PARLIAMENTARY PRIVILEGE AND MPs’ EXPENSES CLAIMS
The kafuffle surrounding expenses claims by British Members of Parliament has raised the perplexing question of parliamentary privilege and whether it would afford a defence to a Member of Parliament charged with a criminal offence arising out of his own dishonesty.
Parliamentary privilege developed as a means of stopping a monarch from interfering with the working of Parliament and was sparked by the power struggle between King Charles I and Parliament.
Article 9 of the Bill of Rights 1689 provides the single most important parliamentary privilege: that freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. It affords legal immunity to members for what they say and do in parliamentary proceedings.
Legal argument will probably centre on what is meant by proceedings in Parliament. That is likely to be argued ad nauseam in the coming months (and maybe years) and might well end up in the Supreme Court
Although each House has the right to administer its internal affairs within its precincts, it is clear that there is no law that prevents a Member of Parliament or a peer from being prosecuted. That has long been recognised by the courts. The court refused to intervene in Bradlaugh v Gosset (1883) 12 QBD 271 when the House of Commons refused to allow a member who was an avowed atheist to take the oath even though he was required to do so by statute.
But the phrase “internal affairs” is too loose and there is a real danger that attempts will be made to stretch it beyond its normal and natural meaning. The right is intended to protect each House in respect of the conduct of its internal affairs. It does not embrace and protect activities of individuals simply because the act complained of takes place within the precincts of Parliament. It is respectfully submitted that unless the conduct is clearly protected by Article 9 as part of the proceedings of Parliament, speech and conduct of members generally enjoys no special privilege. A criminal offence committed within the precincts of Parliament is triable in the courts and neither is there anything to stop a Member from being arrested within the precincts.
It has been said that in order to carry out its public duties without fear or favour Parliament, its Members and officers need certain rights and immunities, Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts, and Members need to be able to speak freely uninhibited by possible defamation claims. That is undoubtedly correct, but if those who seek to take advantage of these privileges use Parliament as a sanctuary to avoid the consequences of their own criminality, then parliamentary privilege will fall into disrepute and it will add credence to the argument that there is one set of laws for parliamentarians and another for the public at large.
