Parliamentary Privilege Minutes of Evidence

Replies to questions submitted by the Chairman of the Joint Committee on Parliamentary Privilege to the Lord Chief Justice of Northern Ireland, the Right Honourable Sir Robert Carswell

 (The Chairman's questions are printed in italics)

1.   One of the key sources of parliamentary privilege is Article IX (freedom of speech) of the Bill of Rights 1688. Does this apply in Northern Ireland? If not, is there an equivalent to Article IX under Northern Irish law? Does this equivalent have the same ambit as Article IX?

2.   Do the courts of Northern Ireland recognise that each House of Parliament has exclusive cognisance of the conduct of its internal affairs?

  1-2.  May I first answer your first two questions in the affirmative. Article IX of the Bill of Rights 1688 applies in Northern Ireland. The Courts in Northern Ireland recognise that each House of Parliament has exclusive cognisance of the conduct of its internal affairs. There is no difference between the approach of the courts in Northern Ireland to this topic and that adopted by the courts in England and Wales.

  Given the consonance between the law in Northern Ireland and the practice of our courts with that in England and Wales, I can attempt to furnish answers to the remaining questions in your letter.

  The further questions which follow are based on the assumption that under the law of Northern Ireland Members of Parliament enjoy an equivalent immunity to that enjoyed in front of English courts by virtue of Article IX and the "exclusive cognisance" principle. To the extent that this is not so, the questions may need modification.

3.   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?

  3.  The courts and Parliament are both astute to recognise their respective constitutional roles, as Lord Browne-Wilkinson expressed it in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at page 332. There nevertheless remain the unresolved dualism and apparent deadlock on the question of jurisdiction between the courts and Parliament which are discussed in earlier editions of Erskine May. In practice both the courts and Parliament are extremely careful to avoid where at all possible invading the territory of the other or pronouncing upon its extent, as may be seen in the decisions from Bradlaugh v Gossett (1884) 12 QBD 271 down to Prebble v TVNZ. Indeed, Lord Coleridge CJ observed in the former case that in theory the question is extremely hard to solve, but in practice it is not very important. It may therefore be questioned whether it would be wise to upset the cautious equilibrium which has been maintained for over a century. If an attempt is now made to prescribe who should have a defining role, the potential for unseemly conflict between Parliament and the courts is all to obvious.

  If it is thought advisable to attempt some resolution of the matter, I see merit in the suggestion supported by the Lord Chief Justice and the Lord President that the final determination be entrusted to a special appellate body such as a committee of the Privy Council. I would not think it appropriate that the decision should lie with the ordinary courts of law, and I should not seek or welcome such a jurisdiction in Northern Ireland. Concurrent jurisdiction would in my opinion be undesirable, as it would be a recipe for conflict.

4. 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?

  4.  I am not aware of any widespread dissatisfaction with the existence of the powers by the Houses of Parliament in the regulation of their own procedures. It is possible, however, that any system which is entirely immune from review of any kind may be attacked as failing to meet contemporary notions of fairness.

  As in the question of defining the extent of privilege, I would not think it appropriate to entrust any appeal or review to the ordinary courts. The suggestion of a committee of the Privy Council might again be appropriate. Whatever body might be designated to hear appeals or reviews, it would, I suggest, be important to define very carefully and fully its appellate or reviewing jurisdiction. It would not be an easy task, and it might be that this in itself reinforces the need for caution before making any change.

5. 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?

  5.  The law in Northern Ireland is the same as that which applies in England and Wales. As I understand it, some propositions are clear enough:

    (a)  A statement made in Parliament is protected by absolute privilege. I know of no suggestion for any change in this rule, nor would I advocate any.

    (b)  A statement made outside Parliament by a Member of the House of Commons to his constituents will be protected by qualified privilege. In my opinion this is sufficient protection for the member for the proper performance of his work.

    (c)  The same statement made outside Parliament to the press will not be protected by privilege.

  The extent of the privilege attaching to some communications is unresolved, eg a member's communication with a Minister on a matter with which Parliament is concerned. It was left open in Re Parliamentary Privilege Act 1770 [1958] AC 331 whether such a communication attracted qualified or absolute privilege.

  Criminal proceedings call for separate consideration, for the liberty of the subject is at stake. It would be difficult to defend the withholding of relevant evidence on grounds other than public interest immunity.

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

  6.  In my opinion MPs and peers should not be immune from being subpoenaed to attend and give evidence in civil or criminal proceedings. Needless to say, if the purpose of a subpoena was to require a member to give evidence on a privileged topic he could apply to have the subpoena set aside. If he were required to attend the House for a division, I am confident that our courts would unhesitatingly accommodate him.

7.   Increasingly one or other of the Houses, through their corporate officers (see the Parliamentary Corporate Bodies Act 1992, sections 1 and 2) and in other ways as well, enter into contracts, for example, for building and repair works. In addition, officials and staff are employed under contracts of employment, and disputes do arise regarding wrongful or unfair dismissal. Disputes can also arise following accidents to persons working in or visiting the Palace of Westminster. When disputes arise and litigation ensues, questions may and do arise regarding the discoverability of relevant documents, which may be the minutes of a committee or sub-committee of one of the Houses. Similarly, questions may arise concerning oral evidence on what happened at a meeting of a committee or sub-committee.

  Plainly it would seem unsatisfactory for these sorts of litigation not to be attended by the usual evidential consequences, even though this would involve incursion into the general immunity afforded by Article IX. Do you agree? Where, and on what principle, do you think the boundary line should be drawn in this regard?

  7.  I agree that litigation arising from the performance of contracts made by corporate officers of Parliament should not be hampered by the strict application of Article IX to such matters as discovery of documents. Similarly, claims for wrongful or unfair dismissal should not suffer a disadvantage because they arise from employment within the Palace of Westminster. The words of Lord Browne-Wilkinson inPrebble v TVNZ may provide a helpful guide to where the boundary line should lie:—

    "[the courts] will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and established privileges (emphasis added)".

  Any activity connected with the legislative functions of Parliament, including the regulation of services and facilities ancillary to them, should be protected from intrusion; matters unconnected with that core function need not be.

8.   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?

  8.  If criminal legislation dealing with bribery and corruption is sufficiently widely drawn to include the conduct of members of either House of Parliament in the discharge of their functions as members, I believe that the prosecution of any such offences should take place in the criminal courts. I accept that this might involve a criminal court investigating the conduct of Parliamentary business by a Member of Parliament, but I believe that the circumstances would justify this exception. It would in my opinion be unacceptably anomalous that the criminal liability of Members of Parliament should be investigated in some form of parallel proceedings while others charged with a similar offence were prosecuted in a criminal court.

9.   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?

  9.  I have no particular views on whether the law on Parliamentary privilege should be codified. If it is to be codified, however, I believe that the interpretation of the statute (ie the decision on its legal meaning as opposed to its practical application) should be a matter for the courts.

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

  10.  I am not aware of any areas of law or practice where the existing relationship between the courts in this jurisdiction and Parliament is unsatisfactory or in need of clarification or change.

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