Replies to questions submitted in writing
by the Chairman of the Joint Committee on Parliamentary Privilege
to the Lord President of the Court of Session, the Rt Hon the
Lord Rodger of Earlsferry
(The Chairman's questions are printed
1. One of the key sources of parliamentary
privilege is Article IX (freedom of speech) of the Bill of Rights
1688. This antedated the Union with Scotland Act 1706. Is there
an equivalent to Article IX under Scots law? Does this equivalent
have the same ambit as Article IX?
1. The only equivalent to Article IX of
which I am aware is the article of the Claim of Right 1689 which
secures freedom of speech and debate to members of Parliament.
As far as I know, the courts have never been required to apply
that provision in this connection and so its precise scope is
uncertain. Pre-Union Scottish statutes are drafted differently
from modern statutes and have often been interpreted in a broader
way. I am confident that, given the history of relations between
the courts and Parliament and the general understanding that the
courts do not seek in any way to question proceedings in Parliament,
the Scottish courts would arrive at a conclusion in line with
the position based on Article IX.
2. Do the Scottish courts recognise that
each House of Parliament has exclusive cognisance of the conduct
of its internal affairs?
2. Yes. For the reasons given in the preceding
The further questions which follow are based on
the assumption that under Scots law Members of Parliament enjoy
an equivalent immunity to that enjoyed in front of English courts
by virtue of Article IX and the "exclusive cognisance"
principle. To the extent that this is not so, the questions may
3. In order to discharge their public functions
members of the two Houses need certain rights and immunities,
such as freedom of speech. Some of these rights impact on non-members,
eg a defamatory statement made in one of the Houses. In the event
of a dispute over the existence or extent of a right, who should
decide: the courts or Parliament? For instance, if a member is
sued for defamation in respect of a statement he claims lies within
Article IX of the Bill of Rights, should it be for the courts
or Parliament to decide? or should there be concurrent jurisdiction?
or should some other body decide?
3. I should not wish the ordinary courts
to decide an issue as to the existence or extent of a right claimed
by one or other of the Houses of Parliament. That seems to me
to open up a potential area of conflict which we should be most
anxious to avoid. Concurrent jurisdiction would seem to maximise
the scope for conflict and would therefore be unacceptable. I
consider that, in the first instance at least, the Houses of Parliament
must determine the scope of any rights and immunities which they
claim. I suspect that this is in any event the best and most practical
approach since the House authorities are familiar with the subject-matter
and with all the nuances and practical considerations. If there
is to be an appeal, then, for the reasons which I have given,
it should not in my view be an appeal to the ordinary courts.
In such a situation one instinctively thinks of the Privy Council
to which a reference was, of course, made by Order in Council
on a not dissimilar matter in Re the Parliamentary Privilege
Act 1770  AC 331. The reference was to the Judicial
Committee and therefore those who dealt with the matter were all
judges. I note, however, that two of them, Lord Reid and Lord
Somervell of Harrow, had been MPs and Law Officers. Their experience
would, I believe, have been of considerable help. I have a feeling
at least that, if the Privy Council were to be the basis for any
appellate body, then there might be something to be said for the
particular body having Privy Counsellors with relevant political
experience either as members or as assessors. Mixed courts of
senior judges and senior clerical figures are not unknown and
some such model might be appropriate.
4. Similar questions arise over another of
the rights of the two Houses, the regulation of their own procedures.
The Houses have "exclusive cognisance" over these procedures
even though they impact on non-members, eg by requiring non-members
to attend before Parliament or a committee; by imposing penalties
on non-members for conduct which the Houses regard as obstructing
members in the conduct of Parliamentary business; by reserving
the right to treat as a contempt the intimidation of witnesses
before select committees. To what extent should the two Houses
be immune from review in the courts in respect of the conduct
of their own affairs? Should the courts have any jurisdiction,
residual or otherwise, exercisable at the behest of members or
non-members? For instance, should the Houses have an uncontrolled
right to decide whether conduct amounts to a contempt, and what
punishment to award?
4. This question appears to raise issues
which are indeed similar to those in the previous question and
my basic answer would be the same. So far as possible the ordinary
courts should not be involved. On the other hand, if there is
no body to which some kind of appeal can lie, there could be apparent
injustice, whether involving a Member or third party. I suspect
that part of the reason for the Committee being asked to review
these matters is that there is an awareness that the procedures,
however appropriate in the past, might not meet the standards
which are required of other bodies. Although the Human Rights
Convention is not to be made to apply to Parliament, that perhaps
makes it all the more important that its procedures, say, for
holding someone in contempt and punishing them can be seen to
meet the standards of Article 6 of the Convention.
For the reasons which I gave in the previous
answer it may be that an appeal might lie to a suitably composed
committee of the Privy Council.
5. Freedom of speech
(a) The work of an MP is a seamless
web, extending from statements in the House to dealing with constituents'
affairs. What is the principle on which the boundary line should
be drawn between statements and communications by members or non-members
which cannot be questioned in the courts and those which are not
(b) Should the immunity be total? Or
should there be exceptions eg if criminal proceedings are involved?
5. I start from the position that nothing
would be done to abridge the right of free speech in Parliament
and the absolute privilege which attaches to what is said there.
Although it is open to abuse, this absolute privilege seems to
me to be appropriate. It is being reproduced in the Scotland Bill
for the new Scottish Parliament. I cannot imagine anyone trying
to change it and I am confident that he would not succeed if he
I am not sufficiently familiar with the work
of MPs to be able to envisage all the situations where relevant
issues arise. I should think, however, that most people would
accept that a Member of Parliament is a person who has a duty
to consider matters of concern to his constituents. It would seem
to follow that any communication of a matter of concern by the
constituents to the MP should in principle be covered by qualified
privilege. If the communication were made, not to the person's
constituency MP, but to another MP, then I consider that the position
should be the same. If the MP then chooses to communicate formally
and privately with a Minister about the matter, that communication
would certainly be the subject of qualified privilege under the
ordinary law but it may well be that such a communication does
or should attract absolute immunity. If the MP raises the matter
in the House, then clearly absolute immunity applies at present
and I believe that it should continue to apply, even at the risk
of it being abused from time to time.
On the other hand it would seem to me to be
wrong that, if the M.P. chooses to raise the matter with the Minister
in the course of, say, a Newsnight programme, it should
attract any privilege.
Peers do not have constituencies and therefore
do not receive communications from constituents. On the other
hand they can and do raise many important public issues and it
seems to me right that communications made to them in relation
to their parliamentary role should attract qualified privilege
along the same lines as communications to M.P.s. The same principles
should also apply to their communications with Ministers as apply
to communications by M.P.s.
If the subject-matter of any criminal case were,
say, corruption or bribery of a Member of Parliament under the
type of legislation envisaged in Question 8, then it might well
be necessary for communications to and by Members to be investigated
and made the subject of evidence at any trial. I can see no basis
on which such evidence, whether relevant to the prosecution or
to the defence, could properly be excluded.
6. Should members be immune from being subpoenaed
to attend and give evidence as witnesses in criminal or civil
6. In general M.P.s and peers should be
subject to citation to appear as witnesses in both criminal and
civil cases. On the other hand there will be situations where
a vote or some other Parliamentary business is so vital that their
attendance in Westminster is imperative. In such a situation I
believe that the requirement to attend at Westminster should prevail.
Any other rule would lead to potential conflict between the courts
and Parliament and that would be highly undesirable. What is required
is that appropriate arrangements should be made to minimise the
risk of conflict and to enable someone like the Speaker to give
a certificate which the courts would recognise. Undoubtedly there
might be cases where such an arrangement could cause difficulties,
but the present arrangement could cause difficulties too. I very
much doubt if any difficulties would be insurmountable.
7. Increasingly one or other of the Houses,
through their corporate officers (see the Parliamentary Corporate
Bodies Act 1992, sections 1 and 2) and in other ways as well,
enter into contracts, for example, for building and repair works.
In addition, officials and staff are employed under contracts
of employment, and disputes do arise regarding wrongful or unfair
dismissal. Disputes can also arise following accidents to persons
working in or visiting the Palace of Westminster. When disputes
arise and litigation ensues, questions may and do arise regarding
the discoverability of relevant documents, which may be the minutes
of a committee or sub-committee of one of the Houses. Similarly,
questions may arise concerning oral evidence on what happened
at a meeting of a committee or sub-committee.
Plainly it would seem unsatisfactory for these
sorts of litigation not to be attended by the usual evidential
consequences, even though this would involve incursion into the
general immunity afforded by Article IX. Do you agree? Where,
and on what principle, do you think the boundary line should be
drawn in this regard?
7. This problem seems unlikely to arise
in practice in connection with Scottish proceedings. I agree,
however, that the normal rules about the production of documents
should apply so far as possible. I doubt whether Article IX was
ever designed to enshrine rights in relation to a buildings committee
or a catering committee, for example, as opposed to rights to
freedom from intrusion into the actual substantive business of
Parliament. Although I have not expressed the matter properly
or exactly, I have a feeling that the boundary line must lie in
such a way that, for instance, routine matters discussed by a
building committee lie outside it while even routine discussion
of substantive matters by any Parliamentary body lie inside it.
8. The Government is considering introducing
criminal legislation in respect of bribery and corruption. If
the ingredients of the offences were expressed in terms wide enough
to include the conduct of members of the two Houses in discharge
of their functions as members, should members be liable to criminal
proceedings in the courts, even though this might mean that a
criminal court would have to investigate in depth the conduct
of Parliamentary business by a member and others? Or should such
conduct be left to be controlled elsewhere, either by Parliament
or by another body?
8. In my view, if there is to be legislation
to make it an offence to bribe or to corrupt members of either
House of Parliament in discharge of their functions, then the
legislation should be United Kingdom legislation. This would be
a most particular area of law and it would, I believe, be appropriate
for it to apply in the same way in all parts of the United Kingdom.
I am aware that corruption has been considered recently by the
Law Commission but not by the Scottish Law Commission. If no general
reform of the law of corruption on a United Kingdom basis is planned,
any offence relating to Parliament should be drafted in such a
way that it could apply to Scotland even if the rest of the legislation
That said, I foresee what could be a potential
awkwardness if the Government's devolution proposals become law.
Under the Scotland Bill the Lord Advocate will become a Member
of the new Scottish Executive responsible to the Scottish Parliament.
He will remain head of the prosecution system. It follows that,
if it were made an offence for someone in Scotland to bribe a
Member of Parliament in the discharge of his duties, then the
decision whether to prosecute would be a matter for the Lord Advocate
and his officials. The Lord Advocate might well be a member of
an administration of a different political hue from the administration
in Westminster. Especially if there happened to be a period of
tension in relations between the Westminster and Edinburgh parliaments,
it might seem strangeor even unacceptablefor the
decision on whether to prosecute in such a case to lie with the
Lord Advocate. I could also foresee certain tensions if his officials
were to seek to investigate the conduct of business in Parliament.
I believe that the Committee should consider whether this would
be an arrangement which would command the confidence of Parliament.
I am not sufficiently familiar with the number
of cases where corruption and bribery of members of either House
have occurred to know whether this is an area of conduct which
now requires to be dealt with by the creation of an offence. That
seems to me to be the critical question of policy. If an offence
must now be created, then I do not really see how it could properly
be dealt with by a body which was anything other than an impartial
court or investigated by anything other than an independent body.
If the offence carried a substantial penalty, then prima facie
jury trial would be appropriate. In England it may be that
there will be a precedent in serious fraud trials for a body other
than a jury to adjudicate, but there is unlikely to be any such
precedent in Scotland and I for one would be reluctant to see
one established especially since I see no particular reason to
believe that the issues involved would be particularly difficult
for a jury to understand.
9. Codification. On balance, would codification
of the law of parliamentary privilege be advantageous or disadvantageous?
If the law were codified in a statute, should interpretation of
the statute be a function to be discharged exclusively by the
9. I am very much against codification in
general. I am by no means sufficiently familiar with the details
of parliamentary privilege to know whether codification would
be easy. On the other hand any codification would have the very
obvious disadvantage that, especially with a body like Parliament
which is subject to pressures from all kinds of evolving developments
in the media and elsewhere, it would almost inevitably be out
of date within a very few years. Especially since cases of Parliamentary
privilege can be conducted in the glare of publicity, it might
well be undesirable if the code were found to be unable to deal
with what seemed to be an obvious case of breach of privilege.
On the other hand, if penalties are imposed
for breaches of privilege, then it could be said that, unless
the rules are laid down, there is a breach of the principle of
nulla poena sine lege. I note that under Clause 6(3) of
the Human Rights Bill neither House of Parliament is included
within the definition of a public authority whose acts are caught
by Clause 6(1). Whether the provision which exempts penalties
imposed by one of the Houses of Parliament from the purview of
the Convention is itself compatible with the Convention is perhaps
a nice point. Be that as it may, one might well take the view
that it is not prima facie satisfactory for the Houses
of Parliament to penalise people, whether Members or not, for
breaches of privilege which are themselves not always easy to
define in advance. My impression is that the allegations of breach
of privilege by Members of the House of Commons can give rise
to more uncertainty at present than allegations of breach of privilege
by journalists etc.
I should be most reluctant to see the ordinary
courts adjudicating on matters of privilege. They have no expertise
in the matter and they would almost certainly run into conflict,
sooner or later, with one or other House of Parliament, whose
members would have greater expertise.
10. Are there any areas of law or practice
where the existing relationship between the Scottish courts and
Parliament is unsatisfactory and clarification or change would
10. I am not aware of any areas giving rise
to difficulty at present.