Deputies scrap review of absolute privilege

Deputies scrapped a review of the legal position – known as absolute privilege – when they voted 22-17 in favour of an amendment led by Yvonne Burford at last week’s States meeting.

Deputy Burford described absolute privilege as ‘indispensable to the functioning of a vibrant democracy’ and criticised an earlier direction to review it as ‘a waste of valuable States resources’.

The Assembly directed the review last year when some States members were unhappy about an investigation panel clearing Deputy Gavin St Pier of abusing privilege during a speech in which he criticised a local doctor.

‘I have had a look at various parliaments around the world and what they have to say about parliamentary privilege is pretty consistent,’ said Deputy Burford.

‘Parliamentary privilege helps underpin parliamentary sovereignty. Without it, members of a parliament would not be able fully to represent their constituents’ interests and would not be able to scrutinise the government without fear of falling foul of legislation. It is an essential element of a modern parliamentary democracy.’

Absolute privilege is a complete defence to an action for defamation. The concept was established hundreds of years ago in English law.

As well as protecting States members over speeches they make in the States, it also covers written documents submitted to the Assembly, and the proceedings of States committees in a range of matters.

Deputy Burford said that the Scrutiny review of the States IT contract with Agilisys would have been far more complex to publish without the protection of privilege.

Deputy David Mahoney disagreed with scrapping the review. He pointed out that it was little more than a year since deputies had backed the review by 31 votes to five.

‘What should change the minds of 31 people from when we agreed it then? I’m somewhat surprised,’ he said.

Deputy Al Brouard also believed the review was still necessary. He was concerned that members could be protected while deliberately misleading the parliament.

Sasha Kazantseva-Miller, who seconded the amendment calling for the review to be scrapped, was one of the five members who voted against in the original proposal for a review in January 2024.

‘I feel there was a knee-jerk reaction because for the first time there had been a privilege case debated in the Assembly,’ said Deputy Kazantseva-Miller.

‘Ultimately, privilege is about freedom of expression. I would argue that it’s difficult to put restrictions against freedom of expression in parliamentary proceedings.’

Absolute privilege has applied for States members for many years.

However, alleged misconduct in States meetings could previously be investigated under the members’ code of conduct, until proceedings in the Assembly were removed from the code earlier this term.