Rupert Lowe is asking the High Court to intervene in an argument he is having with the Independent Complaints and Grievance Scheme (ICGS), arguing that it does not have Parliamentary Privilege and therefore that its processes can be brought before the courts.
Privilege is a difficult word in a modern political context, but Parliamentary Privilege is a great protector, a cornerstone of the Constitution. Without it, MPs and peers cannot do their jobs, they would be beset with vexatious legal actions and would always be looking over their shoulders for fear of offending the powerful. It is worth defending as our liberties depend upon it, but it is narrowly defined as too wide a definition could lead to abuse.
Parliamentary privilege grew up historically to protect Members of both Houses as they went about their duties. From 1340 Members have been protected from ‘molestation’ when they want to enter Parliament, a point I regularly made to over-zealous security panjandrums. MPs must be free to get into the Palace because there may be an urgent vote which could be decided by one Member’s presence in the division, and agents of the Crown must not stop or in any way hinder them.
As it happens, this was an important right to maintain during the covid lockdowns, when some people wanted to ban MPs from travelling to Parliament. This would have undermined accountability, but would no doubt have made the government’s job a good deal easier.
However, free access to the precincts of Parliament is not the only or even the most important privilege, although it is an essential one. MPs benefit from freedom of speech and the protection 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 text from the 1689 Bill of Rights was the culmination of efforts to get the Crown to accept freedom of speech, by men such as Peter Wentworth in the reign of Elizabeth I, but it also makes a legislature effective, as it is part of the claim of Parliamentary Sovereignty.
There is no other court higher than the High Court of Parliament. The courts cannot look behind the curtain to see what has happened in either House. The Standing Orders of each House are exclusively its own business, this is called exclusive cognizance.
This was firmly established by the Bradlaugh case in 1884, where Justice Stephen quoted the great legal authority Blackstone, who wrote that “The whole of the law and custom of Parliament has its original from this one maxim, ‘that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates and not elsewhere’”.
The issue at hand was that Bradlaugh had refused to take the oath to the Crown that all MPs take, because he was an atheist. Thus the Commons ordered the Serjeant-at-Arms to restrain him so that he could not take his seat. Bradlaugh maintained that the order to the Serjeant was improper, but the courts held that it was the only way of implementing the will of the House of Commons, which could not be questioned, even if it were wrong, as there were no means of appealing the Commons decision.
