Parliamentary Privilege First Report


Letter from Sir Robin Maxwell-Hyslop (formerly Member of Parliament for Tiverton)

PARLIAMENTARY PRIVILEGE

(A) ORIGIN AND SCOPE

  (1)  It has been accepted doctrine from "time out of mind" that, though each House of Parliament has the authority to define Privilege as it applies to (a) its own Members, (b) its Officers acting on the instructions of the House concerned, or (c) persons or bodies corporate giving evidence to the House or to a Committee of the House in connection with "Proceedings in Parliament", neither House of Parliament has the power to extend its own Privilege by auto-resolution.

  (2)  Parliamentary Privilege inheres in each House respectively by virtue of "Lex et Consuetudo Parliamenti", as amended or extended by Act of Parliament only.

  (3)  Though, in the Commons, Speakers' Rulings can illuminate (inter alia) the extent of Parliamentary Privilege, Resolutions of each House (sometimes embodied in the Standing Orders of the House concerned) can define both the frontiers, and the mode of enforcement of Parliamentary Privilege.

  (4)  It is erroneous to believe that Parliamentary Privilege grants to Members an absolute licence during "proceedings in Parliament" to say, with impunity, anything that they may wish to say. For instance, it is a well-established Breach of Privilege for any Member, in proceedings in Parliament, to (i) insult the Monarch of the United Kingdom, (ii) to insult the Head of State of any other sovereign state, or (iii) to speak contemptuously of the other House of Parliament.

  (5)  Treasonable words are no less treasonable because they are uttered in the course of proceedings in Parliament: but the appropriate forum for trial and punishment is the House itself, rather than the normal criminal processes exterior to Parliament.

  (6)  It is important to call to mind what events are not "Proceedings in Parliament". Into this (often over-looked) category of situations exterior to the frontier of Parliamentary Privilege, must be included, by way of example:

    (i)  Words shouted across the Chamber of the Commons by a Member who has not been "called" by the Speaker, and who has not risen on a Point of Order or of Privilege

    (ii)  Words spoken by a Member in any gathering within the Palace of Westminster which is not a Committee appointed by Order of the House (or a Committee appointed by an Order of both Houses)

    (iii)  Words spoken or written in "informal" evidence to a Select Committee of the House of Commons

(B) UNCERTAIN STATUS

  Into the category of "uncertain status" as "Proceedings in Parliament" fall (inter alia):

    (i)  The Appellate Committee of the House of Lords. Though, formally, this is a Committee of the House of Lords, and therefore, on its face, covered by the Parliamentary Privilege of the House of Lords, that status can be called into question by reason of the consistent and persistent refusal by the Authorities of the House of Lords to provide to Members of the House of Commons (who are entitled, as of right, a copy of the transcript of all Proceedings of the Lords) (and, vice versa) on demand with a copy of the transcript of the proceedings (including the "Opinions" (= judgements) of the presiding Lords of Appeal) in the Appellate Committee of the House of Lords;

    (ii)  The Ecclesiastical Committee. Whereas Sir Richard Barlas (quondam Clerk of the House of Commons) wrote formally to the Member of Parliament for Tiverton that the proceedings of this Committee were not protected by Parliamentary Privilege as (in his opinion) they are not "Proceedings in Parliament", Sir Robert Speed (then Counsel to Mr Speaker) "inclined to the opposite view".

(C)   PRIVILEGE OF NON-PARLIAMENTARY ORIGIN

    (i)  Even if, for the reason given in (B(i)) above, the Appellate Committee of the House of Lords is deemed to have as its essential character that it is (like the Ecclesiastical Committee) "a body set up by statute", that would not leave its proceedings bereft of protection of (absolute) Privilege: though bereft (if that indeed be the case) of "Parliamentary Privilege" if its proceedings are not "Proceedings in Parliament", those proceedings would still benefit from the inherent (and absolute) privilege which inheres in all Court proceedings.

    (ii)  If the Ecclesiastical Committee is found to lack the protection of "Parliamentary Privilege", a degree of "qualified privilege" might be found to inhere in its proceedings.

(D)   THE NEED FOR RE -STATEMENT, REFORM AND REDRESS FOR ABUSE OF PARLIAMENTARY PRIVILEGE

  (i)  Persons and bodies corporate outside of Parliament need access to accurate information as to the nature and extent of their protection by Parliamentary Privilege when (inter alia):

    (a)  Giving written evidence or oral evidence to Select Committees of either House

    (b)  Giving written evidence or oral evidence to any other Committees set up by Order of either House (eg, pre-legislative Standing Committees).

    (c)  Writing formally to a Member of Parliament (denied the protection of Parliamentary Privilege by one vote, when the House rejected a recommendation from the Commons Privileges Committee that letters to Members were protected by Parliamentary Privilege).

    (d)  Writing to a Minister of the Crown who is a Member of either House

    (e)  Writing to a Minister of the Crown who is not a Member of either House (as, for instance, the Solicitor-General for Scotland has sometimes not been).

  (ii)  Select Committees of both Houses of Parliament, if they are to discharge fully the duties imposed upon them by Order of the House concerned, cannot always do so unless the House has the power, and is willing to exercise it, to fine for contempt witnesses who refuse to answer fully and truthfully, and to supply records ordered to be submitted to the Committee concerned, when such questions and requisitions fall within the terms of reference both of the Houses' Orders setting up the Committee, and the Committee's own terms of reference of its relevant proceedings, and those proceedings are "in order".

  It is a matter of historical record:

    (a)  That the House of Commons has indeed exercised a power to fine for Breach of Privilege (Thomas Long's case)

    (b)  That the Commons has never, by Resolution, abandoned that power to fine

    (c)  That no Act of Parliament has removed that power of the Commons to fine

    (d)  That the House of Lords still has the equivalent power to fine, and a Select Committee reported as recently as 1956 that "the fact that the House has not exercised that power for many years does not preclude the possibility of its future use".

  The power to imprison contemptuous witnesses is inappropriate and ineffective in this context, not least because the warrant for imprisonment expires on a date wholly unrelated to the gravity of the offence, whenever a Session ends. However, ill-informed (but oft-repeated) assertions that the Commons lacks the power to fine for Breach of Privilege renders it desirable that the existence of that power (and the desirability of using it in relevant cases) is clearly re-asserted by this Committee, in its Report.

  (iii)  Individuals and bodies corporate who are, or believe themselves to be, untruthfully and maliciously maligned under the cloak of Parliamentary Privilege, presently lack effective redress, since the House has abandoned the practice of disciplining Members effectively for abuse of freedom of speech when protected by Parliamentary Privilege. This was not always so (witness the experience of "prick-eared Prynne"). Though "cropping" a Member's ears would now be considered an inappropriate penalty for gross abuse by a Member of the Privilege of Parliament, your Committee may well judge that Parliament will be held in avoidable disrespect unless and until this nettle is grasped: for abuse is the father of unreasonable response.

25 March 1998


 
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Prepared 9 April 1999