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Dominic Cummings' testimony and the cloak of Parliamentary privilege

Posted on 28 May 2021

Long awaited and closely scrutinised, Dominic Cummings' testimony in front of the Committee for Health and the Committee for Science and Technology (the “Committee”) on 26 May presents a fascinating example of the application of Parliamentary privilege.

Parliamentary privilege

Nobody tuning into Wednesday's session was under any illusion that Dominic Cummings intended to pull his punches. Since his appearance, there has been an ongoing conversation about the accuracy of – and potential embellishments contained within – his accounts. So, if indeed some of Dominic Cummings' tale was a little embellished, why did he feel safe from legal repercussions as he presented it to the Committee, televised live before the Nation?

Evidence given before Parliamentary committees (such as the Committee) is protected by Parliamentary privilege, a sacred – but arguably often abused – legal immunity guaranteed under Article 9 of the Bill of Rights 1689. The purpose of Parliamentary privilege is to allow parliamentarians and those called before Parliamentary committees to perform their duties without fear of external interference or of legal redress. It grants protection against civil or criminal liability for actions done or statements made in the course of their duties. This includes an absolute defence to any claim in defamation: even in cases where statements are made with malice.

Given the total legal immunity it allows, there has long-been criticism, from both within and outside Parliament, that Parliamentary privilege has been abused for non-Parliamentary purposes. Indeed, in recent years, the perceived abuse of Parliamentary privilege has been the source of increasing consternation.

Instances of perceived abuse

This is not the first time that speaking under the cloak of Parliamentary privilege has been used to unveil secrets "in the public interest". In two notable recent cases, Parliamentary privilege has been used to breach injunctions against identifying an individual involved in court proceedings. In 2011, during an urgent Commons question on privacy orders, a Liberal Democrat MP, John Hemming, named and shamed Ryan Giggs as the footballer who had obtained an injunction over publishing details of his alleged affair with a former Big Brother contestant. It then happened again, in 2018, when Lord Hain attested that it was "his duty under Parliamentary Privilege" to name Sir Phillip Green as the businessman at the centre of the Court of Appeal case, ABC and others v Telegraph Media Group Limited [2018] EWCA 2329. The ABC case concerned five individuals who had signed non-disclosure agreements having settled claims in which they made allegations of discreditable conduct against a senior executive.

Both Lord Hain and the Liberal Democrat MP, John Hemming, were widely criticised for using and abusing Parliamentary privilege and disregarding the rule of law. Indeed, the Attorney General, Dominic Grieve, cautioned that "it ill serves the Parliamentary process if court orders are openly flouted for no good reason".

It seems inevitable that similar questions will be raised regarding Dominic Cummings' apparent expose of conversations conducted within Downing Street. His allegations of dishonesty and incompetence, which the Committee Chairman, Jeremy Hunt noted raised “very serious allegations said under Parliamentary privilege,” have the potential to ruin careers. Whilst it remains to seen whether there was any truth to his allegations, the shocking nature of his testimony should not detract attention from the worrying trend in the number of abuses of Parliamentary privilege or the regular and timely calls for reform that follow.

What next?

At a speech to BPP Law School in 2012 Dominic Grieve MP stated that, were abuses of Parliamentary privilege to become more commonplace, "as Attorney General and advisor to Parliament I would not shy away from advocating more stringent regulation of what members can say during Parliamentary proceedings." In fact, no steps were taken by the Government of the day and the cloak of Parliamentary privilege remained intact.

Calls for reform resurfaced again following Lord Hain's comments in 2018. Lord Pannick QC proposed that Parliamentarians should run any proposed disclosure in breach of a court order past the relevant Speaker. He suggested that a failure to comply with this requirement should be made a breach of the code of conduct, with potential sanctions including suspension or expulsion. Lord Pannick QC emphasised the fact that judicial decisions to impose injunctions are the result of careful and meticulous consideration. Parliamentarians are unlikely to have been privy to all of the facts and any decision to use a position in Parliament to breach a court order should, therefore, be subject to a strict system of checks and balances.

It remains to be seen whether Dominic Cummings’ testimony will spur the Government into finally taking action to address the use – and abuse – of Parliamentary privilege.

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