Parliamentary Privilege Report

Memorandum submitted by the Clerk of the House of Commons


  1.  The description of parliamentary privilege set out in Erskine May's Parliamentary Practice is well known:

    the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.[1]

  Privilege is therefore a great many things at once, not all of them always easy to reconcile with the others. For example, privilege:

    —  is a legal concept which is simultaneously part of the general law and an exception to it;

    —  is partly set out in statute, but is also to be deduced from the traditional claims of the House, and the freedoms granted by the Sovereign at the beginning of every Parliament;

    —  is interpreted both by the courts and by the House. The courts perform a quasi-legislative role when they define "proceedings in Parliament" and in other areas of privilege the House acts in what can be seen as a judicial way. These two great authorities of the state have often not been entirely at one in the application of privilege law;

    —  is a central constitutional fact, whose origins (and some of its elements) are nearly immemorial,[2] part of the very fabric of the state, not capable of being added to by the Parliament it seeks to protect, short of legislation, but also a matter of political sensitivity, so that its nature and boundaries have radically shifted over the years;

    —  is a defence for Members of the House, often against rights which the law would otherwise allow to citizens, but also exists to protect the citizen; and

    —  is in essence a simple functional protection for the institution of Parliament and does not confer a special status on individual Members, though many of its incidents attach to and claims are made by individual Members and others who are not Members.

  2.  Despite the fact, almost the truism, that Parliament's particular status exists for the service of the nation and not that of its Members, the term "privilege" is often seen as an unfortunate one, implying special rules for special people. The Select Committee on Parliamentary Privilege in 1966-67[3] were doubtful about its retention. Whatever term may be used, it is worth recalling that in modern times neither House has acted in such a way as to give any real substance to a charge of unwarranted extension of its privilege jurisdiction. Privilege is not an immunity conferred on individuals, to be removed only in circumstances when those who enjoy it collectively think fit. The House has been careful to keep the limits of privilege within the compass of what is necessary for the task it has to perform (see paragraph 23)[4].

  3.  This paper is divided into two parts. The first is a whole conspectus of privilege, so far as possible without the learned apparatus which normally accompanies it, concentrating on the problems and how in general they might be solved. Detailed description of the privileges mentioned here can usually be found in the latest edition of Erskine May's Parliamentary Practice, and for the purpose page references to that work are given. Memoranda in greater detail on those aspects of privilege which specially interest the Committee will of course be supplied in response to requests. The issues dealt with are—
The House and the courtsparagraphs 5 to 8
"Proceedings in Parliament"paragraphs 9 to 13
"Impeach or question"paragraph 14
Defamation Act 1996paragraphs 15 to 17
EXCLUSIVE COGNISANCEparagraphs 18 to 20
FREEDOM FROM ARRESTparagraphs 21 to 23
CONTEMPTSparagraphs 24 to 29
PENAL JURISDICTIONparagraphs 30 to 32

  4.  The second part of the paper, entitled CORRUPTION AND IMPROPRIETY, (from paragraph 33 to 46) deals with particular difficulties arising from charges of misuse of public office or corruption made against Members for what they are alleged to have done either as part of "proceedings in Parliament" or in the exercise of their functions as Members. There is a brief CONCLUSION at paragraph 47.

1   Erskine May, Parliamentary Practice, 22nd edition (1997) page 65. Back

2   The earliest privilege citation in Erskine May is of 1290 (page 74n5). Back

3   HC 34 (1967-68). That Committee at paragraphs 12 to 14 of its report preferred "rights and immunities" to "rights and privileges", and recommended that "privilege" should be retained only in the sense in which it is customarily used in the courts of law, or where "historical necessity" obliges its use. Back

4   Ibid paragraph 18: "the reality is that the House in recent times has exercised its penal jurisdiction most sparingly . . . the House has been a very lenient judge in its own cause". Back

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Prepared 9 April 1999