Parliamentary Privilege

Parliamentary Privilege First Report

CHAPTER 6: DISCIPLINARY AND PENAL POWERS

262. Parliament's disciplinary and penal powers are part of the control exercised by Parliament over parliamentary affairs. Parliament has long held these powers, over non-members as well as members. Most institutions exercise a degree of discipline over their members. So long as the disciplinary offences and the punishments are reasonable, and the procedures are fair, this is unexceptionable. Parliament is unique in also possessing its own inherent powers of punishment over non-members. This penal jurisdiction derives from the status of the High Court of Parliament and the need for each House to have the means to carry out its functions properly. If non-members improperly interfere with Parliament or its members or officers in discharging their public duties, Parliament for its own protection must have power to take appropriate action in response.

263. Such interference, whether by members or non-members, is known as `contempt of Parliament'. Violations of members' rights and privileges are also known as `breaches of privilege'. In this report we use the expression `contempt of Parliament', as this focuses attention on the underlying mischief: interfering with Parliament in carrying out its functions.[299]

Contempt of Parliament

264. Contempts comprise any conduct (including words) which improperly interferes, or is intended or likely improperly to interfere, with the performance by either House of its functions, or the performance by a member or officer of the House of his duties as a member or officer.[300] The scope of contempt is broad, because the actions which may obstruct a House or one of its committees in the performance of their functions are diverse in character. Each House has the exclusive right to judge whether conduct amounts to improper interference and hence contempt. The categories of conduct constituting contempt are not closed. The following is a list of some types of contempt:

— interrupting or disturbing the proceedings of, or engaging in other misconduct in the presence of, the House or a committee

— assaulting, threatening, obstructing or intimidating a member or officer of the House in the discharge of the member's or officer's duty

— deliberately attempting to mislead the House or a committee (by way of statement, evidence, or petition)

— deliberately publishing a false or misleading report of the proceedings of a House or a committee

— removing, without authority, papers belonging to the House

— falsifying or altering any papers belonging to the House or formally submitted to a committee of the House

— deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House or a committee

— without reasonable excuse, failing to attend before the House or a committee after being summoned to do so

— without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee

— without reasonable excuse, disobeying a lawful order of the House or a committee

— interfering with or obstructing a person who is carrying out a lawful order of the House or a committee

— bribing or attempting to bribe a member to influence the member's conduct in respect of proceedings of the House or a committee

— intimidating, preventing or hindering a witness from giving evidence or giving evidence in full to the House or a committee

— bribing or attempting to bribe a witness

— assaulting, threatening or disadvantaging a member, or a former member, on account of the member's conduct in Parliament

— divulging or publishing the content of any report or evidence of a select committee before it has been reported to the House.

Additionally, in the case of members:

— accepting a bribe intended to influence a member's conduct in respect of proceedings of the House or a committee

— acting in breach of any orders of the House

301

Premature publication and leaked documents

265. Unauthorised publication of committee papers calls for comment. Unauthorised publication takes place in two circumstances: disregarding an embargo on publication before a stated date or time, and publishing the contents of a document not intended for publication (a `leaked' document). In the latter regard one newspaper[302] drew to the Joint Committee's attention the fact that draft reports often become `available' to reporters, and urged that publication of articles about these drafts, far from being in contempt of the House, should be protected by some sort of privilege.

266. When a leaked document comes into the possession of the media, their first instinct is to publish. But the media also have a duty not to undermine the effective functioning of Parliament. Leaks of draft reports or unreported evidence can have a disruptive effect on the work of a select committee, and in some circumstances the House itself. The primary responsibility, and therefore the more serious contempt, rests upon the person who leaked the document. But this does not absolve the newspaper or broadcaster from a duty to act responsibly. The circumstances of each case will vary. The media are not, and should not be, exempt from punishment for contempt when publication substantially interferes with the work of a House or one of its committees.

267. As to embargoes on publication, the system by which the media and persons closely concerned with an inquiry, such as witnesses, receive advance copies of reports and other publications depends upon committees having confidence that the embargoes will be respected. Breaches of embargoes undermine this system, and if they became frequent might even lead to the system having to be scrapped. This would not be welcomed by any of those concerned, since they would lose the opportunity to read and consider publications thoroughly in advance of their general publication. Nor would it be in the public interest. In the House of Lords the matter is not governed by standing orders or other formal rules. House of Commons standing orders permit release of embargoed copies of select committee reports to the press after the reports have been laid upon the Table of the House.[303] Breach of this embargo would not strictly be a contempt in terms of the relevant resolution of the House of 1837, which only forbids publication of committee material that has not been laid upon the Table.[304] We recommend that the House of Commons should replace the 1837 resolution with a resolution which applies to reports at any time prior to publication and to the unauthorised use of committee material, and that the House of Lords should pass a similar resolution.

Abusive contempts

268. The definition of contempt of Parliament set out above[305] makes no specific provision for `abusive contempts'. An abusive contempt consists of words or actions by any person which either House considers disrespectful, insulting or defamatory. In the past, Parliament, and the House of Commons in particular, treated as contempts various affronts to its dignity, such as insults addressed to the House or members, and defamations of the House or the Speaker or individual members. Newspapers, and later broadcasts, were once a focus of members' complaints. The last time the House of Commons contemplated using its penal powers, in 1957, was in respect of an editor whose apology to the committee of privileges was deemed insufficient. He had published an article in which he claimed that members were evading petrol rationing.[306]

269. Times have changed. The Commons is now less sensitive. The Clerks of both Houses thought there was still a case for retaining this aspect of contempt, for example, in connection with a particularly vitriolic and personal press campaign.[307] The 1967 committee considered a serious defamation of the Speaker or other occupants of the Chair might well continue to be treated as contempt.[308] In practice the Lords have long ceased to take any notice of an abusive contempt, and the Commons decision in 1978[309] to require evidence of substantial interference before treating a matter as a contempt has considerably reduced its scope. It may be noted that the Australian joint committee in 1984 considered claims of contempt in this area should be abandoned, and sections 4 and 6 of the Parliamentary Privileges Act 1987 (Australia) effectively abolished abusive contempt.[310]

Section 4: `Conduct (including the use of words) does not constitute an offence against a House unless it amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member.'

Section 6(1): `Words or acts shall not be taken to be an offence against a House by reason only that those words or acts are defamatory or critical of the Parliament, a House, a committee, or a member.'

Section 6(2): `Subsection (1) does not apply to words spoken or acts done in the presence of a House or a committee.'

270. We can see no need to retain abusive contempt as a separate head of contempt of Parliament.[311] If the abuse is so sustained or of such a degree that it amounts to an improper interference with the House or its members, then it constitutes a contempt anyway. Similarly, any abuse which occurs in the course of and interrupts parliamentary proceedings constitutes a contempt. If there is no interference with Parliament's work, the abuse does not call for action from Parliament. The Clerks of the two Houses summed up the position well:

`In the past, Parliament interpreted the obstructive element in contempt fairly liberally, and proceeded sternly against abusive comment and behaviour calculated to subject them to public ridicule, and thereby—as they saw it—to obstruct them. More recently, however, both Houses have passed over in silence much that would have attracted an energetic response in previous years. The dignity which contempt offends against was tacitly seen as better preserved by ignoring abuse than by punishing it.'[312]

Penalties: the present position

271. Historically the power to adjudge a contempt is linked to the power to commit to prison.[313] In the eighteenth and early nineteenth centuries committal to the custody of the Serjeant-at-Arms, or to prison, was a regular punishment. The House of Commons has power to imprison until the end of the current parliamentary session, however long or short that may be. The House of Lords has power to imprison indefinitely.

272. Alternative punishments are formal admonishment or reprimand. The Commons used to have power to fine. This power was last used in 1666. It was called into question by the courts in the eighteenth century[314], and should be regarded as lapsed. The House of Lords still retains the power to fine, but it is open to doubt whether, in practice, the means exist to enforce payment.[315] Contempts by members may also be punished in the Commons by suspension (and loss of pay) for a period up to the end of the Parliament, and by expulsion. The House of Lords does not have power to suspend a member permanently.[316] A writ of summons, which entitles a peer to `a seat, place and voice' in Parliament, cannot be withheld from a peer.[317] A peer can be disqualified temporarily either by statute or at common law, for reasons such as bankruptcy or being under age. Whether a peer can otherwise be suspended within the life of a single Parliament is not clear.[318]

273. The 1967 committee concluded that the present penal powers were inadequate to fulfil their necessary role in the protection of Parliament. They recommended that the House of Commons should be empowered to impose a fine, and to commit to prison for a period unaffected by the end of a session but subject to a maximum prescribed by law.[319] The 1977 committee considered that, if there were power to fine, the power to imprison should cease.[320]

Members

274. The underlying mischief of contempt of Parliament is the same in the case of members and non-members. Furthermore, as a point of general principle, it could not be right, and would not be acceptable, for non-members to be exposed to more severe penalties than members. If anything, one would expect members who are in contempt to be punished more severely than outsiders. In practice, this is what has happened in the past. In other respects, however, members and non-members are differently placed.[321] Accordingly it is convenient to consider members and non-members separately.

Jurisdiction

275. As far as members are concerned, there can be no doubt that each House should remain responsible for disciplining its own members. The Joint Committee has taken this as axiomatic. It is inconceivable that power to suspend or expel a member of either House should be exercisable by the courts or some other outside body.

Penalties

276. Although both Houses have power to imprison, neither House has used the power in recent times in respect of members or non-members. The House of Commons punishes members found guilty of a serious contempt by suspension or admonishment or both. Expulsion has not been used for half a century. The last time a member was expelled, save following a criminal conviction and sentence of imprisonment for twelve months, was in 1947.[322] No suggestion has been made to the Joint Committee that the Commons should lose its powers of admonishment, suspension or expulsion, which are widely seen as essential for internal discipline. The House of Lords has not found the need to impose any punishment on a member this century.

277. To some outside Parliament the absence of a power for the Commons to fine its members might seem surprising. The imposition of a financial penalty is commonplace as a disciplinary sanction. For example, the power to impose a fine as a disciplinary measure exists in several leading professional bodies.[323] The House of Commons already has power to impose one form of financial penalty: loss of salary for the period of suspension usually follows when a member of the Commons is suspended from the service of the House.[324] Thus, the principle has already been established. Nor would a power to fine expose members to a more draconian penalty than anything currently existing, because power to imprison, an even more serious penalty, is already available against members.

278. The Joint Committee believes that empowering the House to impose a financial penalty when suspension is undesirable, or is inadequate (for instance, as a Parliament draws to an end), would be, in principle, a modest and sensible addition to the range of disciplinary powers available to the House. Further, it would be most undesirable that power to fine should be available against non-members, as we recommend below should be the position, if this penalty were not available against members.

279. Accordingly, the Joint Committee recommends that the House of Commons should have power to fine members and that the power of the House of Lords to fine should be confirmed. We expect the occasions calling for the exercise of the power to fine by either House will be few and far between. As regards imprisonment of members, we believe this extreme form of punishment is no longer needed or appropriate in either House. We also recommend that the power of the House of Lords to suspend its members[325] should be clarified and confirmed. The House of Commons has power to suspend its members, and it would be anomalous and undesirable if this were not the position in the House of Lords.

Procedural fairness

280. Contempt is a serious matter. A finding of contempt of either House against a member may have adverse consequences of a high order, particularly when it relates to the member's personal conduct. If our recommendations are accepted, a member will not be exposed to the risk of imprisonment. But in a particularly serious case a member of the House of Commons faces the prospect of suspension and significant financial loss and, which may be more worrying for him, the destruction of his political career. Even when a member is not suspended, the electorate may react adversely to his conduct as revealed during investigation of a complaint made against him. It is important, therefore, that the procedures followed in the investigation and adjudication of complaints should match contemporary standards of fairness.

281. While fairness is fundamental to any disciplinary procedure, the more serious the consequences, the more extensive must be the safeguards if the procedure is to be fair. Some allegations of contempt are more serious than others. In dealing with specially serious cases, we consider it is essential that committees of both Houses should follow procedures providing safeguards at least as rigorous as those applied in the courts and professional disciplinary bodies. At this level the minimum requirements of fairness are for the member who is accused to be given:

— a prompt and clear statement of the precise allegations against the member;

— adequate opportunity to take legal advice and have legal assistance throughout;

— the opportunity to be heard in person;

— the opportunity to call relevant witnesses at the appropriate time;

— the opportunity to examine other witnesses;

to receive transcripts of evidence.

In determining a member's guilt or innocence, the criterion applied at all stages should be at least that the allegation is proved on the balance of probabilities. In the case of more serious charges, a higher standard of proof may be appropriate.

282. These safeguards accord with recommendations of previous select committees, most recently the select committee on standards in public life which advocated comparable protections.[326]

283. Further, any person who has a personal interest in the matter under investigation, including a person who made the complaint, should be disqualified from participating in relevant proceedings of the committee or the House, other than as a witness. Again, this is elementary fairness, because those accused are entitled to a hearing by an impartial tribunal: no one should be judge in his own cause. This is also in accordance with the European Convention of Human Rights. In Demicoli v Malta[327] the editor of a political satirical magazine criticised the parliamentary behaviour of two members of the Maltese House of Representatives. The House found the editor guilty of contempt. The two members whose conduct was criticised, and who had raised the breach of privilege claim in the House, participated throughout in the proceedings. The European Court of Human Rights held this violated the editor's right to have a fair hearing by an independent and impartial tribunal. Since the editor faced the possibility of imprisonment for 60 days or a fine, the proceedings warranted classification as criminal and attracted the protections guaranteed by article 6 of the European Convention of Human Rights.[328] In that case the person charged with contempt was a non-member, but it would be unwise to assume the requirements of fairness would be significantly less for members.

284. Several witnesses[329] drew our attention to the possible application of the European Convention on Human Rights to Parliament. Although proceedings in Parliament are excluded from the Human Rights Act 1998 and from the jurisdiction of United Kingdom courts, they may nevertheless be within the jurisdiction of the European Court of Human Rights. The existence of this jurisdiction is a salutary reminder that, if the procedures adopted by Parliament when exercising its disciplinary powers are not fair, the proceedings may be challenged by those prejudiced. It is in the interests of Parliament as well as justice that Parliament should adopt at least the minimum requirements of fairness.

285. The general position in select committees is that, although it is usual to call witnesses, committees are not bound by rules of evidence as that term is understood by the courts. A committee is not permitted to hear counsel, unless the House (exceptionally) gives it power to do so. A member or any other person being investigated has no right to call witnesses or question witnesses. Unless questions are asked through the Chair, select committee procedure would not permit such questioning. Modern practice is to provide transcripts of evidence and invite comments, but select committees need not do so. Against this background we turn to consider the procedures adopted in the Lords and the Commons in disciplinary cases.

286. The situation in the House of Lords with regard to disciplinary cases is very different from that in the House of Commons. The House of Lords has in modern times found it unnecessary to take formal steps to defend its privileges. The Lords have not investigated or punished a contempt for at least a hundred years. One factor is that the House has a long and successful tradition of informal self-regulation, and its formal mechanisms for dealing with contempt are accordingly modest. The committee for privileges would be the body responsible for dealing with any issues of contempt that might arise, although the committee's work this century has been largely confined to occasional disputed peerage claims. Four law lords are invariably members of this committee and their presence would help to ensure that proceedings are conducted appropriately. If contempt issues were to arise, the safeguards mentioned above would need to be observed.

287. In the House of Commons an investigation into allegations of contempt can arise in two ways. Allegations of a contempt (or `breach of privilege'), not being a breach of the code of conduct, may only be made by a member of Parliament. Such allegations are made in writing to the Speaker. If she considers that prima facie a contempt has been committed, she places the matter before the House. The House usually refers the matter to the standards and privileges committee, which carries out the functions of the former privileges committee. This committee investigates the matter in accordance with the procedures used by other select committees. The committee reports its findings and recommendations to the House. The imposition of a penalty is a matter for the whole House. Complaints of this character more usually involve non-members than members.

288. Other investigations arise from a complaint made to the parliamentary commissioner for standards by a member or non-member, regarding the registration or declaration of a member's interests or other aspects of the propriety of a member's conduct.[330] The practice currently used to investigate these complaints is as follows.[331] Having received a complaint, the commissioner either rejects it as vexatious or frivolous or investigates it. When an investigation is completed, the commissioner reports her findings on the facts to the standards and privileges committee together with her opinion on whether there has been a breach of the code of conduct (which subsumes rules relating to declaration, registration, and improper advocacy of pecuniary interests). The committee broadly reviews the commissioner's procedures and evidence, reaches a conclusion on whether there has been a breach, assesses its gravity and recommends what penalty, if any, should be imposed.[332] The imposition of a penalty is a matter for the House. In almost all cases investigated in this way there has been no substantial disagreement over the facts with the members against whom the cases were brought.

289. In this review the Joint Committee is concerned to identify the safeguards which, as a matter of principle, should be built into these procedures. If the need for such safeguards is accepted, the manner in which the desired result is best achieved in practice is a matter for consideration, in the first instance, by the Commons' standards and privileges committee.

290. In a recent report[333] the committee on standards and privileges recommended that changes should be made in the existing procedures relating to one aspect of their work: investigations of complaints made to the parliamentary commissioner regarding breaches of the code of conduct. Its recommendations were to the following effect. In serious cases the commissioner might invite the committee to appoint a legally qualified assessor who would assist in the investigation and, where appropriate, share responsibility for the findings. Where the commissioner does not accept the member's account of the facts, the commissioner should, on completion of the investigation, inform the member of the findings of fact in sufficient detail to enable the member to decide whether he wishes to appeal to the committee. The committee would have power to reject summarily a frivolous appeal or an appeal on matters peripheral to the complaint. The committee would also have power to decide, regarding a bona fide appeal on a matter central to the complaint, what form the appeal should take. If the committee considered a re-hearing of all or some of the evidence was appropriate, the committee should have power to refer the case to an ad hoc tribunal, consisting of three eminent and independent persons (including an experienced lawyer). Sitting members of the House would not be eligible for appointment. The role of the tribunal would be limited to inquiring into disputed questions of fact and reporting its conclusions to the committee. The tribunal would determine its own procedures.

291. The Joint Committee considers the revised procedures recommended by the standards and privileges committee are attractively flexible and that, with some elaboration, they could accommodate adequately the safeguards we have mentioned. In particular, when deciding an appeal on a disputed issue of fact central to a complaint, the tribunal will need to ensure the necessary safeguards are available to the member. The tribunal should afford the member the opportunity to question witnesses and call relevant witnesses of his own, if he did not have this opportunity during the commissioner's investigation. If the tribunal decides to adopt an adversarial type of procedure, with one of the law officers or another lawyer leading the questioning of the member, fairness will normally require that the member also should have the opportunity to be legally represented. In order to carry out its fact-finding role satisfactorily, the tribunal may also consider it necessary to identify the ingredients of the alleged offence. This is the context in which the tribunal will make its findings.

292. The standards and privileges committee has not, however, considered the procedure relating to complaints alleging contempt referred to them by resolution of the House. In this area the requirements of fairness set out above[334] will call for changes in procedure. The standards and privileges committee has devised machinery for appeals on factual disputes in `conduct' cases. It should now devise and recommend to the House a comparable procedure for `privilege' cases.

Decision of the House

293. At present, a finding of contempt by a committee and any recommendation for punishment comes before the House for decision. This procedure has the attraction, from the parliamentary point of view, that a decision involving a penalty is always that of the whole House and not merely a committee. The House remains in control throughout. But this practice raises difficulties of procedural fairness.

294. The Joint Committee believes it would be wrong if the ultimate decision were no longer made by the whole House. We consider the least unsatisfactory way of achieving this is for each House to have power to endorse the report of the committee, or to depart from it by ordering a reduced penalty or no penalty at all. The House should have no power to increase the penalty above that recommended by the committee. This solution is imperfect and untidy, but no better course has been suggested or has occurred to us whereby a body, as large as the whole House and subject to partisan pressures, may continue to be involved in making decisions on the exercise of disciplinary powers in a particular case.

295. A decision by the whole House also provides the member with an opportunity to have the report of the standards and privileges committee reviewed by another body. The existence of this opportunity is in line with the general expectation today that persons found guilty of disciplinary offences should have some avenue of appeal: there should be some means, internal or external, enabling them to have the finding against them reviewed. Thus, professional organisations normally provide an internal appeal procedure. In some professions, such as the medical, dental and veterinary professions, disciplinary decisions can be appealed to the judicial committee of the Privy Council. While neither House, as a constituent body of a sovereign Parliament, can be equated with a professional organisation, members of the House who are being disciplined ought equally to be able to have recourse to an appeal procedure.

296. It was suggested to the Joint Committee that in cases where a person who was subject to parliamentary jurisdiction disputed a decision that his actions were a contempt, or claimed the penalty was disproportionate, an appeal should be considered by the judicial committee of the Privy Council.[335] The procedure would be similar in character to the review of disciplinary decisions by a professional body. The Joint Committee has considered whether some such right of appeal to the judicial committee or some other outside body is called for.

297. So far as disputed issues of fact are concerned, a right of appeal, as recommended by the standards and privileges committee of the House of Commons[336], would render unnecessary a further appeal on questions of fact in `conduct' cases in that House. The position would be the same in `privilege' cases (and cases in the House of Lords) if comparable procedures were introduced to deal with disputes of fact.

298. On all other matters calling for review, such as the procedures adopted and penalty imposed, we consider that the review by the House of the committee's report furnishes reasonable and adequate protection for a member. The member has an opportunity to address the House and raise any matter he wishes. Although the committee's decision is only a recommendation, and not itself a final decision, we believe that in substance a right to challenge this recommendation is equivalent to a right of appeal. Accordingly, none of the members of the committee should vote in the House, although the chairman and other members of the committee should be eligible to participate in the debate. Traditionally, such debates are well attended, and members do not divide on party lines. We see no reason to doubt that this tradition will be carefully respected.

299. In reaching our conclusion we have been influenced by the constitutional implications of a member having a right of appeal, even of a limited nature, from a decision of the House of Commons to a court of law or other tribunal. Such a right of appeal would detract from the sovereignty of Parliament over proceedings in Parliament, and accordingly it is intrinsically undesirable. Had we considered that fairness to a member called for such an innovation, we would have so recommended. Since fairness does not so require, we do not recommend that Parliament should embark upon such a course, inherent in which is a real prospect of conflict between the courts of law and Parliament.

Non-members

300. The penal powers of the two Houses are seldom used against non-members. The Lords have not exercised their powers to commit, or even to find a non-member guilty of contempt, since the early nineteenth century. The last time the House of Commons imprisoned a non-member, except overnight in the custody of the Serjeant-at-Arms for disorderly conduct in the galleries, was in 1880 (for failing to attend as a witness).[337] The last time a non-member was summoned to the bar of the House of Commons to apologise or take the consequences, which might have included committal, was in 1957.[338] Since the House of Commons resolved in 1977 to consider using its penal powers only in cases of substantial interference with its work, or the threat of substantial interference, fewer cases have been considered, and in no case has the House punished a non-member.

Penalties

301. The first question to be considered is whether contempt of Parliament by non-members should still attract any punishment at all. We believe it should. Take, as an example, the investigatory work of committees. Powers must exist to ensure that committee investigations can proceed, that witnesses will attend and that papers will be produced. Apart from public officials and ministers, many interest groups and representative bodies, and many companies and private individuals, also appear regularly before select committees of both Houses. They almost always appear voluntarily. However, occasionally witnesses are unwilling to appear, or information necessary to an inquiry is not willingly provided. In two recent Commons cases orders had to be issued for the production of papers to a select committee.[339] In this regard it is pertinent to note that, although legislation for the three recently devolved parliamentary bodies treats privilege differently from Westminster, in each case failure to attend proceedings or answer questions or produce documents is a criminal offence.[340]

302. If the work of Parliament is to proceed without improper interference, there must ultimately be some sanction available against those who offend: those who interrupt the proceedings or destroy evidence, or seek to intimidate members or witnesses; those who disobey orders of the House or a committee to attend and answer questions or produce documents.[341] Sometimes the conduct is a criminal offence. Then the criminal law should take its course.[342] In the case of non-members that will normally suffice. But unless a residual power to punish exists, the obligation not to obstruct will be little more than a pious aspiration. The absence of a sanction will be cynically exploited by some persons from time to time.

303. For the same reason we are in no doubt that, to be effective as a last resort, the punishments themselves must be meaningful. The prospect of being summoned to the bar of the House and reprimanded may be a sufficient sanction in many cases. For other non-members, perhaps with commercial interests involved, something tougher may be appropriate for a grave contempt. Accordingly the Joint Committee considers there should be power to fine non-members. Imprisonment, not used for over a century, should be abolished as a form of punishment.[343]

Jurisdiction

304. Parliament ought, if practicable, to retain its jurisdiction over non-members, rather than find itself beholden to others, such as the courts, to provide protection. This is constitutionally desirable. Furthermore, Parliament is better placed than the courts to assess the seriousness or triviality of a contempt. The balance between the freedom of the individual and the essential protection of Parliament involves considerations of a political character. Whether obstructive conduct can sensibly be overlooked or treated leniently or requires a tough response is a matter for the judgment of Parliament.

305. Parliament must, however, be practical. The desirability of retaining this jurisdiction must not be allowed to obscure the difficulties involved in such a process today. Parliament is not a court of law. It is one thing for the House to discipline its own members. That can be regarded as primarily an internal matter, even though suspension of a Commons member has unhappy consequences for the member's constituents. It is altogether different for the House to impose punishment, potentially serious, on non-members. By becoming members of Parliament, members agree to abide by the rules of the House, including the rules relating to discipline; outsiders have agreed to nothing.

306. We do not think it practicable for Parliament to provide, and be seen to provide, the procedural safeguards appropriate today when penalising persons who are not members of Parliament. A debate by the whole House, for instance, on whether to impose a fine on a non-member, and if so how much, is far removed from current perceptions of the proper way to administer justice. Despite the weighty arguments of principle and the break with tradition involved, we have been constrained to conclude that for practical reasons punishment of non-members for contempt of Parliament should, in general, now be transferred to the courts.

307. Parliament should retain a residual jurisdiction. No Parliament based on the Westminster model has wholly abandoned its penal jurisdiction over non-members. We think the practical reasons for transferring jurisdiction to the courts are not inconsistent with Parliament retaining a residual jurisdiction.

308. The next question concerns the form of the court proceedings. One possibility is that specific types of contempt should be made criminal offences. A difficulty with relying exclusively on criminal sanctions is that the more narrowly defined are the offences, the greater the risk they may be inadequate; the more widely drawn the offences, the greater the risk they may embrace conduct by a member over which the House would wish to retain exclusive disciplinary jurisdiction. Conduct could hardly be proscribed as a criminal offence when committed by a non-member but not when committed by a member.

309. We think the better course is the enactment of a provision whereby in future the High Court will exercise, concurrently with Parliament, the jurisdiction currently possessed by Parliament to punish non-members for contempt of Parliament. The punishment would be a fine of unlimited amount.[344] Proceedings would be initiated and conducted on behalf of either House by the Attorney General. He would initiate proceedings on being requested by the Leader of the House of Lords acting on the advice of the committee for privileges of the Lords, or the Speaker of the House of Commons acting on the advice of the standards and privileges committee of the Commons. These officers would refer a matter to the Attorney General only if they considered there was a prima facie case of contempt and that court proceedings were called for. The committees would meet in private, so as to reduce any risk of unfairly prejudicing the subsequent court proceedings. For the same reason, the decision to refer the matter to the Attorney General would be better made by the Leader of the House of Lords or the Speaker, in conjunction with the committees, rather than the whole House. The procedure in court would be comparable to that applicable to proceedings for contempt of court. Costs would lie in the discretion of the judge. Rights of appeal would be the same as those generally applicable to decisions of the High Court.

310. One important form of contempt is readily identifiable and definable as a criminal offence, namely, wilfully failing to attend before the House or a committee when summoned or to answer questions or produce documents, or deliberately altering, suppressing or destroying a document. This has been recognised in the legislation establishing the devolved assemblies.[345] In each case conduct of this character has been made a criminal offence, punishable by a fine not exceeding level 5 on the standard scale (currently £5000[346]) or imprisonment for up to three months. We recommend that such conduct should similarly be made a criminal offence in the case of Parliament at Westminster, but in this instance the maximum punishments should be an unlimited fine or three months' imprisonment.

311. This offence would necessarily apply to members and non-members. We attach importance to the existence of a penal sanction for this type of contempt, although we expect this criminal offence would rarely, if ever, be committed. The circumstances would be extreme, when the evidence required was essential and all else had failed. Should such circumstances arise, fairness requires that the same penalties should be applicable for this offence whether it is committed by a non-member or a member. Members of the Commons are subject to disciplinary sanctions such as suspension and expulsion to which non-members are not subject, but we do not think this justifies excluding members from the scope of this criminal offence.

312. We believe the residual jurisdiction retained by Parliament would be called for in three circumstances. First, each House should continue to exercise the power to search, and detain in custody for a short time, persons who misconduct themselves in the galleries of the House or elsewhere in the precincts, or who are suspected of having committed some other contempt of the House, including contravention of any rule or order of the House. These summary powers, needed to preserve security and good order, are best exercised by the Houses themselves.

313. Second is the case where the Leader of the House of Lords or the Speaker, as the case may be, is of the opinion that, if the contempt were admitted, the appropriate punishment would be a reprimand by the House and not a referral to the court. The non-member would be asked to consider this opinion. If he accepted it and acknowledged that he acted in contempt of the House, the House itself should dispose of the matter.

314. The third situation comprises the exceptional case, if special circumstances should ever arise, where either House wishes to exercise the penal jurisdiction itself. We have no specific instances in mind, but the existence of this residual jurisdiction will serve as a reminder of the constitutional principle that Parliament itself has a penal jurisdiction over non-members.

Codification of contempt

315. The penal nature of contempt of Parliament makes it particularly important that its scope should be clear and readily understandable by all.[347] At present, this is not so. We recommend a definition of contempt should be codified, along the lines mentioned above.[348] The suggested definition is apt to cover new forms of obstruction, should they arise, as well as existing forms. In order to make this definition more informative and intelligible, it should be accompanied by a short list of some forms of contempt. We recommend the codification should be in statutory form, rather than by resolutions of the two Houses, to ensure the courts are bound by the chosen definition.

Statutory powers

316. Statutes already exist to deal with two serious classes of offences. The primary responsibility for the protection of its witnesses rests with Parliament, and at the beginning of every session the House of Commons resolves to proceed `with the utmost severity' towards any person who obstructs or tampers with a witness. However, this warning is supported by statute. The Witnesses (Public Inquiries) Protection Act 1892 includes penalties for those who are proved, before the courts, to have threatened or punished any person on account of evidence given by that person before a committee of either House, unless that evidence was given in bad faith. It also includes provision for damages when the witness has been defamed or materially disadvantaged.

317. Perjury before a House or a committee is dealt with in statute, as well as being a contempt. The Lords have always had the power to take evidence on oath and to treat false evidence as being liable to the penalties of perjury. That right was given to the Commons, on a permanent basis, in 1871 by the Parliamentary Witnesses Oaths Act, superseded by the Perjury Act of 1911.

318. These are two instances where parliamentary privilege was not intended to stand in the way of evidence relating to proceedings being given in court. In the light of the prominence given in this century to article 9, it would be advisable to reaffirm these two statutory exceptions to that article in any future statute on privilege. We are not aware of any prosecutions under either statute. Presumably, these statutes would be considered only when a grave offence was specifically drawn to the attention of the House and the prosecuting authorities by the appropriate committee.

Contempt of Parliament and access to the courts

319. One aspect of contempt of Parliament calls for amendment. It concerns section 1 of the Parliamentary Privilege Act 1770. This Act was passed at a time when court proceedings against members were often being delayed by members claiming immunity from being impleaded.[349] Section 1 provided:

`Any person . . . may commence and prosecute any action . . . in any court . . . against any peer or Lord of Parliament of Great Britain, or against any of the knights, citizens, and burgesses . . . of the House of Commons of Great Britain . . . and no such action shall at any time be impeached, stayed, or delayed by or under colour or pretence of any privilege of Parliament.'

320. Attention was drawn to this section by the Strauss case mentioned above.[350] It will be recalled that Mr Strauss wrote a letter to a minister making allegedly defamatory statements regarding the London Electricity Board. The board's solicitors demanded a withdrawal and apology, failing which a writ of libel would be issued. Mr Strauss brought this letter to the attention of the House and the Speaker ruled that the threat constituted a prima facie case of breach of privilege. The committee of privileges concluded:

(1) in writing his letter to the minister Mr Strauss was engaged in proceedings in Parliament (The House later disagreed with this view[351])

(2) by threatening libel proceedings in respect of statements made in the course of proceedings in Parliament the board and their solicitors had acted in breach of the privilege of Parliament

(3) the opinion of the judicial committee should be sought on the question whether the House would be acting contrary to the Parliamentary Privilege Act 1770 if it treated the issue of a writ against a member in respect of a proceeding in Parliament as a breach of its privileges.

321. The judicial committee held that the House would not be acting contrary to the statute of 1770 in treating the issue of such a writ as a breach of its privileges.[352] The statute applied only to proceedings against members of Parliament in respect of their debts and actions as individuals and not their conduct in Parliament as members.

322. The effect of this decision is that a citizen can be restrained from having access to courts of law, under pain of being amenable to Parliament's penal jurisdiction. The Joint Committee considers this is indefensible today. If a person institutes a court action regarding a statement made in the course of parliamentary proceedings, the court will be obliged to dismiss the action forthwith. The court must give effect to article 9. That is the route by which the legal immunity conferred by article 9 should be given effect, not by invocation of Parliament's penal powers.[353] If there is a dispute over the applicability of article 9, the court will decide it.[354] The law, as it now stands, may well be a breach of the right of access to a court guaranteed by article 6(1) of the European Convention of Human Rights.

323. The Joint Committee recommends amending legislation to the effect that, without prejudice to article 9 of the Bill of Rights 1689, section 1 of the Parliamentary Privilege Act 1770 includes court proceedings brought against members of Parliament in respect of statements made or acts done in the course of proceedings in Parliament.

Recommendations on disciplinary and penal powers

324. We recommend as follows:

1. Contempt of Parliament should be codified in statute. Contempts comprise any conduct which improperly interferes with the performance by either House of its functions, or the performance by a member or officer of the House of his duties.[355]

2. Parliament's power to imprison persons, whether members or not, who are in contempt of Parliament should be abolished, save that Parliament should retain power to detain temporarily persons misconducting themselves within either House or elsewhere within the precincts of Parliament.[356]

3. For practical reasons Parliament's penal powers over non-members should, in general, be transferred to the High Court. Parliament should retain a residual jurisdiction, including power to admonish a non-member who accepts he acted in contempt of Parliament. Proceedings should be initiated on behalf of either House by the Attorney General, at the request of the Speaker, advised by the standards and privileges committee or of the Leader of the House of Lords acting on the advice of the committee for privileges. The court should have power to impose a fine of unlimited amount.[357]

4. Wilful failure to attend committee proceedings or answer questions or produce documents should be made criminal offences, applicable to members and non-members, punishable in the courts by a fine of unlimited amount or up to three months' imprisonment.[358]

5. Parliament should retain its existing disciplinary powers over members, except that the power to imprison should be replaced with a power to fine.[359]

6. In the interests of fairness, some of the disciplinary procedures of the Commons committee of standards and privileges need to be revised, as would those of the Lords committee for privileges if the need arose for that committee to consider contempts. The minimum requirements of fairness should be those set out above.[360]

7. Each House should retain power to itself to make the decision on contempt matters, save that the House should not have power to increase the penalty above that recommended by the relevant committee. Members of the relevant committee should be eligible to participate in any debate in the House but should not vote.[361]

8. The power of the House of Lords to suspend its members should be clarified and confirmed.[362]

9. Each House should resolve that unauthorised disclosure of embargoed copies of reports presented to the House but not yet published, and the unauthorised use of committee material, may be treated as a contempt.[363]

10. Section 1 of the Parliamentary Privilege Act 1770 should be amended so as to include, but without prejudice to article 9 of the Bills of Rights, court proceedings brought against members of Parliament in respect of statements made or acts done in the course of proceedings in Parliament.[364]

`I think it is desirable that the law of parliamentary privilege should be clearly and precisely stated, even if the code has to be amended from time to time to accord with changing conditions. If anyone were convicted of, and punished for contempt when there might, at the time of the contempt, have been doubt whether the conduct was contemptuous or not, there would be scope for argument under articles 6 and 7 of the European Convention.': vol 2, p 109.

The Attorney General said in evidence `. . . I think there is a case for codification . . . it might be possible . . . to draw up some general code of what constitutes contempt . . . it would not be exhaustive, there would always be a residual area which could not be dealt with'. (Q 295)

299 Several witnesses made valuable comments on Parliament's contempt jurisdiction and on the need for its retention: see e.g. vol 2, pp 6-7 (Clerk of the House of Commons), p 58 (Clerk of the Parliaments), p 130 (Mrs Patricia Leopold), pp 205-206 (Dr Geoffrey Marshall). See too the memoranda from the Commonwealth Parliaments printed in vol 3. Back

300 Erskine May's definition is to be found in the 22nd ed (1997), p 108. Back

301 We were much helped in compiling this list by Standing Order 396 of the New Zealand House of Representatives which contains an equivalent list of contempts. Back

302 Letter from the Daily Mail, vol 3, p 161. Back

303 Commons Standing Order No 134 permits the release of embargoed copies of select committee reports to the press only after these reports have been laid upon the Table, and not more than 48 hours before the intended time of publication. See also Commons Standing Order Nos 135 (witnesses and evidence, select committees) and 136 (publication of evidence, select committees). Back

304 The resolution of 1837 provides `that according to the undoubted privileges of the House, and for the due protection of the public interest, the evidence taken by any select committee of the House, and documents presented to such a committee, and which have not been reported to the House, ought not to be published by any member of such committee, or by any person': CJ (1837) 282. For a detailed examination, see Second Report from the Committee of Privileges: premature disclosure of proceedings of select committees: HC (1984-85) 555. Back

305 Paragraph 264. Back

306 Second Report of the Committee of Privileges, HC (1956-57) 38; HC Deb (1956-57) 563 cc 403-405. Back

307 Clerk of the Parliaments' memorandum, vol 2, p 58, paragraph 17; Clerk of the House of Commons' memorandum, vol 2, p 6, paragraph 26. Back

308 HC (1966-67) 34, paragraphs 44 and 45. Back

309 CJ (197-78) 170. Back

310 Parliamentary Privileges Act 1987 (Australia): Back