Parliamentary Privilege Minutes of Evidence


Memorandum submitted by the Clerk of the Parliaments

INTRODUCTION

  1.  For convenience I will follow the scheme of the memorandum submitted to the Joint Committee by the Clerk of the House of Commons (which I will refer to as "the Commons memorandum"). I will accordingly deal first with privileges generally and then with the matter of corruption and impropriety. For the most part the privileges of the two Houses are the same and in dealing with privileges generally I will take as my starting point Part I of the Commons memorandum and supplement that only so far as it seems helpful to do so. I will also draw attention to matters peculiar to the Lords.

  2.  There is first, however, a general point to be made. It will be apparent from the Commons memorandum that privilege can be said to have a high profile in the Commons. By contrast, in the Lords, in modern times at any rate, privilege has occupied the attention of the House very little. That is reflected in the fact that, apart from peerage claims, only two matters appear to have been referred to the Lords Committee for Privileges this century, one in 1905 and one in 1984[1] . I do not know why this should have been so. I think it would be fair to say, however, that the Lords have tended in some respects to take a somewhat more relaxed view of their privileges than the Commons. For example, the Lords have never insisted on the leave of the House being given for reports of proceedings in the House to be referred to in the courts. In the Commons, however, leave of the House to refer in court to any proceedings in the House was insisted on in every case until 1980, when a Commons resolution gave general leave to refer to the Official Report and the published reports of, and evidence taken by, committees[2] .

I. PRIVILEGES

Freedom of Speech

Protection against defamation and other proceedings

  3.  I take it to be axiomatic that the purpose of, or at any rate the justification for, parliamentary privilege is to enable the two Houses of Parliament to exercise their functions as effectively as possible. From that point of view there can, it seems to me, be no privilege more essential than freedom of speech, to the extent that it entails the freedom of members of either House to say what they will in Parliament without incurring the risk of defamation or other proceedings. Freedom of speech in that sense is part of the freedom protected by article IX of the Bill of Rights[3] . It is only part of the freedom so protected but I would regard it as the major part and it is with that aspect of freedom of speech that I am concerned in this paragraph and paragraphs 4 to 7 below[4] . This privilege, and the case for having it, applies of course not only to members of either House but also to others (officers of either House, witnesses, agents and counsel), who participate in proceedings in Parliament, and is not confined to the spoken word. It can be said to be encapsulated in section 13(4) of the Defamation Act 1996, which refers to protection "from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament".

  4.  The ambit of the words "proceedings in Parliament", which are derived from article IX of the Bill of Rights, is discussed in the Commons memorandum[5] . So far as concerns protection against defamation and other proceedings, I cannot usefully add to that discussion and the references there given, save to point out that one problematical area in this respect in the Commons, namely, dealings between MPs and their constituents[6] , plainly does not come into play in the Lords. In a more general connection I return to the question of proceedings in Parliament in paragraph 10 below.

  5.  Before leaving freedom of speech in the sense referred to above, it may be helpful if I make some response in that connection to two of the questions[7]  raised by the joint committee in its published Invitation to Submit Evidence, namely, (i) is there a more modern and better phrase to replace "parliamentary privilege"? and (ii) what remedies should there be for citizens wronged by words or actions in Parliament?

  6.  As to the first of these questions, it seems to me that while many parliamentary privileges might more appropriately be called "parliamentary immunities", freedom of speech, in the sense in which I am at present referring to it, is one instance where there is something to be said for retaining the word "privilege". The protection from defamation proceedings provided by this freedom is known in legal terms as a defence of "absolute privilege" and is on all fours with the absolute privilege that is accorded to anything said in the courts in the course of legal proceedings. So long as the term "privilege" (both "absolute" and "qualified") is employed for other comparable forms of defence in defamation proceedings it would arguably be confusing to give a different name to the parliamentary variety.

  7.  As to the second of these questions, a citizen defamed in parliamentary proceedings has at present no legal redress, however irresponsible or malicious the attack on him may be, because the defence of parliamentary privilege is a defence of "absolute privilege". Should the law be changed in that respect? The difficulty is that this is a case where two public interests conflict: on the one hand the interest in securing that Parliament can carry out its functions as effectively as possible; and on the other the interest in securing that persons who are defamed have a remedy in law. The former interest must, it seems to me, be the greater and it follows that the latter should yield to it. If that is accepted I do not see any room for a change in the present law so far as it provides no legal remedy against the defamer. The same considerations have always been accepted as applying to the other main absolute privilege—that accorded to what is said in the course of legal proceedings—and the case for treating parliamentary proceedings in the same way must be at least as great. I do not see any halfway house in this—for example by reducing the privilege to qualified privilege (which is a defence surmountable by proof of malice). Once there is admitted any possibility of proceedings in respect of what is said in Parliament there is bound to be some inhibition on speaking freely. In my view, therefore, the main remedy for irresponsible defamatory attacks in either House must lie with the disciplining of members by the House itself. There is also the possibility of conferring on persons attacked in either House a right to have a statement by way of reply published or read out in the House. It seems to me, however, that any provision to that effect would need to be framed with a good deal of care. Any such statement might itself, for example, be defamatory; and whether or not it was objectionable on that score it could be difficult to ensure that its content was fair and accurate.

The wider aspect of freedom of speech

  8.  Paragraphs 3-7 above deal with what I see as the principal aspect of freedom of speech, namely, protection against defamation or any other legal proceedings in respect of what is said in the course of proceedings in Parliament. I have thought it useful to separate off this aspect because it seems to me to represent the irreducible minimum of protection needed by members of both Houses, and others participating in parliamentary proceedings, if Parliament is to do its work as effectively as possible. Article IX of the Bill of Rights, however, also provides for freedom of speech in a wider sense in that, except for the purpose of proving a fact, it precludes reference in legal proceedings to anything said in proceedings in Parliament[8] . Thus, for example, while evidence may be given in court that a person made a particular statement in Parliament on a particular day, article IX precludes the drawing of any inferences from the statement or any challenge to the truth of it or to the person's bona fides in making it.

  9.  This aspect of article IX of the Bill of Rights is clearly also of high importance. Whereas, however, freedom of speech in the sense of protection against defamation or other proceedings might be thought inviolable, it hardly seems possible for the joint committee to avoid at least considering how far that should, in every respect, be the case so far as the wider aspect is concerned. I say this for two reasons. First, because some inroad into the wider aspect has already been made, by section 13 of the Defamation Act 1996[9] . Second, and perhaps more importantly, because consideration of whether there should be some further inroad into the wider aspect seems unavoidable as part of the consideration of how corruption on the part of members of either House should be dealt with. I return to this in Part II below.

Exclusive Cognisance

  10.  Although the protection accorded to "proceedings in Parliament" by article IX of the Bill of Rights covers a wide area of the activities of each House and its committees, the privilege of exclusive cognisance[10]  reaches out even further. It covers all business of the House and all matters internal to it. This includes matters, such as the provision of refreshment facilities, the provision of accommodation and the employment of staff, which could hardly be regarded as falling within "proceedings in Parliament". In that connection it is material to refer to paragraph 13 of the Commons memorandum. That points out that it is doubtful whether "proceedings in Parliament" would cover, for example, the placing of contracts on behalf of the House for building works. It discusses, with reference to that, the position of the Corporate Officer as respects discovery of documents in litigation arising out of such contracts placed by him. It would seem, however, that although the placing of a building contract by the Corporate Officer could hardly be regarded as a "proceeding in Parliament" and would therefore, on the face of it, fall outside article IX of the Bill of Rights, it might nevertheless be regarded as falling within the privilege of exclusive cognisance, as being a matter relating to the internal affairs of the House. On that footing, the Corporate Officer of either House would arguably be in a position to resist discovery of documents in any litigation arising out of a commercial contract placed by him on behalf of the House. I share the view expressed in the Commons memorandum that it would be quite unacceptable to use privilege in that way in commercial transactions.

  11.  Another consequence of the operation of the privilege of exclusive cognisance is that the courts will not, it seems, in the absence of specific provision, regard an Act of Parliament as binding on either House in so far as it would affect the regulation of its internal affairs. How far this principle extends and how far it should still be regarded as a necessary element of parliamentary privilege are questions that the joint committee might think it worth considering.

  12.  The modern authority for the principle is the case of R v Graham Campbell ex p Herbert, referred to in paragraph 19 of the Commons memorandum (House of Commons not bound by the Licensing Acts in its arrangements for the sale of alcohol). Its operation in recent times has been seen most notably in relation to legislation for the protection of employees. The Employment Protection Act 1975, in a provision that now appears in s.139 of the Employment Protection (Consolidation) Act 1978, specifically applied various provisions of that Act (including the unfair dismissal provisions and the provisions for resolution of disputes by industrial tribunals) to House of Commons staff. The 1975 Act (as amended) likewise applied to House of Commons staff the Equal Pay Act 1970 and the employment provisions of the Sex Discrimination Act 1975 and the Race Relations Act 1976. No such provision, however, was originally made as respects House of Lords staff and in consequence of the principle under discussion (bolstered by the specific application to the House of Commons) none of the above mentioned provisions were regarded as applying to them. That situation was not remedied until 1993[11] . In fact, the Lords had no wish to escape the operation of any of these provisions and took care to act as though they were bound by them but the situation was not altogether satisfactory. For example, although the Lords applied the unfair dismissal provisions and were prepared for any disputes to be settled by an industrial tribunal, strictly speaking no industrial tribunal had any jurisdiction to deal with cases from the Lords before the provisions were applied to the Lords by the Trade Union Reform and Employment Rights Act 1993.

  13.  The principle under discussion also arose in the only case, other than peerage claims, to be referred to the Lords Committee for Privileges in the last half century. The question there considered was whether the privilege of freedom from arrest overrode, in the case of a peer, the liability to be detained compulsorily under the Mental Health Act 1983. That Act makes specific provision in relation to members of the Commons so detained[12]  but makes no mention of peers. The Attorney General, assisting the Committee, expressed the view that, in the absence of a specific application of the Act to members of the House of Lords, there was an argument that it must be taken as not applying to them. He concluded that it was impossible to predict with certainty what view might be taken by the courts. The Committee concluded, on the basis of an opinion provided by the four Lords of Appeal named of the Committee, that the compulsory detention powers under the Act would override the privilege of freedom from arrest. The Committee considered, however, that the Government should consider putting the matter beyond doubt[13] .

Freedom from Arrest and Related Privileges

  14.  So far as freedom from arrest is concerned I follow the views expressed in the Commons memorandum[14] . Subject to the reservation at the end of this paragraph, I do not think it can seriously be argued that the privilege is needed in order to enable the House to carry out its functions as effectively as possible. Very few cases have, in any event, arisen concerning the Lords in recent years. The most recent instance was in 1989 and in that case the claim was refused by a county court judge on the grounds that the order for committal to prison there in question was criminal in nature[15] . The last case previous to that was the one that gave rise to the matter referred to in paragraph 13 above. Before that one has to go back to 1963, when the claim, which succeeded, gave rise to a leading case on the distinction between civil and criminal arrest[16] . Little, therefore, would be lost by the abolition of the privilege. It may be, however, that if the privilege were to be abolished there should be retained some residual power for the House to override the arrest of a peer where it would seriously impede the work of the House: for example, where the peer, at the time of his arrest, was serving on an opposed private bill Committee.

  15.  In the Lords the privilege of freedom from arrest is asserted in Standing Order 79, a standing order that goes back to 1626. The claim there is for freedom from arrest "within the usual times of privilege of Parliament". There is, however, an even more ancient privilege in this regard: the "privilege of peerage". Under that, the person of a peer being "forever sacred and inviolable," the privilege applies not only while Parliament is sitting but at all times, and is enjoyed by all peers, whether Lords of Parliament or not, and by peeresses. Plainly, that is even more difficult to defend than the narrower freedom (which corresponds to that claimed as respects members of the House of Commons) claimed in Standing Order 79. I see it as a clear candidate for abolition[17] .

  16.  As to the privilege of resistance to subpoenas to attend court as witnesses, there must be some doubt whether that too can now be justified as respects the Lords. There have in fact been no cases in recent years of which I am aware. Although it could serve as a useful protection in cases which might be thought vexatious it is for consideration whether that is sufficient justification for retaining it. Looked at in the light of whether it is needed in order to enable the House to function as effectively as possible, the case for retaining it can hardly be said to be a strong one. If, however, it is to be a candidate for abolition I think the same reservation should apply as that suggested at the end of paragraph 14 above in relation to freedom from arrest.

Contempts

  17.  There is little I can usefully add to what is said about contempts in the Commons memorandum[18] . In the Lords no one, as far as I am aware, has been punished by the House for contempt in the present century. Nevertheless, it is, I think, necessary to have this power in reserve: its very existence may be one reason why there has been an absence of contempt cases. The House must have power to enforce its orders, to deal with serious impediments to or interference with its proceedings, and also, in the last resort, to deal with serious affronts to the dignity of the House. For these purposes it needs power to punish for contempt, just as the courts need that power. In its judicial capacity, indeed, the House in reality is a court, though I do not suggest that the House's power to punish for contempt should be confined to the House sitting in that capacity.

  18.  One small corner of the contempt picture that may be worthy of consideration is the contempt constituted by service of legal process on a member of the House, within the precincts of the House, while the House is sitting. It might be thought that if that ceased to be treated as a contempt the House would lose little, and the interests of justice might gain a little in any cases where a peer was served in the precincts after seeking to evade service.

Penal Jurisdiction

  19.  The penalties available to the Lords as punishment for contempt or breach of privilege are imprisonment, fine, and admonition or reprimand. The power to imprison, however, has not been exercised this century and the power to fine has not been exercised for nearly 200 years. In those circumstances it must be questionable how far in practice either penalty could be invoked today[19] , at any rate as far as the House in its legislative capacity is concerned. Moreover, the Lords, unlike the Commons, have no power to expel a member for contempt. Nor do they have power to suspend a member[20] . This leaves the House with virtually no penalty that would match a serious contempt by a member, given the unlikelihood that either imprisonment or even a fine could now be imposed in practice. There seems to me, therefore, to be a case for making statutory provision as to the penalty powers of the House.

II.  CORRUPTION AND IMPROPRIETY

  20.  It would be idle to deny the possibility that there have been instances in modern times of members of the House of Lords acting corruptly or with serious impropriety. No such instances appear, however, to have come to light. So I have to start my consideration of these matters by saying that there is no practical experience in dealing with them in the Lords upon which I can draw. My views as to these matters, therefore, are offered with some diffidence, particularly as, while I agree with much that is said on the subject in the Commons memorandum, the conclusions to which I have come are not identical with those in the Commons memorandum.

  21.  Before looking at the options, as I see them, I will refer to the present position. Although the Royal Commission on Standards in Public Life, reporting in 1976, took the view that neither the statute nor the common law relating to bribery applied to a member of either House it is pointed out in the Commons memorandum that in a case in 1992 concerning a member of the House of Commons the judge (a judge of the High Court) concluded that a member of that House could be guilty of the common law offence. The offence involves persons holding a "public office" and the judge held that a member of the Commons fell within that category. It might be thought more difficult to treat a member of the Lords as being in a similar position because, while a member of the Commons holds a seat that exists independently of the holder for the time being, that cannot be said of a member of the Lords. A peer has no seat independent of himself but attends Parliament simply by virtue of his writ of summons. On the other hand, the judge reached his conclusion on broad grounds, rejecting the notion that the common law offence is limited by reference to any particular shade of meaning of "office" but basing it on the broad principle that it is concerned with the corruption of those who undertake a duty in the discharge of which the public is interested. On that basis, members of the Lords might also be thought to fall within the offence. It seems to be common ground on all sides, however, that the law needs to be clarified, as recommended by the Nolan Committee in 1995.

  22.  If it is decided that the offer of a bribe to, and its acceptance by, a member should be a criminal offence, it seems to me that a good deal of thought will have to be given to how the offence should be framed. Moreover, given the difference between the position of a member of the Lords (as that House is at present constituted) and a member of the Commons, it may be that the provision made for the two Houses would not be identical in all respects. In that connection, two points are worth noticing by way of anticipation of the views I express below as to the options for dealing with this matter. The first concerns the third of the options in the Home Office discussion paper. As the Commons memorandum points out, that option would not dispose of the problem involved in making corruption subject to criminal proceedings: it would simply narrow the scope for the criminal offence. To that I would add that, if there is to be legislation making corruption on the part of members a criminal offence, the area to be covered by the offence ought, it seems to me, to be comprehensively covered by the legislation itself. I question the merit of Parliament both passing legislation creating an offence of corruption and in parallel passing resolutions about the scope of the offence.

  23.  The second point concerns the possible way of dealing with corruption mooted in paragraph 45 of the Commons memorandum: namely, that any criminal offence should be confined to "functions of a member in that capacity", leaving activities falling within "proceedings in Parliament" (which would be defined) outside the offence. So far as the Lords are concerned I do not see that as a viable option. Strictly speaking, a peer, in his capacity as a member of the House of Lords, has no functions except his functions in the House and it is difficult to envisage any offence of corruption relating to members of the House of Lords that was not concerned with proceedings in Parliament.

  24.  My own view as to the options for dealing with corruption on the part of members is that, subject to paragraph 26 below, there are in reality only two: either (i) making it a criminal offence, or (ii) leaving it to the two Houses themselves to deal with the matter. The second option would leave the position as it was always thought to be until recently. The House could certainly deal with bribery as a contempt. At best, however, the House would hardly be in a position to deal with a corrupt member as effectively as such behaviour deserves (even if the House were given power to suspend members[21] ) and it seems unrealistic to suppose that it could deal at all with the person offering the bribe.

  25.  There seems little doubt that the only truly effective way of dealing with corruption by and in relation to a member of the House is to make it a criminal offence. In the case of the Lords, however, any such offence, however drawn, would be bound to involve consideration of proceedings in Parliament. Such consideration would be inconsistent with what I have referred to in paragraphs 8 and 9 above as the wider aspect of Article IX of the Bill of Rights. I do not myself see any satisfactory way round that problem. I see the problem as a factor to be taken into account in taking a decision whether to make corruption by a member a criminal offence. In the end, however, this seems to me to be a question of making hard choices, namely, which is the greater public interest: dealing as effectively as possible with corruption of members and accordingly making it a criminal offence; or preserving intact the wider aspect of article IX of the Bill of Rights ? If the decision is in favour of the former then it seems to me that one has to accept in consequence a corresponding inroad into article IX.

  26.  It would of course be possible, while making corruption a criminal offence, and accepting the consequences for article IX of the Bill of Rights, to give the House a power to veto a prosecution in any given case. That possibility is discussed in the fourth option proffered in the Home Office discussion paper but for the reasons there given it does not seem to me to have much to commend it.

J M Davies

15th January 1998


1   1 The latter is referred to in paragraph 12 below. Back

2   2 See Erskine May pp 90-91 and Commons memorandum paragraph 19. Back

3   3 Halsbury's Laws of England Vol.28 (Fourth Edition Reissue) takes the view that it still exists also at common law: see ibid paragraph 102 and paragraph 104 note 1. Back

4   For what I refer to as the wider aspect, see paragraphs 8 and 9 below. Back

5   Paragraphs 9-13. Back

6   See Commons memorandum paragraphs 11 and 12. Back

7   Most of the other questions are, I hope, touched on incidentally in this memorandum. Back

8   See Commons memorandum paragraph 14. Back

9   See Commons memorandum paragraphs 15-17. Back

10   See Commons memorandum paragraphs 18 to 20. Back

11   See the Trade Union Reform and Employment Rights Act 1993 schedule 7 paragraphs 8 to 11. Recent employment legislation has made specific provision for both Houses. See Trade union and Labour Relations (Consolidation) Act 1992 ss. 277, 278; Employment Rights Act 1996 ss. 194, 195. In another field, see the Disability Discrimination Act 1995 s. 65. Back

12   See Mental Health Act 1983 s.141 Back

13   See report by the Committee for Privileges on Parliamentary Privilege and the Mental Health legislation, HL 254 (1983-84). Back

14   See Commons memorandum paragraph 21. Back

15   The judge distinguished the case referred to in note 16 below. Back

16   See Stourton v Stourton [1963] 1 All ER 606. Back

17   The privilege covers more than freedom from arrest though its extent is not entirely clear: Back

18   See Commons memorandum paragraph 24-29. Back

19   See, in similar vein, the Commons memorandum paragraph 30. Back

20   This seems surprising given that they have power to imprison a member, but the Lords have never purported to suspend a member and a committee of the House concluded in 1956 that it had no power to do so: see Report by the Select Committee on the Powers of the House in Relation to the Attendance of its Members, HL66 (1955-56). Back

21   See paragraph 19. Back


 
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