Parliamentary Privilege

Parliamentary Privilege First Report

SUMMARY OF RECOMMENDATIONS

FREEDOM OF SPEECH

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'

1. Parliament should clarify the scope of this prohibition and confirm as a general principle the traditional view of article 9: that it prohibits the examination of parliamentary proceedings in any court.[1]

2. Three exceptions to this general principle should be provided for in statute. First, nothing in article 9 should prevent proceedings in Parliament being examined in any court proceedings so far as they relate to the interpretation of an Act of Parliament or subordinate legislation.[2] The decision in Pepper v. Hart (1993) would thereby be given statutory recognition.

3. Second, article 9 should not preclude the use of parliamentary proceedings in court for the purpose of judicial review of governmental decisions or in other court proceedings in which a governmental decision is material.[3]

4. Third, courts should be able to examine parliamentary proceedings when there is no suggestion that anything forming part of those proceedings was inspired by improper motives or was untrue or misleading and there is no question of legal liability.[4]

5. Section 13 of the Defamation Act 1996 should be replaced by a new provision under which the House would make a general waiver of article 9 in an appropriate case (not necessarily a defamation action). It would not do so if waiver would expose the member or other person concerned to any risk of legal liability.[5] [Section 13 permits a member or other person, such as a witness before a committee, to waive in defamation proceedings in court the protection afforded by article 9 so far as it relates to him.]

6. In the House of Commons a committee of senior members should advise the Speaker on any waiver requested under the above recommendation. In the Lords the same function should be exercised by the committee for privileges, which includes law lords as members.[6]

7. The term `place out of Parliament' should be defined in statute.[7]

8. The term `proceedings in Parliament' should be defined in statute on the basis of legislation in operation in Australia since 1987.[8]

9. The statutory definition of `proceedings in Parliament' should make clear that a letter of complaint to the House of Commons commissioner for standards is a `proceeding' enjoying the protection of article 9 only when it is taken up by the commissioner for investigation.[9]

10. The absolute privilege accorded by article 9 to proceedings in Parliament should not be extended to include communications between members and ministers.[10]

11. The registers of members' interests and related proceedings should be declared by statute to be `proceedings in Parliament'.[11]

12. The extent of freedom of speech of the United Kingdom Parliament in the laws of Scotland and Northern Ireland should be expressly harmonised with the law of England and Wales. The opportunity should also be taken to declare that the other existing rights and immunities accorded under the law of England and Wales to the two Houses, their members and officers are likewise applicable throughout the United Kingdom.[12]

BRIBERY

[Members of neither House are at present subject by statute to the law of bribery in respect of `proceedings in Parliament']

13. Members of both Houses should be included within the scope of forthcoming legislation on corruption. Article 9 should be set aside in any criminal proceedings for bribery.[13] Prosecution under the new legislation, whether of a member or non-member, should require the consent of a law officer.[14]

14. Both Houses should take steps to ensure that the rules and conventions concerning standards of conduct are in readily accessible form capable of being understood outside Parliament as well as within.[15]

LIMITS ON FREEDOM OF SPEECH

15. The sub judice rules of the two Houses [which forbid consideration of matters currently before a court] should be harmonised by the adoption of the updated and comprehensive resolution set out in our report. There will be little change in practice.[16] The House of Lords should introduce powers of discretion in the exercise of the rule similar to those at present exercisable by the Speaker in the Commons.[17]

16. No action should be taken to limit freedom of speech in Parliament in respect of:

17. A `right of reply' scheme should not be adopted.[20]

18. Advisory guides to members of both Houses on the exercise of the privilege of freedom of speech should be drawn up.[21]

CONTROL BY PARLIAMENT OVER ITS OWN AFFAIRS

19. Each House of Parliament should continue to exercise control over its own affairs. Statute should provide that the privilege of each House to manage its internal affairs within its precincts applies only to activities directly and closely relating to proceedings in Parliament.[22]

20. It should also be made clear in statute that every law applies to Parliament unless Parliament has been expressly excluded. The precincts of Parliament should not be a statute-free zone.[23]

21. In actions brought by or against the corporate officer of either House, the power to waive article 9 (see above) should be exercisable by an officer of the House, in accordance with authority given by the House from time to time.[24]

22. A clear statement of Parliament's rights and powers, and of their own rights, should be drawn up and given to potential witnesses before committees.[25]

23. The procedure committees of each House should examine and report on the desirability in today's circumstances of the convention that one House does not compel the attendance of a member of the other House before its committees.[26]

DISCIPLINARY AND PENAL POWERS

24. Contempt of Parliament should be codified in statute. Contempts comprise any conduct which improperly interferes with the performance by either House of its functions, or the performance by a member or officer of the House of his duties.[27]

25. Parliament's power to imprison persons, whether members or not, who are in contempt of Parliament should be abolished[28], save that Parliament should retain power to detain temporarily persons misconducting themselves within either House or elsewhere within the precincts of Parliament.[29]

26. For practical reasons Parliament's penal powers over non-members should, in general, be transferred to the High Court. Parliament should retain a residual jurisdiction, including power to admonish a non-member who accepts he acted in contempt of Parliament. Proceedings should be initiated on behalf of either House by the Attorney General, at the request of the Speaker, advised by the standards and privileges committee, or of the Leader of the House of Lords acting on the advice of the committee for privileges. The court should have power to impose a fine of unlimited amount.[30]

27. Wilful failure to attend committee proceedings or answer questions or produce documents should be made a criminal offence punishable in the courts by a fine of unlimited amount or up to three months' imprisonment.[31]

28. Parliament should retain its existing disciplinary powers over members, except that the power to imprison should be replaced with a power to fine.[32] In the interests of fairness, some of the disciplinary procedures of the Commons committee of standards and privileges need to be revised, as would those of the Lords committee for privileges if the need arose for that committee to consider contempts. The minimum standards of fairness should be those set out in the Joint Committee's report.[33] Each House should retain power to make the decision on contempt matters, save that the House should not have power to increase the penalty above that recommended by the relevant committee.[34] Members of the relevant committee should be eligible to participate in any debate in the House on a disciplinary matter but should not vote.[35]

29. The power of the House of Lords to suspend its members should be clarified and confirmed.[36]

30. Each House should resolve that unauthorised disclosure of embargoed copies of reports, presented to the House but not yet published, and the unauthorised use of committee material, may be treated as a contempt.[37]

31. Section 1 of the Parliamentary Privilege Act 1770 should be amended so as to include, but without prejudice to article 9 of the Bills of Rights, court proceedings brought against members of Parliament in respect of statements made or acts done in the course of proceedings in Parliament.[38]

OTHER PRIVILEGES

32. Members' exemption from attendance in court as witnesses should be ended, but a subpoena should not be issued against a member without the consent of a judge.[39]

33. Members' freedom from arrest in civil cases should be abolished.[40]

34. Privilege of peerage should be abolished.[41]

35. Service of court documents such as writs and orders within the precincts of the House, regardless of whether the House is sitting, should be regarded as a contempt, but service by post should not be a contempt.[42]

36. The Joint Committee endorses the 1984 recommendation of the Lords committee for privileges that legislation should provide expressly that members of the House of Lords suffering from mental illness may be detained under the mental health legislation and while so detained will be disqualified from sitting and voting in Parliament.[43]

PARLIAMENTARY PAPERS

37. Unless there are strong reasons in the public interest, no parliamentary paper other than one emanating from a House or its committees should be absolutely privileged. At present, many publications presented to Parliament in accordance with statute are printed by order of the House of Commons and thereby attract absolute privilege. This is difficult to justify. The House of Commons procedure committee should act on this matter and should also examine the status and distribution of papers deposited in the Commons library.[44]

38. The Parliamentary Papers Act 1840 should be replaced by a modern statute.[45]

A PARLIAMENTARY PRIVILEGES ACT

39. There should be a Parliamentary Privileges Act, bringing together all the changes in the law referred to above, and codifying parliamentary privilege as a whole.[46] This would make it easier to understand that parliamentary privilege matters not just to members of Parliament but to the electorate.

1 Paragraphs 85, 86-88. Back

2 Paragraphs 45, 90. Back

3 Paragraphs 50, 55, 59, 90. Back

4 Paragraphs 86, 90. Back

5 Paragraphs 69, 72-74, 89. Back

6 Paragraph 78. Back

7 Paragraph 96. Back

8 Paragraphs 127-129. Back

9 Paragraph 126. Back

10 Paragraph 112. Back

11 Paragraph 123. Back

12 Paragraph 134. Back