Memorandum by the Clerk of the Parliaments
This note is concerned with clause 12 of the
draft Bill (proceedings in Parliament). It is fair to say that
the House of Lords, which has seldom concerned itself with matters
of privilege, does not feel as strongly as the House of Commons
about this further erosion of Article 9 of the Bill of Rights.
Even so, I entirely endorse what is said on the subject by Mr
Roger Sands (Clerk of the House of Commons), Sir William McKay
(his predecessor) and Mr Harry Evans (Clerk of the Australian
This will be the third serious erosion of Article
9 in the last 10 yearsthe others being Pepper v Hart 
and section 13 of the Defamation Act 1996. If the present trend
is not reversed, we could eventually lose the privilege of freedom
of speech altogether. Mr Sands makes the same point in paragraph
8 of his memorandum.
On the credit side, we have the recent judgment
of the European Court of Human Rights in A v the United Kingdom.
The Court concluded that "the parliamentary immunity enjoyed
by the MP in the present case pursued the legitimate aims of protecting
freedom of speech in Parliament and maintaining the separation
of powers between the legislature and the judiciary." There
are two other cases on Article 9 still to be determined, one in
the Court and one in the House of Lords. If those cases go the
same way, the position might not look quite so bleak. But the
position would be a great deal better if the fifth recommendation
of the Joint Committee on Parliamentary Privilege (replacement
of section 13 of the Defamation Act 1996) were implemented.