Parliamentary Privilege Report


I.  PRIVILEGES

FREEDOM OF SPEECH

THE HOUSE AND THE COURTS

  5.  The centrepiece of the privileges of the House is of course freedom of speech, without which it would not be possible for the House or its Members to perform their functions. Freedom of speech is one of the freedoms sought by the Speaker from Her Majesty in the name of the Commons at the beginning of a Parliament. It is also however protected by statute which is set out in article IX of the Bill of Rights 1689:

    freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament

  Whenever problems arise in connection with freedom of speech therefore, it is usually the courts and not the House which resolve them. The consequence is that the practical scope of this most vital privilege is not within the control of the House. It cannot even be—as the Court of Appeal in New Zealand (where Article IX is also law) thought—"waived" or not insisted on by any House. It is an obligation laid not on the House but on the courts.

  6.  Although much of what follows inevitably highlights conflict between the courts and the House, it should be stressed that both sides believe as a matter of important principle that comity ought to exist between them . The House's sub judice rule is the principal recognition of this on the parliamentary side. For the courts, there are many judicial observations, ancient and modern, which state the same principle. These include:

    —  [irreconcilable disputes between the House and the courts] might happen [but] it is consoling to reflect that they have scarce ever happened...and in the present state of things it is but barely possible that they should ever happen again" (Bradlaugh v Gosset (1884) 12 QBD 271 at 275;

    —  "any tribunal might well feel, on the authorities, an invincible reluctance to interfere" with the House [in recognising its exclusive cognisance in matters internal to it] (R v Graham Campbell ex p Herbert [1935] 1 KBD 594);

    —  [permitting inferences to be drawn from the Official Report] would be contrary to article IX of the Bill of Rights [and doing] what Blackstone said was not to be done [examining matter outside the House to which it relates]...an invasion by the court of the right of every Member of Parliament to free speech in the House (R v Secretary of State for Trade and others ex p Anderson Strathclyde plc [1983] 2 All E R 233); and

    —  "article IX [of the Bill of Rights, encapsulating the privilege of freedom of speech] is a provision of the highest constitutional importance and should not be narrowly construed" (Pepper v Hart [1993] 593 at 638).

  7.  This is not of course to say that all tension between the two authorities has been resolved. The courts are aware that mutuality of respect is an important part of the relationship. It was said in 1985 in R v HM Treasury ex p Smedley ([1985] QB 657 at 666) that:

    It . . . behoves the courts to be ever sensitive to the paramount need to refrain from trespassing on the province of Parliament or, so far as this can be avoided, even appearing to do so...I would hope and expect that Parliament would be similarly sensitive to the need to refrain from trespassing on the province of the courts.

  One might also note the observations of a judge in 1990 (Rost v Edwards 2 QB 460 at 478) to the effect that:

    while giving full attention to the necessity for comity between the courts and Parliament, [a court] should not be astute for ousting its own jurisdiction, and for limiting or even defeating a litigant's proper claim, where it was not clear into which category [of jurisdiction, the courts or Parliament] a case fell. Since Parliament could, by Act of Parliament, confer on itself the right to exclusive jurisdiction if it so wished, the clearest possible words were required to oust the court's jurisdiction.

  8.  Interpretation of the Bill of Rights, as of any other statute, is a matter for the courts. Difficulties may arise from the fact that the Bill of Rights naturally lacks the precision expected in modern Acts. Even long-held beliefs about the breadth of its protection were doubted in the mid-1980s by an Australian court which ruled that freedom of speech was protected only against unpleasant consequences in court for those who had exercised it in Parliament. The court considered itself free to admit select committee evidence and to permit counsel to challenge a witness in court by comparing what he had said in committee and what he said later in court.[5] It took a statute to reverse the ruling. Perhaps paradoxically, the meaning attributed to article IX by that statute has now been imported into the United Kingdom by the judgment in Pepper v Hart which declared that the Australian Parliamentary Privileges Act 1987 "declares what had previously been regarded as the effect of article IX". And this was done without any comment by the Parliament at Westminster.

"Proceedings in Parliament"

  9.  One of the critical details in article IX is of course "proceedings in Parliament". The phrase is not limited to contributions to debate or participation in committees, though beyond these undoubtedly protected areas its applicability is often in doubt (see paragraph 10). The House has had an input in the work of clarification. Select committees have on a number of occasions considered the meaning of the phrase in general or particular[6] (see Annex A), and have also recommended legislation to resolve the questions which have arisen over the years[7]. Pending such action, which has not so far been taken, decisions have been arrived at by the courts which (without any element of criticism) the House might find a little surprising, such as that in 1990 in which it was found that the Register of Members' Interests was not a proceeding.[8] Equally, when the House breaks new ground, such as in the appointment of a Parliamentary Commissioner for Standards, Members may assume that his position and activities are covered by privilege, but it has taken action in the courts—not yet completed—to establish that this is so.

  10.  In 1996, in the context of section 13 of the Defamation Act, for which see paragraphs 15ff. below and Annex A, an allusive definition of proceedings was attempted. The Bill of Rights was not amended, but circumstances were set out in which protection analogous to that afforded by article IX is to continue even when, as a result of a waiver by someone, the phrase "impeached or questioned" is no longer to apply.[9] These prescriptions, which are closely connected with the Australian Act of 1987,[10] are likely to amount to a surrogate definition of proceedings. On the other hand, the definition was drawn up in particular circumstances, and may need further consideration if it is to meet all likely eventualities.

  11.  A particular aspect of the scope of "proceedings in Parliament" which may give rise to concern is the limitation—however precisely defined—which in general restricts the protection to activities in or closely connected with business in the House or a committee. Members do many things within the modern understanding of their duties and responsibilities which are not covered by the definition. They themselves understandably (if wrongly) often regard what they do as an unbroken whole enjoying a single and absolute protection. The most prominent occasion on which this distinction was made is, in fact, not a court decision but that of the House itself. In 1958 the Privileges Committee, in what is usually known as the Strauss case, concluded that a letter written by a Member to a public authority on behalf of a constituent was a "proceeding in Parliament" and the Member was not liable for allegedly defamatory comments in the letter.[11] The House did not agree. As a result such communications are not regarded by the House as protected by parliamentary privilege. In a less well-known case—this time in court[12]—there was a discussion of the "proper functions of a Member" though it did not result in a settled definition, outside or inside the fence of "proceedings in Parliament". More recently, a Member of the House was accused of the common law offence of misuse of public office, in respect of acts said to have been done by him as a constituency Member, mostly outside the House and not in connection with anything which was clearly a "proceeding". The judge found that the conduct alleged would fall within the scope of the offence, but no further light was shed on whether Members were public officers, or the limits of their answerability to the common law for some of their actions as Members (see paragraph 35)[13].

  12.  The obverse of this problem is that of the constituent who writes to his or her Member of Parliament a letter which a third party into whose hands it falls considers actionable. It may be that the law of Parliament will protect the writer, though there is no case to show that this was so. If there is no parliamentary protection, letter-writers will have to rely on the common law, where they may enjoy qualified privilege.[14]

  13.  The lack of any considered definition of the simple phrase "proceedings in Parliament" other than that which has been given to it over the centuries by the courts means that it is sometimes difficult to adapt it—or to be sure how the courts are likely to interpret it—in new situations. Since the House took over direct responsibility for major new building works, for example, it became liable to be involved in commercial litigation. The Corporate Officer, authorised to sign contracts on behalf of the House, was brought into being by an Act of 1992. Disputes may involve demands for the discovery of documentation which the courts regularly expect to be exchanged between parties. Since however select committees are part of the House's decision-making process in this area, discovery may be sought of papers in the possession or control of the Corporate Officer which are House material of a type never previously made public. In such litigation, the House would not wish to take improper advantage of its protected status: indeed it may find itself at a disadvantage if it attempts to do so. At the same time, it would no doubt wish to be assured that concessions made in such commercial actions could not give rise to unwelcome demands elsewhere. Another example is the House of Commons Commission. There is no learning of any kind, in the cases or in the statute of 1978 which set up the Commission, whether its activities and papers have the absolute protection of "proceedings in Parliament". It would be preferable for the House to make up its mind on the issue before the courts are invited to, in circumstances which we cannot now foresee.

"Impeach or question"

  14.  A further difficult phrase in article IX is that which lays on courts the obligation not to "impeach or question" proceedings in Parliament, nor to allow anyone else to do so. It is permissible to produce in court matter within the definition of proceedings, so long as this is done solely for the purpose of proving a fact, and not drawing inferences from it or (for example) challenging the bona fides of someone who made a statement in the course of proceedings. At the same time, it has been suggested that "impeaching or questioning" arises only when some improper motive is thought to be involved, or only where a Member is sought to be made liable, in civil or criminal proceedings, for what he or she said in Parliament.[15] Indeed, Lord Browne-Wilkinson recently, commenting on this aspect of article IX in general, said[16]:

    a number of authorities on the scope of article IX betray some confusion between the right to prove the occurrence of parliamentary events and the embargo on questioning their propriety.

Defamation Act 1996

  15.  The Bill of Rights has been seen as a protection for Parliament and its Members. Recently however a Member of the House found that inability to use part of proceedings hindered him in his action against a newspaper which he claimed was defamatory, because it alleged corruption by him in the discharge of his parliamentary responsibilities.[17] The judge stayed the action and Parliament then enacted section 13 of the Defamation Act 1996 (for part of which see Annex A). In defamation actions (and only in such actions) a Member (or other person protected by privilege) may waive for the purposes of those proceedings and so far as concerns him (alone) the ban on impeaching or questioning. No one however is to lose the normal protection from legal liability in relation to the part he or she played in proceedings in Parliament.

  16.  Members in both Houses argued for and against the enactment of what became section 13. One of the broader aspects which might be worth further consideration is that the section treats privilege as if it were a kind of personal immunity which the individual might choose to surrender, whereas it had always previously been understood as a collective right, which individuals enjoyed only so far as they were engaged in contributing to the proper functioning of the institution of Parliament.

  17.  Other aspects of the section which might be considered include the possibility that someone other than a Member or officer of either House might use it to waive privilege—a petitioner or witnesses before a committee, for instance—against the wishes of the House whose privilege was concerned. Another possibility might arise when two Members were closely involved in the same action for defamation. If one waived his or her privilege and the other declined to do so, would the case still in practice be triable? It certainly would result in immense pressure being put on the reluctant Member to change his or her mind. Again, the pressure might build up if a Member having waived the privilege on one occasion refused to do so on another.

EXCLUSIVE COGNISANCE

  18.  As well as the privileges which can be readily identified—freedom of speech, freedom from arrest and so on—each House claims a right of "exclusive cognisance" of its own business and matters internal to it.[18] Though the underlying rationale of the claim is not at all a complex one, the circumstances in which it may be exercised are very diverse. For example, attempts to persuade courts to strike down Acts because there was an alleged informality in their passage have foundered on exclusive cognisance[19]. It is for the Houses themselves to decide how their business should be done. Another example of exclusive cognisance by the courts is that Members cannot be obliged to present a petition. Nor will Members give evidence in the courts about proceedings in the House, unless the House is prepared to agree. It was on grounds of exclusive cognisance that a judge in Northern Ireland recently decided in favour of the Speaker in an action for judicial review of her decision to withhold from Members who had not taken the oath a range of services available to other Members.

  19.  Some elements in the claim—the prohibition of the courts' access to certain parliamentary papers, for instance—have been abandoned by the House, though the protection given to them by the Bill of Rights is explicitly reasserted. On the other hand, the courts have admitted that exclusive cognisance would stretch beyond the formal business of the Chamber and committees to the licensing hours the House permitted, which need not be those in the general law[20]. Parliament is so far the master of the application of its own procedures to the business before it that a judge in the leading case observed[21]:

    The House of Commons is not subject to the control of...[the] courts in its administration of that part of the statute law which has relation to its own internal proceedings . . . Even if that interpretation should be erroneous, [the] court has no power to interfere with it, directly or indirectly.

  20.  Notwithstanding the importance of the claim and the breadth of the rulings which support it, exclusive cognisance has recently been difficult to defend in the courts. The decision in Pepper v Hart permitted the courts in certain circumstances to relax their old rule against taking into account parliamentary material—the intentions of those who made the law, particularly those in charge of the bill in question—when interpreting statute. It was argued by the Attorney General that to do so would (among other things) encroach on exclusive cognisance. The Lords in their judicial capacity were unable to identify any privilege extending beyond the Bill of Rights in this context[22]. In consequence, there may be something of a shadow over exclusive cognisance which it would be in the interests of the House to dispel.

FREEDOM FROM ARREST AND RELATED PRIVILEGES

  21.  Freedom from arrest has never been allowed to interfere with the administration of criminal justice or emergency legislation, or to committal for contempt of court where the sentence is of a quasi-criminal nature[23]. Consequently the freedom is relevant only to arrest in civil cases (and imprisonment for debt was abolished in 1870) and to committal for contempt which is intended to compel the performance of an obligation. A judge has considered the law as it affects Members' claims not to be committed for some contempts to be `in an unsatisfactory state'[24] and the Select Committee on Parliamentary Privilege in 1966-67 thought privilege of freedom from arrest in its entirety should be abandoned[25]. The Committee of Privileges in 1976-77 agreed[26].

  22.  Members may not be compelled to obey subpoenas to attend court as witnesses, because the House has prior claim on their services[27]. The Speaker reminds the court of the privilege in cases of difficulty. It is a useful protection where, as has been the case subpoenas are issued which are or are very nearly vexatious, and it may well be useful in adjusting court timetables to the demands on Members' time in serving the House. Yet it is also capable of being used—in theory at least—against the interests of the administration of justice. On the other hand, the privilege gives rise to relatively little difficulty in practice, and indeed Members frequently choose to go to court and give evidence even on a sitting day. This is a rare example of a privilege which can be and for long has been capable of being waived by an individual Member. It is for consideration whether this practical if illogical arrangement, which recognises the reality of Members' positions, is still appropriate. The 1966-67 Select Committee on Parliamentary Privilege recommended legislation to give the claim of the House priority over that of the courts.[28] Again, the Committee of Privileges in 1976-77 concurred.[29]

  23.  There seems to be a certain inconsistency between past and current law and practice regarding whether Members, being immune from arrest in civil cases, may be admitted as bail.[30] It might be worth consideration.

CONTEMPTS

  24.  Besides the areas in which the House claims a specific privilege—in particular, freedom of speech and freedom from civil arrest—it also claims a jurisdiction in contempt, against those who by their actions interfere improperly with the discharge of its functions. Erskine May's definition of contempt is—

    any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results.[31]

  25.  Those who commit acts of contempt may do so directly by actions such as telling lies to a committee or disturbing its proceedings; they may molest or threaten Members with the intention of affecting their performance of their duty to the House; they may threaten witnesses because of evidence given or to be given by them to committees; or they may be responsible for the premature publication of committee deliberations, thus making subsequent discussion more difficult. Indirect contempts are broader in character. Contempts may involve abuse—not perhaps actionable at common law—which is nevertheless considered to be so damaging to the House's dignity that if left unpunished it will lower the House in public esteem with the result that the House will find it more difficult to perform its proper role.

  26.  Abusive contempts were the object of particularly strong resolutions in the eighteenth century. In modern practice, their significance varies with the general political climate. Even this century, the House has proceeded against contempts of this kind which today are passed by in silence, sometimes on principle, sometimes because they are no longer thought capable of damaging the House, sometimes because the penalties available do not fit the crime. The Australian Parliamentary Privileges Act 1987 abolished them altogether[32]. Before such a step were contemplated, however, it might be worth considering situations quite different from those envisaged in the eighteenth century but where the need for protection is even greater. It is not difficult to envisage press campaigns of such sustained ferocity that they amounted to interference with Members' independence of thought and action. At a more limited level, this sort of thing has already happened. In the 1950s, a newspaper objected to a question of which a Member had given notice. It gave prominence to his telephone number and incited its readers to telephone him with complaints. Drawing a line between a relaxed tolerance of vulgar abuse and a preparedness to act against insults which add up to interference is never easy. If contempts of this kind are to be retained, Privileges Committees in the future trying to come to conclusions on particular issues might value any guidelines the Joint Committee could suggest.

  27.  It is a contempt to serve process, civil or criminal, on anyone within the precincts of the House while the House is sitting,[33] and the House has proceeded against those who have done so, on the ground that the act had a tendency to affect adversely its authority and dignity. Whether the arrival of such documents in a Members' postbag on a sitting day would give rise to the same consequences is not something which happily has had to be authoritatively determined.

  28.  One of the criticisms of the House's jurisdiction in contempt is that Members are judge and jury in their own cause. It may be apposite in that connection to mention the case of Demicoli v Malta, in which the European Court of Human Rights condemned the action of the Maltese House of Representatives for having permitted members of that House who had been defamed to participate in the proceedings against and the passing of sentence on a journalist found guilty of contempt by the defamation[34]. Another criticism is that the House's view of what constitutes contempt may not be easy to anticipate, and contempts should be codified. The 1966-67 Committee rejected this, though they favoured a "declaration by the House by resolution defining how it expects in future to interpret the basic principle" limiting the use of its penal powers to cases of necessity[35]: but this was only partly carried through (see next paragraph).

  29.  The exercise of the House's penal jurisdiction in the very wide area of contempt is of course moderated by the resolution of 1977, which derived from the 1966-67 inquiry, that the jurisdiction will be exercised as sparingly as possible and only when the House is satisfied that it is essential to act in order to provide reasonable protection from improper obstruction causing or likely to cause substantial interference with its functions.

PENAL JURISDICTION

  30.  Because they are so venerable, privileges of the House are often very sweeping in their scope, with the result that they are ill-adapted to modern conditions. The most striking example of this occurs in the House's ability to deal effectively with those who commit a breach of privilege or a contempt[36]. The House may commit an offender to gaol, and keep him there until the end of the session. The power has been used on nearly 1100 occasions across the centuries. Its practicality as a sanction today is however reflected in the fact that it has not been imposed since 1880, despite the fact that the 1966-67 Committee on Parliamentary Privilege recommended that it be confirmed in statute. Similarly, the House in the past claimed the power to fine. It last did so however in 1666 and the continued existence of the power has been doubted. Proposals for its revival made by select committees on two occasions in the past forty years have not been acted on[37]. It may be added that the Lords, whose power to fine is not in doubt, have not imposed such a penalty since the very beginning of the nineteenth century.

  31.  The House may proceed against offenders who are Members by reprimand or admonition, suspension (with or without a consequence for the Member's salary) and expulsion. Reprimand and suspension are not infrequent. The last expulsion was forty years ago. Against those non-Members who properly incur its censure, the House may — failing imprisonment and fines — do no more than express displeasure in varying degrees of gravity. Even that has not been done for forty years. The case of those whose offences were committed as Members, but who, at the time punishment is being considered, are for one reason or another no longer Members of the House, is particularly difficult[38]. The Committee on Standards and Privileges has drawn attention to the matter[39].

  32.  The 1966-67 Select Committee on Parliamentary Privilege concluded that the House's penal powers were "inadequate to fulfil their proper role in the necessary protection of Parliament"[40]. They recommended however that the House should be empowered to commit to prison for a time to be determined by it, and that the power to fine should be affirmed in the same way[41]. No steps were taken to implement these proposals. In today's climate, it is hard to see how fines and imprisonment could carry conviction if those to whom they are applied have had any less protection in the course of the House's consideration of their case than they would have had in the criminal courts: and that (see paragraph 38) may not be easy to achieve. The sanctions available to the House need to be reconsidered in the light of the House's machinery for examining the allegations, which, if proved, give rise to them.


5   See Erskine May page 170. Back

6   Ibid page 96. Back

7   Ibid page 97. Back

8   Ibid page 92n5. Back

9   Erskine May, page 97. Back

10   See Annex A for the text of the Australian Act on this point. Back

11   The 1966-67 Select Committee on Parliamentary Privilege (HC 34 (1967-68)) at paragraphs 30 to 83 believed that the Privileges Committee had asked itself the wrong question when coming to a decision on the Strauss case. Instead of asking "was the sending of the letter a `proceeding in Parliament?'" they should have asked "was Mr Strauss improperly obstructed so as to amount to substantial interference with his parliamentary duties?" This would have brought the case on to the House's ground in the form of a contempt, rather than that of the court in interpreting the Bill of Rights. However, the Committee also recommended that the decision of the House in the Strauss case should be reversed by legislation (paragraph 90). Back

12   Attorney General of Ceylon v De Livera [1963] AC 103; see Erskine May page 96n1. Back

13   Erskine May page 83. Back

14   Ibid pages 129-130.

 Back

15   Ibid pages 93-94 and 169. See Annex B for the explanation of this phrase given in the Australian Parliamentary Privileges Act 1987. Back

16   Prebble v Television New Zealand [1995] 1 AC 321 at 337. Back

17   Hamilton and another v The Guardian (1995) The Times, 8 June; and see Erskine May, page 172 and n2. Back

18   Erskine May at pages 88 to 93 deals with this concept. Back

19   Much the same has happened in Australia where the courts have held that procedural steps regarding the passage of delegated legislation, though laid down in statute, are not mandatory (Dignan v Australian Steamships Pty Ltd (1931) 45CLR 188). Back

20   R v Graham Campbell ex p Herbert [1935] 1 K B 594. Back

21   Bradlaugh v Gosset (1884) 12 QBD 271 esp 278, 286. Back

22   Pepper v Hart [1993] AC 593 at 645-646. Back

23   Erskine May pages 100-107 deal with freedom from arrest. Back

24   Peden International Transport and others v Lord Mancroft, 1969. Back

25   HC 34 (1967-68) paragraphs 95 to 99. Back

26   HC 417 (1976-77) paragraph 16. Back

27   Erskine May page 105. Back

28   HC 34 (1967-68) paragraph 104. Back

29   HC 417 (1976-77) paragraph 16. Back

30   Erskine May page 105. Back

31   Erskine May page 108. Back

32   The Australian statute approached a definition of contempt by using as a touchstone of what is to be condemned "improper interference with the free exercise of . . . authority or functions". In addition, words or actions are not to be an offence against a House by reason only that they are "defamatory or critical" of Parliament, a House or a Member. The exception was however disapplied in the case of acts in the presence of a House or a committee. Back

33   Erskine May page 120. Back

34   Ibid page 131 n1. Back

35   HC (1967-68) paragraphs 40 to 69. Back

36   The 1966-67 Committee found the penal powers available to the House "out of date and unsatisfactory" (HC 34 (1967-68) paragraph 193). Back

37   HC 34 (1967-68) paragraph 197 and HC 417 (1976-77) paragraph 15. Back

38   See for example the Seventh Report from the Committee on Standards and Privileges, HC 240 (1997-98) paragraphs 9, 17, 22 and 25. Back

39   Ibid paragraph 26. Back

40   HC 34 (1967-68) paragraph 22. Back

41   Ibid paragraphs 194, 195. The Committee of Privileges in 1976-77 (HC 417) agreed that a fine would be an appropriate sanction in certain cases (paragraphs 13-14), but they considered that the power to imprison should cease (paragraph 15). Back


 
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Prepared 9 April 1999