FREEDOM OF SPEECH
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 beas 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
"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 
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  2 All E R
"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  593
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
( 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
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
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.
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
(see Annex A), and have also recommended legislation to resolve
the questions which have arisen over the years.
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.
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 courtsnot yet completedto
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
These prescriptions, which are closely connected with the Australian
Act of 1987,
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
11. A particular aspect of the scope of
"proceedings in Parliament" which may give rise to concern
is the limitationhowever precisely definedwhich
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.
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 casethis time in courtthere
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
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.
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 itor
to be sure how the courts are likely to interpret itin
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.
Indeed, Lord Browne-Wilkinson recently, commenting on this aspect
of article IX in general, said:
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.
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 privilegea
petitioner or witnesses before a committee, for instanceagainst
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.
18. As well as the privileges which can
be readily identifiedfreedom of speech, freedom from arrest
and so oneach House claims a right of "exclusive cognisance"
of its own business and matters internal to it.
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.
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 claimthe
prohibition of the courts' access to certain parliamentary papers,
for instancehave 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.
Parliament is so far the master of the application of its own
procedures to the business before it that a judge in the leading
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 materialthe intentions of those who made
the law, particularly those in charge of the bill in questionwhen
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.
In consequence, there may be something of a shadow over exclusive
cognisance which it would be in the interests of the House to
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.
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
and the Select Committee on Parliamentary Privilege in 1966-67
thought privilege of freedom from arrest in its entirety should
The Committee of Privileges in 1976-77 agreed.
22. Members may not be compelled to obey
subpoenas to attend court as witnesses, because the House has
prior claim on their services.
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 usedin theory at leastagainst 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.
Again, the Committee of Privileges in 1976-77 concurred.
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.
It might be worth consideration.
24. Besides the areas in which the House
claims a specific privilegein particular, freedom of speech
and freedom from civil arrestit 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.
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 abusenot
perhaps actionable at common lawwhich 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.
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,
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
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.
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:
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.
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.
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.
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.
The Committee on Standards and Privileges has drawn attention
to the matter.
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".
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.
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
5 See Erskine May page 170. Back
Ibid page 96. Back
Ibid page 97. Back
Ibid page 92n5. Back
Erskine May, page 97. Back
See Annex A for the text of the Australian Act on this point. Back
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
Attorney General of Ceylon v De Livera  AC 103; see
Erskine May page 96n1. Back
Erskine May page 83. Back
Ibid pages 129-130.
Ibid pages 93-94 and 169. See Annex B for the explanation of this
phrase given in the Australian Parliamentary Privileges Act 1987. Back
Prebble v Television New Zealand  1 AC 321 at 337. Back
Hamilton and another v The Guardian (1995) The Times,
8 June; and see Erskine May, page 172 and n2. Back
Erskine May at pages 88 to 93 deals with this concept. Back
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
R v Graham Campbell ex p Herbert  1 K B 594. Back
Bradlaugh v Gosset (1884) 12 QBD 271 esp 278, 286. Back
Pepper v Hart  AC 593 at 645-646. Back
Erskine May pages 100-107 deal with freedom from arrest. Back
Peden International Transport and others v Lord Mancroft,
HC 34 (1967-68) paragraphs 95 to 99. Back
HC 417 (1976-77) paragraph 16. Back
Erskine May page 105. Back
HC 34 (1967-68) paragraph 104. Back
HC 417 (1976-77) paragraph 16. Back
Erskine May page 105. Back
Erskine May page 108. Back
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
Erskine May page 120. Back
Ibid page 131 n1. Back
HC (1967-68) paragraphs 40 to 69. Back
The 1966-67 Committee found the penal powers available to the
House "out of date and unsatisfactory" (HC 34 (1967-68)
paragraph 193). Back
HC 34 (1967-68) paragraph 197 and HC 417 (1976-77) paragraph 15. Back
See for example the Seventh Report from the Committee on Standards
and Privileges, HC 240 (1997-98) paragraphs 9, 17, 22 and 25. Back
Ibid paragraph 26. Back
HC 34 (1967-68) paragraph 22. Back
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