Parliamentary Privilege First Report


The Joint Committee

  1.  On 9 June 1997 ministers in both Houses announced that as part of the initiative to modernise Parliament the government proposed to institute a general review of parliamentary privilege.[47] 1 The Joint Committee was set up on 31 July 1997 with broad terms of reference: `to review parliamentary privilege and make recommendations'. We held our first meeting on 27 October 1997 and appointed Lord Nicholls of Birkenhead, a lord of appeal, as chairman.

  2.  We wished to hear the opinions of as many people as possible. Numerous organisations and individuals were contacted directly and submitted valuable written evidence, and we placed advertisements in four national newspapers. The advertisements elicited over 2,000 enquiries for further information, and an eventual response of 165 letters and memoranda. We are grateful for the interesting comments in these responses. We held fourteen sessions of evidence in public. We thank the many distinguished and busy people who gave oral evidence. At the risk of being invidious, specific mention must be made of the help so readily forthcoming from Commonwealth Parliaments, and from the Parliamentarian of the United States House of Representatives.[48] 2 The oral evidence taken during our inquiry, and the accompanying memoranda, are published as volume 2 of this report; other written evidence and lists of those who assisted us appear in volume 3.[49] 3

Parliamentary privilege: its nature and origins

  3.  Parliamentary privilege consists of the rights and immunities which the two Houses of Parliament and their members and officers possess to enable them to carry out their parliamentary functions effectively. Without this protection members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a forum for expressing the anxieties of citizens would be correspondingly diminished.[50]

  4.  This brief statement describes the scope of the subject under review. It also identifies the sole justification for the existence of parliamentary privilege. It is the touchstone we have applied throughout our review. We have asked ourselves, across the field of parliamentary privilege, whether each particular right or immunity currently existing is necessary today, in its present form, for the effective functioning of Parliament. Parliament should be vigilant to retain rights and immunities which pass this test, so that it keeps the protection it needs. Parliament should be equally vigorous in discarding rights and immunities not strictly necessary for its effective functioning in today's conditions.

  5.  The sources of parliamentary privilege are to be found chiefly in ancient practice, asserted by Parliament and accepted over time by the Crown and the courts as the law and custom of Parliament.[51] This ancient practice is recorded in the rolls of Parliament and the journals of the two Houses. Some of the Commons ancient privileges, such as freedom from arrest, were claimed from the Sovereign and upheld with his consent.[52] Other privileges were established by Parliament itself. Freedom of speech, for instance, claimed by the Commons under Elizabeth I[53] and frequently asserted thereafter, was fully established only after the long struggle of the House of Commons in the seventeenth century to assert its independence against the Crown and the courts. What the House of Commons originally claimed as customary rights, in the course of repeated efforts to assert them, hardened into legally recognised privileges.[54] They are part of the common law, in that their existence and validity are recognised by the courts, but they are unique in also being enforceable by Parliament itself through the exercise of its penal powers.[55]

  6.  Although the Lords have `ever enjoyed' their privileges simply because `they have place and voice in Parliament'[56], the Commons had repeatedly to assert and claim their privileges. To this day the House of Commons does so at the beginning of every Parliament. The Speaker, echoing her predecessors under Elizabeth I, informs the House she has ` . . . in your name and on your behalf made claim by humble petition to Her Majesty, to all your ancient and undoubted rights and privileges, particularly to freedom of speech in debate, freedom from arrest, and freedom of access to Her Majesty wherever occasion may require, and that a most favourable construction may be placed upon all your proceedings'. The Lord Chancellor replies to the Speaker's petition that `Her Majesty most readily confirms all the rights and privileges which have ever been granted to or conferred upon the Commons, by Her Majesty or any of Her Royal Predecessors'.[57]

  7.  This ceremonial pronouncement has symbolic importance but little practical effect today. Of the particular privileges claimed, freedom of speech is protected by an Act of Parliament: the Bill of Rights 1689, article 9 of which is one of the pillars of the United Kingdom constitution. Freedom from arrest is founded on Parliament's paramount right to the attendance and service of its members. That privilege is of negligible practical importance now, but Parliament's underlying right to the attendance of members is the basis of a member's right, which is still exercised, not to answer a subpoena to appear before a court as a witness unless he chooses to do so. Freedom of access to Her Majesty comprises the corporate privilege of the House of Commons to present addresses to the Sovereign[58], and the request for favourable construction is a formal courtesy.

  8.  Parliamentary privilege in its present form cannot be understood fully without regard to its historic origins and to constitutional developments over the last 400 years. These origins are well documented and readily accessible.[59] In the phrase of the report of the Australian select committee on parliamentary privilege (1984), the privileges of Parliament are `a mirror of the times when they were gained'.[60] Freedom from arrest for seditious libel, for example, was needed because in past centuries arrest was frequently the consequence of the unsuccessful assertion of freedom of speech.

  9.  Tradition still plays a significant part in the way Parliament does its job, in the powers it exercises and in its constitutional relationship with the Crown and the courts. Much of the strength of parliamentary privilege, not least the extent to which it is widely recognised and accepted, lies in its antiquity; the same is true of its weaknesses, in particular the obscurity and obsolescence of certain areas of privilege.

  10.  However, in order to present difficult and important issues as clearly as possible, we decided to keep references to the historic origins of parliamentary privilege to a minimum in this report. While the importance of tradition and continuity and symbolism has been borne in mind, our primary task has been to review parliamentary privilege in the light of current social and political conditions.

The principal privileges

  11.  Parliamentary privilege is, in its detail, a complex, technical and somewhat arcane subject. This is partly because of its historic origins and partly because of the multifarious functions of Parliament. Parliament is a legislative and deliberative assembly. Its main constitutional role is to enact the law and, in the case of the House of Commons, to grant supply (that is, make financial provision for the expenses of government). Parliament is also `the grand inquest of the nation'[61]: it is the forum where any grievance may be aired, however small or great. It is the place where the government is called to account by representatives of the whole nation. John Stuart Mill described one task of the legislature as `to watch and control the government: to throw the light of publicity on its acts'.[62] Ministers can be required to explain to Parliament what is done by them in their capacity as ministers or by their departments, so that members of Parliament can, where necessary, criticise the way public affairs are being administered and public money is being spent.[63] So Parliament must be able to consider any matter it chooses and, principally through its committees, investigate any matter. If there is a national emergency it is only through Parliament that effective action can be taken. The two Houses need sufficient power and authority both to carry out their everyday business and, occasionally, to deal with extraordinary and extreme situations.

  12.   Freedom of speech is central to Parliament's role. Members must be able to speak and criticise without fear of penalty. This is fundamental to the effective working of Parliament, and is achieved by the primary parliamentary privilege: the absolute protection of `proceedings in Parliament' guaranteed by article 9 of the Bill of Rights 1689. Members are not exposed to any civil or criminal liabilities in respect of what they say or do in the course of proceedings in Parliament. There is no comprehensive definition of the term proceedings in Parliament, although it has often been recommended there should be.[64] Proceedings are broadly interpreted to mean what is said or done in the formal proceedings of either House or the committees of either House, together with conversations, letters and other documentation directly connected with those proceedings.

  13.  The other main component of parliamentary privilege is still called by the antiquated name of `exclusive cognisance' (or `exclusive jurisdiction'). Parliament must have sole control over all aspects of its own affairs: to determine for itself what the procedures shall be, whether there has been a breach of its procedures and what then should happen. This privilege is also of fundamental importance. Indeed, acceptance by the executive and the courts of law that Parliament has the right to make its own rules, and has unquestioned authority over the procedures it employs as legislator, is of scarcely less importance than the right to freedom of speech. Both rights are essential elements in parliamentary independence.

  14.  Parliament's right to regulate its own affairs includes the power to discipline its own members for misconduct and, further, power to punish anyone, whether a member or not, for behaviour interfering substantially with the proper conduct of parliamentary business. Such interference is known as contempt of Parliament. This falls within the penal jurisdiction exercised by each House to ensure it can carry out its constitutional functions properly and that its members and officers are not obstructed or impeded, for example by threats or bribes. The sanctions available are reprimand, imprisonment for the remainder of the session and, possibly in the House of Lords[65] but probably not in the House of Commons,[66] a fine of unlimited amount. Even in the House of Lords the power to impose a fine has not been used in modern times. Members of the House of Commons are also liable to suspension for any period up to the remainder of the Parliament (though there is no modern case of suspension for anything like this length). Members so suspended usually forfeit their salaries for the period of their suspension.[67] Members of the House of Commons can be expelled, although it is over 50 years since the power of expulsion was last used.[68]

  15.  Another aspect of Parliament's right to regulate its own internal affairs concerns the application of legislation to activities taking place within the Houses of Parliament. In 1934 the courts decided, in the A P Herbert case[69], that the sale of alcohol in the precincts of the House of Commons without a justices' licence was a matter relating to the internal affairs of the House and that no court had power to interfere. Since then, Acts of Parliament have been taken not to apply within the precincts of either House in the absence of express provision that they should apply. Among the legislation taken not to apply are the Health and Safety at Work etc. Act 1974 and the Data Protection Acts 1984 and 1998. In practice Parliament voluntarily abides by some of these statutory provisions[70].

  16.  There are other elements of privilege, which are mainly historical. Freedom from arrest has little application today. Privilege of peerage, which is distinct from parliamentary privilege, still exists although the occasions for its exercise have diminished into obscurity since a peer's right of trial by his peers was abolished in 1948. Even more archaic is impeachment, which has long been in disuse.[71] The 1967 House of Commons select committee on parliamentary privilege recommended that the right to impeach should be formally abandoned and legislation should be introduced for that purpose.[72] The circumstances in which impeachment has taken place are now so remote from the present that the procedure may be considered obsolete.

Changes in parliamentary privilege

  17.  Although of ancient origin, parliamentary privilege is not static or immutable. Some of the privileges once asserted by Parliament have lapsed and others have been modified over the years. In general, as the power and authority of Parliament became secure, Parliament became less concerned to maintain a claim to privileges that were not necessary for the due execution of its powers. As long ago as 1704 the House of Lords communicated a resolution to the House of Commons, to which the latter assented, that `neither House of Parliament hath any power, by any vote or declaration, to create to themselves any new privilege that is not warranted by the known laws and customs of Parliament'.[73] Although this decision has never been embodied in a statute, it is now generally accepted that no new privilege can be created except by legislation.

  18.  A valued privilege was the immunity of members from being impleaded, which meant that no civil action could be maintained against them. This right was progressively removed in a series of seventeenth and eighteenth century statutes and was virtually abolished by the Parliamentary Privilege Act 1770.[74] The nineteenth century House of Commons was far less ready than its eighteenth century predecessors to claim privilege on dubious grounds. For example, in 1831 the Commons committee of privileges, reviewing conflicting precedents, concluded it was now `established generally that privilege is not claimable for any indictable offence'.[75] More recently, in 1971, the House waived, though it did not wholly abandon, its long-maintained claim to forbid the publication of its debates and proceedings.[76]

  19.  A significant nineteenth century modification of privilege related to the treatment of elections. For many years the right of the House itself to determine disputed elections was considered an important Commons privilege. Dealing with issues involving corruption and electoral sharp practice proved too much for partisan instincts. After a series of statutes attempted to create a fair and manageable procedure under parliamentary auspices, jurisdiction was transferred almost wholly to the courts in 1868.[77] Since then election disputes have caused little difficulty or controversy.

  20.  Over the last century or more the House of Lords has seldom been troubled by complaints of breach of privilege. This has not been true of the House of Commons, where even in the present century there have been frequent complaints of breach of privilege, meaning contempts, some of which appear in retrospect to have been trivial and unworthy. It took the House ten years formally to accept the advice of the 1967 committee that it should be less sensitive in reacting to alleged contempts. In 1977 the House decided:

`its penal jurisdiction should be exercised (a) in any event as sparingly as possible, and (b) only when the House is satisfied that to exercise it is essential in order to provide reasonable protection for the House, its members or its officers, from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions'.[78]

  21.  This has markedly reduced the number of occasions when the House or a committee of privileges has considered such matters. In practice the House of Commons now treats as a contempt only serious breaches of rules by its own members or obstruction by others which it believes interfere seriously with the work of the House or its members. Actions constituting a prima facie contempt nevertheless still cover a wide area: from leaking a draft report of a select committee, or serving a subpoena on a member within the precincts of the House, to intimidating a witness before a committee or bribing a member.

  22.  In the past the House of Commons frequently, and the House of Lords less often, exercised their power to commit non-members for conduct perceived as an offence and adjudged as a contempt. Offenders were committed either to the custody of Black Rod or the Serjeant-at-Arms or directly to one of Her Majesty's prisons. By the mid-nineteenth century both Parliament and the courts were becoming uneasy about the exercise of this power without any procedure for review. The power of committal has not been exercised by the House of Lords since early in the nineteenth century and not by the House of Commons since 1880[79] (although the latter has contemplated using the power on several occasions since then).

The relationship of Parliament and courts of law

  23.  The legislature and the judiciary are, in their respective spheres, estates of the realm of equal status. A recurring theme throughout this report is the relationship between these two estates. Parliamentary privilege is founded on the principle that the proper conduct of parliamentary business without fear or favour, let or hindrance, requires that Parliament shall be answerable for the conduct of its affairs to the public as a whole (and specifically in the case of the Commons to the electorate). It must be free from, and protected from, outside intervention. Parliament is sovereign over its own business.[80] . The courts have a legal and constitutional duty to protect freedom of speech and Parliament's recognised rights and immunities, but they do not have power to regulate and control how Parliament shall conduct its business. Parliament in turn is careful not to interfere with the way the judges discharge their judicial responsibilities. Parliament enacts the law, but the courts are then left to interpret and administer it without interference by Parliament.

  24.  This important constitutional principle of the separation of powers inevitably gives rise to a question of boundaries: identifying the areas where the ordinary law of the land prevails, enforceable by the courts, and the no-go areas where the courts must step back and the special rights and immunities of parliamentary privilege prevail. In the past there were disputes between the courts and Parliament. There was confrontation and tension. This is no longer so. Currently there is a large measure of agreement between Parliament and the courts about the areas where Parliament reigns supreme. For more than a century the courts have carefully avoided the dangers inherent in disagreements with Parliament. In 1974 the courts refused to entertain a claim that a private Act of Parliament had been procured by fraud on the part of the promoter of the bill. This was held to be a matter for investigation by Parliament alone.[81] Lord Simon of Glaisdale said:

`It is well known that in the past there have been dangerous strains between the law courts and Parliament—dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other.'

  25.  Mutual respect is important, but there are still grey areas where the position of the boundary is unclear. One instance concerns the meaning of `proceedings in Parliament' in article 9 of the Bill of Rights. If a member of the House of Commons, on the prompting of a constituent, asks a minister a formal question in Parliament regarding a departmental decision or proposed legislation, he is immune from defamation proceedings in court. But what if the member writes privately to the minister? Is the letter a proceeding in Parliament?

  26.  There may be good sense sometimes in leaving well alone when problems have not arisen in practice. Seeking to clarify and define boundaries may stir up disputes where currently none exists. But Parliament is not always well advised to adopt a passive stance. There is merit, in the particularly important areas of parliamentary privilege, in making the boundaries reasonably clear before difficulties arise. Nowadays people are increasingly vigorous in their efforts to obtain redress for perceived wrongs. In their court cases they press expansively in areas where the limits of the courts' jurisdiction are not clear. Faced with demarcation problems in this jurisdictional no-man's land, the judges perforce must determine the position of the boundary. If Parliament does not act, the courts may find themselves compelled to do so. Hence some of the recent court decisions mentioned in this report.

The need for a review

  27.  There are particular reasons for a review at this time. First, it is over 30 years since the last fundamental review took place in 1966-67, and that covered the House of Commons only. As circumstances change, it is important that Parliament periodically reconsiders the scope of its privileges and their exercise. If unnecessary or archaic rights are retained, or if implementation of those rights seems arbitrary or unfair, Parliament may become discredited and its effectiveness diminished.

  28.  Secondly, in some recent judgments the courts have reinterpreted parliamentary privilege, especially in regard to freedom of speech. Two cases are notably important. Following the decision of the House of Lords in Pepper v Hart[82], the examination by the courts of what was said in Parliament to assist in the interpretation of statute law is no longer considered a breach of article 9 of the Bill of Rights. In Prebble v Television New Zealand [83] the judicial committee of the Privy Council discussed the scope of the privilege in the light of Commonwealth case law, and their detailed judgment is bound to have a strong influence on future judicial interpretation in the United Kingdom. Further, in recent years the courts have greatly developed their supervision of all manner of administrative decisions, including governmental decisions, by the procedure known as judicial review. This has inevitably led to increasing court examination and critical scrutiny of ministerial statements, those made within Parliament as well as those made outside it.

  29.  Thirdly, the recently enacted Human Rights Act 1998 made it unlawful for a public authority to act in a way incompatible with a right guaranteed by the European Convention on Human Rights.[84] Parliament is not a public authority for this purpose. This exclusion makes it particularly important for Parliament to review its own procedures to check whether they attain the standards now imposed by Parliament on others. There is an additional reason here also. Proceedings in Parliament are not beyond the reach of the European Court of Human Rights. The jurisprudence of that court has developed apace. In one case (Demicoli v Malta[85]) the Malta House of Representatives pursued a claim for breach of privilege against a journalist. The Court decided that the procedures adopted by the House of Representatives violated the journalist's right under the European Convention of Human Rights to have a fair hearing by an independent and impartial tribunal.

  30.  Next, Parliament has itself modified its privilege of free speech significantly by providing in section 13 of the Defamation Act 1996 that members and other persons may waive parliamentary privilege, so far as it relates to them, in actions for defamation. Section 13 has attracted much controversy.[86]

  31.  Finally, and most recently, the government has put forward proposals for a general reform of the corruption statutes. The proposals include clarifying the law relating to bribery of members of both Houses of Parliament in their parliamentary capacity. These proposals have important implications for parliamentary privilege, calling for thorough examination before any legislation is introduced.[87]

The Joint Committee's approach

  32.  The Joint Committee has considered all these developments. Our examination of parliamentary privilege also concentrated on fundamental issues: do the law and practice of parliamentary privilege meet present and future needs? do the existing procedures satisfy contemporary standards of fairness and public accountability? A modern code of parliamentary privilege should be principled and coherent. The overall guiding principle is that the proper functioning of Parliament lies at the heart of a healthy parliamentary democracy. It is in the interests of the nation as a whole that the two Houses of Parliament should have the rights and immunities they need in order to function properly. But the protection afforded by privilege should be no more than Parliament needs to carry out its functions effectively and safeguard its constitutional position. Appropriate procedures should exist to prevent abuse and ensure fairness. Thus the thread running through this report involves matching parliamentary privilege to the current requirements of Parliament and present-day standards of fairness and reasonableness. We conducted our review on this basis.

  33.  It is appropriate that a Joint Committee of Lords and Commons should undertake this review. Although the perception of privilege can be markedly different in the two Houses, the privileges which exist are substantially those of Parliament as a whole. As Sir Thomas Erskine May himself noted:

`Each House, as a constituent part of Parliament, exercises its own privileges independently of the other; but they are enjoyed not by any separate right peculiar to each; but solely by virtue of the law and custom of Parliament. There are rights or powers peculiar to each . . . but all privileges, properly so-called, appertain equally to both Houses. These are declared and expounded by each House; and breaches of privilege are adjudged and censured by each, but still it is the law of Parliament that is thus administered'.[88]

  34.  Each House has the right to adopt the procedures it considers best suited to the conduct of its business. These procedures are generally outside the scope of our inquiry, unless they have a direct impact on non-members, such as the procedures relating to self-regulation of freedom of speech[89], the right to summon and examine witnesses[90], and the exercise of each House's penal powers over non-members[91]. Also outside the scope of this report are matters relating to elections, succession to peerages (although privilege of peerage is included), and the Commons privileges in relation to the Lords in financial matters. Further, this report is prepared on the basis of the present constitution of the House of Lords. If the arrangements for the second chamber should be revised, certain matters, such as disciplinary powers and procedures, may need to be reconsidered. The principles to be applied would remain the same.

  35.  Nor does this report deal with the rights and powers of the Scottish Parliament or the Welsh or Northern Ireland Assemblies. Unlike earlier parliamentary institutions which the United Kingdom established by statute[92], the new devolved institutions do not derive their rights and powers by reference to privileges which exist at Westminster. Instead, in each case they are set out in detail in the relevant legislation.[93]

47   1 HC Deb 9 June 1997, c 319; HL Deb 9 June 1997, WA55. Back

48   2 The Parliamentarian is a permanent official appointed by the Speaker who advises him and members on parliamentary procedure and precedents. Like the Clerks of the two Houses at Westminster, he is non-partisan. Back

49   3 References in this report to the written evidence in volumes 2 and 3 are indicated by the volume and page numbers; references to the oral evidence in volume 2 are indicated by `Q' followed by the question number. Back

50   4 JAG Griffith and Michael Ryle Parliament-Functions, Practice and Procedures (1989), p 85. Back

51   5 Hatsell, Precedents of Proceedings in the House of Commons (1818), vol 1, p 2. Back

52   6 Erskine May, 22nd edition (1997) pp 72-78, and the authorities cited therein; GR Elton, The Parliament of England 1559-1581, (1986) p 333; Cassidy v Steuart (1841) 133 ER 817. Back

53   7 e.g.D'Ewes, Journals, 16-17. Back

54   8 R v Paty (Case of the Men of Aylesbury) (1704) 2 Lord Raym 1105, 91 ER 817. Back

55   9 See Philip A. Joseph, Constitutional and Administrative Law in New Zealand (1993), p 353. Back

56   Erskine May. 1st ed (1844), p 44. Erskine May's reference is to William Hakewill, Modus Tenendi Parliamentum, `All the privileges which do belong to those of the Commons House of Parliament a fortiori do appertain to all the Lords of the Upper House; for their persons are not only free from arrest during the Parliament, but during their lives; nevertheless the original cause is by reason they have place and voice in Parliament' (1671 ed p 81). Back

57   e.g. CJ (1997-98) 2; HC Deb 294 (8 May 1997), c 13. Back

58   e.g. Addresses were formally presented to the Queen in 1988 to mark the tercentenary of the revolutions of 1688-89 and of the Bill of Rights and the (Scottish) Claim of Right: LJ (1987-88) 763, 809; CJ (1987-88) 639, 677. Addresses are more frequently presented, on the order of either House, by particular members: Privy Counsellors, members of Her Majesty's Household, or members individually nominated (e.g. Queen's Speech, CJ (1997-98) 31, LJ (1997-98) 44). Back

59   See Erskine May, 22nd ed (1997), especially chapters 5 to 11. Back

60   Final Report of the Joint Select Committee on Parliamentary Privilege: Parliamentary Paper No. 219/1984; paragraph 3.9. Back

61   See Phillips Reg. Necess. 438 (1671), T Hale Acc. New. Invent. p cxiv (1691) HC Deb vol 102 (6 Feb 1902) col 550 (Sir. H Campbell-Bannerman) applied to the Commons; see also Blackstone, Commentaries, IV, xix, 256 (1769) (OED). Back

62   Considerations on Representative Government, (1861) p 104. Back

63   cf McHugh J in the recent decision of the High Court of Australia on the power of the House to call upon a minister to produce official papers: Egan v Willis [1998] HCA 71 (19 November 1998). Back

64   Select Committee on Procedure, First Report, HC (1988-89) 290 Appendix 7, Committee of Privileges HC (1986-87) 365 p xi and Appendix 12 (p 49); HC (1976-77) 417 paragraphs 7 and 9, Select Committee on Sound Broadcasting HC (1982-83) 270 paragraph 18; Joint Committee on Proceedings in Parliament, Second Report HL (1969-70) 109, HC (1969-70) 261, especially paragraphs 25-30; Select Committee on Parliamentary Privilege HC (1967-68) 34, paragraphs 80-87, 91 and 92; Report of the Faulks Committee on Defamation, Cmnd 5090, paragraph 203. Back

65   The Clerk of the Parliaments expressed doubts as to whether this power could now be exercised: `the power to imprison|has not been exercised this century and the power to fine has not been exercised for nearly 200 years. In these circumstances it might be questionable how far in practice either penalty could be invoked today.': Vol 2, p 58. Back

66   Erskine May, 22nd ed (1997), p 138. Back

67   Votes and Proceedings 30 October 1997: S.O.No.45A now provides that members suspended forfeit their salaries for the duration of their suspension (Votes and Proceedings 4 June 1998). In the Commons a procedure for suspending members for particular offences relating to misconduct in the House has been laid down by standing order since 1880. According to the Clerk of the Parliaments `the Lords have never purported to suspend a member and a committee of the House concluded in 1956 that it had no power to do so': memorandum, vol 2, p 58, fn 20. The reference is to the Report of the Select Committee on the Powers of the House in Relation to the Attendance of its Members, HL (1955-56) 66; but see paragraphs 271-272 below. Back

68   CJ (1954-55) 25; (1947-48) 22. See paragraph 276 below. Back

69   R v Graham-Campbell, ex parte Herbert [1935] 1 KB 594. Back

70   QQ 238-249; more generally, see memorandum of the Clerk of the Parliaments, vol 2, p 57, paragraph 12, and of Geoffrey Lock, vol 3, p 34. See also paragraphs 249-251 below. Back

71   Under this ancient procedure, all persons, whether peers or commoners, may be prosecuted and tried by the two Houses for any crimes whatever. The House of Commons determines when an impeachment should be instituted. A member, in his place, first charges the accused of high treason, or of certain crimes and misdemeanours. After supporting his charge with proofs the member moves for impeachment. If the accusation is found on examination by the House to have sufficient grounds to justify further proceedings, the motion is put to the House. If agreed, a member (or members) are ordered by the House to go to the bar of the House of Lords. There, in the name of the House of Commons and of all the commons of the United Kingdom, the member impeaches the accused person. A Commons committee is then appointed to draw up articles of impeachment which are debated. When agreed they are ingrossed and delivered to the Lords. The Lords obtain written answers from the accused which are communicated to the Commons. The Commons may then communicate a reply to the Lords. If the accused is a peer, he is attached by order of that House. If a commoner, he is arrested by the Commons and delivered to Black Rod. The Lords may release the accused on bail. The Commons appoints `managers' for the trial to prepare the evidence; but it is the Lords that summons witnesses. The accused may have summonses issued for the attendance of witnesses on his behalf, and is entitled to defence by counsel. When the case, including examination and re-examination, is concluded, the Lord High Steward puts to each peer, (beginning with the junior baron) the question on the first of the charges: then to each peer the question on the second charge and so on. If found guilty, judgment is not pronounced unless and until demanded by the Commons (which may, at this stage, pardon the accused). An impeachment may continue from session to session, or over a dissolution. Under the Act of Settlement the sovereign has no right of pardon. The last impeachment was in 1805 (Lord Melville). The procedure has not been widely adopted in the Commonwealth. However, it survives, in a somewhat different form, in the constitution of the United States of America. The first (and other early) editions of Erskine May discuss the procedure more fully. See Hatsell, Precedents of Proceedings in the House of Commons (1818), vol 4 and Hallam Constitutional History of England (any of the later 19th century editions). The procedure adopted in the trial of Warren Hastings is set out in `Speeches of the Managers and Counsel in the Trial of Warren Hastings 1788-92' ed. Bond (1859), vol 2. Back

72   HC (1967-68) 34, paragraph 15. The recommendation was repeated in the Third Report from the Committee of Privileges, HC (1976-77) 417, paragraph 16. Back

73   CJ (1702-04) 555, 560. Back

74   In the later seventeenth century suits were stayed by a letter from the Speaker to the judge, sometimes by a warrant to the party commencing the suit, who might be brought by the Serjeant to the bar of the House. According to Erskine May, `The privilege insisted upon in this manner continued until the end of the seventeenth century, when it underwent a considerable limitation by statute. The Act 12 & 13 Will III c 3 enacted that any person might commence and prosecute actions against any peer, or member of Parliament, or their servants, or others entitled to privilege, in the court at Westminster, and the duchy court of Lancaster, immediately after a dissolution or prorogation, until the next meeting of Parliament, and during any adjournment for more than fourteen days; and that during such times the court might give judgment and award execution. Soon afterwards it was enacted by 2 & 3 Anne c 12 that no action, suit, process, proceeding, judgment, or execution, against privileged persons, employed in the revenue, or any office of public trust, for any forfeiture, penalty &c, should be stayed or delayed by or under colour or pretence of privilege of Parliament. The Act of William III had extended only to the principal courts of law and equity: but by the Parliamentary Privileges Act 1737 (11 Geo II c 24) all actions in relation to real and personal property were allowed to be commenced and prosecuted in the recess and during adjournments of more than fourteen days, in any court of record. Still more important limitations of the privilege were effected by the Parliamentary Privilege Act 1770, whereby any person may at any time commence and prosecute an action or suit in any court of law against peers or members of Parliament and their servants; and no such action or process shall be interfered with under any privilege of Parliament. It is also, however, enacted that nothing in the Act should subject the person of any member of Parliament to arrest or imprisonment.' 12th ed (1917), p 110. See too paragraphs 319-323 below. Back

75   CJ (1830-31) vol 2, 701. Back

76   CJ (1970-71) 548-549. See also paragraph 355 below. Back

77   This procedure is now contained in Part III of the Representation of the People Act 1983 (c 2). Back

78   CJ (1977-78) 170, agreeing to paragraph 4 of the Third Report from the Committee of Privileges, HC (1976-77) 417. Back

79   See paragraphs 271, 300 below. Back

80   JAG Griffith and Michael Ryle Parliament-Functions, Practice and Procedures (1989), p 88. Back

81   Pickin v British Railways Board [1974] AC 765. Back

82   [1993] AC 593. For details, see paragraphs 43-45 and 60 below. Back

83   [1995] 1 AC 321. For details, see paragraph 65 below. Back

84   The Human Rights Act 1998 gave effect in United Kingdom domestic law to rights and freedoms guaranteed under the European Convention on Human Rights. Back

85   (1992) 14 EHRR 47. See below, paragraph 283. Back

86   See paragraphs 60-82 below, especially paragraphs 67-69. Back

87   See chapter 3 below, especially paragraphs 135-166. Back

88   Parliamentary Practice, 1st ed (1844), p 47. Back

89   See chapter 4 below. Back

90   See chapter 5, paragraphs 234-239. Back

91   See chapter 6, paragraphs 300-314. Back

92   The memoranda from the Australian and Canadian legislatures printed in vol 3 describe the extent to which each of them derives its privileges from the Westminster Parliament. The evidence of the presiding officer and Clerk of the Legislative Council of Western Australia describes (vol 2, pp 88-107; QQ312-316) the very direct way in which changes to the law relating to privilege in the United Kingdom affects that Parliament. In Ireland, the Irish Parliament which came to an end with the Act of Union 1800 had many of the privileges of the Westminster Parliament. Section 18 of the Government of Ireland Act 1920, section 26 of the Northern Ireland Constitution Act 1973 and schedule 2 to the Northern Ireland Act 1982 defined the privileges of each of the parliamentary institutions thereby established by reference to those of the House of Commons at Westminster. Back

93   See Scotland Act 1998 (c 46) especially sections 23-26 (witnesses and documents), 41 (defamatory statements), 42 (contempt of court), 43 (corrupt practices); Government of Wales Act 1998 (c 38) especially sections 74-75 (evidence and documents relating to public bodies). 77 (defamation), 78 (contempt of court), 79 (corrupt practices); Northern Ireland Act 1998 (c 47) especially sections 44 (power to call for witnesses and documents), 45 (witnesses and documents: offences), 46 (witnesses: oaths), 50 (privilege) and 79-83 (judicial scrutiny). Freedom of Speech and Article 9 of the Bill of Rights Back

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Prepared 9 April 1999