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Legal Minds

26 October 2018 / by / in ,

The Privilege of Privilege

For a second time this week an individual has hit the headlines for sharing information in defiance of the ruling of a judge, both citing as justification their right to freedom of expression.

But while Tommy Robinson faces contempt of court proceedings for his actions, Lord Hain has been characterised by many as a hero, defying the ability of the rich and powerful to silence the complaints of the impotent masses.

Lord Hain was at pains to include the tautologous words ‘I feel it’s my duty under parliamentary privilege…‘ in yesterday’s intervention in the House of Lords. Presumably he felt taking a sling shot at Goliath on behalf of David was all very well provided he wouldn’t end up in prison for contempt of court. A closer look at the doctrine shows he may have been right to be cautious.

Freedom of speech in parliament is guaranteed by article 9 of the Bill of Rights 1689 which states 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’. The legal immunity is comprehensive and absolute, what is less clear are its constraints. Given the high degree of protection given by parliamentary privilege, there has been an understandable concern as to its boundaries.

The latest report of the Joint Committee on Parliamentary Privilege, published in 2013 is explicit that privilege should be strictly limited to those areas where immunity from normal legal oversight is necessary in order to safeguard the effective functioning of Parliament. It is agreed that immunity applies to that core work itself, to things said or done as part of proceedings… In other words, the activity over which privilege is claimed needs to have a ‘necessary connection’ to the proceedings in Parliament. Logically, this makes sense. Parliament should be free to go about its business uninhibited by concerns that things said in the heat of a debate would render individuals liable in a court of law.

Lord Hain’s statement seems to be very different in nature. The Lords were switching between a debate on Brexit to another on immigration when Lord Hain stood up. His intervention appears to be completely unrelated to what was going on before or after and can hardly be said to be part of the proceedings. If Lord Hain is served with an application for committal to prison for contempt of court he may find simply citing parliamentary privilege does not put him in a very different position to Tommy Robinson. At least he would be reassured that those in positions of power can’t abuse it.

Roland Ellis

Roland qualified as a solicitor in 2004 and was awarded higher rights of audience in 2008. Roland is an experienced business crime and regulatory lawyer. He has been involved in some of the UK’s highest profile investigations and prosecutions brought by the Serious Fraud Office (SFO) and Crown Prosecution Service (CPS). He also advises individuals and companies facing Financial Conduct Authority (FCA) regulatory investigations and proceedings.

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