CHAPTER 2: FREEDOM OF SPEECH AND ARTICLE 9 OF THE
BILL OF RIGHTS
Article 9 of the Bill of Rights 1689
36. A primary function of Parliament is
to debate and pass resolutions freely on subjects of its own choosing.
This is a cornerstone of parliamentary democracy. The performance
of this function is secured by the members of each House having
the right to say what they will (freedom of speech) and discuss
what they will (freedom of debate). These freedoms, the single
most important parliamentary privilege, are enshrined in article
9 of the Bill of Rights 1689. Using modern spelling, article 9
provided:
`That the freedom of speech and debates or proceedings
in Parliament ought not to be impeached or questioned in any court
or place out of Parliament.'
In this article the meaning of `impeach' is not clear:
possible meanings include hinder, challenge and censure.
37. Over the years this article has been
the subject of many legal decisions.[94]
Even so, uncertainty remains on two basic points: what is covered
by `proceedings in Parliament', and what is meant by `impeached
or questioned in any . . . place out of Parliament'. A definitive
history of the origins of article 9 has yet to be written[95],
but one thing is reasonably clear: the principal purpose was to
affirm the House's right to initiate business of its own and to
protect members from being brought before the courts by the Crown
and accused of seditious libel. Article 9 also reasserted the
long established claim not to be answerable before any court for
words spoken in Parliament.[96]
The modern interpretation is now well established: that article
9 and the constitutional principle it encapsulates protect members
of both Houses from being subjected to any penalty, civil or criminal,
in any court or tribunal for what they have said in the course
of proceedings in Parliament.[97]
Legal immunity
38. This immunity is wide. Statements made
in Parliament may not even be used to support a cause of action
arising out of Parliament, as where a plaintiff suing a member
for an alleged libel on television was not permitted to rely on
statements made by the member in the House of Commons as proof
of malice.[98]
The immunity is also absolute: it is not excluded by the presence
of malice or fraudulent purpose. Article 9 protects the member
who knows what he is saying is untrue as much as the member who
acts honestly and responsibly. Nor is the protection confined
to members. Article 9 applies to officers of Parliament and non-members
who participate in proceedings in Parliament, such as witnesses
giving evidence to a committee of one of the Houses.[99]
In more precise legal language, it protects a person from legal
liability for words spoken or things done in the course of, or
for the purposes of or incidental to, any proceedings in Parliament.[100]
39. A comparable principle exists in court
proceedings. Statements made by a judge or advocate or witness
in the course of court proceedings enjoy absolute privilege at
common law against claims for defamation. The rationale in the
two cases is the same. The public interest in the freedom of speech
in the proceedings, whether parliamentary or judicial, is of a
high order. It is not to be imperilled by the prospect of subsequent
inquiry into the state of mind of those who participate in the
proceedings even though the price is that a person may be defamed
unjustly and left without a remedy.
40. It follows we do not agree with those
who have suggested that members of Parliament do not need any
greater protection against civil actions than the qualified privilege
enjoyed by members of elected bodies in local government.[101]
Unlike members of Parliament, local councillors are liable in
defamation if they speak maliciously. We consider it a matter
of the utmost importance that there should be a national public
forum where all manner of persons, irrespective of their power
or wealth, can be criticised. Members should not be exposed to
the risk of being brought before the courts to defend what they
said in Parliament. Abuse of parliamentary freedom of speech is
a matter for internal self-regulation by Parliament, not a matter
for investigation and regulation by the courts. The legal immunity
principle is as important today as ever. The courts have a duty
not to erode this essential constitutional principle.
41. Thus far there is no difficulty or uncertainty.
Nor is there any difficulty in the official report of parliamentary
debates (Hansard)[102]
being used in court to establish what was said and done in Parliament
as a matter of history: for example, that a particular member
made a speech as reported on a particular day. But this leaves
open the question whether the article 9 prohibition on the `questioning'
of parliamentary proceedings in court does, or should, extend
more widely than to afford legal immunity. Should article 9 preclude
a court from relying on a statement made in Parliament even when
this would not involve impugning the motives or reliability of
the member who made the statement and would not result in the
member being exposed to any civil or criminal liability? Another
issue concerns the interaction of article 9 and court proceedings
for the judicial review of ministerial decisions. These issues,
touching and concerning parliamentary freedom of speech, are of
basic importance. They are also complex, and examining them calls
for close analysis.
`Ought not to be questioned': recent developments
42. As a prelude, a practical point should
be noted. The use of reports of debates in court proceedings was
facilitated by the removal of a formal obstacle comparatively
recently. From at least 1818 the practice in the House of Commons
was that its debates and proceedings could not be referred to
in court proceedings without the leave of the House.[103]
Petitions for leave were rarely refused, and in order to save
parliamentary time the House decided in 1981 to discontinue the
need for such leave.[104]
When doing so the House expressly re-affirmed the status of proceedings
in Parliament confirmed by article 9 of the Bill of Rights. The
practice of requiring leave to refer to proceedings was never
followed in the House of Lords. One effect of the 1981 change
has been that the use of Hansard in court proceedings has
increased. The oft quoted statement of Blackstone in his celebrated
eighteenth century Commentaries[105]
that `whatever matter arises concerning either House of Parliament,
ought to be examined, discussed, and adjudged in that House to
which it relates, and not elsewhere' is now accepted as being
too wide and sweeping.
Pepper v Hart
43. One of the uses the courts now make
of parliamentary proceedings is as an aid when interpreting Acts
of Parliament. This follows from the decision in Pepper v Hart.[106]
The case concerned the proper meaning of a taxation provision.
Mr Hart was a schoolmaster at a fee-paying school which operated
a concessionary fee scheme enabling members of staff to have their
sons educated at the school at reduced fees if surplus places
were available. Tax was payable by Mr Hart on `the cash equivalent
of the benefit', but the statutory definition of that expression
was ambiguous. During the committee stage of the Finance Bill
in the House of Commons the financial secretary to the Treasury
indicated that the basis of taxation for certain benefits in kind
would remain the cost to the employer of providing the service.[107]
When pressed he interpreted this as being, in effect, the extra
cost caused by the provision of the benefit in question. In Mr
Hart's case the actual additional cost to the employer was negligible,
because boys educated through the scheme were filling places which
otherwise would have been empty. However, relying on the wording
in the Act, the Inland Revenue had taxed a proportion of the total
cost of providing the services.
44. The House of Lords in its judicial capacity
decided that clear statements made in Parliament concerning the
purpose of legislation in course of enactment may be used by the
court as a guide to the interpretation of ambiguous statutory
provisions. The Lords held such use of statements did not infringe
article 9 because it did not amount to questioning a proceeding
in Parliament. Far from questioning the independence of Parliament
and its debates, the courts would be giving effect to what was
said and done there. Lord Browne-Wilkinson said:[108]
`I trust when the House of Commons comes to consider
the decision in this case, it will be appreciated that there is
no desire to impeach its privileges in any way. Your Lordships
are motivated by a desire to carry out the intentions of Parliament
in enacting legislation and have no intention or desire to question
the processes by which such legislation was enacted or of criticising
anything said by anyone in Parliament in the course of enacting
it. The purpose is to give effect to, not thwart, the intentions
of Parliament.'
A similar principle had already been adopted in Australia
and New Zealand[109]
before the English decision in Pepper v Hart. It had also
been adopted earlier in England, in Pickstone v Freemans[110],
in the context of subordinate legislation, but in that case the
admissibility of the parliamentary material seems not to have
been questioned.
45. Parliament must be vigilant in protecting
its freedom of speech. Any departure by the courts from hitherto
accepted practice must be scrutinised thoroughly to see whether,
as a matter of principle and practice, it is justifiable.
Applying that test the Joint Committee is of the view that the
development outlined above in Pepper v Hart is unobjectionable.
This use of parliamentary proceedings is benign. The Joint Committee
recommends that Parliament should not disturb the decision
in Pepper v Hart. However, it is important that this specific
court decision should not lead to any general weakening of the
prohibition contained in article 9.
Judicial review of ministerial decisions
46. A second and perhaps more important
question concerns the use now made of parliamentary proceedings
in court proceedings brought for the judicial review of ministerial
decisions. Judicial review is the court procedure whereby the
High Court reviews the lawfulness of administrative decisions,
including ministers' decisions, as well as decisions of lower
courts and tribunals. Ministers' powers are limited, and in judicial
review proceedings relating to a ministerial decision the court
is asked to decide whether the minister acted outside his powers.
He might have done so, for instance, by failing to take into account
some important matter he should have had in mind or by misdirecting
himself on the purpose for which a particular statutory power
could be used. The court does not substitute its own discretion
for that of the minister. If the minister acted within his powers
his decision will stand. If he acted outside his powers his decision
was unlawful and the court may quash it. It will then be for the
minister to consider the matter afresh.
47. In the last 30 years the courts have
developed enormously the ambit of judicial review. Also, since
1979, Parliament has increased its scrutiny of decisions of ministers
and government departments through the operation of select departmental
and scrutiny committees. Both developments derived from the scope
and complexity of modern government and the extent to which its
policies, decisions and administrative actions impinge upon the
citizen. Parliament makes the law and, politically, calls the
government to account for its actions. But the government is also
subject to the law and is therefore answerable to the courts if
it exceeds or misapplies its powers. If Parliament and the courts
respect and support each other's essential functions, they will
provide a formidable safeguard against the abuse of power by the
executive. Professor Anthony Bradley, whose evidence mainly supported
the traditional privileges and powers of Parliament, was here
a little reproving:
`The existence of an effective system of administrative
law does not conflict with the role of Parliament . . . Because
a central feature of the British system of government is the responsibility
of ministers to Parliament, the same executive decision may give
rise to review on legal grounds by the courts, to debate and questioning
on political grounds by the House and to detailed criticism and
scrutiny by parliamentary committees. Parliamentarians who are
sensitive to the public law role of the courts may find it difficult
to accept that judicial review and ministerial responsibility
serve complementary purposes and are not mutually exclusive, and
that a controversial political decision may give rise both to
parliamentary debate and judicial review'.[111]
48. Article 9 becomes germane when judicial
review proceedings relate to a ministerial decision announced,
or subsequently explained, in the House. Typically, in the court
proceedings the applicant quotes an extract from the official
report and then sets out his grounds for challenging the lawfulness
of the decision in the light of the reasons given by the minister.
49. Use of Hansard in this way has
now occurred sufficiently often for the courts to regard it as
established practice. Some examples will suffice as illustrations.
In several cases[112]
challenges were made to the lawfulness of successive policy statements,
announced in Parliament, regarding changes in the system for the
parole of prisoners. In each case the court proceedings involved
scrutinising the ministerial decisions and the explanations given
by the minister in Parliament. In Brind (broadcasting restrictions
on terrorists)[113]
a ministerial statement in Parliament was used as evidence that
the minister had exercised his power properly. In the Pergau Dam
case[114]
evidence given by the minister and an official to committees of
the House of Commons was used in support of a successful claim
that the decision to grant aid for the construction of the Pergau
Dam in Malaysia did not accord with the enabling Act. In a criminal
injuries compensation case, the Home Secretary announced in Parliament
his decision not to bring into force the statutory compensation
scheme but instead to introduce a tariff-based scheme under prerogative
powers.[115]
In none of these cases does any argument seem to have been advanced,
by the government or anyone else, about the admissibility in evidence
or the use in court of the statements made in Parliament. Indeed,
the practice in court is for both the applicants and the government
to use the official reports of both Houses to indicate what is
the government's policy in a particular area.[116]
50. We believe Parliament should welcome
this recent development. The development represents a further
respect in which acts of the executive are subject to a proper
degree of control. It does not replace or lessen in any way ministerial
accountability to Parliament. It may reinforce it: by their nature
judicial review proceedings are seldom, if ever, subject to reporting
restrictions and their outcome may be used to pursue the political
debate. Both parliamentary scrutiny and judicial review have important
roles, separate and distinct, in a modern democratic society.
Parliament must retain the right to legislate and take political
decisions, but only the courts can set aside an unlawful ministerial
decision.
51. The contrary view would have bizarre
consequences. This may be why objection has never been taken in
court to the admissibility of this evidence. Challenges to the
legality of executive decisions could be hampered by ring-fencing
what ministers said in Parliament and excluding such statements
from the purview of the courts.[117]
Ministerial decisions announced in Parliament would be less readily
open to examination than other ministerial decisions. That would
be an ironic consequence of article 9. Intended to protect the
integrity of the legislature from the executive and the courts,
article 9 would become a source of protection for the executive
from the courts. We do not believe Parliament would wish this
to be so. Rather, when challenging a minister's decision an applicant
for judicial review should be as free to criticise the minister's
reasons expressed in Parliament as those stated elsewhere. An
applicant must be at liberty to use a statement made by a minister
in Parliament as evidence that the minister misdirected himself
or acted for an unauthorised purpose just as much as he can rely
on the contents of a departmental letter.
52. A claim that a minister acted in bad
faith would be rare, but the underlying principle should be the
same even in such an exceptional case. The applicant should be
entitled to point to ministerial statements and claim that the
minister misled Parliament, even deliberately, if there are good
grounds for believing this may be so and this is relevant to the
issues arising in the proceedings. It is difficult to see how
it could make sense for the courts to be permitted to look at
ministerial statements made in Parliament and infer that the minister
inadvertently misdirected himself and on that ground set aside
his decision, but not be allowed to adjudicate upon a claim that
the minister had erred more grievously by knowingly misusing a
power. Any question of a minister knowingly misleading the House
would also be a serious contempt of Parliament, and would have
grave parliamentary consequences.
53. A practical note should be added. Ministerial
statements in Parliament take several forms. They include prepared
statements, speeches during debates in the chamber or in committee,
written and oral answers to questions, replies to adjournment
debates and evidence to select committees. As a matter of principle
it is not possible to draw a distinction between these different
forms, and in practice the courts look at them all. Parliament
would expect the courts to make appropriate allowances for extempore
answers, and there is every indication they have done so and will
continue to do so.[118]
54. A cautionary warning must also be added
on a point of constitutional importance. Since a ministerial decision
may be debated in Parliament and also subjected to judicial review
proceedings in court, it is possible that parliamentary proceedings
and court proceedings regarding the same decision may take place
simultaneously. This occurred in 1993, on an occasion of political
sensitivity. On 20 July 1993 the House of Lords gave the politically
controversial European Communities (Amendment) Bill its third
reading. Meanwhile on 16 July Lord Rees-Mogg had applied to the
court for a declaration that the United Kingdom could not lawfully
ratify the treaty on European Union signed at Maastricht in February
1992, and for an order to quash the decision of the Foreign Secretary
to proceed to ratify the treaty.[119]
This was seen in parts of the House of Commons as an attempt
to influence a political debate by judicial means. The Speaker
rightly expressed the view that the House was entitled to expect
that when the case came on for hearing, the Bill of Rights would
be fully respected by all those appearing before the court.[120]
Clearly, there is scope here for abuse. The courts must be vigilant
to ensure that judicial processes are not used for political ends
in a manner which interferes with Parliament's conduct of its
business.
55. The Joint Committee recommends that
article 9 should not be interpreted as precluding the use of proceedings
in Parliament in court for the purpose of judicial review of governmental
decisions.
Other court proceedings and ministerial decisions
56. The appropriate method for challenging
in court the lawfulness of a ministerial decision is usually by
judicial review proceedings. Sometimes a ministerial decision
may affect rights of an individual whose protection lies in a
different form of court proceedings. An instance would be if a
minister were to make a statement in Parliament about an official
in his own department in terms that the official then wished to
use in support of a claim for constructive dismissal.[121]
57. Similar considerations apply here to
those discussed above regarding judicial review. The minister
is accountable to Parliament for his decision. His statement is
properly made in Parliament but it ought not, for that reason,
to be excluded from the evidence the court can examine when the
minister's decision is in issue in court proceedings. Unlike judicial
review, these court proceedings will be concerned with the effect
of a ministerial decision; for instance, whether the official
was correctly dismissed. This difference should not lead to any
difference in treatment so far as article 9 is concerned.
58. The Joint Committee does not know of
any proceedings where this point has actually arisen in court.
We are aware of one instance where an official wished to use such
a statement in proceedings before an industrial tribunal, but
decided not to go ahead.[122]
We expect that if the point were to arise in the course of proceedings,
the court or tribunal would be likely in practice to look at the
extract from Hansard. The contrary view, cloaking an executive
statement with parliamentary immunity, would be most unjust. We
believe Parliament would benefit by expressly accepting the principle
involved.
59. We recommend that the exception
of judicial review proceedings from the scope of article 9 should
apply also to other proceedings in which a government decision
is material.
Issues arising from section 13 of the Defamation
Act 1996
60. As already noted, Pepper v Hart
should be regarded as a benign, non-critical use of parliamentary
proceedings in court, and judicial review as an exceptional use
of them because of the intrusion of the executive element. A further
issue which arises is more general. It is whether article 9 should
be interpreted today as going beyond conferring absolute immunity
from legal liability. Should article 9 protect a speech made in
Parliament from critical examination in court even though this
would not expose the member to any legal liability?
61. The situation posed by this question
may arise in either the criminal or civil field. An example in
the field of criminal law would be the case of a member of Parliament
who defames an individual in the course of a debate in one of
the Houses. The individual, prevented by article 9 from suing
for defamation, takes matters into his own hands and assaults
the member.[123]
He is then prosecuted. In his defence or by way of mitigation
in the criminal proceedings, the assailant wishes to put forward
the defamatory statement and assert the member acted maliciously.
As the law stands this would be a breach of article 9. But the
accused should surely be permitted to pursue this course, which
might affect his sentence if nothing else. A fair criminal trial
could not take place if he were refused the opportunity. The only
other alternative would be to stop the case, on the basis that
the accused would not be able to have a fair trial. This also
would be an unfortunate course to take with a criminal charge,
and not in the public interest.
62. There is a civil counterpart of the
criminal example just given. It is the case of the member who
sues a non-member for defamation. In his defence the non-member
asserts he was justified in saying what he did, and wishes to
rely on statements made by the member in parliamentary proceedings.
This was the situation which arose in 1995 in a libel action brought
by a member of Parliament, Mr Neil Hamilton, and a political lobbyist,
Mr Ian Greer, against The Guardian newspaper over allegations
that Mr Hamilton had made corrupt use of his right to ask questions
of ministers and had received money via Mr Greer's company (`cash
for questions'). In its defence the newspaper sought to justify
what it had written by calling evidence about Mr Hamilton's conduct
and motives in tabling parliamentary questions and early day motions.
The judge found this was contrary to article 9. He stopped the
proceedings on the ground that it would not be fair to allow the
plaintiffs to sue for libel if the defendant newspaper was not
permitted to justify what it had written.[124]
63. This had the effect of denying the plaintiffs
a forum for establishing that The Guardian allegations
were untrue and, if untrue, receiving financial recompense. In
other words, unlike any other citizen, a member of either House
could not sue to clear his name if he was alleged to have acted
dishonestly in connection with his parliamentary duties.
64. This situation is not unique to this
country. The problem arose in two cases in New Zealand and Australia
in 1970 and 1990. There the actions were tried on their merits.
In the 1970 case in New Zealand no question of privilege seems
to have been raised.[125]
In the 1990 case in Australia, the South Australian Supreme Court
found a way around the difficulty by holding that privilege does
not extend to prevent challenges to the truth or honesty of statements
made in Parliament where the maker of the statement himself initiates
the proceedings.[126]
65. In a later case in New Zealand in 1992,
Prebble v Television New Zealand[127]
, the issue of privilege was raised. On appeal the judicial committee
of the Privy Council decided that article 9 and the wider principle
of separation of powers preclude the court from examining the
truth or propriety of statements made in Parliament even where
this will not expose the statement maker to any criminal or civil
penalty. The judicial committee disapproved of the course taken
in the earlier Australian and New Zealand cases, and preferred
the larger body of United Kingdom and Commonwealth precedents
which took a more restrictive view. They held that the privilege
protected by article 9 is the privilege of Parliament and the
actions of an individual member cannot determine whether or not
the privilege should apply. In his judgment Lord Browne-Wilkinson
said section 16(3) of the Parliamentary Privileges Act 1987 (Australia)
was a correct statement of the effect of article 9 of the Bill
of Rights.
66. Section 16 of the Parliamentary Privileges
Act 1987 (Australia) was enacted in response to a surge of judicial
interventionism in New South Wales in the 1980s. In two criminal
cases cross-examination of defendants was permitted on evidence
they had given to Senate committees[128].
Not surprisingly, an interpretation of article 9 having this effect
was rejected by the Australian Federal Parliament. Section 16(3)
provides:
`In proceedings in any court or tribunal, it is not
lawful for evidence to be tendered or received, questions asked
or statements, submissions or comments made, concerning proceedings
in Parliament, by way of, or for the purpose of:
(a) questioning or relying on the truth, motive,
intention or good faith of anything forming part of those proceedings
in Parliament;
(b) otherwise questioning or establishing the
credibility, motive, intention or good faith of any person; or
(c) drawing, or inviting the drawing of, inferences
or conclusions wholly or partly from anything forming part of
these proceedings in Parliament.'
67. Section 13 of the Defamation Act 1996
was intended to remedy the injustice perceived to exist in the
Hamilton type of case.[129]
The text of section 13 (set out in annex A) enables a person,
who may be a member of either House or of neither House, to waive
parliamentary privilege so far as he is concerned, for the purposes
of defamation proceedings. The essential protection of members
against legal liability for what they have said or done in Parliament
remains and cannot be waived.
68. Unfortunately the cure that section
13 seeks to achieve has severe problems of its own and has attracted
widespread criticism, not least from our witnesses.[130]
A fundamental flaw is that it undermines the basis of privilege:
freedom of speech is the privilege of the House as a whole and
not of the individual member in his own right, although an individual
member can assert and rely on it. Application of the new provision
could also be impracticable in complicated cases; for example,
where two members, or a member and a non-member, are closely involved
in the same action and one waives privilege and the other does
not. Section 13 is also anomalous: it is available only in defamation
proceedings. No similar waiver is available for any criminal action,
or any other form of civil action.
69. The Joint Committee considers these
criticisms are unanswerable. The enactment of section 13, seeking
to remedy a perceived injustice, has created indefensible anomalies
of its own which should not be allowed to continue. The Joint
Committee recommends that section 13 should be repealed.
70. Yet there is a problem here. In practice,
neither House now treats the libel of one of its members as a
contempt[131],
nor is either House equipped to hear libel cases even if such
a course were publicly acceptable. In the Hamilton type
of case it is, on the one hand, unthinkable that if the media
criticise those who have been elected to power, the media should
not be free to establish the truth of their criticisms. As was
pointed out by Lord Browne-Wilkinson in the Prebble decision,
were this not so the results could be `chilling' to the proper
monitoring of members' behaviour.[132]
On the other hand, if the law is left as enunciated in Prebble,
members criticised outside Parliament and accused of misconduct
in the performance of their parliamentary duties can find themselves
wholly unable to clear their names. This undesirable state of
affairs could even, in turn, encourage irresponsible media comment.
Commentators would rest secure in the knowledge they could not
be called to account in court for allegations of parliamentary
misconduct. The difficulty lies in resolving this conflict.
71. The law is, of course, frequently faced
with the need to resolve conflicts where one consideration pulls
one way and another consideration pulls in a different direction.
Sometimes one interest has to be preferred to the other. This
has happened in the situation now under discussion. The courts
have been properly anxious to keep clear of interfering with Parliament
in the conduct of its affairs. There could therefore be no question
of the courts investigating the allegations of parliamentary misconduct.
They have had to choose between two injustices: injustice to the
plaintiff, by not letting him have the opportunity to clear his
name, and injustice to the defendant, by not letting him raise
a defence of justification when this would require investigation
of parliamentary proceedings. The courts have decided the loss
should be left to lie where it falls. If a libel action brought
by a member cannot be properly tried out on its merits, then it
must be stopped, even though this will leave the defamed member
without a remedy.
72. We have considered whether there is
a third alternative, which will enable justice to be done to both
parties: to permit the courts to investigate the alleged misconduct.
One way of achieving this in a principled fashion would be that,
instead of a member having power to waive article 9, as is the
position under section 13 of the Defamation Act 1996, the House
itself should be empowered to waive the article 9 privilege in
any case where no question arises of the member making the statement
being at risk of incurring legal liability. The existence of such
a power would enable Parliament to meet the perceived injustice
in the Hamilton type of case and in its criminal counterpart.
If a member, placed as was Mr Hamilton, started a defamation action,
the defendant newspaper would be entitled to seek to prove the
truth of its allegations. The member, in turn, would have an opportunity
to vindicate himself. In this way justice would be done to both
parties, but at the same time the vital constitutional principle
of freedom of speech in Parliament would be preserved. When they
speak in Parliament members would have, as now, complete confidence
that no legal liability could attach to them in consequence.
73. A waiver would not be confined to members
or others who consent to waiver of the privilege, nor would it
be confined to persons who are themselves parties in the court
proceedings, nor would it be limited to defamation proceedings.
But we emphasise this power would be available only to the
House as a whole and only when there is no question of the member
or other person making the statement being exposed in consequence
to a risk of legal liability.
74. The latter limitation is important.
The Joint Committee was not attracted by the House having an unlimited
power of waiver of the article 9 legal immunity. An unlimited
power of waiver would mean that when a member speaks he could
never be sure that afterwards he might not find himself exposed
to legal challenge. That would be inhibiting, and would undermine
the freedom that article 9 currently protects. But none of this
would arise with a power circumscribed as suggested. Within such
limitation the House would retain a discretion and could withhold
waiver when waiver would lead to an unacceptable degree of intrusion
or when for some other reason waiver was considered undesirable
in a particular case. As a decision might not always be straightforward,
both Houses would no doubt wish to refer any waiver application
for consideration by an appropriate committee, which might also
state terms on which any waiver should be given by the House.
75. We recognise that this proposal is subject
to one of the disadvantages inherent in the existing section 13.
The examination of parliamentary proceedings in court in a libel
(or other) action might lead to conflicting decisions of Parliament
and the courts about a member's conduct. Lord Simon of Glaisdale
expressed the view that the `most serious of all' the objections
to section 13 is the scope it creates for a collision between
the judiciary and Parliament.[133]
This concern was not widely expressed when section 13 was enacted,
nor was it one of the criticisms of the section which featured
prominently in the evidence we took. We doubt whether in practice
there will often be a risk of conflict. In most cases reference
to parliamentary proceedings is likely to be subsidiary to the
issues before the court. Where there appears to be a serious risk
of conflict, the committee considering an application for waiver
will need to consider carefully whether waiver would be in the
public interest.
76. A more forceful criticism at first sight,
and one also levelled at section 13, is that the result would
be asymmetrical. Members can rely on the article 9 privilege in
respect of defamatory remarks made by them in the House, but they
(or, as is now being considered, the House) can waive the privilege
when it suits them. The Joint Committee considers the answer lies
in appreciating that the proposed power of waiver will not create
an imbalance. The basic `imbalance' between members and everyone
else, the lack of symmetry, is created by article 9 itself. Members
are shielded from legal liability for defamatory statements made
in the course of parliamentary proceedings. This is an essential
concomitant of parliamentary freedom of speech. What the power
of waiver will do is enable the House, while still preserving
legal immunity, to permit parliamentary proceedings to be examined
in court when the House (not the member) considers that justice
so requires and that the privilege can be waived without damaging
the interests of the House as a whole.
77. In written evidence to the Joint Committee
Dr Geoffrey Marshall expressed a preference for going further.
Section 13 should be replaced by a general provision which permits
the giving of evidence about parliamentary proceedings in all
cases that do not involve the direct protective function of article
9.[134]
If such a general provision were adopted, the legal immunity
principle enshrined in article 9 would remain intact and inviolate,
but article 9 would not afford protection beyond this. We believe
this would be an undesirable step, a step too far. A provision
of universal application limiting the article 9 protection to
cases where there is a risk of legal liability would mean that
members, although not facing legal liability, could find themselves
called to account in court for what they said in Parliament and
why they said it. We believe that, in general[135],
this would not be desirable. Legal immunity may be the principal
function of article 9 today, but it is not the only purpose. Although
the phrase `impeached or questioned' perhaps supports the view
that the article 9 prohibition is co-terminous with legal liability,
a wider principle is involved here, namely, that members ought
not to be called to account in court for their participation in
parliamentary proceedings. This is, and should remain, the general
rule. The existence of a (circumscribed) power of waiver by the
House would not undermine this principle of non-accountability:
the House would retain for itself, in each case, the right to
decide whether to waive article 9.
78. What we propose will not work if a decision
by the House on whether to exercise its power of waiver in a particular
case is, or appears to be, influenced by partisan considerations.
Consistency of treatment will be important, and the House will
need to be seen to be equitable in granting waiver where the applicant
is a non-member, such as a witness or a newspaper. The committee
appointed to consider applications should include senior members
of the House. Given that the committee for privileges in the House
of Lords always contains four law lords, we think this will be
an appropriate committee in that House. In the House of Commons
the existing functions of the standards and privileges committee
would not readily accommodate a new role of advice on waiver.
We think that in the Commons the decision might best be made by
the Speaker, assisted with advice from a small committee. That
committee might comprise members such as the leader and the shadow
leader of the House, with the Attorney General and one or more
representatives of other parties, coupled with a power to co-opt
additional members either generally or for a particular case.
In order to emphasise that its proceedings are `proceedings in
Parliament' and not subject to judicial review, the committee
should be formally appointed by the House early in each Parliament.
79. We were not attracted by the suggestion
that non-members should also serve on these committees.[136]
The committees will be giving advice on how the Lords or Commons
should exercise a power relating to one of their fundamental privileges.
The committee will be at liberty to take evidence or seek views
from others, but its membership would properly be confined to
members of the House.
80. In order to promote consistency these
committees will need to prescribe ground rules or guidelines,
setting out their general approach. For instance, we envisage
the general approach will be to waive privilege unless there is
good reason for not doing so. The guidelines should give examples
of grounds for refusal: for instance, where waiver would mean
that the Speaker might find herself having to attend court and
be cross-examined on discussions she had with a worried member;
or the chairman of the committee of selection might be required
to give evidence on discussions between himself and the whips
about the membership of a committee; or members or officers of
the House might find themselves compelled to give evidence of
advice tendered to a member regarding the tabling of a question
or an amendment to a bill. A waiver which involved this degree
of intrusion into the affairs of the House would only be appropriate
in exceptional circumstances.
81. The issue here is one of balancing the
disadvantages and finding the least unattractive course. As well
as defamation, our proposal would deal with the problem of adducing
evidence relating to a proceeding in Parliament in any criminal
or civil court. It would also go some way towards resolving the
current problem, drawn to our attention by the Clerk of the House
of Commons, of enabling a court to examine the proceedings of
a committee when determining a contractual dispute involving the
corporate officer of the House.[137]
We recommend this proposal to each House.
82. If this course is rejected, the only
alternative we can see is to return to the position as it was
before the enactment of section 13 of the Defamation Act 1996
and, hence, to the injustices section 13 sought to remedy. We
believe the effort is worth making. It would be a sorry reflection
on Parliament if a way cannot be devised to exclude political,
specifically party political, interests from decisions which need
to be taken on their merits. We believe that, of the various alternatives,
this is the best option, even though there are risks and difficulties.
The general principle
83. We have stated our view that in general
members ought not to be accountable in court for what they say
or do in the course of proceedings in Parliament.[138]
We have proposed some special and limited exceptions: the House
should have power to waive article 9, but only where this would
not expose the speaker of the words or the doer of the acts to
legal liability; and the courts should be able to examine proceedings
in Parliament when interpreting an ambiguous statute or judicially
reviewing a governmental decision or considering the legal consequences
of a governmental decision.
84. At present the scope of `ought not to
be questioned' in article 9 remains undefined and unclear. To
leave this question unresolved has the disadvantage that the courts
may find themselves drawn into having to decide the issue. Parliament
may not agree with the courts' solution. This is more likely now
than in the past. Mr McKay, then clerk assistant, voiced anxiety
to us regarding uncertainties surrounding article 9:
`The nineteenth century cases are full of echoes
of Blackstone and the `dignity of the House'. The House of Commons
had an unchallenged place in the constitution. The courts were
anxious to preserve that. You did not get litigants who picked
over words. Nowadays that is the way litigants and the courts
behave - quite properly. That is the change. That is the uncertainty.
It is a modern uncertainty.'[139]
85. In the last 30 years the judicial tide
in England has rolled forward to some extent on the parliamentary
foreshore, although not so far as in Australia in the 1980s. The
Joint Committee considers that the continuing lack of clarity
on such a fundamental constitutional provision is undesirable.
It is preferable for Parliament to declare now what is the scope
of article 9, rather than risk having to change this constitutional
provision in Parliament's favour after an unsatisfactory court
decision. Subject to the limited and specific qualifications already
made on particular points[140],
and subject to one further point[141],
the Joint Committee recommends that Parliament should confirm,
as a general principle, the traditional view of article 9: that
it is a blanket prohibition on the examination of parliamentary
proceedings in court. The prohibition applies whether or not legal
liability would arise.
86. Section 16(3) of the Parliamentary Privilege
Act 1987 (Australia), the text of which is set out above[142],
took this approach. No court or tribunal may receive evidence,
or permit questions to be asked or submissions made, concerning
proceedings in Parliament by way of, or for the purpose of, questioning
or relying on the truth, motive, intention or good faith of anything
forming part of those proceedings in Parliament or drawing an
inference from anything forming part of those proceedings. The
Joint Committee recommends the enactment of a statutory
provision to this effect. In one respect the Australian statute
may go too far. It is difficult to see how there could be any
objection to the court taking account of something said or done
in Parliament when there is no suggestion that the statement or
action was inspired by improper motives or was untrue or misleading
and there is no question of legal liability. We recommend
that the prohibition be coupled with a proviso to the effect that
the court may take such statements or conduct into account. These
recommendations would not affect the continuing use of Hansard
in court to establish what was said or done as a matter of history.
Recommendations on these matters
87. At the outset of this report we set
out one test by which the value of any particular parliamentary
privilege should be measured, namely, whether each particular
right or immunity currently existing is necessary today, in its
present form, for the effective functioning of Parliament. The
recommendations we propose confirm the traditional view of the
scope of article 9. This is justifiable today as much as formerly:
those who participate in parliamentary proceedings should not
in consequence find themselves having to account for their conduct
in any form of court proceedings. We propose some limited exceptions,
none of which compromise or impair the legal immunity of those
who participate in parliamentary proceedings. The only instance
where the legal immunity principle is breached is ministerial
liability for government decisions.
88. The Joint Committee accordingly recommends
a statutory enactment to the effect that no court or tribunal
may receive evidence, or permit questions to be asked or submissions
made, concerning proceedings in Parliament by way of, or for the
purpose of, questioning or relying on the truth, motive, intention
or good faith of anything forming part of proceedings in Parliament
or drawing any inference from anything forming part of those proceedings.
89. We recommend that the mischief
sought to be remedied by section 13 of the Defamation Act 1996
should be cured by a different means. Section 13 should be replaced
by a short statutory provision empowering each House to waive
article 9 for the purpose of any court proceedings, whether relating
to defamation or to any other matter, where the words spoken or
the acts done in proceedings in Parliament would not expose the
speaker of the words or the doer of the acts to any legal liability.
Each House will need to consider appropriate machinery once the
section has been repealed.
90. The Joint Committee considers it would
be sensible to recognise the Pepper v Hart principle and
the use of parliamentary proceedings in court actions concerned
with the judicial review of governmental decisions or the consequences
of governmental decisions. We recommend the enactment of
a short statutory provision to the effect that nothing in article
9 shall 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 or to the judicial
review of, or the consequences of, governmental decisions[143],
or where there is no suggestion that anything forming part of
proceedings in Parliament was inspired by improper motives or
was untrue or misleading and there is no question of legal liability.
`Place out of Parliament'
91. The prohibition in article 9 is not
confined to the questioning of parliamentary proceedings in courts.
It applies also to any `place out of Parliament'. This is another
obscure expression of uncertain meaning. To read the phrase as
meaning literally anywhere outside Parliament would be absurd.
It would prevent the public and the media from freely discussing
and criticising proceedings in Parliament. That cannot be right,
and this meaning has never been suggested. Freedom for the public
and the media to discuss parliamentary proceedings outside Parliament
is as essential to a healthy democracy as the freedom of members
to discuss what they choose within Parliament. So the embrace
of the phrase is narrower than this, but wider than merely `courts':
the whole phrase is `. . .any court or place out of Parliament'.
92. The interpretation of this expression
has never been the subject of a court decision. The point has
arisen in the context of tribunals of inquiry set up under the
Tribunals of Inquiry (Evidence) Act 1921 where both Houses of
Parliament resolve `that it is expedient that a tribunal be established
for inquiring into a definite matter (specified in the resolution)
of urgent public importance'. These tribunals have the same powers
as a court, in particular for enforcing the attendance of witnesses,
examining them on oath, and compelling the production of documents.
Their purpose is described by a recognised constitutional authority
as `to investigate certain allegations or events with a view to
producing an authoritative or impartial account of the facts,
attributing responsibility or blame where it is necessary to do
so'.[144]
The 1921 Act was passed in the shadow of the Marconi affair and
the controversy over what was widely regarded as an unsatisfactory
parliamentary inquiry.[145]
93. It seems likely that a court would decide
that a tribunal appointed under the 1921 Act is sufficiently similar
to a court to constitute a place out of Parliament for the purposes
of article 9 and, accordingly, that such a tribunal would be precluded
from examining proceedings in Parliament.[146]
This conclusion means that an inquiry cannot be set up under
the 1921 Act if its purpose is to look into parliamentary matters
which may involve examining proceedings in Parliament.[147]
Article 9 would bar the tribunal from conducting any such examination.
Thus, as matters stand, where proceedings in Parliament may need
to be examined, a non-statutory body, lacking the advantages afforded
by the 1921 Act, has to be appointed. A recent instance of such
a non-statutory tribunal was Sir Richard Scott's inquiry into
`arms for Iraq'.[148]
94. This is not satisfactory. Since
Parliament already controls the appointment of such a tribunal,
we see advantage in the two Houses having a statutory power to
waive article 9 in the resolution of appointment.
95. A statutory power of waiver assumes
that article 9 does, or may, apply to 1921 Act tribunals. The
Joint Committee considers it would also be advantageous to dispel
the uncertainties with a statutory definition. The Parliamentary
Privileges Act 1987 (Australia) applied the article 9 prohibition
to any court or tribunal, and defined tribunal as any person or
body having power to examine witnesses on oath. This seems to
provide a clear and sensible basis for the future. In general,
power to administer oaths is dependent upon statutory authority.
The power is conferred on bodies whose proceedings are endowed
with a degree of legal solemnity and formality. It means, for
instance, that article 9 will apply to coroners' inquests, lands
tribunals and industrial tribunals.[149]
Beyond such formal tribunals, article 9 will not apply. By this
means the boundary can be clearly delineated, with an embargo
on examination of parliamentary proceedings in all courts and
similar bodies but not elsewhere.
96. The Joint Committee recommends
a statutory enactment to the effect that `place out of Parliament'
means any tribunal having power to examine witnesses on oath,
coupled with a provision that article 9 shall not apply to a tribunal
appointed under the Tribunals of Inquiry (Evidence) Act 1921 when
both Houses so resolve at the time the tribunal is established.
`Proceedings in Parliament'
97. Since article 9 confers absolute immunity
against civil and criminal liability in respect of `proceedings
in Parliament', it is important for members and for the public
to know what activities are covered by the phrase.[150]
Unfortunately, this is a further aspect of article 9 calling
for elucidation. No comprehensive definition has been determined
either by Parliament or by judicial decision. In 1689, when parliamentary
proceedings were much simpler, a definition may have been thought
unnecessary. But this is not so when the phrase is applied to
present day parliamentary activities and members' activities.
In several respects the scope of this expression is not clear
today. As noted earlier in this report, this has been recognised
as unsatisfactory time and again by successive committees over
the last 30 years.[151]
98. The broad description in Erskine
May is a useful starting place:
`The primary meaning of proceedings, as a technical
parliamentary term, . . . is some formal action, usually a decision,
taken by the House in its collective capacity. This is naturally
extended to the forms of business in which the House takes action,
and the whole process, the principal part of which is debate,
by which it reaches a decision. An individual member takes part
in a proceeding usually by speech, but also by various recognised
forms of formal action, such as voting, giving notice of a motion,
or presenting a petition or report from a committee, most of such
actions being time-saving substitutes for speaking. Officers of
the House take part in its proceedings principally by carrying
out its orders, general or particular. Strangers also may take
part in the proceedings of a House, for example by giving evidence
before it or one of its committees, or by securing presentation
of a petition.'[152]
99. Thus the House of Commons select committee
on the Official Secrets Acts (1939)[153]
considered that proceedings in Parliament include `everything
said or done by a member in the exercise of his functions as a
member in a committee of either House, as well as everything
said or done in either House in the transaction of parliamentary
business'.[154]
This is so even if the acts occur outside the precincts of the
Palace of Westminster. For example, select committees sometimes
meet elsewhere.
100. The position regarding certain activities
is reasonably clear. In this category are debates (expressly mentioned
in article 9), motions, proceedings on bills, votes, parliamentary
questions, proceedings within committees formally appointed by
either House, proceedings within sub-committees of such committees,
and public petitions, once presented.[155]
These are all proceedings in Parliament. Statements made and
documents produced in the course of these proceedings, and notices
of these proceedings, all appear to be covered.[156]
So are internal House or committee papers of an official nature
directly related to the proceedings, and communications arising
directly out of such proceedings, as where a member seeks further
information in the course of proceedings and another member agrees
to provide it.[157]
So too are the steps taken in carrying out an order of either
House.
101. On the other hand, certain activities
of members are not protected, even though they may take place
within the House or a committee. A casual conversation between
members in either House even during a debate is not protected,[158]
nor an assault by one member on another.[159]
In 1947 a member of the House of Commons sued a newspaper for
defamation because it claimed she had `danced a jig on the floor
of the House of Commons' during a division on a bill. Motions
were agreed permitting members to attend the trial and give evidence
both for and against the member on what had occurred in the Chamber.[160]
102. Repetition, even verbatim repetition,
by a member of what he said during proceedings has no protection
elsewhere under article 9. Nor does article 9 cover proceedings
of committees not appointed or nominated by either House, such
as backbench and party committees, or the Ecclesiastical Committee
which is a statutory committee.[161]
The status of the proceedings of the House of Commons Commission,
which also is a statutory body[162],
is discussed further below.
Members' correspondence
103. One important area of uncertainty is
members' correspondence. There has been long-standing concern
about correspondence and other communications undertaken on behalf
of constituents by members of the House of Commons. Members of
both Houses now engage in many different activities in discharging
their parliamentary duties. As well as speaking in debates, participating
on committees and asking parliamentary questions, they write letters
and make representations to ministers, government agencies and
a wide variety of bodies, both public and private. Constituents
of members of the House of Commons expect their members to take
up their concerns at local and at national level. In recent years
members' work has been transformed by a very substantial increase
in this type of constituency correspondence. Most of these activities
are not protected by parliamentary privilege. Article 9 protects
parliamentary proceedings: activities which are recognisably
part of the formal collegiate activities of Parliament. Much of
the work of a member of Parliament today, although part of his
duties as a member of Parliament, does not fall within
this description.
104. This issue arose in 1958 in a case
concerning a member, Mr George Strauss. He wrote an allegedly
defamatory letter to a minister on a matter he might later have
wished to raise in the House, namely, criticism of the purchasing
policies of the London Electricity Board. The House resolved by
a narrow majority that the letter was not a proceeding in Parliament
as it did not relate to anything then before the House.[163]
105. Both the 1967 House of Commons committee
on parliamentary privilege and its 1977 committee of privileges,
as well as the 1970 joint committee on publication of proceedings
in Parliament, considered the House's decision was right in law.
But all agreed that the argument in favour of correspondence with
ministers having the benefit of absolute privilege in defamation
actions was so compelling that the law should be changed. The
1977 committee considered it was anomalous for a member's communications
with the parliamentary commissioner for administration to enjoy
absolute privilege under the Parliamentary Commissioner Act 1967
while his communications with a minister did not.[164]
The 1970 joint committee's proposed statutory definition of `proceedings'
included:
`all things said, done or written between members
or between members and officers of either House of Parliament
or between members and ministers of the Crown for the purpose
of enabling any member or any such officer to carry out
his functions as such . . ..' (our italics).[165]
106. There is force in the view that proceedings
in Parliament should include letters to ministers raising matters
which could equally well be pursued by parliamentary question
and thus be absolutely privileged. The parliamentary question
developed as a device for raising specific matters capable of
being answered shortly and without the need for debate. The 1967
committee commented:
`Many members now use the parliamentary question
as a weapon of penultimate resort to give publicity to its subject-matter
when, and only when, they cannot obtain satisfaction by correspondence;
yet the House has taken the view that such correspondence does
not fall within the ambit of `proceedings in Parliament' . . ..
The practical effect of this distinction seems to Your Committee
to be indefensible'.[166]
To some extent the distinction has recently been
blurred further, now that a question to a minister may elicit
a reply in the form of a letter from the head of the executive
agency more directly concerned. Even if not `proceedings', such
replies, when published in the official report, are protected
by the absolute privilege afforded by the Parliamentary Papers
Act 1840.
107. An extension of absolute privilege
to members' correspondence with ministers would therefore seem
logical. But on closer examination it would create problems of
principle. Why distinguish between a member's letter to a minister
and a member's letter to a public official or a local authority?
Should a constituent's correspondence accompanying a member's
letter be considered part of a `proceeding'? Should a member's
reply to the constituent have the same privilege? When a matter
is raised in debate in the House a member may be subject to challenge
from other members. Parliamentary questions should be short and
to the point, and are subject to rules of order. Letters can be
extensive, and if absolutely privileged under article 9 might
be used as a means of publishing with impunity defamatory statements
or trade secrets. With modern photocopying facilities and e-mail,
many people can easily see copies of letters, sometimes inadvertently.
One reason why letters to ministers have increased appreciably
is the rise in the number of constituency cases ill-suited to
proceed by way of written questions, because they are too detailed
or for some other reason. If parliamentary privilege were extended
to members' correspondence, Parliament would probably become involved
in attempting to make rules for correspondence, both constituency
correspondence and generally, as it has for questions and other
proceedings. The comparison drawn by the 1977 committee[167]
is not convincing. Correspondence with the parliamentary commissioner
for administration consists mainly of complaints of maladministration
by constituents, forwarded by members for investigation by the
commissioner under statutory powers. By their nature these complaints
may be defamatory, and exposure to defamation actions would unduly
obstruct the commissioner's investigations.
108. It remains the case that the distinction
between a member's letter and a member's speech or parliamentary
question can be somewhat arbitrary. A letter may relate to the
same subject matter as an existing proceeding, and may simply
be for the member a more convenient or sensible way of pursuing
the same objective. It is anomalous that a member who, for example,
received information that children were being abused in a named
institution, would have the benefit of article 9 if he tabled
a question but not if he wrote to the responsible minister first.
But the boundary of privilege has to be drawn somewhere, and the
present boundary is clear and defensible. Moreover, although members
taking up difficult constituency cases often receive threatening
letters from solicitors, cases in court are rare. Professor Bradley
summed up the position in evidence:
`There was a strong case for [absolute privilege]
in 1957 at the time of the Strauss case. . . . That strong
case is still there. However, we have had the last 40 years in
which the qualified privilege of common law seems to have enabled
members of both Houses to carry out their functions satisfactorily'[168].
109. This practical consideration has weighed
heavily with the Joint Committee, coupled with the absence of
any defensible line between constituency correspondence with a
minister and constituency correspondence with others.
110. There is another consideration. Article
9 provides an altogether exceptional degree of protection, as
discussed above.[169]
In principle this exceptional protection should remain confined
to the core activities of Parliament, unless a pressing need is
shown for an extension. There is insufficient evidence of difficulty,
at least at present, to justify so substantial an increase in
the amount of parliamentary material protected by absolute privilege.
Members are not in the position that, lacking the absolute immunity
given by article 9, they are bereft of all legal protection. In
the ordinary course a member enjoys qualified privilege at law
in respect of his constituency correspondence. In evidence the
Lord Chief Justice of England, Lord Bingham of Cornhill, and the
Lord President of the Court of Session, Lord Rodger of Earlsferry,
both stressed the development of qualified privilege at law and
the degree of protection it provides nowadays to those acting
in an official capacity and without malice.[170]
So long as the member handles a complaint in an appropriate way,
he is not at risk of being held liable for any defamatory statements
in the correspondence.[171]
Qualified privilege means a member has a good defence to defamation
proceedings so long as he acted without malice, that is, without
some dishonest or improper motive.[172]
111. Admittedly, qualified privilege is
less effective than the sweeping, absolute protection afforded
by article 9, in two respects. Article 9 provides a defence not
only to defamation claims but also to any claim that by sending
the constituent's letter to the minister the member committed
an offence under the Official Secrets Acts or a breach of a court
order. Secondly, defamation proceedings brought contrary to article
9 will generally be dismissed peremptorily, without any need for
a trial, as it will be obvious from the outset that they are bound
to fail. With a defence of qualified privilege, if there is sufficient
prima facie evidence of malice the case will ordinarily
proceed to trial for a verdict by the jury. So a member may be
put to the inconvenience and expense of defending an action before
he is vindicated.
112. Constituency correspondence has burgeoned
over the last 30 years, but since Strauss there have been
remarkably few, if any, instances of defamation actions against
members who were acting on behalf of their constituents. We
recommend that the absolute privilege accorded by article
9 to proceedings in Parliament should not be extended to include
communications between members and ministers.
Members' drafts and notes
113. Drafts and notes frequently precede
speeches and questions, and members often need assistance and
advice in preparing them. By necessary extension, immunity accorded
to a speech or question must also be available for preparatory
drafts and notes, provided these do not circulate more widely
than is reasonable for the member to obtain assistance and advice,
for instance from a research assistant. It would be absurd to
protect a speech but not the necessary preparatory material. The
same principle must apply to drafts of evidence given by witnesses.
This principle must also apply to drafts of speeches, questions
and the like which in the event are not used. A member cannot
always catch the Speaker's eye, or he may change his mind.
114. This approach accords with the view
expressed by the select committee of the House of Commons on the
Official Secrets Acts (1939). The appointment of this committee
arose out of the action taken by a member, Mr Duncan Sandys, in
threatening to table a question regarding the inadequacy of London's
anti-aircraft defences. The draft question included information,
classified as secret, about the number of available guns and their
state of readiness. Mr Sandys sent the draft to the minister.
In its report the committee said there were some:
`communications between one member and another, or
between a member and a minister, so closely related to some matter
pending in, or expected to be brought before the House, that though
they do not take place in the chamber or a committee room they
form part of the business of the House, as, for example, where
a member sends to a minister the draft of a question he is thinking
of putting down or shows it to another member with a view to
obtaining advice as to the propriety of putting it down or as
to the manner in which it should be framed'.[173]
The House agreed with this conclusion.[174]
Assistance by House staff
115. Memoranda from the Librarian of the
House of Commons and from the staff side of the Whitley Council
showed there is concern over the degree of legal protection afforded
to the research briefs, notes and other advice prepared by staff
for members.[175]
The House of Commons library, in particular, often briefs members
on the background to complicated and sensitive constituency cases,
as well as providing research for contributions in the House or
in committee. It is our intention that all material directly related
to proceedings in Parliament should be protected by article 9,
such as preparatory material related to a member's participation
in debate or in committee. Material which has no direct connection
with proceedings in Parliament is not protected.
116. To extend absolute privilege to all
research work carried out for members by House staff would raise
difficulties similar to those applying to members' correspondence.
Here also the degree of protection provided by qualified privilege
at law should not be underestimated. We doubt whether any advice
given by the libraries and other departments to members of either
House could exhibit any credible sign of malice. However, we are
concerned at the extent to which members unthinkingly include
in envelopes to constituents, for example, a brief prepared by
a member of staff which, to assist the member, may have been written
in frank terms. This has caused difficulties for some staff, and
occasionally a threat of litigation. Members should make use of
the advice, not disseminate it.
117. There is another category of material
which does not fall within article 9 but can nonetheless claim
to be within Parliament's right to control its own affairs (exclusive
cognisance) and therefore protected under that heading.[176]
This comprises work done in providing services under the direction
of the House or its presiding officer. Examples are arrangements
made by Black Rod and the Serjeant-at-Arms for the security and
proper functioning of the two Houses, and action taken by either
House to implement decisions of the Speaker or relevant committee
on, for instance, the use of committee rooms, or the rules governing
parliamentary groups.
Assistance by personal staff
118. Members frequently employ personal
staff and research assistants of their own to assist with their
parliamentary duties. The material produced for members by their
staff and assistants may sometimes be protected by parliamentary
privilege, as material directly related to proceedings in Parliament.
But, as with House staff, other material enjoys no parliamentary
privilege.
Registration of members' interests
119. Another area of uncertainty concerns
registration of members' interests. Both Houses have procedures
for registration of members' personal pecuniary interests. These
procedures are part of the machinery brought into being by each
House for the better conduct of its business. They are under the
sole control of each House and not subject to supervision by courts
of law. We consider these procedures also qualify, or should qualify,
for the protection afforded by article 9 to proceedings in Parliament.
120. This applies as much to the registers
themselves as to the steps leading up to registration. The registers,
which are an integral part of the procedures, are open to inspection
by the public, and in both Houses the register is published annually.
Moreover, any member of the public may complain to the parliamentary
commissioner for standards or, in the case of the House of Lords
the sub-committee on Lords' interests, that a member has not properly
registered his interests. None of these characteristics deprives
the registers of their status as a proceeding in Parliament. Publication
of a speech in the official report does not deprive a speech in
the House of the protection of article 9. Nor does the ability
of the public to lodge complaints that a member is in breach of
the code of conduct deprive disciplinary proceedings of their
status as parliamentary proceedings.
121. This appraisal of the status of the
registers of interests, if correct, does not prevent the registers
from ever being referred to or used in court proceedings. As with
Hansard, so with the register, the fact that an entry exists
or does not exist could be established and used in court, as noted
above.[177]
However, the status of the registers as part of a proceeding
in Parliament prevents a member from being examined in court on
his reasons for registering or not registering his interest. It
is not open to a court to adjudicate upon whether a member should
have registered a particular interest, or to draw an adverse inference
from his failure to do so. In like fashion, the court may not
adjudicate upon whether a member was at fault in failing to declare
an interest in a debate or proceeding in the House or a committee.
122. In this regard the court decision in
Rost v Edwards[178]
is a cause for concern. In 1989 Mr Peter Rost, a member of Parliament,
sued the writer of an article in The Guardian newspaper
for libel in asserting that Mr Rost had been seeking to sell confidential
information obtained by him as a member of the House of Commons
select committee on energy. As part of a defence of justification,
the defendants asserted that Mr Rost should have registered his
parliamentary consultancies. In response Mr Rost wished to establish,
by reference to the published rules and to Erskine May,
the requirements laid down by the House for the registration of
pecuniary interests, and to call evidence on the nature of his
consultancies and the reason why he had not registered them. The
Solicitor General submitted that the House of Commons register
of members' interests and the related practice and procedure formed
part of the proceedings of Parliament. The trial judge rejected
this submission, and held that registration of members' interests
is not a proceeding in Parliament.[179]
123. It would not be appropriate for us
to venture a view on the correctness of this decision as a matter
of law.[180]
But we are in no doubt that, if this decision is correct, the
law should be changed. As the law now stands, it is open to a
court to investigate and adjudicate upon an alleged wrongful failure
to register. That ought to be a matter for Parliament alone, in
the same way as any other alleged breach of its rules is a matter
for Parliament alone. We recommend that legislation should
make clear that keeping the registers (and hence the registers
themselves) are proceedings in Parliament.
124. The House of Commons also maintains
three other registers which have been open for public inspection
since autumn 1998. These relate to the relevant pecuniary interests
of parliamentary journalists, members' staff and all-party and
parliamentary groups.[181]
The recommended clarification should apply also to these and
any other register of interests prescribed by resolution of either
House.
Complaints against members
125. Complaints relating to the conduct
of members, whether from other members or the public, are made
in the House of Commons to the parliamentary commissioner for
standards and in the House of Lords to the committee for privileges
(which refers them to its sub-committee on Lords' interests).
The commissioner is an officer of the House of Commons, and her
duties include receiving and, if she thinks fit, investigating
complaints, and reporting to the committee on standards and privileges.
Investigation and adjudication of complaints fall squarely within
the concept of proceedings in Parliament. Since Rost v Edwards
the House of Commons has agreed to a written code of conduct on
the basis of which any complaint against a member of that House
will be judged. We consider this code forms part of proceedings
in Parliament and, like the register of members' interests, should
not be questioned in the courts.
126. The only area of doubt concerning complaints
relates to the status of a complaint the commissioner declines
to take up on the ground that it is frivolous, for example, because
its only basis is an unsubstantiated newspaper story or television
report. We are of the view that, once taken up for investigation,
a complaint partakes of the nature of a parliamentary proceeding:
it becomes part of that proceeding, along with any correspondence
which then takes place and any oral evidence which is produced.
Until then, a complaint cannot be regarded as part of a parliamentary
proceeding or entitled to the absolute immunity that accompanies
those proceedings. We recommend this should be made clear
in any statutory definition of parliamentary proceedings.
A statutory definition
127. A statutory definition of proceedings
in Parliament will not solve all problems, but it will remove
some areas of confusion. We recommend that the uncertainty
in these areas should be ended without further delay. Section
13(4) of the Defamation Act 1996 contained a partial definition
for a specific purpose. Australia has enacted a definition in
section 16(2) of the Parliamentary Privileges Act 1987 (Australia).
Annex B to this report sets out the definition recommended by
the 1970 joint committee and the definition enacted in Australia.
Annex A contains the definition used in the Defamation Act 1996.
128. The 1970 joint committee's recommendation
has been endorsed by other select committees, but it is open to
criticism. Although long and detailed, it is still not an exhaustive
definition: it is expressed to be without prejudice to the generality
of the expression `proceedings in Parliament', and gives no guidance
on what that expression is broadly aimed at. Paragraph 1(b) is
expressed in wide terms which are intended to include members'
correspondence with ministers. The definition in the Parliamentary
Privileges Act 1987 (Australia) provides a better model. It is
more concise, and gives a broad overall definition of proceedings
in Parliament as `all words spoken and acts done in the course
of, or for purposes of or incidental to, the transacting of the
business of a House or of a committee'. The key expression `business
of a House' is left undefined but is still useful in conveying
the distinction between the collegiate work of the House and the
work of individual members, such as constituency correspondence.
The phrase `or incidental to' might read better as `or necessarily
incidental to'. Otherwise it may be too loose.
129. The Joint Committee recommends the
enactment of a definition on the following lines:
| `(1) | For the purposes of article 9 of the Bill of Rights 1689 `proceedings in Parliament' means all words spoken and acts done in the course of, or for the purposes of, or necessarily incidental to, transacting the business of either House of Parliament or of a committee.
| |
| (2) | Without limiting (1), this includes:
| |
| (a) the giving of evidence before a House or a committee or an officer appointed by a House to receive such evidence
| |
| (b) the presentation or submission of a document to a House or a committee or an officer appointed by a House to receive it, once the document is accepted
| |
| (c) the preparation of a document for the purposes of transacting the business of a House or a committee, provided any drafts, notes, advice or the like are not circulated more widely than is reasonable for the purposes of preparation
| |
| (d) the formulation, making or publication of a document by a House or a committee
| |
| (e) the maintenance of any register of the interests of the members of a House and any other register of interests prescribed by resolution of a House.
| |
| (3) | A `committee' means a committee appointed by either House or a joint committee appointed by both Houses of Parliament and includes a sub-committee.
| |
| (4) | A document includes any disc, tape or device in which data are embodied so as to be capable of being reproduced therefrom.'
| |
| |
|
Disputes on the application of article 9
130. Regardless of whether a definition of proceedings
in Parliament is enacted, disputes will continue to arise in the
course of court proceedings over the availability of article 9
as a defence in the circumstances of the case. A simple instance
is where a member is being sued for defamation. In his defence
he claims he wrote the libellous letter in the course of proceedings
in Parliament. The plaintiff disputes this. The judge hearing
the case is then called upon to decide this issue.
131. The Joint Committee has considered whether, when
this type of dispute arises over the application of article 9,
the issue should continue to be resolved by the court or, instead,
there should be some other and possibly more expert forum, but
independent of Parliament. The Lord Chief Justice of England suggested[182]
as a possibility that if Parliament felt such a mechanism were
required the judicial committee of the Privy Council might be
suitable. Its decisions would be those of a court, and over time
it would build up a body of precedents. Indeed, references to
the Privy Council in this field have already occurred. In the
1950s during its consideration of the Strauss case the
House of Commons referred an issue involving the interpretation
of the Parliamentary Privilege Act 1770 to the judicial committee.[183]
132. The Joint Committee explored this suggestion with
other witnesses[184],
and also considered the possibility of references to a body based
on the judicial committee but whose membership would include former
members of the House of Commons. We do not recommend these proposals.
Our view is that the mechanism of a reference to the judicial
committee is probably better suited to giving the House advice
on issues involving points of principle. When issues of principle
arise, either House may seek such advice by a simple resolution,
on the basis of which the Crown will make a reference to the judicial
committee of the Privy Council under the Judicial Committee Act
1833. To introduce an additional stage into a libel action, for
instance, when there may be no point of principle at stake, would
cause delay and expense for the parties. Moreover, it might not
be the best course to remove the jurisdiction from the trial judge
who, unlike the judicial committee, would be in possession of
all the facts. If a point of principle were to arise in court
proceedings the judge would always be able to turn to the Attorney
General and invite his assistance on issues concerning article
9. If a point were taken by either House of Parliament rather
than the court, the House could seek to intervene in the case,
either by briefing counsel directly or via the Attorney General.
Scotland and Northern Ireland
133. The Scottish `Claim of Right' of 1689 contained
a provision narrower in scope than article 9. It provided that
`for redress of all grievances, and for the amending, strengthening
and preserving of the laws, parliaments ought to be frequently
called and allowed to sit and the freedom of speech and debate
secured to the members'.[185]
The Bill of Rights was not enacted in any part of Ireland, although
the Irish Parliament prior to the Union assumed similar privileges
to the Parliament of Great Britain, and the Northern Ireland Parliament
enjoyed the same privileges as Westminster by virtue of the Government
of Ireland Act 1920.
134. Doubts have been raised on whether a law passed
for England and Wales in 1689 would apply in other parts of the
United Kingdom.[186]
Despite the absence of case law, both the Lord President of the
Court of Session and the Lord Chief Justice of Northern Ireland,
Sir Robert Carswell, were convinced that the law would be interpreted
in Scotland and Northern Ireland so as to reflect closely the
interpretations placed upon parliamentary privilege by the English
courts, even though the interpretation in every case might not
be precisely the same.[187]
Although an element of doubt must remain, the Joint Committee
has proceeded throughout this report on the basis that the privileges
of the United Kingdom Parliament will be interpreted and applied
in a similar fashion throughout the United Kingdom. Nevertheless,
if there were to be legislation on privilege, we recommend
that 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.
94
United Kingdom cases are briefly described in Erskine May,
22nd ed (1997), chapters 6 to 11. However, there are many Commonwealth
cases. For Canada, Australia and New Zealand, see the memoranda
from the Parliaments of those countries printed in vol 3 to this
report. A recent specialist account is Parliamentary Privilege
in Canada, 2nd ed (1997), by J P Joseph Maingot QC, which
contains references to many Commonwealth cases in addition to
those of Canada. Back
95
See Geoffrey Lock, `The 1689 Bill of Rights', Political Studies
XXXVII, December 1989, pp 540-561. Back
96
Writing of parliamentary privilege in (probably) the late 1640s,
the Earl of Clarendon (who as Edward Hyde had been a member of
both the Short and Long Parliaments) described the privilege as
he believed it to have properly existed before the civil war as
follows. `If a man brings an information, or an action of the
case, for words spoken by me, and I plead, that the words were
spoken by me in Parliament, when I was a Member there; and that
it is against the privilege of Parliament, that I should be impleaded
in any other place, for the words I spake there, I ought to be
discharged from this action or information, because this privilege
is known, and pleadable at law: but that judge can neither punish
nor examine the breach of privilege, nor censure the contempt.
And this is the true and proper meaning of the old received axiom,
that they are judges only of their own privileges' (Clarendon,
A True Narration of the Rebellion and Civil Wars in England,
Book IV). Back
97
e.g. Eliot's Case (1629) 3 St.Tr. 294; and Pepper v
Hart [1993] AC 593. Back
98
Church of Scientology of California v Johnson-Smith [1972]
1 QB 522. Back
99
e.g. Goffin v Donnelly (1881) 6 QBD 307. Back
100
These words are to be found in section 13(4) of the Defamation
Act 1996. Back
101
e.g. Dr Geoffrey Marshall FBA in his memorandum and oral evidence,
vol 2, p 204, QQ 774-776; and Sir John Laws (Mr Justice Laws)
in Law and Democracy (1955), pp 72, 76. Back
102
So called because TC Hansard was first the printer, and later
the publisher, of the official series of parliamentary debates
covering both Houses, inaugurated by William Cobbett in 1803:
Erskine May, 22nd ed (1997), p 220. Back
103
Except for evidence on what the House had done taken from the
Journals of the House. References occur at least as early as 1695,
and regularly thereafter. Under section 3 of the Evidence Act
1845 (which does not extend to Scotland), the Journals were to
be admitted as evidence by the courts without formal proof being
given of their accuracy. The Journals of the House of Lords have
always been held to be public records. Back
104
CJ (1980-81) 828 (31 October 1981); Committee of Privileges,
First Report, HC (1978-79) 102. Back
105
Commentaries on the Laws of England (4 vols 1765-69),
vol 1, 163; citing Coke, Institutes of the Laws of England
(4 Vols 1628-44) vol 4, 15. Back
106
Pepper (Inspector of Taxes) v Hart [1993] AC 593. For
an account of the background see Erskine May, 22nd ed (1997),
p 91; Francis Bennion Statutory Interpretation, 2nd ed
(1993), Supplement. Pepper v Hart changed a very old constitutional
practice. Thus Miller v Taylor (1769) 4 Burr 2303 at 2332:
`the sense and meaning of an Act of Parliament . . . must be collected
from what it says . . . not from the history of changes it underwent
in the House where it took its rise. That history is not known
to the other House or to the Sovereign'. Similarly, in Edinburgh
and Dalkeith Railway Co. v Wauchope (1842) 8 Cl & Fin
710 at 723-724: `no court of justice can inquire into the mode
in which it was introduced to Parliament, nor what was done previous
to its introduction, or what passed in Parliament during the various
stages of its progress through both Houses.' These and other cases
are quoted in Geoffrey Marshall `Hansard and the interpretation
of statutes' in The Law and Parliament ed D Oliver and
G Drewry (Butterworths 1998). Back
107
Standing Committee Proceedings; Standing Committee E, 17 and
22 June 1976. Back
108
Pepper v Hart [1993] AC 593. Back
109
Section 15 AB of the Acts Interpretation Amendment Act 1901 (Australia)
as amended in 1984 provides that if any material not forming part
of the Act is capable of assisting the ascertainment of the meaning
of the provision of the Act, consideration may be given to that
material to confirm its meaning, or to determine the meaning when
the provision is ambiguous or obscure or where the ordinary meaning
leads to results that are manifestly absurd or unreasonable. See
too, Historic House Hansard, 3 April 1984, pp 1267 ff,
3 May 1984, pp 1746-1797. A similar approach has been adopted
in New Zealand in cases such as Howley v Lawrence Publishing
Co. Ltd [1986] 1 NZLR 404; and New Zealand Maori Council
v Attorney General [1987] 1 NZLR 614. See Philip A. Joseph,
Constitutional and Administrative Law in New Zealand (1993),
pp 371-2. Back
110
[1989] AC 66. The Equal Pay (Amendment) Regulations 1983 introduced
a new section into the Equal Pay Act 1970 to comply with the decision
of the European Court of Justice in EC Commission v United
Kingdom [1982] ICR 578. Back
111
Vol 2, p 124. A description by Professor Anthony Bradley of the
development of judicial review and its relationship with parliamentary
proceedings is to be found partly in the memorandum accompanying
his oral evidence (vol 2, pp 122-127) but principally in a separate
memorandum by him published in vol 3, pp 145-150. Back
112
In re Findlay [1985] AC 318; Pierson v Home Secretary
[1997] 3 AER 577; R v Home Secretary, ex parte Venables [1998]
AC 407; and R v Home Secretary, ex parte Hindley [1998]
QB 751. Back
113
R v Home Secretary, ex parte Brind [1991] 1 AC 696. Back
114
R v Secretary of State for Foreign Affairs, ex parte World
Development Movement [1995] 1 WLR 386. Back
115
R v Secretary of State for the Home Department, ex parte Fire
Brigades Union [1995] 2 AC 513. Back
116
Letter to the Joint Committee's chairman from Lord Woolf, Master
of the Rolls, vol 3, p 151. Back
117
Memorandum by Professor Anthony Bradley, vol 3, p 149, paragraph
17. Back
118
Letter from Lord Woolf, Master of the Rolls, vol 3, p 151. Back
119
R v Foreign Secretary ex parte Rees-Mogg [1994] QB 552,
561. Back
120
HC Deb 21 July 1993, cc 353-54. Back
121
Constructive dismissal occurs when an employee terminates his
contract of employment but the employer's conduct entitles the
employee to claim he was dismissed. Back
122
The case of the late Mr John Marriott, former governor of Parkhurst
prison, was drawn to our attention by Dr Peter Brand MP. Back
123
Q 785; see too, memorandum from Liberty, vol 3, p 53, paragraph
31. Back
124
Hamilton v Hencke; Greer v Hencke (21 July 1995).
At about the same time an unrelated action by another member of
Parliament, Mr Rupert Allason, was stayed for a similar reason:
Allason v Haines (14 July 1995). Back
125
News Media Ownership v Finlay [1970] NZLR 1089. Back
126
Wright and Advertiser Newspapers Ltd v Lewis (1990) 53
SASR 416. Back
127
[1995] 1 AC 321. A former New Zealand government minister alleged
that he had been defamed in a television broadcast. The TV company
sought to prove the allegations by relying on statements and actions
made outside Parliament and also in the House of Representatives.
The judge struck out the allegations which he held might impeach
or question proceedings in Parliament, in contravention of article
9. The court of appeal upheld the decision but ordered the plaintiff's
action to be stayed unless and until privilege was waived by the
House and the individual members concerned. The House privileges
committee decided that the House had no power to waive privilege.
The proceedings were permitted to continue because the privileged
material was comparatively marginal and there could still be a
fair trial. The judicial committee's decision supported the court
of first instance. See judgment of Smellie J in the High Court
of New Zealand, A 785/90 (24 June 1992); judgment in the New Zealand
Court of Appeal CA 161/92 (2-5 November 1992). Back
128
R v Foord and R v Murphy: see the judgment of Hunt
J reported in [1986] 64 ALR 498. Back
129
The section was inserted by the Lords as an amendment to the
Defamation Bill [Lords] which it considered in March, April and
May 1996. The Commons debated the provision in May and June 1996
and agreed to it. See HL Deb, 8 March 1996 (Second Reading); 2
April 1996 (Committee of the Whole House); 16 April 1996 (Report);
and 7 May 1996 (Third Reading). See also HC Deb, 21 May 1996 (Second
Reading); 13 June 1996 (Standing Committee A); and 24 June 1996
(Report). Back
130
e.g. QQ 376-381, 498-502, 577, 785; and memoranda by The Lord
Chief Justice of England, vol 2, p 110; the former Parliamentary
Commissioner for Standards, vol 2, p 219; Dr Geoffrey Marshall,
vol 2, p 204; the Guild of Editors, vol 3, p 16; the Newspaper
Society, vol 3, p 18; and The News of the World, vol 3,
p 45. See too `A Question of Privilege: The crisis of the Bill
of Rights', by Lord Simon of Glaisdale in The Parliamentarian,
April 1997. Back
131
The Commons has recognised that there could be extremely serious
cases which involved improper obstruction of the functions of
Parliament and serious reflections on the occupants of the Chair,
where the House might wish to use its penal powers: see HC (1967-68)
34, paragraphs 42-45, and Committee of Privileges, Third Report,
HC (1976-77) 417, paragraphs 5-6. Back
132
[1995] 1 AC 336 (see paragraph 65 above). Back
133
The Parliamentarian, April 1997. Back
134
Memorandum, paragraph 5, vol 2, p 204. Back
135
For exceptions where ministerial decisions are involved, see
paragraphs 46-59. Back
136
See memorandum by The News of the World, vol 3, p 45. Back
137
Q 52; and paragraph 13 of his memorandum, vol 2, p 4. See also
paragraphs 246, 252-259 below. Back
138
See paragraph 40 above. Back
139
Q 44. Back
140
Paragraphs 45, 55, 59 and 73 above. Back
141
Paragraphs 86 below. Back
142
Paragraph 66. Back
143
The position in Australia is not wholly clear. Judicial review
proceedings were not expressly excepted from section 16 of the
Parliamentary Privileges Act 1987 (Australia), and the interpretation
of section 16 has not been considered by the High Court. The view
of the Australian Attorney General, the Hon. Daryl Williams AM
QC MP, is that the Act has not proved inhibiting to the judicial
review of administrative action and that, given the rules and
process of administrative decision-making in Australia, it is
unlikely that an applicant for judicial review would suffer from
being unable to rely on privileged parliamentary material to challenge
a minister's decision: see his letter in vol 3, pp 178-179. In
response to a request from the Joint Committee, Professor G J
Lindell of the University of Melbourne has examined this matter
in some detail: see vol 3, pp 164-177. Back
144
AW Bradley and KD Ewing Constitutional and administrative
law (12th edition, 1997), p 754. Back
145
The affair concerned allegations that ministers bought shares
in the Marconi company when they knew that action by the government
would mean that the share price would rise. See Select Committee
on Marconi's Wireless and Telegraph Company: Special Report HC
(1913) 152; HC (1913) 217; resolution of the House, CJ (1913)
347. Back
146
Letter to the chairman of the Joint Committee from the Attorney
General, vol 3, p 178. Back
147
The application of article 9 does not appear to have been considered
by the Royal Commission on Tribunals of Inquiry, chaired by Lord
Salmon when it reviewed the working of the Act in 1966 (Royal
Commission on Tribunals of Inquiry: Report of the Commission (Cmnd
3121). See also, Barry Winetrobe, `Inquiries after Scott: the
return of the tribunal of inquiry': Public Law, spring
1997. Back
148
See Report of the Inquiry into the export of Defence Equipment
and Dual-use Goods to Iraq and related Prosecutions: HC (1995-96)
115 (5 vols and CD-Rom). Back
149
However, see paragraphs 56-59 above. Back
150
`Proceedings in Parliament' without definition is used in several
statutes: e.g. section 41 of the Copyright Act 1986; section 26
of the Public Order Act 1986; section 6 of the Human Rights Act
1998. Section 1 of the Parliamentary Papers Act 1840 uses the
undefined expression `proceedings' as part of the phrase `reports,
papers, votes or proceedings of either House of Parliament'. Back
151
For references see footnote 18 above. Back
152
22nd ed (1997), p 95. While referring to this definition, J P
Joseph Maingot QC, in Parliamentary Privilege in Canada
(1997), p 80 gives this supplementary definition: `As a technical
parliamentary term, `proceedings' are the events and the steps
leading up to some formal action, including a decision, taken
by the House in its collective capacity. All of these steps and
events, the whole process by which the House reaches a decision
(the principal part of which is called debate), are `proceedings''. Back
153
First Report from the Select Committee on the Official Secrets
Acts HC (1937-38) 173; Report from the Select Committee on the
Official Secrets Acts HC (1938-39) 101. Back
154
HC 101 (1938-39), p v. Back
155
Lake v King (1667), 83 ER 387, 84 ER 226, 290,312,415,417,506,526;
85 ER 128,177; 1 Saund. 131; Halsbury's Laws of England,
4th ed, vol 34, p 598. Back
156
Although the courts consistently refuse to hear evidence questioning
debate, practice in respect of other proceedings varies: most
recently in Allason v Campbell (1996) TLR 279 the court
heard detailed evidence on who initiated and participated in the
drafting, signing and tabling of an early day motion, and the
reasons for its coming into being (Erskine May, 22nd ed
(1997), p 95, fn 4). Back
157
On 14 July 1958 the Speaker ruled that a matter which arises
from a question on the order paper is itself a proceeding in Parliament:
HC Deb 591 cc 807-809. Back
158
Coffin v Coffin (1808) 4 Mass 1; HC (1938-39) 101. This
is referred to by S.A. de Smith in `Parliamentary Privilege and
the Bill of Rights' MLR Sept. 1958 as `a decision of strong persuasive
authority' (p 479). Back
159
Though such an action would also be considered a serious contempt.
See Report of the Committee of Privileges HC (1947) 36. Back
160
Braddock v Tillotsons Newspapers Ltd [1949] 2 AER 306.
Mrs Braddock did not succeed in her action. For the two petitions
for leave for witnesses to appear see CJ (1948) 14. Back
161
Appointed under the Church of England (Assembly) Powers Act 1919.
It consists of an equal number of members of both Houses, nominated
by the Lord Chancellor and the Speaker: see Erskine May,
22nd ed (1997), p 597. Back
162
Established by the House of Commons (Administration) Act 1978:
For both the Act and the Commission see Erskine May, 22nd ed.
pp 202-204. See too paragraph 248 below. Back
163
Resolution of the House of Commons, 8 July 1958: `That this House
does not consider that Mr. Strauss's letter of the 8th day of
February 1957 was a proceeding in Parliament and is of opinion
therefore that the letters from the Chairman of the London Electricity
Board and the Board's Solicitors constituted no breach of Privilege':
CJ (1957-58) 260; HC Deb 591 cc 207-346. This resolution had the
effect of rejecting the contrary recommendation contained in the
report of the Committee of Privileges. The Attorney General, a
member of the Privileges Committee, opposed the findings of the
report: HC (1956-57) 305, pp xxix-xxxi. Back
164
HC (1976-77) 417, paragraph 7 (the paragraph containing this
recommendation was not put to the House of Commons for approval). Back
165
Second Report HL (1969-70) 109; HC 261, p 5, paragraph 1(b) of
the proposed statutory definition. For a judicial consideration
of a member's functions, other than in relation to proceedings,
see Attorney General of Ceylon v de Livera [1963] AC 103
(judicial committee of the Privy Council). Back
166
HC (1966-67) 34, p xxvii, paragraph 86. Back
167
HC (1976-77) 417, paragraph 7. Back
168
QQ 512, 462. Back
169
Paragraphs 36-41 above. Back
170
QQ 412-416, 648; vol 2, p 160, paragraph 5. Back
171
Q 416. Back
172
R v Rule [1937] 2 KB 375 (complaint by a constituent to
an MP about the conduct of a policeman and a magistrate and asking
for his assistance in bringing the matter to the attention of
a minister: a member had sufficient interest in the subject matter
of the complaint to permit the occasion of the publication of
the complaint to be privileged at common law); Beach v Freeson
[1972] 1 QB 14 (letters by a member to the Lord Chancellor and
the Law Society complaining of the conduct of a solicitor, based
on representations from a constituent. A member of Parliament
had both an interest and a duty to communicate appropriately any
substantial complaint from a constituent concerning a professional
person or firm). Back
173
Report of the House of Commons Select Committee on the Official
Secrets Act (1939): HC (1938-1939) 101, paragraph 4 (our emphasis
in italics). Back
174
CJ (1938-39) 480. Back
175
Vol 3, pp 22-23 and 49. The Whitley Committees (there is one
for each House) are joint bodies of management and staff. Their
general object is to secure cooperation between the employer and
those staff represented by trade unions in matters affecting the
departments of the House and the welfare of staff, and to provide
machinery for dealing with grievances, provided that the privileges
of the House are not affected thereby. Back
176
See paragraphs 240-241 below. Back
177
Paragraph 41. Back
178
[1990] 2 QB 460. See too Patricia Leopold `Proceedings in Parliament:
the grey area', Public Law, Winter 1990. Back
179
The Attorney General lodged an appeal against this part of the
judgment, but it was never heard as the parties reached an agreement. Back
180
The judge refused to permit Mr Rost to call evidence that the
article had led to his deselection from a standing committee and
had adversely affected his chances of being appointed chairman
of the select committee on energy, on the ground that this would
involve examining proceedings of the House. The correctness of
this decision was subsequently doubted by the judicial committee
of the Privy Council in Prebble v Television New Zealand
[1995] 1 AC 321, 337, as betraying some confusion between the
right to prove the occurrence of parliamentary events (see paragraph
41 above) and the embargo on questioning their propriety. This
case is another example of the difficulties confronting a member
who seeks to clear his name in respect of a statement which he
considers defamatory regarding his parliamentary behaviour: see
paragraphs 60-62 above. Back
181
The registers are more fully described in the Ninth Report of
the Committee of Standards and Privileges, Public access to
registers of interests, HC (1997-98) 437. Back
182
Vol 2, p 108. Back
183
See paragraphs 319-322 below; HC (1956-57) 305, paragraph 19;
HC Deb 529 cols 397-398 (4 December 1957); Re Parliamentary
Privilege Act 1770 [1958] AC. 331; Cmnd 431. There are at
least two other occasions when, at the instance of the House of
Commons, the Crown has made a special reference to the judicial
committee under section 4 of the Judicial Committee Act 1833.
Both references sought opinions on the interpretation of statutes
imposing particular disqualifications for sitting and voting in
the House: Re. Sir Stuart Samuel [1913] AC 514; Re.
Rev J. G. MacManaway [1951] AC 161. In each case the House
adopted the advice of the judicial committee. On this and the
Strauss case generally, see S. de Smith `Parliamentary
Privilege and the Bill of Rights', Modern Law Review, vol
21, No 5, September 1958. Back
184
e.g. QQ 475, 652, 743, 874. Back
185
Claim of Right Act 1689 (c 28). Back
186
e.g. HC Deb 22 July 1993 cc 519-520; Geoffrey Lock, `The 1689
Bill of Rights', Political Studies XXXVII, December 1989,
pp 556-558. Back
187
QQ 606-607, 734-35; vol 2, p 159. Bribery and Article 9 Back
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