Of course MPs could have spoken out about the Afghan leak
This protection stems from the Bill of Rights 1688, one of the foundational texts of Britain's constitutional arrangements. Article IX says:
'That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.'
This is a broad protection, and it is absolute. Yet Robert Jenrick, the shadow justice secretary, and former home secretary Suella Braverman seem to be saying that they opposed the super-injunction which kept a two-year veil of secrecy over the Ministry of Defence's recently revealed Afghan data loss. They would have spoken out against it, but could have been prosecuted, so Jenrick says, under the Official Secrets Act 1989.
It is hard to see how this can be true. So long as they had expressed their concerns as part of 'proceedings in Parliament', for example in the chamber of the House of Commons, they would have been protected by parliamentary privilege.
In this respect, there is nothing 'special' about the Official Secrets Act, nothing within the legislation which gives it a particular status which overrides privilege. A select committee concluded in 1939 that Duncan Sandys, the young Conservative Member for Norwood, would not have been liable under the Official Secrets Act for disclosing classified information he had received about anti-aircraft weapons if he had done so in a parliamentary setting (the 'Sandys case'). Privilege would have protected him from prosecution.
This position was upheld by the Committee of Privileges in 1987, and by the Joint Committee on Parliamentary Privilege in 1999, which concluded 'We recommend no action should be taken to limit freedom of speech in respect of breaches of the Official Secrets Acts in the course of proceedings in Parliament'. In evidence to the joint committee, the then-attorney general, John Morris, supplied a memorandum to which he attached a note written by his predecessor, Sir Donald Somervell, in 1939 in relation to the Sandys case.
'I would respectfully agree with his conclusion… that a statement by a Member in the course of debate or proceedings in Parliament, which would otherwise amount to an unlawful disclosure under the Official Secrets Acts 1911 and 1920, could not be made the subject of proceedings in the courts. The same must be true… for the Official Secrets Act 1989.'
The existence of a super-injunction does not affect the situation either. In 2011, the Liberal Democrat MP John Hemming violated a super-injunction which footballer Ryan Giggs had been granted to conceal an extra-marital affair with his brother's wife. Questioning the then-Attorney General, Dominic Grieve, on privacy injunctions, Hemming said:
'With about 75,000 people having named Ryan Giggs on Twitter, it is obviously impracticable to imprison them all…'
The Speaker, John Bercow, reminded him that the question was on the principle of these instruments, but Hemming faced no legal or disciplinary sanction – he was protected by parliamentary privilege.
The principle is very clear and well-established: MPs cannot be subject to civil or criminal proceedings on the basis of what they say in Parliament. That is what Article IX is for. If Jenrick or Braverman have received contrary advice, we need to know that, because it would strike at a basic constitutional principle. If they have not, they should explain why they are mistakenly claiming that they were effectively gagged.
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