Letter from Sir Robin Maxwell-Hyslop (formerly
Member of Parliament for Tiverton)
(A) ORIGIN AND
(1) It has been accepted doctrine from "time
out of mind" that, though each House of Parliament has the
authority to define Privilege as it applies to (a) its own Members,
(b) its Officers acting on the instructions of the House concerned,
or (c) persons or bodies corporate giving evidence to the House
or to a Committee of the House in connection with "Proceedings
in Parliament", neither House of Parliament has the power
to extend its own Privilege by auto-resolution.
(2) Parliamentary Privilege inheres in each
House respectively by virtue of "Lex et Consuetudo Parliamenti",
as amended or extended by Act of Parliament only.
(3) Though, in the Commons, Speakers' Rulings
can illuminate (inter alia) the extent of Parliamentary
Privilege, Resolutions of each House (sometimes embodied in the
Standing Orders of the House concerned) can define both the frontiers,
and the mode of enforcement of Parliamentary Privilege.
(4) It is erroneous to believe that Parliamentary
Privilege grants to Members an absolute licence during "proceedings
in Parliament" to say, with impunity, anything that they
may wish to say. For instance, it is a well-established Breach
of Privilege for any Member, in proceedings in Parliament, to
(i) insult the Monarch of the United Kingdom, (ii) to insult the
Head of State of any other sovereign state, or (iii) to speak
contemptuously of the other House of Parliament.
(5) Treasonable words are no less treasonable
because they are uttered in the course of proceedings in Parliament:
but the appropriate forum for trial and punishment is the House
itself, rather than the normal criminal processes exterior to
(6) It is important to call to mind what
events are not "Proceedings in Parliament". Into this
(often over-looked) category of situations exterior to the frontier
of Parliamentary Privilege, must be included, by way of example:
(i) Words shouted across the Chamber
of the Commons by a Member who has not been "called"
by the Speaker, and who has not risen on a Point of Order or of
(ii) Words spoken by a Member in any
gathering within the Palace of Westminster which is not a Committee
appointed by Order of the House (or a Committee appointed by an
Order of both Houses)
(iii) Words spoken or written in "informal"
evidence to a Select Committee of the House of Commons
(B) UNCERTAIN STATUS
Into the category of "uncertain status"
as "Proceedings in Parliament" fall (inter alia):
(i) The Appellate Committee of the
House of Lords. Though, formally, this is a Committee of the House
of Lords, and therefore, on its face, covered by the Parliamentary
Privilege of the House of Lords, that status can be called into
question by reason of the consistent and persistent refusal by
the Authorities of the House of Lords to provide to Members of
the House of Commons (who are entitled, as of right, a copy of
the transcript of all Proceedings of the Lords) (and, vice versa)
on demand with a copy of the transcript of the proceedings (including
the "Opinions" (= judgements) of the presiding Lords
of Appeal) in the Appellate Committee of the House of Lords;
(ii) The Ecclesiastical Committee.
Whereas Sir Richard Barlas (quondam Clerk of the House of Commons)
wrote formally to the Member of Parliament for Tiverton that the
proceedings of this Committee were not protected by Parliamentary
Privilege as (in his opinion) they are not "Proceedings in
Parliament", Sir Robert Speed (then Counsel to Mr Speaker)
"inclined to the opposite view".
(i) Even if, for the reason given in
(B(i)) above, the Appellate Committee of the House of Lords is
deemed to have as its essential character that it is (like the
Ecclesiastical Committee) "a body set up by statute",
that would not leave its proceedings bereft of protection of (absolute)
Privilege: though bereft (if that indeed be the case) of "Parliamentary
Privilege" if its proceedings are not "Proceedings in
Parliament", those proceedings would still benefit from the
inherent (and absolute) privilege which inheres in all Court proceedings.
(ii) If the Ecclesiastical Committee
is found to lack the protection of "Parliamentary Privilege",
a degree of "qualified privilege" might be found to
inhere in its proceedings.
(D) THE NEED
(i) Persons and bodies corporate outside
of Parliament need access to accurate information as to the nature
and extent of their protection by Parliamentary Privilege when
(a) Giving written evidence or oral
evidence to Select Committees of either House
(b) Giving written evidence or oral
evidence to any other Committees set up by Order of either House
(eg, pre-legislative Standing Committees).
(c) Writing formally to a Member of
Parliament (denied the protection of Parliamentary Privilege by
one vote, when the House rejected a recommendation from the Commons
Privileges Committee that letters to Members were protected by
(d) Writing to a Minister of the Crown
who is a Member of either House
(e) Writing to a Minister of the Crown
who is not a Member of either House (as, for instance, the Solicitor-General
for Scotland has sometimes not been).
(ii) Select Committees of both Houses of
Parliament, if they are to discharge fully the duties imposed
upon them by Order of the House concerned, cannot always do so
unless the House has the power, and is willing to exercise it,
to fine for contempt witnesses who refuse to answer fully and
truthfully, and to supply records ordered to be submitted to the
Committee concerned, when such questions and requisitions fall
within the terms of reference both of the Houses' Orders setting
up the Committee, and the Committee's own terms of reference of
its relevant proceedings, and those proceedings are "in order".
It is a matter of historical record:
(a) That the House of Commons has indeed
exercised a power to fine for Breach of Privilege (Thomas Long's
(b) That the Commons has never, by
Resolution, abandoned that power to fine
(c) That no Act of Parliament has removed
that power of the Commons to fine
(d) That the House of Lords still has
the equivalent power to fine, and a Select Committee reported
as recently as 1956 that "the fact that the House has not
exercised that power for many years does not preclude the possibility
of its future use".
The power to imprison contemptuous witnesses
is inappropriate and ineffective in this context, not least because
the warrant for imprisonment expires on a date wholly unrelated
to the gravity of the offence, whenever a Session ends. However,
ill-informed (but oft-repeated) assertions that the Commons lacks
the power to fine for Breach of Privilege renders it desirable
that the existence of that power (and the desirability of using
it in relevant cases) is clearly re-asserted by this Committee,
in its Report.
(iii) Individuals and bodies corporate who
are, or believe themselves to be, untruthfully and maliciously
maligned under the cloak of Parliamentary Privilege, presently
lack effective redress, since the House has abandoned the practice
of disciplining Members effectively for abuse of freedom of speech
when protected by Parliamentary Privilege. This was not always
so (witness the experience of "prick-eared Prynne").
Though "cropping" a Member's ears would now be considered
an inappropriate penalty for gross abuse by a Member of the Privilege
of Parliament, your Committee may well judge that Parliament will
be held in avoidable disrespect unless and until this nettle is
grasped: for abuse is the father of unreasonable response.
25 March 1998