A briefing paper on the legal issues surrounding a Scottish independence referendum
At the start of business on 19 April 2022, the Speaker announced a debate would be held on Thursday 21 April on “the Prime Minister’s statements to the House regarding gatherings held at Downing Street and Whitehall during the lockdown”, as a ‘matter of privilege’.
The Speaker said he did not police the Ministerial Code or determine whether the Prime Minister had committed a contempt. His role was to decide whether there was an arguable case to be examined.
The House determines what happens next on the basis of a motion.
The motion will be tabled by Keir Starmer, the Leader of the Opposition. Shortly after Prime Minister’s Questions on 20 April, the Guardian live blog reported that the Labour Party had tabled the following motion:
That, this House
(1) notes that, given the issue of fixed penalty notices by the police in relation to events in 10 Downing Street and the Cabinet Office, assertions the Rt hon Member for Uxbridge and South Ruislip has made on the floor of the House about the legality of activities in 10 Downing Street and the Cabinet Office under Covid regulations, including but not limited to the following answers given at Prime Minister’s Questions: 1 December 2021, that all guidance was followed in No. 10., Official Report vol. 704, col. 909; 8 December 2021 that I have been repeatedly assured since these allegations emerged that there was no party and that no Covid rules were broken, Official Report vol. 705, col. 372; 8 December 2021 that I am sickened myself and furious about that, but I repeat what I have said to him: I have been repeatedly assured that the rules were not broken, Official Report vol. 705, col. 372 and 8 December 2021 the guidance was followed and the rules were followed at all times, Official Report vol. 705, col. 379, appear to amount to misleading the House; and
(2) orders that this matter be referred to the Committee of Privileges to consider whether the hon Member’s conduct amounted to a contempt of the House, but that the Committee shall not begin substantive consideration of the matter until the inquiries currently being conducted by the Metropolitan Police have been concluded.
What is meant by a ‘matter of privilege’?
The Joint Committee on Parliamentary Privilege that reported in 1999 said parliamentary privilege
consists of the rights and immunities which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary functions effectively. Without this protection Members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished (para 3)
Erskine May states that “the phrase ‘breach of privilege’ is, and long has been, used to include acts which are technically contempts” (para 15.1). May then describes ‘contempt’ in more detail:
Generally speaking, any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of their duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as a contempt even though there is no precedent of the offence (para 15.2).
Recent examples of privilege motions
The two most recent motions that have been taken as issues of privilege illustrate the options available to the Leader of the Opposition. He could ask the House to refer the matter to the Committee of Privileges or he could table a motion asking the House to agree that a contempt has been committed.
- On 28 June 2018, the House agreed a motion, tabled by the then Leader of the House, referring a matter to the Committee of Privileges. The motion said:
That this House notes that the Order of the House of Thursday 7 June has not been complied with; and accordingly refers the matter to the Committee of Privileges. [HC Deb 28 June 2018 cc1082-1084]
On 7 June, the House had ordered Dominic Cummings to give an undertaking to the Committee on Digital, Culture, Media and Sport, by 6pm on 11 June, that he would appear before the Committee on or before 20 June.
- On 4 December 2018, the House agreed a motion, by 311 votes to 293, that ministers were in contempt for failing to comply with a previous decision of the House that required them to provide legal advice on the EU Withdrawal Agreement. The motion, tabled by the Labour Party, said:
That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication. [HC Deb 4 December 2018 cc667-732]
How are privilege matters raised on the floor of the House?
To prevent frivolous allegations being discussed on the floor of the House, MPs who wish to raise a privilege matter have to write to the Speaker. The Speaker has discretion to decide whether the matter should have the precedence accorded to matters of privilege.
If the Speaker determines that the matter has precedence, they will announce their decision to the House, and the MP is told beforehand when such an announcement will be made. When the announcement has been made, the MP is entitled to table a motion formally calling attention to the matter, and either proposing that it be referred to the Committee of Privileges or making some other appropriate proposition. [Erskine May, Parliamentary Practice, 25th edition, 2019, para 15.32]
What is a contempt of the House of Commons?
The Joint Committee on Parliamentary Privilege, which reported in 1999, described contempts as comprising “any conduct (including words) which improperly interferes, or is intended or likely improperly to interfere, with the performance by either House of its functions, or the performance by a member or officer of the House of his duties as a member or officer”. The Joint Committee said the scope of contempt was broad because of the diverse nature of actions that might obstruct either House. It said that each House has the right to judge whether “conduct amounts to improper interference and hence contempt”. It provided a list of some types of contempt (after paragraph 264).
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