Memorandum by the Faculty of Advocates
PARLIAMENTARY PRIVILEGE
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,
Edinburgh
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.
EDINBURGH
September 1998
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