CHAPTER 9: A PARLIAMENTARY PRIVILEGES ACT
376. The Joint Committee's recommendations
require enactment by legislation in the following instances:
— `proceedings in Parliament' to be
defined
— `place out of Parliament' to be defined
— the scope of the prohibition on `questioning'
to be clarified
— section 13 of the Defamation Act
1996 to be replaced with a power for each House to waive article
9 for the purpose of court proceedings where the words spoken
or the acts done in proceedings in Parliament would not expose
the speaker of the words or the doer of the acts to any legal
liability
— article 9 not to apply to court proceedings
so far as they relate to interpretation of an Act of Parliament
or subordinate legislation or judicial review of government decisions
or the consequences of government decisions, or the non-critical
use of statements where no legal liability is involved
— Parliament to have power to exclude
from article 9 tribunals appointed under the Tribunals of Inquiry
(Evidence) Act 1921
— application of article 9 to Scotland
and Northern Ireland, and parliamentary privilege in general,
to be clarified.
2. Control over parliamentary affairs:
— Parliament's sole control over its
own internal affairs in the precincts to apply only to activities
directly and closely related to proceedings in Parliament. As
to other activities, statutes should be assumed to bind both Houses
in the absence of contrary intention
— contempt of Parliament to be defined
— the powers of each House to fine
to be stated and the power to imprison to be abolished, save for
temporary detention of persons misconducting themselves within
the precincts of Parliament
— the courts to be given a concurrent
jurisdiction in respect of contempt of Parliament by non-members
— failure to attend proceedings or
answer questions or produce documents to constitute criminal offences,
punishable with a fine of unlimited amount or up to three months'
imprisonment
— the Parliamentary Privilege Act 1770
to be amended to include court proceedings in respect of proceedings
in Parliament
— freedom from arrest, immunity from
subpoenas, and privilege of peerage to be abolished, and application
of Mental Health Act 1983 to peers to be clarified.
3. Reporting of parliamentary proceedings:
— The Parliamentary Papers Act 1840
to be replaced by a modern statute.
377. We recommend these legislative
provisions should be included in a new Parliamentary Privileges
Act. This Act should also clarify various ancillary matters, such
as an up to date means for enforcement of fines, and should tidy
up other areas of obsolescence or anachronism, such as impeachment.[418]
We assume our recommendations on bribery will be incorporated
in the proposed criminal legislation, in the form of a provision
to the effect that evidence relating to an offence committed or
alleged to be committed under the relevant sections shall be admissible
notwithstanding article 9.
An accessible code
378. The question that arises is whether
a new Parliamentary Privileges Act should go further and set out
the whole field of parliamentary privilege in a statutory code.
Codification has advantages and disadvantages. The advantages
are clarity and accessibility. At present, there is no sense of
a coherent framework or structure, because the period over which
privilege has developed is so long: the earliest privilege case
cited in Erskine May was decided 700 years ago. Many of
the old court cases were decided in the days of long forgotten
legal procedures. To the ordinary lawyer, let alone non-lawyer,
these cases are difficult, if not impossible, to understand. All
this combines to make the subject obscure. A short statutory code
would be an enormous improvement.
379. The main fear of codification is that
it will reduce flexibility for the future. This consideration
need not weigh heavily in the case of parliamentary privilege,
provided the legislation is drafted in the form of statements
of principle, followed by particular examples. Parliamentary privilege
is complex in its detailed ramifications, but its underlying rationale
and structure are straightforward (as we hope emerges from this
report). The underlying rationale is that the two Houses and their
members and officers must have the rights and immunities needed
to enable them to carry out their parliamentary functions effectively.[419]
The structure comprises two broad headings: parliamentary freedom
of speech, protected by article 9[420],
and control by Parliament over parliamentary affairs.[421]
The latter heading is the justification for several particular
rights, such as the right of each House to administer its internal
affairs within the precincts[422],
and the disciplinary and penal powers of each House.[423]
380. Our recommendations include two instances
of a definitive statement of principle followed by examples: the
definition of proceedings in Parliament, and the definition of
contempt of Parliament. We can see no insuperable difficulty in
this approach being adopted to the whole of parliamentary privilege.
If this is done, fears of inflexibility will be groundless, because
the statements of principle can readily accommodate novel factual
situations when they arise. The code will contain the elasticity
needed for the future. For the same reason, there should be no
difficulty in framing a comprehensive code. Failure, for instance,
to mention every type of situation which has been held to be,
or might be, a contempt of Parliament will be neither here nor
there. Indeed, it would lead to needless complexity if the statute
were to attempt to forecast and identify every situation.
381. One of the arguments used in the past
against codifying parliamentary privilege in statute is that this
will place its interpretation in the hands of the courts. In the
distant past each House claimed to be the sole exclusive judge
of its own privileges and the extent of that privilege.[424]
This is no longer a live issue. In practice the courts already
interpret the ambit of parliamentary privilege. The courts have
interpreted article 9 many times in the last quarter of a century.
Ever since Stockdale v Hansard (1839), the courts have
refused to accept that either House, by resolution, can determine
the legal effect of its privileges. Never, since that case, has
the House of Commons refused to admit the jurisdiction of the
courts when matters of privilege arise in the course of court
proceedings.[425]
Erskine May[426]
takes the view that, following this and other cases, the duty
of the courts to define the limits of parliamentary privilege
when cases come before the courts can no longer be disputed.[427]
382. The Clerks of the two Houses suggested
that, in order to ensure the interpretation of a Parliamentary
Privileges Act always accords with parliamentary claims and needs,
a provision might be inserted obliging the courts to take judicial
notice of resolutions agreed by both Houses on the interpretation
of the Act as if they were judgments of a superior court. This
suggestion encounters the difficulty that it would be a departure
from the established constitutional position: that Parliament
enacts the law but the courts interpret it. While we consider
it would be going too far to give the House the power by resolution
to interpret a statute, there is a less controversial possibility
which might be useful. This possibility is a provision requiring
the courts to take into account, although not strictly be bound
by, any resolution of the two Houses on the proper interpretation
of the relevant statutory provisions.
383. An important part of parliamentary
privilege, namely article 9, is already in statutory form. The
effect of our recommendations is to clarify and define each of
the vital elements in this article: the meaning of `proceedings
in Parliament', the meaning of `place out of Parliament' and the
meaning of `questioning'. Thus our recommendations amount to a
comprehensive restatement of article 9, while respecting its historic
principles. A modern re-enactment of the article does not necessitate
a departure from the time-hallowed wording. The existing language
can be retained, and be accompanied by provisions making plain
what is the ambit of each of the key words and phrases.
384. Leaving aside article 9, codification
of the Houses' penal powers is particularly desirable and our
recommendations cover the most important areas: the definition
of contempt of Parliament and the powers of fine and imprisonment.
As to control by Parliament over its affairs, we have recommended
that legislation should define the outer limit of the internal
affairs within the precincts over which Parliament has sole control.
That is a negative recommendation. There would be advantage in
having a positive enactment confirming the existence of the right
of Parliament to control parliamentary affairs. Further definitions
of principle, and the statement of particular rights such as the
right to judge the lawfulness of proceedings, would be called
for, but this should occasion no difficulty. There would be advantage
in Parliament's rights in this field being underpinned by statute.
385. Our recommendations will stand enactment
by themselves, but if so enacted the result will be an uncomfortable
mixture of modern statute and ancient learning. Overall statement
as a code is the natural next step in a modern presentation of
parliamentary privilege. A code would assist non-members as well
as members, because it would enable the ordinary citizen to have
access to the privileges of his member of Parliament. The Joint
Committee recommends that Parliament should now take steps
to enact such a code.
418 See paragraph 16 above. Back
419
Chapter 1, paragraph 3 above. Back
420
Chapter 2 above. Back
421
Chapter 5 above. Back
422
Chapter 5, paragraphs 240-248 above. Back
423
Chapter 6 above. Back
424
Parliament case (1609) 13 Co Rep 63. Back
425
Keir and Lawon, Cases in Constitutional Law, 5th ed (1979),
p 268. Back
426
22nd ed (1997), p 160. Back
427
Ashby v White (1703) 2 Lord Raym 938 and 3 Lord Raym 320;
Stourton v Stourton [1963] 1 AER 606, 608, per Scarman
J. In re Parliamentary Privilege Act 1770 [1958] AC 331,
the judicial committee of the Privy Council cited a passage from
an earlier edition of Erskine May (16th edition, p 372):
`The decisions of the courts are not accepted as binding by the
House in matters of privilege, nor the decisions of the House
by the courts. Thus the old dualism remains.' This passage was
omitted from later editions of Erskine May. Back
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