Parliamentary Privilege Minutes of Evidence

Memorandum by the Lord Chief Justice of England


  I take as my starting point three principles:

    (1)  all citizens of a modern democracy should, generally speaking, be equally subject to the ordinary law of the land. But

    (2)  some derogations from this principle are necessary if holders of certain public offices are to perform their functions to the greatest public advantage. However,

    (3)  these derogations should not exceed what is truly necessary for performance of the public functions in question.

  I cannot think principle (1) is controversial. Principle (2) reflects an acceptance that some public office-holders—policemen, officers of the security services and magistrates and judges are obvious examples—cannot do their job without a measure of exemption from the ordinary law of the land. But the exemptions should, as expressed in principle (3), ordinarily be justified by function rather than status. (The monarch may perhaps be an exception).

  The term "privilege" is, I think, plainly unfortunate, although hallowed by long usage. It wrongly suggests some perk or special right or dignity which certain office-holders enjoy, when attention should be concentrated on the extent of the limited exemption from the ordinary law which the effective performance of a public duty requires.

  I turn to your specific questions:

    Q1.  In order to discharge their public functions members of the two Houses need certain rights and immunities, such as freedom of speech. Some of these rights impact on non-members, eg a defamatory statement made in one of the Houses. In the event of a dispute over the existence or extent of a right, who should decide: the courts or Parliament? For instance, if a member is sued for defamation in respect of a statement he claims lies within Article IX of the Bill of Rights, should it be for the courts or Parliament to decide? or should there be concurrent jurisdiction? or should some other body decide?

  1.  Freedom for members of either House to speak freely without fear of suit for defamation is clearly a necessary exemption from the general law. But there is scope for argument whether, in borderline cases, a communication is or is not a "proceeding in Parliament". I can see an argument for holding that Parliament should not be the sole and final arbiter in the cause of one of its members. I wonder whether, as in the proposed devolution legislation, there is a role here for the Judicial Committee of the Privy Council? It would perhaps be a suitable body to rule in case of dispute: it could give a reasoned and principled ruling; it would be close enough to Parliament to understand parliamentary concerns, while remaining independent and objective; the resolution of such disputes would be a suitable function for a supreme court; and its involvement would, I think, minimise the risk of friction between Parliament and the courts.

    Q2.  Similar questions arise over another of the rights of the two Houses, the regulation of their own procedures. The Houses have exclusive cognisance over these procedures even though they impact on non-members, eg by requiring non-members to attend before Parliament or a committee; by imposing penalties on non-members for conduct which the Houses regard as obstructing members in the conduct of Parliamentary business; by reserving the right to treat as a contempt the intimidation of witnesses before select committees. To what extent should the two Houses be immune from review in the courts in respect of the conduct of their own affairs? Should the courts have any jurisdiction, residual or otherwise, exercisable at the behest of members or non-members? For instance, should the Houses have an uncontrolled right to decide whether conduct amounts to a contempt, and what punishment to award?

  2.  It seems to me right that both Houses should have the primary responsibility for regulating their members, and also members of the public, in relation to the conduct of parliamentary business. But I can, again, see force in the argument that the Houses should not be the sole and final arbiter in such matters. There would be scope for undesirable conflict if those aggrieved could resort to the ordinary courts. But if an issue arose (taking one of your examples) whether conduct amounted to a contempt, or whether the punishment imposed was unreasonable, the Judicial Committee would be a very suitable body to rule. Article 6 of the European Convention might have some bearing here.

    Q3.  Freedom of speech.

    (a)  The work of an MP is a seamless web, extending from statements in the House to dealing with constituents' affairs. What is the principle on which the boundary line should be drawn between statements and communications by members or non-members which cannot be questioned in the courts and those which are not so immune?

    (b)  Should the immunity be total? Or should there be exceptions eg if criminal proceedings are involved?

  3.  It is obviously debatable where the limits of absolute privilege should lie. My own preference, I think, would be:

    (1)  that members of both Houses should continue to enjoy absolute privilege for anything said in debate or in any parliamentary question or answer written or oral (ie, effectively, for anything reported in Hansard);

    (2)  that members of both Houses should enjoy qualified privilege for anything else said or written in their capacity as members.

  Thus the protection under (2) would be lost if the member where shown to have made the statement in question without believing it to be true or from some ulterior or wrongful motive. And there would (as now) be no special protection for defamatory statements made by members otherwise than in their capacity as such.

    Q4.  Should members be immune from being subpoenaed to attend and give evidence as witnesses in criminal or civil proceedings?

  4.  I cannot think that the proper function of their public duties requires members of either House to be exempt from the ordinary obligation to attend and give evidence in response to a lawfully issued subpoena. Where, as often happens, well-known political figures are subpoenaed to appear and give evidence by vexatious litigants, the remedy is to apply to set aside the subpoena.

    Q5.  The Government is considering introducing criminal legislation in respect of bribery and corruption. If the ingredients of the offences were expressed in terms wide enough to include the conduct of members of the two Houses in discharge of their functions as members, should members be liable to criminal proceedings in the courts, even though this might mean that a criminal court would have to investigate in depth the conduct of parliamentary business by a member and others? Or should such conduct be left to be controlled elsewhere, either by Parliament or by another body?

  5.  I do not think members of either House should be immune from prosecution for bribery or corruption in relation to anything done or not done in relation to their parliamentary duties. Any such prosecution should in my view take place in the ordinary criminal courts. I would, however, require the consent of the Attorney-General before any such prosecution were brought; and if any private prosecutor obtained such consent I would expect the Director of Public Prosecutions to take over the conduct of the prosecution. I appreciate that this could lead to courts and juries enquiring into the transaction of parliamentary business in a way they have never done. But I would expect such prosecutions, if there ever were any, to be rare in the extreme; and I think the susceptibility of members to such a prosecution would reassure the public.

    Q6.  Codification. On balance, would codification of the law of parliamentary privilege be advantageous or disadvantageous? If the law were codified in a statute, should interpretation of the statute be a function to be discharged exclusively by the courts?

  6.  I understand the arguments against codification, and in many fields agree with those arguments. But 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 contemptous or not, there would be scope for argument under Articles 6 and 7 of the European Convention.

    Q7.  Are there any areas of law or practice where the existing relationship between the courts and Parliament is unsatisfactory and clarification or change would be beneficial?

  7.  On the whole, I think the relationship between the courts and Parliament works pretty well. I do not think Pepper v Hart has given rise to practical difficulty (or, for that matter, affected the outcome of many cases). I was recently concerned when a Member of Parliament deliberately revealed, on the floor of the House of Commons, the name of a child which the High Court and the Court of Appeal after full argument had ruled should not be disclosed (the House of Lords refused leave to appeal), but it may be that this will not be done again. I think the sub judice rule should possibly be clarified, and certain procedures affecting judges perhaps reviewed. I feel sure the Committee will wish to think again about the waiver provision in section 13 of the Defamation Act 1996.

2 February 1998

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