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FOI full exemptions guidance

Section 34 - Parliamentary Privilege

Chapters: 01 | 02 | 03 | 04 | 05

Chapter 01: The exemption under section 34

Stating the exemption

Section 34 of the Freedom of Information Act provides that:

  1. "Information is exempt information if exemption from section 1(1)(b) is required for the purpose of avoiding an infringement of the privileges of either House of Parliament.
  2. The duty to confirm or deny does not apply if, or to the extent that, exemption from section 1(1)(a) is required for the purpose of avoiding an infringement of the privileges of either House of Parliament.
  3. A certificate signed by the appropriate authority certifying that exemption from section 1(1)(b), or from section 1(1)(a) and (b), is, or at any time was, required for the purpose of avoiding an infringement of the privileges of either House of Parliament shall be conclusive evidence of that fact.
  4. In subsection (3) "the appropriate authority" means-
    • (a) in relation to the House of Commons, the Speaker of that House, and
    • (b) in relation to the House of Lords, the clerk of the Parliaments."

General Points

1.1 Privilege is a matter of constitutional law. It is not in itself regarded as a reason for secrecy. But as a matter of constitutional law, privilege is of the utmost importance for the effective working of Parliament as it protects the rights of Parliament to operate independently, without interference from external sources. There are essentially two reasons why the exemption takes the form it does: to preserve Parliament's right to regulate its own proceedings; and to prevent any external authority from attempting to adjudicate on Parliament's right to withhold information where that right is exercised on grounds of parliamentary privilege.

1.2 Although in most cases claimed by, or applied by statute to, Parliament as a whole, privilege is in all respects exercised by the two Houses separately, and never jointly. Accordingly, the privilege exemption is certified by the appropriate authority of one or other of the two Houses, and it cannot be certified by any other authority. For the most part, the exemption is likely to be capable of being invoked in respect of information generated by and held by the authorities of the two Houses. There are, however, certain categories of documentary and other information which may be generated or held elsewhere (particularly, but not exclusively, in central government departments) which might be thought to relate to 'proceedings in Parliament', and which may therefore require the department or other body concerned to seek guidance from the appropriate House authorities. If the privilege exemption applies, only the appropriate House authority can provide conclusive evidence of the fact.

1.3 The principal purpose of this Guidance is therefore to provide information to assist government departments and other public authorities in identifying the kind of documents in respect of which questions of privilege might arise; and to outline a recommended method of consultation with the House authorities when FOI requests relate to such documents, or appear to relate to such documents.

1.4 should also be noted that, while both the House of Commons and the House of Lords are 'public authorities' for the purposes of the Act, individual Members of Parliament or members of the House of Lords are not.


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