Parliamentary Privilege First Report


Memorandum submitted by the Clerk of the Parliaments and the Clerk of the House of Commons

JOINT COMMITTEE ON PARLIAMENTARY PRIVILEGE

INTRODUCTION

  1.  The Joint Committee asked us to submit a statement of where solutions to outstanding questions of privilege law should be sought (Q45) and an analysis of what rights and immunities would be essential in today's circumstances (Q230).

  2.  This memorandum sets out those questions which we believe need an answer if privilege law is both to provide an appropriate protection to Parliament and to command general acceptance beyond Parliament. We also suggest for consideration some options that might resolve those questions. Where it seems to us that there is a widely accepted view that some element in the law of privilege no longer has much significance or that change is inevitable, we have accepted these conclusions. One issue we have not considered further is the proposal to bring members of both Houses within the ambit of the law on bribery. As we pointed out in oral evidence there are difficulties in implementing any of the possible options, though we fully accept that the present position is unsatisfactory. At this state we do not feel that there is anything that we could usefully add to our evidence.

  3.  We are grateful for a sight of the paper prepared by the Chairman of the Joint Committee setting out some of the questions that the Committee may wish to consider. We have not attempted to duplicate that paper, but rather, to supplement it.

  4.  This memorandum begins with a discussion of the relationship between statute law and parliamentary privilege. Thereafter we have followed the order of topics in our earlier papers. Issues relating to contempt of Parliament are dealt with separately, in paragraphs 54 to 58.

A.  STATUTE LAW AND PARLIAMENTARY PRIVILEGE

  5.  The central element of privilege, freedom of speech, is already enshrined in statute; Article IX of the Bill of Rights 1689. The most significant decision facing the Joint Committee is surely to decide whether or not the time has come to take the process further. If members conclude that a more positive and clearer statement of the law is required, how far should it go? New legislation might be confined to resolving doubts and ambiguities, leaving the rest to be dealt with by Resolutions in Parliament or by new Standing Orders. The other end of the spectrum would be an exhaustive codification of the rights and immunities of Parliament in a Parliamentary Privileges Act.

What are the arguments for and against legislation?

  6.  Arguments for and against setting out more parliamentary claims in legislation have gone on for many years. In favour are considerations of clarity and accessibility. Much of privilege law depends on very old cases. There is no sense of a coherent framework, because the time-scale over which the law has accumulated is so long: the oldest privilege case cited in Erskine May is seven hundred years old. Many critical decisions, particularly on freedom of speech, are already in the hands of the courts.

  7.  Against more legislation is the apprehension that privilege law will be ossified; and that statute law could not possibly provide in advance for all possible eventualities, while amending legislation is perhaps a cumbrous way of putting matters right. Most of all, it could be argued that the balance between the courts and Parliament would be radically altered. Legislation once enacted might in future be interpreted in ways which, in effect, narrowed the scope of privilege, contrary to the will of Parliament.

  8.  In advising the Joint Committee on how best to resolve this dilemma, we come down in favour of at least some more legislation, on several grounds. The first is the present—and probably the future—climate of affairs between the courts and Parliament. As we have indicated in our earlier evidence, while the courts have not sought to alter fundamentals such as the legislative supremacy of Parliament or the right to freedom of speech, the last decade has seen a remarkable degree of activity in areas of interest to Parliament. There is no reason to believe that this will decline in the years to come. Indeed, legislation on freedom of information and human rights may mean that the courts' efforts to adapt very old privilege cases to modern conditions will become ever more heroic—and unpredictable. For example, one area of potential uncertainty is the extent of the application of the European Convention on Human Rights to the privileges of the United Kingdom Parliament. In a case involving the Parliament of Malta1 the Court of Human Rights found that the fining of a magazine editor for a breach of privilege was classifiable as punishment for a criminal offence and therefore attracted Article 6 of the Convention. Parliaments are therefore not immune from scrutiny under ECHR. In the absence of a modern statement of privileges, which takes into account both the Convention and domestic and international legal developments relating to individual human rights, the possibility for misunderstanding in any case that was brought before the Court is not insignificant.

  9.  In the same area of case law, the attention of the Joint Committee has already been drawn to the fact that two of the principal cases of the past decade have had a fundamental impact on privilege law—Pepper v Hart2 and Prebble v Television New Zealand Limited. 3 The judgment in the first was contrary to the argument advanced on behalf of Parliament by the Attorney General: and there was no input from the United Kingdom Parliament at all to the second. On that footing alone, clarification of law by statute seems to be desirable.

  10.  Such clarification is also important in the area of existing statute law on privilege. Despite the antiquity of the Bill of Rights it is only in this century that Article IX has been subjected to close judicial scrutiny. In the eighteenth and nineteenth centuries Parliament, particularly the House of Commons, relied substantially on a widely shared assumption of constitutional supremacy and an assertion of historic privileges which the courts, more often than not, accepted. Article IX tended to be treated as but one element of what might be termed "the first principles of the constitution". By the beginning of this century however, the concept of the "High Court of Parliament" was on the wane and the substantial increase in the body of statute law enacted during the nineteenth century had developed a corresponding judicial tendency to look for clear statutory authority wherever possible. More recently, the increasing reluctance of Parliament to treat defamation of a Member or a Peer as an issue of privilege4, and the encouragement given by both Houses to their members to settle such matters in the courts whenever possible, has helped to establish a tradition of the courts interpreting, and reinterpreting, Article IX which has come to be seen as the central, even the sole, authority for parliamentary privilege. This is a wholly novel development: the Bill of Rights was simply not drafted either for the twenty-first century or with that sort of textual scrutiny in mind. There are further uncertainties over the application of Article IX in Scotland (where the Claim of Right 1689 is far narrower in its scope and has no history of interpretation at all) and in Northern Ireland. As litigation increases, these defects, dormant for so long in other circumstances, are sure to come awkwardly to light. We conclude that there is a strong case—to which we return in greater detail below—for amending and clarifying article IX in new statute law.

  11.  Finally, changes have occurred in the activities of Parliament itself and consequently privilege increasingly meets challenges of a completely unexpected kind. The Resolution5 agreeing to the disclosure of select committe material in evidence in a commercial dispute involving the Corporate Officer of the House of Commons and a contract for the fenestration of Portcullis House is a good example. Others are the questioning of actions taken or inquiries carried out on behalf of that House in two (unsuccessful) applications for judicial review; eg R v Parliamentary Commissioner for Standards, ex parte Al Fayed; (14 April 1997) and R v The Speaker ex parte Martin McGuiness M P (3 October 1997).

  12.  A considered restatement of the position of Parliament, broad enough to meet most challenges, would be the most satisfactory solution from all points of view, not least that of Parliament. At least part of this restatement must be in statute law (see para 17 below), to provide the courts, and Parliament itself, with a modern legal framework to use as the basis for decisions on future cases. We do not, however, see any need for a radical departure from the past: like the Bill of Rights we would assume that the restatement will be mainly declaratory of those parts of the existing law which the two Houses consider it would be appropriate to retain.

How may the disadvantages of legislation be coped with?

  13.  Whatever may be said in favour of legislation, the main arguments of principle against it will remain. It may be said that the balance between Parliament and the courts will tip irrevocably in favour of the latter. Moreover, a Parliamentary Privileges Act may come to represent the sum and substance of parliamentary claims, just as the Bill of Rights has effectively ousted older claims to freedom of speech. The more thoroughgoing the inroads of statute law, the more important it is to put in place mechanisms which support a sensible and acceptable balance, and prevent conflict and misunderstanding.

  14.  In that context, we offer two possibilities. In the first place, in order to ensure that the interpretation of any Parliamentary Privileges Act is always in accord with parliamentary claims and needs, a provision might be inserted which obliged the courts to take judicial notice of Resolutions agreed by both Houses as to the interpretation of the Act, as if they were judgements of a superior court. After all, the courts have not challenged the decision of the Commons in the Strauss case or the views of the Select Committee on the Official Secrets Act 1938-39 on the interpretation of "proceedings in Parliament" as it stands in the Bill of Rights. What is proposed goes little further than that, except in form.

  15.  Secondly, in order that Parliament could not be assumed to have surrendered more than was intended, any legislation might contain a provision that, unless the contrary appeared, the statute was not to be interpreted by the courts as to limit or extinguish any of the privilege claims of either House (cf Section 5 of the Parliamentary Privileges Act 1987 (Australia)).

  16.  These proposals would not of course allow Parliament to extend its privileges without further legislation explicitly to that effect. They would, however, diminish the extent to which Parliament made a once-and-for-all settlement of its relationship with the courts and had to stand by the consequences.

Should legislation go as far as full codification?

  17.  Previous paragraphs have presented the arguments for (and against) legislation; have accepted the former in principle; and have suggested some safeguards. We argue below that the existing statute law on freedom of speech in particular is in need of modernisation. There may be other smaller adjustments to statute which are desirable. For example, section 9 of the Defamation Act 1952 (which applies the Parliamentary Papers Act 1840 to broadcasting) does not seem to extend to Northern Ireland. But whether to go on from agreement that some changes to statute law are needed to the conclusion that full codification should be the aim is a decision best taken once the Joint Committeee has determined how much substantive change it wishes to recommend. The more change there is to be, the more will have to be done by statute, and the greater the case for catching up the totality.

B.  FREEDOM OF SPEECH

What should be the limits of freedom of speech?

  18.  Freedom of speech is the central element in parliamentary privilege, and it was the law in England well before 1689 that individual Members of either House ought not to be answerable before the courts for what they say in Parliament. But old though the principle is, its application can be difficult. Subsequent paragraphs illustrate this. In certain circumstances (some of which are sketched out in the next few paragraphs), freedom of speech may give rise to what is seen as substantial injustice to non-Members and when this happens there is often pressure for Members' freedom of speech to be limited. On the other hand, it may be argued that Members of either House must be at liberty to make honest mistakes and that to establish mechanisms to inquire into the honesty of errors might inhibit members from raising issues which cannot be raised elsewhere. Preservation of freedom of speech in Parliament may be seen as a public good and more important than any private injury it may do. In any case, subjecting the exercise of freedom of speech to the courts would not necessarily solve the problem. The courts are not infallible, nor are they necessarily the best judges of the public interest.

  19.  Members may say things in Parliament which are defamatory of individuals outside: statements may also be made which, for example, are seditious, contrary to legislation on official secrecy or which defy court orders such as injunctions. When such instances have arisen in the past, Commons Committees have preferred not to limit Members' freedom of speech in Parliament except in very limited respects6. Any other conclusion would represent a constitutional revolution of the very first order.

  20.  One of the important considerations in determining limits on freedom of speech is comity with the Courts. Both Houses have long recognised that it would be wrong for them to seek to influence, or even to appear to be influencing, the trial of any action. In the 1960's the two Houses passed Resolutions relating to circumstances in which the "sub-judice rule" should apply: The Resolutions themselves include flexibility to allow debate when the overriding public interest is that a matter should be debated. In the House of Commons, the Speaker may exercise her discretion on the application of the rule. In the Lords, the Leader of the House has discretion to decide whether or not a case, falling within specified criteria, and to which the sub-judice rule would normally apply, might safely be debated. In either House, therefore, relevant comment on a case proceeding in the Courts is permissible. The House of Lords made changes to its sub-judice rule in 1995. The House of Commons has not altered its Resolutions since 1972. The current version of the Commons Resolutions does not take account of changes in Court procedure or in the law: for example the development of judicial review, or the changes arising from the Contempt of Court Act 1981. In some respects it may be that they limit debate unnecessarily7.

  21.  Freedom of speech in Parliament needs also to be considered in the light of injunctions awarded by the Courts. This matter was examined by the Commons Procedure Committee in Session 1995-968. Clearly any widespread reporting of a breach of an injunction in debate in either House would defeat the purpose of the injunction. As the Procedure Committee noted, " . . . . 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 . . . . publication of matters subject to such orders goes far beyond criticism of a particular judgement or taking issue with the operation of the judicial process; it effectively interferes with the administration of justice". However, that Committee did not believe that the time had yet come to limit freedom of speech by a new rule of the House similar to the sub-judice rule. It might also be noted that the general increase in the number of interim and permanent injunctions, and perhaps the sometimes questionable use of the former might in some circumstances seriously inhibit debate on matters of public concern if a general rule prohibiting debate following any court injunction, was adopted9. Moreover, the rapid increase in international communications through media such as the Internet suggests that this may be an issue which cannot be resolved solely in terms of parliamentary proceedings. We note that in one admittedly very special case a court has excluded parliamentary proceedings from the terms of an injunction so as not to appear to inhibit the two Houses from commenting on the leak of a D.T.I. inspector's report10. If the Committee recommends that injunctions should be subject to similar rules as those that apply to matters sub-judice we would strongly suggest that there should be scope for discretion in their application (in the case of the Commons this might be the discretion of the Speaker).

  22.  Another difficulty with statements made in Parliament arises in respect of those who report them. The Official Reports, as continuous records of proceedings, are protected by the Parliamentary Papers Act 1840 from actions of any sort based on their verbatim accounts of speeches. The common law confers qualified privilege in actions for defamation on those who publish without malice fair and accurate summaries of speeches in Parliament. It is, however, not at all certain whether the press or broadcasting media are protected against the criminal law if they carry verbatim accounts of speeches. Yet why expose the press or media to criminal liability for publishing the same speech the public can read in Hansard ?

  23.  In a similar vein, it was considered some years ago by the law officers that sufficient protection might not be afforded by the law to those who broadcast as part of the continuous live coverage of Parliament speeches which were contrary to the criminal law or might amount to criminal contempt of court (or contain defamatory material). 11 The Joint Committee may wish to reconsider whether absolute protection needs to be extended to them, as the House of Commons Select Committee on Sound Broadcasting recommended in Session 1981-82, or whether qualified protection is all that is necessary. Either approach would require new legislation.

How should freeedom of speech be defined?

  24.  It was suggested above that a modernised version of Article IX of the Bill of Rights was required. The problems of interpretation which have gathered around the text of Article IX have been mentioned to the Joint Committee, and are set out at pages 93 to 97 of the current (22nd) edition of Erskine May's Parliamentary Practice. One could draw up an almost endless list of questions. Is the Register of Members' Interests a proceeding in Parliament or is it not? To what extent is it permissible to refer to Hansard in court proceedings without infringing Article IX? Does "impeach" have the same meaning as "question" or is it something different? Whom does Article IX protect apart from Members and Peers? What is a "place out of Parliament"—is it to be interpreted strictly as applying only to tribunal or other body exercising legal jurisdiction or authority, broadly of the same character as a Court? It is not suggested that an attempt should be made to answer every question. But there are important areas where clarity is needed. An advantage of the Australian Parliamentary Privileges Act 1987 is that it concentrates on defining in quite broad, but clear, terms the scope of Article IX and the key phrase "proceedings in Parliament" and thus provides a single, up to date, reference point for the central privileges of the Australian Parliament, without making any claim to be comprehensive. 12

  25.  If this example is followed, the basis of a new statute clarifying or replacing article IX might provide that:

    —  no Member of either House is liable before any court exercising a civil or criminal jurisdiction in the United Kingdom for what he or she did or said as part of, or with a view to participating in, debate or proceedings in or before either House or a committee thereof;

    —  this protection extends to any Officer or servant of either House, to witnesses before either House or a Committee, and to those who, as petitioners, counsel, solicitors, agents or otherwise, participate in proceedings in accordance with the course of business in Parliament.

  A restatement of the essential privileges of the House might then be attempted, based on these criteria.

What is a proceeding?

  26.  Redrafting Article IX would make it essential to define "proceedings in Parliament", something which already has a great deal to commend it and has already been recommended by several previous Select Committees. 13 The memorandum submitted to the Joint Committee by the Clerk of the House of Commons in November gives examples of three attempts which have been made to achieve this; two (the Australian Parliamentary Privileges Act 1987 and Section 13 of the Defamation Act 1996) exist in statutory form. None of these definitions is entirely satisfactory but perhaps that contained in Section 16 of the Australian Act (which appears to have operated for 10 years without giving rise to difficulty) comes closest to what is required. Although it is not too difficult to identify the main areas of parliamentary activity which constitute "proceedings", it is much harder, if not impossible, to make an exhaustive list, which will adequately encompass new developments. For this reason we recommend that, as in the Australian Act, any definition should not be exclusive. 14

Impeaching and questioning

  27.  It is not only the position of individual Members which freedom of speech is intended to secure. The Bill of Rights also insulates proceedings in the House against being "impeached or questioned" in the courts. Inferences may not be drawn from what is said or done as part of proceedings, even if the position of no Member is directly threatened by that process. Were it otherwise, members of either House—even if their actions in Parliament were not the object of civil or criminal action—would be liable to defend in court what they had said or done in Parliament. Constitutionally and politically, however, that responsibility is towards the Sovereign and the electorate.

  28.  Parliament and the courts are concurrent authorities in the State. Parliament seeks to maintain good relations by observance of the sub-judice rule in both Houses, (see paragraph 20). From the point of view of the courts, there are many judicial observations which attach importance to the principle of non-interference in parliamentary business. It is not however forbidden to refer in court to the simple occurrence of some event in the course of proceedings, without criticism or the drawing of inferences. A clear statutory reaffirmation of these principles, not least because of the possibilities of developments taking their origin from the decision in Pepper v Hart, would probably need to be part of any legislation.

Ought freedom of speech to extend to constituents or activities on their behalf?

  29.  The committees which previously attempted a definition of "proceedings in Parliament" (for which see end-note No. 13) proposed that communications to ministers (or to other government bodies, such as executive agencies) sent by—or at the behest, or direction of—members of either House, should be protected against actions for defamation, provided they were in connection with public or parliamentary affairs. This would amount, of course, to an attempt to reverse the "Strauss decision" of the House of Commons in 1958. Whether or not to recommend action along these lines seems to us a nicely balanced question. On the one hand, the qualified defence at common law in actions for defamation—the protection may not go wider—is probably adequate in practice to meet all reasonable eventualities and the courts are more likely now than they were in the 1950's, to recognise that the duties of members extend beyond the walls of Parliament. Although Members of the House of Commons are often threatened with litigation, actual cases alleging defamation in correspondence have been rare and in the one recent case that has got into all the textbooks on constitutional law15 the judgement was wholly satisfactory.

  30.  It might therefore, on this view, be considered to be unnecessary to extend the absolute protection of parliamentary privilege to Members' correspondence. On the other hand contacts of this kind are integral to the performance of parliamentary duties, most obviously in the Commons. When Members' are sued, Parliament offers them little legal and no financial support. They must find from their own pockets the resources needed to assert their right to do what they believe is part of their duty as representatives of the people.

  31.  It is entirely understandable that Members of the House of Commons need to have extensive correspondence with, and on behalf of, constituents. Sometimes such correspondence eg to Ministers, Officials and Government Agencies and non-Departmental Public Bodies, may have an identical purpose to a parliamentary question which would be absolutely protected by parliamentary privilege. It is difficult to see why there should be any distinction made between them. Other correspondence, with regulatory or professional bodies or with local authorities, may fall into a rather different category. Should a reply to a Member's letter from an official in a local council or in the Office of Fair Trading or in a privatised utility attract absolute privilege? The more that the scope of absolute privilege is extended the more difficulties may arise. Nevertheless, there may be a case for including at least some of Members' and Peers "official" correspondence within the definition of "proceedings in Parliament".

  32.  If the Committee conclude (as a Joint Committee and Commons Committees have in the past) that letters from Members to ministers (and perhaps others) ought to be protected, it is worth recalling that a letter from, or on behalf of, a Member to a constituent has much in common with the letter to the Member from the Minister or agency which enabled the Member to reply. On the one hand, it might seem that in logic it ought to enjoy the same protection: on the other, the arguments about the difficulties inherent in the extension of privilege which were set out in the preceding paragraph will also be relevant here.

  33.  Letters from constituents raise rather different considerations. They may no doubt enjoy qualified privilege at common law (being written without malice), provided they are on subjects which have a reasonable connection with a Member's public duties. If any added protection were given to them it should only be within the context of the actions of a Member in pursuing them in Parliament. It would be difficult, for example, to justify privilege extending to defamatory letters from constituents which were immediately released to the press either by the constituent or by the Member. Moreover, not all correspondence will be in response to a constituency problem. It is difficult to see why letters relating to a Member's business or consultancy interests should obtain any special protection.

Should the public have a right of reply to the exercise of free speech?

  34.  Some Commonwealth jurisdictions, notably in Australia and in New Zealand, permit those who have been the subject of what they consider to have been unreasonable, damaging or malicious criticism in Parliament to have a right of reply under appropriate procedures. The Joint Committee would no doubt need to be certain that any adaptation of these arrangements to the United Kingdom could be made fully consistent with a member's right to have what he or she said in Parliament (and their right to say it) go without formal challenge. This issue was looked into in some detail by the Select Committee on Procedure of the House of Commons in its First Report of Session 1988-89 (HC 290) which described the procedure for a right of reply used by the Australian Senate (paragraphs 58 to 63). The Committee was "not persuaded that a case has yet been established in this country, for a formalised right of reply". The Committee may wish to consider whether, over the last ten years, conditions have changed so significantly as to alter this conclusion. It should, of course, be remembered that unless some filter mechanism (eg through a Committee) was established, which might in itself create new difficulties, the right, once granted, would be available not only to the ordinary outraged constituent or correspondent, but also to the wealthy and litigious individual, who would not lack the resources to pursue a long campaign against a Member or a Peer and to link it with press comment.

  35.  The same recourse might also have to be available against statements made in Parliament by those who are not members of either House—witnesses before committees, for example. This might lead to the absurdity that someone who was offended by evidence to a committee could choose not to put in contradictory evidence on their own account, but to make use of the right of reply procedure. If, on the other hand, a right of reply procedure against a witness was not available, it would put witnesses in a more favourable position than Members.

  36.  Whatever the theoretical merits of a right of reply, we doubt whether a fully satisfactory system can be devised.

Other statutory changes

  37.  At least two statutes, the Witnesses (Public Inquiries) Protection Act 1892 (which includes penalties for those who are proved, before the Courts, to have threatened or injured any person on account of evidence given by that person before a Committee of either House, unless such evidence was given in bad faith) and the Perjury Act 1911 (which punishes false evidence given on oath before Committees of either House) make implied amendments to Article IX of the Bill of Rights. If the scope of "proceedings in Parliament" is defined in legislation, then the opportunity might be taken to re-examine these offences in the light of the definition.

  38.  Section 13 of the Defamation Act 1996, on the other hand, is a more or less direct amendment of the Bill of Rights. What is more, it is in clear conflict with the principle that the privileges of Parliament exist for the benefit of Parliament as a whole: it is only incidentally that privilege confers individual rights or immunities. Before 1996 it was accepted (as it continues to be in many parts of the Commonwealth) that Article IX may on some occasions be disadvantageous to an individual member of Parliament. Section 13 removes one of those disadvantages by enabling a Member, or an Officer of either House, or a witness before a Committee, or a Petitioner, or any other unspecified person who may be involved with parliamentary proceedings, to "waive privilege" so far as it affects them in an action for defamation. As a result, some "impeaching or questioning" is now legitimate, and some is not: everything depends on the choice of the Member or of the other person protected by privilege. No cases in which the waiver has been used have yet come before the courts: there is thus no settled law as to how the courts will deal with what is not permissible questioning. While Members other than those directly involved might understand the need for some element of questioning in a serious issue such as bribery, they might be much less happy were essentially frivolous defamation actions to call in question their actions in the House. Attention has also been drawn to the fact that if the section is applied in any but the most straightforward circumstances, difficulties seem likely to occur in Court proceedings. For example, corroborative testimony of events in Parliament may well not be obtained if other Members decline to exercise their waiver. But the most serious disadvantage of the provision is that it may bring "proceedings in Parliament" before the Courts relatively frequently—more frequently than is ever likely under the proposal to bring members of both Houses within the scope of the law of bribery.

  39.  It cannot be denied that it is hard on members of both Houses who wish to clear their names in the Courts to find a provision intended for their protection prevents them from doing so. The Joint Committee will decide on which side the balance of advantage lies. If the principle of section 13 of the Defamation Act 1996 is to be retained, Members will wish to review the adequacy of the existing text for the task it has to perform, and to consider whether it is appropriate that the waiver of what is essentially a collective immunity should rest on the decision not of a House but of an individual, who may not even be a Member of Parliament. If on the other hand, it is accepted that privileges sometimes involve related disadvantages, the Joint Committee will recommend repeal of section 13.

Papers published by the order of a House

  40.  The Joint Committee have, so far, not considered in any detail the absolute privilege afforded to Parliamentary publications. The Parliamentary Papers Act 1840 permits proceedings against anyone for the publication of papers which either House has ordered to be published to be stayed on production of a certificate affirming the making of such an order. Qualified privilege at common law has for more than a century been available to faithful reports of proceedings and debates published without malice (for further comment on certain aspects of this issue, see paragraphs 22-23).

  41.  The law seems uncertain on whether Government White Papers and other official documents laid before either House by command of Her Majesty benefit from the 1840 Act. Though these documents are not customarily ordered to be printed by Parliament, there are judgments dating from the first decade of this century which have treated them as within the Act of 1840. No recent government has however acted on these decisions. The Committee may think it worth considering whether to resolve these difficulties by recommending legislation to exclude Command Papers definitively from the scope of the Parliamentary Papers Act 1840. This was recommended by the Joint Committee on the Publication of Proceedings in Parliament in 1970. 16 Motions for Unopposed Returns in either House, intended to attract the provisions of the 1840 Act, would remain options for the government in the case of papers which they felt could not be safely published without an explicit order of the Houses.

  42.  Apart from papers of the two Houses (such as reports of Select Committees) which receive an order to print and are thereby protected under the 1840 Act, it is customary for the House of Commons to order the printing of any paper laid before it pursuant to an Act of Parliament which engages its constitutional responsibilities for financial matters; most typically annual reports of various public bodies containing accounts statutorily audited by the Comptroller and Auditor General who is an Officer of the House of Commons. The increasing practice of publishing the reports and accounts together means that some hundreds of documents emanating from Government Departments, Agencies and Non-Departmental Public Bodies are given legal immunity simply by virtue of an order for their printing. The Committee may wish to consider whether this practice is desirable.

C.  EXCLUSIVE COGNISANCE

Ought the scope of the claim to be reviewed or restated in statute?

  43.  The Joint Committee may wish to consider the scope of the claim to exclusive cognisance of its own affairs which is made by each House. It is on the basis of this claim that both Houses have long succeeded in maintaining the right to be the sole judges of the lawfulness of their own proceedings and to settle or to depart from their own codes of procedure in dealing with the business before them. There is case law (eg especially Bradlaugh v Gosset) 17 to support the proposition that in matters of exclusive cognisance, the Houses are capable even of suspending the effect of statute law, so far as it may apply to them. Whatever statutory change is made elsewhere, the Joint Committee may wish to ensure that it does not call into question the exclusive rights of the two Houses over the process of legislation, or their right to apply the procedures and practices under which they function, including the exercise of any power, such as that to send for persons, papers and records, which support those procedures.

  44.  It is true that the courts have tended to avoid this procedural and legislative area of exclusive cognisance. There is, however, a judgment (R v Graham Campbell ex parte Herbert) 18 which stretches the concept to the licensing arrangements of the House. In such matters it may seem less defensible than once it was for Parliament to be free of the regulatory law which it imposes on others. If, therefore, the scope of the claim is in doubt, it is more significant than it might otherwise be that there is no clear statutory support for the claim, a defect which became clear in Pepper v Hart.

  45.  It would be for consideration whether a form of words could be found which would give statutory protection to the claim, so far (at least) as it related to the formal actions of the Houses and what is done—for example by the Lord Chancellor or the Speaker—in contemplation of such actions, and within their administrative responsibilities. The protected area would perhaps be wider than that of "proceedings" since it would need to take into account the broader responsibilities of members of both Houses and the need for them to have sufficient independence to carry out those duties without fear of obstruction or intimidation. It might also need to provide some protection for members' staff and for the staff of the two Houses who assist them in carrying out these responsibilities. However it might be more logical to regard proceedings as defining the area which exclusive cognisance exists indirectly to protect. It might also be for the consideration of the Joint Committee whether a statutory restatement of the claim to exclusive cognisance ought to define (with appropriate provisions for amendment) the precincts of the two Houses.

Existing legislation in areas of exlusive congnisance

  46.  Legislation for exclusive cognisance might mean reviewing the exemption from other legislation enjoyed by both Houses by right of their exclusive congnisance. The Houses are exempt from statute law on (for example) health and safety, fire precautions, food safety, working conditions, data protection and certain aspects of employment law. (It should of course be added that this does not mean that the provisions of these statutes are ignored: they are normally applied so far as possible).

  47.  Applying such Acts to the Palace, where many aspects of the working environment are unique, will be full of difficulty. Change could not be effected overnight, and some derogation from the general law might always be necessary, in order to prevent proceedings of the two Houses and their Committees being called in question before a court. If it decides to limit the scope of exclusive cognisance, the Joint Committee may therefore wish to consider whether to go on to recommend that such regulatory statutes should in future apply to the Palace as a matter of course. A rider would be added that in drafting the bills for these Acts, accounts should be taken of the pecularities of work and employment in the Palace of Westminster.

Evidence in court regarding the area of exclusive cognisance

  48.  One of the elements of exclusive cognisance is the right of Members and Officers of both Houses not to be compelled to give evidence in court regarding proceedings in Parliament (though in one respect this may have been compromised by S.13 of the Defamation Act 1996). 19 If the protection against "impeaching or questioning" currently given by the Bill of Rights is reasserted in new legislation, perhaps in other language, the need for these provisions might disappear, with two provisos. It would still be necessary in the Commons to petition for the production in court of unpublished papers (such as unreported evidence, correspondence or memoranda) relating to proceedings: and papers in the custody, possession or control of the Corporate Officer of either House so far as they were held by him for the purposes of his functions under the Parliamentary Corporate Bodies Act 1992 might be produced without a petition, even if unpublished. A form of words would need to be found to put on the same footing commercial and contractual agreements and relationships entered into by one of the Houses other than through the Corporate Officer. (On this point we remind the Joint Committee of the memorandum they have recently received from the Attorney General).

D.  FREEDOM FROM ARREST

Is it still necessary?

  49.  We remind the Joint Committee of our comments on freedom from arrest and related privileges in our earlier memoranda (Commons memorandum, paragraphs 21 to 33, printed in Oral Evidence, pages 7-8; Lords memorandum, paragraph 14 to 16 printed in Oral Evidence pages 14-15).

  50.  Freedom from arrest is claimable only in civil cases, and the scope for arrest in such cases is now very limited. The Joint Committee will recall in our earlier evidence we recommended a formal abolition of this privilege. If any part of the privilege is to be retained, a clear statement of the position in modern legal terms would be helpful. A requirement that the two Houses should be informed of the detention of the one of their members is based upon this privilege; reinforced in the Lords by the requirements of Standing Order 79. If the privilege were to be abolished or amended, it would be logical to provide that whenever a Member of either House has been rendered unable to attend that House by reason of arrest without bail or imprisonment under the criminal law or similar form of statutory detention, there is a statutory obligation on the authority responsible for the detention to inform the House accordingly.

  51.  The opportunity might be taken to resolve the problem of whether a member of the House of Lords may be released from restraint under the Mental Health Acts by pleading privilege of Parliament or peerage: and providing for disqualification from sitting or voting or for receiving a writ of summons.

  52.  The opportunity might also be taken to abolish "privilege of peerage".

Witness summons

  53.  As we mentioned in our earlier papers (Commons memorandum para 22, Oral Evidence page 8 and Lords memorandum para 16, page 30), in current practice, a member of either House—though it is the Commons which is principally affected—may attend court as a witness if summoned, or may stand upon the privilege not to attend. Consequently, a Member's service to the House may be rendered unreasonably difficult by a more or less vexatious litigant, while on the other had the ends of justice may in theory be thwarted by a Member unreasonably sheltering behind the privilege. No provision which is automatic in its operation is capable of distinguishing between justified and unjustified behaviour on either side. It is difficult to tell how frequently members of either House make use of the privilege. A Court may accept a refusal without any letter being sent by the Clerk of the appropriate House. The Joint Committee will need to make an assessment of whether the continuance of the privilege (which may be exercised in respect of a personal as well as a political matter) is absolutely necessary to the effective functioning of Parliament. The Joint Committee may decide that, on balance, the privilege could safely be dispensed with. If it is to be retained, it might be possible to devise a system by which in principle Parliament had prior claim to the services of its Members, and they were not compellable as witnesses before the criminal or civil courts. If the presiding judge certified to the Lord Chancellor or the Speaker that attempts to reconcile the claims of the court and Parliament on a Member's time had failed, and that the presentation of the facts before the court was likely to be materially affected by the absence of the Member, the Speaker of the relevant House would have power to disallow the privilege and would do so unless the work of the House would be seriously impeded thereby. The House would be informed.

E.  CONTEMPTS

  54.  We remind the Joint Committee of our comments on "contempts" in our earlier memoranda (Commons memorandum, paragraphs 24 to 29, printed as Oral Evidence, pages 8-9; Lords memorandum, paragraphs 17-18, printed as Oral Evidence, page 30). The paragraphs here are supplementary to, and do not replace those paragraphs.

Contempt as obstruction

  55.  Like freedom of speech, contempt has both an individual and a collective aspect. Members, officers or witnesses may be hindered in the discharge of their duties to Parliament; or the mischief may have its effect on the institution of Parliament directly. The scope of contempt is broad, because the actions which may obstruct a House or one of its Committees in the performance of its functions are very diverse in character. Contempts are not limited by Article IX and its definition of proceedings, any more than exclusive cognisance is, though there is purposive connection between all three. Though an exhaustive definition of contempt is probably impossible, its defining characteristic may be thought to be obstruction. Members of both Houses of Parliament may be, intimidated before they participate, or may be "punished" for their participation. The same is true of others who are not members who take part in proceedings. Against that background, power to restrain acts of contempt and to punish them is a defence likely to be required by both Houses, even though only the Commons in recent decades has acted against those in contempt.

  56.  In the past, Parliament interpreted the obstructive element in contempt fairly liberally, and proceeded sternly against abusive comment and behaviour calculated to subject them to public ridicule, and thereby—as they saw it—to obstruct them. More recently, however, both Houses have passed over in silence much that would have attracted an energetic response in previous years. The dignity which contempt offends against was tacitly seen as better preserved by ignoring abuse than by punishing it. If Members wish to include contempt in any rationalisation of privilege law, they may consider making the link between contempt and obstruction more explicit. Abuse would not of its nature be a contempt, though where it amounted to intimidation or molestation of a member of either House, it would plainly become obstruction, and would therefore be punishable: and abusive behaviour or language in the presence of either House or a committee would remain of its nature a contempt.

Resolutions

  57.  It would probably be very difficult to encapsulate any such view of contempt in a statute, not least because here more than in any other part of privilege law, flexibility is essential. It might however be worth considering whether the particular decisions of future Houses and committees would be assisted by parallel resolutions of both Houses setting out their present understanding of the broad nature and purpose of their contempt jurisdiction.

Service of process

  58.  It is unlikely that the service of legal process on a member of either House on a sitting day could amount to culpable interference with the business of the House unless it was done in a way which interfered with the proceedings of a House or a Committee: the Committee may wish to consider whether it would be appropriate to abandon the contention that the service of process within the precincts on a sitting day was invariably a contempt.

F. PENAL JURISDICTION

Should penal jurisdiction be retained?

  59.  Information on the powers of the two Houses to punish for contempt or breach of privilege is set out in paragraphs 30 to 32 of the Commons memorandum (Oral Evidence, page 7) and paragraph 19 of the Lords memorandum (Oral Evidence, page 58.)

  60.  The penal jurisdiction of Parliament is directed at those who offend against it. Consequently, retention of the contempt jurisdiction implies the continuation of the power to punish. If corruption and similar irregularities are dealt with separately from other contempts, and contempt is more or less strictly limited in future to wilful, serious and damaging obstruction of Parliament, the case for penal jurisdiction of some kind can be more clearly seen. Obstructing Parliament ought to be a serious offence: in appropriate cases, it should not go unpunished. Since only Parliament is in a position to assess the gravity of the offence, Parliament should—it could be argued—determine the penalty. The arguments advanced about the difficulty of giving to those against whom a charge of corruption is laid safeguards not less than those to which they would be entitled in a court of law are less conclusive when the accusation involves an obstructive contempt.

  61.  Penal jurisdiction over acts of contempt will naturally involve those who are not Members of either House—witnesses who will not respond to a summons to give evidence, for example, or who appear but do not tell the truth; those who wilfully disrupt the proceedings of a House or a committee; or those who leak unreported committee evidence. In our view one of the major problems the Joint Committee must seek to resolve, is how to update the penal jurisdiction of Parliament so as to make it credible, effective and publicly acceptable and, so far as possible, immune from challenge under the European Convention of Human Rights. We do not see any easy way of doing this; we strongly suggest that it is an issue which the Joint Committee needs to address.

J. M. Davies

Clerk of the Parliaments

W. R. McKay

Clerk of the House of Commons

5 May 1998



NOTES

  1.   Demicoli v Malta, Eur Conv Judgment of 27 August 1991, No 33/1990/224/228 Human Rights Law Journal Vol 12 Nos 8-9; HR (1991) Series A, No 210.

  2.  [1993] 1 AC 593; [1993] 1 ALL ER 42.

  3.  [1995] 1 AC 321; [1994] 3 All ER 407; 3 NZLR 513.

  4.  The Lords have not treated a libel of a peer as a matter of privilege since the last century. In the Commons, the Select Committee on Parliamentary Privilege recommended in its report (HC 1967-68, 34) that normally, where a Member had a remedy in the Courts, the Member should not be permitted to invoke the penal jurisdiction of the House, in lieu of, or in addition to, that remedy. When the Committee of Privileges, of 1976-77 (HC 417: Third Report: Recommendations of the Select Committee on Parliamentary Privilege) recommended a modified version of its predecessors recommendation to the House, it added that "it would be unsatisfactory for the House to appear to rely on action by the Member in the Courts as a substitute for the exercise of its own jurisdiction". However, the House has, in practice, accepted the 1967-68 Committee's recommendation without this qualification. Another development may also be relevant. On 16 July 1971 the House of Commons resolved that it would not treat as a contempt the reporting of its public sittings: on 31 October 1980 a further Resolution extended this exemption to Committees. Hitherto a series of Resolutions of the House (notably that of 3 March 1762) had claimed that reporting of proceedings was an infringement of its privileges, and had from time to time used this claim as the basis for punishing libellous reporting. Although both Resolutions were in guarded terms which did not repeal the earlier claim, the practical effect has in fact been exactly the same as repeal.

  5.  Votes and Proceedings, 12 December 1997.

  6.  In Session 1988-89 the Committee reviewed the scope of freedom of speech and the possibility of right of reply. Its conclusions (First Report, HC 290) are worth quoting in full:

    "67. 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.

    68. In general we agree with the concluding remarks of the Clerk of the House: "My personal opinion is that the situation has not been reached which would justify a diminution in Members' freedom of action, but I am not saying such a position could not be reached". We underline the need for vigilance implied by the Clerk. As regards the behaviour of Members themselves in relation to privilege, we believe that the House already possesses adequate powers to take action in flagrant cases of abuse, and we would expect it to do so particularly when the standing of Parliament was placed in jeopardy. So far as the protection of individuals outside the House is concerned, whilst we have rejected the idea of a formal right of reply, we are conscious that if Members do not use their freedom of speech responsibly, pressure for such a procedure could become irresistible. As with the maintenance of high standards of conduct more generally, the onus lies with Members, individually and collectively".

  When, in Session 1995-96, a Member breached a court injunction in circumstances which received considerable publicity the Procedure Committee looked at the general issues again. Their Report (HC 252) noted that the ill-effects of breaches of the sort of court orders they were examining came from the republication and dissemination of proceedings outside Parliament and that such reporting did not seem to be immune from any prosecution for contempt. The Committee envisaged the possibility of introducing a new rule of the House if it proved necessary:—

    "16.  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".

  The words of the Resolution referred to were:

    "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 questions 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."

  7.  The Commons Resolutions are of 23 July 1963 (CJ 1962-63, 297) and 28 June 1972 (CJ 1971-72, 408). For the Lords, see LJ (1963-64) 43 and HL Deb (1989-90) 515, cc 1094-1098; LJ (1994-95) 45, 90, and HL Paper No 9 (1994-95): The sub-judice rule is considered in detail in Leopold "The Changing Boundary between Courts and Parliament" in Buckley (ed) "Legal Structures" Wiley & Son, 1998.

  8.  Op. cit. paragraph 9.

  9.  See, too, Patricia Leopold, "Parliamentary Free Speech, Court Orders and European Law" (unpublished article).

  10.  HC Debates, 4 April 1989, c19.

  11.  HC (1966-67) 146 Appendix 38; for contempt of court see HC (1981-82) 376, paragraphs 72-87. See, too, First Report from the Select Committee on Televising of Proceedings of the House, HC (1988-89) 141, paragraph 69. After a careful examination of the issues, the House of Commons Select Committee on Sound Broadcasting (1981-82) drew a distinction between live broadcasts which they recommended should be protected by absolute privilege and reports whether in full or by way of extract which should enjoy qualified privilege at law. The two relevant recommendations (neither of which have been implemented) are:

    "that proposals should be presented for amending the law to confer absolute privilege on broadcasters in respect of the live broadcasting of defamatory words spoken in either House. We would not, however, recommend any change in the present law as regards the broadcasting of recordings" (paragraph 83).

    "that the broadcasters should be immune from proceedings for contempt in the case of material broadcast live" (paragraph 87).

  12.  The Australian Parliamentary Privileges Act, 1987 defines:

    "without limiting the generality of the foregoing" the main proceedings in Parliament to which the protection afforded by Article IX of the Bill of Rights applies (Section 16(2)).

    what "impeaching" and "questioning" mean (Section 16(3)).

    what evidence relating to parliamentary proceedings a court may not admit (Section 16(4)).

    what evidence relating to parliamentary proceedings a court may admit (Section 16(5)).

    The Act also specifies the exact circumstances of a Members' or Senators' immunity from arrest or from a requirement to attend a court (Section 14); legislates for the protection of witnesses (Section 12) and provides the penalties which either House may impose in respect of a contempt (Section 7).

  13.  Select Committee on Procedure: First Report HC (1988-89) 290 especially Appendix 7; Committee of Privileges: HC (1986-87) 365; HC (1976-77) 417 paragraphs 7 and 8; Joint Committee on Proceedings in Parliament: Second Report HL (1969-70) 109, HC (1969-70) 261, paragraphs 25-30; Select Committee on Parliamentary Privilege: HC (1967-68) 34, paragraphs 80 to 86, 91 and 92. Report of the Faulks Committee of the Law of Contempt; Cmnd 5909.

  14.  In her examination of the problems of adapting parliamentary privilege to the introduction of broadcasting in Legal Studies, Volume 9, No. 1, Patricia Leopold drew attention to the need, in that context, to define "proceedings" and to the equal importance of not attempting to make such a definition comprehensive (page 65).

  15.   Beach v Freeson [1971] 2 All ER 854.

  16.  Second Report op cit (HL 109, HC 261) paragraph 56.

  17.  [1883, 1884], 12 QBD 271.

  18.  [1935], 1KB 594.

  19.  When a Member (or a witness or officer) has "waived" privilege in a defamation action it is not clear whether other Members or staff of the House could be required (subject to the permission of the House, given on petition) to give evidence relating to the words and actions of that Member even if they had not agreed to waive their own privilege.


 
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