2 General principles |
The need for parliamentary privilege
14. The ancient origins of parliamentary privilege,
and the archaic language that is sometimes used in describing
it, should not disguise its continuing relevance and value. As
we have noted in chapter 1, the work of Parliament is central
to our democracy, and its proceedings must be immune from interference
by the executive, the courts or anyone else who may wish to impede
or influence those proceedings in pursuit of their own ends.
and the rule of law
15. The corollary of Parliament's immunity from
outside interference is that those matters subject to parliamentary
privilege fall to be regulated by Parliament alone. Parliament
enjoys sole jurisdictionnormally described by the archaic
term "exclusive cognisance"over all matters subject
to parliamentary privilege. As Sir William Blackstone famously
noted in his Commentaries on the Laws of England, the maxim
underlying the law and custom of Parliament is that "whatever
matter arises concerning either house of parliament, ought to
be examined, discussed, and adjudged in that house to which it
relates, and not elsewhere".
16. The principle of exclusive cognisance underpins
all privilege, including those aspects of privilege which are
now based in statute. Thus Article 9 of the Bill of Rights, the
most important statutory expression of parliamentary privilege,
states that "the freedom of speech and debates or proceedings
in parliament ought not to be impeached or questioned in any court
or place out of Parliament". This encapsulated a pre-existing
claim to exclusive cognisance over things said or done in Parliamentthe
preamble to the Bill of Rights notes that King James II had sought
to subvert the liberties of the realm "by Prosecutions in
the Court of King's Bench for Matters and Causes cognizable only
17. A consequence of Parliament's possession
of exclusive cognisance over proceedings in Parliament is that
participants, both Members and non-Members, are not legally liable
for things said or done in the course of those proceedings; nor
are those outside who are adversely affected by things said or
done in Parliament able to seek redress through the courts.
18. Thus exclusive cognisance in certain circumstances
may over-ride other generally accepted legal rights. It is, in
effect, an exception to the general principle of the rule of law.
This has been accepted by the courts since at least the case of
Bradlaugh v. Gosset in 1884, in which the court held that
the decision of the House of Commons in resolving not to allow
an elected Member, Charles Bradlaugh, to take the oath, and the
actions of the Serjeant at Arms in preventing Bradlaugh from entering
the House, were subject to the sole jurisdiction of the Houseeven
though Bradlaugh was under a statutory obligation to take the
oath in accordance with the Parliamentary Oaths Act 1866.
In his judgment, Mr Justice Stephen held that "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".
That ruling holds true to this day and should do so in perpetuity.
19. The tension between parliamentary privilege
and the general rule of law can be uncomfortable. In his response
to Government's consultation on the Green Paper, Dr Adam Tucker,
Lecturer in Law at the University of Manchester, asserted that
"Parliamentary privilege undermines the rule of law. Specifically
it undermines the requirement, which is central to the rule of
law, that the law be general".
But he continued: "The rule of law is not, however, an absolute
principle. Its claims must be balanced against the competing claims
of other principles. One of those competing principles is the
separation of powers, specifically the requirement that no branch
of government should interfere in the operation of another branch
of government. There are occasions when insisting upon the general
application of the law would cause (or risk causing) the judiciary
or the executive to interfere with the proper operation of Parliament."
In the United Kingdom, Parliament's exception to the general application
of the law has, over time, become a fundamental constitutional
principle, itself part of the law. The European Court of Human
Rights has also acknowledged that the immunity conferred by parliamentary
privilege, even though it may restrict the right of access to
the courts, is proportionate.
The limits of exclusive cognisance:
the "doctrine of necessity"
20. The possibility of tension between parliamentary
privilege and the rule of law means that Parliament's claim to
exclusive cognisance should be strictly limited to those areas
where immunity from normal legal oversight is necessary in order
to safeguard the effective functioning of Parliament. It is agreed
that immunity applies to that core work itself, to things said
or done as part of proceedings in either Chamber or in a select
committee of either Housethe "proceedings in Parliament"
whose immunity from challenge is enshrined in Article 9. The difficulty
lies in assessing how far such immunity applies to ancillary matters,
to things said or done outside proceedings themselves, but which
are necessarily connected to those proceedings.
21. Both the courts and committees have in recent
years adopted a test based on a "necessary connection"
to proceedings, in assessing whether or not privilege extends
to certain activities. Thus the "one test" adopted by
the 1999 Joint Committee in assessing the value of any element
of parliamentary privilege was "whether each particular right
or immunity currently existing is necessary today, in its present
form, for the effective functioning of Parliament".
22. In R v. Chaytor, Lord Phillips of
Worth Matravers applied an essentially similar test:
"In considering whether actions outside the
Houses and committees fall within parliamentary proceedings because
of their connection to them, it is necessary to consider the nature
of that connection and whether, if such actions do not enjoy privilege,
this is likely to impact adversely on the core or essential business
23. In the 2005 case of Canada (House of Commons)
v. Vaid the Supreme Court of Canada went so far as to elevate
this approach into a "doctrine of necessity":
"If the existence and scope of a privilege have
not been authoritatively established, the court will be required
to test the claim against the doctrine of necessitythe
foundation of all parliamentary privilege. In such a case, in
order to sustain a claim of privilege, the assembly ... must show
that the sphere of activity for which privilege is claimed is
so closely and directly connected with the fulfilment by the assembly
or its members of their functions as a legislative and deliberative
body, including the assembly's work in holding the government
to account, that outside interference would undermine the level
of autonomy required to enable the assembly and its members to
do their legislative work with dignity and efficiency".
24. We endorse the approach adopted in Vaid.
Absolute privilege attaches to those matters which, either because
they are part of proceedings in Parliament or because they are
necessarily connected to those proceedings, are subject to Parliament's
25. One of the advantages of the "doctrine
of necessity" is that it ensures a degree of flexibility.
The working practices of Parliament change, and our understanding
of what is or is not subject to Parliament's sole jurisdiction
needs to adapt and evolve accordingly.
26. It is therefore neither possible nor desirable
to identify and specify every single element of parliamentary
privilege. This point was made forcefully to us by Sir Robert
Rogers KCB, the Clerk of the House of Commons, who said that "It
is very difficult to have a shopping list that meets every possible
development or eventuality".
He then gave examples of the kind of developments that might be
missed in preparing a "shopping list" of matters subject
to exclusive cognisance, such as decisions of the Speaker on meetings
organised by all-party groups. David Beamish, the Clerk of the
Parliaments, agreed, noting that "one problem with a list
is that what Parliament does evolves and you need to adapt".
27. If flexibility is the key advantage of adopting
the "doctrine of necessity", the other side of the coin
is that such flexibility leaves an element of uncertainty, at
least at the outer edges of privilege. There is reasonable clarity
in those key areas where elements of parliamentary privilege have
been expressed in statutory form. There is no question, for instance,
that "freedom of speech and debates or proceedings in parliament",
the areas set out in Article 9 of the Bill of Rights, are absolutely
privileged. But the terms themselves have not been authoritatively
defined in modern timesErskine May notes that "it
has been concluded that an exhaustive definition [of proceedings
in Parliament] could not be achieved".
28. There is also an exception to the general
principle of necessity in the existence of certain powers that
are part of the "law and custom of Parliament" (sometimes
known by the Latin term lex et consuetudo parliamenti).
These ancient powers, including a power to punish breaches of
privilege, or contempts, are deemed to be inherent in the two
Houses of the Westminster Parliamentthough not in Commonwealth
parliaments of more recent date. In the words of Erskine May:
"The power to punish for contempt has been judicially
considered to be inherent in each House of Parliament not
as a necessary incident of the authority and functions of a legislature
(as might be argued in respect of certain privileges) but by virtue
of their descent from the undivided High Court of Parliament and
in right of the lex et consuetudo parliamenti".
The role of the courts
29. In the absence of an exhaustive definition
of "proceedings in Parliament", certain matters are
generally accepted as falling within the terms of Article 9, and
in such cases Parliament's sole jurisdiction may be said, in the
terms used in the Vaid judgment, to have been "authoritatively
established". These matters include:
- the procedures adopted by the
two Houses: the courts may not challenge the means by which legislation
was passed or decisions reached;
- proceedings in Parliament: words spoken in the
course of debate, votes cast, or decisions taken by either House;
- actions of Members, office-holders or officials
which are necessarily linked to proceedings.
30. Although cases relating to such matters could
in theory come before a court, our expectation is that where the
existence of a privilege is authoritatively established (either
by statute or, in some cases, by case law), the court will immediately
decline jurisdiction, without enquiring further into the nature
or origins of the privilege.
31. Yet even here there may be uncertainty, not
over the existence of a privilege, but over its precise extent.
For instance there may be uncertainty over the extent to which
the protection afforded by Article 9 extends beyond words spoken
in the course of debate to briefing or correspondence that is
preparatory to that debate. In such cases of uncertainty, the
decision as to whether a matter falls within Parliament's sole
jurisdiction rests, paradoxically, with the courts. This has been
accepted at least since the case of Stockdale v. Hansard
in the 1830s, in which the Lord Chief Justice, Lord Denham, while
accepting in terms that "whatever be done within the walls
of either [House] must pass without question in any other place",
rejected the proposition that the House of Commons, in its guise
as a court, had sole jurisdiction over the extent of its
"Where the subject matter falls within their
jurisdiction, no doubt we cannot question their judgment; but
we are now enquiring whether the subject matter does fall within
the jurisdiction of the House of Commons. It is contended that
they can bring it within their jurisdiction by declaring it so.
To this claim, as arising from their privileges, I have already
stated my answer: it is perfectly clear that none of these Courts
could give themselves jurisdiction by adjudging that they enjoy
This approach was endorsed and re-stated by Lord
Phillips of Worth Matravers in R v. Chaytor: "the
extent of parliamentary privilege is ultimately a matter for the
The role of statute
32. The courts can only interpret and apply the
lawParliament alone can make law. So underlying
the generally accepted proposition that determining the extent
of parliamentary privilege is a matter for the courts is the fact
that, if the courts interpret privilege in a way which Parliament
perceives to be wrong or damaging, Parliament has the power simply
to change the law. This point was forcefully made by the Lord
Chief Justice of England and Wales, Lord Judge, in oral evidence:
"ultimately it is Parliament that is sovereign".
33. The Lord Chief Justice's comment accurately
reflects the development of privilege not only in this country
but in other jurisdictions. We have already quoted the preamble
to the Bill of Rights 1689, which referred to the arbitrary rule
of King James II: the Bill of Rights was explicitly enacted by
the Lords and Commons "for the Vindicating and Asserting
their ancient Rights and Liberties".
34. In the case of Stockdale v. Hansard,
already mentioned, the court held that the House's publisher,
Thomas Hansard, was not protected from an action for defamation
in respect of a report published by order of the House. The long-running
law-suit led ultimately to the enactment of the Parliamentary
Papers Act 1840, which put the immunity afforded to such reports
on a statutory basis.
35. In more recent times, the Australian Parliamentary
Privileges Act 1987, perhaps the most comprehensive statutory
expression of the meaning and extent of privilege, was enacted
"for the express purpose of overturning the adverse court
judgments" in the New South Wales case of R v. Murphy,
where the court allowed both prosecution and defence to make "free
use of the evidence given before the Senate committees for their
36. The Privileges Committee of the New Zealand
House of Representatives has recently recommended legislation
in response to two adverse court decisions, on a Member's liability
to legal action in respect of the "effective repetition"
of statements previously made in Parliament,
and on the status of briefing materials provided to a minister
for the purpose of answering a parliamentary question.
The Clerk of the House of Representatives, Mary Harris, recalled
the Australian experience in describing the position: "we
have got to the point that the Australians perhaps got to in the
1980s with the Murphy case, where the courts had taken a direction
that was starting to impinge potentially on the way the House
might operate and, therefore, at the very least proceedings in
Parliament need to be defined".
37. Thus there have been many examples of parliaments
enacting legislation in response to adverse decisions of the courts
regarding the extent of their exclusive cognisance. On the other
hand, attempts by Parliament to assert its privileges short of
legislation have been less successful. Responding to the actions
of the court in the course of the Stockdale v. Hansard
case, the House of Commons passed a series of resolutions asserting,
among other things, "that the House had sole and exclusive
jurisdiction to determine upon the existence and extent of its
privileges." The court rejected the proposition, describing
it as "abhorrent to the first principles of the constitution".
As mentioned above, the conflict was resolved only by the enactment
of the Parliamentary Papers Act 1840.
38. The Lord Chief Justice, in oral evidence,
commented on the status of resolutions as follows:
"The reality is that a resolution of both Houses
does not change the lawit can't. So if both Houses pass
a resolution but decide that they are not going to pass an enactment,
the law does not change. If there were a resolution by both Houses
in the field of parliamentary privilege saying, "This is
how we would like towe mustconduct our business
and it is necessary for our business," I think it would be
pretty astonishing if the court said, "Well, so what?"
But there might be some right in someone elsea right vested
in them by statutethat would overbear the resolution".
39. While these comments demonstrate the respect
that the senior judiciary afford to the views of the two Houses,
they also illustrate the difficulty that would be faced by judges
in construing resolutions of the two Houses. Ultimately the role
of the courts is to apply the law, and anything short of statute
could be overborne by pre-existing legal rights. A more succinct
expression of the same basic point was offered by Mr Justice Blake
in a recent case, in which he held that: "it has long been
the law that a resolution of the House of Commons is not given
supremacy akin to primary legislation by the court".
40. In summary, if Parliament feels that the
limits of its exclusive cognisance have been eroded to the extent
that it can no longer effectively perform its core work, it can
change the law. But this is a last resort, and such legislation
carries the risk that statute law, and the judicial interpretation
of that law will, over time, ossify privilege, taking away the
possibility of evolution and adaptation to changing circumstances.
The Lord Chief Justice put the point as follows:
"Parliament has to decide whether it has sufficient
privilege to be able to conduct its business in the way that Parliament
wishes. If you have reservations about that, you have to produce
a system that enables you to have the conditions under which you
can perform your responsibilities properly. If you had no real
reservations about it, I would not go down a legislative route
that defined, semi-defined, sub-divided, allowed for, or exercised
this and that, because you would end up in interminable discussions,
and, in court, interminable arguments, about what that really
meant. Unless you are dissatisfied with the way in which your
privileges operate, I would leave this well alone".
41. The fact that legislation to confirm the
scope and meaning of parliamentary privilege is a "last resort"
means that it also tends to be reactive. The flexibility that
we have already identified as one of the key advantages of the
doctrine of necessity militates against proactive statutory codification.
42. The 1999 Joint Committee, having undertaken
an exhaustive analysis of the component parts of parliamentary
privilege, was well aware of the advantages and disadvantages
of codificationessentially, increased clarity as against
reduced flexibility. The Joint Committee, having weighed up these
considerations, concluded that "There should be a Parliamentary
Privileges Act, bringing together all the changes in the law referred
to above, and codifying parliamentary privilege as a whole".
43. The Green Paper dissents from this key recommendation,
noting that "the Government does not see enough evidence
of problems in practice to justify such a significant exercise".
The first, over-arching question posed in the Green Paper invites
agreement with this conclusion: "Do you agree that the case
has not been made for a comprehensive codification of parliamentary
44. There is an important difference between
what is here called "comprehensive codification", and
what we have described earlier in this chapter, namely the pragmatic
use of statute, as a last resort, to confirm or clarify specific
elements of privilege when court decisions or executive action
have cast doubt upon them. In reality, and notwithstanding the
recommendation of the 1999 Joint Committee, we are not aware of
any country which relies on privilege having sought to bring about
"comprehensive codification" of that privilege. The
example most often cited, the Australian Parliamentary Privileges
Act of 1987, was a direct response to the courts trespassing on
parliamentary exclusive cognisance; at no stage did it purport
to be a "comprehensive codification" of all aspects
of privilege. Indeed, the 1987 Act explicitly retained the general
constitutional basis for privilege in Australia,
that is to say the privileges of the United Kingdom House of Commons.
45. This point was clearly made in the evidence
submitted by the President and Clerk of the New South Wales Legislative
"The UK Green Paper perhaps overstates the case
when it characterises the Parliamentary Privileges Act 1987 (Cth)
as an attempt at 'comprehensive codification of privilege' ...
The Commonwealth legislation ... was a legislative response to
particular circumstances in an attempt to reassert the true law
of privilege. It was not an attempt to cover the field of privilege.
Section 5 of the Parliamentary Privileges Act 1987 specifically
preserves parliamentary privilege as it existed prior to the Act
under section 49 of the Commonwealth Constitution of Australia".
46. We accordingly disagree with the 1999 Joint
Committee's recommendation seeking to codify "parliamentary
privilege as a whole." There is no precedent for such codification,
and the potential consequences are impossible to predict. At the
same time, our opposition to "comprehensive codification"
does not mean that we rule out legislation, where such legislation
is needed to resolve uncertainty and confirm the existence or
extent of specific privileges.
47. In summary, the following general principles
underlie our examination of the issues addressed in the Green
Paper and in this report:
- Absolute privilege
attaches to those matters which, either because they are part
of proceedings in Parliament or because they are necessarily connected
to those proceedings, are subject to Parliament's sole jurisdiction
or "exclusive cognisance".
- The extent of Parliament's exclusive
cognisance changes over time, as the work of Parliament evolves:
it would be impracticable and undesirable to attempt to draw up
an exhaustive list of those matters subject to exclusive cognisance.
- Where there is uncertainty in
a case brought before the courts, the extent of Parliament's exclusive
cognisance will be determined by the courts.
- Parliament cannot establish
a new privilege or extend an existing privilege by resolution;
if Parliament were to consider that its privileges had been reduced
to the extent that it could no longer effectively perform its
core work, it could in the last resort change the law.
- We do not consider that comprehensive
codification is needed at this time. This does not mean that we
reject all legislation; but legislation should only be used when
absolutely necessary, to resolve uncertainty or in the unlikely
event of Parliament's exclusive cognisance being materially diminished
by the courts.
26 Sir William Blackstone, Commentaries on the Laws
of England (1765), pages 58 to 59 Back
Erskine May's Treatise on the Law, Privileges, Proceedings
and Usages of Parliament, 24th edition, ed. Sir Malcolm Jack
KCB (hereafter Erskine May, 24th edition), page 291 Back
Bradlaugh v. Gosset (1884) 12 QBD 271 Back
Dr Adam Tucker response to Government consultation on the Green
Paper, Cm 8318, paragraph 2 Back
A v. The United Kingdom  ECHR 35373/97 Back
Report from the 1999 Joint Committee on Parliamentary Privilege,
paragraph 4 Back
R v. Chaytor and others  UKSC 52, paragraph 47 Back
Canada (House of Commons) v. Vaid  1 SCR 667, paragraph
Q 191 Back
Erskine May, 24th edition, page 235 Back
Ibid., pages 203 to 204 Back
Stockdale v. Hansard (1839) 9 Ad & E 1, pages 147 to
R v. Chaytor and others  UKSC 52, paragraphs 15 and
Q 246 Back
Odgers' Australian Senate Practice, 13th edition (2012),
pages 48 to 49 Back
Jennings v. Buchanan  UKPC 36 Back
Attorney General and Gow v. Leigh  NZSC 106; Report
from the Privileges Committee of the New Zealand House of Representatives
on Question of privilege concerning the defamation action Attorney-General
and Gow v. Leigh, I.17A, June 2013 Back
Q 134 Back
Erskine May, 24th edition, page 289 Back
Q 248 Back
Izuazu (Article 8 - new rules)  UKUT 00045 (IAC) Back
Q 239 Back
Report from the 1999 Joint Committee on Parliamentary Privilege,
recommendation 39; see also paragraphs 378 to 385 Back
Cm 8318, paragraph 38 Back
Section 49 of the Commonwealth of Australia Constitution Act states
that "The powers, privileges, and immunities of the Senate
and of the House of Representatives, and of the members and the
committees of each House, shall be such as are declared by the
Parliament, and until declared shall be those of the Commons House
of Parliament of the United Kingdom, and of its members and committees,
at the establishment of the Commonwealth." Back
Written evidence from the New South Wales Legislative Council Back