Parliament: Freedom of Speech and the Rule of Law - Motion to Take Note

Part of the debate – in the House of Lords at 1:36 pm on 23rd May 2019.

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Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 1:36 pm, 23rd May 2019

My Lords, I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his careful and well-considered contribution to this debate. I am also grateful for the contributions of other noble and learned Lords, and noble Lords, on this issue.

Parliamentary privilege is a critical part of our democratic process, and is essential if Parliament is to function fully and freely. Noble Lords, and in particular the noble Lords, Lord Norton and Lord Lisvane, referred expressly to Article 9 of the Bill of Rights of 1689, which protects debates and proceedings in Parliament from interference from the courts. But let us be clear: the protection of absolute privilege belongs to the Houses of Parliament, not to its individual Members. This protection does not mean that Members are above the law, nor that they can ignore it. Indeed, parliamentarians have a duty to exercise the privilege of the House in a responsible manner that reflects the public interest. That includes being mindful of the sub judice principle and respectful of the jurisdiction of the courts.

It is a matter for Parliament, in the administration of its internal affairs, to regulate the conduct of its Members in the exercise of Parliament’s privilege. More particularly, it may be for the Committee for Privileges and Conduct of the House of Lords to consider the use of parliamentary privilege by Members of this House. The noble Lords, Lord Armstrong, Lord Parekh and, I believe, Lord Anderson of Ipswich, alluded to the apparent absence of procedures and perhaps sanctions to address that issue.

It is clear that the privilege of Parliament should not be relied upon in such a way as to undermine the independence of the judiciary and, consequently, the rule of law. Where the judiciary has seen fit to make a court order, that ruling should be respected. That is the case no matter what stage legal proceedings may have reached. There may, of course, be a tension, but the relationship between parliamentary privilege and the independence of the courts—and, indeed, the rule of law—should not be one of conflict but of mutual respect. Each individual parliamentarian has to be mindful of the tension between releasing information where he subjectively considers it to be in the public interest and, on the other hand, the absolute necessity of maintaining comity between Parliament and the courts.

As it happens, we already have in place appropriate guidance on how that can be achieved. The Companion to the Standing Orders and Guide to the Proceedings of the House of Lords has already been referred to. It is quite clear, at least with reference to the issue of sub judice. Indeed, it is recorded that the House of Lords adopted a resolution on sub judice on 11 May 2000. That resolution, as amended, states inter alia:

“Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question”.

That is subject to qualification, as is necessary, because the Companion goes on to say:

“But where a ministerial decision is in question, or”—

I emphasise this—

“in the opinion of the Lord Speaker a case concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in motions, debates or questions”.

That, of course, is subject to a safeguard. The Lord Speaker must be given at least 24 hours’ notice of any proposal to refer to a matter which is sub judice. That, in turn, will prompt the Lord Speaker to consult with the clerks and the usual channels when he receives intimation of such an intention.

The Lord Speaker cannot, of course, intervene in our proceedings in this House, but it is open to any Member to move that a noble Lord should no longer be heard on a particular matter. We do, therefore, have in place safeguards that can be properly employed. Regrettably, where those safeguards and recommendations are circumvented, there is a danger that the House will bring itself into disrepute, and that the comity that it is necessary to maintain between Parliament and the courts may be undermined. In those circumstances, noble Lords may wish to look further at the issue raised by a number of noble Lords concerning the present terms of the guidance given on this matter and the potential need for sanctions where such guidance is overlooked.

Clearly it must remain central to our proceedings that we maintain the privilege of Parliament. I emphasise again that it is the privilege of Parliament, not a privilege of individual Members. I am obliged to noble Lords.