SUMMARY OF RECOMMENDATIONS |
Article 9 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'
1. Parliament should clarify the scope of
this prohibition and confirm as a general principle the traditional
view of article 9: that it prohibits the examination of parliamentary
proceedings in any court.
2. Three exceptions to this general principle
should be provided for in statute. First, nothing in article 9
should prevent proceedings in Parliament being examined in any
court proceedings so far as they relate to the interpretation
of an Act of Parliament or subordinate legislation.
The decision in Pepper v. Hart (1993) would thereby be
given statutory recognition.
3. Second, article 9 should not preclude
the use of parliamentary proceedings in court for the purpose
of judicial review of governmental decisions or in other court
proceedings in which a governmental decision is material.
4. Third, courts should be able to examine
parliamentary proceedings when there is no suggestion that anything
forming part of those proceedings was inspired by improper motives
or was untrue or misleading and there is no question of
5. Section 13 of the Defamation Act 1996
should be replaced by a new provision under which the House would
make a general waiver of article 9 in an appropriate case (not
necessarily a defamation action). It would not do so if waiver
would expose the member or other person concerned to any risk
of legal liability.
[Section 13 permits a member or other person, such
as a witness before a committee, to waive in defamation proceedings
in court the protection afforded by article 9 so far as it relates
6. In the House of Commons a committee of
senior members should advise the Speaker on any waiver requested
under the above recommendation. In the Lords the same function
should be exercised by the committee for privileges, which includes
law lords as members.
7. The term `place out of Parliament' should
be defined in statute.
8. The term `proceedings in Parliament'
should be defined in statute on the basis of legislation in operation
in Australia since 1987.
9. The statutory definition of `proceedings
in Parliament' should make clear that a letter of complaint to
the House of Commons commissioner for standards is a `proceeding'
enjoying the protection of article 9 only when it is taken up
by the commissioner for investigation.
10. The absolute privilege accorded by article
9 to proceedings in Parliament should not be extended to include
communications between members and ministers.
11. The registers of members' interests
and related proceedings should be declared by statute to be `proceedings
12. The extent of freedom of speech of the
United Kingdom Parliament in the laws of Scotland and Northern
Ireland should be expressly harmonised with the law of England
and Wales. The opportunity should also be taken to declare that
the other existing rights and immunities accorded under the law
of England and Wales to the two Houses, their members and officers
are likewise applicable throughout the United Kingdom.
[Members of neither House are at present subject
by statute to the law of bribery in respect of `proceedings in
13. Members of both Houses should be included
within the scope of forthcoming legislation on corruption. Article
9 should be set aside in any criminal proceedings for bribery.
Prosecution under the new legislation, whether of a member or
non-member, should require the consent of a law officer.
14. Both Houses should take steps to ensure
that the rules and conventions concerning standards of conduct
are in readily accessible form capable of being understood outside
Parliament as well as within.
15. The sub judice rules of the two Houses
[which forbid consideration of matters currently before a court]
should be harmonised by the adoption of the updated and comprehensive
resolution set out in our report. There will be little change
The House of Lords should introduce powers of discretion in the
exercise of the rule similar to those at present exercisable by
the Speaker in the Commons.
16. No action should be taken to limit freedom
of speech in Parliament in respect of:
(a) matters subject to a court injunction
(b) breaches of the Official Secrets Acts.
17. A `right of reply' scheme should not
18. Advisory guides to members of both Houses
on the exercise of the privilege of freedom of speech should be
19. Each House of Parliament should continue
to exercise control over its own affairs. Statute should provide
that the privilege of each House to manage its internal affairs
within its precincts applies only to activities directly and closely
relating to proceedings in Parliament.
20. It should also be made clear in statute
that every law applies to Parliament unless Parliament has been
expressly excluded. The precincts of Parliament should not be
a statute-free zone.
21. In actions brought by or against the
corporate officer of either House, the power to waive article
9 (see above) should be exercisable by an officer of the House,
in accordance with authority given by the House from time to time.
22. A clear statement of Parliament's rights
and powers, and of their own rights, should be drawn up and given
to potential witnesses before committees.
23. The procedure committees of each House
should examine and report on the desirability in today's circumstances
of the convention that one House does not compel the attendance
of a member of the other House before its committees.
24. Contempt of Parliament should be codified
in statute. Contempts comprise any conduct which improperly interferes
with the performance by either House of its functions, or the
performance by a member or officer of the House of his duties.
25. Parliament's power to imprison persons,
whether members or not, who are in contempt of Parliament should
save that Parliament should retain power to detain temporarily
persons misconducting themselves within either House or elsewhere
within the precincts of Parliament.
26. For practical reasons Parliament's penal
powers over non-members should, in general, be transferred to
the High Court. Parliament should retain a residual jurisdiction,
including power to admonish a non-member who accepts he acted
in contempt of Parliament. Proceedings should be initiated on
behalf of either House by the Attorney General, at the request
of the Speaker, advised by the standards and privileges committee,
or of the Leader of the House of Lords acting on the advice of
the committee for privileges. The court should have power to impose
a fine of unlimited amount.
27. Wilful failure to attend committee proceedings
or answer questions or produce documents should be made a criminal
offence punishable in the courts by a fine of unlimited amount
or up to three months' imprisonment.
28. Parliament should retain its existing
disciplinary powers over members, except that the power to imprison
should be replaced with a power to fine.
In the interests of fairness, some of the disciplinary procedures
of the Commons committee of standards and privileges need to be
revised, as would those of the Lords committee for privileges
if the need arose for that committee to consider contempts. The
minimum standards of fairness should be those set out in the Joint
Each House should retain power to make the decision on contempt
matters, save that the House should not have power to increase
the penalty above that recommended by the relevant committee.
Members of the relevant committee should be eligible to participate
in any debate in the House on a disciplinary matter but should
29. The power of the House of Lords to suspend
its members should be clarified and confirmed.
30. Each House should resolve that unauthorised
disclosure of embargoed copies of reports, presented to the House
but not yet published, and the unauthorised use of committee material,
may be treated as a contempt.
31. Section 1 of the Parliamentary Privilege
Act 1770 should be amended so as to include, but without prejudice
to article 9 of the Bills of Rights, court proceedings brought
against members of Parliament in respect of statements made or
acts done in the course of proceedings in Parliament.
32. Members' exemption from attendance in
court as witnesses should be ended, but a subpoena should not
be issued against a member without the consent of a judge.
33. Members' freedom from arrest in civil
cases should be abolished.
34. Privilege of peerage should be abolished.
35. Service of court documents such as writs
and orders within the precincts of the House, regardless of whether
the House is sitting, should be regarded as a contempt, but service
by post should not be a contempt.
36. The Joint Committee endorses the 1984
recommendation of the Lords committee for privileges that legislation
should provide expressly that members of the House of Lords suffering
from mental illness may be detained under the mental health legislation
and while so detained will be disqualified from sitting and voting
37. Unless there are strong reasons in the
public interest, no parliamentary paper other than one emanating
from a House or its committees should be absolutely privileged.
At present, many publications presented to Parliament in accordance
with statute are printed by order of the House of Commons and
thereby attract absolute privilege. This is difficult to justify.
The House of Commons procedure committee should act on this matter
and should also examine the status and distribution of papers
deposited in the Commons library.
38. The Parliamentary Papers Act 1840 should
be replaced by a modern statute.
39. There should be a Parliamentary Privileges
Act, bringing together all the changes in the law referred to
above, and codifying parliamentary privilege as a whole.
This would make it easier to understand that parliamentary privilege
matters not just to members of Parliament but to the electorate.
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Paragraphs 375-376, 384. The Need for a Review Back