Lecture notes
public law - responsible government + political mechanisms
Notes on public law responsible government and political mechanisms textbook linked to this is Webley and Samuels complete public law 4th edition pages 325-285
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responsible government and political mechanisms PUBLIC LAWParliamentary privilege - its a protection for proceedings of parliament- debates , committees ,
hearings , votes etc and indirectly for individuals who participate. Safeguard to ensure
parliamentarians incl publics elected reps can carry out their duties to best of their ability
and parliaments constitutional functions can be carried out to highest standards. freedom of
speech under art 9 + exclusive jurisdiction ( control by parliament over its own affairs therefore
limited scrutiny by other branches of state). PP is part of the law rather than something that puts
MPs or peers above the law. 1998-99 joint committee on PP recorded that “what house of
commons originally claimed as customary rights in the course of repeated efforts to assert them
hardened into legally recognised privileges”
Variations of scrutiny
- political scrutiny by parliament - question time: debates , select committees , back bench
pressure , gov members themselves
- Political scrutiny by public - for MPs during elections and coming up to elections
Political scrutiny by pressure groups /lobbyists/the media - may inform public opinion or
parliament
- legal scrutiny by courts - of executive action using its prerogative power or under statutory
power. Courts rely on others to bring cases to their attention though judicial review ( in addition
role of CJEU and ECtHR in executive scrutiny
2 main elements
1. Exclusive cognisance ( jurisdiction) - right of each house of parliament to regulate its
own proceedings and internal affairs without interference from any outside body.
• Parliament must be free from interference from crown (executive) and from courts and also
from crown in form of monarchy = free from influence/pressure / intimidation so must
therefore regulate itself as self governing entity so other bodies cannot prevent it from fulfilling
it’s constitutional function . Parliament operates under privilege , not above the law but is part of
the common law .
• Parliament responsible for monitoring its own finances , w/o exclusive cognisance courts
would be able to scrutinise decision making processes behind passage of a bill in parliament
and thus undermine independence of parliaments supremacy.
• Exclusive cognisance manifests itself most importantly in recognition that conduct and
procedure in PPs Is for relevant house to regulate, meaning courts cannot strike down
parliaments decisions by challenging procedures used to reach decisions nor may they
suspend someone as member of house. The house can limit their own cognisance by statute
e.g. as they have done in providing that members of houses of commons are automatically
disqualified if they receive custodial sentence of over 12mths.
EC( exclusive cognisance) doesn’t mean MPs and peers are exempt from ordinary law.
Where conduct of MP or Peer doesn’t relate to proceedings in parliament even if it takes places
within parliaments physical premises, its within jurisdiction of courts and therefore law will apply
to them as anyone else.
Parliamentary privilege relates to the body - HC , HLs but not crown though and not
individuals in it unless their actions are related to proceedings in parliament e.g. debates
going on in parliament , committee hearings , votes , publish reports etc and although it applies
primarily to parliamentary members it also applies to officials of houses of parliament, to
witnesses before select committees + other participants in proceedings.
Parliamentary privilege grants certain legal immunities for members of both houses to allow
them to perform their duties w/o interference from each house or from outside . So PP that
applies to HOCs protects HOCs from interference by HOLs and vice versa.
Exclusive cognisance is then exclusive right of parliaments self regulation , in order to exercise
exclusive cognisance parliament must be its own court , not answerable to judicial interference .
, Sometimes argued this privilege offers wider protection of exempting parliament from having to
comply with legislation governing day to day activities such as employment and health+safety.
Stated that statute law does apply unless the law would interfere with parliament’s core
functions.
2. Freedom of speech - bill of rights 1689 art 9 “ the freedom of speech and debates of
proceedings in parliament ought not to be impeached or questioned in any court or place out of
parliament” but this raises separation of powers and rule of law concerns that MPs too easily
breach judicially granted super-injunctions by announcing their existence and their details
during proceedings in parliament and thereby avoid judicial punishment for doing so.
Free and frank debate in parliamentary proceedings is necessary and as such cannot incur
civil action for defamation nor criminal action for hate speech as it would have a chilling effect on
parliamentary debate . Must be able to raise important issues without fear of mis speaking ,
this also includes protecting witness statements in parliamentary committees .
Protecting freedom of speech done by excluding any role for courts to question proceedings in
parliament
If privilege were partially disapplied it would be important to minimise any “chilling effect” on free
speech in parliament. Protection of privilege would need to continue to apply to speech offences.
Parliament could not function effectively w/o freedom of speech.
Sources of parliamentary privilege - part of the ‘law and custom of parliament’
- parliamentary practice (written) - how parliament is to operate and how to run itself .
Standing orders of HOCs and Erskine may ( a treatise on the law , privileges , proceedings and
usage of parlianenr - most authoritative guide on P practice and procedure )
- Parliamentary practice (Unwritten) - customs and habits of parliament
- Statute e.g. parliamentary papers act 1840 emphasising right to free speech
Bill of rights 1689 art 9 is provision of highest constitutional importance ( should not be narrowly
construed - pepper v hart , remained in force for over 300 years and has never been questioned -
r v chaytor .Parliamentary freedom of speech would be of little value if what is said in parliament
by members , ministers and witnesses could not be freely communicated outside parliament.
There’s an important public interest in public knowing what is being debated and done in
parliament.
- precedent , where courts have recognised parliamentary privilege or where they’ve made
decisions about disputed privilege - stockdale and hansard. Though courts are not involved in
parliamentary proceedings, courts are able to ascertain extent of parliamentary privilege (Miller 2
- parliament prorogued by PM for 6 weeks )
Erskine may and standing orders rules formulated by houses themselves so these aren’t rules
prepared then allow parliament to operate , parliament themselves created these rules by which it
then conducts itself - how daily business is conducted in HOCs , behaviour of members , how
that behaviour is regulated esp during debates + rules relating to committees , so if a speaker
wants to exclude an MP for bad behaviour in HOCs debate the speaking will refer to standing
order no ‘X’ to then justify it.
2 kinds of privilege
1. Absolute - claimed by those involved in parliamentary process in proceedings in parliament
2. Qualified - claimed by those who publish what’s been said/written during proceedings in
parliament
As such defence to defamation . What goes on in parliament is published so to avoid defamation
charges publisher can claim qualified privilege .
Privilege incorporates
- freedom from civil arrest
- Freedom of speech in P proceedings
- Whilst it provides immunity from law of defamation for words spoken in parliamentary
proceedings it also limited right of MP to sue for defamation unless that privilege was waived -
Hamilton v al-fayed case: Al fayed employed lobbyists ,Ian Greer associates with which he
was in dispute with mr tiny rowland over Mr Al Fayed’s takeover of house of Fraser incl harrods.
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