3.The House requires police forces in the UK to notify the Speaker of each instance of the arrest of a Member on a criminal charge, and requires the Speaker to report that notification to the House.
4.Erskine May states that “in all cases in which Members of either House are arrested on criminal charges, the House must be informed of the cause for which they are detained from their service in Parliament.”. The present requirement derives from the House’s ancient claim to privilege for freedom from arrest of its members.
5.The Clerk of the House told us that Thomas Erskine May’s predecessor in describing the House’s procedure and practice, John Hatsell, had demonstrated that the origin of the practice of notification lay in the claim of privilege of freedom from arrest. Hatsell indicated that the practice, and the privilege, lay in sound constitutional principle:
As there is no privilege, of which the House of Commons have always been, and indeed, ought to be, more jealous, than the security of the persons of the Members, “that they shall be under no undue restraint from being able to attend their duty in Parliament”, it is highly expedient, that, whenever the public necessity appears to the Ministers of the Crown to justify any breach of this privilege, they should as soon as possible acquaint the House with the steps they have taken, and the grounds and reasons which induced them to it.
6.The claim of privilege of freedom of arrest has long been of symbolic value only. When Erskine May—at that point Assistant Librarian of the House—first came to describe the House’s privileges in 1844, he found that this ancient claim was no longer enforced. By then a member could be arrested in the Chamber itself and taken to King’s Bench Prison without the Committee of Privileges finding any breach of privilege, provided that the House was notified of the arrest:
Thus the house will not allow even the sanctuary of its walls to protect a member from the process of criminal law. But in all cases in which members are arrested on criminal charges, the house must be informed of the cause for which they are detained from their service in Parliament.
The House therefore continued to insist on notification even while it made no attempt to claim immunity for its members from the due process of the criminal law. For instance, the Protection of Person and Property Bill of 1881—a controversial legislative proposal which provided for a form of detention without trial for the purpose of maintaining public order in Ireland—was amended on its passage through the House to make express provision for notification of the House in the event of the arrest of any Member under its provisions “in like manner as if he were arrested on a criminal charge.”
7.The privilege of freedom from arrest continues to be symbolically claimed at the opening of every Parliament, as one of the ancient privileges of the House claimed by the Speaker-elect from the Lords Commissioners, on behalf of the Crown: it was claimed by the present Speaker following his election and prior to his confirmation in office by the Lords Commissioners on 19 May 2015. Erskine May describes its practical application thus:
The principle upon which the privilege of freedom from arrest is based is the absolute priority of attendance by Members of both Houses. However, it has never been allowed to interfere with the administration of criminal justice or emergency legislation. The privilege is now of extremely limited application and the 1999 Joint Committee on Parliamentary Privilege recommended its abolition.
As the Clerk of the House pointed out, the 2013 Joint Committee on Parliamentary Privilege took the same view on abolition as the 1967 and 1999 committees, but saw little need for urgency in dealing with the matter, given the limited application of the privilege and since legislation would be required to make abolition effective.
8.The Clerk noted other instances where there was a requirement for the House to be notified formally of proceedings against a Member:
9.The Clerk also noted the instances where the House is not routinely informed of circumstances preventing a Member from attending. These include jury service, appearance as a witness in a trial, service away from Westminster on parliamentary duties, military service, illness, and paternity or maternity leave and other caring responsibilities.
10.Members may fall foul of the law without being arrested or detained and therefore without such brushes with authority being notified to the House. The fining of a Member or the award of a caution will not trigger a formal notification; nor would the charge of a Member with an offence unless arrest and detention had preceded charge. As the Clerk points out, these events might become widely known, and some would be a matter of public record.
3 Erskine May, 24th edition (2011), p. 243
4 Clerk of the House 1768–1797; author of Precedents of Proceedings in the House of Commons with Observations, 1818.
5 Appendix 2, paras 2–3
6 Hatsell, op. cit., volume II, p. 364
7 Erskine May, 1st edition (1844), p. 105
8 For the amendment, see CJ (1881) 82 and HC Deb, 18 February 1881, cols. 1285–1311. The Bill was enacted as the Protection of Person and Property Act (Ireland) Act 1881 on 2 March 1881. Its provisions expired on 30 September 1882. See also Erskine May, 13th edition (1924), p 122. Charles Stewart Parnell and several other Members for constituencies in Ireland were arrested under the provisions of the Act and the House was notified accordingly.
9 On that occasion the Speaker made the following statement in the Lords: “It is now my duty, in the name of and on behalf of the Commons of the United Kingdom, to lay claim, by humble petition to Her Majesty, to all their ancient and undoubted rights and privileges, especially to freedom of speech in debate, to freedom from arrest, and to free access to Her Majesty whenever occasion shall arise, and that the most favourable construction shall be put upon all their proceedings.” HL Deb, 19 May 2015, col. 3.
10 Erskine May, 24th edition, p 243
11 Appendix 2, para 3
12 Appendix 2, para 6
13 Appendix 2, para 7
Prepared 14 December 2015