JOINT COMMITTEE ON PARLIAMENTARY PRIVILEGE
ORDERED TO REPORT
EXECUTIVE SUMMARY
Parliament makes the law and raises taxes. It
is also the place where ministers are called to account by representatives
of the whole nation for their decisions and their expenditure
of public money. Grievances, great and small, can be aired, regardless
of the power or wealth of those criticised.
In order to carry out these public duties without
fear or favour, Parliament and its members and officers need certain
rights and immunities. Parliament needs the right to regulate
its own affairs, free from intervention by the government or the
courts. Members need to be able to speak freely, uninhibited by
possible defamation claims. These rights and immunities, rooted
in this country's constitutional history, are known as parliamentary
privilege.
Despite its ancient origins, parliamentary privilege
must meet the current needs of Parliament, and must do so in a
way acceptable today as fair and reasonable. The Joint Committee
was set up by both Houses of Parliament to review the whole subject.
The touchstone applied by the Joint Committee was that Parliament
should be vigilant to retain necessary rights and immunities,
and equally rigorous in discarding all others.
Freedom of speech is guaranteed by 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'. It is the single
most important parliamentary privilege. Article 9 affords legal
immunity (`ought not to be questioned') to members for what they
say or do in `proceedings in Parliament'. The immunity applies
in `any court or place out of Parliament'.
This legal immunity is comprehensive and absolute.
Article 9 should therefore be confined to activities justifying
such a high degree of protection, and its boundaries should be
clear.
The scope of article 9 has been the subject
of two recent developments in the courts. In 1993 the courts decided
(in a case called Pepper v Hart) that when interpreting
ambiguous statutes the courts may look at ministerial statements
made in Parliament during the passage of the Bill through Parliament.
The courts have also established a practice of examining ministerial
statements made in Parliament in another circumstance, namely,
when considering challenges by way of judicial review to the lawfulness
of ministers' decisions. These are beneficial developments, but
they should not lead to any general weakening of the prohibition
contained in article 9.
Article 9 caused difficulty when a member was
defamed outside Parliament regarding the manner in which he carried
out his parliamentary duties. The truth of the defamatory allegations
could not be decided in court when this would involve examining
parliamentary proceedings. Unlike any other citizen, the member
was unable to clear his name. Section 13 of the Defamation Act
1996 was passed to remedy this situation. This section enables
a person to waive parliamentary privilege so far as he is concerned,
for the purpose of defamation proceedings. Section 13 has been
much criticised: it could be unworkable in some cases, it is anomalous
in applying only to defamation proceedings, and it suffers from
the flaw of undermining the basic principle that freedom of speech
is the privilege of the House as a whole and not of the individual
member.
The Joint Committee recommends that section
13 should be replaced with a new statutory provision enabling
the House, and not any individual, to waive the privilege in court
proceedings. Waiver would apply to all court proceedings, whether
relating to defamation or any other matter, provided there is
no question of the person who made the statement in Parliament
being exposed in consequence to a risk of legal liability. This
power of waiver would also resolve the difficulty currently confronting
Parliament when Parliament itself becomes involved through its
corporate officers in court proceedings relating to contractual
disputes.
The traditional view of article 9 as a blanket
prohibition on examination of parliamentary proceedings in court,
should be confirmed, subject to specific and limited exceptions
for court proceedings (1) so far as they relate to interpretation
of a statute or subordinate legislation, or the judicial review
of, or the consequences of, government decisions, (2) where there
is no suggestion that anything forming part of the parliamentary
proceedings was inspired by an improper motive or was untrue or
misleading, and (3) when the House waives privilege.
The meaning of `proceedings in Parliament' and
`place out of Parliament' should be clarified and defined. Article
9 protects activities that are recognisably part of the formal
collegiate activities of Parliament. Constituency correspondence
does not fall within this description and should not be brought
within the protection of article 9. The registers of members'
financial interests should form part of parliamentary proceedings,
despite a recent court decision to the contrary.
Legislation should also confirm that the laws
of Scotland and Northern Ireland are the same as the law of England
and Wales on this subject, and that the other rights and immunities
of Parliament, its members and officers under the law of England
and Wales are likewise applicable throughout the United Kingdom.
The Government is proposing to introduce modern
criminal legislation on bribery and corruption. The Joint
Committee investigated whether Parliament should continue to be
self-regulating in this regard and, if not, various ways this
legislation might be applied to members of Parliament. These included:
(1) members being liable to criminal prosecution in the courts,
(2) a system of part self-regulation, part criminal prosecution,
with serious cases dealt with by the courts, and less serious
ones by Parliament, (3) criminal prosecution of members being
subject to approval by the House, and (4) criminal investigations
or prosecutions being subject to parliamentary sifting.
The Joint Committee concluded that corruption,
a serious and insidious offence, can only be dealt with effectively
by using the police and the courts. Prosecution through the courts
is the only credible remedy. It is also the only credible deterrent
for any briber. This will involve only a minimal encroachment
upon the territory safeguarded by article 9. The Joint Committee
is confident there are very few instances of corruption involving
members of Parliament. The occasions when a court will be called
upon to question a parliamentary proceeding will be rare.
The proposed bribery legislation will expose
members of Parliament and other public figures to a high risk
of vexatious allegations or private prosecutions. Accordingly,
prosecution under the new legislation should require the consent
of the Attorney General or the Lord Advocate.
In order to prevent abuse, freedom of speech
is subject to self-regulation by Parliament. By the sub
judice rule Parliament ensures that court proceedings are not
prejudiced by discussion in Parliament. The Chair in the House
of Commons has wide discretionary powers, and is rightly vigilant
to enforce the rule and relax it only in exceptional circumstances.
The rule in the two Houses should be harmonised and modified in
certain minor respects. Formal restrictions should not be introduced
in respect of statements or disclosures in Parliament which are
made in breach of court `no publicity' orders or the official
secrets legislation. An advisory guide should be produced by each
House to assist members, especially new members, on the rules
and conventions regarding the conduct of debate and the exercise
of freedom of speech.
The Joint Committee considered a `right of reply'
scheme for members of the public who feel they have been unfairly
criticised or even defamed, but decided against it. Such a scheme
would raise expectations it could not fulfil because it would
not establish the truth or falsity of the criticism, no financial
redress would be forthcoming, and a statement published in Hansard
would not necessarily attract publicity matching the original
comments.
Freedom of speech is one facet of the broader
principle that what happens within Parliament is a matter for
control by Parliament alone. This principle, of control by
Parliament of its affairs free from interference by the courts,
often called `exclusive cognisance', consists of a collection
of related rights and immunities. Each House has the right to
judge the lawfulness of its own proceedings. Each House has the
right to institute inquiries and require the attendance of witnesses
and the production of documents. The Joint Committee considers
that witnesses should be informed in advance of the powers of
the House and their own rights. The procedure committees of each
House should review the convention that one House does not compel
the attendance of a member of the other House before its committees.
It is important that former ministers elevated to the House of
Lords should attend select committees in the House of Commons
to answer questions about their periods in office.
The right of each House to administer its internal
affairs within its precincts should be confined to activities
directly and closely related to proceedings in Parliament. Parliament
should no longer be a statute-free zone in respect of Acts of
Parliament relating to matters such as health and safety and data
protection. In future, when Parliament is to be exempt, a reasoned
case should be made out and debated as the legislation proceeds
through Parliament.
Parliament's disciplinary and penal powers
are part of the control exercised by Parliament over parliamentary
affairs. Conduct, whether of a member or non-member, which improperly
interferes with the performance by either House of its functions,
or the performance by members or officers of their duties, is
a contempt of Parliament. Contempt should be statutorily defined.
The penal sanctions make it particularly important that the scope
of contempt should be clear and readily understood. Imprisonment
as a penalty for contempt, not used for many years, should be
abolished, save that each House should keep its power to detain
for short periods persons who misconduct themselves in the House
or its precincts. In lieu there should be power to fine.
Each House should retain its jurisdiction over
its own members. The power of the House of Lords to suspend its
members should be clarified and confirmed. The disciplinary procedures
of both Houses should be revised to bring them into line with
contemporary standards of fairness, including rights guaranteed
by the European Convention of Human Rights. Any decision involving
a penalty should remain the decision of the whole House, but the
House should not have power to increase the penalty above that
recommended in the report of the committee to the House.
Parliament's jurisdiction over contempts committed
by non-members should be transferred to the courts. Parliament
should retain a residual jurisdiction, including power to admonish
in non-contentious cases. Wilful failure to attend committee proceedings
or answer questions or produce documents should be made a criminal
offence punishable by a fine of unlimited amount or up to three
months' imprisonment. Fairness requires that this should also
apply to members in the unlikely event of their committing such
an offence.
Freedom from arrest in civil cases should
be abolished (it has never applied in criminal cases). So should
the obscure privilege of peerage. Members should cease
to be exempt from subpoenas to attend court as witnesses,
but a subpoena should not be issued against a member without the
approval of a judge. Personal service of court documents on
members within the precincts of Parliament should remain a contempt,
but service by post should not be a contempt.
Papers published by order of either House have
absolute privilege under the Parliamentary Papers Act 1840.
The extent to which such orders are currently made by the House
of Commons conflicts with the principle that absolute privilege
should be confined to areas where it is needed. The House of Commons
procedure committee should look into this matter. The Act of 1840,
expressed in its impenetrable early Victorian style, should be
replaced with a modern statute.
The recommendations of the Joint Committee requiring
enactment by legislation should be included in a new Parliamentary
Privileges Act. These recommendations will stand enactment
by themselves, but if so enacted the result will be an uncomfortable
mixture of modern statute and ancient learning. Overall statement
as a code is the natural next step in a modern presentation of
parliamentary privilege. This can be done without loss of flexibility
for the future. A code would assist non-members as well as members,
because it would enable the ordinary citizen to have access to
the privileges of his member of Parliament. Parliament should
now take steps to enact such a code.
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