CHAPTER 1: THE NEED FOR A REVIEW
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 Parliamentdangerous
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
|