On 2nd December 2014 Mark Pritchard MP was arrested (after attending the police station by appointment) on suspicion of rape. After being released on bail he was told on 6th January 2015 that he would not fact any charge in relation to this allegation.
Perhaps unsurprisingly, Mr Pritchard’s brush with the law made him all a lot more concerned with the rights of the individual. He stated the complainant’s account was a “vindictive and outrageous story” but “Of course, she remains anonymous. The law on anonymity does need to be reviewed and fairness does need to play a far greater role in these cases”.
David Cameron made it clear that there was not going to be any movement on this. But, the question was raised on twitter as to whether Mr Pritchard could use the cloak of Parliamentary Privilege to name the complainant?
The law on anonymity
Before we look at Parliamentary Privilege, we have a factsheet on anonymity for complainants relating to sexual offences. In essence, anyone who is a complainant in a sexual offence is protected from having their name published. It is a criminal offence to name them anywhere (including twitter).
A prosecution cannot be started without the permission of the Attorney-General.
This goes back a very long time … before the Civil War in fact. In its current form, it is found in Art 9 Bill of Rights 1689 – “That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court of Place out of Parlyament“. Basically, an MP or member of the House of Lords is free to speak their mind (even if they don’t appear to have one) in the chamber without fear of being sued or prosecuted.
This protection is a very important one. In 1629 Sir John Elliot and two other MPs (Denzil Holles and Benjamin Valentine) were prosecuted for Sedition for things said in a Parliamentary debate ((1629) 3 St Tr 293). Although convicted, when the constitutional settlement was being examined after 1660 it was held that this was wrong and that the ability of members of Parliament to speak freely is absolute.
The case of Chaytor  UKSC 52 looks at the question of Parliamentary Privilege, and sets out a good overview history of it. If the name ‘Chaytor’ rings a bell, that’s because it was the appeal of former MP David Chaytor trying to stop his prosecution for expenses fraud. This case actually dealt with a slightly different issue.
But this summarises the law pretty well. It is abundantly clear that were Mr Pritchard to name her in Parliament, he could not be prosecuted for this. It may be that Parliament could find him in contempt (although this is unlikely), but no criminal or civil consequences would follow. I’ll set out a few quotes (some are quotes from other case):
- What is said or done within the walls of Parliament cannot be inquired into in a court of law…The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive (para 21)
- It is clear that statements made by members of either House of Parliament in their places in the House, though they might be untrue to their knowledge, could not be made the foundation of civil or criminal proceedings, however injurious they might be to the interest of a third person. And a conspiracy to make such statements would not make the persons guilty of it amenable to the criminal law. (para 35)
- Similarly, in Stockdale v Hansard (1839) 9 Ad & E 1, 114, referring to the two Houses of Parliament, Lord Denman CJ says that “whatever be done within the walls of either assembly must pass without question in any other place.” (para 110)
- Stephen J was clearly drawing a distinction between an “ordinary crime” (such as theft) and a crime (such as sedition) which a Member of Parliament committed by saying something in the exercise of his freedom of speech in the House. What the Member said in the House would fall within the exclusive cognizance of the House and would be protected by article 9 of the Bill of Rights. The House of Commons alone could consider the matter and decide what sanction, if any, should be applied to the MP. So he could not be prosecuted for the crime in the ordinary courts and, if any attempt were made to prosecute him, the House would intervene to stop the prosecution in order to protect the privilege of freedom of speech and debate of the House itself and, simultaneously, the particular Member’s exercise of that privilege (para 113)
What about the media reporting on it?
The general rule is that reporting on what is said in Parliament is covered by absolute privilege. In essence (and it is a lot more complicated than this, but here’s guide) the press can quote something an MP (or peer in fact) says in Parliament without fear of any repercussions (being prosecuted or sued for libel).
The reason for this is that “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 is an important public interest in the public knowing what is being debated and done in Parliament“.
Protection comes in part from the Parliamentary Papers Act 1840 – “Section 1 of the 1840 Act provided that any civil or criminal proceedings in respect of a `report, paper, votes or proceedings’ published by order of either House shall be stopped (`stayed’). Hansard is the best known example of such a report. Section 2 conferred similar protection on copies of such publications. Section 3 conferred a lesser degree of protection on `any extract from or abstract of’ such publications. An extract or abstract, when published in good faith and without malice, is immune from civil and criminal liability. An abstract means a summary or epitome.”
There is a wider protection under the common law, recognising the fact that newspaper reports don’t always come from Hansard.
A few years ago there was a lot of newspaper interest in the report of Lord Neuberger in his review of super injunctions (the full report doesn’t appear to be online still) that seems to suggest that a report of something covered by Parliamentary Privilege that would otherwise be actionable would only be covered if published ”in good faith and without malice’‘. It can be seen where this has come from.
It needs to be noted that this relates to the question of whether the publication is in good faith, not the statement itself. So if the statement in the House was an abuse of Parliamentary Privilege then that would not make a publisher liable, provided it was a ‘straight’ report of the proceedings.
Following this the then Lord Chief Justice said “the media “need to think whether it’s a very good idea for our lawmakers to be in effect flouting a court order because they disagree with the order or, for that matter, because they disagree with the law of privacy which parliament has created”. This, as I see it, is a call to responsible politicking on behalf of Parliamentarians, rather than a suggestion that the Courts would call into question the existence of the privilege.
Does it matter if he was abusing the privilege?
Nope. There are protocols in place to check this, so that there should be no discussion of ongoing criminal cases for example. But if that is breached, it does not deprive the speaker of the protection of privilege, but may amount to contempt.
Clearly, Mr Pritchard should not take the opportunity to do this, and nothing here should be taken as encouragement.