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.
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.
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
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
assaulting, threatening or disadvantaging
a member, or a former member, on account of the member's conduct
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
acting in breach of any orders of
failing to fulfil any requirement
of the House, as declared in a code of conduct or otherwise, relating
to the possession, declaration, or registration of financial interests
or participation in debate or other proceedings.
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
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.
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
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
268. The definition of contempt of Parliament
set out above
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.
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
The 1967 committee considered a serious defamation of the Speaker
or other occupants of the Chair might well continue to be treated
In practice the Lords have long ceased to take any notice of
an abusive contempt, and the Commons decision in 1978
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.
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.
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 therebyas they saw itto 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.'
Penalties: the present position
271. Historically the power to adjudge a
contempt is linked to the power to commit to prison.
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,
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.
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.
A writ of summons, which entitles a peer to `a seat, place and
voice' in Parliament, cannot be withheld from a peer.
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.
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.
The 1977 committee considered that, if there were power to fine,
the power to imprison should cease.
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
Accordingly it is convenient to consider members and non-members
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.
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.
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.
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.
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
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.
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
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
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.
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
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.
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
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
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
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
The practice currently used to investigate these complaints is
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.
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
290. In a recent report
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
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.
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,
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
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.
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).
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.
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
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.
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.
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.
Sometimes the conduct is a criminal offence. Then the criminal
law should take its course.
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
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.
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
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.
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
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.
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)
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.
At present, this is not so. We recommend a definition
of contempt should be codified, along the lines mentioned above.
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
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.
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.
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)
(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
(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.
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
If there is a dispute over the applicability of article 9, the
court will decide it.
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.
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.
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.
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'
5. Parliament should retain its existing
disciplinary powers over members, except that the power to imprison
should be replaced with a power to fine.
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.
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
8. The power of the House of Lords to suspend
its members should be clarified and confirmed.
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.
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.
`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
Erskine May's definition is to be found in the 22nd ed
(1997), p 108. Back
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
Letter from the Daily Mail, vol 3, p 161. Back
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
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)
Paragraph 264. Back
Second Report of the Committee of Privileges, HC (1956-57) 38;
HC Deb (1956-57) 563 cc 403-405. Back
Clerk of the Parliaments' memorandum, vol 2, p 58, paragraph
17; Clerk of the House of Commons' memorandum, vol 2, p 6, paragraph
HC (1966-67) 34, paragraphs 44 and 45. Back
CJ (197-78) 170. Back
Parliamentary Privileges Act 1987 (Australia): Back
See Dr Geoffrey Marshall's comments on `constructive contempts
by speech or writing', vol 2, p 206. Back
Joint Memorandum by the Clerks of the two Houses, vol 3, pp 143-144,
paragraphs 55 and 56. Back
Erskine May, 1st ed (1844), p 49. Back
The possession by the Commons of the power to fine was denied
by Lord Mansfield in R v Pitt (1762) 97 ER 861. A quotation
from this judgment and a discussion of the issues is contained
in the Third Report of the Committee of Privileges, HC (1976-77)
417, p xix. Back
Vol 2, p 58, paragraph 19. Back
Erskine May, 22nd ed (1997), pp 39-40. A contrary view
was expressed by Lord Herschell, an ex-Lord Chancellor: see Hansard,
3rd series, vol 334, c 333, quoted in paragraph 22 of the Report
by the select committee appointed to inquire into the powers of
the House in relation to the attendance of its members, HL (1955-56)
ibid, paragraph 12. Back
Erskine May, 22nd ed (1997) pp 39-40 and earlier editions
appear to envisage the temporary exclusion of peers. The select
committee on the powers of the House in relation to the attendance
of its members appears to have expressed the contrary view (LJ
1955-56, p 179, paragraphs 25-28), and this view is cited by the
Clerk of the Parliaments in his memorandum, vol 2, p 58, paragraph
19, footnote 20. Back
HC (1967-68) 34, recommendation 23 and paragraphs 195-197. Back
Except that the power to detain until the rising of the House
persons who have caused a disturbance in the galleries, or elsewhere
in the precincts, should be retained: HC (1976-77) 417, paragraphs
See paragraph 305 below. Back
The case of Mr Garry Allighan: CJ (1947-48) 20, when a motion
that the member be suspended for six months was amended by the
House. Members committing electoral offences or who are sentenced
to imprisonment for committing a crime may also be disqualified.
A member vacates his seat forthwith if he is sentenced to a term
of imprisonment for more than one year for a criminal offence
(Sections 1 and 2 of the Representation of the People Act 1981)
or if convicted of corrupt electoral practice (Sections 160 and
173 of the Representation of the People Act 1983). There is no
provision for intervention by the House (HC Deb, 25 June 1981,
col 449). Felony, which had been a disqualification for sitting
and voting under the Forfeiture Act 1870, was abolished by the
Criminal Law Act 1987. The last case of expulsion of a member
by the House following a conviction was under that Act, in 1954
(Captain Peter Baker): CJ (1954-55) 25, 29 and HC Deb (1954-55)
535 c 1986. The vote probably had no legal effect. Between 1967
and 1981 there was no statutory provision. The House has expelled
members convicted of a crime not attracting statutory disqualification:
CJ (1990-91) 262, CJ (1922) 319. In 1919, following a report by
a committee of the Privy Council appointed under the Titles Deprivation
Act 1917, two peers who had supported Germany in the war were
deprived of their writs of summons. This was in exercise of a
specific statutory power. Back
e.g. the Bar Council of England and Wales, Law Society, Institute
of Chartered Accountants, Institute of Actuaries, General Optical
Commons Standing Order No. 45A adopted on 4 June 1998 provides
that the salary of a member suspended from the service of the
House shall be withheld for the duration of his suspension. Previously,
members suspended from the service of the House under Standing
Order No. 44 (order in debate) did not forfeit their salaries,
whereas members suspended otherwise usually did so. As with any
other standing order, the House could vary it in appropriate circumstances. Back
See paragraph 272 above. Back
Select Committee on Parliamentary Privilege, HC (1967-68) 34,
paragraphs 184-191; First Report of the Select Committee on Standards
in Public Life, HC (1994-95) 637, Appendix 2(b), `modus operandi'. Back
(1992) 14 EHRR 47. See also memorandum by Liberty. vol 3, p 51
and evidence of Mr Nigel Pleming QC, QQ 874-78. However, see too
the case of Pierre-Bloch v France (120/1996 732/938), 21
October 1997. Back
The text of article 6 is quoted in footnote 157 above. Back
e.g. The Lord Chief Justice of England, vol 2, p 109; Mr James
Price QC, vol 3, pp 29-33; of Liberty, vol 3, pp 50-55; Mr Nigel
Pleming QC, QQ 847-848. Back
Commons S.O. No.149 (committee on standards and privileges) and
S.O. No. 150 (parliamentary commissioner for standards). Back
It should be noted that in two cases, however, the committee
and the commissioner have used different procedures. See reports
of the standards and privileges committee: HC (1996-97) 359: (complaint
against the Rt Hon Michael Howard MP); Special Report, HC (1996-97)
34, Fourth Report, HC (1996-97) 359, First Report HC (1997-98)
30: (complaints against 25 members and former members). Back
The committee may also, exceptionally, carry out its own investigation
into matters arising from a report by the commissioner. Back
Twenty-first Report of the Committee on Standards and Privileges,
Appeal Procedures, HC (1997-98) 1191. Back
See paragraphs 280-285, 289. Back
QQ 395-405, 652-654, 742-47, 755; vol 2, p 109. Back
HC (1997-98) 1191. Back
Charles Edmund Grissell had failed to attend as a witness before
the Tower Hill Level Bridge (Metropolis) Committee: CJ (1880)
70, 73-77. Back
See paragraph 268 above (Mr John Junor); CJ (1956-57) 66. Back
One order required the papers of a lobbying company to be made
available to the parliamentary commissioner for standards in an
investigation of allegations of improper payments to members.
The second required the United Grand Lodge of England, the main
governing body of the freemasonry in England and Wales, to identify
which individuals, from lists supplied by the home affairs committee
of names of police officers and others who had been connected
with possible miscarriages of justice, were freemasons. The papers
were produced: see minutes of proceedings of the committee on
standards and privileges,27 January 1997, HC (1996-97) 421; minutes
of proceedings of the home affairs committee, 19 February 1998,
HC (1997-98) 573. Back
See footnote 47 above. Back
Retention by the two Houses of their contempt powers received
strong support in evidence, e.g. Dr Geoffrey Marshall: `The contempt
power of each House of Parliament is essential and should be retained,
not least for the discipline of its own members': vol 2, p 206.
Although there is no modern case of the House of Lords using its
contempt powers, the Clerk of the Parliaments considered that:
`the House must have the power to enforce its orders, to deal
with serious impediments to, or interference with, its proceedings,
and also, in the last resort, to deal with serious affronts to
the dignity of the House. For these purposes it needs the power
to punish for contempt just as the courts need that power': vol
2, p 58, paragraph 17. Back
e.g. R v Roche, R v Egan, The Times 18 February
1971, p 4, in which gas canisters had been thrown into the Commons
As to temporary detention, see paragraph 312 below. Back
Contempt of court and contempt of Parliament are closely analogous.
There is no limit upon the amount of a fine that the High Court
can impose for contempt of court. Back
See footnote 47 above. Back
See Criminal Justice Act 1982, section 37, as amended by the
Criminal Justice Act 1991, section 17(2). Back
The Lord Chief Justice of England, Lord Bingham of Cornhill,
said in evidence: Back
Paragraph 264. Back
See paragraph 18 above. Back
See paragraphs 103-112 above. Back
See paragraph 104 above. Back
The judicial committee comprised, exceptionally, seven law lords:
Viscount Simonds and Lords Goddard, Morton of Henryton, Reid,
Radcliffe, Somervell and Denning. In those days dissenting opinions
were not permitted in the judicial committee. The dissenting judgment
Lord Denning wished to deliver appears as an annex to Geoffrey
Lock's article `Parliamentary privilege and the courts: the avoidance
of conflict' in Public Law, spring 1985. Back
The 1967 committee considered that `in the normal case' the penal
jurisdiction of the House should not be invoked to attempt to
avoid the issue of a writ or the consequences of its service:
paragraph 47. Back
See paragraphs 130-132 above. Back
Paragraph 264. Back
Paragraphs 276, 312. Back
Paragraphs 305, 277-278, 301-303, 310-311, 313. Back
Paragraphs 310-311. Back
Paragraphs 276-279. Back
Paragraphs 280-286, 289. Back
Paragraphs 293-299. Back
Paragraph 279. Back
Paragraphs 265-267. Back
Paragraphs 319-323.Other Privileges Back