CHAPTER 12: PARLIAMENTARY PRIVILEGE AND
RELATED MATTERS |
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
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
12.02 In general, the House of Lords enjoys the
same parliamentary privileges as the House of Commons. These privileges
- freedom of speech;
- control by the House of its affairs ("exclusive
- 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 asa
- freedom from service of court documents within
the parliamentary precincts;
- absolute protection of all papers published by
order of either House.
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.
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
the two Houses ensure that court proceedings are not prejudiced
by discussion in Parliament.
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.
12.07 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.
ATTENDANCE AS WITNESSES
12.08 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.
12.09 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.
12.10 Members of the House are liable for jury
Judges have discretion in relation to jurors with important public
12.11 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.
12.12 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.
12.13 The House possesses an inherent power to
discipline its members; the means by which it does so are described
in Chapter 5.
12.14 A member can be disqualified temporarily
either by statute or at common law, for reasons such as bankruptcy,
or the holding of a disqualifying judicial office (see paragraph
12.15 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.
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.
All privilege of peerage is lost upon a disclaimer under the Peerage
12.16 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.
However, the United Kingdom as a whole is a signatory to the European
Convention on Human Rights, and the House is therefore in certain
circumstances subject to the jurisdiction of the European Court
of Human Rights.
12.17 Under sections 165-7 of the Copyright,
Designs and Patents Act 1988 "parliamentary copyright"
- select committee reports;
- any other work made by or under the direction
or control of either House of Parliament.
12.18 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.~
12.19 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.
12.20 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 employees
of either House in the course of their 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).
12.21 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. Any person may, without charge and subject
to certain conditions, reproduce, adapt or commercially exploit
parliamentary copyright material.
12.22 The sound broadcasting and televising of
proceedings are governed by resolutions of the House of 28 July
1977 and 15 May 1986.
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.
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.
12.23 The Data Protection Act 1998 applies to
both Houses of Parliament.
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
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.
FREEDOM OF INFORMATION
12.24 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 laid before the House by the
Clerk of the Parliaments in November 2002; it was last updated
in November 2011.
12.25 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 may refer 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
81 For this reason privilege of Parliament does not
extend to minors or the husbands, wives, widows or widowers of
members of the House (SO 83). Back
But see sub judice rule, paragraphs 4.63-4.67. Back
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
The registers of members' interests and related proceedings have
been found by the court not to be "proceedings in Parliament":
see Rost v. Edwards  2 QB 60. Back
See paragraphs 4.63-4.67. Back
Privileges Rpt 1983-84. Back
SO 24. Back
Criminal Justice Act 2003 s. 321. Back
Amendment 9 to the Consolidated Criminal Practice Direction,
handed down on 22 March 2005. Back
SO 83. Back
Stourton v Stourton  1 All ER 366; Peden International Transport,
Moss Bros, The Rowe Veterinary Group and Barclays Bank plc v Lord
Mancroft (1989). Back
Human Rights Act 1998 s. 6(3). Back
Compare Erskine May, p 301. Back
These terms are set out in full in the Open Parliament Licence,
published online at http://www.parliament.uk/site-information/copyright/open-parliament-licence/.
LJ (1976-77) 820, (1985-86) 331. Back
Animals in Scientific Procedures Committee (HL Deb. 12 July 2001
col. 1181). Back
The Act is applied to both Houses by s. 63A (added by Schedule
6 to the Freedom of Information Act 2000). Back
Schedule 6 to the Freedom of Information Act 2000. Back
House Committee 2nd Rpt 2003-04. Back