Parliamentary Legitimacy and Priviledge Flashcards
What is ‘parliamentary legitimacy’?
Parliamentary legitimacy is based on the idea that Parliament has received a democratic mandate from the citizens who voted for its members (MPs), and therefore that Parliament is accountable to the people.
Remember that Parliament is not the government (executive). There is significant overlap between the two in terms of personnel – as addressed in your materials on the separation of powers – but the question of the democratic legitimacy of government raises distinct considerations.
How is Parliament not particularly representative of the population overall?
The Members of Parliament sitting in the House of Commons are democratically elected, i.e. in open and fair elections, by citizens. Every citizen’s vote carries the same weight.
However, in order to have a realistic prospect of winning a seat in Parliament, a prospective MP needs to be a member of one of the major political parties.
That is not to say that members of smaller political parties never get elected – for example, Caroline Lucas, the Green Party MP for Brighton Pavilion – but it is very rare in the UK’s ‘first past the post’ electoral system. It is also possible to run as an independent candidate, but few do, and there are even fewer successes.
The pool of candidates is therefore very largely limited to people who are willing and able to join a political party and satisfy their criteria for selection as a candidate. The consequence is that Parliament is not particularly representative of the population overall.
How does a criminal offence affect an MP?
- An MP who is arrested on suspicion of a criminal offence need not inform the Speaker, as long as it does not affect their attendance in Parliament.
- In the case of an MP who is convicted but released on bail pending appeal, or fined, the judge or magistrate does not need to inform the Speaker.
- If an MP is convicted and sentenced to imprisonment of any length of time, the judge or magistrate will inform the Speaker by letter.
- If an MP is sentenced to over a year in prison, they are disqualified from sitting and voting in the House of Commons or its committees.
MPs’ conduct outside the Chamber also has an impact on the perceived legitimacy of Parliament – an MP convicted of a criminal offence, for example, is unlikely to be seen as a suitable representative of the people.
How does House of Commons Code of Conduct?
One of the stated purposes of the Code of Conduct for Members of Parliament is to “[ensure] public confidence in the standards expected of all Members and in the commitment of the House to upholding these rules”.
The Code states that it applies to Members in “all aspects of their public life” but not in their “purely private or personal lives”.
The First Rule of Conduct is that: “Members shall base their conduct on a consideration of the public interest, avoid conflict between personal interest and the public interest, and resolve any conflict between the two, at once, and in favour of the public interest”.
Breaches of the Code of Conduct are investigated by the Parliamentary Committee on Standards and may result (in very serious cases) in expulsion from the House.
How does Expulsion from the House happen?
Expulsion from the House is the most serious form of punishment that the House of Commons has power to impose. A motion is moved, usually by the Leader of the House, “that [the MP] be expelled from this House”. It is generally reserved for serious crimes, perjury, fraud and corruption.
In 1976, John Stonehouse, the then Labour MP for Walsall South, was expelled from the House. This was after serious financial problems led him to flee the UK on a deceased constituent’s passport and to fake his own suicide by drowning, leaving his clothes on a Florida beach. He was caught by the police in December 1975 and sent to Brixton prison in London, from where he continued to serve as an MP for several months.
The Parliamentary Committee on Standards has no power to expel an MP. However, its recommendations for expulsion are likely to be followed.
Since the Recall of MPs Act 2015, MPs can also be ‘recalled’ for a by-election if certain criteria are fulfilled in relation to that MP’s conduct, notably a conviction for an offence.
What are MP expenses and when was there a scandal?
In addition to their basic salaries, MPs receive expenses to cover the costs of accommodation, travelling between London and their constituencies, and running an office.
In 2009, following a Freedom of Information request, legal proceedings, and a leak to the media, a major political scandal erupted in relation to the amount and nature of expenses claimed by some MPs.
One of the most memorable claims was by Sir Peter Viggers, Conservative MP for Gosport, for a floating duck house costing £1,600.
The majority of claims related to MPs’ ‘second homes’ in London. Some MPs were claiming expenses for a second home (ostensibly to be nearer to Parliament), but not using them and instead renting them out. An investigative panel was established to look into claims for second homes.
Criminal charges of false accounting were brought against four parliamentarians, all of whom were imprisoned. MPs made voluntary repayments of approximately £500,000.
What is the Independent Parliamentary Standards authority?
The Independent Parliamentary Standards authority was set up in 2010 and is responsible for the regulation and payment of expenses to Members of the House of Commons.
The business costs and expenses claimed by each MP are now publicly available on the IPSA website.
MPs are also required to declare their financial interests in the Register of Members’ Financial Interests, to ensure transparency about any interests which “others might reasonably consider to influence his or her actions or words as a Member of Parliament”.
What does the the Parliamentary Committee on Standards do?
The Parliamentary Committee on Standards took its current form in 2012. Its remit includes the following:
- Oversee the work of the Parliamentary Commissioner for Standards
- Examine the arrangements proposed by the Commissioner for the compilation, maintenance and accessibility of the Register of Members’ Financial Interests and any other registers of interest established by the House
- Consider any matter relating to the conduct of Members, including specific complaints in relation to alleged breaches in the Code of Conduct which have been drawn to the Committee’s attention by the Commissioner
- Recommend any modifications to the Code of Conduct as may from time to time appear to be necessary.
Why is the House of Lords’ legitimacy questioned?
Legitimacy of the House of Lords
Members of the House of Lords are not elected by the people.
Nowadays, the majority are appointed - nominally by the King but, in fact, on the advice of the Prime Minister. Some non-party political members are recommended by the House of Lords Appointments Commission, an independent body established in 2000.
There are also some remaining hereditary peers sitting in the Lords. Their numbers were reduced to 92, however, following reform introduced by the House of Lords Act 1999.
The democratic legitimacy of the House of Lords has been and continues to be called into question - perhaps less frequently by ordinary citizens than by the government when the Lords get in its way.
For example, in May 2018, the government criticised the House of Lords for passing an amendment to the EU Withdrawal Bill which allowed Parliament a veto to avoid a ‘no-deal Brexit’.
The House of Lords does act as an important check on the actions of the government, however, as its members are arguably less susceptible to career considerations and pressure from their political party (if any) than MPs.
When will there be an investigation in the House of Lords?
As in the House of Commons, there is a Code of Conduct for members of the House of Lords. It covers very similar considerations, including personal behaviour and financial and business interests.
The Code of Conduct is enforced by the House of Lords Commissioner for Standards.
Investigations are usually commenced as a result of a complaint about the conduct of a member. The Commissioner will investigate if the matter is within their remit, for example:
- Failure to register relevant interests
- Breach of the rules on financial inducements
Matters outside the remit of the Commissioner include:
X Policy matters or a member’s views
X Members’ non-parliamentary activities
X Members’ conduct in their ministerial capacity
A member who is imprisoned for over a year ceases to be a member of the House.
Sanctions include:
• Suspension from the House
• Denial of access to financial support
• Expulsion (very serious cases only)
What is parliamentary privilege?
‘Parliamentary privilege’ means the range of freedoms and protections that both Houses require in order to function effectively. In summary, it consists of:
The right of each House to control its own proceedings and precincts.
For example, when the House of Lords Commissioner for Standards investigates a misconduct complaint, the evidence (e.g. relevant documents) becomes subject to parliamentary privilege and must remain confidential until released by the Commissioner.
The right of those participating in parliamentary proceedings to speak freely without fear of legal liability.
Article 9 of the Bill of Rights 1689 provides that proceedings in Parliament are not to be “impeached or questioned in any court or place out of Parliament”. This privilege continues to this day. An example of its application is the ability of MPs to make what would otherwise be defamatory comments during a debate in the House, without risk of legal liability.
what is meant by proceedings in parliament?
The meaning of “proceedings in Parliament” (originating from Article 9 of the Bill of Rights 1689) has been subject to judicial consideration.
The general principle is that the courts will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of established privileges. However, the courts will not allow misuse of the privilege.
In the case of R v Chaytor & Ors [2010] UKSC 52the Supreme Court held that expenses claims by MPs did not qualify for the protection of privilege, which would otherwise have allowed them to avoid a trial for false accounting. Expenses claims were not considered to be part of the core or essential business of Parliament.
What is Freedom from Arrest?
The ancient privilege of freedom from arrest applies to members of both Houses. Members may not be arrested without order or sentence of the House, except on a criminal charge or for a criminal contempt of court.
There remain today very few arrestable civil offences, and the Joint Committee on Parliamentary Privilege has recommended that members’ freedom from arrest in civil cases should be abolished.
The privilege has current practical application in that it exempts members from summons as a witness in court. Members may, however, choose to attend court voluntarily even when Parliament is sitting.
The Independent Parliamentary Standards Authority…
…oversees MPs expenses.
The Parliamentary Commissioner for Standards investigates…
…conduct allegations against MPs.
