridge, and former MP), Anthony Bradley QC (Emeritus Professor of Law, Edinburgh), and Nigel Pleming QC. The session was chaired by Sebastian Payne of the UK Constitutional Law Group and was kindly sponsored by Sir Alan Beith MP, the Chairman of the Justice Select Committee. The talks focussed on the place of parliamentary privilege in recent controversies, including the prosecution of MPs for fraudulent expenses claims and the arrest of Damian Green MP in 2008.

David Howarth spoke on the case of R v Chaytor, which saw three former MPs, including David Chaytor, prosecuted for false expenses claims. As a preliminary issue, the defendants claimed that the criminal proceedings were inappropriate as the expenses system was covered by parliamentary privilege. Parliamentary privilege, Howarth argued, had three different meanings: contempt of Parliament; the sphere of Parliament’s exclusive cognisance or jurisdiction; and Parliamentarians’ statutory immunities. In terms of contempt of Parliament, the purpose of privilege is to protect the House from matters that might obstruct it in the performance of its functions or damages its authority (set out in chapter eight of Erskine May) and it protects parliamentarians from undue outside pressure. The purpose of privilege (in terms of Parliament’s jurisdiction) is to safeguard its operations from incursion by the courts in areas where they are not qualified or democratically authorised to judge upon (this raises the question of who is authorised to speak for the House: in the Chaytor case, the “view of the House” was taken as, at various points, the Speaker, the Clerk, the Standards and Privileges Committee or vague references to “House authorities”). The purpose of privilege as statutory immunity is as set out in article 9 of the Bill of Rights and cannot be waived by the House. In David Howarth’s opinion, the Supreme Court concentrated on the final component of privilege without sufficient regard for the other two. In particular, he suggested that there had been an incursion by the Court into the scope of Parliament’s exclusive jurisdiction with its claims that pay and expenses were not a matter that was in the exclusive cognisance of the House. In support of its view, the Supreme Court made reference to the absence of a view from Parliament itself that the expenses system was within its exclusive jurisdiction. In Mr Howarth’s view, this exploited Parliament’s lack of political capital in the face of the widespread anger the case generated to make a grab for jurisdictional territory. He said, “a constitutionally literate Crown team would have referred the matter to the House for a decision”. This would not necessarily have got the Members off the hook, but Parliament could have (explicitly) formed the view that this was a matter that ought to have been dealt with through the criminal courts.

Anthony Bradley QC spoke on the Damian Green affair, which raised questions about the interface between parliamentary privilege and the criminal law that were not before the Supreme Court in the Chaytor case. In 2008, Mr Damian Green MP, then Shadow Immigration Minister, was arrested over leaks of official Home Office material highlighting shortcomings in existing immigration policy. Police raided Green’s office on the parliamentary estate, having been admitted by the then Serjeant at Arms. Professor Bradley commended the excellent account of the whole affair given in the report by the Menzies Campbell committee. He said that the affair was too serious to be regarded as a “comedy of errors” and noted some ambiguities in the way the Police and Criminal Evidence Act 1984 (PACE) related to Parliament and material which might be subject to privilege. It seemed that the police were far from clear about the scope of parliamentary privilege in this case, and it was now accepted that errors had been made by the Cabinet Office, the police, the Serjeant at Arms (who admitted the police to the Parliamentary estate and permitted the search of Green’s office), the Clerk of the House, and Speaker Michael Martin. Bradley argued that there remain serious doubts about the extent to which warrants under PACE apply on the Parliamentary estate. Ultimately, he contended, there is a worrying lack of clarity surrounding the Speaker’s jurisdiction and authority, despite the Speaker’s protocol of 8 December 2008. He suggested that legislation should be considered to clarify the situation. He commented that in most of Europe elected representatives receive some degree of protection from the criminal law – the UK would not for a moment wish to confer a general immunity from the criminal law, but we could well consider, for example, provisions in the German Basic Law that make clear the authority of the President of the Bundestag and give protection to members regarding information and documents given in confidence to them in their capacity as members of the Bundestag.

Nigel Pleming QC also reviewed the Chaytor case. It was, he said, “regrettable” that the voice of Parliament was absent in the matter. Article 9 of the Bill of Rights states that “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”. Yet should the “proceedings” of Parliament be taken to include more general business as well as proceedings in the chamber? The Register of Members’ Interests, for example? Decisions of the Speaker? Or claims to the Fees Office? The case advanced on behalf of the MPs was that the pay and allowances scheme was entirely a creation of the respective Houses of Parliament and, on that basis, a fraudulent expenses claim would constitute (and should be treated as a case of) lying to the House, made in the course of proceedings in Parliament.

All three speakers were agreed that the scope of parliamentary privilege and authority of its scope is unclear at the moment. But all were uneasy with the decision and justification in the Chaytor case, which had failed to deal properly with the intent and spirit of parliamentary privilege.

Dr Phil Larkin and Alexander Horne

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Stephen Sedley on superinjunctions and parliamentary privilege

Stephen Sedley, the UKCLG’s honorary president, has an article in the London Review of Books “The Goodwin and Giggs Show” (2011) Vol. 33(12)  that will be of interest to many UKCLG members. Read it here.

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