Parliamentary Freedom of Speech and the Rule of Law

On 23 May 2019, the House of Lords is due to debate a motion moved by Lord Brown of Eaton-under Heywood (Crossbench) that “this House takes note of the potential conflict between the right of members to speak freely in Parliament and the obligation under the rule of law to obey court orders”. Lord Brown is a former justice of the Supreme Court.

Freedom of speech is a key element of parliamentary privilege, which is guaranteed by article 9 of the Bill of Rights of 1689. MPs and Members of the House of Lords have legal immunity for what they say or do during proceedings in Parliament. However, both Houses have passed sub judice resolutions which limit the discussion in Parliament of ongoing legal cases. This is intended to maintain an appropriate balance between the respective constitutional roles of Parliament and the courts.

On occasion, parliamentarians have used parliamentary privilege to disclose information in Parliament that was subject to a court order intended to prevent the dissemination of that information. Generally, someone who knowingly breaches the terms of such a court order could run the risk of being found in contempt of court. However, parliamentary privilege means that this does not apply to information disclosed in parliamentary proceedings. This has raised issues where a parliamentarian has revealed a name protected by a court order and it is subsequently repeated in the media, particularly in cases where proceedings were still active. There have been several reviews of whether Parliament should change its own internal rules on the use of parliamentary privilege to breach court orders. To date, the conclusion has been that it would not be necessary unless the frequency of such cases were to increase. Some of these reviews also identified practical difficulties in implementing rules to further restrain freedom of speech in parliamentary proceedings.

The purpose of this briefing is not to go into detail about any specific cases that have occurred. Rather, it explores the underlying principles and sets out the findings of parliamentary committees that have previously examined the subject.