Public Office (Accountability) Bill: Exclusion

Lord Marks of Henley-on-Thames Excerpts

Thursday 26th February 2026 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join with everybody in congratulating the noble Baroness, Lady Jones, and thanking her for raising this issue and for the powerful and eloquent way in which she opened the debate and presented her arguments.

As we have heard, the question that the debate raises is whether it is right that Schedule 2 to the Bill would exclude parliamentarians from both Houses from the definition of public authorities and public officials who might be guilty of an offence of misleading the public under Clause 11. I agree with the noble and learned Lord, Lord Thomas, who described this as a very difficult issue that was not going to be simple to determine and that required a great deal of consideration.

On the one hand, as the noble Baroness, Lady Jones, pointed out, the exclusion of parliamentarians from the ambit of this offence could well be perceived by the public as putting parliamentarians above the law. Some Labour MPs have expressed that view in the House of Commons and the media, and the noble Baroness, Lady Jones, gained powerful support from the speech of the noble Lord, Lord Knight of Weymouth. The noble Lord also made the point, which is of considerable significance, that Ministers acting in their executive capacity would be liable to be prosecuted under this offence, whereas shadow Ministers would be in an entirely different position. On the other hand, if the exclusion were removed, it could be said that Peers and MPs might be deterred from speaking freely on important issues, and that is the basis on which parliamentary privilege is founded.

The reason given in the Explanatory Notes to the Bill for the exclusion of parliamentarians is, and I quote,

“in recognition of long-standing conventions around the independence of the judiciary”—

who I might say are also excluded from offences under Clause 11—

“and Parliament’s ability to regulate its own affairs. These institutions have their own processes for establishing and enforcing ethical standards”.

No more detailed explanation was given on behalf of the Government in Committee by the Minister at the MoJ, Alex Davies-Jones MP; she referred only to long-standing conventions of self-regulation and independence. For my part, I am not sure that is a convincing response. In my view, the mere existence of long-standing conventions should not prevent Parliament examining those conventions and, if necessary, legislating to overturn them.

I have a great deal of sympathy with the position taken by the noble Baroness, Lady Jones. She rightly points out that the Clause 11 offence is directed not at innocent mistake or honest disagreement but at deliberately or recklessly misleading the public, when the accused knows, or ought to know, that their act is seriously improper. That is a pretty heinous wrong, and one that the Bill is rightly determined to prevent and penalise. The threshold for conviction is a high one. So why, she asks, should parliamentary privilege and MPs’ and Peers’ freedom of speech get in the way of that worthwhile aim, against the background that we have seen of unacceptable institutional cover-ups and outright dishonesty by some official bodies, which this Bill is intended to address?

My concern with the position of the noble Baroness, Lady Jones, is not, principally, that without the exclusion parliamentarians would in practice be prosecuted for this offence. Rather, it is that without the exclusion parliamentarians could be threatened, publicly and in correspondence, with prosecution, and that the threat of attempted prosecutions could deter MPs and Peers from speaking their mind openly and without fear of the consequences. It is in that context that the protection of parliamentary privilege is genuinely an important democratic protection.

It is true that under paragraph 2(2) of Schedule 3, proceedings for a Clause 11 offence could be brought only with the consent of the DPP. Nevertheless, the whole process of investigation and consideration, and the threat of prosecution, could have a chilling effect on parliamentarians and parliamentary debate. It is therefore not only freedom from prosecution that is important but freedom from the threat of prosecution.

I am reminded of the argument around SLAPPs litigation—SLAPPs standing for the obscure description of strategic lawsuits against public prosecution. As we all know, SLAPPs are unmeritorious actions threatened or brought, often for alleged defamation, generally by powerful or wealthy individuals or organisations, to frighten off critics who would attack them in the press or elsewhere. SLAPPs are used as a form of oppressive censorship of investigative journalism and legitimate criticism, which we are rightly attempting to regulate, control or penalise.

In the context of this Bill, a parallel argument was advanced at Second Reading in the House of Commons by the Conservative MP Mike Wood. He foresaw a risk of parliamentarians being subjected to what he called “politically motivated lawfare”—I note that was an expression repeated by the noble Lord, Lord Young of Acton—which the exclusions are designed to prevent. I have to say I found some of the examples from the noble Lord, Lord Young, a little overstated at times, but nevertheless it is a point that is worth making. I found the argument of the noble and learned Lord, Lord Thomas of Cwmgiedd, very persuasive, including his distinction, which may not be directly on point but is helpful, between lying about politics and lying about personal characteristics. That distinction is illuminating.

We should not be so complacent as to believe that parliamentarians would be so immune to threats as always to stick to our guns in the face of them. Parliamentarians expect and welcome criticism, argument and disagreement. However, I suggest that the threat of prosecution for speaking their mind is not a legitimate hazard of parliamentary life. At worst, it may drive some to trim or curtail their arguments, even if not abandoning them. On the whole, and with some hesitation, I have come down on the side of parliamentary privilege and in favour of the exclusion that is written into the Bill, despite the very powerful arguments set out by the noble Baroness, Lady Jones, the noble Lord, Lord Knight of Weymouth, and others.