Parliamentary Privilege and related matters

Privilege of Parliament

12.01  In order to carry out its duties, Parliament and its members and staff need certain rights and immunities. These are known as parliamentary privilege. It is a basic principle that parliamentary privilege is the privilege of the House as a whole and not of the individual member[521] and that the protection afforded by privilege is no more than Parliament needs to carry out its functions effectively. Privilege extends to the staff of the House in carrying out their duties and to witnesses and parties attending the House or a committee. But parliamentary privilege does not protect the activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament. Privilege is intended to protect each House in respect of the conduct of its internal affairs.

12.02  In general, the House of Lords enjoys the same parliamentary privileges as the House of Commons. These privileges include:

·  freedom of speech[522];

·  control by the House of its affairs ("exclusive cognisance");

·  power to discipline its own members for misconduct and punish anyone, whether a member or not, for contempt of Parliament;

·  exemption from Acts of Parliament within the precincts of either House unless there is express provision that they should apply;

·  freedom from interference in going to, attending at, and going away from Parliament;

·  freedom from arrest in civil cases;

·  exemption from subpoenas to attend court as a witness;

·  freedom from service of court documents within the parliamentary precincts;

·  absolute protection of all papers published by order of either House.[523]

Freedom of speech

12.03  Members need to be able to speak freely in the House and in committee, uninhibited by possible defamation claims. Freedom of speech is guaranteed by article 9 of the Bill of Rights 1689: "freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". Article 9 affords legal immunity ("ought not to be questioned") to members for what they say or do in "proceedings in Parliament". The immunity applies in "any court or place out of Parliament". The meaning of "proceedings in Parliament" and "place out of Parliament" has not been defined in statute.[524]

12.04  The scope of article 9 has been the subject of two recent developments in the courts. In 1993 the House of Lords decided (in Pepper v Hart) that when interpreting ambiguous statutes the courts may look at ministerial statements made in Parliament during the passage of the bill through Parliament. The courts have also established a practice of examining ministerial statements made in Parliament in another circumstance, namely, when considering challenges by way of judicial review to the lawfulness of ministers' decisions.

12.05  In order to prevent abuse, freedom of speech is subject to self-regulation by Parliament. Thus, for example, by the sub judice rule[525] the two Houses ensure that court proceedings are not prejudiced by discussion in Parliament.

Freedom to attend freely

12.06  SO 82 governs this privilege. Traditionally the privilege extends from forty days before until forty days after the session, and it may cover any form of molestation of, or interference with, a member while carrying out parliamentary duties. This privilege covers any form of arrest or detention, except on a criminal charge or for refusing to give security for the peace or for a criminal contempt of court. Notification of any order for the imprisonment or restraint of a member should be given to the House by the court or authority making the order. Such notification is read out in the Chamber and recorded in the Minutes of Proceedings.

ATTENDANCE AS WITNESSES

12.07  Any member of the House of Lords requested by a committee appointed by the Commons to attend as a witness has the leave of the House to attend, if he thinks fit.[526]

12.08  Members of the House of Lords may give evidence to the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly if requested to do so.

JURY SERVICE

12.09  Members of the House are liable for jury service.[527] Judges have discretion in relation to jurors with important public service commitments.[528]

Control by Parliament of its affairs

12.10  Freedom of speech is one facet of a broader principle that what happens within Parliament is a matter for control by Parliament alone. This principle of control by Parliament of its affairs, free from interference by the courts, is often called "exclusive cognisance." It consists of a collection of related rights and immunities. Thus each House has the right to judge the lawfulness of its own proceedings. Unless there is express provision to the contrary, each House is exempt from statute law, e.g. on employment, health and safety at work, and from the regulation of the sale of alcohol, although the two Houses apply many of the statutory provisions voluntarily. Each House has the right to institute inquiries and require the attendance of witnesses and the production of documents. Wilful failure to attend committee proceedings or answer questions or produce documents may be punished by the House.

Disciplinary and penal powers

12.11  The House's disciplinary and penal powers are part of the control exercised by Parliament over its affairs. Conduct, whether of a member or non-member, which improperly interferes with the performance by either House of its functions, or the performance by members or staff of their duties, is a contempt of Parliament. The House of Lords has the power to punish contempts by imprisonment, fine and reprimand. Periods of imprisonment imposed by the House do not end with the prorogation of Parliament.

12.12  The House possesses an inherent power to discipline its members; the means by which it does so are described in Chapter 5.

12.13  A member can be disqualified temporarily either by statute or at common law, for reasons such as bankruptcy. Holders of a disqualifying judicial office and Members of the European Parliament are similarly disqualified (see paragraph 1.02). The House has expressed the opinion that privilege would not protect a member of the House suffering from mental illness from detention under the Mental Health Act 1983 and while so detained from disqualification for sitting and voting in Parliament.[529]

Privilege of peerage

12.14  Privilege of peerage, which is distinct from parliamentary privilege, still exists although the occasions for its exercise have now diminished into obscurity. Privilege of peerage belongs to all peers, whether or not they are members of the House of Lords, and also to the wives of peers and widows of peers provided they do not marry commoners.[530] The extent of the privilege has long been ill-defined. Three of its features survived into the twentieth century. The first was the right of trial by peers which was abolished by statute in 1948. The second is the right of access to the Sovereign at any time. The third is freedom from arrest in civil matters; but the application of this aspect of the privilege appears to have arisen in only two cases in the courts since 1945.[531] All privilege of peerage is lost upon a disclaimer under the Peerage Act 1963.

12.15  Section 6(1) of the Human Rights Act 1998, which provides that "It is unlawful for a public authority to act in a way which is incompatible with a Convention right", does not apply to the House or its committees, or to a person exercising functions in connection with a proceeding in parliament.[532]

12.16  Sections 165-7 of the Copyright, Designs and Patents Act 1988 created a new form of copyright, known as "parliamentary copyright". Such copyright exists in:

·  bills;

·  select committee reports;

·  any other work made by or under the direction or control of either House of Parliament.

12.17  Parliamentary copyright in a public bill belongs in the first instance to the House into which the bill was introduced, and once the bill has reached the second House, to both Houses jointly. It subsists from the time the bill is handed in to the House in which it is introduced, and ceases on Royal Assent, or the withdrawal or rejection of the bill, or the end of the session.

12.18  Parliamentary copyright in a private bill belongs to both Houses jointly from the time the bill is first deposited in either House. Parliamentary copyright in a personal bill belongs first to the House of Lords (since it is the practice to introduce such bills into that House first), and when the bill reaches the House of Commons to both Houses jointly. Acts and Measures once enacted are subject to Crown copyright.

12.19  Literary, dramatic, musical or artistic work made by or under the direction of either House is subject to parliamentary copyright for 50 years from the end of the year in which it was made. Such work includes works made by an employee of either House in the course of his duties, and any sound recording, film, live broadcast or live cable programme of the proceedings of either House. The ownership of such copyright belongs to the House under whose direction or control the work was made (or, as appropriate, both Houses).

12.20  The functions of the House of Lords as owner of copyright are exercised by the Clerk of the Parliaments on behalf of the House, and legal proceedings relating to copyright are brought by or against the House of Lords in the name of the Clerk of the Parliaments. Parliamentary copyright is administered on behalf of both Houses by the Office of Public Sector Information, which operates within the National Archives. Any person may, without charge and by agreeing to certain conditions, obtain a licence to reproduce parliamentary copyright material.[533]

12.21  The sound broadcasting and televising of proceedings are governed by resolutions of the House of 28 July 1977 and 15 May 1986.[534] The Information Committee has responsibility for supervising the arrangements for, and dealing with any problems or complaints arising out of, the televising and sound broadcasting of the proceedings of the House and its committees. The House has given power to a committee to refuse to allow the televising of proceedings to which visitors are admitted.[535] The Administration and Works Committee considers requests for permission to make programmes about the House. Day-to-day monitoring of adherence to rules of coverage laid down by the Information Committee is delegated to the Director of Parliamentary Broadcasting.

12.22  The Data Protection Act 1998 has been extended to both Houses of Parliament[536]. The Act gives individuals (data subjects) a general right of access to personal information held about them, subject to certain exemptions. It also places a duty on all data controllers to comply with the eight Data Protection Principles (Schedule 1 to the Act). These relate to the collection, use, maintenance, accuracy and security of personal information. The Clerk of the Parliaments has the role of data controller in relation to the processing of personal data by or on behalf of the House of Lords. Under section 35A of the Act[537] personal data are exempt from certain provisions of the Act if the exemption is required for the purpose of avoiding an infringement of the privileges of either House of Parliament.

12.23  The Freedom of Information Act 2000 gives a general right of access to information held by public authorities, sets out exemptions from that right and places a number of obligations on public authorities. The House of Lords is a separate public authority under the Freedom of Information Act 2000 and therefore has a separate scheme and arrangements for implementing and complying with the Act. The Clerk of the Parliaments has entrusted day-to-day responsibility for House of Lords' arrangements to the Freedom of Information Officer. The Act requires every public authority to maintain a publication scheme setting out the classes of information which it publishes or intends to publish, the form in which it intends to publish the information, and details of any charges. The initial House of Lords' publication scheme was approved by the Information Commissioner and was laid before the House by the Clerk of the Parliaments in November 2002.

12.24  The Clerk of the Parliaments as the authorised officer of the House may refuse to disclose information on the ground of either parliamentary privilege (section 34) or prejudice to the effective conduct of public affairs (section 36). A certificate signed by him is conclusive of the fact, and a dissatisfied applicant has no right of appeal to the Information Commissioner. Where the Clerk of the Parliaments is minded to refuse to disclose information he refers the matter to a panel for advice. The panel, appointed by the House Committee, comprises one member from each of the three main parties and a Crossbencher, and is chaired by the Chairman of Committees.[538]

522   But see sub judice rule, paragraphs Error! Reference source not found.-Error! Reference source not found.. Back

523   Parliamentary Papers Act 1840. SO 16 provides that the printing or publishing of anything relating to the proceedings of the House is subject to the privilege of the House. Back

524   The registers of members' interests and related proceedings have been found by the court not to be "proceedings in Parliament": see Rost v. Edwards [1990] 2 QB 60. Back

525   See paragraphs Error! Reference source not found.-Error! Reference source not found.. Back

526   SO 24. Back

527   Criminal Justice Act 2003 s. 321. Back

528   Amendment 9 to the Consolidated Criminal Practice Direction, handed down on 22 March 2005. Back

529   Privileges Rpt 1983-84. Back

530   SO 83. Back

531   Stourton v Stourton [1963] 1 All ER 366; Peden International Transport, Moss Bros, The Rowe Veterinary Group and Barclays Bank plc v Lord Mancroft (1989). Back

532   Human Rights Act 1998 s. 6(3). Back

533   Further information is available online at Error! Bookmark not defined..  Back

534   LJ (1976-77) 820, (1985-86) 331. Back

535   Animals in Scientific Procedures Committee (HL Deb. 12 July 2001 col. 1181). Back

536   The Act is applied to both Houses by s. 63A (added by Schedule 6 to the Freedom of Information Act 2000). Back

537   Added by Schedule 6 to the Freedom of Information Act 2000. Back

538   House Committee 2nd Rpt 2003-04. Back