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From what I understand, parliamentary privilege affords MPs and Lords freedom of speech without fear of prosecution within their respective Houses of Parliament.

I’ve only seen it come up into public discourse when it is used to bypass gagging orders; for example when Lord Hain named Sir Philip Green as the businessman who took out an injunction to prevent reporting of sexual harassment allegations.

What are the limits that apply to this privilege - does it extend to any action taken by an MP or Lord within the Houses? Has it ever been argued formally in court? Is there any recourse against MPs who might abuse this privilege?

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As summary, some limits from case law:

  • Parliamentary expense declarations were not considered included in the privilege.

  • The privilege also doesn't cover parliamentary publications per se although a related (1840) statue does.

  • Declarations to the press by MPs also not covered. The way of referring to the previous floor statements outside of Parliament has affected the outcome of some (defamation) lawsuits. A qualified privilege seems to exist for such declarations, i.e. inclusion by reference might be difficult to prove in court as malicious, especially in a body of similar political declarations, but explicit repetition/reaffirmation of statements or excerpts may open the door for successful defamation suits.


An interesting case that was deemed outside the privilege in a (2010) court case was the declaration of parliamentary expenses:

The Chaytor case illustrates this well. The issue was whether matters concerning claims by a number of parliamentarians for parliamentary expenses could form the subject of criminal prosecutions. Prosecutions were brought by the independent prosecuting authority, the Crown Prosecution Service. The defendant parliamentarians argued that such expenses claims were subject to parliamentary privilege and thus outwith the court’s jurisdiction. Having set out the development of the relationship between the courts and Parliament concerning privilege, and that it was for the courts to determine whether something fell within the scope of privilege, the Supreme Court identified the key issue. Lord Phillips of Worth Matravers PSC explained that the question rested on whether scrutinising the expenses claims in criminal proceedings would have an adverse impact on the core or essential business of Parliament and whether it would inhibit debate or freedom of speech. He concluded that such scrutiny would not “inhibit any of the varied activities in which Members of Parliament indulge that bear in one way or another on their parliamentary duties. The only thing that it would inhibit would be the making of dishonest claims” (para. 48).

Also noteworthy perhaps, the records of the Parliament, such as the Hansard are not covered by the privilege itself, but by a mirror statutory protection dating to 1840.

As the 1999 Joint Committee noted, “parliamentary privilege does not cloak parliamentary publications with any form of protection”. This was decided in 1839 in the case of Stockdale v. Hansard, in which the court held that parliamentary privilege did not attach to the publishers of reports ordered to be printed by the House of Commons. The Parliamentary Papers Act 1840, passed in response to this decision, established that no action could be brought in court arising from the publication of the Official Report or other documents ordered to be published by either House. It also provided protection for “any extract or abstract” from such documents made by others, provided that it was published “bonâ fide and without malice” (section 3). Such protection for publications by order of either House is a matter of statute law, not privilege.

Regarding statements to the press by MPs, the situation is somewhat complicated:

The decision of the Judicial Committee of the Privy Council, which at that time was the highest judicial authority for New Zealand, in Jennings v. Buchanan has caused us some concern. In that judgment, delivered by the late Lord Bingham of Cornhill, it was decided that Mr Jennings, a New Zealand MP, could be sued for defamation because he had told a newspaper that he “did not resile” from the remarks he made in the New Zealand House of Representatives about a New Zealand Wool Board official identifiable as Mr Buchanan. Jennings v. Buchanan was a New Zealand case, and is not binding in the British courts, though it would be highly persuasive. The Judicial Committee ruled that—

“A statement made out of Parliament may enjoy qualified privilege but will not enjoy absolute privilege, even if reference is made to the earlier privileged statement. A degree of circumspection is accordingly called for when a Member of Parliament is moved or pressed to repeat out of Parliament a potentially defamatory statement previously made in Parliament”.

The Clerk of the New Zealand House of Representatives told us that the New Zealand House of Representatives Privileges Committee had recommended legislation to deal with the effective repetition problem from Jennings v. Buchanan, because it potentially inhibited public discussion of what went on in Parliament, but that nothing had happened. Dr Rosemary Laing, the Clerk of the Australian Senate, told us that “we take great care to warn our Members about the possibility of a Jennings v. Buchanan-type action and urge them to be careful about what they say outside of the proceedings in Parliament”.

This seems to be a weaker explicit protection than that enjoyed by US Congresspersons following the Westfall Act. But then there don't seem to have been a lot of UK or even Commonwealth cases triggering a need for stronger statutory protections for MP statements to the press. Actually in more recent UK case the plaintiff was unsuccessful.

In a recent United Kingdom case, Mr Justice Tugendhat struck out claims for slander and libel brought against a witness to a select committee, Lord Triesman, who had subsequently given evidence to a Football Association inquiry into allegations he had made at the select committee hearing concerning the reasons for the failure of England’s bid to host the World Cup in 2022. The plaintiff alleged that Lord Triesman had adopted by reference and/or confirmed and/or repeated his statements made to the select committee.

This case demonstrates that the principle stated in Jennings v. Buchanan is far from universal—each case is decided on very specific facts. The transcripts of the FA’s inquiry showed that Lord Triesman had been careful not to go beyond what he had previously said to the select committee: for example, “my evidence in respect of this issue is set out in the transcript of the statement that I made to the Culture, Media and Sport Committee”. Moreover, the judge ultimately ruled that the occasion (Lord Triesman’s evidence to the FA’s inquiry) was itself one of qualified privilege, and that there was no case in malice that could be left to a jury at trial.

The 2013-2014 Joint Committee on Parliamentary Privilege concluded (contra to the UK Government's opinion actually) that

In practice, this would mean that a Member who, for instance, published on his website links to his contributions to debates, whether in the online version of Hansard or the webcast of the sitting, would enjoy absolute privilege—while the specific link might be to the Member’s personal speech, that speech would be part of a file in which the entire day’s sitting or webcast (both issued under the authority of the House) was contained. If, on the other hand, the Member reproduced the verbatim text of a speech (that is, an extract from Hansard), the protection would be qualified, so any claimant would have to prove malice in order to bring a successful suit. In normal circumstances (for instance, a collection, whether printed or online, of the Member’s speeches on a variety of subjects), it would be very unlikely that malice could be proved.

On the other hand, we acknowledge the risk that, just as conferring absolute privilege upon reports of proceedings could encourage the media to channel defamatory or other unlawful content through Members, thereby opening the door to unlimited publication, so extending absolute privilege to the repetition by Members outside Parliament of statements made by them in the course of proceedings might create a temptation for Members to make reckless or defamatory statements in the course of debate, with a view to repeating them outside. This could bring parliamentary proceedings themselves into disrepute.

So while we share the concern of our colleagues in New Zealand and Australian legislatures at the potentially chilling effect of Lord Bingham’s judgment in Jennings v. Buchanan, we do not under-estimate the complexity of legislating to extend Members’ absolute privilege of freedom of speech beyond actual proceedings in Parliament. Every case will be unique, and cases where Members simply refer neutrally to speeches made in Parliament may shade into others where they “have nothing to add”, “do not resile from” or “re-affirm” those speeches. We doubt that legislation to codify these imperceptible differences of emphasis is either feasible or desirable.

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    This could do with some summary bullet points to make it easier to skim. – user Nov 19 at 9:24
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Parliamentary privilege is granted by the Bill of Rights, 1688, enacted shortly after the reformation of the monarchy. The relevant passage cites (with original spelling):

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

This means that any statement made by an MP or Peer in relation to their Parliamentary duties is covered under this privilege. This includes statements made in the chamber of the relevant House, or in any of its committees.

This privilege does not apply to any statement made by an MP or Peer outside of Parliamentary proceedings. If, for example, Lord Haig were to repeat this statement about Sir Philip outside of the Palace of Westminster (or, for that matter, to a TV camera in Central Lobby), he can be taken to court for that.

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    Interesting. In the US there is a much broader application of the similar principle, i.e. there it covers press statements as well (as a result of court interpretations). So are you sure there's no case law in the UK that extends it to MP declarations to the press? (Actually I'm slightly oversimplifying the US case. The press part comes as a result of the Westfall Act rather than of the original "Speech and Debate" clause of the constitution that mirrors the UK right. politics.stackexchange.com/a/46598/18373) – Fizz Nov 18 at 19:17
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    I claim no legal qualifications, so I cannot speak definitively to case law. But I would think it unlikely, given case law cannot contradict statute. – Joe C Nov 18 at 20:13
  • @Fizz Exactly, I believe that if an MP or Lord breaks a superinjunction in parliament, this doesn't allow the press to break the same superinjunction (though they can of course reveal the fact that a superinjunction was broken in parliament!), for example. – Muzer Nov 19 at 10:23
  • Surely they can state that MP X said that 'Person Y did action Z'? Regardless, all proceding in the Commons and Lords are recorded and available in full on the Parliament Website as well as written logs in Hansard. – PandaPops Nov 19 at 12:35
  • @PandaPops This is exactly the kind of phrase used by the press when Lord Haig said what he said about Sir Philip Green. I don't recall any of them being taken to court for that. – Joe C Nov 19 at 19:55

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