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[493] 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[494];
• 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.[495]

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.[496]

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[497] the two Houses ensure that court proceedings are not prejudiced by discussion in Parliament.

Freedom to attend freely

12.06  SO 83 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.

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.[498]

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.[499]

JURY SERVICE

12.09  Members of the House are liable for jury service.[500] Judges have discretion in relation to jurors with important public service commitments.[501]

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 of Lords does not have the power to suspend a member permanently.[502] A writ of summons, which entitles members of the House to a "seat, place and voice" in Parliament cannot be withheld. A member can be disqualified temporarily either by statute or at common law, for reasons such as bankruptcy. 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.[503]

Privilege of peerage

12.13  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.[504] All privilege of peerage is lost upon a disclaimer under the Peerage Act 1963.

494   But see sub judice rule, paragraphs 4.68-4.73. Back

495   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

496   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

497   See paragraphs 4.68-4.73. Back

498   SO 25. Back

499   Scotland Act 1998 s. 26; Northern Ireland Act 1998 s. 46; Government of Wales Act 1998 s. 75. Back

500   Criminal Justice Act 2003 s. 321. Back

501   Amendment 9 to the Consolidated Criminal Practice Direction, 22 March 2005. Back

502   See Report of the Joint Committee on Parliamentary Privilege, HL Paper 43-I, 1998-99, paragraphs 272, 279. Back

503   Privileges Rpt 1983-84. Back

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