Parliamentary Privilege First Report

Memorandum by the Faculty of Advocates


  I have pleasure in enclosing a short Response from the Faculty regarding the above.

  Many of the issues raised in your Discussion Paper are complex and technical and beyond the resources or experience available to the Faculty. Others call for political judgments of a kind which the Faculty as a representative professional body cannot enter into. For these reasons the response concentrates on the broad issue of whether and to what extent there is a continuing need for protection for statements in Parliamentary Proceedings, and concludes that the existing levels of protection should be maintained and codified.

  In this context it is suggested that Clase 37 of the recent Scotland Bill represents the bare minimum of what would be required, and the Faculty is sure that detailed treatment will be accorded to this difficult issue.

Yours sincerely,

Iain G Armstrong

The Clerk of Faculty

Parliament House,


6 October 1998

Letter from the Faculty of Advocates to the Clerk of the Journals, House of Lords on Parliamentary Privilege

  The Faculty recognises that the purpose and scope of Parliamentary Privilege are essentially matters for Parliament to determine after having had regard to reasoned public concerns as to what appears appropriate at particular times. The Faculty observes however that for many centuries the concept of granting privilege to an individual against potential legal action in respect of defamatory statements or other potential civil wrongs has been determined to be an essential part of the legal and constitutional system of Scotland and England so that, leaving aside gross abuse, public policy allows of circumstances where it is felt better that an individual should enjoy absolute or qualified freedom of speech rather than feel fettered by legal action. As regards Parliamentary Proceedings, the Faculty notes that the Human Rights Bill presently before Parliament seeks to accord to Parliament a privileged status.

  Rather than address the particular matters raised in the Consultation Paper, the Faculty prefers to comment more generally on the approach which, it is suggested, ought to be taken.

  The Faculty considers that, in the interests of clarity, codification of matters of Parliamentary Privilege and contempt of Parliament should be undertaken. At the very least, absolute privilege should be accorded to the general business of Parliament including all discussion within the Chambers together with written Parliamentary answers and all discussion within committees and Parliamentary Party meetings in respect of potential legislation and other proper Parliamentary business. Beyond that, the Faculty would expect other activities of a more peripheral nature to be the subject of qualified privilege in accordance with the general law. Clause 37 of the recent Scotland Bill should be seen as an example of the bare minimum scope for protective statutory intervention in relation to the core activities of Parliament.


September 1998

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