21st July 1995. Parliamentary Privilege.
One of the great applications of common law relates to the notion of what is called MPs. ‘Privilege‘.
It was Today 1995, in the middle of the ‘cash for questions’ scandal, that the Libel case brought by Neil Hamilton MP against the Guardian newspaper was stopped by Mr. Justice May when he ruled that the prohibition on courts questioning parliament proceedings contained in the 1689 Bill of Rights would prevent the Guardian from obtaining a fair trial.
It resulted in Section 13 of the 1996 Defamation Act a year later when MPs could waive Privilege. (1)
Parliamentary Privilege goes back to Haxey’s Case in 1397, relating to Sir Thomas Haxey, which is a leading case in English law as it established the right of free speech within Parliament.(2)
It arose when Haxey presented a Petition to parliament criticizing the cost of Richard II’s Household. The king was affronted and with the collusion of Archbishop of Canterbury, Thomas Arundel insisted Haxey be tried for treason and be deposed of his title and possessions. However when Henry IV came to the throne in 1399, after deposing Richard, he petitioned parliament to reverse the judgement against Haxey as being ‘against the law and custom which had been before in parliament’.
In the 16thc parliamentary privilege was an issue when Richard Strode MP was prosecuted by the powerful Stannary Court for attempting to rectify problems in the tin industry. He came up against Stannary jurisdiction which enforced a law which protected obstruction of tin mining.
For this breach of Stannary Ordinance, he was imprisoned, by his fellow ‘tinners’, in Lydford Castle, ‘in a loathsome dungeon, at first in irons, until he bribed a gaoler for release and survived on bread and water’.
Thomas Denys, Deputy Warden of The Stannaries, now came up against parliamentary privilege and thus sought clarification from the King’s Council, which resulted in the Privilege of Parliament Act 1512. (3)
The Strode case is one of the earliest and most important regarding parliamentary privilege. However in the 1629 prosecution of Sir John Eliot MP, the court held that Strode’s Act was a private act applying only to Strode and not other MPs.(4)
In 1667 the Commons and Lords declared it a general law and established the common law principle that privilege extends beyond any action for treason or defamation and was subsequently codified as Article 9 of the Bill of Rights 1689.
Parliamentary Privilege was raised when claims, citing the Bill of Rights, which exempts MPs in proceedings in and out Parliament from the law, were dismissed, in the MPs expenses scandal, in the new millennium, brought to light when the Daily Telegraph acquired a disk of all the sleazy details which Parliament had attempted to keep private.
The 1689 Bill of Rights protected Parliament vis a vis the Crown; it wasn’t for the commonality.
(1) Section 13. Defamation Act 1996.
(2) (Rotuli Parliamentorium iii 434.
(3) Henry VIII c8.
(4) R v Eliot, Hollis & Valentine.