Chapters: 01 | 02 | 03 | 04 | 05
2.1 The privileges of the two Houses of Parliament derive from ancient claims first coherently formulated in the sixteenth century (but some dating back earlier) as a means of enabling them severally and collectively to exercise their responsibilities without interference by the Crown. Some have long been entrenched in statute; others have been partially eroded by the legislative decisions of Parliament itself, but otherwise remain as claims, sometimes rooted in ancient Resolutions; yet others have only been firmly established by comparatively recent legislation. The core of parliamentary privilege is that Parliament controls its own proceedings, and that proceedings in Parliament cannot be impeached or questioned in the courts or similar institutions (such as tribunals). By extension, reports of those proceedings are now similarly covered. So a member cannot be sued for defamation for words he has used in Parliament (although the same words used outside Parliament are vulnerable).
2.2 Parliamentary privilege exists to protect the institution of Parliament and its two Houses. This has consequences for the extent to which individual members may claim the protection of privilege. Most importantly, in the context of the exemption, a Member's correspondence (including correspondence with Ministers or other Members of either House, or their Officers) is not privileged, unless it relates to actual or potential proceedings of the relevant House or committee [footnote 2]. Departments should bear in mind that any person breaching privilege may be punished by Parliament; failure to engage this exemption may therefore carry serious sanctions.
2.3 There is no definitive guide to what constitutes privilege. Erskine May, Parliament's procedure manual, provides as authoritative an account as possible of the present position.
2.4 Much information which is privileged is now routinely published by Parliament itself. Both houses, like all bodies covered by the Act, have publication schemes under s.19. The information now published by Parliament extends well beyond the record of proceedings to internal administrative documents and even individual members' expenditure against parliamentary allowances. That Parliament has chosen to publish the information does not mean that it has ceased to be privileged; it remains entirely Parliament's decision whether or not to continue publication. Within the context of the FOI Act, however, it does mean that disclosure of published information cannot be taken as 'infringement' of privilege. In many cases, this information will fall under section 21, as information which is 'exempt' from the Act because it is 'reasonably accessible' elsewhere.
2.5 Parliament's right to control of its own procedures means that information should not be disclosed which relates directly to the proceedings of either House and its committees, other than those whose release has been authorised by resolutions or orders of the House. A committee has no independent power of publication. 'Proceedings in Parliament' has never been precisely defined, but Erskine May provides a generally accepted definition that it embraces "some formal action (usually a decision) taken by the House in its collective capacity, ... the forms of business in which the House takes action, and the whole process by which it takes a decision". It extends to Committees as much as to the House itself.
2.6 The Parliamentary privilege exemption is most likely to be relevant to information contained in documents in the following categories, when they are unpublished:
2.7 Information which may be covered by Parliamentary privilege may also fall under other exemptions, depending on the subject matter. Parliament, however, attaches importance to the assertion of privilege wherever it is applicable. Particular care will therefore need to be taken in relation to requests for information about, or contained in,
The purpose of the privilege exemption is to protect the position of Parliament. It is not, of itself, intended to enable the withholding of information which, if it were not contained in parliamentary papers, would not justify withholding. Therefore, the draft of a memorandum responding to a select committee report may itself be covered by privilege; but factual information included in that draft report will not be and its disclosure should be assessed against other criteria. It will not be possible to make a disclosure that reveals what has been included in the draft report; but if the information can be abstracted and disclosed in some other form, that should be considered.
2.8 Other information arising from or related to a wide range of activities within Parliament is not regarded as privileged, although other exemptions may be relevant. The most significant categories are