CHAPTER 4: FREEDOM OF SPEECH AND SELF-REGULATION
188. The privilege of freedom of speech
in Parliament places a corresponding duty on every member to use
the freedom responsibly. The duty is all the greater now that
the debates of the two Houses may be broadcast live anywhere in
the world. For Parliament itself to make detailed rules on what
may be said in Parliament would destroy the privilege, and this
course has always been shunned. The rules and conventions which
apply to debate in both Houses are directed primarily towards
achieving orderly debate and good temper, not to restricting the
subject matter of debate. However, absolute freedom of speech
is a far reaching privilege and the Joint Committee has considered
whether it is necessary or desirable to provide more formal safeguards
against its abuse, while protecting the essential privilege.
The sub judice rule
189. One significant limitation already
exists. Both Houses abstain from discussing the merits of disputes
about to be tried and decided in courts of law. This practice,
long established in criminal cases but of comparatively recent
origin in civil cases,
is known as the sub judice rule. The House of Commons rule is
embodied in resolutions of 23 July 1963 and 28 June 1972; the
House of Lords rule in various decisions of its procedure committee
set out in the Companion to the Standing Orders. The rules
of the two Houses are set out in annex E to this report. Both
Houses have accepted that, by implication, the sub judice rule
applies also to select committees, but it is a defect of the existing
resolutions that this is not made clear. The rule is not absolute.
In the Commons it may be waived at the discretion of the Chair.
In the Lords there is no general power of waiver, but in certain
circumstances a power of waiver is given to the Leader of the
190. Shortly stated, the rule provides that
matters awaiting adjudication in a court of law should not be
brought forward in motions, debates, questions or supplementary
questions. This is qualified, expressly in the case of the Commons,
implicitly in the case of the Lords, by Parliament's right to
legislate on any subject. The 1972 Commons resolution further
qualifies the rule by providing that in the case of civil proceedings
and subject to the discretion of the Chair, reference may be made
to matters relating to ministerial decisions `which cannot be
challenged in court except on grounds of misdirection or bad faith'
and matters concerning issues of national importance such as the
national economy, public order or the essentials of life. The
House of Lords adopted a similar qualification in 1995. When doing
so, however, the Lords did not adopt from the Commons rule the
quoted (limiting) wording relating to ministerial decisions. The
Lords rule permits discussion of matters relating to any
ministerial decision, as well as issues of national importance,
at the discretion of the Leader of the House.
191. The present rule rightly tries to strike
a balance between two sets of principles. On the one hand, the
rights of parties in legal proceedings should not be prejudiced
by discussion of their case in Parliament, and Parliament should
not prevent the courts from exercising their functions. On the
other hand, Parliament has a constitutional right to discuss any
matters it pleases.
192. It is important that a debate, a committee
hearing, or any other parliamentary proceeding should not prejudice
a fair trial, especially a criminal trial. But it is not only
a question of prejudicing a fair trial. Parliament is in a particularly
authoritative position and its proceedings attract much publicity.
The proper relationship between Parliament and the courts requires
that the courts should be left to get on with their work. No matter
how great the pressure at times from interest groups or constituents,
Parliament should not permit itself to appear as an alternative
forum for canvassing the rights and wrongs of issues being considered
by the judicial arm of the state on evidence yet to be presented
and tested. Although the risk of actual prejudice is greater in
a jury trial, it would not be right to remove appeal cases or
other cases tried without a jury from the operation of the rule.
Restrictions on media comment are limited to not prejudicing the
trial, but Parliament needs to be especially careful: it is important
constitutionally, and essential for public confidence, that the
judiciary should be seen to be independent of political pressures.
Thus, restrictions on parliamentary debate should sometimes exceed
those on media comment.
193. Criminal proceedings are a sensitive
area. Finding the right balance will always be difficult. There
is something to be said for the sub judice rule applying once
it is known police investigations are taking place and charges
may be brought. But, to be workable, the rule must have a clear
boundary. There must be clear starting and finishing points for
the rule in each case. The mere existence of police investigations,
and the possibility of charges, do not satisfy this test.
194. Although not an exact parallel, some
assistance can be gained from the provisions in the Contempt of
Court Act 1981 regarding the `strict liability rule'. This is
a rule of law whereby conduct may be treated as a contempt of
court as tending to interfere with the course of justice in particular
legal proceedings regardless of intent to do so. Under the Act
the strict liability rule does not apply to publications before
proceedings are `active' or after they have ceased to be active.
In general, the statutory definitions of when proceedings become
active or cease to be active are unexceptional. For example, civil
proceedings at first instance become active when arrangements
are made for the hearing. The relevant provisions of the Act are
set out in annex F.
195. However, there is a practical difficulty
over Parliament applying in criminal cases precisely the same
criteria as those contained in the 1981 Act. Under the Act criminal
proceedings become active when an arrest is made or a warrant
or summons to appear is issued. The difficulty lies in the different
circumstances in which the Act and the sub judice rule are applied.
Under the strict liability rule as modified by the 1981 Act, it
is for the publishers of such material to satisfy themselves that
proceedings are not active or face the consequences. However,
proceedings for contempt of court by breach of the strict liability
rule are exceptional and can only proceed with the consent of
the Attorney General or by direction of the court. In contrast,
the sub judice rule is applied routinely by the authorities of
each House and used to prevent members doing anything which might
breach the rule. If the 1981 Act formula were applied, it would
be necessary to establish, in the time available to vet, say,
a question in the Commons, whether an arrest had been made, and
that time is often a few hours or less. If the Contempt of Court
Act were followed, the House authorities would also have to be
alerted to the release of an arrested person without charge, at
which point the sub judice rule would cease to apply.
196. The practical difficulties in this
would be considerable and could be insuperable. We consider that
for the purposes of the sub judice resolutions, criminal cases
should continue to become active only when the case against an
individual is formulated in a charge or summons to appear. It
should be emphasised that drawing the line at this point does
not remove the obligation on individual members and select committees
to act responsibly and avoid actions which impede criminal investigations
or abort trials.
197. In line with the Contempt of Court
Act 1981, one desirable relaxation in the sub judice rule concerns
pre-trial applications in civil cases. Under the 1981 Act a pre-trial
application, for example, an application for an interlocutory
injunction, is treated as a distinct proceeding. Adapting this
to the sub judice rule, a member would be permitted to comment
on an interim decision after it had been given, for example, granting
an interlocutory injunction against a strike, so long as the proceedings
as a whole had not been set down for trial.
198. In the Commons the exception to the
sub judice rule for matters relating to ministerial decisions
is confined to ministerial decisions which can be challenged in
a court only on grounds of misdirection or bad faith. It seems
questionable how far there are any ministerial decisions that
can be challenged only on these limited grounds. We consider,
therefore, that this exception should be drawn more widely so
as to include any ministerial decision. In this respect the Lords
rule is preferable. At the same time it is desirable to retain
the absolute discretion of the Chair (or, in the Lords, the Leader
of the House) over discussion of ministerial decisions. There
may be special circumstances, even in judicial review, where debate
in either House could be highly prejudicial.
199. A further exception should exist, as
at present, subject to the discretion of the Chair in the House
of Commons or the Leader in the House of Lords, for any matter
where issues of national importance arise, for example, the national
economy, public order, or `the essentials of life', such as the
maintenance of essential services. Further, each House should
retain the right to legislate on any matter. This cannot be otherwise,
though it is rare that the circumstances of a particular case
current in the courts are directly relevant to pending legislation.
200. The key to the successful operation
of the sub judice rule over the years in the House of Commons
has been the sensitive use by the Speaker of discretionary powers.
In exercising this discretion the Chair is rightly vigilant to
enforce the sub judice rule and relax it only in exceptional circumstances.
The Lords have recently sought to replicate this discretion in
part, by giving powers to the Leader of the House to waive the
rule in the specific circumstances mentioned above. No rule can
anticipate every situation that may arise, and there will be times
when the Chair has to strike a balance between the public interest
in the unimpeded progress of judicial proceedings and other aspects
of the public interest.
201. In the application of a newly worded
rule, the exercise of discretion in both Houses will continue
to be important. In practice this discretion must be applied separately
in each House. But it is clearly desirable that the two Houses
should have an identical sub judice rule, and that each House
should also be in the same position to permit debate on a sub
judice matter when the circumstances warrant it. We recommend
that a general discretion to waive the sub judice rule and permit
discussion, comparable to that of the Speaker in the Commons,
should be introduced into the House of Lords. The occupant of
the Chair in the House of Lords has no special powers to impose
order or give rulings. The Leader of the House would therefore
probably be the appropriate person to exercise such a general
power of waiver.
202. We recommend that the two Houses
should adopt a resolution to the following effect. This resolution
incorporates the points made above and certain minor improvements:
`That, subject always to the discretion of the Chair,
and to the right of the House to legislate on any matter or to
discuss any delegated legislation, the House in all its proceedings
(including proceedings of committees of the House) shall apply
the following rules on matters sub judice:
1. Cases in which proceedings are active in United
Kingdom courts shall not be referred to in any motion, debate
(a) (i) Criminal proceedings are active
when a charge has been made or a summons to appear has been issued,
or, in Scotland, a warrant to cite has been granted.
(ii) Criminal proceedings cease to be active
when they are concluded by verdict and sentence or discontinuance,
or, in cases dealt with by courts martial, after the conclusion
of the mandatory post-trial review.
(b) (i) Civil proceedings are active when
arrangements for the hearing, such as setting down a case for
trial, have been made, until the proceedings are ended by judgment
(ii) Any application made in or for the purposes
of any civil proceedings shall be treated as a distinct proceeding.
(c) Appellate proceedings, whether criminal
or civil, are active from the time when they are commenced by
application for leave to appeal or by notice of appeal until ended
by judgment or discontinuance.
But where a ministerial decision is in question,
or in the opinion of the Chair a case concerns issues of national
importance such as the economy, public order or the essential
services, reference to the issues or the case may be made in motions,
debates or questions.
2. Specific matters which the House has expressly
referred to any judicial body for decision and report shall not
be referred to in any motion, debate or question, from the time
when the Resolution of the House is passed, until the report is
laid before the House.
3. For the purposes of this Resolution -
(a) Matters before Coroners Courts or Fatal
Accident Inquiries shall be treated as matters within paragraph
(b) `Motion' includes a motion for leave to
bring in a bill; and
(c) `Question' includes a supplementary question.'
Breaches of court injunctions
203. The sub judice rule does not apply
after court proceedings have ended. Each House is then free to
discuss the issues arising in the case and the court's decision.
However, in some types of case the court makes a `no publicity'
order or, which may come to much the same thing, conducts the
proceedings in private. This occurs when a trial in open court
would render the proceedings nugatory. Examples are when the subject
matter affects national security or is a trade secret. Another
instance is proceedings concerning the welfare of a child, where
a public hearing would undermine the object of the proceedings.
For the same reasons the courts sometimes make orders restraining
publicity concerning certain aspects of the case.
204. Where matters are sub judice, the self
denying rules of the two Houses mean that court proceedings are
raised more frequently in the media than in Parliament. The position
is reversed in the case of court injunctions restraining publicity:
these bind the media but not either House. Although in such circumstances
reporting a matter divulged in parliamentary proceedings is strictly
a contempt of court, the courts are in practice reluctant to proceed
against a report of what was said in Parliament. Indeed, with
live broadcasting and the publication of Hansard on the
Internet, it may be considered pointless to do so. But it is the
reporting of such a breach, and the publicity given to it, which
force Parliament to consider whether to place its own restrictions
on this particular use of free speech.
205. The issue is a difficult one. The sub
judice rule exists to ensure trials can be conducted without external
interference. That purpose applies to interim no-publicity orders.
Breach of such an interim order can prejudice the trial. That
reason no longer applies once a trial is finished or a decision
has been made. After the trial is over, the mischief is different.
The mischief then is that publicity may undermine the result achieved
by the court, to the prejudice of the parties or the national
interest. But if limits are to be imposed on parliamentary freedom
of speech, there is a real difficulty in identifying the limits
and any workable criteria or procedures.
206. This is the problem inherent in one
possibility we explored, and which two former Leaders of the House
thought might work successfully:
that a member breaching an injunction should be required to justify
his action before the privileges (or another) committee after
the event, or risk punishment for misconduct. This would not deter
a member determined to breach an injunction, but the existence
of such a procedure might deter frivolous or ill-conceived breaches.
This procedure could work only if the criteria justifying, or
not justifying, a breach of a no-publicity order were published
207. The Joint Committee considered other
possibilities. Prior vetting by a select committee, or permitting
an injunction to be breached in the House only after the public
had been excluded, are not practicable options, given the nature
of debate. Further, it might be difficult to avoid political considerations
entering into a decision when an injunction was granted at the
behest of the government of the day on a politically controversial
subject matter. To place the burden of vetting in every case in
the Commons on the Speaker would risk bringing the Speaker into
a controversial political arena. In the House of Lords, it is
difficult to see which person would be appropriate to carry out
a parallel vetting exercise.
208. A particularly controversial breach
of an injunction was the naming of `child Z' in a House of Commons
early day motion in session 1995-96. The High Court and the Court
of Appeal had both decided that the child's name should not be
disclosed. The breach of the order was given great publicity.
The Speaker referred the matter to the procedure committee. The
committee noted in its report that `the fundamental problem is
that Parliament - or more accurately a single member of Parliament
- without requiring any debate or decision in the House can set
at naught the judgment of the court, arrived at with great care,
and thereby render ineffective the remedy afforded'. At the same
time the committee observed that `the sort of proceeding complained
of is extremely rare. The case which gave rise to the reference
was almost the only one known' to the House authorities.
The committee concluded:
`If there were strong evidence to suggest that breaches
of court orders as a result of proceedings of the House represented
a serious challenge to the due process of law, we would not hesitate
to recommend a further limitation on the rights of free speech
enjoyed by members, whatever the practical difficulties. We consider
there is much judicial weight behind the suggestion of the Master
of the Rolls that, where an order has been made restraining publication
of a name or other information, Parliament would want to support
the High Court. We do not, however, consider it necessary to take
action as a result of one specific case, given the importance
the House rightly attaches to protecting the right of Parliament
to freedom of speech. We urge members to exercise the greatest
care in avoiding breaches of court orders. Should there be a number
of instances of such breaches, the House would be well advised
to adopt a resolution along the lines we set out'.
209. In evidence to the same Commons procedure
committee inquiry Sir Thomas Bingham, then Master of the Rolls,
expressed concern at the child Z incident. As Lord Chief
Justice he expressed similar concern to the Joint Committee.
210. Having re-examined the issue we do
not recommend, at this stage, going any further than the House
of Commons procedure committee in 1996. Instances such as the
child Z case, when a member deliberately sets at naught
a ruling of a court, are exceptional. We are mindful that breaches
of injunctions could give rise to injustice. We are also mindful
of the right to an effective remedy guaranteed by article 13 of
the European Convention of Human Rights, regarding, for instance,
the right to respect for private and family life. If breaches
of injunctions became frequent and Parliament were perceived to
be impeding the interests of justice, implementation of the substance
of the procedure committee's draft resolution would seem inevitable,
at least in respect of court orders relating to particularly sensitive
matters such as those made to protect the identity of children.
But until there is evidence that such a step is essential, we
are as reluctant as our predecessors to limit freedom of speech
more than is necessary. We recommend that at present
no action should be taken to limit freedom of speech in respect
of court injunctions.
211. Members will appreciate that the House
has overriding powers to discipline its members for conduct regarded
by the House as irresponsible. Accordingly, it is in members'
own interests that they should consult the House authorities in
this type of case.
Breaches of the Official Secrets Acts
212. Similar considerations apply to breaches
of the Official Secrets Acts 1911 to 1989. As with breaches of
court injunctions, the difficulty here lies in the broadcast of
the breach rather than the breach itself. It is self-evident that
members should wilfully divulge classified information in the
House only in most exceptional circumstances and after long and
careful thought. The more highly classified the information, the
more exceptional the circumstances will be. As in the case of
court injunctions, any member contemplating such a step should
seek appropriate advice.
213. It would be a serious step to limit
freedom of speech by making members liable to prosecution under
the Official Secrets Acts for what they say or do in parliamentary
It is notable that, even on the outbreak of war, and in the context
of a threat to disclose secret information regarding the state
of London's anti-aircraft defences, a House of Commons select
committee accepted that disclosures made in the course of parliamentary
proceedings were protected by article 9, and rejected any suggestion
that the privilege should be limited.
214. The House of Commons privileges committee
examined the issue in 1987. That committee firmly rejected the
option of exposing members to the risk of prosecution. This was
unjustified in principle and would create practical difficulties
for members. The privileges committee also considered whether
the House should pass a resolution prohibiting information being
given in public within the precincts of the House, either in debate
or in the course of proceedings or in any other way, which would
damage national security. The privileges committee rejected this
option too, again primarily on the ground of its interference
with freedom of speech. It thought any resolution would be too
general to be effective. It would be difficult for members to
identify what information was covered by the prohibition, and
it would be almost impossible for the Chair to enforce the resolution.
Having considered other procedural options, the privileges committee
came to this overall conclusion:
`. . . any member must be free to make public, in
the course of proceedings in Parliament, information which he
believes should be published. For example he may well consider
that certain facts, perhaps about spending large sums of money
on major weapons systems, should be disclosed in the wider public
interest, even though others may think this damaging to national
security. To give ministers the power, without the authority of
the House, to prohibit, even for a limited period, disclosure
of information about their actions, would mean that the executive
could muzzle its critics. This would strike at the very heart
of the ancient privilege of freedom of speech which is enshrined
in the Bill of Rights.'
`That, subject always to the discretion
of the Chair and to the right of the House to legislate on any
matter, no reference should be made in any motion, in debate or
in any question or supplementary question to a Minister to any
matter (a) the publication of which is subject to restraint by
order of a court of law in the United Kingdom, or (b) is of a
class of information the publication of which is expressly prohibited
by the criminal law.'
`A privilege which cannot be abused is
no privilege, for that which constitutes abuse is a matter of
opinion and it is part of the privilege of [the House of Commons]
and individual members to be able to say in this place not only
what they would not say outside without the risk of process but
to be able to say that to which grave objection is taken by every
other honourable member. Unless an honourable member could do
that, or if it was possible for his doing of it to be somehow
undone, we would have lost our power to serve those who sent us
here.': Rt Hon Enoch Powell, HC Deb 2 May 1978, c 44.
215. We cannot rule out the possibility
there may be occasions when the benefit, in the public interest,
of disclosure of a secret matter by a member outweighs any harm
caused thereby. As with breaches of injunctions, it is difficult
to envisage a workable system of prior vetting. Such a system
would not dissuade a member determined to reveal secret information.
Prior vetting could also involve a vetting committee or the Chair
making judgments essentially political in character. In practice,
few members of Parliament outside government become familiar with
information whose publication would be seriously damaging to the
state or threatening to the life of an individual. We are not
aware of any occasion when such information has been made public.
216. We do not consider there is any new
evidence since 1987 to cause us to differ from the conclusions
of the procedure committee. We recommend no action should
be taken to limit freedom of speech in respect of breaches of
the Official Secrets Acts in the course of proceedings in Parliament.
It should be noted, however, that it is always open to either
House to treat as a contempt, and to discipline severely, any
member who in the opinion of the House had grossly abused the
right of free speech.
Criticism of individuals: a right of reply?
217. The absolute privilege of freedom of
speech enables members to comment on the activities of individuals,
companies, representative bodies, interest groups or anyone else
without fear or favour. For the most part this immunity is exercised
responsibly in both Houses. In the Commons the Speaker frequently
reminds members of the duty each of them owes to the House and
the public not to abuse the privilege.
The Commons procedure committee has reminded members that the
purpose of privilege is to protect the institution of Parliament,
not to set individual members outside the law, and that members
should use parliamentary privilege responsibly.
218. Within this framework there are occasions
when members make observations on identified or identifiable people
which may be unfairly critical or even defamatory. Such statements
can damage the reputations and businesses of individuals. The
statements may be reported widely and even prominently in newspapers
and television and radio broadcasts of parliamentary proceedings.
Those impugned, however, cannot clear their names or obtain compensation.
Because of the legal immunity afforded by article 9, they have
no legal redress.
219. Some Commonwealth jurisdictions have
introduced a `right of reply' scheme to provide a form of redress
for persons who believe they have been unfairly criticised in
The schemes involve a procedure whereby such a person has an
opportunity to have a response by him incorporated into the parliamentary
In most Commonwealth schemes, the procedure does not involve
the privileges committee deciding the truth of the statements
made in the House or in the citizen's submission. The procedure
was adopted first in the Australian Senate in 1988, and later,
and modelled on it, in the Parliament of New South Wales and in
the legislative assemblies of Queensland, Western Australia, and
the Australian Capital Territory. Recently New Zealand has adopted
a similar system.
220. The House of Commons procedure committee
examined the Australian Senate's scheme when it reported on the
conduct of members in the chamber and alleged abuse of parliamentary
privilege in session 1988-89.
The procedure committee recognised the advantages of a system
which provided `a clear and relatively uncomplicated method for
an aggrieved person . . . to secure a rebuttal which enjoys something
approaching the same prominence as the original allegation' and
thought it `might conceivably deter some members from making wholly
unfounded remarks damaging to individuals, without formally proscribing
their right to do so'. But the procedure committee was concerned
the rebuttal might not appear until several weeks after the allegation,
robbing it of any immediacy. It also saw a danger that, although
the privileges committee would not be adjudicating on the truth
of the member's initial remarks or the complainant's submission,
by allowing the rebuttal at all ` somebody is passing judgment
on the member'.
They also thought it possible that, if the system was used frequently
and well publicised, every person criticised in the House would
feel bound to submit a reply, since failure by an aggrieved person
to take advantage of the procedure might be regarded as tantamount
to acceptance of the truth of the allegations.
221. We are not persuaded that the experience
of the Australian Senate since 1989, when the Commons procedure
committee reported, has dispelled the force of these criticisms.
We are not able, therefore, to recommend the introduction of
a right of reply scheme at Westminster. The introduction in this
country of such a novel form of parliamentary procedure would
suffer from the drawback of raising expectations that could not
be fulfilled. Simply to publish the text of any reply would mean
that the truth or falsity of the criticism would not be established.
No financial redress would be forthcoming. The statement itself,
even if published in Hansard, would not necessarily attract
publicity matching the original comments. Moreover, as a matter
of principle, statements by non-members ought not, in any event,
to have the benefit of the absolute privilege accorded to the
official record of parliamentary proceedings. A practical consideration
is that the problem is not a serious one at Westminster. Although
there are complaints from time to time from those who consider
they have been unfairly attacked, there is little demand for such
222. If political abuse is discounted, few
defamatory personal attacks are made against non-members in debate
in either House of the United Kingdom Parliament. When attacks
are made, it is not the case that individuals have no right to
respond at all. They are not precluded from defending themselves
robustly outside Parliament, and the media are ever watchful over
members' conduct. The target is frequently an individual or an
organisation having financial means and access to the media necessary
to amount an effective defence. In cases where there has been
an obvious injustice, we doubt whether the aggrieved party would
find difficulty in obtaining the support of other members. Early
day motions and adjournment debates, for example, offer such members
opportunities to challenge allegations made in the chamber against
named individuals. The former Mr Speaker Thomas was not far from
the mark when he said:
`. . . when an honourable member defames someone
[who is] outside the House, no one is more watchful or, sometimes,
angry than the House itself. The House has its own way of punishing
any honourable member who defames someone who cannot answer for
himself in the House . . . the House will deal with him if he
goes too far.'
223. The Joint Committee has concluded that,
taken cumulatively, for the Westminster Parliament the drawbacks
of a right of reply scheme outweigh the advantages. We accordingly
recommend that a right of reply scheme should not be adopted.
224. Free speech is the most important parliamentary
privilege and members should be careful not to abuse it. Ultimately
the responsibility lies with the individual member. We cannot
improve on the words of the Commons procedure committee of session
`We reiterate that the privilege of freedom of speech
is an essential protection for members in carrying out their duties.
There is no point in this privilege unless it provides guarantees
against attempts from outside to control what members choose to
say in the House. However, privilege carries with it responsibilities
as well as rights; and those responsibilities have to be exercised
within the rules laid down by the House and in conformity with
the standards it expects of its members. Irresponsible or reckless
use of privilege can cause great harm to outside individuals who
enjoy no legal redress and, in some circumstances, could be prejudicial
to the national interest. The strongest safeguard against so-called
abuses is the self-discipline of individual members. This means,
for instance, that a member should take steps, before making a
potentially damaging accusation against a named individual, to
ensure not only that evidence exists but that it comes from a
normally reliable source. This does not imply that a member needs
to have evidence that would satisfy a court, but that he should
act on the basis of something firmer than mere rumour or supposition.'
225. We are reluctant to impose more rules
on our colleagues. However, we are concerned that members should
be more aware of the existing rules and conventions, so they can
be better informed when they make up their own minds. There is
a need for a succinct advisory guide to assist members, particularly
new members. Newly elected members, especially when they are very
numerous, cannot be expected to acquire overnight, by a form of
parliamentary osmosis, an adequate knowledge of the practice of
the two Houses. Rules and conventions differ between the two Houses,
so there would need to be a separate guide for each House. The
purpose would be to set out, in a simpler and more user-friendly
form than Erskine May, the practice of each House in the
conduct of debate and the use by members of the privilege of freedom
of speech. No guide can be comprehensive, covering all situations.
So members should be encouraged when in doubt to obtain advice
from the House authorities. We recommend these guides should
be compiled officially, and published under the authority of each
Parliament and the judiciary
226. Much of this report is necessarily
concerned with the relationship between Parliament and the courts.
The effective working of the constitution depends on the courts
being ever sensitive to the need to refrain from trespassing upon
the province of Parliament or even appearing to do so, and on
Parliament being similarly sensitive to the need to refrain from
trespassing upon the province of the courts.
This is generally recognised by both institutions. This relationship
would not be helped if judges were to make unnecessary or exaggerated
critical comments on the actions of politicians, or if politicians
use parliamentary privilege to attack particular judicial decisions
or the character of individual judges.
227. So far as Parliament is concerned,
both Houses consider opprobrious reflections on members of the
judiciary to be out of order unless made on motion. In the Commons
36 motions critical of judges or seeking their removal have been
tabled since 1961. None has been debated.
228. Occasionally statements or actions
by members of Parliament may merit judicial criticism. Likewise,
judicial decision or comment may merit criticism by members of
Parliament. It is important for both institutions that such criticism
is made in measured terms. In all cases members should pause to
consider before tabling motions which often receive wide publicity.
We agree with the Lord Chief Justice of England that a tradition
of mutual reticence serves the country best.
239 For a historical account, see Patricia Leopold,
`The Changing Boundary between the Courts and Parliament', in
Buckley (ed) Legal Structures (Wiley, 1998). Back
See paragraphs 199-200 below. Back
`The fact that newspapers sometimes feel free to comment on issues
that are sub judice . . . is another matter, since the
courts may deal with them for contempt, and their views do not
carry with them the weight of having been delivered in Parliament'.
Mr Speaker's statement, HC Deb 916 (28 July 1976), c 883. Back
QQ 698-709. Back
Second Report, HC (1995-96) 252, paragraphs 9 and 10; and evidence,
pp 17-18 (memorandum by the Clerk of the House of Commons) and
p 1 (memorandum by Sir Thomas Bingham). See also HC Deb 30 January
1996, c 777. Back
Paragraph 16 and Annex. The words of the suggested resolution
See too Lord Bingham's letter of 5 November 1998 to the chairman
of the Joint Committee, vol 3, p 157. Back
However, Lord Bingham considered that `one has to be very careful
about any legal restraint on absolute privilege for statements
made in Parliament on the floor of either House' (Q 424). See
too Lord Bingham's letter to the chairman of the Joint Committee,
vol 3, pp 152-153. Back
The Speaker and the Clerk of the House are available to advise
One notable parliamentarian has commented: Back
HC (1986-87) 365, paragraph 52. See too, QQ 539-40. Back
e.g. HC Deb 27 January 1987, c 200; 3 March 1994, c 1114; 11
March 1998, c 554; 20 June 1998, c 482. Back
HC (1998-99) 290, especially paragraphs 67-68; HC (1995-96) 252,
paragraph 15; see also HC Deb 12 March 1998, c 761. Back
See, for example, vol 3, pp 67, 74, 77, 85, 91-92. Back
There is one exception: Western Australia, see footnote 208 below. Back
The text of the New South Wales scheme, which is typical, is
appended at annex G. The Legislative Council of Western Australia
has adopted a different procedure, but with the same aim. The
aggrieved citizen petitions the Legislative Council for redress.
The petition, which is published in the minutes of proceedings,
is considered by the committee which examines all petitions. It
is empowered to judge the truth or otherwise of the member's allegation,
and, when it sees fit, to recommend that the House should discipline
a member judged to have falsely maligned a member of the public.
In the view of the Legislative Council, this affords the aggrieved
citizen a better opportunity for redress than having a statement
by him incorporated in the official record, since the committee
is in a position to exonerate him. The number of petitions is
small. QQ 382-388. Back
First Report from the Select Committee on Procedure, HC (1988-89)
ibid paragraph 63. The quotation is from the Clerk of the House's
ibid paragraphs 62 and 63. Back
Recently the Australian Senate published a report on how the
system worked in its first eight years. Requests for a right of
reply have been few: only 27 requests were received and considered
by the privileges committee between 1989 and 1996, of which 22
were published and five not proceeded with. The privileges committee,
meeting in private, considers every application. It sometimes
finds it necessary to confer with the complainant or with the
Senator who made the accusation. A degree of editing the submissions
is almost invariably involved. It is the Senate itself which finally
decides on publication. While 16 requests were completed within
one month, including 8 within a week, the average time between
request and publication was 40 days. Given the small number of
persons using the procedure, the Senate privileges committee did
consider whether it was worthwhile continuing with the scheme.
It concluded the scheme had proved to be `a cheap and effective
way of enabling persons to put their side of the story'. See chapter
3 (Privilege 1988-96: right-of-reply matters) of the 62nd Report
of the Senate Committee of Privileges: Committee of Privileges
1966-1996: History, Practice and Procedure (June 1996). Back
Of the 165 letters received by the Joint Committee, only two
were from persons aggrieved by references to them in debate. Back
Viscount Tonypandy (formerly Mr Speaker Thomas), HL Deb 2 April
1996, c 254. Back
HC (1988-89) 290, p xx. Back
Paraphrasing Lord Donaldson of Lymington in R v. HM Treasury
ex parte Smedley  QB 657 at 666. See too, for example,
HC Deb, 8 June 1995, cc 261, 333. Back
Q 457.Control by Parliament over its Affairs Back