Parliamentary privilege: Why Liz Truss wants to give MSPs more debating powers
Tory party leadership candidate Liz Truss has said that, if successful, she will give MSPs parliamentary privilege powers to “allow them to more stringently hold the Scottish Government to account for its record”.
Speaking ahead of a hustings event held in Perth last night, the foreign secretary – who has made it clear she is against the SNP’s plan to hold a second independence referendum and has said the best way to deal with “attention seeking” First Minister Nicola Sturgeon is to “ignore her” – said introducing privilege at Holyrood would enable more “robust questioning” of ministers.
What is parliamentary privilege?
In the UK Parliament’s glossary of political terminology, parliamentary privilege is described as the mechanism by which members of both the House of Commons and the House of Lords are granted certain legal immunities “to allow them to perform their duties without interference from outside of the house”.
“Parliamentary privilege includes freedom of speech and the right of both houses to regulate their own affairs,” the definition states.
First enshrined in the 1689 Bill of Rights, privilege was initially intended to stop the monarch of the day from interfering in parliamentary affairs.
Now it essentially allows parliamentarians to speak freely within either house without fear of being sued for slander or, where reporting restrictions have been put in place by a judge, of being found in contempt of court.
It was famously used by Labour peer Lord Hain, the former leader of the House of Commons, in 2018, after the businessman Sir Philip Green secured an injunction that prevented newspapers in England and Wales from naming him in relation to a #MeToo story.
The injunction meant that The Daily Telegraph could report that it had spent months investigating allegations of bullying, racial abuse and sexual harassment against a business owner but could not disclose who that business owner was.
Hain told the Lords he had been “contacted by an individual intimately involved in the case” and that he felt it was his “duty” to name Green “given that the media have been subject to an injunction preventing publication of the full details of this story, which is clearly in the public interest”.
Because the media has the right to report what has been said in parliament it meant Green’s name could then be published in relation to the story without any publication being sued for breaching the terms of the injunction.
Similarly, earlier this year Liberal Democrat MP Layla Moran used parliamentary privilege to name 35 Russian oligarchs who she believed should be sanctioned in the wake of Russia’s invasion of Ukraine.
She said at the time that there was a problem with naming them outside the chamber because “many of them have very deep pockets and very expensive lawyers”.
Why does it not exist in the Scottish Parliament?
Parliamentary privilege was not written into the 1998 Scotland Act, the piece of legislation that allowed for the creation of the Scottish Parliament.
The act does include other protections for parliamentary debate, such as absolute privilege in relation to defamation and qualified protection from strict liability in relation to contempt of court.
Absolute privilege can be used as a defence against claims of defamation while qualified protection allows for some discussion of live court proceedings, which would normally be seen as an attempt to interfere with the course of justice.
Neither go as far as parliamentary privilege and Truss is not the first MP to indicate they believe that to be a failing of devolution.
Last year the Conservative MP David Davis used a speech in the House of Commons to say the lack of privilege at Holyrood represented a “deficit of power”. He pointed specifically to how it prevented certain questions being asked of the Scottish Government during an official inquiry into its handling of misconduct complaints against former First Minister Alex Salmond.
When the misconduct complaints led to a 2020 criminal case against Salmond, the presiding judge applied reporting restrictions that prevented any of the complainers being named in public. Salmond was fully acquitted at trial but due to the reporting restrictions remaining in place MSPs decided that his submission to the subsequent public inquiry could not be published, meaning the government could not be questioned on it.
Davis said that “evidence relevant to the Holyrood inquiry can be freely discussed here today using parliamentary privilege, but if an MSP in Holyrood were to do the same, they would likely find themselves facing down prosecution” from the Crown Office and Procurator Fiscal Service.
Days later Labour leader Sir Keir Starmer agreed with Davis’s stance, saying on a visit to Scotland that “it is obviously very important that parliamentarians can get up, as they can in Westminster, and make points, raise issues or concern with protection”.
Surely it would be for Holyrood, not Westminster, to introduce privilege into the Scottish Parliament?
While the Scotland Act is a piece of Westminster legislation, both the Scottish Parliament and Westminster technically have the power to amend the law relating to parliamentary privilege at Holyrood. However, any move to do so is likely to be far from straightforward.