Parliamentary Privilege - Joint Committee on Parliamentary Privilege

Parliamentary Privilege - Joint Committee on Parliamentary Privilege Contents

8 Miscellaneous issues

Applicability of legislation to Parliament

208. In 1934, in a case brought by the author and (later) Independent Member of Parliament for Oxford University A P Herbert,[189] Lord Chief Justice Hewart ruled that the court would not hear a complaint that alcohol was being sold in the precincts of the Palace of Westminster without the necessary licences, on the grounds that the matter fell within the exclusive cognisance of Parliament. That decision was never challenged in a higher court, and ever since, the Green Paper notes, there has been uncertainty as to "the extent to which statute law applies to either House of Parliament".[190]

209. The Clerk of the Parliaments described this uncertainty in more detail:

"Since the A P Herbert case was decided, a number of Acts have expressly provided that their provisions, or certain of them, are to apply to Parliament ... The express inclusion of such a provision in some Acts leaves uncertain the extent to which other Acts (in which the same or a similar formula does not appear) apply to Parliament. By inference, they would not seem to apply, in the absence of some compelling implication that they must have been intended to apply".[191]

210. Parliament has accordingly acted for many years, albeit not entirely consistently, on the presumption that laws do not apply to Parliament unless Acts specifically state that they do. The Chairman of Committees of the House of Lords summarised the situation in a written answer on 16 January 1995:

"United Kingdom health and safety legislation is not considered as applying to the Palace of Westminster, having regard to the 1935 decision in R. v. Graham-Campbell ex parte Herbert [1 KB 594]. This decision indicates that the courts will not, in the absence of express provision or necessary implication, treat the provisions of an Act of Parliament as binding on the two Houses themselves, so far as those provisions would affect the internal affairs of the Houses. The Palace authorities do, however, try to comply fully with the relevant legislation as if it were binding on them in the same way as on the Crown".[192]

211. The 1999 Joint Committee, applying the test of necessity in judging whether or not a matter was subject to Parliament's sole jurisdiction, was highly critical of the legacy of the decision in R v. Graham-Campbell:

"Parliamentary Privilege exists to enable Members to discharge their duties to the public. It cannot be right that this privilege should have the effect that Parliament itself, within the place it meets, is not required to comply with its own laws on matters such as health and safety, employment, or the sale of alcohol".[193]

212. The courts have also cast doubt on the apparent legal implications of the decision in Graham-Campbell. In R v. Chaytor the Supreme Court considered the case in passing, noting that "Following [Graham-Campbell] there appears to have been a presumption in Parliament that statutes do not apply to activities within the Palace of Westminster unless they expressly provide to the contrary. That presumption is open to question".[194]

213. This comment is interpreted in the Green Paper as follows:

"In light of the Chaytor judgment, the line likely to be taken by the courts in future appears to be reasonably clear. Courts remain respectful of parliamentary privilege and exclusive cognisance; but statute law and the courts' jurisdiction will only be excluded if the activities in question are core to Parliament's functions as a legislative and deliberative body".[195]

214. This over-simplifies the position. The difficulty lies not with the likely attitude of the courts, were a similar case to be brought, but with the fact that no such case has yet been brought, while in the meantime, for 75 years, legislation has mostly been drafted on the presumption that the case was correctly decided. This has led to inconsistency and muddle. In the words of the Lord Chief Justice:

"If, on day one, you say, 'This Act applies to Parliament,' and, on day two, you do not say anything about it, it will be assumed that it does not apply to Parliament. And the other way round: if, on day one, you say, 'This Act does not apply to Parliament,' and, the next time, you leave it silent, somebody will say, 'Well, they didn't say the Act didn't apply to Parliament. Last time, they said it didn't. This time, it looks as though it must'."[196]

215. A similar situation existed in Canada until it was clarified by the 2005 judgment of the Canadian Supreme Court in Canada (House of Commons) v. Vaid. In that decision, as described in Chapter 2, the court applied a "doctrine of necessity" in assessing whether or not exclusive cognisance applied in a specific area. The court accordingly found that Parliament's exclusive cognisance was limited to matters closely and directly connected with its core functions as a legislative and deliberative body, and did not extend to matters such as the employment rights enjoyed by ancillary staff. The court found further that in matters of general administration the Canadian House of Commons was subject to federal law.[197]

216. The 1999 Joint Committee recommended that the legacy of the Graham-Campbell judgment be resolved by legislation. On the one hand, the Joint Committee recommended a general provision to the effect that the privilege of each House to administer its own internal affairs applies only to activities directly and closely related to proceedings in Parliament; on the other, it recommended legislation to clarify that in future there should be a principle of statutory interpretation that in the absence of a contrary intention Acts of Parliament should bind both Houses.[198]

217. The Clerk of the Parliaments expressed qualified support for these recommendations: "The approach recommended by the 1999 Joint Committee would require legislation, but is consistent with what I take to be the essential rationale of exclusive cognisance, and would offer clarity going forward."[199] On the other hand, the Green Paper notes that implementing the 1999 Joint Committee's recommendations "would probably require a prior definition of what is meant by the phrase 'proceedings in Parliament'"—something the Government have ruled out.[200] The Clerk of the House of Commons cited the Supreme Court's comments in the Chaytor judgment, and the hazards of legislating to clarify the situation, as reasons for concluding that "there is no need for legislation to clarify the extent of Parliament's privilege to organise its internal affairs".[201]

218. The Lord Chief Justice did not think that there was "very much difficulty" about the current situation and noted that, should the issue come before a court, the matter would be clarified and it would be up to Parliament to legislate should it disagree with that decision.[202] We agree that the courts, taking account of the decision of the Canadian Supreme Court in Vaid, might well overturn the judgment in Graham-Campbell should a similar issue come before them. But it has been over 75 years since Graham-Campbell, and the matter has not yet been clarified. We are therefore reluctant to rely upon the courts to address the problem, as the opportunity may not arise for some time.

219. Moreover, a decision of the courts along the lines of the Vaid judgment would not resolve the existing legacy of inconsistent statutory provisions. Indeed, the 1999 Joint Committee pointed out that even a retrospective legislative provision confirming that all existing legislation applied to Parliament would have "unforeseeable practical repercussions".[203]

220. Whatever the merits of the Graham-Campbell decision in the context of the internal administration of Parliament in the 1930s, we agree with the 1999 Joint Committee that today, applying the test of necessity, "it cannot be right that … privilege should have the effect that Parliament … is not required to comply with its own laws on matters such as health and safety, employment, or the sale of alcohol".[204]

221. In the meantime, it is essential that Parliament should be absolutely clear, at the time it passes new legislation, which provisions apply to Parliament and which do not. This would provide the courts with clarity on Parliament's intentions and help avoid a situation in which Parliament suddenly found itself subject to provisions in legislation from which it had understood itself to be exempt.

222. In fact an agreement was reached in 2002 which should have achieved precisely this level of clarity. As the Clerk of the Parliaments told us, guidance was issued by the Treasury Solicitor to departments, asking them "to consult the respective House authorities … on whether any proposed legislation that is to apply to the Crown, or its servants, should also apply to the two Houses and to instruct the draftsman accordingly".[205] The Clerk of the Parliaments commented that "unfortunately, this policy, though endorsed at the time by the Treasury Solicitor and Parliamentary Counsel, has not been consistently observed".[206]

CONCLUSIONS

223. We accept the principle that legislation of general application should apply to the staff and premises of Parliament, unless that legislation specifies otherwise. The legacy of the Graham-Campbell means that the contrary presumption has been adopted as a principle of legislative drafting, namely that legislation does not extend to Parliament unless it states expressly that it does so. This has led, over many years, to manifold inconsistencies in statute law.

224. It does not seem practicable to resolve these inconsistencies without a sweeping retrospective change to the law, which could have unforeseeable consequences. The legislative approach recommended by the 1999 Joint Committee, while avoiding retrospective change, would have represented an elegant and effective solution going forward.

225. Unfortunately the Government's proposals in the Green Paper, which appear to be based largely on wishful thinking, suggest that there is little prospect of legislation to resolve this issue. In the absence of legislation, the safest way forward, however undesirable it may be as a statement of principle, is to reiterate and formalise the current presumption that legislation does not apply to Parliament unless it expressly provides otherwise.

226. We recommend that the two Houses be invited to adopt resolutions stating that the House of Commons and the House of Lords should in future be expressly bound by legislation creating individual rights which could impinge on parliamentary activities, and that in the absence of such express provision such legislation is not binding upon Parliament.

227. We further recommend that the Government take steps to ensure that all Departments comply with the official guidance issued by the Treasury Solicitor in 2002, which asked them to consult the House authorities on whether any proposed legislation that is to apply to the Crown, or its servants, should apply also to the two Houses.

Privileges contained in House of Lords Standing Orders

228. The Green Paper deals with a few privileges of the House of Lords, which are expressed in, though they do not necessarily derive from, the House's Standing Orders.[207] These matters, affecting the House of Lords only, have been considered by the House of Lords Procedure Committee, which reported in March 2013 that it concurred with the Government's assessment that the three Standing Orders discussed in the Green Paper were obsolete. On 24 April the House of Lords agreed with the Committee's recommendation that the three Standing Orders, on printing and publication of proceedings (27 February 1699), concerning examining witnesses in perpetuam rei memoriam (3 July 1678) and no oath to take away the privilege of Peerage (30 April 1675), be repealed.[208] The Standing Orders were accordingly repealed on 9 May 2013.

Registers of Members' Interests

229. In 1990, in Rost v. Edwards, Mr Justice Popplewell in the High Court determined that the Register of Members' Interests was not a proceeding in Parliament. Although notice was given of intention to appeal, the case was settled and so the judge's decision was not reviewed.[209] Nevertheless, doubt was cast on the correctness of the decision in Prebble v. Television New Zealand in 1995.[210] Indeed, a year later the Defamation Act 1996 specifically listed any communication with "any person having functions in connection with the registration of members' interests" as a proceeding in Parliament.[211]

230. The 1999 Joint Committee, while indicating that it would not be appropriate to comment "on the correctness of this decision", argued that, if correct, it should be reversed: "we are in no doubt that, if this decision is correct, the law should be changed. As the law now stands, it is open to a court to investigate and adjudicate upon an alleged wrongful failure to register. That ought to be a matter for Parliament alone".[212] The Joint Committee accordingly recommended that, as part of its proposal for a Parliamentary Privileges Act, one of the items included in the indicative list of matters deemed to be "proceedings in Parliament" should be "the maintenance of any register of the interests of the members of a House and any other register of interests prescribed by resolution of a House".[213]

231. The Green Paper simply states that the current law is "unambiguous that the registers are not proceedings in Parliament."[214] No further comment is made—nor is there any acknowledgement that the law, even if unambiguous, may be wrong.

232. Speaker's Counsel was scathing in his summary of Rost v. Edwards, which he described it as a "chapter of accidents", in which the Law Officers had had no opportunity to intervene.[215] He did not indicate how Parliament could reverse the decision—and the Clerk of the House, in his written evidence, simply said that "I look forward to Popplewell J's decision being reversed in due course".[216]

233. It is clear to us that the decision in Rost v. Edwards represented an inappropriate encroachment on an area that should be subject to Parliament's exclusive cognisance. We note that the decision was not definitive, and that it has been criticised in other judgments. In the event that a similar case were to come before the courts, we consider that there is a strong possibility that the decision in Rost v. Edwards would be reversed. We would expect the two Houses to intervene should such a case arise.

234. In the meantime we agree with the 1999 Joint Committee that, if legislation on parliamentary privilege is contemplated, it should clarify that the Registers of Members' Interests, and other Registers prescribed by resolution of either House, are proceedings in Parliament for the purposes of Article 9 of the Bill of Rights.

Members' correspondence

235. Correspondence with constituents and constituency case-work in general do not form part of the "proceedings in Parliament" under the absolute privilege afforded by Article 9 of the Bill of Rights. In 1958 the House of Commons rejected the opinion of its Committee of Privileges that a letter written by a Member to a Minister concerning a nationalised industry was a proceeding in Parliament.[217]

236. The 1999 Joint Committee decided that in principle the exceptional protection of absolute privilege should remain confined to the core activities of Parliament unless a pressing need was shown for an extension,[218] and considered that there was insufficient evidence of difficulty to justify so substantial an increase in the amount of parliamentary material protected by absolute privilege. Members are not in the position that, lacking the absolute immunity given by Article 9, they are bereft of all legal protection. In the ordinary course a Member enjoys qualified privilege at law in respect of his constituency correspondence. In evidence to the 1999 Joint Committee the then Lord Chief Justice of England (Lord Bingham of Cornhill) and the then Lord President of the Court of Session (Lord Rodger of Earlsferry) both stressed the development of qualified privilege at law and the degree of protection it provides to those acting in an official capacity and without malice:

"So long as the member handles a complaint in an appropriate way, he is not at risk of being held liable for any defamatory statements in the correspondence. Qualified privilege means a member has a good defence to defamation proceedings so long as he acted without malice, that is, without some dishonest or improper motive".[219]

237. The Clerk of the House of Commons, in considering the status of Members' correspondence, concluded that it would be a matter for the courts to decide in a case whether something done, said or written was actually a "proceeding in Parliament" and thereby entitled to the absolute protection afforded by Article 9. He suggested that, rather than fix our contemporary application of the term, the wiser course for the health of parliamentary democracy in the long run would be to apply a pragmatic test in each case of how closely what the Member (or witness, or parliamentary official) did or wrote was connected to actual proceedings in the House or its committees. He resisted interpretations that took as their starting point a formulation such as that of the Canadian 19th century judge that "a Member of Parliament is privileged in anything he may say or do within the scope of his duties in the course of parliamentary business", unless those duties were narrowly defined.[220]

238. The Clerk of the House's view was that, in general, whether a Member's letter is a proceeding in Parliament will depend, in the circumstances of the case, on how closely the letter is connected to an occurrence, actual or clearly foreseen, in the House or one of its committees. He pointed out that Article 9 was not the only factor, since "the special position of a person providing information to a Member for the exercise of his parliamentary duties has been regarded by the courts as enjoying qualified privilege at law".[221]

239. Arguments for extending special protection to Members' correspondence were advanced by some of the House of Commons Members who gave evidence to the Committee established following the searches of the parliamentary offices of Damian Green MP in November 2008.[222] The Rt Hon David Davis MP suggested that while a broad and absolute parliamentary privilege could allow a Member of Parliament to keep the involvement of a whistleblower secret, in the absence of statutory protection for a public servant disclosing information to a Member of Parliament, too narrow a view of privilege could lead to the perverse consequence that the only way to protect any leaked secret information would be to make public use of it in parliamentary proceedings.[223]

240. In its consideration of the hacking of Members' mobile phones, the House of Commons Standards and Privileges Committee questioned whether the established position remains appropriate, though without reaching a firm conclusion:

"We agree with the Clerk of the House that the question of whether Members' performance of their constituency-related duties is part of the work of Parliament is 'difficult.' It has become increasingly difficult as the proportion of time spent by MPs on constituency-related work has grown. But the principle is well established: unless a Member's constituency-related work is carried out on the floor of the House, in one of its committees, or through the tabling of a motion, question or amendment, it is not a proceeding in Parliament and it is not, therefore, protected by privilege. Such was the conclusion of the Joint Committee in 1999, which was itself founded on previous findings of the House, of committees of the House and of the courts. The question that remains is whether a principle that is founded on a set of circumstances far removed from those that now apply, and which were codified in a statute more than four centuries ago, remains entirely fit for purpose. That is a question that goes far beyond the scope of this Report".[224]

241. The Minister, in contrast, told us that "The Government is not aware of evidence which suggests that MPs do not have sufficient protection to carry out their work ... The Government believes that the current position is appropriate which enables the courts to determine the boundaries of privilege in individual cases".[225]

242. We recognise and welcome the willingness of the courts to give consideration to the appropriate role of a Member of Parliament in acting on behalf of a constituent. Although we can envisage circumstances in which it might become necessary to legislate in order for stronger statutory protection to be given to Members' correspondence with, or case-work on behalf of, their constituents, we do not see any need for change at the present time.

Briefings by officials

243. The New Zealand Supreme Court ruled in Attorney General and Gow v. Leigh[226] that only qualified privilege attached to a briefing given by a civil servant to a Minister prior to the Minister answering a question in the House of Representatives. The Attorney General and the Speaker of the House of Representatives had argued that absolute privilege should apply, because of the necessary connection between the briefing supplied by the official and the parliamentary proceeding itself.

244. It would not be appropriate for this Committee to comment on the New Zealand Supreme Court's legal analysis in Attorney General and Gow v. Leigh (which is not in any case binding in the United Kingdom). But with respect to the effect of that decision, we note the view of the Clerk of the House of Representatives, that the judgment will in practice have "a chilling effect on the way in which officials think about what they can say to a Minister in briefings".[227] We also note that the Committee for Privileges of the House of Representatives has now recommended legislation in response to the judgment.[228]

245. Briefings provided by officials to Ministers, to assist them in answering parliamentary questions, play a necessary, indeed fundamental, part in proceedings in Parliament. If an Urgent Question is tabled in the morning, and the Minister is required to answer it a few hours later, we find it difficult to believe that absolute privilege attaches to the question itself, and to the answer, but not to the briefing supplied by officials in the intervening hours. The same principles apply even when briefing is not required with such urgency. Such briefing is necessarily antecedent to a parliamentary proceeding, and should enjoy the same protection as is afforded to the draft of a speech or question, whether prepared by a Member personally or by a researcher acting on the instructions of that Member.

246. This does not mean that absolute privilege would apply in the event of briefing supplied by officials in these circumstances being published, for example by the Department concerned. In such an event, the act of publication not having been undertaken "by order or under the authority of the House of Lords or of the House of Commons", it would not be protected by the provisions of the Parliamentary Papers Act 1840.

247. The Minister echoed the concerns raised by the Clerk of the New Zealand House of Representatives, noting that the decision in Attorney General and Gow v. Leigh "could potentially have a chilling effect on the content of briefing by officials if officials could be legally liable for that content".[229]

248. We regret the decision of the New Zealand Supreme Court in Attorney General and Gow v. Leigh. In our view, briefings supplied by officials to Ministers in order to enable them to answer parliamentary questions are necessarily antecedent to proceedings in Parliament, and should enjoy the same protection as drafts of speeches or questions. We recommend that they should continue to do so in the United Kingdom.

Jury service

249. According to the Canadian textbook on House of Commons Procedure and Practice:

"Since the House of Commons has first claim on the attendance and service of its Members, and since the courts have a large body of individuals to call upon to serve on juries, it is not essential that Members of Parliament be obliged to serve as jurors. This was the tradition in the United Kingdom long before Confederation and this has been the Canadian practice since 1867. The duty of Members to attend to their functions as elected representatives is in the best interests of the nation and is considered to supersede any obligation to serve as jurors. It has also been recognized in law".[230]

250. In the United Kingdom the Criminal Justice Act 2003 removed the exemption of Members of the House for Commons and the House of Lords from the requirement to perform jury service in England and Wales.[231]The 2012 edition of the Australian House of Representatives Practice attributes the excusal of its Members to the House's prior claim on their services.[232] David McGee's Parliamentary Practice in New Zealand notes that the law in New Zealand goes still further and provides that Members of Parliament there are not to serve on any jury in any court on any occasion: "Rather than being exempt from serving on juries, members are now disqualified from doing so".[233]

251. Lords entitled to receive writs of summons to attend the House of Lords, officers of the House of Lords, and Members and officers of the House of Commons are excusable as of right from jury service in Scotland,[234] as are Members of the Scottish Executive and junior Scottish Ministers[235] and Members of the National Assembly for Wales.[236] In Northern Ireland, Members of the Northern Ireland Assembly, Officers and servants of the Northern Ireland Assembly, Members of the Scottish Parliament, Lords entitled to receive writs of summons to attend the House of Lords and Members of the House of Commons are excusable as of right from jury service.[237] Members of the European Parliament do not have to perform jury service in either Scotland or Northern Ireland.[238]

252. We have no reason to believe that, in practice, Members are treated with anything other than the greatest consideration by HM Courts and Tribunals Service in England and Wales, which will readily grant requests to defer jury service to suitable dates, for example when Parliament is not sitting, or (in the case of elected Members) arrange for them not to have to serve on a jury in their own constituency. Indeed, an amendment to the Practice Direction (Jury Service: Excusal) by the Lord Chief Justice in 2005 specifically drew attention to the needs of jurors with public service commitments such as Members of the two Houses.[239] Nevertheless we consider it objectionable in principle for a Member of the legislature to be in the position of having to seek permission of another branch of government in order to perform his or her parliamentary duties, which might cover, for example, participating in a vote of confidence in a Government uncertain of its majority. We recognise that some Members will have a strong preference to perform what they conceive to be their civic duty, if the occasion arises, so we do not advocate a complete exemption or disqualification for Members.

253. We recommend that Government should bring forward legislation providing that Members of either House should be among those who have a right to be excused from jury service in England and Wales. We welcome the fact that Lords entitled to receive writs of summons to attend the House of Lords, and Members of the House of Commons, are excusable as of right from jury service in Scotland and in Northern Ireland. We see no reason to restore (nor, in Scotland, to retain) the exemption for officials of either House of the Westminster Parliament.

Freedom from arrest

254. The Green Paper agrees with the 1999 Joint Committee that the privilege of freedom from arrest in civil matters ought to be formally abolished.[240] In his written evidence, the Clerk of the House of Commons told us it did not appear to him that there would be any untoward consequences for Parliament from taking such a step,[241] although he noted that a privilege of freedom of arrest in civil matters has not been of practical significance since 1870 (when imprisonment for debt was abolished). He suggested any legislation required to extinguish the privileges relating to freedom of arrest, exemption from compulsory attendance as a witness and the service of court documents in the precincts of Parliament ought to be very narrowly drawn and with a narrow long title, lest it became a vehicle for legislating on other matters.[242] The Clerk of the Parliaments agreed that freedom from arrest in civil matters was of little relevance today, but stated that, given the risks inherent in legislating on matters of privilege: "I would say, 'Better not to do anything, given that the issues are not a big deal, than to open up the risk'."[243] In his written evidence, he noted that it was unclear how the Government proposed to abolish the privilege of freedom from arrest in civil matters, as the Green Paper contained no draft clauses to this effect.[244]

255. Erskine May explains the privilege of exemption of a Member from serving as a witness as being asserted on the same principle as other personal privileges, that is to say the paramount right of Parliament to the attendance and service of its Members.[245] In her response to the Government's consultation on the Green Paper the Clerk of the New Zealand House of Representatives argued that the privileges of freedom from arrest in civil matters, exemption from being compelled to attend court as a witness and a ban on serving court documents in person within the precincts of Parliament were founded in the principle that a Member's first duty is to the House:

"For the House to operate and retain the respect of citizens, members need to be seen to be attending to their parliamentary duties. To this extent, these privileges still have relevance. Members have a duty to their electors to attend to their roles as members and are not in exactly the same position as ordinary members of the public".[246]

256. We recognise that the privilege of freedom from arrest in civil matters is of little practical significance today, though there are still rare circumstances in which it might be applicable. In the 1960s a court held in Stourton v. Stourton that an order to commit a peer could in certain circumstances be not punitive, but a civil process to enforce obedience to a court order.[247] A similar case arose in a lower court as recently as 1989.[248] The judge in Stourton v. Stourton, Mr Justice Scarman, acknowledged that "each case will depend on its facts", and it therefore remains conceivable, if unlikely, that such a scenario could arise again in the future.

257. The privilege of freedom from arrest in civil matters is of little relevance today. In any case, we think it only right that Members of both Houses are as equally subject to the law, both civil and criminal, as the people they represent. We therefore concur with the judgement of the 1999 Joint Committee that the privilege of freedom from arrest in civil matters should be formally abolished. At the same time, we acknowledge that the likelihood of this privilege arising is remote, and that its abolition can only be achieved by legislation.

Witness summonses

258. The Green Paper links the question of Members being summoned as witnesses to that of jury service, suggesting that, as Members are no longer exempt from jury service, there is no continuing justification for the continuation of the privilege of exemption from attending court under compulsion as a witness.[249] If the Member concerned wishes to exercise the privilege of not being compelled to respond, the Speaker will normally write to the court asking that the member be excused from attending.[250]

259. In New Zealand, the Legislature Act 1908 codified statutory provisions, dating back to New Zealand's Privileges Act of 1866, which broadly exempt Members from being compelled to appear before a court while Parliament is sitting.[251] In Canada, by contrast, the exemption is asserted by the House of Commons without statutory underpinning, as set out in a 1989 ruling by Speaker John Allen Fraser:

"the right of a Member of Parliament to refuse to attend court as a witness during a parliamentary session and during the 40 days preceding and following a parliamentary session is an undoubted and inalienable right supported by a host of precedents".[252]

260. The Green Paper slightly mis-states the position, in claiming that the 1999 Joint Committee reported that there had been cases of the privilege of exemption from attending court under compulsion as a witness being used by Members in personal cases, unrelated to their membership of a House of Parliament.[253] What the 1999 Joint Committee actually said was that the privilege was absolute, and may be used in a personal matter, unconnected with membership of the House. The 1999 Joint Committee asked for evidence from the Attorney General,[254] who advised the Joint Committee that:

"Defining what kind of evidence a Member may or may not be required to give would introduce a legal test on which the courts would have to adjudicate. That exercise would, it seems to me, be inconsistent with the principle of Members having an absolute immunity from the subpoena process".[255]

261. Dr Adam Tucker argued in his response to the Government's consultation on the Green Paperthat there was no continuing case for Members' exemption from attending court as a witness, because this rule extended beyond the appropriate operation of parliamentary privilege: "It has the effect of granting a personal privilege to Members in excess of that justified by the demands of the separation of powers".[256] Nevertheless, in Dr Tucker's view, justified refusals to attend court as a witness would still be protected by the natural operation of the doctrine of parliamentary privilege, even without the general exemption from being compelled to attend as a witness.

262. The 1999 Joint Committee recognised vexatious subpoenas as a problem that assailed all public figures, from which Members of the Commons perhaps suffered more than most. The 1999 Joint Committee recommended that Members' exemption from attendance as a witness should be abolished, but a subpoena should not be issued against a Member without the leave of a master or district judge (or the equivalent).[257]

263. The Clerk of the House of Commons questioned whether the potential hazard in Members having to seek permission, either as jurors or witnesses, to be allowed to perform their Parliamentary duties instead of being in court, is one that should be accepted.[258] John Hemming MP argued in his response to the Government's consultation on the Green Paper that it would be possible to undermine parliamentary democracy by requiring Members of Parliament to turn up in court to give evidence at times that conflict with parliamentary sessions: "It is entirely possible if the law is changed to envisage a situation where this power would be used, particularly if there was a narrow majority".[259]

264. In its response to the Government's consultation on the Green Paper, the Crown Prosecution Service suggested that removal of Members' exemption from attending court as a witness would assist in the appropriate bringing to justice of further offenders in a small number of cases.[260] We are not aware of any evidential basis for this unlikely claim.

265. We do not recommend any change in Members' right not to respond to a court summons as a witness. There is no evidence that application of this privilege has caused any harm, and given the frequency of vexatious litigation, it is reasonably foreseeable that ending it could interfere with Members' primary duty to attend Parliament.

Service of court documents within the precincts

266. The 1999 Joint Committee considered that the rule against service of court documents such as writs and orders within the precincts of the House on a day when the House is sitting, but not otherwise, served some purpose in protecting members and others who attended either House from service of court documents within the House being used for publicity-seeking purposes. In the 1999 Joint Committee's view, such activity would be an abuse of the precincts of Parliament.[261] The 1999 Joint Committee recommended that the rule should be retained and should apply at all times, irrespective of whether Parliament is sitting. While noting that it was doubtful whether service by post on a sitting day could ever be regarded as a contempt, the 1999 Joint Committee further recommended it should be made clear that service by post was not a contempt.

267. In his response to the Government's consultation on the Green Paper, the Clerk of the Legislative Council of the Parliament of Western Australia argued that treating as a contempt the serving of court documents in person within the parliamentary precincts on a sitting day continued to be relevant, as it acknowledged the importance of a sitting of Parliament and that such a sitting should not be interrupted by processes connected with the judicial branch of government.[262]

268. The Clerk of the House of Commons suggested that, as modern practice in serving documents by post seemed perfectly adequate, we might concur with the 1999 Joint Committee that there is no need to allow the serving of court documents in person within the precincts of the Palace on any day.[263] John Hemming MP did not think there was that much of a problem with the serving of documents "as long as it does not undermine the security of proceedings".[264]

269. Given the efficacy of service of court documents by post, we agree with the 1999 Joint Committee that service of witness summonses in person within the precincts of Parliament ought to continue to be treated as a contempt.

Members' access to the precincts of Parliament

270. On the first day of every session, the House of Lords passes the following Order about Stoppages in the Streets:

"That the Commissioner of Police of the Metropolis do take care that the passages through the streets leading to this House be kept free and open and that no obstruction be permitted to hinder the passage of Lords to and from this House during the sitting of Parliament; or to hinder Lords in the pursuit of their parliamentary duties on the Parliamentary Estate; and that the Gentleman Usher of the Black Rod attending this House do communicate this Order to the Commissioner."

Until 2005, the House of Commons used to make an Order in similar terms:

"That the Commissioner of the Police of the Metropolis do take care that the passages through the streets leading to this House be kept free and open and that no obstruction be permitted to hinder the passage of Members to and from this House during the Sitting of Parliament, or to hinder Members by any means in the pursuit of their Parliamentary duties in the Parliamentary Estate; and that the Serjeant at Arms attending this House do communicate this Order to the Commissioner."

271. The regular batch of Sessional Orders, which used to be passed by the House of Commons without notice on the day of State Opening, was discontinued in 2004.[265] The Speaker persisted in putting the Question on the Sessional Order relating to the Commissioner of the Police of the Metropolis until the Government fulfilled its commitment to bring forward legislation about demonstrations and security around Parliament. The relevant provisions, which surfaced in the Serious Organised Crime and Police Act 2005, were not universally well-regarded; in 2007 the incoming Prime Minister promised a review in The Governance of Britain White Paper.[266] The current legislation applying to the control of demonstrations in Parliament Square is Part 3 of the Police Reform and Social Responsibility Act 2011. The Sessional Orders had little or no legal effect; the police in the environs of the Palace can rely for their powers only on statute law. Nonetheless, there is an inconsistency in that the House of Lords still passes its Sessional Order at the start of each Session.

272. While the new legislation applies appropriate and proportionate statutory controls to demonstrations in Parliament Square, the previous non-statutory requirement to safeguard Members' access to the House of Commons has been disregarded.

273. We regret the abandonment in one House of the practice of requesting the assistance of the Metropolitan Police Commissioner in preventing the obstruction of Members in the streets leading to the House and we call for its restoration in the House of Commons.

274. While such Sessional Orders may have little or no direct legal effect, they serve as a reminder that the police and other authorities have a special obligation to ensure that Members of both Houses must have free access to Parliament when in session. This obligation may require them to make special efforts, beyond those that the police make for ordinary citizens, in order that Parliament and its proceedings are not impeded by whatever may be happening outside the precincts of the Palace of Westminster.

189 R v. Graham-Campbell ex parte Herbert [1935] 1 KB 594 Back

190 Cm 8318, paragraph 202 Back

191 Written evidence from the Clerk of the Parliaments, paragraph 22 Back

192 HL Deb, 16 January 1995, WA 33-34 Back

193 Report from the 1999 Joint Committee on Parliamentary Privilege, paragraph 250 Back

194 R v. Chaytor and others [2010] UKSC 52 paragraph 78 Back

195 Cm 8318, paragraph 216 Back

196 Q 240 Back

197 Canada (House of Commons) v.Vaid [2005] 1 SCR 667 Back

198 Report from the 1999 Joint Committee on Parliamentary Privilege, paragraph 251 Back

199 Written evidence from the Clerk of the Parliaments, paragraph 26 Back

200 Cm 8318, paragraph 210 Back