Parliamentary Privilege

Parliamentary Privilege First Report

CHAPTER 5: CONTROL BY PARLIAMENT OVER ITS AFFAIRS

229. Parliamentary freedom of speech guaranteed by article 9 is one facet of the broader principle that what happens within Parliament is a matter for control by Parliament alone. Such matters will not be reviewed by the courts.[264] In a recent case the judicial committee of the Privy Council summed up the position:

`So far as the courts are concerned, they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges.'[265]

This principle is usually known as `exclusive cognisance': cognisance here bears its obsolete legal meaning of jurisdiction, or the right to deal with a matter judicially.[266]

230. The principle manifests itself as a collection of related rights and immunities. It is perhaps these privileges particularly which must be measured against the test we set ourselves at the outset of our inquiry: is each right and immunity necessary today, in its present form, for the effective functioning of Parliament? does it balance fairly the needs of Parliament with the rights of the individual?

Right of each House to provide for its proper constitution

231. Each House has the right to provide for its proper constitution. The House of Lords alone decides any question relating to the succession to a peerage. The House of Commons may determine whether members of that House are qualified to sit and vote, although the right to determine whether members are duly elected has been transferred by statute almost wholly to the courts. The Commons retain the power to expel by simple resolution, unchallengeable in the courts. It also decides when a writ for a by-election shall be issued. A leading authority summarised the position as follows:

`. . . the ordinary civil and criminal jurisdiction of the courts does not extend to determining the rights of members to sit in the House, and the courts equally have nothing to do with questions affecting its membership except in so far as they have been specially designated by law to act in such matters . . .'.[267]

This right is an attribute of a sovereign legislature. No change is called for here.

Right to judge lawfulness of own proceedings

232. Both Houses have long claimed, and succeeded in maintaining, the right to be the sole judges of the lawfulness of their own proceedings and to determine, or depart from, their own codes of procedure. Courts of law accept Parliament's claim that they have no right to inquire into the propriety of orders or resolutions of either House relating to their internal procedure or management. Except for purposes of statutory interpretation, the courts do not `look behind the Act' or consider themselves competent to consider the processes within Parliament preparatory to enactment.[268] With minor statutory exceptions[269], the two Houses have a substantial measure of independence in the way in which they organise their business and regulate their internal organisation. Speaking in his judicial capacity in 1974 Lord Morris of Borth-y-Gest stated:

. . . the question of fundamental importance which arises is whether the court should entertain the proposition that an Act of Parliament can so be assailed in the courts that matters should proceed as though the Act or some part of it had never been passed. . . such doctrine would be dangerous and impermissible. It is the function of the courts to administer the laws which Parliament has enacted. In the processes of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality, unless and until it is amended or repealed by Parliament. . . it must surely be for Parliament to lay down the procedures which are to be followed before a bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed: it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. . .'[270]

233. This ancient right remains of fundamental constitutional importance. The exclusive right of the two Houses to make and to vary their own rules of procedure protects the legislative supremacy of Parliament and the exclusive right of the Commons to grant aids and supplies.

Right to institute inquiries and call for witnesses and papers

234. The right to institute inquiries and require the attendance of witnesses and production of documents (`to send for persons, papers, and records') is part of the law and custom of Parliament. At least since Elizabethan times committees have been examining matters where witnesses were required to appear.[271] Although committee inquiries concentrate on the scrutiny of government, and (in the case of the Commons particularly) on ensuring the proper and effective use of public money, investigations into other matters of public interest have always been an important element of select committee work. Evidence is usually taken in public and broadcast, and transcripts are published.

235. Committees usually work best when they seek evidence by co-operation with witnesses rather than confrontation. However, committees sometimes may need to use the powers given them by the House to require witnesses to attend and answer questions. In these circumstances it is important they should be seen to be fair in the treatment of those who take part in their proceedings. Attendance as a witness before a parliamentary committee can be a daunting experience, particularly for witnesses from outside government circles. Ministers and senior departmental officials are accustomed to committee proceedings, and are able to look after themselves, though even here committees should recognise the importance of fairness and restraint.

236. To other witnesses the procedure is unknown, the setting is imposing, and the environment can seem hostile. The ability to ask questions under parliamentary privilege, uninhibited by rules of evidence or other legal safeguards, carries with it special responsibilities. Special care needs to be exercised when committees question witnesses about conduct which may be the subject of criminal charges. In such cases witnesses should always have the right to legal representation, to know in advance any accusation they will be required to answer, and to see any evidence on which it is based.

237. We recommend that all those who participate in committee proceedings should have available to them, in advance, a clear statement of the powers of Parliament and their own rights in regard to them. Each House should prepare and issue to all potential witnesses a guide similar to that issued to all its witnesses by the New Zealand House of Representatives.[272] An important part of this guide will be a clear statement of the conduct which constitutes contempt of Parliament and, therefore, if the contempt were serious enough, would cause Parliament to invoke its penal powers. The guide will supersede the briefs currently produced by the Commons for witnesses attending departmental select committees.

238. There is a long-standing convention in Parliament that one House does not compel the attendance of a member of the other House before its committees.[273] The underlying rationale is the desire to avoid conflict between the two Houses. It means that a member of one House, in respect of what he says or does as a member of that House, is not accountable to the other House. The convention is all-embracing and can give rise to anomalies today. For instance, it means that a former minister can be required to attend a Commons committee if he remains a member of the House of Commons or if he leaves Parliament, but not if he is elevated to the House of Lords.

239. It is important that ministers and former ministers elevated to the House of Lords should attend select committees in the other House to answer questions relating to their periods in office. The work of these committees is an essential element of Parliament's scrutiny of the executive. We are not aware of any specific instance where the work of a select committee has been substantially impeded by this rule. Even so, we consider it is preferable that this convention, affecting as it does the relationship between the two Houses, should be examined afresh in the light of today's conditions (when former ministers frequently move from the Commons to the Lords). It would be much better to avoid the possibility of confrontation on this issue. We recommend that the procedure committees of the two Houses should investigate and report on the desirability of the convention in modern circumstances.[274]

Right of each House to administer its internal affairs within its precincts

240. Each House has the right to administer its internal affairs within the parliamentary precincts. The courts have accepted this principle in full measure. In Bradlaugh v Gosset[275] the court declined to intervene when the House of Commons refused to allow a member who was an avowed atheist to take the oath even though he was required to do so by statute.

241. In one important respect this heading of privilege is unsatisfactory. `Internal affairs' and equivalent phrases are loose and potentially extremely wide in their scope. On one interpretation they embrace, at one edge of the spectrum, the arrangement of parliamentary business and also, at the other extreme, the provision of basic supplies and services such as stationery and cleaning. This latter extreme would be going too far if it were to mean, for example, that a dispute over the supply of photocopy paper or dismissal of a cleaner could not be decided by a court or industrial tribunal in the ordinary way. Here, as elsewhere, the purpose of parliamentary privilege is to ensure that Parliament can discharge its functions as a legislative and deliberative assembly without let or hindrance. This heading of privilege best serves Parliament if not carried to extreme lengths.

Precincts of Parliament not a haven from the law

242. One point is clear: the right is intended to protect each House in respect of the conduct of its internal affairs. This privilege does not embrace and protect activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament. Thus, unless protected by article 9 as part of proceedings in Parliament, the speech and conduct of members enjoy no special privilege under this heading. Article 9 aside, members can be prosecuted for criminal conduct, such as a breach of the official secrets legislation[276], or pursued in the civil courts for slander or other wrongs, even when the conduct complained of occurred within the Palace of Westminster. If a member is charged with a criminal offence, no waiver of immunity is required. If one of their members is imprisoned and cannot attend the House, the two Houses expect only to be informed of the fact. The same principle applies to the premises in which Parliament meets. A criminal offence committed in the precincts is triable in the courts. A member may be arrested within the precincts.[277]

243. This point was illustrated in 1986 in the Zircon case. The BBC had prepared, but decided not to broadcast, a television film called The Secret Story. The film included material on a secret defence project, concerned with a means of collecting intelligence, code-named Zircon. Some members of the House of Commons arranged to show the film within the precincts of the House. The Speaker, Mr Bernard Weatherill, was reluctant to intervene.[278] So the Attorney General applied to the court, on the ground of national security, for an order banning the showing of the film within the precincts of the House of Commons until the House had an opportunity to decide whether the showing of the film should be allowed. In the exercise of his discretion, the judge refused to grant an injunction, taking the view that the matter should be under the control of the House of Commons authorities even in advance of any motion in the House. The Speaker then made a banning order.

244. The House of Commons privileges committee considered the proposed showing of the film, under arrangements made privately by a member, would not have been protected by privilege as a proceeding in Parliament. The committee observed:

`it might be thought . . . that the fact that something is done within the precincts of the House might afford that action some kind of immunity or protection of privilege. This would mean that the precincts of the House would somehow be treated as a sanctuary from the operation of the law, irrespective of whether the activities concerned were a proceeding in Parliament. . . . your Committee can find no precedent for the House affording its Members any privileges on the sole ground that their activities were within the precincts. The fact that the Zircon film was to be shown in the precincts therefore gave those responsible no privileged protection'.[279]

245. The privileges committee considered, moreover, that in the absence of the protection afforded to proceedings in Parliament by article 9, the courts had jurisdiction to grant an injunction:

`It must be recognised, however, that the courts do have jurisdiction in relation to matters which are not covered by privilege. . . . the precincts of the House should not be treated as a sanctuary from the operation of the law. An injunction could, for example, be granted which would prevent those bound by the injunction (whether members or not) from disclosing material within the precincts of the House (except as part of a proceeding of the House). Disclosure in these circumstances would be in contempt of court.'[280]

The committee added that the courts might, in the exercise of their discretion, decline to grant an injunction, for example, if the House could regulate the matter itself.

The need for a dividing line

246. Putting aside the activities of individuals, there is a need to distinguish between activities of the House which call for protection under this head of privilege and those which do not. The Palace of Westminster is a large building; it requires considerable maintenance; it provides an extensive range of services for members; it employs and caters for a large number of staff and visitors. These services require staff and supplies and contractors. For the most part, and rightly so, these services are not treated as protected by privilege. It is difficult to see any good reason why claims for breach of contract relating to catering or building services, for example, should be excluded from the jurisdiction of the courts, or why a person who sustains personal injury within the precincts of Parliament should not be able to mount a claim for damages for negligence.[281] This has been formally recognised in the Parliamentary Corporate Bodies Act 1992. Under this Act each House established a corporate officer who can sign contracts on behalf of the House and sue or be sued.

247. The dividing line between privileged and non-privileged activities of each House is not easy to define. Perhaps the nearest approach to a definition is that the areas in which the courts ought not to intervene extend beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament's sovereignty as a legislative and deliberative assembly. One example is the Speaker's decision on which facilities within the precincts of the House should be available to members who refuse to take the oath or affirmation of allegiance.[282] Another example might be steps taken by the library of either House to keep members informed upon matters of significant political interest. Such steps, if authorised by the presiding officer of the House, would properly be within the scope of the principle and not amenable to orders of the court.[283]

248. It follows that management functions relating to the provision of services in either House are only exceptionally subject to privilege. In particular, the activities of the House of Commons Commission, a statutory body appointed under the House of Commons Administration Act 1978[284], are not generally subject to privilege, nor are the management and administration of the House departments. The boundary is not tidy. Occasionally management in both Houses may deal with matters directly related to proceedings which come within the scope of article 9. For example, the members' pension fund of the House of Commons is regulated partly by resolutions of the House.[285] So too are members' salaries[286], and the appointment of additional members of the House of Commons Commission[287] under section 1(2)(d) of the House of Commons Administration Act. These resolutions and orders are proceedings in Parliament, but their implementation is not.

Precincts of Parliament: a statute-free zone?

249. Unfortunately, the need to draw a dividing line has been obscured by the decision in the A P Herbert case in 1934. The sale of alcohol without a justices' licence was a criminal offence. Motivated no doubt by a desire to be circumspect and not trespass upon matters properly belonging to Parliament, Lord Chief Justice Hewart decided the courts would not hear a complaint regarding sales of alcohol in the precincts of Parliament without the necessary licence because the House of Commons was acting collectively in a manner which fell within the area of the internal affairs of the House.[288]

250. This decision, which has not escaped criticism, has spawned difficulties and anomalies, mainly but not solely in the field of employment. Statutes treated as not binding upon either House on the basis of this decision have included the Prices and Incomes Act 1966, the Industrial Relations Act 1971, the Health and Safety at Work etc. Act 1974, the Food Safety Act 1990, and the Data Protection Acts 1984 and 1998.[289] Many of these Acts have been applied voluntarily, but the criticism remains that the law-makers are exempt from the laws they make for everyone else.[290] This criticism is forceful, because these Acts cover activities far removed from core activities of Parliament. Parliamentary privilege exists to enable members to discharge their duties to the public. It cannot be right that this privilege should have the effect that Parliament itself, within the place it meets, is not required to comply with its own laws on matters such as health and safety, employment, or the sale of alcohol.

251. Whether the decision in the A P Herbert case was in accordance with earlier cases is not a matter we need pursue. The decision has never been considered in a higher court. For the purposes of this review, it is the practical consequences that matter. We consider the practical consequences of this decision are not satisfactory. We recommend the enactment of a provision to the effect that the privilege of each House to administer its own internal affairs in its precincts applies only to activities directly and closely related to proceedings in Parliament. We recommend, further, there should be legislation clarifying that, as to activities which are not so related, there should be a principle of statutory interpretation that in the absence of a contrary expression of intention Acts of Parliament bind both Houses. The legislation could usefully include some examples of internal affairs on each side of the line. We envisage this provision would operate for the future, because a sweeping retrospective change applying to all existing legislation would have unforeseeable practical repercussions. For the future, whenever Parliament is to be exempt, a reasoned case should be made out and debated as the legislation proceeds through Parliament.

Disclosure and use of select committee papers

252. A troublesome complication arises from the fact that some administrative functions and advice on a range of administrative matters are provided by select committees, for example, the offices committee in the House of Lords and the domestic committees in the House of Commons. Because these are select committees, what is said and done at their meetings ranks as proceedings in Parliament. Accordingly it is immune from scrutiny by the courts. Yet, of its nature, the work of these committees is seldom the kind of business that merits legal immunity. The business they transact is different in character from the work of other select committees which typically consider government policy and expenditure, examine legislation or investigate matters of public concern.

253. The initial complication is that parties to non-criminal proceedings in the courts are usually required to produce all documents in their possession which are material to the dispute. It is in the interests of each House that when the corporate officers or others make contracts on their behalf, the House should not be hampered in the conduct of subsequent court proceedings by being unable to comply with these court procedures.

254. Sir Donald Limon, then Clerk of the House of Commons, drew attention to a court action brought against the House of Commons by a disappointed contractor for work on Portcullis House, the new parliamentary building opposite Big Ben.[291] Select committee papers relevant to the contract had been included (with the permission of the House of Commons, secured by motion) in the documents exchanged between the parties. This met the obligation to disclose, but left unresolved the crucial question of how the disclosed material could, if relevant, be used in the course of the trial. Article 9 precluded such use. Unlike its non-statutory privileges, the House of Commons had no power to waive this statutory provision.

255. This is not satisfactory. The House might lose an action, or be forced to discontinue, where committee documents were relevant but could not be fully examined because of article 9. This problem is not confined to contractual disputes or employment disputes. A similar difficulty might arise in the case of any other civil action (for example, a claim for damages for personal injuries) where the corporate officer of the House was sued or wished to sue, although in such cases select committee proceedings are less likely to be involved than in decisions on a major building contract.

256. There seem to be three possible courses of action. One is to enact a statutory exception to article 9. The drawback with this lies in the difficulty of formulating an adequate definition. A provision that article 9 should not apply to any matter for which the corporate officers are responsible[292], or any matter relating to the employment of persons by either House, would be a useful step forward, but this would not suffice. The exception would also need to cover some non-contractual claims, such as claims in respect of personal injuries suffered in the precincts of Parliament. No doubt other types of claim may arise to which the exemption should apply. This difficulty might be met by the statute listing various types of claim and empowering each House by resolution to add to the list.

257. A second course, and possibly the simplest solution which, furthermore, would not require legislation, is a course the two Houses might find most difficult to accept: select committees should in all cases cease to deal with administrative matters. Other, less formal, committees might be appointed to give advice.

258. A third possible course is to make use of the statutory power of waiver we have already suggested should be given to each House.[293] We have emphasised this power would not be available where waiver would expose the speaker of the words or the doer of the acts to any legal liability. This limitation would still exist in this context. This limitation would not exclude the use of waiver in the types of case now under consideration, because any liability would be that of the House or a corporate officer acting on its behalf. In practice, the House could not be expected to consider each candidate for a waiver as it arises. Accordingly, it would be convenient for the legislation to provide that the power of waiver could be exercised by the presiding officer or other authorised officer, in accordance with general or specific authority given by the House from time to time. It would then be a matter for each House to prescribe, and keep under review, the types of case in which the authorised officer might grant the waiver.

259. The Joint Committee prefers the third of these possibilities. As matters stand at present, we consider this is the only practical solution. It offers a higher degree of flexibility than the first option. The second option would require radical alteration to the way administrative and domestic matters have traditionally been handled by committees of members. We recommend the power of waiver of article 9 mentioned earlier in this report[294] should be exercisable by an officer of the House on its behalf in accordance with authority given by the House from time to time. This recommendation does not preclude either House from revising its arrangements for transacting domestic and house-keeping matters.

Definition of precincts of Parliament

260. The large measure of control exercised by the two Houses over the premises where they meet has symbolic as well as practical importance. The Palace of Westminster is a royal palace, and used to be controlled on the Sovereign's behalf by the Lord Great Chamberlain. Control of the use of the precincts of the two Houses is now vested in their presiding officers on behalf of the House. [295] Rules made by the two Houses determine who may enter the precincts and the conditions on which the premises may be used. The police on duty in the two Houses are under the direction of the Serjeants-at-Arms.[296] Both Serjeants have power given them by their respective Houses to deal with misconduct by non-members.

261. The position of the two Houses in this regard, and the powers of their presiding officers, are not set out in any statute. Nor are `precincts' statutorily defined. The extent of the precincts has never been a matter of dispute in court. The two Houses assume that precincts include, and that the courts would accept they include, in addition to the Palace itself and its immediately surrounding areas such as Old Palace Yard and New Palace Yard, various buildings adjacent to the Palace occupied for parliamentary purposes.[297] Two former leaders of the House of Commons, Lord Newton of Braintree and Mr John McGregor MP, said in evidence that the absence of a statutory definition of precincts had not caused any practical difficulty.[298] We see no need for any change in the present position.

264 Q 797. Back

265 Prebble v TV New Zealand [1995] 1 AC 321. Back

266 The principle is also known as `exclusive jurisdiction'. Back

267 JP Joseph Maingot QC: Parliamentary Privilege in Canada, 2nd ed (1997), p 189. Back

268 They may consider, of course, whether the application of the Act does or does not conflict directly in a particular case with other statutes or with Community law, e.g. R v Secretary of State for Transport ex parte Factortame (No. 2) [1991] 1 AC 603. Back

269 e.g. the provision in the Provisional Collection of Taxes Act 1968 (as amended) for giving immediate provisional validity to those proposals contained in the Budget that are to come into force before specific statutory authority can be obtained: see Erskine May, 22nd ed (1997), pp 789-790. Back

270 Pickin v British Railways Board [1974] AC 765 at 788-790. Back

271 e.g. D'Ewes Journal p 396. There is much fragmentary evidence on early committees, but little detail on how they worked. E.g. on 10 February 1629 a committee was appointed to investigate a member being served with a subpoena while sitting on a committee in the Exchequer chamber, and other matters, and given power `to send for any persons, records or other things for their information' and as an afterthought the House ordered that all committees `having power from the House, to send for persons and witnesses to have like power from the House to require any to attend the House at such time as they shall think fitting': (CJ 1 (1803 printing) 928, (1629)). The right to compel the attendance of witnesses was recognised by the court in Howard v Gosset (1845) 10 QB 359, 395. See also the decision of the High Court of Australia in Egan v Willis [1998] HCA 71 on the right of the House to call upon a minister to produce official documents and suspend him as a measure of coercion. Back

272 The main sections of the New Zealand Guide to Natural Justice before Select Committees appear in vol 3 to this report, p 182. See too the standing orders of the New Zealand House of Representatives. For a commentary on the interpretation of those standing orders, see the report of the standing orders committee on the review of standing orders (1995, 1.18A) pp 78-84 and appendix F (report to the standing orders committee by Professor Philip Joseph). See also vol 3, pp 102-4 (Victoria). Back

273 Erskine May, 22nd ed (1997), p 648. Formerly the express permission of the House was required but Standing Orders now provide that a member may always attend in the other House if he sees fit to do so. Back

274 If the two procedure committees decided that the convention was no longer relevant or hampered the work of parliamentary scrutiny of the executive, effect could be given to the decision by way of amendments to the present standing orders: Commons Standing Order No. 138, Lords Standing Orders 21 and 22. Back

275 (1883) 12 QBD 271; Erskine May, 22nd ed (1997), p 89. Back