Our constitution, July 2012: Parliamentary privileges

“Protection of Parliamentary privileges, election of Presiding Officer, etc”

In April 2011, Ryan Giggs’s lawyers managed to convince a judge that Giggs’s girlfriend had had an affair with him for six months with intention of blackmailing him, and so ought not to be allowed to name Ryan Giggs in any interview, nor ought the UK media to be allowed to publish this, and the judge granted a superinjunction, which of course attracted the intention among the vast majority who didn’t care who Giggs was having an affair with. On 22nd May the Sunday Herald took advantage of its ambiguous position as a Scottish newspaper to identify Giggs to anyone who’d been following the story… but on 23rd May he was named in the House of Commons under Parliamentary privilege by John Hemming. The woman who’d been falsely accused of blackmail went on to clear her name in court, and the judge then suggested with remarkable meiosis that “There is no longer any point in maintaining the anonymity” though the gagging order wasn’t dropped until February this year.

Because of this incident, and because of the other more justly famous incident in the precursor to Leveson, when in November 2011 Tom Watson told James Murdoch that “You must be the first mafia boss in history who didn’t know he was running a criminal enterprise” probably what most people know about “Parliamentary privilege” is that an MP speaking in the House of Commons can say literally anything and cannot be prosecuted for defamation or for breaking a superinjunction.

But the essence of UK Parliamentary privilege is that Parliament, both House of Lords and House of Commons, is free “to determine and enforce their own procedures without reference to the courts”: the government instituted a review of Parliamentary privilege not because of Hemmings’ naming Giggs or Tom Watson’s comment to James Murdoch, but because of MP expenses.

The genesis of the Government’s commitment to review the operation of parliamentary privilege lay in the announcement in February 2010 by lawyers representing three MPs and one peer that they would be making the case that criminal proceedings could not be brought against them because the court proceedings would infringe parliamentary privilege. The court proceedings in question were to consider charges of false accounting relating to parliamentary expenses claims made by the four defendants. The Programme for Government subsequently stated that “we will prevent the possible misuse of parliamentary privilege by MPs accused of serious wrongdoing.

The only parliamentary privilege which is enshrined in legislation is the right to freedom of speech, protected since 1689 (Charles I tried to arrest several members of the House of Commons for “seditious speech”).

For the Scottish Constitution, I think a study needs to be made of parliamentary privilege, its uses, abuses, and value: and that study should not be carried out by MPs or MSPs, though their testimony might be useful.

John Hemmings’ may have been right to name Ryan Giggs under the circumstances – it was grossly unjust for his girlfriend to be accused of blackmail – but in effect Hemmings became the sole judge of his own behaviour. Should superinjunctions exist? Should the richer partner in a relationship be able to get a court order to silence the other partner? Would you have wanted to miss Tom Watson telling James Murdoch he’s a mafia boss?

In all seriousness: this should be discussed in detail. This is one instance where the Scottish constitution could not have binding force until independence: but where a serious and detailed consideration of Parliamentary privilege by people who are not MPs or MSPs would have public value.

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Filed under Elections, Scottish Constitution, Scottish Culture, Scottish Politics

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