Morgan, Mensch and Parliamentary Privilege

Evan Price, a barrister at ten old square in Lincoln’s Inn, writes on Parliamentary Privilege and the phone hacking row between Piers Morgan and Louise Mensch.

Evan Price is a barrister at ten old square in Lincoln’s Inn. He has acted in cases that concern privilege, immunity and the powers or Parliament, as well as cases involving property, insolvency and trusts and estates. He is a member of the Conservative party and was a candidate for Wales in the European Parliamentary elections in 2009.

It feels a little odd for me, a Conservative party member and former candidate, to be writing for Left Foot Forward, but also entertaining. At the time of the Reformation, artists portrayed individuals who remained loyal to Rome with their left foot forward and the coincidence of that portrayal and some of the writings on this blog amuses me too…

But onto the topic which I have been asked to consider; Piers Morgan is complaining that  Louise Mensch MP (née Bagshawe) ‘lied to Parliament’ when asserting that he had admitted that he had ‘hacked’ phones or that newspapers under his editorship had been involved in such activity.

Watch their live, on-air confrontation on CNN:

The former Mirror editor goes on to complain that she is protected by Parliamentary privilege and she has pointedly refused to repeat her allegations outside Parliament. Presumably, Piers (I knew his brother quite well when I was in the Army) is considering legal process.

So what is Parliamentary privilege? It is a legal privilege that is sometimes also referred to as an absolute immunity that protects MPs from suit for the things they say when in Parliament – it is described in Erskine May as:

“To a certain extent an exemption from the general law.”

It is considered necessary for the Houses of Parliament and individual members to have such privilege in order that they can exercise their functions without interference from outside – and originally from angry despotic Monarchs…

The particular privilege that Louse Mensch MP is protected by is that of freedom of speech. This appears to have evolved very early, and the Commons claimed such a freedom from the late 15th-century – although it was then claimed as a tradition rather than a right.

In essence, they sought forgiveness from the Monarch for any perceived insult or where the Monarch’s displeasure was incurred as a general waiver for a session. As a result it was rather a different animal from the privilege that we now observe.

The Bill of Rights put the privilege onto a statutory footing (and set against the arguments between King Charles and his Parliaments that is probably understandable). In essence, Article IX of the Bill of Rights provides that speech and debates and proceedings in Parliament are not to be:

“Impeached or questioned in any court or place out of Parliament.”

It is thought that this was intended to stifle both courts and the Crown. But it stifles others too.

In 1887, a court, having concluded that the offending words were spoken in the House of Commons, ordered that the writ and statement should be taken off the records of the court, as the court had no jurisdiction in the matter – see Dillon v Balfour (1887) 20 LR Ir 600. So it appears that even the record cannot be cited in court as evidence against an individual who enjoys the protection.

This position has even survived a challenge to the ECHR – in A v United Kingdom (2002, Application no 35373/97), the European Court of Human Rights concluded that the privilege did not breach articles 6 or 8 of the Convention.

The truth of the matter is that in our Constitutional settlement, the Houses of Parliament are themselves courts.

The result is that for Piers to obtain the redress that he appears to seek, he will need to drum up support in the House of Commons – and given that relatively recently he a was tabloid editor and before that the named author of the Bizarre column in the Sun, I rather suspect his prospects are slim.

Like this article? Sign up to Left Foot Forward's weekday email for the latest progressive news and comment - and support campaigning journalism by making a donation today.