Memorandum by Mr Francis Bennion
1. Having been requested to submit evidence
to the Joint Committee on Parliamentary Privilege, I offer the
following remarks relating to certain aspects of what is called
for by the wording of the invitation. I begin with a brief account
of my qualifications.
2. I began working with legislation in 1948
as an editor of Halsbury's Statutes and have been involved
with it ever since. Practice at the Bar and as Parliamentary Counsel
followed in 1953-1994, with interludes. At present (since 1984)
I am a research associate of the University of Oxford Centre for
Socio-Legal Studies and a member of the Law Faculty of the University.
As a constitutional lawyer I have advised the governments of Pakistan,
Ghana, Jamaica and Gibraltar. I drafted constitutions for Pakistan
and Ghana, the latter being described in my textbook The Constitutional
Law of Ghana (1962). I am the author of many articles dealing
with the subject as well as two textbooks: Statute Law
(3rd edn 1990) and Statutory Interpretation (3rd edn 1997).
I founded two charitable bodies concerned with reform of the legislative
process, the Statute Law Society (1968) and the Statute Law Trust
(1992). I also founded the Statute Law Review.
3. The Invitation says "what are the
merits of having the necessary protections of the two Houses codified,
either comprehensively or in part, in legislation or in a new
set of Resolutions of each House?"
4. I begin with this question because the
answer will govern my evidence on other points. There should be
codification, but this should incorporate the changes which need
to be made in the present rules of parliamentary privilege. It
is first necessary to decide what those changes are. Then a code
should be drawn up by a joint committee of the two Houses and
afterwards submitted to each House in the form of Resolutions.
It is desirable that so far as practicable the code should be
the same for both Houses.
5. The code should not be achieved by legislation,
except where this is necessary because a change of law is required
(for example in relation to the Bill of Rights). The need to uphold
the dignity and sovereignty of Parliament makes it essential to
embody the code in Resolutions of the two Houses so far this can
be done in consonance with the need for the code to be fully effective
in law. This brings me to the question of comity between Parliament
and the courts.
6. The term comity derives from the Latin
comitatem, courteousness. "In some instances, erroneous
association with [the Latin] comes 'companion' is to be suspected".
The legal use of the term is mainly in the context of international
law, as meaning "The courteous and friendly understanding,
by which each nation respects the laws and usages of every other,
so far as may be without prejudice to its own rights and interests".
Similarly there is held to be a requirement of comity, meaning
mutual respect, between courts and legislature as two branches
of the constitution. "From the constitutional viewpoint,
I do not think it appropriate with a view to the comity between
the different branches of Government, and their independence of
each from the other, that the actual proceedings in Parliament
should be the subject of discussion (and thereby inevitably criticism)
in the courts both from the Bench and by counsel . . . [It] would
be constitutionally most undersirable."
"Although the United Kingdom has no written constitution,
it is a constitutional convention of the highest importance that
the legislature and the judicature are separate and independent
of one another, subject to certain ultimate rights of Parliament
over the judicature . . . It therefore behoves the courts to be
ever sensitive to the paramount need to refrain from trespassing
upon the province of Parliament or, so far as this can be avoided,
even appearing to do so. Although it is not a matter for me, I
would hope and expect that Parliament would be similarly sensitive
to the need to refrain from trespassing upon the province of the
7. That Parliament is so sensitive is indicated
by the fact that the House of Commons has resolved that no matter
awaiting or under adjudication by a court of law should be brought
The House of Lords has a similar rule.
Nevertheless Parliament has the ultimate power to withdraw matters
from the courts through legislation. "In a case which may
be described as a grey area a court, while giving full attention
to the necessity for comity between the courts and Parliament,
should not be astute to find a reason for ousting the jurisdiction
of the court and for limiting or even defeating a proper claim
by a party to litigation before it. If Parliament wishes to cover
a particular area with privilege it has the ability to do so by
passing an Act of Parliament giving itself the right to exclusive
In Pepper (Inspector of Taxes) v Hart, discussed below,
it seems that Lord Browne-Wilkinson did not distinguish comity
from parliamentary privilege.
8. I suggest that in certain matters, dealt
with below, the courts have in recent times trespassed upon the
province of Parliament and gone beyond what comity dictates. This
needs to be recognised in the changes to be proposed by the Joint
9. The Invitation asks what is the purpose
of parliamentary privilege. I would answer that its purpose is
to safeguard the dignity, and assist in the effective working,
of Parliament considered as the prime organ of the state's democratic
government. Privilege extends to Parliament itself, and to the
members and officers of each House, Infringing it constitutes
contempt of Parliament and is punishable in various ways. The
concept and its attributes are common to all democratic parliaments,
because grounded in necessity.
10. The Invitation asks if there is a more
modern and better phrase to replace "parliamentary privilege".
I suppose this question is posed because the word privilege may
be thought by some to be obnoxious as smacking of specially favourable
treatment not available to the generality of people. The flavour
was caught in Hilaire Belloc's stanza on the result of a general
The accursed power which stands on Privilege
(And goes with Women, and Champagne, and Bridge)
Brokeand Democracy resumed her reign:
(Which goes with Bridge, and Women, and Champagne).
11. An alternative word is "immunity",
so that one might speak of "parliamentary immunity".
However this covers only part of the ground, since parliamentary
privilege is a sword as well as a shield. I suggest there should
be no change here. The term has a long history and is well understood.
It is found in other jurisdictions. There are perfectly respectable
uses of "privilege", as in the phrase diplomatic privilege.
This topic, as a question of reform, comes into the "If it's
not broke don't fix it" category.
ARTICLE 9 OF
12. The Invitation asks "what are the
issues arising out of Article 9 of the Bill of Rights (1688) and
freedom of speech?".
In relation to freedom of speech, parliamentary privilege is largely,
if not entirely, codified in Article 9. This states: "That
the freedom of speech, and debates or proceedings in parliament,
ought not to be impeached or questioned in any court or place
out of parliament".
13. Article 9 is badly drafted and ambiguous,
since "freedom" may qualify only "speech"
or it may also qualify "debates and proceedings in Parliament".
In other words is it merely the freedom of parliamentary
debates and proceedings that ought not to be impeached or questioned
or is it the debates and proceedings in their entirety?
The following possible propositions can be extracted from the
(i) That the freedom of speech [anywhere]
ought not to be impeached or questioned . . .
(ii) That the freedom of speech in Parliament
ought not to be impeached or questioned . . .
(iii) That the freedom of debates or proceedings
in Parliament ought not to be impeached or questioned . . .
(iv) That debates or proceedings in Parliament
ought not to be impeached or questioned . . .
14. Statement (i) is a proposition about
freedom of speech generally. It is plausible, but we can see it
is not a correct reading by considering the introductory words
leading to Article 9 in the selective version given by Viscount
Simonds in In re Parliamentary Privilege Act 1770:
". . . after reciting that 'the late King
James the Second by the assistance of divers evil Counsellors
Judges and Ministers employed by him did endeavour to subvert
and extirpate the Protestant religion and the laws and liberties
of this Kingdom' by the divers means there set out, 'the Lords
Spiritual and Temporal and Commons pursuant to their respective
letters and elections being now assembled in a full and free representative
of this nation . . . do in the first place (as their ancestors
in like case have usually done) for the vindicating and asserting
their ancient rights and liberties declare . . .".
15. So Article 9 is intended to vindicate
and assert the ancient rights and liberties of Parliament and
no more. It is not concerned with what we should now call the
human rights of the population generally.
16. Statement (ii) above is undoubtedly
one of the intended meanings of Article 9. What concerns us is
the distinction between statement (iii) (the narrow proposition)
and statement (iv) (the wider proposition, which includes statement
(iii)). It is only the freedom of debates etc that must
not be questioned? Or does the restriction apply generally, so
that it is forbidden to speculate as to the meaning of a speech
in Parliament or the intention underlying it?
17. Judicial authority up to the decision
of the House of Lords in Pepper (Inspector of Taxes) v Hart
shows the wider proposition to be the correct one. Blackstone
said "whatever matter arises concerning either House of Parliament,
ought to be examined, discussed, and adjudged in that House to
which it relates, and not elsewhere".
In Stockdale v Hansard Lord Denman said "whatever
is done within the walls of either assembly must pass without
question in any other place", while Patterson J said "whatever
is done in either House should not be liable to examination elsewhere".
In Bradlaugh v Gossett Lord Coleridge CJ said "What
is said or done within the walls of Parliament cannot be inquired
into in a court of law".
In 1958 Viscount Simonds said "there was no right at any
time to impeach or question in a court or place out of Parliament
a speech, debate or proceeding in Parliament".
In 1972 Browne J said "what is said or done in the House
in the course of proceedings there cannot be examined outside
Parliament for the purpose of supporting a cause of action even
though the cause of action itself arises out of something done
outside the House".
In 1974 Lord Simon of Glaisdale said "I have no doubt that
the respondent . . . is seeking to impeach proceedings in Parliament,
and that the issues raised . . . cannot be tried without questioning
proceedings in Parliament".
In 1983 Dunn LJ said that where Hansard was cited in a judicial
review case ". . . the court would have to do more than take
note of the fact that a certain statement was made in the House
on a certain date. It would have to consider the statement or
statements with a view to determining what was the true meaning
of them, and what were the proper inferences to be drawn from
them. This, in my judgment, would be contrary to article 9 of
the Bill of Rights."
18. On 31 October 1980 the House of Commons
passed a resolution giving general leave for reference to be made
to parliamentary materials in court, thus dispensing with the
need for special leave which had previously prevailed. Its wording
is as follows:
That this House, while re-affirming the status
of proceedings in Parliament confirmed by article 9 of the Bill
of Rights, gives leave for reference to be made in future court
proceedings to the Official Report of Debates and to the published
Reports and evidence of Committees in any case in which, under
the practice of the House, it is required that a petition for
leave should be presented and that the practice of presenting
petitions for leave to refer to Parliamentary papers be discontinued.
19. It should be noted that this resolution
gives leave only for reference to be made to debates. It
does not authorise discussion or argument about what was said
in debates. So the Clerk of the House of Commons wrote to the
Attorney General, in connection with the proposal to refer to
Hansard in Pepper v Hart, that the proposed use "is
beyond the meaning of the "reference" contemplated in
the Resolution of October 1980". He went on: "If a court
were minded in particular circumstances to permit the questioning
of the proceedings of the House in the way proposed, it would
be proper for the leave of the House to be sought first by way
of petition so that, if leave were granted, no question would
arise of the House regarding its privileges as having been breached"
20. In a 1990 case which concerned material
not within the 1980 resolution set out above, Popplewell J, holding
that the wider proposition was the correct one, said: " .
. . if I were faced for the first time with interpreting the word
'questioned' in the Bill of Rights I confess that I might well
have concluded that it involved some allegation of improper motive.
But what is clear is that, given the views of the large number
of judges (and, more particularly, their quality) who have interpreted
the Bill of Rights, it is simply not open to this court to take
21. So, subject to consideration of Pepper
v Hart (which I will come to), we may remove the ambiguity
by restating Article 9 in the following form: "That the freedom
of speech in parliament, and debates or proceedings in parliament,
ought not to be impeached or questioned in any court or place
out of parliament". Thus to question what is said in Parliament,
eg by the sponsor of a Bill, in a court or place out of Parliament
is to contravene Article 9. This seems to catch such an act as
is now rendered permissible by the ruling in Pepper v Hart.
To allow an advocate to cite in court, as an indication of the
intended legal meaning of an Act, a statement made in Parliament
by the minister sponsoring the Bill for the Act, surely must involve
"questioning" the ministerial statement in the court.
This questioning will inevitably take place when the advocate
explains to the court how the statement helps his case, when his
opponent puts to the court a contrary view, and when the judge
joins in the exchanges and ultimately gives his or her own verdict
on the argument.
22. The House of Lords decided otherwise
in Pepper v Hart, though only Lord Browne-Wilkinson gave
full reasons for their view. Two others gave very brief reasons.
Lord Griffiths said:
"I agree that the use of Hansard as an aid to assist the
court to give effect to the true intention of Parliament is not
'questioning' within the meaning of article 9 of the Bill of Rights.
I agree that the House is not inhibited by any Parliamentary privilege
in deciding this appeal." Lord Oliver of Aylmerton said:
"I find myself quite unable to see how referring to the reports
of Parliamentary debates in order to determine the meaning of
the words which Parliament has employed could possibly be construed
as 'questioning' or 'impeaching' the freedom of speech or debate
or proceedings in Parliament or as otherwise infringing the provisions
of article 9 of the Bill of Rights".
also rejected the view that Article 9 prevented the citation of
Hansard for the purpose of construing statutes. He did not discuss
the argument as to the narrower and wider interpretation, but
assumed the narrower was correct. He did not discuss any of the
authorities cited above, except Church of Scientology of California
v Johnson Smith and R v Secretary of State for Trade, ex
p Anderson Strathclyde Plc. Of the former he said of Browne
J "his remarks have to be understood in the context of the
issues which arose in that case".
The latter he held to be wrongly decided. The only gesture he
made in the direction of the earlier authorities was to say "No
doubt all judges will be astute to ensure that counsel does not
in any way impugn or criticise the minister's statements or his
23. The main ground for Lord Browne-Wilkinson's
decision was that in judicial review cases "Hansard has frequently
been referred to with a view to ascertaining whether a statutory
power has been improperly exercised for an alien purpose or in
a wholly unreasonable manner".
The other ground Lord Browne-Wilkinson relied on was that if the
opposing argument were correct "any comment in the media
or elsewhere on what was said in Parliament would constitute "questioning"
since all Members of Parliament must speak and act taking into
account what political commentators and other (sic) will
say". This overlooks the limiting effect of the words "any
court or place" in Article 9.
24. In the 1994 case of Prebble v Television
New Zealand Ltd the Judicial Committee of the Privy Council
held that Article 9 prevented a party or witness from alleging
that words in Parliament were improperly spoken or that an Act
was passed to achieve an improper purpose, but that it did not
restrict a person who wished "to allege the occurrence of
events or the saying of certain words in Parliament without any
accompanying allegation of impropriety or any other questioning".
To argue about the meaning of words spoken in Parliament
without making any such imputation falls into a middle category
not dealt with by the Prebble decision as just described.
Note however that elswhere in his speech
Lord Browne-Wilkinson approved, as a correct statement of the
legal meaning of Article 9, section 16(3) of the Parliamentary
Privileges Act 1987, an Act of the Commonwealth of Australia.
This states that it is not lawful to make statements etc for the
purpose of "drawing, or inviting the drawing of, inferences
or conclusions wholly or partly from anything forming part of
proceedings in Parliament". Lord Browne-Wilkinson also
cited approvingly the following statement by Blackstone: "The
whole of the law and custom of Parliament has its original from
this one maxim, 'that whatsoever matter arises concerning either
House of Parliament ought to be examined, discussed, and adjudged
in that House to which it relates, and not elsewhere'".
These dicta of Lord Browne-Wilkinson differ from the view expressed
by him in Pepper v Hart.
If followed they would largely emasculate the rule in Pepper
v Hart. A further point is that it smacks of breach of privilege
to hold one House of Parliament bound by what is said in the other,
as the rule in Pepper v Hart requires.
25. It is submitted therefore that codification
should make it clear that the wider meaning, as given in statement
(iv) above, applies.
It will have the effect of considerably reducing, if not altogether
abolishing the effect of the decision in Pepper v Hart.
This would be beneficial because it has been found in practice
that the effect of the decision is deleterious. Not only do the
long-standing objections apply, but it has been found to have
an inhibiting effect on parliamentary debate. Ministers now frequently
decline to express an opinion on the intended meaning of a Bill
for fear it will be cited later under Pepper v Hart.
26. The Invitation asks about the scope
of the phrase "proceedings in Parliament" as used in
Article 9. This is not authoritative definition of this phrase.
In a 1990 case Popplewell J said:
"[The Solicitor General] submitted that
it embraced the various forms of business in which either House
takes action and the whole process by which either House reaches
a decision in particular debate. He also submitted that it embraced
things said or done by a Member of Parliament in the exercise
of his function as a member in a committee of either House; and
everything said or done in either House in the transaction of
Parliamentary business, whether by a member of either House or
by an officer of either House . . . courts have over the years
enlarged the definition of 'proceedings' from the formal speeches
in the House to other matters . . ."
27. In Australia the Parliamentary Privileges
Act 1987 (Cth) s 16(2) defines "proceedings in Parliament"
as meaning "all words spoken and acts done in the course
of, or for the purpose of or incidental to, the transacting of
the business of a House or of a committee" and including:
"(a) the giving of evidence before a
House or a committee, and evidence so given;
(b) the presentation or submission of a document
to a House or a committee;
(c) the preparation of a document for purposes
of or incidental to the transacting of any such business: and
(d) the formulation, making or publication
of a document, including a report, by or pursuant to an order
of a House or a committee and the document so formulated, made
28. It is clear that a definition of this
phrase should be provided. It should protect every aspect of the
work of Parliament.
1996 S 13
29. The Defamation Act 1996 s 13 permits
an MP or peer to waive the privilege conferred by Article 9 of
the Bill of Rights for the purpose of defamation proceedings.
The section is based on a misconception, for the privilege is
that of Parliament and (apart from the section) no individual
member is able to waive it. This principle should continue to
apply. Waiver by a single member leaves the privilege extant as
respects all other members. This is anomalous, and like other
anomalies may in time lead to difficulty. I recommend that section
13 be repealed.
27 January 1998.
1 Oxford English Dictionary (2nd edn, 1989), definition
of "comity". Back
Ibid. It is sometimes used in this connection as a synonym
for private international law or conflict of laws. Back
Lord Hailsham of St Marylebone LC, 1983 Hamlyn lectures. See also
(1980) 405 HL Deb cols 303-4. Back
R v HM Treasury, ex p Smedley  QB 657, per Donaldson
MR at 666. Back
Erskine May, The Law, Privileges, Proceedings and Usage of
Parliament (21st edn, 1989), p 326. Back
Ibid, p 437. Back
Rost v Edwards  2 QB 460, per Popplewell J
at 478. Back
 AC 598 at 640. Back
Epigrams: On a Great Election Back
The short title "Bill of Rights" was given by the Short
Titles Act 1986 s 1 and Sch 1. Although the year 1688 is often
appended, royal assent was actually given in December 1689. Back
This is the wording and punctuation of Article 9 as set out in
9 Statutes at Large (1764 edn) 69. Back
As to what are proceedings in Parliament for this purpose see
 AC 331 at 348. Back
Emphasis added. On the word "declare" here Lord Denning
said "Whatever may have been the privilege of Parliament
before the ninth article, it is quite plain that thenceforward
the extent of the privilege was to be found by reference to the
statute and nothing else" (Public Law (1985) 80 at 89). Back
 AC 593. Back
Commentaries (17th edn. 1830) I p 163. Popplewell J said
that the origin of this "seems to have been Coke" (Rost
v Edwards  2 QB 460 at 473). Back
(1839) 9 Ad & El 1 at 114, 209. Back
(1884) 12 QBD 271 at 275. Back
In re Parliamentary Privilege Act 1770  AC 331 at
350. In his dissent from the majority decision of the Judicial
Committee of the Privy Council Lord Denning said: "There
were four celebrated occasions on which plaintiffs sought to impeach
in the courts of law the speeches or proceedings in Parliament"
(see Public Law (1985) 80 at 87, where the dissenting speech
is set out). Back
Church of Scientology of California v Johnson Smith 
1 QB 522 at 529. Back
British Railways Board the Pickin  AC 765 at 799.
This passage suggests that Lord Browne-Wilkinson was wrong when
he said in Pepper (Inspector of Taxes) v. Hart  AC
593 at 638 that the reference to impeachment in Art. 9 "is
limited to cases where a Member of Parliament is sought to be
made liable". Back
R v Secretary of State for Trade, ex p Anderson Strathclyde
Plc  2 All ER 233 at 239. In the Australian case of
R v Jackson (1987) 8 NSWLR 116 at 120 Carruthers J expressed
agreement with this reasoning. Back
Cited by Lord Browne-Wilkinson in Pepper (Inspector of Taxes)
v Hart  AC 593 at 624. In the House of Lords there has
never been a requirement that the leave of the House be obtained
for citation of Hansard reports in court. Indeed, although compiled
since 1909 by officers of the House of Lords, Hansard is not formally
a record of the House. The Clerk of the Records has nothing in
his custody which he could produce to a court as the "original"
report of a debate. Back
The letter is set out in Lord Browne-Wilkinson's speech in Pepper
v Hart ( AC 593 at 624). Back
Rost v Edwards  2 QB 460 at 474-475. In Prebble
v Television New Zealand Ltd  1 AC 321 at 337 Lord Browne-Wilkinson
said that it was questionable whether Rost v Edwards was
rightly decided. Back
 AC 593 at 617. Back
P 621. Back
Without discussing the relative arguments, Lord Oliver thus adopts
the narrower interpretation. Back
P 638-640. Back
In Prebble v Television New Zealand Ltd  1 AC 321
at 333 Lord Browne-Wilkinson resiled from his earlier view when
he said that the decision of Browne J was approved in Pepper
v Hart, adding that the case decided that "it would be
a breach of privilege to allow what was said in Parliament to
be the subject matter of investigation or submission". Back
P 639. Back
He instanced R v Secretary of State for the Home Department,
ex p Brind  1 AC 696, but no objection appears to have
been made to the citation of Hansard in that case. It is not usual
to treat a case as authority for a point that was not raised in
It is submitted that the ejusdem generis principle applies
here to limit the word "place" to places, such as tribunals,
which are of the same genus as "court". It was so held
in the Australian case of R v Murphy (1986) 64 ALR 498. Back
 1 AC 321, per Lord Browne-Wilkinson at 373. Back
At 333. Back
At 332. Back
1 BI Com (17th edn) 163. Back
See above. Back
This is also the view taken by Parliament in the wording of the
Defamation Act 1996 s 13(1). Back
The objections to that decision are given in my textbook Statutory
Interpretation (3rd edn 1997) at pages 490-496. Back
For an example see the proceedings on the Human Rights Bill, eg
HL Deb 18 November 1997 col 476 and 24 November 1997 col 800.
In the latter place Lord Irvine of Lairg LC said: "One of
the dangers of Pepper v Hart is that if one becomes drawn
in that way, what one says can be too readily cited in the courts
for a particular interpretation of the Bill. Pepper v Hart
does not come free of risk". Back
Rost v Edwards  2 QB 460 at 477-478. See also In
re Parliamentary Privilege Act 1770  AC 331, from which
it appears that actions taking place outside the precincts of
the Palace of Westminster, eg the sending of a letter to a Minister
by an MP, may be included. Back