Parliamentary Privilege First Report


  188.  The privilege of freedom of speech in Parliament places a corresponding duty on every member to use the freedom responsibly. The duty is all the greater now that the debates of the two Houses may be broadcast live anywhere in the world. For Parliament itself to make detailed rules on what may be said in Parliament would destroy the privilege, and this course has always been shunned. The rules and conventions which apply to debate in both Houses are directed primarily towards achieving orderly debate and good temper, not to restricting the subject matter of debate. However, absolute freedom of speech is a far reaching privilege and the Joint Committee has considered whether it is necessary or desirable to provide more formal safeguards against its abuse, while protecting the essential privilege.

The sub judice rule

  189.  One significant limitation already exists. Both Houses abstain from discussing the merits of disputes about to be tried and decided in courts of law. This practice, long established in criminal cases but of comparatively recent origin in civil cases[239], is known as the sub judice rule. The House of Commons rule is embodied in resolutions of 23 July 1963 and 28 June 1972; the House of Lords rule in various decisions of its procedure committee set out in the Companion to the Standing Orders. The rules of the two Houses are set out in annex E to this report. Both Houses have accepted that, by implication, the sub judice rule applies also to select committees, but it is a defect of the existing resolutions that this is not made clear. The rule is not absolute. In the Commons it may be waived at the discretion of the Chair. In the Lords there is no general power of waiver, but in certain circumstances a power of waiver is given to the Leader of the House. [240]

  190.  Shortly stated, the rule provides that matters awaiting adjudication in a court of law should not be brought forward in motions, debates, questions or supplementary questions. This is qualified, expressly in the case of the Commons, implicitly in the case of the Lords, by Parliament's right to legislate on any subject. The 1972 Commons resolution further qualifies the rule by providing that in the case of civil proceedings and subject to the discretion of the Chair, reference may be made to matters relating to ministerial decisions `which cannot be challenged in court except on grounds of misdirection or bad faith' and matters concerning issues of national importance such as the national economy, public order or the essentials of life. The House of Lords adopted a similar qualification in 1995. When doing so, however, the Lords did not adopt from the Commons rule the quoted (limiting) wording relating to ministerial decisions. The Lords rule permits discussion of matters relating to any ministerial decision, as well as issues of national importance, at the discretion of the Leader of the House.

  191.  The present rule rightly tries to strike a balance between two sets of principles. On the one hand, the rights of parties in legal proceedings should not be prejudiced by discussion of their case in Parliament, and Parliament should not prevent the courts from exercising their functions. On the other hand, Parliament has a constitutional right to discuss any matters it pleases.

  192.  It is important that a debate, a committee hearing, or any other parliamentary proceeding should not prejudice a fair trial, especially a criminal trial. But it is not only a question of prejudicing a fair trial. Parliament is in a particularly authoritative position and its proceedings attract much publicity.[241] The proper relationship between Parliament and the courts requires that the courts should be left to get on with their work. No matter how great the pressure at times from interest groups or constituents, Parliament should not permit itself to appear as an alternative forum for canvassing the rights and wrongs of issues being considered by the judicial arm of the state on evidence yet to be presented and tested. Although the risk of actual prejudice is greater in a jury trial, it would not be right to remove appeal cases or other cases tried without a jury from the operation of the rule. Restrictions on media comment are limited to not prejudicing the trial, but Parliament needs to be especially careful: it is important constitutionally, and essential for public confidence, that the judiciary should be seen to be independent of political pressures. Thus, restrictions on parliamentary debate should sometimes exceed those on media comment.

  193.  Criminal proceedings are a sensitive area. Finding the right balance will always be difficult. There is something to be said for the sub judice rule applying once it is known police investigations are taking place and charges may be brought. But, to be workable, the rule must have a clear boundary. There must be clear starting and finishing points for the rule in each case. The mere existence of police investigations, and the possibility of charges, do not satisfy this test.

  194.  Although not an exact parallel, some assistance can be gained from the provisions in the Contempt of Court Act 1981 regarding the `strict liability rule'. This is a rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so. Under the Act the strict liability rule does not apply to publications before proceedings are `active' or after they have ceased to be active. In general, the statutory definitions of when proceedings become active or cease to be active are unexceptional. For example, civil proceedings at first instance become active when arrangements are made for the hearing. The relevant provisions of the Act are set out in annex F.

  195.  However, there is a practical difficulty over Parliament applying in criminal cases precisely the same criteria as those contained in the 1981 Act. Under the Act criminal proceedings become active when an arrest is made or a warrant or summons to appear is issued. The difficulty lies in the different circumstances in which the Act and the sub judice rule are applied. Under the strict liability rule as modified by the 1981 Act, it is for the publishers of such material to satisfy themselves that proceedings are not active or face the consequences. However, proceedings for contempt of court by breach of the strict liability rule are exceptional and can only proceed with the consent of the Attorney General or by direction of the court. In contrast, the sub judice rule is applied routinely by the authorities of each House and used to prevent members doing anything which might breach the rule. If the 1981 Act formula were applied, it would be necessary to establish, in the time available to vet, say, a question in the Commons, whether an arrest had been made, and that time is often a few hours or less. If the Contempt of Court Act were followed, the House authorities would also have to be alerted to the release of an arrested person without charge, at which point the sub judice rule would cease to apply.

  196.  The practical difficulties in this would be considerable and could be insuperable. We consider that for the purposes of the sub judice resolutions, criminal cases should continue to become active only when the case against an individual is formulated in a charge or summons to appear. It should be emphasised that drawing the line at this point does not remove the obligation on individual members and select committees to act responsibly and avoid actions which impede criminal investigations or abort trials.

  197.  In line with the Contempt of Court Act 1981, one desirable relaxation in the sub judice rule concerns pre-trial applications in civil cases. Under the 1981 Act a pre-trial application, for example, an application for an interlocutory injunction, is treated as a distinct proceeding. Adapting this to the sub judice rule, a member would be permitted to comment on an interim decision after it had been given, for example, granting an interlocutory injunction against a strike, so long as the proceedings as a whole had not been set down for trial.

  198.  In the Commons the exception to the sub judice rule for matters relating to ministerial decisions is confined to ministerial decisions which can be challenged in a court only on grounds of misdirection or bad faith. It seems questionable how far there are any ministerial decisions that can be challenged only on these limited grounds. We consider, therefore, that this exception should be drawn more widely so as to include any ministerial decision. In this respect the Lords rule is preferable. At the same time it is desirable to retain the absolute discretion of the Chair (or, in the Lords, the Leader of the House) over discussion of ministerial decisions. There may be special circumstances, even in judicial review, where debate in either House could be highly prejudicial.

  199.  A further exception should exist, as at present, subject to the discretion of the Chair in the House of Commons or the Leader in the House of Lords, for any matter where issues of national importance arise, for example, the national economy, public order, or `the essentials of life', such as the maintenance of essential services. Further, each House should retain the right to legislate on any matter. This cannot be otherwise, though it is rare that the circumstances of a particular case current in the courts are directly relevant to pending legislation.

  200.  The key to the successful operation of the sub judice rule over the years in the House of Commons has been the sensitive use by the Speaker of discretionary powers. In exercising this discretion the Chair is rightly vigilant to enforce the sub judice rule and relax it only in exceptional circumstances. The Lords have recently sought to replicate this discretion in part, by giving powers to the Leader of the House to waive the rule in the specific circumstances mentioned above. No rule can anticipate every situation that may arise, and there will be times when the Chair has to strike a balance between the public interest in the unimpeded progress of judicial proceedings and other aspects of the public interest.

  201.  In the application of a newly worded rule, the exercise of discretion in both Houses will continue to be important. In practice this discretion must be applied separately in each House. But it is clearly desirable that the two Houses should have an identical sub judice rule, and that each House should also be in the same position to permit debate on a sub judice matter when the circumstances warrant it. We recommend that a general discretion to waive the sub judice rule and permit discussion, comparable to that of the Speaker in the Commons, should be introduced into the House of Lords. The occupant of the Chair in the House of Lords has no special powers to impose order or give rulings. The Leader of the House would therefore probably be the appropriate person to exercise such a general power of waiver.

  202.  We recommend that the two Houses should adopt a resolution to the following effect. This resolution incorporates the points made above and certain minor improvements:

`That, subject always to the discretion of the Chair, and to the right of the House to legislate on any matter or to discuss any delegated legislation, the House in all its proceedings (including proceedings of committees of the House) shall apply the following rules on matters sub judice:

1.  Cases in which proceedings are active in United Kingdom courts shall not be referred to in any motion, debate or question.

(a)  (i)  Criminal proceedings are active when a charge has been made or a summons to appear has been issued, or, in Scotland, a warrant to cite has been granted.

(ii)  Criminal proceedings cease to be active when they are concluded by verdict and sentence or discontinuance, or, in cases dealt with by courts martial, after the conclusion of the mandatory post-trial review.

(b)  (i)  Civil proceedings are active when arrangements for the hearing, such as setting down a case for trial, have been made, until the proceedings are ended by judgment or discontinuance.

(ii)  Any application made in or for the purposes of any civil proceedings shall be treated as a distinct proceeding.

(c)  Appellate proceedings, whether criminal or civil, are active from the time when they are commenced by application for leave to appeal or by notice of appeal until ended by judgment or discontinuance.

But where a ministerial decision is in question, or in the opinion of the Chair a case concerns issues of national importance such as the economy, public order or the essential services, reference to the issues or the case may be made in motions, debates or questions.

2.  Specific matters which the House has expressly referred to any judicial body for decision and report shall not be referred to in any motion, debate or question, from the time when the Resolution of the House is passed, until the report is laid before the House.

3.  For the purposes of this Resolution -

(a)  Matters before Coroners Courts or Fatal Accident Inquiries shall be treated as matters within paragraph 1(a);

(b)  `Motion' includes a motion for leave to bring in a bill; and

(c)  `Question' includes a supplementary question.'

Breaches of court injunctions

  203.  The sub judice rule does not apply after court proceedings have ended. Each House is then free to discuss the issues arising in the case and the court's decision. However, in some types of case the court makes a `no publicity' order or, which may come to much the same thing, conducts the proceedings in private. This occurs when a trial in open court would render the proceedings nugatory. Examples are when the subject matter affects national security or is a trade secret. Another instance is proceedings concerning the welfare of a child, where a public hearing would undermine the object of the proceedings. For the same reasons the courts sometimes make orders restraining publicity concerning certain aspects of the case.

  204.  Where matters are sub judice, the self denying rules of the two Houses mean that court proceedings are raised more frequently in the media than in Parliament. The position is reversed in the case of court injunctions restraining publicity: these bind the media but not either House. Although in such circumstances reporting a matter divulged in parliamentary proceedings is strictly a contempt of court, the courts are in practice reluctant to proceed against a report of what was said in Parliament. Indeed, with live broadcasting and the publication of Hansard on the Internet, it may be considered pointless to do so. But it is the reporting of such a breach, and the publicity given to it, which force Parliament to consider whether to place its own restrictions on this particular use of free speech.

  205.  The issue is a difficult one. The sub judice rule exists to ensure trials can be conducted without external interference. That purpose applies to interim no-publicity orders. Breach of such an interim order can prejudice the trial. That reason no longer applies once a trial is finished or a decision has been made. After the trial is over, the mischief is different. The mischief then is that publicity may undermine the result achieved by the court, to the prejudice of the parties or the national interest. But if limits are to be imposed on parliamentary freedom of speech, there is a real difficulty in identifying the limits and any workable criteria or procedures.

  206.  This is the problem inherent in one possibility we explored, and which two former Leaders of the House thought might work successfully[242]: that a member breaching an injunction should be required to justify his action before the privileges (or another) committee after the event, or risk punishment for misconduct. This would not deter a member determined to breach an injunction, but the existence of such a procedure might deter frivolous or ill-conceived breaches. This procedure could work only if the criteria justifying, or not justifying, a breach of a no-publicity order were published in advance.

  207.  The Joint Committee considered other possibilities. Prior vetting by a select committee, or permitting an injunction to be breached in the House only after the public had been excluded, are not practicable options, given the nature of debate. Further, it might be difficult to avoid political considerations entering into a decision when an injunction was granted at the behest of the government of the day on a politically controversial subject matter. To place the burden of vetting in every case in the Commons on the Speaker would risk bringing the Speaker into a controversial political arena. In the House of Lords, it is difficult to see which person would be appropriate to carry out a parallel vetting exercise.

  208.  A particularly controversial breach of an injunction was the naming of `child Z' in a House of Commons early day motion in session 1995-96. The High Court and the Court of Appeal had both decided that the child's name should not be disclosed. The breach of the order was given great publicity. The Speaker referred the matter to the procedure committee. The committee noted in its report that `the fundamental problem is that Parliament - or more accurately a single member of Parliament - without requiring any debate or decision in the House can set at naught the judgment of the court, arrived at with great care, and thereby render ineffective the remedy afforded'. At the same time the committee observed that `the sort of proceeding complained of is extremely rare. The case which gave rise to the reference was almost the only one known' to the House authorities.[243] The committee concluded:

`If there were strong evidence to suggest that breaches of court orders as a result of proceedings of the House represented a serious challenge to the due process of law, we would not hesitate to recommend a further limitation on the rights of free speech enjoyed by members, whatever the practical difficulties. We consider there is much judicial weight behind the suggestion of the Master of the Rolls that, where an order has been made restraining publication of a name or other information, Parliament would want to support the High Court. We do not, however, consider it necessary to take action as a result of one specific case, given the importance the House rightly attaches to protecting the right of Parliament to freedom of speech. We urge members to exercise the greatest care in avoiding breaches of court orders. Should there be a number of instances of such breaches, the House would be well advised to adopt a resolution along the lines we set out'.[244]

  209.  In evidence to the same Commons procedure committee inquiry Sir Thomas Bingham, then Master of the Rolls[245], expressed concern at the child Z incident. As Lord Chief Justice he expressed similar concern to the Joint Committee.[246]

  210.  Having re-examined the issue we do not recommend, at this stage, going any further than the House of Commons procedure committee in 1996. Instances such as the child Z case, when a member deliberately sets at naught a ruling of a court, are exceptional. We are mindful that breaches of injunctions could give rise to injustice. We are also mindful of the right to an effective remedy guaranteed by article 13 of the European Convention of Human Rights, regarding, for instance, the right to respect for private and family life. If breaches of injunctions became frequent and Parliament were perceived to be impeding the interests of justice, implementation of the substance of the procedure committee's draft resolution would seem inevitable, at least in respect of court orders relating to particularly sensitive matters such as those made to protect the identity of children. But until there is evidence that such a step is essential, we are as reluctant as our predecessors to limit freedom of speech more than is necessary. We recommend that at present no action should be taken to limit freedom of speech in respect of court injunctions.

  211.  Members will appreciate that the House has overriding powers to discipline its members for conduct regarded by the House as irresponsible. Accordingly, it is in members' own interests that they should consult the House authorities in this type of case.

Breaches of the Official Secrets Acts

  212.  Similar considerations apply to breaches of the Official Secrets Acts 1911 to 1989. As with breaches of court injunctions, the difficulty here lies in the broadcast of the breach rather than the breach itself. It is self-evident that members should wilfully divulge classified information in the House only in most exceptional circumstances and after long and careful thought. The more highly classified the information, the more exceptional the circumstances will be. As in the case of court injunctions, any member contemplating such a step should seek appropriate advice.[247]

  213.  It would be a serious step to limit freedom of speech by making members liable to prosecution under the Official Secrets Acts for what they say or do in parliamentary proceedings.[248] It is notable that, even on the outbreak of war, and in the context of a threat to disclose secret information regarding the state of London's anti-aircraft defences, a House of Commons select committee accepted that disclosures made in the course of parliamentary proceedings were protected by article 9, and rejected any suggestion that the privilege should be limited.

  214.  The House of Commons privileges committee examined the issue in 1987. That committee firmly rejected the option of exposing members to the risk of prosecution. This was unjustified in principle and would create practical difficulties for members. The privileges committee also considered whether the House should pass a resolution prohibiting information being given in public within the precincts of the House, either in debate or in the course of proceedings or in any other way, which would damage national security. The privileges committee rejected this option too, again primarily on the ground of its interference with freedom of speech. It thought any resolution would be too general to be effective. It would be difficult for members to identify what information was covered by the prohibition, and it would be almost impossible for the Chair to enforce the resolution. Having considered other procedural options, the privileges committee came to this overall conclusion:

`. . . any member must be free to make public, in the course of proceedings in Parliament, information which he believes should be published. For example he may well consider that certain facts, perhaps about spending large sums of money on major weapons systems, should be disclosed in the wider public interest, even though others may think this damaging to national security. To give ministers the power, without the authority of the House, to prohibit, even for a limited period, disclosure of information about their actions, would mean that the executive could muzzle its critics. This would strike at the very heart of the ancient privilege of freedom of speech which is enshrined in the Bill of Rights.'[249]

    `That, subject always to the discretion of the Chair and to the right of the House to legislate on any matter, no reference should be made in any motion, in debate or in any question or supplementary question to a Minister to any matter (a) the publication of which is subject to restraint by order of a court of law in the United Kingdom, or (b) is of a class of information the publication of which is expressly prohibited by the criminal law.'

    `A privilege which cannot be abused is no privilege, for that which constitutes abuse is a matter of opinion and it is part of the privilege of [the House of Commons] and individual members to be able to say in this place not only what they would not say outside without the risk of process but to be able to say that to which grave objection is taken by every other honourable member. Unless an honourable member could do that, or if it was possible for his doing of it to be somehow undone, we would have lost our power to serve those who sent us here.': Rt Hon Enoch Powell, HC Deb 2 May 1978, c 44.

  215.  We cannot rule out the possibility there may be occasions when the benefit, in the public interest, of disclosure of a secret matter by a member outweighs any harm caused thereby. As with breaches of injunctions, it is difficult to envisage a workable system of prior vetting. Such a system would not dissuade a member determined to reveal secret information. Prior vetting could also involve a vetting committee or the Chair making judgments essentially political in character. In practice, few members of Parliament outside government become familiar with information whose publication would be seriously damaging to the state or threatening to the life of an individual. We are not aware of any occasion when such information has been made public.

  216.  We do not consider there is any new evidence since 1987 to cause us to differ from the conclusions of the procedure committee. 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. It should be noted, however, that it is always open to either House to treat as a contempt, and to discipline severely, any member who in the opinion of the House had grossly abused the right of free speech.

Criticism of individuals: a right of reply?

  217.  The absolute privilege of freedom of speech enables members to comment on the activities of individuals, companies, representative bodies, interest groups or anyone else without fear or favour. For the most part this immunity is exercised responsibly in both Houses. In the Commons the Speaker frequently reminds members of the duty each of them owes to the House and the public not to abuse the privilege.[250] The Commons procedure committee has reminded members that the purpose of privilege is to protect the institution of Parliament, not to set individual members outside the law, and that members should use parliamentary privilege responsibly.[251]

  218.  Within this framework there are occasions when members make observations on identified or identifiable people which may be unfairly critical or even defamatory. Such statements can damage the reputations and businesses of individuals. The statements may be reported widely and even prominently in newspapers and television and radio broadcasts of parliamentary proceedings. Those impugned, however, cannot clear their names or obtain compensation. Because of the legal immunity afforded by article 9, they have no legal redress.

  219.  Some Commonwealth jurisdictions have introduced a `right of reply' scheme to provide a form of redress for persons who believe they have been unfairly criticised in Parliament.[252] The schemes involve a procedure whereby such a person has an opportunity to have a response by him incorporated into the parliamentary record.[253] In most Commonwealth schemes, the procedure does not involve the privileges committee deciding the truth of the statements made in the House or in the citizen's submission. The procedure was adopted first in the Australian Senate in 1988, and later, and modelled on it, in the Parliament of New South Wales and in the legislative assemblies of Queensland, Western Australia, and the Australian Capital Territory. Recently New Zealand has adopted a similar system.[254]

  220.  The House of Commons procedure committee examined the Australian Senate's scheme when it reported on the conduct of members in the chamber and alleged abuse of parliamentary privilege in session 1988-89.[255] The procedure committee recognised the advantages of a system which provided `a clear and relatively uncomplicated method for an aggrieved person . . . to secure a rebuttal which enjoys something approaching the same prominence as the original allegation' and thought it `might conceivably deter some members from making wholly unfounded remarks damaging to individuals, without formally proscribing their right to do so'. But the procedure committee was concerned the rebuttal might not appear until several weeks after the allegation, robbing it of any immediacy. It also saw a danger that, although the privileges committee would not be adjudicating on the truth of the member's initial remarks or the complainant's submission, by allowing the rebuttal at all ` somebody is passing judgment on the member'.[256] They also thought it possible that, if the system was used frequently and well publicised, every person criticised in the House would feel bound to submit a reply, since failure by an aggrieved person to take advantage of the procedure might be regarded as tantamount to acceptance of the truth of the allegations.[257]

  221.  We are not persuaded that the experience of the Australian Senate since 1989, when the Commons procedure committee reported, has dispelled the force of these criticisms.[258] We are not able, therefore, to recommend the introduction of a right of reply scheme at Westminster. The introduction in this country of such a novel form of parliamentary procedure would suffer from the drawback of raising expectations that could not be fulfilled. Simply to publish the text of any reply would mean that the truth or falsity of the criticism would not be established. No financial redress would be forthcoming. The statement itself, even if published in Hansard, would not necessarily attract publicity matching the original comments. Moreover, as a matter of principle, statements by non-members ought not, in any event, to have the benefit of the absolute privilege accorded to the official record of parliamentary proceedings. A practical consideration is that the problem is not a serious one at Westminster. Although there are complaints from time to time from those who consider they have been unfairly attacked, there is little demand for such a scheme.[259]

  222.  If political abuse is discounted, few defamatory personal attacks are made against non-members in debate in either House of the United Kingdom Parliament. When attacks are made, it is not the case that individuals have no right to respond at all. They are not precluded from defending themselves robustly outside Parliament, and the media are ever watchful over members' conduct. The target is frequently an individual or an organisation having financial means and access to the media necessary to amount an effective defence. In cases where there has been an obvious injustice, we doubt whether the aggrieved party would find difficulty in obtaining the support of other members. Early day motions and adjournment debates, for example, offer such members opportunities to challenge allegations made in the chamber against named individuals. The former Mr Speaker Thomas was not far from the mark when he said:

`. . . when an honourable member defames someone [who is] outside the House, no one is more watchful or, sometimes, angry than the House itself. The House has its own way of punishing any honourable member who defames someone who cannot answer for himself in the House . . . the House will deal with him if he goes too far.'[260]

  223.  The Joint Committee has concluded that, taken cumulatively, for the Westminster Parliament the drawbacks of a right of reply scheme outweigh the advantages. We accordingly recommend that a right of reply scheme should not be adopted.

Personal responsibility

  224.  Free speech is the most important parliamentary privilege and members should be careful not to abuse it. Ultimately the responsibility lies with the individual member. We cannot improve on the words of the Commons procedure committee of session 1988-89:

`We reiterate that the privilege of freedom of speech is an essential protection for members in carrying out their duties. There is no point in this privilege unless it provides guarantees against attempts from outside to control what members choose to say in the House. However, privilege carries with it responsibilities as well as rights; and those responsibilities have to be exercised within the rules laid down by the House and in conformity with the standards it expects of its members. Irresponsible or reckless use of privilege can cause great harm to outside individuals who enjoy no legal redress and, in some circumstances, could be prejudicial to the national interest. The strongest safeguard against so-called abuses is the self-discipline of individual members. This means, for instance, that a member should take steps, before making a potentially damaging accusation against a named individual, to ensure not only that evidence exists but that it comes from a normally reliable source. This does not imply that a member needs to have evidence that would satisfy a court, but that he should act on the basis of something firmer than mere rumour or supposition.'[261]

  225.  We are reluctant to impose more rules on our colleagues. However, we are concerned that members should be more aware of the existing rules and conventions, so they can be better informed when they make up their own minds. There is a need for a succinct advisory guide to assist members, particularly new members. Newly elected members, especially when they are very numerous, cannot be expected to acquire overnight, by a form of parliamentary osmosis, an adequate knowledge of the practice of the two Houses. Rules and conventions differ between the two Houses, so there would need to be a separate guide for each House. The purpose would be to set out, in a simpler and more user-friendly form than Erskine May, the practice of each House in the conduct of debate and the use by members of the privilege of freedom of speech. No guide can be comprehensive, covering all situations. So members should be encouraged when in doubt to obtain advice from the House authorities. We recommend these guides should be compiled officially, and published under the authority of each House.

Parliament and the judiciary

  226.  Much of this report is necessarily concerned with the relationship between Parliament and the courts. The effective working of the constitution depends on the courts being ever sensitive to the need to refrain from trespassing upon the province of Parliament or even appearing to do so, and on Parliament being similarly sensitive to the need to refrain from trespassing upon the province of the courts.[262] This is generally recognised by both institutions. This relationship would not be helped if judges were to make unnecessary or exaggerated critical comments on the actions of politicians, or if politicians use parliamentary privilege to attack particular judicial decisions or the character of individual judges.

  227.  So far as Parliament is concerned, both Houses consider opprobrious reflections on members of the judiciary to be out of order unless made on motion. In the Commons 36 motions critical of judges or seeking their removal have been tabled since 1961. None has been debated.

  228.  Occasionally statements or actions by members of Parliament may merit judicial criticism. Likewise, judicial decision or comment may merit criticism by members of Parliament. It is important for both institutions that such criticism is made in measured terms. In all cases members should pause to consider before tabling motions which often receive wide publicity. We agree with the Lord Chief Justice of England that a tradition of mutual reticence serves the country best.[263]

239   For a historical account, see Patricia Leopold, `The Changing Boundary between the Courts and Parliament', in Buckley (ed) Legal Structures (Wiley, 1998). Back

240   See paragraphs 199-200 below. Back

241   `The fact that newspapers sometimes feel free to comment on issues that are sub judice . . . is another matter, since the courts may deal with them for contempt, and their views do not carry with them the weight of having been delivered in Parliament'. Mr Speaker's statement, HC Deb 916 (28 July 1976), c 883. Back

242   QQ 698-709. Back

243   Second Report, HC (1995-96) 252, paragraphs 9 and 10; and evidence, pp 17-18 (memorandum by the Clerk of the House of Commons) and p 1 (memorandum by Sir Thomas Bingham). See also HC Deb 30 January 1996, c 777. Back

244   Paragraph 16 and Annex. The words of the suggested resolution were: Back

245   See too Lord Bingham's letter of 5 November 1998 to the chairman of the Joint Committee, vol 3, p 157. Back

246   However, Lord Bingham considered that `one has to be very careful about any legal restraint on absolute privilege for statements made in Parliament on the floor of either House' (Q 424). See too Lord Bingham's letter to the chairman of the Joint Committee, vol 3, pp 152-153. Back

247   The Speaker and the Clerk of the House are available to advise members. Back

248   One notable parliamentarian has commented: Back

249   HC (1986-87) 365, paragraph 52. See too, QQ 539-40. Back

250   e.g. HC Deb 27 January 1987, c 200; 3 March 1994, c 1114; 11 March 1998, c 554; 20 June 1998, c 482. Back

251   HC (1998-99) 290, especially paragraphs 67-68; HC (1995-96) 252, paragraph 15; see also HC Deb 12 March 1998, c 761. Back

252   See, for example, vol 3, pp 67, 74, 77, 85, 91-92. Back

253   There is one exception: Western Australia, see footnote 208 below. Back

254   The text of the New South Wales scheme, which is typical, is appended at annex G. The Legislative Council of Western Australia has adopted a different procedure, but with the same aim. The aggrieved citizen petitions the Legislative Council for redress. The petition, which is published in the minutes of proceedings, is considered by the committee which examines all petitions. It is empowered to judge the truth or otherwise of the member's allegation, and, when it sees fit, to recommend that the House should discipline a member judged to have falsely maligned a member of the public. In the view of the Legislative Council, this affords the aggrieved citizen a better opportunity for redress than having a statement by him incorporated in the official record, since the committee is in a position to exonerate him. The number of petitions is small. QQ 382-388. Back

255   First Report from the Select Committee on Procedure, HC (1988-89) 290. Back

256   ibid paragraph 63. The quotation is from the Clerk of the House's evidence. Back

257   ibid paragraphs 62 and 63. Back

258   Recently the Australian Senate published a report on how the system worked in its first eight years. Requests for a right of reply have been few: only 27 requests were received and considered by the privileges committee between 1989 and 1996, of which 22 were published and five not proceeded with. The privileges committee, meeting in private, considers every application. It sometimes finds it necessary to confer with the complainant or with the Senator who made the accusation. A degree of editing the submissions is almost invariably involved. It is the Senate itself which finally decides on publication. While 16 requests were completed within one month, including 8 within a week, the average time between request and publication was 40 days. Given the small number of persons using the procedure, the Senate privileges committee did consider whether it was worthwhile continuing with the scheme. It concluded the scheme had proved to be `a cheap and effective way of enabling persons to put their side of the story'. See chapter 3 (Privilege 1988-96: right-of-reply matters) of the 62nd Report of the Senate Committee of Privileges: Committee of Privileges 1966-1996: History, Practice and Procedure (June 1996). Back

259   Of the 165 letters received by the Joint Committee, only two were from persons aggrieved by references to them in debate. Back

260   Viscount Tonypandy (formerly Mr Speaker Thomas), HL Deb 2 April 1996, c 254. Back

261   HC (1988-89) 290, p xx. Back

262   Paraphrasing Lord Donaldson of Lymington in R v. HM Treasury ex parte Smedley [1985] QB 657 at 666. See too, for example, HC Deb, 8 June 1995, cc 261, 333. Back

263   Q 457.Control by Parliament over its Affairs Back

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