Privacy and Parliamentary Privilege

Parliament in 1647

Parliament in 1647

This recent period has been plagued with privacy issues, the biggest of which has been the infamous super-injunction.

It’s been good from an ‘impact’ perspective to have been asked about this. For the most part, though, I couldn’t have cared less. Footballers and their deviance is nothing new. Nor does it really matter to the outside world what our overpaid stars get up to. Little of the private lives gleefully splayed across front pages can be claimed to have significant public interest.

More interesting is the legal implications that arise when thousands of people decide to denounce privacy laws collectively. Anonymity has offered people a layer of protection to name and shame on Twitter. And the sheer volume of people doing so has posed an unusual problem for MPs (as well as a reason to join in!). We might note John Hemming’s daring words in Parliament this week:

Mr Speaker, with about 75,000 people having named _______, it’s obviously impracticable to imprison them all…

More interesting still is the issue of ‘parliamentary privilege’ – a principle that could barely sound more disconcerting. Aren’t its beneficiaries quite privileged enough? ‘Privilege’, away from second homes and the such, concerns procedures inside the Commons.

The Joint Committee’s 1999 report on parliamentary privilege defines it as follows:

Parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts. Members need to be able to speak freely, uninhibited by possible defamation claims. These rights and immunities, rooted in this country’s constitutional history, are known as parliamentary privilege. [1]

Commentators who have raised this recently have referenced the first legal notation of privilege as the 1689 Bill of Rights. [2][3] However, it had a strong part to play across the seventeenth century at large.

We find it mentioned in 1604, at a time when intentions of publicity and transparency were undermined by secret practice. It then became a vital tool for sovereignty in the English Civil War.

In 1642, Charles I was refused entry to Parliament when he turned up with an arrest warrant for 5 MPs. Members chanted ‘Privilege’ over this rebuttal. Then, following the execution in 1649, a poem by Andrew Marvell took a disgruntled swipe at the parliamentary stronghold of the public sphere. Addressing a volume of royalist poems by Richard Lovelace, he notes:

Some reading your Lucasta will allege
You wronged in her the Houses’ privilege.

Marvell laments that the body claiming to represent the voice of the people is complicit in suppressing it. The Houses’ privilege, limited to MPs and denied to the rest of society, goes against its representational ethos.

The 1640s saw the collapse of the Star Chamber, a vast expansion of print, and a renewed battle for censorship. Almost 400 years later, parliamentary privilege has intercepted yet another social media revolution. And as the super-injunction episode shows, secrets are much harder to contain.

It should be a shift for the better. The existence of these tools means that politics will have to adjust itself for a new era of transparency and accountability.

Interestingly, there are some predictions of this in the report of 1999, which suggests limits for this ancient and considerable privilege. Notably, MPs would now have to account for any “abuse” of their powerful liberty.

But what constitutes abuse remains unclear. Is John Hemming’s recent contempt of court, naming the nation’s most notorious legally-protected footballer, an abuse?

Responding to this article in the New Statesman, he claims not. As someone who speaks on behalf of privacy, I can only think that it does. Because the press has license to cover parliamentary affairs, Hemming gave every journalist in the land the entitlement and opportunity to circumvent a court judgement. He cannot claim to have done so in the public interest. It’s blatantly obvious that name-dropping was not necessary. It was done for headline making.

We may argue that injunctions are a weaselly outage for the rich; that privacy laws are inaccurate; that if individuals consort with the kiss-and-tell type, that they deserve everything they get. But should we openly determine whether a law should be obeyed or not purely because so many others have disregarded it already?

Would Mr Hemming claim that to drive at 100mph is fine because thousands do it on a daily basis? Or, to relate this to anonymous internet contravention, as he did, would he argue that since millions of people download material illegally from the internet, that must be fine too?

One of many problems with the use (or abuse) of parliamentary privilege in this way is the potential for corruption. There’s nothing to stop a newspaper bribing MPs to make similar demonstrations of ‘privilege’ so they get to break a story first. Privilege opens up a market for exclusives, and the law gets reduced to an afterthought.

Now that the press are actively nervous about the ethics of privacy, perhaps it is time that this particular custom was less shadowy. The ideological development in privacy that took place in the seventeenth century, alongside privilege and its great pressures, surely needs to take place again.

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