Replies to questions submitted by the
Chairman of the Joint Committee on Parliamentary Privilege to
the Lord Chief Justice of Northern Ireland, the Right Honourable
Sir Robert Carswell
(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. Does this apply in Northern Ireland? If not, is there an
equivalent to Article IX under Northern Irish law? Does this equivalent
have the same ambit as Article IX?
2. Do the courts of Northern Ireland recognise
that each House of Parliament has exclusive cognisance of the
conduct of its internal affairs?
1-2. May I first answer your first two questions
in the affirmative. Article IX of the Bill of Rights 1688 applies
in Northern Ireland. The Courts in Northern Ireland recognise
that each House of Parliament has exclusive cognisance of the
conduct of its internal affairs. There is no difference between
the approach of the courts in Northern Ireland to this topic and
that adopted by the courts in England and Wales.
Given the consonance between the law in Northern
Ireland and the practice of our courts with that in England and
Wales, I can attempt to furnish answers to the remaining questions
in your letter.
The further questions which follow are based
on the assumption that under the law of Northern Ireland 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 need modification.
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. The courts and Parliament are both astute
to recognise their respective constitutional roles, as Lord Browne-Wilkinson
expressed it in Prebble v Television New Zealand Ltd 
1 AC 321 at page 332. There nevertheless remain the unresolved
dualism and apparent deadlock on the question of jurisdiction
between the courts and Parliament which are discussed in earlier
editions of Erskine May. In practice both the courts and Parliament
are extremely careful to avoid where at all possible invading
the territory of the other or pronouncing upon its extent, as
may be seen in the decisions from Bradlaugh v Gossett (1884)
12 QBD 271 down to Prebble v TVNZ. Indeed, Lord Coleridge
CJ observed in the former case that in theory the question is
extremely hard to solve, but in practice it is not very important.
It may therefore be questioned whether it would be wise to upset
the cautious equilibrium which has been maintained for over a
century. If an attempt is now made to prescribe who should have
a defining role, the potential for unseemly conflict between Parliament
and the courts is all to obvious.
If it is thought advisable to attempt some resolution
of the matter, I see merit in the suggestion supported by the
Lord Chief Justice and the Lord President that the final determination
be entrusted to a special appellate body such as a committee of
the Privy Council. I would not think it appropriate that the decision
should lie with the ordinary courts of law, and I should not seek
or welcome such a jurisdiction in Northern Ireland. Concurrent
jurisdiction would in my opinion be undesirable, as it would be
a recipe for conflict.
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. I am not aware of any widespread dissatisfaction
with the existence of the powers by the Houses of Parliament in
the regulation of their own procedures. It is possible, however,
that any system which is entirely immune from review of any kind
may be attacked as failing to meet contemporary notions of fairness.
As in the question of defining the extent of
privilege, I would not think it appropriate to entrust any appeal
or review to the ordinary courts. The suggestion of a committee
of the Privy Council might again be appropriate. Whatever body
might be designated to hear appeals or reviews, it would, I suggest,
be important to define very carefully and fully its appellate
or reviewing jurisdiction. It would not be an easy task, and it
might be that this in itself reinforces the need for caution before
making any change.
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. The law in Northern Ireland is the same
as that which applies in England and Wales. As I understand it,
some propositions are clear enough:
(a) A statement made in Parliament is protected
by absolute privilege. I know of no suggestion for any change
in this rule, nor would I advocate any.
(b) A statement made outside Parliament by
a Member of the House of Commons to his constituents will be protected
by qualified privilege. In my opinion this is sufficient protection
for the member for the proper performance of his work.
(c) The same statement made outside Parliament
to the press will not be protected by privilege.
The extent of the privilege attaching to some
communications is unresolved, eg a member's communication with
a Minister on a matter with which Parliament is concerned. It
was left open in Re Parliamentary Privilege Act 1770 
AC 331 whether such a communication attracted qualified or absolute
Criminal proceedings call for separate consideration,
for the liberty of the subject is at stake. It would be difficult
to defend the withholding of relevant evidence on grounds other
than public interest immunity.
6. Should members be immune from being subpoenaed
to attend and give evidence as witnesses in criminal or civil
6. In my opinion MPs and peers should not
be immune from being subpoenaed to attend and give evidence in
civil or criminal proceedings. Needless to say, if the purpose
of a subpoena was to require a member to give evidence on a privileged
topic he could apply to have the subpoena set aside. If he were
required to attend the House for a division, I am confident that
our courts would unhesitatingly accommodate him.
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. I agree that litigation arising from
the performance of contracts made by corporate officers of Parliament
should not be hampered by the strict application of Article IX
to such matters as discovery of documents. Similarly, claims for
wrongful or unfair dismissal should not suffer a disadvantage
because they arise from employment within the Palace of Westminster.
The words of Lord Browne-Wilkinson inPrebble v TVNZ may
provide a helpful guide to where the boundary line should lie:
"[the courts] will not allow any challenge
to be made to what is said or done within the walls of Parliament
in performance of its legislative functions and established
privileges (emphasis added)".
Any activity connected with the legislative
functions of Parliament, including the regulation of services
and facilities ancillary to them, should be protected from intrusion;
matters unconnected with that core function need not be.
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. If criminal legislation dealing with
bribery and corruption is sufficiently widely drawn to include
the conduct of members of either House of Parliament in the discharge
of their functions as members, I believe that the prosecution
of any such offences should take place in the criminal courts.
I accept that this might involve a criminal court investigating
the conduct of Parliamentary business by a Member of Parliament,
but I believe that the circumstances would justify this exception.
It would in my opinion be unacceptably anomalous that the criminal
liability of Members of Parliament should be investigated in some
form of parallel proceedings while others charged with a similar
offence were prosecuted in a criminal court.
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 have no particular views on whether
the law on Parliamentary privilege should be codified. If it is
to be codified, however, I believe that the interpretation of
the statute (ie the decision on its legal meaning as opposed to
its practical application) should be a matter for the courts.
10. Are there any areas of law or practice
where the existing relationship between the Northern Irish courts
and Parliament is unsatisfactory and clarification or change would
10. I am not aware of any areas of law or
practice where the existing relationship between the courts in
this jurisdiction and Parliament is unsatisfactory or in need
of clarification or change.