Home > Bit of politics > Constitutional clarification

Constitutional clarification

Parliamentary privilege, as traditionally viewed in the UK constitution, grants MPs freedom of speech on what they say within the House of Commons. It doesn’t:

a) give them the right to run spies in the civil service; or
b) cover what they say or do outside of the House of Commons.

Its relevance to the Damian Green case, therefore, is rather limited.

Update Dec 3: Sam Coates at the Times has been doing some digging, and has found that – of course – my interpretation is correct:

Parliamentary privilege is a narrow beast. Article IX of the 1689 Bill of Rights guarantees that “Parliamentary proceedings” – anything said on the floor of the Chamber or published in Hansard – cannot be used in evidence against MPs during a prosecution. But, citing a 1999 committee report, it says Parliamentary privilege “does not embrace and protect the activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament.”

The report cites the precedent of Lord Cochrane, who was arrested in 1815 while sitting on the Government front bench in the Chamber, having escaped from prison. The arrest took place before the sitting of the of the House, and the Committee of Privileges concluded that no breach of privilege had taken place.

Categories: Bit of politics
  1. December 2, 2008 at 3:02 am | #1

    Well done, Mr. Band, with cool precision you took aim, fired and missed – again. Truly may it be said that you couldn't hit a barn – even if you were inside it!

    If, as you quaintly put it, "running spies" in the civil service is not permitted to MPs and is therefore subject to the heavy hand of the law, can I ask you to lodge a complaint with your Chief Constable concerning the past activities of an old, recidivist lag, G. Brown of Downing Street, who not only, er, 'ran spies' in the civil service but actually boasted of it on the 'telly'! http://www.order-order.com/2008/11/brown-confesse

    Also, may I admire the equanimity with which you apparently aquiesce in the fact that even as I write the Security Police are trawling through the private and privileged correspondence between an MP and his constitutents.

    No probs, I suppose, as some of you cool, young liberals put it.

  2. Sousbois
    December 2, 2008 at 4:25 am | #2

    Nowhere – other than here – have I seen it claimed that Damien Green claimed Parliamentary Privilege was what allowed him to accept leaks and publicize them. No, he's allowed to do that – anyone is. Even you.

    What Parliamentary Privilege should do – but didn't – is prevent a load of coppers in hobnailed boots turning over his offices in what used to be considered a model for democracy.

  3. December 2, 2008 at 4:28 am | #3

    No it shouldn't. Parliamentary privilege means you can't be arrested under the OSA, sued for libel, done for treason, etc, over what you say in parliament. That is all. It doesn't impose some kind of bizarre mediaeval 'sanctuary' rule where, just by physicially being in the House of Commons, you can escape arrest for any crimes you're accused of…

  4. ajay
    December 2, 2008 at 4:34 am | #4

    David, do you actually know what "privileged" means in this context? It's to do with immunity from libel, not confidentiality. You're getting it confused with lawyer-client privilege, which is indeed to do with confidentiality.

    If I write to my MP and say "John Band is a bigamous scoundrel" (and believe it to be true) that's not actionable, because it's privileged. If the MP then stands up in the House and says "Let me inform the House that one of my constituents tells me Mr Band is a bigamous scoundrel" that's covered by parliamentary privilege, and thus not actionable. But my letter isn't confidential any more than any other letter is; if the police, say, get a search warrant and discover my letter in my MP's office, they're perfectly OK to read it and act on it.

    This is different from lawyer-client privilege; if I write to my solicitor and say "I believe that John Band is a bigamous scoundrel; what if any legal action can I take against him?" that's privileged in the "confidential" sense, and is inadmissible in evidence.

    While you're hitting Wikipedia to refresh your memory on this, you might also look up "tu quoque" – you'll find it under "Fallacies".

  5. ajay
    December 2, 2008 at 4:37 am | #5

    John, you're wrong on the libel point – as I implied, you cannot in fact be done for libel over something you say in the House. That comes under the heading of absolute privilege. (In any case, it would be slander, because it's spoken, not published. The BBC can't be done for libel for reporting it either, because there's an exemption for reporting parliamentary proceedings.)
    But you can be done for breach of the OSA – parliamentary privilege doesn't cover criminal acts.

  6. December 2, 2008 at 4:53 am | #6

    'Ajay', thank you for your, er, learned point but may I remind you that parliament is the highest *court* in the land and correspondence between an MP and his constituents is precisely the same as that between a lawyer and his client – and it's both privileged and private.

  7. ejh
    December 2, 2008 at 5:02 am | #7

    The House of Lords may be. The House of Commons is not a court at all.

  8. ajay
    December 2, 2008 at 6:11 am | #8

    David, I don't think that's the case. Lawyer-client privilege only covers lawyers' correspondence with clients. There are no other forms of professional privilege in English law as far as I know – not, for example, between Catholic priests and people making confession, or between psychiatrists and patients. Your theory that the constituent-MP relationship is identical in English law to the client-lawyer relationship is an interesting one, but it has not as far as I know been upheld in any case. Please feel free to correct me, though.

    (As ejh says, the House of Commons is not, of course, a court at all. Even if it were, your MP would not necessarily be your advocate in it. If the House of Lords is a court, the members of the House of Lords are the judges, not the barristers.)

    Correspondence of any kind has certain expectations of privacy, of course, under common law as well as under relevant statute law such as the Data Protection Act – but you have no additional expectation of protection around your letter to your MP compared to, say, your letter to your aunt.

  9. December 2, 2008 at 6:28 am | #9

    Perhaps I didn't make myself clear. *Parliament* and its environs are the highest court in the land, and your MP is, in effect, your 'barrister' in representing your case against the government to that court if it ever proves necessary – that is by way of analogy, not exact comparison. The fact that this 'privilege' may not be set in law by precedent is because never before have the 'old Bill' barged their way in and ransacked an MP's office and removed all his correspondence.

    And I still await some indication from our host that he cares, or even realises, the implications of what has happened. Always helpful, may I direct his attention to the views of Tony Benn and Martin Bright, to staunch Left-wingers, who can recognise a pile of smelly brown stuff rather quicker than he can!

  10. dsquared
    December 2, 2008 at 8:45 pm | #10

    "in effect"

    It was Robert Conquest who noted that phrases like "in effect" can usually be replaced by the word "not", for a considerable gain in clarity.

  11. ajay
    December 2, 2008 at 9:16 pm | #11

    David, I'd be really interested to hear more about this theory, ideally something other than the reiterated fact that you believe it. A reference to anyone else in the world who believes it would be a good start.

    For one thing, if I have a case against the government (or anyone else) and I keep on appealling it up the chain, then (assuming for the moment that it does not come under the ambit of the ECHR) it will eventually end up in the House of Lords, not the House of Commons, and my MP will not be in any way my "barrister" there. My barrister there will be an actual barrister. With a wig. My MP won't be anywhere near the trial.

    To take another implication of your rather odd theory: what if I were a resident of Kirkcaldy? Would I then be represented in my suit against the government by the man who is "in effect my barrister", the MP for Kirkcaldy, one Gordon Brown?

  12. December 3, 2008 at 9:16 pm | #12

    Ajay, thank you for the legal clarification but I am intrigued when you write, "you have no additional expectation of protection around your letter to your MP compared to, say, your letter to your aunt."

    So why do I find myself (for a change) in such distinguished and outraged company from Fleet Street to Westminster, and including ex-Home Secretaries, the leaders of the two main opposition parties, several of the more thoughtful members of the Labour party and not forgetting two eminent Left-wingers, Tony Benn and Martin Bright? Are we all suffering from acute legal ignorance? Upon what were our expectations based – wishful thinking?

    And by the way, are you happy that the 'old Bill' can barge into your MPs office anytime on the flimsiest of excuses to remove and read his correspondence?

  13. December 3, 2008 at 9:22 pm | #13

    "distinguished and outraged company from Fleet Street to Westminster"

    because the groups who benefit from unrestrained leakery are:
    1) opposition politicians
    2) disgruntled backbench Labour politicians
    3) hacks

  14. December 3, 2008 at 9:47 pm | #14

    David: while in general I find the Green affair deeply worrying the idea that some analogue of legal professional privilege applies to the relations between MPs and their constituents is just ludicrous. To get somewhat Burkean:-

    "Parliament is not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; Parliament is a deliberative assembly of one nation, with one interest—that of the whole—where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member, indeed; but when you have chosen him, he is not member of Bristol, but he is a member of Parliament. If the local constituent should have an interest, or should form an hasty opinion evidently opposite to the real good of the rest of the community, the member for that place ought to be as far as any other from any endeavour to give it effect. I beg pardon for saying so much on this subject; I have been unwillingly drawn into it; but I shall ever use a respectable frankness of communication with you. Your faithful friend, your devoted servant, I shall be to the end of my life: a flatterer you do not wish for. On this point of instructions, however, I think it scarcely possible we ever can have any sort of difference. Perhaps I may give you too much, rather than too little trouble."

  15. December 4, 2008 at 3:39 am | #15

    Perhaps some of the confusion comes from the fact that Parliament is sometimes archaically called "The High Court of Parliament". That doesn't mean Court in a legal sense, in the same way that the Court of St James's to which ambassadors are attached is not a judicial body.

    The 'real' High Court – the one off the Strand – is part of the "Supreme Court of Judicature", and that's where lawyer-client privilege lives.

  16. December 4, 2008 at 7:16 am | #16

    Liadnan, I am tempted to offer a pun on the word berk but that would be an umgracious response to your interesting quotation which acts as a salutary reminder of the difference between theory and practice. For example:

    "Parliament is not a congress of ambassadors from different and hostile interests".

    Try telling that to the Ulster parties or the Scots Nats, to say nothing of the agricultural heartlands of East Anglia or the immigrant-dominated East End of London.

    Even so, as the fog gradually lifts, I accept that the notion that an MP's correspondence is privileged is not actually codified in law, but it is, or was, accepted as a very real convention. Only today we saw it acted out in our usual British panto way with the Royal messenger having the door of the Commons slammed in his face.

    John provides a list of those who benefit from "unrestrained leakery" but leaves out the most important one – me! Oh all right, then, for once I'll try to be generous and think of others, so try adding 'the people' to the list. But whilst we're on the subject, John, perhaps you would care to elucidate exactly how much restraint you would like put upon those who blow whistles on matters utterly unconnected to state security? (Yes, I know, I keep banging on about it but it's such a relief to sound like a real, live, Guardian-reading liberal when I am constantly accused of being a fascist! Er, actually, I understand that the Guardian has mostly ignored the whole story, but you know what I mean.)

  17. December 4, 2008 at 8:32 pm | #17

    the Security Police

    What on earth are the Swedish secret service up to getting involved in this case? This is far more worrying.

    (Oh right, you just thought it would be funny to accuse the cops of being Nazis. Inaccurately, I might add; the SiPo didn't operate inside Germany, it's the Gestapo you're after. Strange, this is exactly the caricature of the Left you yourself tiresomely push across the Internet day after day.)

    Further, I do not think it would be a good precedent to have one politician (the Home Secretary) or another politician (the Speaker) in a position to block a police inquiry into a third politician. This is the sort of thing one expects in, say, Italy.

    You may recall certain cases recently where the Tories screamed bloody murder when something similar to what they now apparently want occurred.

  18. December 5, 2008 at 5:07 am | #18

    Alex, calm down, dear; I used the title "security police" (inadvertently using capitals) to save me the trouble of typing 'Counter Terrorism Police' and to indicate that it was that branch of the police that deals with security, not lost dogs! What Sweden has to do with it I have no idea. Also, please don't think I'm not grateful but I already have a passing knowledge of the activities and history of the various German security services during the Nazi era, thank you all the same. Nor was I accusing our boys in blue, er, trench coats of being Gestapo Nazis, but they only have one excuse for raiding an MP's office in Westminster and that is because they suspect a breach of security likely to be a threat to the defence of the realm, not an embarrassment to this or that lying liar who runs any particular department. And when they do raid, they should bend over backwards to do it by the book, not bluff their way in past a silly moo who should have known better. Your final paragraph is, putting it politely, obscure.

  19. December 8, 2008 at 7:50 am | #19

    Bullshit. You knew very well what you were doing.

    If my par was obscure, let me clarify. You were positively ecstatic when the police searched the then Prime Minister's office; the Prime Minister is by definition a Member of Parliament. What's sauce for the goose is sauce for the gander.

  20. December 8, 2008 at 9:13 am | #20

    All right, Alex, if you think you know better than me what I was doing, so be it.

    The police searched the PM's office? I don't recall that one. I assume you are referring to the former PM and, again, I do not recall becoming even faintly ecstatic over the fact that he was interviewed under caution, not arrested. Also, that was the criminal police who investigated the possible sale of peerages, not the Counter Terrorism Police. There is a slight difference between high level corruption and a whistle-blower passing *non* security matters to an MP.

    However, I gather that the 'Old Bill' *might* be paying our current PM a visit shortly in order to, er, clarify his relationship to the Smith Institute. If so, I confess, a small chuckle will escape my grim, thin lips!

  21. ajay
    December 9, 2008 at 4:35 am | #21

    Also, that was the criminal police who investigated the possible sale of peerages, not the Counter Terrorism Police.

    Not a distinction recognised in Britain, David old fruit. All CTC's responsibilities are to do with criminal matters; terrorism and breaches of the OSA are both crimes.

    No idea what your reaction was to Blair's office being searched as you weren't blogging then. Fair enough.

    (Checking your archives, though, I really hope no Royal Marines have caught up with you to, er, remonstrate about your calling them "rock apes" – a title normally given to the far inferior RAF Regiment! You clearly like to live dangerously…)

  22. TooMuchCoffeeman
    December 14, 2008 at 5:59 pm | #22

    From across the Atlantic, the whole kerfuffle over the arrest and its justification is very confusing — to this Bear of Little Brain at least.

    While I'm instinctively not a fan of sending in the clowns, a lot of the criticism I've seen seems rather vague and apoplectic.

    I particularly like (i.e. scoff at) lines like this:

    In 1938 this buck would have stopped at the door of Number 10 Downing Street.

    What buck would that be, then? A very large male rabbit?

    P.S. this comment has largely been an excuse to belatedly fulfill part 5 of this meme; if you feel like wasting time on such things, JB, consider yourself tagged…

  23. December 14, 2008 at 8:06 pm | #23

    Ajay, very belatedly because I hadn't realised this thread had continued, you are quite right to pick me up for referring to Marines as 'rock apes'. In this, as in so much else, I am out of date. When I was in the Paras, more years ago than I wish to dwell upon, we used the epithet constantly on the grounds that all the marines appeared to do was climb up and down cliffs! Quite how the RAF Regiment got the title I don't know.

    Needless to say, inter-regimental rivalry apart, I have nothing but admiration for the Marines.

  1. No trackbacks yet.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>