New law planned to protect politicians from being sued

Monday 25 January 2021

States Members are looking at establishing a new set of rules on ‘parliamentary privilege’ - the principle that allows them to speak without fear of getting sued.

Privilege grants certain legal immunities for politicians, as well as others contributing, for instance, to a Scrutiny hearing, to allow them to perform their duties without interference from outside the Assembly.

As well as providing immunity, privilege also refers to the powers of a parliament to protect its own processes - in Jersey’s case, it protects the Assembly’s standing orders from legal challenge. 

It does not, however, exempt politicians from investigation or arrest for criminal offences.

The new law has been proposed by the committee in charge of running the Assembly’s own affairs, the Privileges and Procedures Committee (PPC).

Pictured: Deputy Russell Labey, Chair of the committee that has proposed the new law.

Its chair, Deputy Russell Labey, said: “Free speech in parliamentary bodies like the States Assembly is vital. It enables States Members – and people giving evidence to Scrutiny panels – to speak openly and truthfully without fear of being taking into court by people who would prefer them to be silenced. 

“Without parliamentary privilege, legislatures cannot function effectively and our democratic system would be seriously undermined. These changes bring our law up to date, in line with best practice elsewhere in the Commonwealth, which I hope will provide reassurance to anyone considering standing for election in 2022.”

Although a politician’s right to speak openly might appear obvious, it is not without its critics.

In the House of Commons in 2011, UK MP John Hemming used parliamentary privilege to name Ryan Giggs as the celebrity protected by a controversial ‘super-injunction’, which received widespread condemnation from fellow MPs and senior judges for disrupting the legal process. 

Pictured: UK MP John Hemming infamously used parliamentary privilege in 2011 to name Ryan Giggs as the person alleged to have had an affair with a reality TV star.

Features of PPC’s proposed law include:

• a statement of what parliamentary privilege means in practice and a definition of the ‘States proceedings’ covered by privilege, based on Australian legislation.
• Rules about when Assembly material, such as the Hansard transcription, can be used in court proceedings.
• What constitutes ‘qualified’ privilege for Members’ correspondence with the public, if sent in their capacity as elected Members and undertaken without malice.
• An update to the offence ‘contempt’, dealing with intentional and significant interference with the work of the States or its committees and panels.
• Statutory confirmation that the Assembly’s rules are not within the jurisdiction of the Royal Court.

These updates have been brought forward following a review by Sir Malcolm Jack, a former Clerk of the UK House of Commons which showed the need to update key aspects of the law.