Memorandum submitted by the Clerk of the
Parliaments and the Clerk of the House of Commons
JOINT COMMITTEE ON PARLIAMENTARY PRIVILEGE
INTRODUCTION
1. The Joint Committee asked us to submit
a statement of where solutions to outstanding questions of privilege
law should be sought (Q45) and an analysis of what rights and
immunities would be essential in today's circumstances (Q230).
2. This memorandum sets out those questions
which we believe need an answer if privilege law is both to provide
an appropriate protection to Parliament and to command general
acceptance beyond Parliament. We also suggest for consideration
some options that might resolve those questions. Where it seems
to us that there is a widely accepted view that some element in
the law of privilege no longer has much significance or that change
is inevitable, we have accepted these conclusions. One issue we
have not considered further is the proposal to bring members of
both Houses within the ambit of the law on bribery. As we pointed
out in oral evidence there are difficulties in implementing any
of the possible options, though we fully accept that the present
position is unsatisfactory. At this state we do not feel that
there is anything that we could usefully add to our evidence.
3. We are grateful for a sight of the paper
prepared by the Chairman of the Joint Committee setting out some
of the questions that the Committee may wish to consider. We have
not attempted to duplicate that paper, but rather, to supplement
it.
4. This memorandum begins with a discussion
of the relationship between statute law and parliamentary privilege.
Thereafter we have followed the order of topics in our earlier
papers. Issues relating to contempt of Parliament are dealt with
separately, in paragraphs 54 to 58.
A. STATUTE LAW
AND PARLIAMENTARY
PRIVILEGE
5. The central element of privilege, freedom
of speech, is already enshrined in statute; Article IX of the
Bill of Rights 1689. The most significant decision facing the
Joint Committee is surely to decide whether or not the time has
come to take the process further. If members conclude that a more
positive and clearer statement of the law is required, how far
should it go? New legislation might be confined to resolving doubts
and ambiguities, leaving the rest to be dealt with by Resolutions
in Parliament or by new Standing Orders. The other end of the
spectrum would be an exhaustive codification of the rights and
immunities of Parliament in a Parliamentary Privileges Act.
What are the arguments for and against legislation?
6. Arguments for and against setting out
more parliamentary claims in legislation have gone on for many
years. In favour are considerations of clarity and accessibility.
Much of privilege law depends on very old cases. There is no sense
of a coherent framework, because the time-scale over which the
law has accumulated is so long: the oldest privilege case cited
in Erskine May is seven hundred years old. Many critical
decisions, particularly on freedom of speech, are already in the
hands of the courts.
7. Against more legislation is the apprehension
that privilege law will be ossified; and that statute law could
not possibly provide in advance for all possible eventualities,
while amending legislation is perhaps a cumbrous way of putting
matters right. Most of all, it could be argued that the balance
between the courts and Parliament would be radically altered.
Legislation once enacted might in future be interpreted in ways
which, in effect, narrowed the scope of privilege, contrary to
the will of Parliament.
8. In advising the Joint Committee on how
best to resolve this dilemma, we come down in favour of at least
some more legislation, on several grounds. The first is the present—and
probably the future—climate of affairs between the courts
and Parliament. As we have indicated in our earlier evidence,
while the courts have not sought to alter fundamentals such as
the legislative supremacy of Parliament or the right to freedom
of speech, the last decade has seen a remarkable degree of activity
in areas of interest to Parliament. There is no reason to believe
that this will decline in the years to come. Indeed, legislation
on freedom of information and human rights may mean that the courts'
efforts to adapt very old privilege cases to modern conditions
will become ever more heroic—and unpredictable. For example,
one area of potential uncertainty is the extent of the application
of the European Convention on Human Rights to the privileges of
the United Kingdom Parliament. In a case involving the Parliament
of Malta1 the Court of Human Rights found that the fining of a
magazine editor for a breach of privilege was classifiable as
punishment for a criminal offence and therefore attracted Article
6 of the Convention. Parliaments are therefore not immune from
scrutiny under ECHR. In the absence of a modern statement of privileges,
which takes into account both the Convention and domestic and
international legal developments relating to individual human
rights, the possibility for misunderstanding in any case that
was brought before the Court is not insignificant.
9. In the same area of case law, the attention
of the Joint Committee has already been drawn to the fact that
two of the principal cases of the past decade have had a fundamental
impact on privilege law—Pepper v Hart2 and Prebble
v Television New Zealand Limited. 3 The judgment in the first
was contrary to the argument advanced on behalf of Parliament
by the Attorney General: and there was no input from the United
Kingdom Parliament at all to the second. On that footing alone,
clarification of law by statute seems to be desirable.
10. Such clarification is also important
in the area of existing statute law on privilege. Despite the
antiquity of the Bill of Rights it is only in this century that
Article IX has been subjected to close judicial scrutiny. In the
eighteenth and nineteenth centuries Parliament, particularly the
House of Commons, relied substantially on a widely shared assumption
of constitutional supremacy and an assertion of historic privileges
which the courts, more often than not, accepted. Article IX tended
to be treated as but one element of what might be termed "the
first principles of the constitution". By the beginning of
this century however, the concept of the "High Court of Parliament"
was on the wane and the substantial increase in the body of statute
law enacted during the nineteenth century had developed a corresponding
judicial tendency to look for clear statutory authority wherever
possible. More recently, the increasing reluctance of Parliament
to treat defamation of a Member or a Peer as an issue of privilege4,
and the encouragement given by both Houses to their members to
settle such matters in the courts whenever possible, has helped
to establish a tradition of the courts interpreting, and reinterpreting,
Article IX which has come to be seen as the central, even the
sole, authority for parliamentary privilege. This is a wholly
novel development: the Bill of Rights was simply not drafted either
for the twenty-first century or with that sort of textual scrutiny
in mind. There are further uncertainties over the application
of Article IX in Scotland (where the Claim of Right 1689 is far
narrower in its scope and has no history of interpretation at
all) and in Northern Ireland. As litigation increases, these defects,
dormant for so long in other circumstances, are sure to come awkwardly
to light. We conclude that there is a strong case—to which
we return in greater detail below—for amending and clarifying
article IX in new statute law.
11. Finally, changes have occurred in the
activities of Parliament itself and consequently privilege increasingly
meets challenges of a completely unexpected kind. The Resolution5
agreeing to the disclosure of select committe material in evidence
in a commercial dispute involving the Corporate Officer of the
House of Commons and a contract for the fenestration of Portcullis
House is a good example. Others are the questioning of actions
taken or inquiries carried out on behalf of that House in two
(unsuccessful) applications for judicial review; eg R v Parliamentary
Commissioner for Standards, ex parte Al Fayed; (14 April 1997)
and R v The Speaker ex parte Martin McGuiness M P (3 October
1997).
12. A considered restatement of the position
of Parliament, broad enough to meet most challenges, would be
the most satisfactory solution from all points of view, not least
that of Parliament. At least part of this restatement must be
in statute law (see para 17 below), to provide the courts, and
Parliament itself, with a modern legal framework to use as the
basis for decisions on future cases. We do not, however, see any
need for a radical departure from the past: like the Bill of Rights
we would assume that the restatement will be mainly declaratory
of those parts of the existing law which the two Houses consider
it would be appropriate to retain.
How may the disadvantages of legislation be coped
with?
13. Whatever may be said in favour of legislation,
the main arguments of principle against it will remain. It may
be said that the balance between Parliament and the courts will
tip irrevocably in favour of the latter. Moreover, a Parliamentary
Privileges Act may come to represent the sum and substance of
parliamentary claims, just as the Bill of Rights has effectively
ousted older claims to freedom of speech. The more thoroughgoing
the inroads of statute law, the more important it is to put in
place mechanisms which support a sensible and acceptable balance,
and prevent conflict and misunderstanding.
14. In that context, we offer two possibilities.
In the first place, in order to ensure that the interpretation
of any Parliamentary Privileges Act is always in accord with parliamentary
claims and needs, a provision might be inserted which obliged
the courts to take judicial notice of Resolutions agreed by both
Houses as to the interpretation of the Act, as if they were judgements
of a superior court. After all, the courts have not challenged
the decision of the Commons in the Strauss case or the views of
the Select Committee on the Official Secrets Act 1938-39 on the
interpretation of "proceedings in Parliament" as it
stands in the Bill of Rights. What is proposed goes little further
than that, except in form.
15. Secondly, in order that Parliament could
not be assumed to have surrendered more than was intended, any
legislation might contain a provision that, unless the contrary
appeared, the statute was not to be interpreted by the courts
as to limit or extinguish any of the privilege claims of either
House (cf Section 5 of the Parliamentary Privileges Act 1987 (Australia)).
16. These proposals would not of course
allow Parliament to extend its privileges without further legislation
explicitly to that effect. They would, however, diminish the extent
to which Parliament made a once-and-for-all settlement of its
relationship with the courts and had to stand by the consequences.
Should legislation go as far as full codification?
17. Previous paragraphs have presented the
arguments for (and against) legislation; have accepted the former
in principle; and have suggested some safeguards. We argue below
that the existing statute law on freedom of speech in particular
is in need of modernisation. There may be other smaller adjustments
to statute which are desirable. For example, section 9 of the
Defamation Act 1952 (which applies the Parliamentary Papers Act
1840 to broadcasting) does not seem to extend to Northern Ireland.
But whether to go on from agreement that some changes to statute
law are needed to the conclusion that full codification should
be the aim is a decision best taken once the Joint Committeee
has determined how much substantive change it wishes to recommend.
The more change there is to be, the more will have to be done
by statute, and the greater the case for catching up the totality.
B. FREEDOM OF
SPEECH
What should be the limits of freedom of speech?
18. Freedom of speech is the central element
in parliamentary privilege, and it was the law in England well
before 1689 that individual Members of either House ought not
to be answerable before the courts for what they say in Parliament.
But old though the principle is, its application can be difficult.
Subsequent paragraphs illustrate this. In certain circumstances
(some of which are sketched out in the next few paragraphs), freedom
of speech may give rise to what is seen as substantial injustice
to non-Members and when this happens there is often pressure for
Members' freedom of speech to be limited. On the other hand, it
may be argued that Members of either House must be at liberty
to make honest mistakes and that to establish mechanisms to inquire
into the honesty of errors might inhibit members from raising
issues which cannot be raised elsewhere. Preservation of freedom
of speech in Parliament may be seen as a public good and more
important than any private injury it may do. In any case,
subjecting the exercise of freedom of speech to the courts would
not necessarily solve the problem. The courts are not infallible,
nor are they necessarily the best judges of the public interest.
19. Members may say things in Parliament
which are defamatory of individuals outside: statements may also
be made which, for example, are seditious, contrary to legislation
on official secrecy or which defy court orders such as injunctions.
When such instances have arisen in the past, Commons Committees
have preferred not to limit Members' freedom of speech in Parliament
except in very limited respects6. Any other conclusion would represent
a constitutional revolution of the very first order.
20. One of the important considerations
in determining limits on freedom of speech is comity with the
Courts. Both Houses have long recognised that it would be wrong
for them to seek to influence, or even to appear to be influencing,
the trial of any action. In the 1960's the two Houses passed Resolutions
relating to circumstances in which the "sub-judice rule"
should apply: The Resolutions themselves include flexibility to
allow debate when the overriding public interest is that a matter
should be debated. In the House of Commons, the Speaker may exercise
her discretion on the application of the rule. In the Lords, the
Leader of the House has discretion to decide whether or not a
case, falling within specified criteria, and to which the sub-judice
rule would normally apply, might safely be debated. In either
House, therefore, relevant comment on a case proceeding in the
Courts is permissible. The House of Lords made changes to its
sub-judice rule in 1995. The House of Commons has not altered
its Resolutions since 1972. The current version of the Commons
Resolutions does not take account of changes in Court procedure
or in the law: for example the development of judicial review,
or the changes arising from the Contempt of Court Act 1981. In
some respects it may be that they limit debate unnecessarily7.
21. Freedom of speech in Parliament needs
also to be considered in the light of injunctions awarded by the
Courts. This matter was examined by the Commons Procedure Committee
in Session 1995-968. Clearly any widespread reporting of a breach
of an injunction in debate in either House would defeat the purpose
of the injunction. As the Procedure Committee noted, " .
. . . a single Member of Parliament, without requiring any debate
or decision in the House, can set at naught the judgment of the
court, arrived at with great care, and thereby render ineffective
the remedy afforded . . . . publication of matters subject to
such orders goes far beyond criticism of a particular judgement
or taking issue with the operation of the judicial process; it
effectively interferes with the administration of justice".
However, that Committee did not believe that the time had yet
come to limit freedom of speech by a new rule of the House similar
to the sub-judice rule. It might also be noted that the general
increase in the number of interim and permanent injunctions, and
perhaps the sometimes questionable use of the former might in
some circumstances seriously inhibit debate on matters of public
concern if a general rule prohibiting debate following any court
injunction, was adopted9. Moreover, the rapid increase in international
communications through media such as the Internet suggests that
this may be an issue which cannot be resolved solely in terms
of parliamentary proceedings. We note that in one admittedly very
special case a court has excluded parliamentary proceedings from
the terms of an injunction so as not to appear to inhibit the
two Houses from commenting on the leak of a D.T.I. inspector's
report10. If the Committee recommends that injunctions should
be subject to similar rules as those that apply to matters sub-judice
we would strongly suggest that there should be scope for discretion
in their application (in the case of the Commons this might be
the discretion of the Speaker).
22. Another difficulty with statements made
in Parliament arises in respect of those who report them. The
Official Reports, as continuous records of proceedings,
are protected by the Parliamentary Papers Act 1840 from actions
of any sort based on their verbatim accounts of speeches. The
common law confers qualified privilege in actions for defamation
on those who publish without malice fair and accurate summaries
of speeches in Parliament. It is, however, not at all certain
whether the press or broadcasting media are protected against
the criminal law if they carry verbatim accounts of speeches.
Yet why expose the press or media to criminal liability for publishing
the same speech the public can read in Hansard ?
23. In a similar vein, it was considered
some years ago by the law officers that sufficient protection
might not be afforded by the law to those who broadcast as part
of the continuous live coverage of Parliament speeches which were
contrary to the criminal law or might amount to criminal contempt
of court (or contain defamatory material). 11 The Joint Committee
may wish to reconsider whether absolute protection needs to be
extended to them, as the House of Commons Select Committee on
Sound Broadcasting recommended in Session 1981-82, or whether
qualified protection is all that is necessary. Either approach
would require new legislation.
How should freeedom of speech be defined?
24. It was suggested above that a modernised
version of Article IX of the Bill of Rights was required. The
problems of interpretation which have gathered around the text
of Article IX have been mentioned to the Joint Committee, and
are set out at pages 93 to 97 of the current (22nd) edition of
Erskine May's Parliamentary Practice. One could draw up
an almost endless list of questions. Is the Register of Members'
Interests a proceeding in Parliament or is it not? To what extent
is it permissible to refer to Hansard in court proceedings without
infringing Article IX? Does "impeach" have the same
meaning as "question" or is it something different?
Whom does Article IX protect apart from Members and Peers? What
is a "place out of Parliament"—is it to be interpreted
strictly as applying only to tribunal or other body exercising
legal jurisdiction or authority, broadly of the same character
as a Court? It is not suggested that an attempt should be made
to answer every question. But there are important areas where
clarity is needed. An advantage of the Australian Parliamentary
Privileges Act 1987 is that it concentrates on defining in quite
broad, but clear, terms the scope of Article IX and the key phrase
"proceedings in Parliament" and thus provides a single,
up to date, reference point for the central privileges of the
Australian Parliament, without making any claim to be comprehensive.
12
25. If this example is followed, the basis
of a new statute clarifying or replacing article IX might provide
that:
— no Member of either House is liable
before any court exercising a civil or criminal jurisdiction in
the United Kingdom for what he or she did or said as part of,
or with a view to participating in, debate or proceedings in or
before either House or a committee thereof;
— this protection extends to any Officer
or servant of either House, to witnesses before either House or
a Committee, and to those who, as petitioners, counsel, solicitors,
agents or otherwise, participate in proceedings in accordance
with the course of business in Parliament.
A restatement of the essential privileges of
the House might then be attempted, based on these criteria.
What is a proceeding?
26. Redrafting Article IX would make it
essential to define "proceedings in Parliament", something
which already has a great deal to commend it and has already been
recommended by several previous Select Committees. 13 The memorandum
submitted to the Joint Committee by the Clerk of the House of
Commons in November gives examples of three attempts which have
been made to achieve this; two (the Australian Parliamentary Privileges
Act 1987 and Section 13 of the Defamation Act 1996) exist in statutory
form. None of these definitions is entirely satisfactory but perhaps
that contained in Section 16 of the Australian Act (which appears
to have operated for 10 years without giving rise to difficulty)
comes closest to what is required. Although it is not too difficult
to identify the main areas of parliamentary activity which constitute
"proceedings", it is much harder, if not impossible,
to make an exhaustive list, which will adequately encompass new
developments. For this reason we recommend that, as in the Australian
Act, any definition should not be exclusive. 14
Impeaching and questioning
27. It is not only the position of individual
Members which freedom of speech is intended to secure. The Bill
of Rights also insulates proceedings in the House against being
"impeached or questioned" in the courts. Inferences
may not be drawn from what is said or done as part of proceedings,
even if the position of no Member is directly threatened by that
process. Were it otherwise, members of either House—even
if their actions in Parliament were not the object of civil or
criminal action—would be liable to defend in court what
they had said or done in Parliament. Constitutionally and politically,
however, that responsibility is towards the Sovereign and the
electorate.
28. Parliament and the courts are concurrent
authorities in the State. Parliament seeks to maintain good relations
by observance of the sub-judice rule in both Houses, (see
paragraph 20). From the point of view of the courts, there are
many judicial observations which attach importance to the principle
of non-interference in parliamentary business. It is not however
forbidden to refer in court to the simple occurrence of some event
in the course of proceedings, without criticism or the drawing
of inferences. A clear statutory reaffirmation of these principles,
not least because of the possibilities of developments taking
their origin from the decision in Pepper v Hart, would
probably need to be part of any legislation.
Ought freedom of speech to extend to constituents
or activities on their behalf?
29. The committees which previously attempted
a definition of "proceedings in Parliament" (for which
see end-note No. 13) proposed that communications to ministers
(or to other government bodies, such as executive agencies) sent
by—or at the behest, or direction of—members of either
House, should be protected against actions for defamation, provided
they were in connection with public or parliamentary affairs.
This would amount, of course, to an attempt to reverse the "Strauss
decision" of the House of Commons in 1958. Whether or not
to recommend action along these lines seems to us a nicely balanced
question. On the one hand, the qualified defence at common law
in actions for defamation—the protection may not go wider—is
probably adequate in practice to meet all reasonable eventualities
and the courts are more likely now than they were in the 1950's,
to recognise that the duties of members extend beyond the walls
of Parliament. Although Members of the House of Commons are often
threatened with litigation, actual cases alleging defamation in
correspondence have been rare and in the one recent case that
has got into all the textbooks on constitutional law15 the judgement
was wholly satisfactory.
30. It might therefore, on this view, be
considered to be unnecessary to extend the absolute protection
of parliamentary privilege to Members' correspondence. On the
other hand contacts of this kind are integral to the performance
of parliamentary duties, most obviously in the Commons. When Members'
are sued, Parliament offers them little legal and no financial
support. They must find from their own pockets the resources needed
to assert their right to do what they believe is part of their
duty as representatives of the people.
31. It is entirely understandable that Members
of the House of Commons need to have extensive correspondence
with, and on behalf of, constituents. Sometimes such correspondence
eg to Ministers, Officials and Government Agencies and non-Departmental
Public Bodies, may have an identical purpose to a parliamentary
question which would be absolutely protected by parliamentary
privilege. It is difficult to see why there should be any distinction
made between them. Other correspondence, with regulatory or professional
bodies or with local authorities, may fall into a rather different
category. Should a reply to a Member's letter from an official
in a local council or in the Office of Fair Trading or in a privatised
utility attract absolute privilege? The more that the scope of
absolute privilege is extended the more difficulties may arise.
Nevertheless, there may be a case for including at least some
of Members' and Peers "official" correspondence within
the definition of "proceedings in Parliament".
32. If the Committee conclude (as a Joint
Committee and Commons Committees have in the past) that letters
from Members to ministers (and perhaps others) ought to be protected,
it is worth recalling that a letter from, or on behalf of, a Member
to a constituent has much in common with the letter to the Member
from the Minister or agency which enabled the Member to reply.
On the one hand, it might seem that in logic it ought to enjoy
the same protection: on the other, the arguments about the difficulties
inherent in the extension of privilege which were set out in the
preceding paragraph will also be relevant here.
33. Letters from constituents raise rather
different considerations. They may no doubt enjoy qualified privilege
at common law (being written without malice), provided they are
on subjects which have a reasonable connection with a Member's
public duties. If any added protection were given to them it should
only be within the context of the actions of a Member in pursuing
them in Parliament. It would be difficult, for example, to justify
privilege extending to defamatory letters from constituents which
were immediately released to the press either by the constituent
or by the Member. Moreover, not all correspondence will be in
response to a constituency problem. It is difficult to see why
letters relating to a Member's business or consultancy interests
should obtain any special protection.
Should the public have a right of reply to the
exercise of free speech?
34. Some Commonwealth jurisdictions, notably
in Australia and in New Zealand, permit those who have been the
subject of what they consider to have been unreasonable, damaging
or malicious criticism in Parliament to have a right of reply
under appropriate procedures. The Joint Committee would no doubt
need to be certain that any adaptation of these arrangements to
the United Kingdom could be made fully consistent with a member's
right to have what he or she said in Parliament (and their right
to say it) go without formal challenge. This issue was looked
into in some detail by the Select Committee on Procedure of the
House of Commons in its First Report of Session 1988-89 (HC 290)
which described the procedure for a right of reply used by the
Australian Senate (paragraphs 58 to 63). The Committee was "not
persuaded that a case has yet been established in this country,
for a formalised right of reply". The Committee may wish
to consider whether, over the last ten years, conditions have
changed so significantly as to alter this conclusion. It should,
of course, be remembered that unless some filter mechanism (eg
through a Committee) was established, which might in itself create
new difficulties, the right, once granted, would be available
not only to the ordinary outraged constituent or correspondent,
but also to the wealthy and litigious individual, who would not
lack the resources to pursue a long campaign against a Member
or a Peer and to link it with press comment.
35. The same recourse might also have to
be available against statements made in Parliament by those who
are not members of either House—witnesses before committees,
for example. This might lead to the absurdity that someone who
was offended by evidence to a committee could choose not to put
in contradictory evidence on their own account, but to make use
of the right of reply procedure. If, on the other hand, a right
of reply procedure against a witness was not available, it would
put witnesses in a more favourable position than Members.
36. Whatever the theoretical merits of a
right of reply, we doubt whether a fully satisfactory system can
be devised.
Other statutory changes
37. At least two statutes, the Witnesses
(Public Inquiries) Protection Act 1892 (which includes penalties
for those who are proved, before the Courts, to have threatened
or injured any person on account of evidence given by that person
before a Committee of either House, unless such evidence was given
in bad faith) and the Perjury Act 1911 (which punishes false evidence
given on oath before Committees of either House) make implied
amendments to Article IX of the Bill of Rights. If the scope of
"proceedings in Parliament" is defined in legislation,
then the opportunity might be taken to re-examine these offences
in the light of the definition.
38. Section 13 of the Defamation Act 1996,
on the other hand, is a more or less direct amendment of the Bill
of Rights. What is more, it is in clear conflict with the principle
that the privileges of Parliament exist for the benefit of Parliament
as a whole: it is only incidentally that privilege confers individual
rights or immunities. Before 1996 it was accepted (as it continues
to be in many parts of the Commonwealth) that Article IX may on
some occasions be disadvantageous to an individual member of Parliament.
Section 13 removes one of those disadvantages by enabling a Member,
or an Officer of either House, or a witness before a Committee,
or a Petitioner, or any other unspecified person who may be involved
with parliamentary proceedings, to "waive privilege"
so far as it affects them in an action for defamation. As a result,
some "impeaching or questioning" is now legitimate,
and some is not: everything depends on the choice of the Member
or of the other person protected by privilege. No cases in which
the waiver has been used have yet come before the courts: there
is thus no settled law as to how the courts will deal with what
is not permissible questioning. While Members other than those
directly involved might understand the need for some element of
questioning in a serious issue such as bribery, they might be
much less happy were essentially frivolous defamation actions
to call in question their actions in the House. Attention has
also been drawn to the fact that if the section is applied in
any but the most straightforward circumstances, difficulties seem
likely to occur in Court proceedings. For example, corroborative
testimony of events in Parliament may well not be obtained if
other Members decline to exercise their waiver. But the most serious
disadvantage of the provision is that it may bring "proceedings
in Parliament" before the Courts relatively frequently—more
frequently than is ever likely under the proposal to bring members
of both Houses within the scope of the law of bribery.
39. It cannot be denied that it is hard
on members of both Houses who wish to clear their names in the
Courts to find a provision intended for their protection prevents
them from doing so. The Joint Committee will decide on which side
the balance of advantage lies. If the principle of section 13
of the Defamation Act 1996 is to be retained, Members will wish
to review the adequacy of the existing text for the task it has
to perform, and to consider whether it is appropriate that the
waiver of what is essentially a collective immunity should rest
on the decision not of a House but of an individual, who may not
even be a Member of Parliament. If on the other hand, it is accepted
that privileges sometimes involve related disadvantages, the Joint
Committee will recommend repeal of section 13.
Papers published by the order of a House
40. The Joint Committee have, so far, not
considered in any detail the absolute privilege afforded to Parliamentary
publications. The Parliamentary Papers Act 1840 permits proceedings
against anyone for the publication of papers which either House
has ordered to be published to be stayed on production of a certificate
affirming the making of such an order. Qualified privilege at
common law has for more than a century been available to faithful
reports of proceedings and debates published without malice (for
further comment on certain aspects of this issue, see paragraphs
22-23).
41. The law seems uncertain on whether Government
White Papers and other official documents laid before either House
by command of Her Majesty benefit from the 1840 Act. Though these
documents are not customarily ordered to be printed by Parliament,
there are judgments dating from the first decade of this century
which have treated them as within the Act of 1840. No recent government
has however acted on these decisions. The Committee may think
it worth considering whether to resolve these difficulties by
recommending legislation to exclude Command Papers definitively
from the scope of the Parliamentary Papers Act 1840. This was
recommended by the Joint Committee on the Publication of Proceedings
in Parliament in 1970. 16 Motions for Unopposed Returns in either
House, intended to attract the provisions of the 1840 Act, would
remain options for the government in the case of papers which
they felt could not be safely published without an explicit order
of the Houses.
42. Apart from papers of the two Houses
(such as reports of Select Committees) which receive an order
to print and are thereby protected under the 1840 Act, it is customary
for the House of Commons to order the printing of any paper laid
before it pursuant to an Act of Parliament which engages its constitutional
responsibilities for financial matters; most typically annual
reports of various public bodies containing accounts statutorily
audited by the Comptroller and Auditor General who is an Officer
of the House of Commons. The increasing practice of publishing
the reports and accounts together means that some hundreds of
documents emanating from Government Departments, Agencies and
Non-Departmental Public Bodies are given legal immunity simply
by virtue of an order for their printing. The Committee may wish
to consider whether this practice is desirable.
C. EXCLUSIVE
COGNISANCE
Ought the scope of the claim to be reviewed or
restated in statute?
43. The Joint Committee may wish to consider
the scope of the claim to exclusive cognisance of its own affairs
which is made by each House. It is on the basis of this claim
that both Houses have long succeeded in maintaining the right
to be the sole judges of the lawfulness of their own proceedings
and to settle or to depart from their own codes of procedure in
dealing with the business before them. There is case law (eg especially
Bradlaugh v Gosset) 17 to support the proposition that
in matters of exclusive cognisance, the Houses are capable even
of suspending the effect of statute law, so far as it may apply
to them. Whatever statutory change is made elsewhere, the Joint
Committee may wish to ensure that it does not call into question
the exclusive rights of the two Houses over the process of legislation,
or their right to apply the procedures and practices under which
they function, including the exercise of any power, such as that
to send for persons, papers and records, which support those procedures.
44. It is true that the courts have tended
to avoid this procedural and legislative area of exclusive cognisance.
There is, however, a judgment (R v Graham Campbell ex parte
Herbert) 18 which stretches the concept to the licensing arrangements
of the House. In such matters it may seem less defensible than
once it was for Parliament to be free of the regulatory law which
it imposes on others. If, therefore, the scope of the claim is
in doubt, it is more significant than it might otherwise be that
there is no clear statutory support for the claim, a defect which
became clear in Pepper v Hart.
45. It would be for consideration whether
a form of words could be found which would give statutory protection
to the claim, so far (at least) as it related to the formal actions
of the Houses and what is done—for example by the Lord Chancellor
or the Speaker—in contemplation of such actions, and within
their administrative responsibilities. The protected area would
perhaps be wider than that of "proceedings" since it
would need to take into account the broader responsibilities of
members of both Houses and the need for them to have sufficient
independence to carry out those duties without fear of obstruction
or intimidation. It might also need to provide some protection
for members' staff and for the staff of the two Houses who assist
them in carrying out these responsibilities. However it might
be more logical to regard proceedings as defining the area which
exclusive cognisance exists indirectly to protect. It might also
be for the consideration of the Joint Committee whether a statutory
restatement of the claim to exclusive cognisance ought to define
(with appropriate provisions for amendment) the precincts of the
two Houses.
Existing legislation in areas of exlusive congnisance
46. Legislation for exclusive cognisance
might mean reviewing the exemption from other legislation enjoyed
by both Houses by right of their exclusive congnisance. The Houses
are exempt from statute law on (for example) health and safety,
fire precautions, food safety, working conditions, data protection
and certain aspects of employment law. (It should of course be
added that this does not mean that the provisions of these statutes
are ignored: they are normally applied so far as possible).
47. Applying such Acts to the Palace, where
many aspects of the working environment are unique, will be full
of difficulty. Change could not be effected overnight, and some
derogation from the general law might always be necessary, in
order to prevent proceedings of the two Houses and their Committees
being called in question before a court. If it decides to limit
the scope of exclusive cognisance, the Joint Committee may therefore
wish to consider whether to go on to recommend that such regulatory
statutes should in future apply to the Palace as a matter of course.
A rider would be added that in drafting the bills for these Acts,
accounts should be taken of the pecularities of work and employment
in the Palace of Westminster.
Evidence in court regarding the area of exclusive
cognisance
48. One of the elements of exclusive cognisance
is the right of Members and Officers of both Houses not to be
compelled to give evidence in court regarding proceedings in Parliament
(though in one respect this may have been compromised by S.13
of the Defamation Act 1996). 19 If the protection against "impeaching
or questioning" currently given by the Bill of Rights is
reasserted in new legislation, perhaps in other language, the
need for these provisions might disappear, with two provisos.
It would still be necessary in the Commons to petition for the
production in court of unpublished papers (such as unreported
evidence, correspondence or memoranda) relating to proceedings:
and papers in the custody, possession or control of the Corporate
Officer of either House so far as they were held by him for the
purposes of his functions under the Parliamentary Corporate Bodies
Act 1992 might be produced without a petition, even if unpublished.
A form of words would need to be found to put on the same footing
commercial and contractual agreements and relationships entered
into by one of the Houses other than through the Corporate Officer.
(On this point we remind the Joint Committee of the memorandum
they have recently received from the Attorney General).
D. FREEDOM FROM
ARREST
Is it still necessary?
49. We remind the Joint Committee of our
comments on freedom from arrest and related privileges in our
earlier memoranda (Commons memorandum, paragraphs 21 to 33, printed
in Oral Evidence, pages 7-8; Lords memorandum, paragraph 14 to
16 printed in Oral Evidence pages 14-15).
50. Freedom from arrest is claimable only
in civil cases, and the scope for arrest in such cases is now
very limited. The Joint Committee will recall in our earlier evidence
we recommended a formal abolition of this privilege. If any part
of the privilege is to be retained, a clear statement of the position
in modern legal terms would be helpful. A requirement that the
two Houses should be informed of the detention of the one of their
members is based upon this privilege; reinforced in the Lords
by the requirements of Standing Order 79. If the privilege were
to be abolished or amended, it would be logical to provide that
whenever a Member of either House has been rendered unable to
attend that House by reason of arrest without bail or imprisonment
under the criminal law or similar form of statutory detention,
there is a statutory obligation on the authority responsible for
the detention to inform the House accordingly.
51. The opportunity might be taken to resolve
the problem of whether a member of the House of Lords may be released
from restraint under the Mental Health Acts by pleading privilege
of Parliament or peerage: and providing for disqualification from
sitting or voting or for receiving a writ of summons.
52. The opportunity might also be taken
to abolish "privilege of peerage".
Witness summons
53. As we mentioned in our earlier papers
(Commons memorandum para 22, Oral Evidence page 8 and Lords memorandum
para 16, page 30), in current practice, a member of either House—though
it is the Commons which is principally affected—may attend
court as a witness if summoned, or may stand upon the privilege
not to attend. Consequently, a Member's service to the House may
be rendered unreasonably difficult by a more or less vexatious
litigant, while on the other had the ends of justice may in theory
be thwarted by a Member unreasonably sheltering behind the privilege.
No provision which is automatic in its operation is capable of
distinguishing between justified and unjustified behaviour on
either side. It is difficult to tell how frequently members of
either House make use of the privilege. A Court may accept a refusal
without any letter being sent by the Clerk of the appropriate
House. The Joint Committee will need to make an assessment of
whether the continuance of the privilege (which may be exercised
in respect of a personal as well as a political matter) is absolutely
necessary to the effective functioning of Parliament. The Joint
Committee may decide that, on balance, the privilege could safely
be dispensed with. If it is to be retained, it might be possible
to devise a system by which in principle Parliament had prior
claim to the services of its Members, and they were not compellable
as witnesses before the criminal or civil courts. If the presiding
judge certified to the Lord Chancellor or the Speaker that attempts
to reconcile the claims of the court and Parliament on a Member's
time had failed, and that the presentation of the facts before
the court was likely to be materially affected by the absence
of the Member, the Speaker of the relevant House would have power
to disallow the privilege and would do so unless the work of the
House would be seriously impeded thereby. The House would be informed.
E. CONTEMPTS
54. We remind the Joint Committee of our
comments on "contempts" in our earlier memoranda (Commons
memorandum, paragraphs 24 to 29, printed as Oral Evidence, pages
8-9; Lords memorandum, paragraphs 17-18, printed as Oral Evidence,
page 30). The paragraphs here are supplementary to, and do not
replace those paragraphs.
Contempt as obstruction
55. Like freedom of speech, contempt has
both an individual and a collective aspect. Members, officers
or witnesses may be hindered in the discharge of their duties
to Parliament; or the mischief may have its effect on the institution
of Parliament directly. The scope of contempt is broad, because
the actions which may obstruct a House or one of its Committees
in the performance of its functions are very diverse in character.
Contempts are not limited by Article IX and its definition of
proceedings, any more than exclusive cognisance is, though there
is purposive connection between all three. Though an exhaustive
definition of contempt is probably impossible, its defining characteristic
may be thought to be obstruction. Members of both Houses of Parliament
may be, intimidated before they participate, or may be "punished"
for their participation. The same is true of others who are not
members who take part in proceedings. Against that background,
power to restrain acts of contempt and to punish them is a defence
likely to be required by both Houses, even though only the Commons
in recent decades has acted against those in contempt.
56. 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. If Members wish to include contempt in any rationalisation
of privilege law, they may consider making the link between contempt
and obstruction more explicit. Abuse would not of its nature be
a contempt, though where it amounted to intimidation or molestation
of a member of either House, it would plainly become obstruction,
and would therefore be punishable: and abusive behaviour or language
in the presence of either House or a committee would remain of
its nature a contempt.
Resolutions
57. It would probably be very difficult
to encapsulate any such view of contempt in a statute, not least
because here more than in any other part of privilege law, flexibility
is essential. It might however be worth considering whether the
particular decisions of future Houses and committees would be
assisted by parallel resolutions of both Houses setting out their
present understanding of the broad nature and purpose of their
contempt jurisdiction.
Service of process
58. It is unlikely that the service of legal
process on a member of either House on a sitting day could amount
to culpable interference with the business of the House unless
it was done in a way which interfered with the proceedings of
a House or a Committee: the Committee may wish to consider whether
it would be appropriate to abandon the contention that the service
of process within the precincts on a sitting day was invariably
a contempt.
F. PENAL JURISDICTION
Should penal jurisdiction be retained?
59. Information on the powers of the two
Houses to punish for contempt or breach of privilege is set out
in paragraphs 30 to 32 of the Commons memorandum (Oral Evidence,
page 7) and paragraph 19 of the Lords memorandum (Oral Evidence,
page 58.)
60. The penal jurisdiction of Parliament
is directed at those who offend against it. Consequently, retention
of the contempt jurisdiction implies the continuation of the power
to punish. If corruption and similar irregularities are dealt
with separately from other contempts, and contempt is more or
less strictly limited in future to wilful, serious and damaging
obstruction of Parliament, the case for penal jurisdiction of
some kind can be more clearly seen. Obstructing Parliament ought
to be a serious offence: in appropriate cases, it should not go
unpunished. Since only Parliament is in a position to assess the
gravity of the offence, Parliament should—it could be argued—determine
the penalty. The arguments advanced about the difficulty of giving
to those against whom a charge of corruption is laid safeguards
not less than those to which they would be entitled in a court
of law are less conclusive when the accusation involves an obstructive
contempt.
61. Penal jurisdiction over acts of contempt
will naturally involve those who are not Members of either House—witnesses
who will not respond to a summons to give evidence, for example,
or who appear but do not tell the truth; those who wilfully disrupt
the proceedings of a House or a committee; or those who leak unreported
committee evidence. In our view one of the major problems the
Joint Committee must seek to resolve, is how to update the penal
jurisdiction of Parliament so as to make it credible, effective
and publicly acceptable and, so far as possible, immune from challenge
under the European Convention of Human Rights. We do not see any
easy way of doing this; we strongly suggest that it is an issue
which the Joint Committee needs to address.
J. M. Davies
Clerk of the Parliaments
W. R. McKay
Clerk of the House of Commons
5 May 1998
NOTES
1. Demicoli v Malta, Eur Conv Judgment
of 27 August 1991, No 33/1990/224/228 Human Rights Law Journal
Vol 12 Nos 8-9; HR (1991) Series A, No 210.
2. [1993] 1 AC 593; [1993] 1 ALL ER 42.
3. [1995] 1 AC 321; [1994] 3 All ER 407;
3 NZLR 513.
4. The Lords have not treated a libel of
a peer as a matter of privilege since the last century. In the
Commons, the Select Committee on Parliamentary Privilege recommended
in its report (HC 1967-68, 34) that normally, where a Member had
a remedy in the Courts, the Member should not be permitted to
invoke the penal jurisdiction of the House, in lieu of, or in
addition to, that remedy. When the Committee of Privileges, of
1976-77 (HC 417: Third Report: Recommendations of the Select Committee
on Parliamentary Privilege) recommended a modified version of
its predecessors recommendation to the House, it added that "it
would be unsatisfactory for the House to appear to rely on action
by the Member in the Courts as a substitute for the exercise of
its own jurisdiction". However, the House has, in practice,
accepted the 1967-68 Committee's recommendation without this qualification.
Another development may also be relevant. On 16 July 1971 the
House of Commons resolved that it would not treat as a contempt
the reporting of its public sittings: on 31 October 1980 a further
Resolution extended this exemption to Committees. Hitherto a series
of Resolutions of the House (notably that of 3 March 1762) had
claimed that reporting of proceedings was an infringement of its
privileges, and had from time to time used this claim as the basis
for punishing libellous reporting. Although both Resolutions were
in guarded terms which did not repeal the earlier claim, the practical
effect has in fact been exactly the same as repeal.
5. Votes and Proceedings, 12 December 1997.
6. In Session 1988-89 the Committee reviewed
the scope of freedom of speech and the possibility of right of
reply. Its conclusions (First Report, HC 290) are worth quoting
in full:
"67. We reiterate that the privilege of
freedom of speech is an essential protection for Members in carrying
out their duties. There is no point in this privilege unless it
provides guarantees against attempts from outside to control what
Members choose to say in the House. However, privilege carries
with it responsibilities as well as rights; and those responsibilities
have to be exercised within the rules laid down by the House and
in conformity with the standards it expects of its Members. Irresponsible
or reckless use of privilege can cause great harm to outside individuals
who enjoy no legal redress, and, in some circumstances, could
be prejudicial to the national interest. The strongest safeguard
against so-called abuses is the self-discipline of individual
Members. This means, for instance, that a Member should take steps,
before making a potentially damaging accusation against a named
individual, to ensure not only that evidence exists but that it
comes from a normally reliable source. This does not imply that
a Member needs to have evidence that would satisfy a court, but
that he should act on the basis of something firmer than mere
rumour or supposition.
68. In general we agree with the concluding remarks
of the Clerk of the House: "My personal opinion is that the
situation has not been reached which would justify a diminution
in Members' freedom of action, but I am not saying such a position
could not be reached". We underline the need for vigilance
implied by the Clerk. As regards the behaviour of Members themselves
in relation to privilege, we believe that the House already possesses
adequate powers to take action in flagrant cases of abuse, and
we would expect it to do so particularly when the standing of
Parliament was placed in jeopardy. So far as the protection of
individuals outside the House is concerned, whilst we have rejected
the idea of a formal right of reply, we are conscious that if
Members do not use their freedom of speech responsibly, pressure
for such a procedure could become irresistible. As with the maintenance
of high standards of conduct more generally, the onus lies with
Members, individually and collectively".
When, in Session 1995-96, a Member breached
a court injunction in circumstances which received considerable
publicity the Procedure Committee looked at the general issues
again. Their Report (HC 252) noted that the ill-effects of breaches
of the sort of court orders they were examining came from the
republication and dissemination of proceedings outside Parliament
and that such reporting did not seem to be immune from any prosecution
for contempt. The Committee envisaged the possibility of introducing
a new rule of the House if it proved necessary:—
"16. If there were strong evidence to
suggest that breaches of court orders as a result of proceedings
of the House represented a serious challenge to the due process
of law, we would not hesitate to recommend a further limitation
on the rights of free speech enjoyed by Members, whatever the
practical difficulties. We consider there is much judicial weight
behind the suggestion of the Master of the Rolls that, where an
order has been made restraining publication of a name or other
information, Parliament would want to support the High Court.
We do not, however, consider it necessary to take action as a
result of one specific case, given the importance the House rightly
attaches to protecting the right of Parliament to freedom of speech.
We urge Members to exercise the greatest care in avoiding breaches
of court orders. Should there be a number of instances of such
breaches, the House would be well advised to adopt a Resolution
along the lines we set out".
The words of the Resolution referred to were:
"That, subject always to the discretion
of the Chair and to the right of the House to legislate on any
matter, no reference should be made in any motion, in debate or
in any question or supplementary questions to a Minister to any
matter, (a) the publication of which is subject to restraint by
order of a court of law in the United Kingdom, or (b) is of a
class of information the publication of which is expressly prohibited
by the criminal law."
7. The Commons Resolutions are of 23 July
1963 (CJ 1962-63, 297) and 28 June 1972 (CJ 1971-72, 408). For
the Lords, see LJ (1963-64) 43 and HL Deb (1989-90) 515, cc 1094-1098;
LJ (1994-95) 45, 90, and HL Paper No 9 (1994-95): The sub-judice
rule is considered in detail in Leopold "The Changing Boundary
between Courts and Parliament" in Buckley (ed) "Legal
Structures" Wiley & Son, 1998.
8. Op. cit. paragraph 9.
9. See, too, Patricia Leopold, "Parliamentary
Free Speech, Court Orders and European Law" (unpublished
article).
10. HC Debates, 4 April 1989, c19.
11. HC (1966-67) 146 Appendix 38; for contempt
of court see HC (1981-82) 376, paragraphs 72-87. See, too, First
Report from the Select Committee on Televising of Proceedings
of the House, HC (1988-89) 141, paragraph 69. After a careful
examination of the issues, the House of Commons Select Committee
on Sound Broadcasting (1981-82) drew a distinction between live
broadcasts which they recommended should be protected by absolute
privilege and reports whether in full or by way of extract which
should enjoy qualified privilege at law. The two relevant recommendations
(neither of which have been implemented) are:
"that proposals should be presented for
amending the law to confer absolute privilege on broadcasters
in respect of the live broadcasting of defamatory words spoken
in either House. We would not, however, recommend any change in
the present law as regards the broadcasting of recordings"
(paragraph 83).
"that the broadcasters should be immune
from proceedings for contempt in the case of material broadcast
live" (paragraph 87).
12. The Australian Parliamentary Privileges
Act, 1987 defines:
"without limiting the generality of the
foregoing" the main proceedings in Parliament to which the
protection afforded by Article IX of the Bill of Rights applies
(Section 16(2)).
what "impeaching" and "questioning"
mean (Section 16(3)).
what evidence relating to parliamentary proceedings
a court may not admit (Section 16(4)).
what evidence relating to parliamentary proceedings
a court may admit (Section 16(5)).
The Act also specifies the exact circumstances
of a Members' or Senators' immunity from arrest or from a requirement
to attend a court (Section 14); legislates for the protection
of witnesses (Section 12) and provides the penalties which either
House may impose in respect of a contempt (Section 7).
13. Select Committee on Procedure: First
Report HC (1988-89) 290 especially Appendix 7; Committee of Privileges:
HC (1986-87) 365; HC (1976-77) 417 paragraphs 7 and 8; Joint Committee
on Proceedings in Parliament: Second Report HL (1969-70) 109,
HC (1969-70) 261, paragraphs 25-30; Select Committee on Parliamentary
Privilege: HC (1967-68) 34, paragraphs 80 to 86, 91 and 92. Report
of the Faulks Committee of the Law of Contempt; Cmnd 5909.
14. In her examination of the problems of
adapting parliamentary privilege to the introduction of broadcasting
in Legal Studies, Volume 9, No. 1, Patricia Leopold drew attention
to the need, in that context, to define "proceedings"
and to the equal importance of not attempting to make such a definition
comprehensive (page 65).
15. Beach v Freeson [1971] 2 All
ER 854.
16. Second Report op cit (HL 109, HC 261)
paragraph 56.
17. [1883, 1884], 12 QBD 271.
18. [1935], 1KB 594.
19. When a Member (or a witness or officer)
has "waived" privilege in a defamation action it is
not clear whether other Members or staff of the House could be
required (subject to the permission of the House, given on petition)
to give evidence relating to the words and actions of that Member
even if they had not agreed to waive their own privilege.
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