CHAPTER 12
PARLIAMENTARY PRIVILEGE AND RELATED MATTERS
Privilege
of Parliament
12
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 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;
· 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 the House.
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.
12.04 The scope of article 9 has been the subject of
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.
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.
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 the member 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.
Jury service
12.10 Members of the House are liable for jury service. Judges have
discretion in relation to jurors with important public service commitments.
Control
by Parliament of its affairs
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.
Disciplinary
and penal powers
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 and a statutory
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 1.02).
Privilege
of peerage
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 Act 1963.
HUMAN
RIGHTS
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.
PARLIAMENTARY
COPYRIGHT
12.17 Under sections 165, 166 and 167 of the Copyright,
Designs and Patents Act 1988
"parliamentary copyright" exists in:
· bills;
· 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. 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.
BROADCASTING
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 Services 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 Filming Steering Group considers requests for permission to film in the
House. The Filming Steering Group is chaired by the Lord Speaker and works within
a set of guidelines agreed by the Administration and Works Committee. Day-to-day
monitoring of adherence to rules of coverage is delegated to the Director of
Parliamentary Broadcasting.
DATA
PROTECTION
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 Head of Information Compliance. 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 July 2012.
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 of Lords Commission, comprises
one member from each of the three main parties and a Crossbencher, and is
chaired by the Senior Deputy Speaker.
