7. Parliamentary privilege

Why privilege exists

Origins: Privilege grew out of the English Parliament's long struggle with the Crown. Haxey's Case (1397), Strode's Case (1512) and Sir John Eliot's Case (1629) are steps in that history. Article 9 of the Bill of Rights 1689 declared that freedom of speech and debates in Parliament ought not to be impeached or questioned in any court or place out of Parliament.

Duties too: The 1991 Constitution also places duties on Members. Under section 97 they must uphold the dignity of Parliament inside and outside it, regard themselves as representatives of the people, and not seek to enrich themselves improperly.

Freedom of speech

Section 98: There is freedom of speech, debate and proceedings in Parliament, and that freedom shall not be impeached or questioned in any court or place out of Parliament.

Section 99(1): No civil or criminal proceedings may be brought against a Member in any court or place out of Parliament for anything said by him in Parliament.

What counts as proceedings: Debates, questions and committee proceedings are covered. A private act is not. In Rivlin v Bilainkin (1953) a libel repeated in a letter posted to a Member within the House of Commons was not protected: being in the building is not enough.

Outside the chamber: Words used in the course of a Member's duties outside Parliament may still attract qualified privilege at common law if made in good faith. In Beach v Freeson (1972) a Member's letter passing on a constituent's complaint to the Law Society and the Lord Chancellor was protected by qualified privilege.

Courts may not use the words: In Church of Scientology v Johnson-Smith (1972) the claimant could not rely on what the Member had said in Parliament to prove malice in a libel action about words spoken outside. In Hamilton v Al Fayed (2000) the House of Lords held that courts must not question proceedings in Parliament.

The Sierra Leone limit: Under section 99(2) and (3), if the person presiding thinks a Member's statement is defamatory, he refers it to the Committee of Privileges. If the Committee finds it defamatory, the Member must apologise within a short period, or the Speaker suspends him, with loss of his privileges and pay until he apologises.

Reports of proceedings: The Constitution protects the publication of official reports and fair reports of proceedings, unless the publication was made maliciously or without good faith. In Cook v Alexander (1974) a fair parliamentary sketch was protected by qualified privilege.

Freedom from arrest

Civil process: The Speaker, a Member or the Clerk may not be arrested on civil process or served with process while going to, attending or returning from Parliament.

No shield from crime: The privilege does not protect Members from criminal charges. In R v Stonehouse (1977) a former Minister and sitting Member was convicted after faking his own death so that his wife could claim on life policies.

Other immunities

Witness summons: A Member or the Speaker cannot be made to appear as a witness in a court outside Parliament while attending Parliament.

Jury service: Members and the Speaker are exempt from jury service.