Parliamentary Privilege and the ICGS
ICGS and Proceedings in the House of Commons/Commons Committees
1. There is a distinction between the Behaviour Code, which applies at all times to all members of the parliamentary community, and the ICGS, which does not apply to formal proceedings of the House of Commons.
2. The ICGS does not cover anything said (whether orally or in writing) by a Member that forms part of proceedings in the House or its committees. This includes things said in speeches or interventions in the Chamber and general committees and, in select committees, questions put to witnesses and other things said in the course of formal meetings, whether in private or in public. The reason for this exclusion is that the Parliamentary Commissioner for Standards (PCS)—who has oversight of investigations against MPs conducted under the ICGS—has no remit to look into the behaviour of MPs during proceedings in the House or in committee, save for a very limited role relating to declaration of interests under the Code of Conduct.
3. The ICGS does not apply to formal parliamentary proceedings in the Commons and its Committees. Many matters can take place in the House or a Committee which are not formal proceedings and would not be so exempt. Examples of actions by a Member in the House of Commons chamber or in a committee room while the House or Committee is sitting (whether in public or private) that would fall within the remit of the ICGS and PCS include:
o bullying or harassment of another person via whispering or passing notes; or
o sexual misconduct in the form of unwanted touching of another Member, a clerk or other employee of the House, a witness or a visitor.
Actions such as these would be not be regarded as part of proceedings in Parliament and would therefore be eligible for investigation under the ICGS.
4. Freedom of speech in Parliament is a fundamental constitutional principle, but it is possible to challenge its abuse. If a Member used inappropriate words during proceedings, the following people could take action:
o In the Chamber, the Speaker/Deputy in the Chair could take action, either during the proceedings if inappropriate language is used, or by speaking to the Member;
o In Committees, the Chair could intervene (or another member of the Committee, if the Chair was the person behaving inappropriately) either during or after the proceedings. A member of staff could also intervene in a private meeting and/or speak to the Member afterwards about their behaviour. If appropriate, this could be supported by the ‘restrictions of service’ guidance for managers, endorsed by the House of Commons and House of Lords Commission, which allows the team to consider how they might put in place measures to protect staff from the Member’s behaviour, by restricting services;
o If a witness was subject to inappropriate behaviour during a Committee oral evidence session, the witness could write to the Chair of the Liaison Committee.
ICGS and Proceedings in the House of Lords/Lords Committees:
5. The Lords Code of Conduct states that a Member can be investigated for bullying, harassment or sexual misconduct that took place in the course of a proceeding. During any such investigation, the Commissioners for Standards needs to recognise freedom of speech as a primary consideration. The onus is therefore placed on the Commissioner (and the Conduct Committee on appeal) to strike the right balance between people’s safety and the right to freedom of speech. The relevant sections of the Lords Code of Conduct are as follows:
18. Members are required to treat those with whom they come into contact in the course of their parliamentary duties and activities (including parliamentary proceedings) with respect and courtesy. Behaviour that amounts to bullying, harassment or sexual misconduct is a breach of this Code.
29. In investigating and adjudicating allegations of non-compliance with this Code, the Commissioner and the Conduct Committee shall:
• (a) recognise as a primary consideration the constitutional principle of freedom of speech in parliamentary proceedings, including but not limited to the need for members to be able to express their views fully and frankly in parliamentary proceedings;
• (b) act in accordance with the principles of natural justice and fairness.