Parliamentary Privilege First Report


  376.  The Joint Committee's recommendations require enactment by legislation in the following instances:

    1.  Article 9:

    —  `proceedings in Parliament' to be defined

    —  `place out of Parliament' to be defined

    —  the scope of the prohibition on `questioning' to be clarified

    —  section 13 of the Defamation Act 1996 to be replaced with a power for each House to waive article 9 for the purpose of court proceedings where the words spoken or the acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the acts to any legal liability

    —  article 9 not to apply to court proceedings so far as they relate to interpretation of an Act of Parliament or subordinate legislation or judicial review of government decisions or the consequences of government decisions, or the non-critical use of statements where no legal liability is involved

    —  Parliament to have power to exclude from article 9 tribunals appointed under the Tribunals of Inquiry (Evidence) Act 1921

    —  application of article 9 to Scotland and Northern Ireland, and parliamentary privilege in general, to be clarified.

    2.  Control over parliamentary affairs:

    —  Parliament's sole control over its own internal affairs in the precincts to apply only to activities directly and closely related to proceedings in Parliament. As to other activities, statutes should be assumed to bind both Houses in the absence of contrary intention

    —  contempt of Parliament to be defined

    —  the powers of each House to fine to be stated and the power to imprison to be abolished, save for temporary detention of persons misconducting themselves within the precincts of Parliament

    —  the courts to be given a concurrent jurisdiction in respect of contempt of Parliament by non-members

    —  failure to attend proceedings or answer questions or produce documents to constitute criminal offences, punishable with a fine of unlimited amount or up to three months' imprisonment

    —  the Parliamentary Privilege Act 1770 to be amended to include court proceedings in respect of proceedings in Parliament

    —  freedom from arrest, immunity from subpoenas, and privilege of peerage to be abolished, and application of Mental Health Act 1983 to peers to be clarified.

    3.  Reporting of parliamentary proceedings:

    —  The Parliamentary Papers Act 1840 to be replaced by a modern statute.

  377.  We recommend these legislative provisions should be included in a new Parliamentary Privileges Act. This Act should also clarify various ancillary matters, such as an up to date means for enforcement of fines, and should tidy up other areas of obsolescence or anachronism, such as impeachment.[418] We assume our recommendations on bribery will be incorporated in the proposed criminal legislation, in the form of a provision to the effect that evidence relating to an offence committed or alleged to be committed under the relevant sections shall be admissible notwithstanding article 9.

An accessible code

  378.  The question that arises is whether a new Parliamentary Privileges Act should go further and set out the whole field of parliamentary privilege in a statutory code. Codification has advantages and disadvantages. The advantages are clarity and accessibility. At present, there is no sense of a coherent framework or structure, because the period over which privilege has developed is so long: the earliest privilege case cited in Erskine May was decided 700 years ago. Many of the old court cases were decided in the days of long forgotten legal procedures. To the ordinary lawyer, let alone non-lawyer, these cases are difficult, if not impossible, to understand. All this combines to make the subject obscure. A short statutory code would be an enormous improvement.

  379.  The main fear of codification is that it will reduce flexibility for the future. This consideration need not weigh heavily in the case of parliamentary privilege, provided the legislation is drafted in the form of statements of principle, followed by particular examples. Parliamentary privilege is complex in its detailed ramifications, but its underlying rationale and structure are straightforward (as we hope emerges from this report). The underlying rationale is that the two Houses and their members and officers must have the rights and immunities needed to enable them to carry out their parliamentary functions effectively.[419] The structure comprises two broad headings: parliamentary freedom of speech, protected by article 9[420], and control by Parliament over parliamentary affairs.[421] The latter heading is the justification for several particular rights, such as the right of each House to administer its internal affairs within the precincts[422], and the disciplinary and penal powers of each House.[423]

  380.  Our recommendations include two instances of a definitive statement of principle followed by examples: the definition of proceedings in Parliament, and the definition of contempt of Parliament. We can see no insuperable difficulty in this approach being adopted to the whole of parliamentary privilege. If this is done, fears of inflexibility will be groundless, because the statements of principle can readily accommodate novel factual situations when they arise. The code will contain the elasticity needed for the future. For the same reason, there should be no difficulty in framing a comprehensive code. Failure, for instance, to mention every type of situation which has been held to be, or might be, a contempt of Parliament will be neither here nor there. Indeed, it would lead to needless complexity if the statute were to attempt to forecast and identify every situation.

  381.  One of the arguments used in the past against codifying parliamentary privilege in statute is that this will place its interpretation in the hands of the courts. In the distant past each House claimed to be the sole exclusive judge of its own privileges and the extent of that privilege.[424] This is no longer a live issue. In practice the courts already interpret the ambit of parliamentary privilege. The courts have interpreted article 9 many times in the last quarter of a century. Ever since Stockdale v Hansard (1839), the courts have refused to accept that either House, by resolution, can determine the legal effect of its privileges. Never, since that case, has the House of Commons refused to admit the jurisdiction of the courts when matters of privilege arise in the course of court proceedings.[425] Erskine May[426] takes the view that, following this and other cases, the duty of the courts to define the limits of parliamentary privilege when cases come before the courts can no longer be disputed.[427]

  382.  The Clerks of the two Houses suggested that, in order to ensure the interpretation of a Parliamentary Privileges Act always accords with parliamentary claims and needs, a provision might be inserted obliging the courts to take judicial notice of resolutions agreed by both Houses on the interpretation of the Act as if they were judgments of a superior court. This suggestion encounters the difficulty that it would be a departure from the established constitutional position: that Parliament enacts the law but the courts interpret it. While we consider it would be going too far to give the House the power by resolution to interpret a statute, there is a less controversial possibility which might be useful. This possibility is a provision requiring the courts to take into account, although not strictly be bound by, any resolution of the two Houses on the proper interpretation of the relevant statutory provisions.

  383.  An important part of parliamentary privilege, namely article 9, is already in statutory form. The effect of our recommendations is to clarify and define each of the vital elements in this article: the meaning of `proceedings in Parliament', the meaning of `place out of Parliament' and the meaning of `questioning'. Thus our recommendations amount to a comprehensive restatement of article 9, while respecting its historic principles. A modern re-enactment of the article does not necessitate a departure from the time-hallowed wording. The existing language can be retained, and be accompanied by provisions making plain what is the ambit of each of the key words and phrases.

  384.  Leaving aside article 9, codification of the Houses' penal powers is particularly desirable and our recommendations cover the most important areas: the definition of contempt of Parliament and the powers of fine and imprisonment. As to control by Parliament over its affairs, we have recommended that legislation should define the outer limit of the internal affairs within the precincts over which Parliament has sole control. That is a negative recommendation. There would be advantage in having a positive enactment confirming the existence of the right of Parliament to control parliamentary affairs. Further definitions of principle, and the statement of particular rights such as the right to judge the lawfulness of proceedings, would be called for, but this should occasion no difficulty. There would be advantage in Parliament's rights in this field being underpinned by statute.

  385.  Our recommendations will stand enactment by themselves, but if so enacted the result will be an uncomfortable mixture of modern statute and ancient learning. Overall statement as a code is the natural next step in a modern presentation of parliamentary privilege. A code would assist non-members as well as members, because it would enable the ordinary citizen to have access to the privileges of his member of Parliament. The Joint Committee recommends that Parliament should now take steps to enact such a code.

418   See paragraph 16 above. Back

419   Chapter 1, paragraph 3 above. Back

420   Chapter 2 above. Back

421   Chapter 5 above. Back

422   Chapter 5, paragraphs 240-248 above. Back

423   Chapter 6 above. Back

424   Parliament case (1609) 13 Co Rep 63. Back

425   Keir and Lawon, Cases in Constitutional Law, 5th ed (1979), p 268. Back

426   22nd ed (1997), p 160. Back

427   Ashby v White (1703) 2 Lord Raym 938 and 3 Lord Raym 320; Stourton v Stourton [1963] 1 AER 606, 608, per Scarman J. In re Parliamentary Privilege Act 1770 [1958] AC 331, the judicial committee of the Privy Council cited a passage from an earlier edition of Erskine May (16th edition, p 372): `The decisions of the courts are not accepted as binding by the House in matters of privilege, nor the decisions of the House by the courts. Thus the old dualism remains.' This passage was omitted from later editions of Erskine May.  Back

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Prepared 9 April 1999