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Parliamentary Privilege Minutes of Evidence

Memorandum submitted by Professor Anthony Bradley[1]



  1.  When in 1967 a select committee of the House of Commons reviewed the law of parliamentary privilege,[2] one central issue which the committee had to consider was the relationship between the press and Parliament. Newspaper editors, lobby journalists and others were critical of the uncertainties created for the media by parliamentary privilege. Although many of the committee's proposals were not adopted at that time, the House of Commons on 6 February 1978 accepted the general recommendation that the House should exercise its penal jurisdiction as sparingly as possible, and only when it was essential to do so to provide reasonable protection for the House from obstruction or threats of obstruction causing substantial interference with the functions of the House.

  2.  Three decades on from 1967, a different issue has contributed to the creation of the Joint Committee, namely concern within Parliament about the relationship between the courts and Parliament. In a ministerial statement on 9 June 1997, the Lord Privy Seal and the Lord President of the Council said:

    "Various aspects of the relationship between Parliament and the courts have given rise to difficulties in recent years, and the boundaries between them have been redrawn without any fundamental reappraisal of the kind of legal immunities which Parliament and its Members ought to enjoy at the end of the 20th century". (HL Deb, WA, col 55; HC Deb, WA, col 319, emphasis supplied)

On 17 July 1997, Lord Richard expressed the point differently, saying that:

    "there have been several instances in recent years in which there have been difficulties in marking the frontier between Parliament and the courts"

and drawing attention to the "serious constitutional issues" raised by section 13 of the Defamation Act 1996.

  3.  The limited aim of this paper is to consider what recent frontier difficulties there have been in the relationship between Parliament and the courts and to consider whether the Joint Committee should conclude that the law and practice of parliamentary privilege should be reformed in the light of these difficulties. A brief final section deals with some aspects of the government's proposal that the law of corruption and bribery should be reformed and should apply to Members of Parliament.


  4.  In respect of parliamentary privilege there has long been an unresolved conflict of authority at the centre of the unwritten constitution. The confrontation between the Commons and the courts in the protracted affair of Stockdale v Hansard and The case of the Sheriff of Middlesex[3] was resolved by the Parliamentary PapersAct 1840, but the statute did not remove the possibility that such disputes might recur. As Lord Reid said in 1974,

    "For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them".[4]

In my view, that continues to be the case. When in October 1997 in R v Parliamentary Commissioner for Standards, ex parte Al Fayed [5] the Court of Appeal held that the courts had no jurisdiction to review decisions by the Parliamentary Commissioner for Standards,

  Lord Woolf MR said that the relationship between the courts and Parliament

    "is a relationship which is central to the constitutional arrangements in this country. It is clearly a matter of sensitivity and importance. . . . It is clearly established that the courts exercise a self-denying ordinance in relation to interfering with the proceedings of Parliament. That approach is supported by section 1, article IX of the Bill of Rights".

Lord Woolf commended the statement by Sedley J at first instance that the relationship between courts and Parliament "is a mutuality of respect between two constitutional sovereignties".

  5.  The creation of the Joint Committee is to be welcomed, but the Committee might be well advised not to seek to resolve once and for all the issue of "courts versus Parliament". Certainly the Committee should address archaic aspects of privilege, discarding those that are not necessary to the functioning of Parliament today, and should seek to simplify and to reform. However, the government's programme of constitutional reform does not include plans for replacing the unwritten constitution and the Committee may not wish to propose a written answer to one question which the unwritten constitution leaves open.

  6.  What are the recent frontier difficulties in respect of privilege which have been experienced? As we have seen, in the short debate in the Lords on 17 July 1997 when the Joint Committee was established, Lord Richard mentioned section 13 of the Defamation Act 1996. Parliament there legislated to make a limited but novel change in a text of constitutional significance. Parliament certainly has power to legislate on such issues but, as I have recently argued,[6] supreme legislative authority needs to be exercised with care when reform affects sensitive constitutional relationships. Without taking space to summarise them, I share many of the views expressed in Parliament in opposition to the amendment to Article 9 of the Bill of Rights which was made in 1996.

  7.  Are other recent difficulties affecting privilege attributable not to legislation but to judical decisions? On the parliamentary side of the frontier, some may feel that the courts are re-defining the boundary in a way that may suit the judical system but not Parliament, for example by reducing the protection afforded to the two Houses by Article 9.


  8.  While parliamentary privilege stems from the "lex et consuetudo parliamenti" rather than from the common law courts, it is definitely part of the law. As was affirmed by Holt CJ in Paty's case[7] nearly 200 years ago, where the House of Commons attempted to stop actions being brought by electors against a returning officer for having refused them the right to vote:

    "I will suppose, that the bringing such actions was declared by the House of Commons to be a breach of their privilege; but that declaration will not make that a breach of privilege that was not so before. The privileges of the House of Commons are well known, and are founded upon the law of the land, and are nothing but the law".

So too in Stockdale v Hansard, it was held that neither House acting alone can by resolution create new privileges of Parliament: "the House of Commons is not the Parliament, but only a co-ordinate and component part of parliament".[8] Moreover, to create new privileges is likely to affect the rights, duties and liberties of persons outside Parliament. [9]As Sir David Keir and Professor Lawson commented,

    "Never in fact since Stockdale v Hansard has the House of Commons refused to admit the jurisdiction of the courts when matters of privilege arose".[10]

  9.  Nevertheless, the courts must accept:

    (1)  that each House has distinct privileges which include but are not confined to Article 9 of the Bill of Rights;

    (2)  that the internal procedure and discipline of each House are outside the jurisdiction of the courts; [11]

    (3)  that each House has jurisdiction to deal with contempts of the House, whether committed by Members or by persons outside the House; and

    (4)  that the contempt jurisdiction extends to matters (for instance, the harassment of Members acting as such in their communications with constituents) which lie outside the scope of "proceedings in Parliament" protected by Article 9. [12]


  10.  The recent and continuing development of the public law role of the courts by means of the judicial review procedure is relevant to the present discussion. In Council of Civil Service Unions v Minister for the Civil Service, [13]the House of Lords held that judicial review extended to powers exercised by government under the prerogative and was not restricted to the exercise of statutory powers. In M v Home Office, [14]the House held that ministers and other officers of the Crown were subject to the contempt jurisdiction of the courts and that in judicial review proceedings injunctions could be granted against departments, ministers and civil servants. This jurisdiction may seldom need to be exercised, but its existence may help to ensure that government is conducted according to law. The relationship between the executive and the courts was summarised in this way by Nolan LJ (as he then was) in the Court of Appeal in M v. Home Office:

    "The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is".[15]

The existence of an effective system of administrative law does not conflict with the role of Parliament.

  11.  A regime of mutual respect is also relevant to the relationship between the courts and Parliament. As a supreme law-maker, Parliament makes laws which the courts must apply; except in respect of legislation which is inconsistent with European Community law, the courts have no power to review the validity of Acts of Parliament. [16]However, issues of parliamentary privilege can arise in relation to the two Houses functioning separately. As we have seen from Stockdale v Hansard, resolutions of one House can neither declare authoritatively nor change the law outside Parliament.

  12.  Because a central feature of the British system of government is the responsibility of ministers to Parliament, the same executive decision may give rise to review on legal grounds by the courts, to debate and questioning on political grounds by the House and to detailed criticism and scrutiny by parliamentary committes. [17]Parliamentarians who are sensitive to the public law role of the courts may find it difficult to accept that judicial review and ministerial responsibility serve complementary purposes and are not mutually exclusive, [18]and that a controversial political decision may give rise both to parliamentary debate and judicial review. In respect of the decision by the Major government to ratify the Maastricht Treaty, which had been discussed over many days by Parliament, judicial review proceedings were instituted by Lord Rees-Mogg challenging the ratification on several legal grounds. Shortly before the judicial proceedings, the Speaker reminded the High Court of the importance of Article 9 of the Bill of Rights, saying that the ruling in Pepper v Hart had "exposed our proceedings to possible questioning in a way that was previously thought to be impossible".[19] In the event, nothing in the judicial proceedings came near to being a breach of Article 9. [20]

  13.  Other leading political decisions which were subject to judicial review include (1) the Home Secretary's decision not to implement a statutory Criminal Injuries Compensation Scheme; (2) the Pergau Dam investment in Malaysia; and (3) the Employment Secretary's refusal to bring the rights of part-time workers into line with EC law. [21]In each case, the judicial review proceedings were successful, but I do not consider that they encroached upon the dignity or privileges of Parliament.

  14.  Overlap between judicial and parliamentary control arises in respect of delegated legislation; even if a measure has been approved under the positive procedure in each House, the courts may hold it to be ultra vires. [22]Depending on the subject-matter and the grounds of challenge, the courts may take into account the fact that a measure has been approved by each House. [23]Even where an instrument is criticised on grounds of vires by the Joint Committee on Statutory Instruments, the instrument's validity can be decided only be a court.

  15.  The possibility of such challenges to decisions announced or approved in Parliament explains why the House of Commons' sub judice rule (or convention), subject to the discretion of the Speaker, permits reference to matters awaiting adjudication where they relate to ministerial decisions which can be challenged in court only on grounds of misdirection or bad faith. [24]If this discretion did not exist, parliamentary discussion of key executive decisions could be stifled by the initiation of judicial review proceedings.


  16.  Aspects of parliamentary privilege may arise when the court is asked to intervene in an ongoing process of delegated legislation and it is said that the measure in question is ultra vires. In 1924, the Court of Appeal held that in prohibiting the holding of a public inquiry into a scheme which if confirmed by the Minister of Transport would be subject to approval in Parliament, on the ground that the scheme was ultra vires the parent Act, the judges,

    "far from seeking to diminish the authority of Parliament . . . [were] performing the ordinary duty of the Courts in upholding the enactments which it has passed".[25]

Moreover, the remedies obtainable by judicial review are at the discretion of the court. One expert view is that while parliamentary proceedings upon a subordinate instrument are pending, judicial intervention by means of an injunction would be an improper interference with the internal proceedings of Parliament; [26]but this may not apply to the making of a judicial declaration as to the validity of the instrument. In 1984, Lord Donaldson MR said, in rejecting on the merits a challenge to the validity of a proposed Order in Council;

    "It . . . behoves the courts to be ever sensitive to the paramount need to refrain from trespassing on the province of Parliament or, so far as this can be avoided, even appearing to do so".[27]

Lord Donaldson said that there could be no possible objection to Parliament debating the draft Order merely because the court was seised of a complaint against its validity.

  17.  While the courts may be asked to intervene in processes of delegated legislation, I do not consider that the courts would ever be justified in intervening in the process of primary legislation, even if questions may later arise about the compatibility of legislation with European Community law. [28]


  18.  One difficult question is whether Hansard may be cited in judicial review proceedings, since frequently a ministerial decision is announced in Parliament and is the subject of questions and criticism by Members before an application for judicial review is made. In R v Trade Secretary, ex p Anderson Strathclyde plc, [29]judicial review was sought of the refusal by the Minister of State for Trade under monopolies legislation to prohibit the acquisition of Anderson Strathclyde by another company (Charter) in which the Secretary of State for Trade had a small shareholding; because of his shareholding, the Secretary of State had delegated the decision to the Minister of State and the legality of this was one of the grounds for judicial review. The applicant company wished to refer to statements by ministers in Hansard which it was said would give factual support to this ground for the application. Citing Church of Scientology v Johnson-Smith, [30]the Divisional Court held that Article 9 prevented Hansard from being used for the purpose of supporting a ground for judicial review in respect of something which occurred outside the House; even on an issue of fact:

    "the court would have to do more than take note of the fact that a certain statement was made in the House on a certain date. It would have to consider the statement or statements with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them." [31]

In the light of this ruling, Strathclyde Anderson abandoned this ground of their application.

  19.  However, in Pepper v Hart[32] this point was held to have been wrongly decided. There the House of Lords held unanimously that to cite Hansard in court as an aid to statutory interpretation would not infringe Article 9 of the Bill of Rights. The Attorney-General had communicated to the House a letter from the Clerk of the House of Commons referring to the Bill of Rights and expressing the view that for a court to hear argument as to the meaning or significance of words spoken during proceedings on a Bill in the House would be outside the leave given by the House on 31 October 1980 to permit reference to Hansard to be made in court proceedings. Lord Browne-Wilkinson did not accept that the use of parliamentary material as an aid to statutory interpretation would be to "question" the freedom of speech or debate in Parliament:

    "In my view, the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members . . . were not subjected to any penalty, civil or criminal, for what they said . . . Relaxation of the rule will not involve the courts in criticising what is said in Parliament." [33]

Lord Browne-Wilkinson said that in cases of judicial review Hansard had frequently been referred to with a view to deciding whether a statutory power had been improperly exercised for an alien purpose or in a wholly unreasonable manner. [34]The Attorney-General had conceded that references to Hansard for purposes of judicial review did not infringe Article 9. Lord Browne-Wilkinson continued:

    "Yet reference for the purposes of judicial review and for the purposes of construction are indistinguishable. In both types of case, the Minister's words are considered and taken into account by the court; in both, the use of such words by the courts might affect what is said in Parliament".[35]

He thus ruled that the Divisional Court's decision not to look at Hansard in the Anderson Strathclyde case was wrong. On the main issue in Pepper v Hart, he insisted that the House of Lords were

    "motivated by a desire to carry out the intentions of Parliament in enacting legislation and [had] no intention or desire to question the processes by which such legislation was enacted . . ." [36]

  20.  What was said about judicial review in Pepper v Hart is a strong indication that reference may be made to Hansard both by those applying for judicial review and those on behalf of public authorities seeking to resist review. This appears to me to be a necessary development, since many executive decisions are made by ministers, who may seek to justify them in Parliament. It would be undesirable for ministers to be able to disavow in court what they have said in Parliament, bearing in mind the public interest in the aims served by judicial review. Whatever the precise grounds of judicial review that are relied on, it would be highly artificial for a court in exercise of its public law jurisdiction not to be able to read what is already in the public domain in Hansard.

  21.  My conclusion from this part of the paper is that, even if the boundary between the courts and Parliament has in recent years been mapped in greater detail than was formerly the case, there is in this development no cause for concern on the part of Parliament that the essential freedom of speech and debates in Parliament which is preserved by Article 9 has been endangered by decisions in the courts.


  22.  I now deal briefly with a different matter, namely the involvement of the courts and criminal law in respect of the conduct of MPs. Before the decision of Buckley J was made in R v Greenaway et al on 25 June 1992, there was much difference of opinion on the question of whether MPs are subject to the corruption statutes and to the common law crime of abuse of public office. I need not here cite the different views held. The judgment of Buckley J (which reviews the relevant authorities) deserves close reading. Since it has been said that the decision went against the received view, I comment merely that, having had occasion to examine the issues in dispute before the learned judge's decision was made in 1992, I independently reached the same conclusion. In brief, this was that Members were subject to the common law offences, but that there would be evidentiary problems in so far as proff of an offence might depend on what a Member had said or done in the course of proceedings in Parliament. I also considered that there was force in the views of the late Professor Glanville Williams and Professor Zellick that certain statutory offences relating to corruption applied to Members.

  23.  If the criminal law does or should apply to Members who are accused of having acted corruptly, then it is unsatisfactory that the administration of criminal justice should be impeded by parliamentary privilege. Since not everything that a Member does in his or her capacity as Member is done in the course of proceedings in Parliament, it may be possible to establish the necessary evidence without reference to Article 9. [37]Sometimes Hansard may speak for itself as to the events which are recorded (for exaple, that a Member asked a particular question). But there are many "proceedings in Parliament" which are not recorded in Hansard nor in the Journals. And on some charges it might be necessary to question the integrity of a Member in making statements to the House.

  24.  In such situations, Article 9 should not in my view be permitted to obstruct either investigation or trial of the charges, and a way should be found to enable the House to waive its privileges—whether by legislation, by means of a general resolution or by a procedure permitting investigation in a particular case. Any such procedure ought to operate without being subject to a vote in the whole House on an `ad hominen' basis. However, the procedure may need to provide a safeguard against abusive allegations made against a Member for ulterior purposes (for example, when trade interest threatened by a campaign against them in Parliament seek to silence the Member by impungning his or her honesty).

  25.  The present system of registering Members' interests will be fundamental to the proper operation of such legislation. It is difficult to see how the elements of criminal liability for corruption would exist where a Member had diligently and promptly observed the requirements of declaration and registration. Should certain events give rise both to criminal charges and to criticism of a Member for having failed to observe the House's rules on registration, the position would be similar to that which arises when a dishonest employee in a reponsible position is charged with criminal conduct and also with charges of misconduct justifying dismissal. An element of "double jeopardy" is unavoidable in this situation.

17 February 1998

1   Of the Inner Temple, barrister; Emeritus Professor of Constitutional Law, University of Edinburgh. Back

2   Report from Select Committee on Parliamentary Privilege, HC 34 (1967-68). And see Report of the Committee of Privileges HC 417 (1976-77). Back

3   (1839) 9 Ad & E 1 and (1840) 11 Ad & E 273. See also E Stockdale, "The Unnecessary Crisis: the Background to the Parliamentary Papers Act 1840" [1990] PL 30; P M Leopold "The Parliamentary Papers Act 1840 and its Application Today" [1990] PL 183. Back

4   British Railways Board v Pickin [1974] AC 765, 768. Back

5   [1998] 1 All ER 93. For a similar approach, see R v HM Treasury, ex p Smedley [1985] QB 657. In Fayed's case, the court distinguished R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 All ER 375 (which had held that the PCA was subject to judicial review). Back

6   See Bradley, "Constitutional Reform, the Sovereignty of Parliament and Devolution" in Constitutional Reform in the United Kingdom: Practice and Principles (Hart Publishing, April 1998), pp 33-40. Back

7   (1704) 2 Ld Raym 1105. Back

8   Stockdale v Hansard (1839) 9 A & E 1, 108 (Lord Denman CJ). Back

9   As was said by Patteson J in Stockdale v Hansard (p 214), "All persons ought to be very tender in preserving to the House all privileges which may be necessary for their exercise, and to place the most implicit confidence in their representatives as to the due exercise of those privileges. But power, and especially the power of invading the rights of others, is a very different thing: it is to be regarded not with tenderness, but with jealousy . . . " Back

10   D L Keir and F H Lawson, Cases in Constitutional Law, 5th edn, 1967, p 268. Back

11   Bradlaugh v Gossett (1884) 12 QBD 271: "the House of Commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute-law which has relation to its own internal proceedings|" (Stephen J). And cf ex parte Al Fayed (above, note 5). Back

12   And see AG of Ceylon v De Livera [1963] AC 103, 126-7 (Lord Radcliffe): an MP in Ceylon was acting "in his capacity as such member" where he had been brought into a matter of government action that affected his constituency, his intervention was attributable to his membership and it was the practice that the government department should consult the local MP. Back

13   [1985] AC 374 (the GCHQ case). Back

14   [1994] 1 AC 377. Back

15   [1992] QB 270, 314. The proposition was tested by decisions such as R v Home Secretary, ex p Fire Brigades Union [1995] 2 AC 513 (esp Lord Mustill at 567-8) (the Criminal Injuries Compensation case) and R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 (the Pergau Dam case). Back

16   This will still be the position when the Human Rights Bill takes effect. However, in respect of primary legislation that cannot be interpreted consistently with the Convention rights, the superior courts will have power to issue a "certificate of incompatibility". Back

17   Decisions are also subject to examination by the Comptroller and Auditor-General and the Parliamentary Commissioner for Administration. Although the PCA's jurisdiction overlaps with that of the courts, by the Parliamentary Commissioner Act 1967, section 5(2), the PCA will not investigate a matter where the citizen may be expected to seek a remedy in a court or tribunal. Back

18   See R v IRC, ex p National Federation of Self-Employed [1982] AC 617, 644 and R v Home Secretary, ex p Fire Brigades Union [1995] 2 AC 513, 572-3 and 575. Back

19   HC Deb, 21 July 1993, cols 351-2. Back

20   R v Foreign Secretary, ex p Rees-Mogg [1994] QB 552, 561. Back

21   See respectively R v Home Secretary, ex p Fire Brigades Union [1995] 2 AC 513; R v Employment Secretary, ex p Equal Opportunities Commission [1995] 1 AC 1; R v Foreign and Commonwealth Secretary, ex p Worldwide Development Movement [1995] 1 All ER 611. Back

22   See eg Hoffman LaRoche v Trade and Industry Secretary [1975] AC 295. Back

23   R v Environment Secretary, ex p Notts CC [1986] C 240 and R v Environment Secretary, ex p Hammersmith BC [1991] 1 AC 521. Back

24   HC Deb, 28 June 1972, cols 1589-1627. Back

25   R v Electricity Commissioners, ex p London Electricity Committee [1924] 1 KB 171. Also Harper v Home Secretary [1955] Ch 238; R v HM Treasury, ex p Smedley [1985] 1 QB 657; and de Smith's Judicial Review of Administrative Action (ed Woolf and Jowell), 5th edn, 1995, pp 725-7. Back

26   De Smith's Judicial Review, p 726. Back

27   R v HM Treasury, ex p Smedley [1985] QB at 666. Back

28   Cf Bilston Corpn v Wolverhampton Corpn [1942] Ch 391 (refusal by court to enforce prior agreement that defendant would not oppose plaintiff's private Bill). Back

29   [1983] 2 All ER 233. Back

30   [1972] 1 QB 522 (Hansard may not be cited in defamation proceedings as evidence of malice on part of MP). Back

31   [1983] 2 All ER at 239. Back

32   [1993] AC 593. Back

33   [1993] AC at 638. Back

34   He gave R v Home Secretary, ex p Brind [1991] 1 AC 696 as an outstanding example of this. Back

35   [1993] AC at 639. Back

36   [1993] AC at 646. Back

37   For example, a developer in the MP's constituency offers money to induce the MP to intervene with a local authority to grant planning permission. Whether in fact the MP refuses the offer and reports it to the police, or is so induced and acts accordingly, the issues of criminal liability raise no question about Article 9. Back

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