The first decade of the 21^st century proved to be momentous for constitutional reform in the UK and, at times, a period of lively, even torrid, commentary on the law and practice of parliamentary privilege. The purpose of this paper is to identify the key developments in this debate and to consider the main issues that have arisen, with reference made to the equivalent position in NSW.

On 3 July 2013 the Joint Committee of the UK Parliament on Parliamentary Privilege, chaired by Lord Brabazon of Tara, published the latest instalment in what has been a long dialogue on the subject. The Joint Committee had been appointed by the two Houses to consider the Government’s Green Paper on Parliamentary Privilege, published in April 2012. The authors of the 2012 Green Paper acknowledged that they were guided “above all” by the 1999 Joint ​Committee on Parliamentary Privilege, chaired by Lord Nicholls of Birkenhead.[2.1]

The 2012 Green Paper, the first government-led review of parliamentary privilege in the UK, was published against the background of a number of scandals and controversies, in particular the events surrounding the case of R v Chaytor [2010] UKSC 52 in which three MPs had argued that criminal proceedings could not be brought against them on charges of making fraudulent expenses and entitlements claims because the court proceedings would infringe parliamentary privilege.[2.2]

Other recent developments in parliamentary privilege since 1999 are set out in Annex 1 to the 2013 Joint Committee Report, as well as in the 2012 Green Paper on Parliamentary Privilege. [2.4]

Writing in 2010, William McKay (a former Clerk of the UK House of Commons) and Charles W Johnson discussed a number of recent UK judicial decisions and comments that seemed to place “parliamentary privilege under pressure”. The “increased reliance” since 1999 of the courts on using select committee reports has been remarked upon by Sir Malcolm Jack, another former Clerk of the UK House of Commons. [2.3]

One UK academic has noted that “The scope of privilege is increasingly being narrowed to avoid it being used for reasons unrelated to those functions considered essential to an MP’s democratic duties, central to which is the ability to debate openly and fearlessly in Parliament”. [4.3.1]

It is in this context that issues in the continuing debate about parliamentary privilege are discussed. This paper builds on previous Research Service publications in this field, notably Parliamentary Privilege: major developments and current issues, Background Paper 1/2007 and Parliamentary Privilege: first principles and recent applications, Briefing Paper 1/2009.