Parliamentary Privilege First Report


Freedom from arrest

  325.  Lords are required to attend the sittings of the House unless granted leave of absence.[365] Such leave is granted automatically, and in practice peers without leave are not expected to attend every sitting. Similarly members of the House of Commons are `presumed to be in attendance upon their service in Parliament'[366], and the statutory prohibition on departure from the House without licence appears still to be extant.[367] However, both that Act (of 1515) and the `call of the House' by which members of both Houses were summoned to attend urgent business, are in abeyance.[368] In practice, attendance is dictated mostly by the demands of government business and the requirements of the party whips.

  326.  The principle that both Houses impose upon their members an absolute priority of attendance is the origin of other privileges that remain. One such privilege is `freedom from arrest'. The immunity is confined to arrest in civil matters, such as orders for payment of amounts of money.[369] The privilege, as set out in Lords standing orders, is that ` no Lord . . . is to be imprisoned or restrained without sentence or order of the House unless upon a criminal charge or for refusing to give security for the peace'.[370] The privilege appears never to have applied to members of either House in respect of criminal charges, or to any matter which includes an element of criminality, such as criminal contempt of court.[371] The privilege is enjoyed `within the usual times of privilege of Parliament' which is customarily interpreted to mean during the session of Parliament and for 40 days before and after. It thus covers long adjournments such as the summer recess.

  327.  The immunity lost most of its importance in 1870 when, with a few exceptions, imprisonment for debt was abolished.[372] It now seems to have little, if any, scope beyond providing immunity from arrest for disobedience of a court order in civil proceedings, such as an order to hand over property.[373] The Attorney General told us the privilege was of extremely limited application[374], and Sir Donald Limon thought it was no longer relevant and was confusing to the public.[375] Such justification as exists for its continuance resides in the principle that Parliament should have first claim on the service of its members, even to the detriment of the civil rights of others. The 1967 committee took the view it was wrong for the claims of individuals to be obstructed by use of members' immunity from arrest, and considered the privilege anomalous and of little value. The 1967 committee recommended that legislation should be introduced to abolish the privilege. We agree, and so recommend.

  328  Because of their immunity from arrest, it used to be the case that members of Parliament could not be accepted as sureties for bail.[376] Although members of both Houses have been accepted as sureties for bail on at least two occasions since 1970, as recently as 1978 a Lord was not accepted. Clearly, peers should be admitted as bail if our recommendation is accepted that the privilege of freedom from arrest should be abolished.

Privilege of peerage

  329.  `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 obscure and ill-defined, and for that reason alone the present situation is unsatisfactory. 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; but the application of this aspect of the privilege appears to have arisen in only two cases in the courts since 1945.[377] In view of our recommendation that the privilege of freedom from arrest be abolished, privilege of peerage should also be abolished. We so recommend.

Exemption from attendance in court as witness

  330.  Courts compel the attendance of witnesses, either to give evidence or produce documents, by making an order known as a subpoena. The issue of a subpoena is a formality. Currently members of both Houses are exempt from any obligation to attend as a witness in court. The exemption applies to criminal proceedings as well as civil proceedings. The privilege is absolute, and may be used in a personal matter, unconnected with membership of the House. From time to time the exemption is exercised by members.[378]

  331.  As with freedom from arrest, this exemption is based on Parliament's paramount claim to the services of members. When attendance at Parliament is essential, the need to be present in the House should prevail over the need to attend court as a witness. But this principle does not necessitate or justify members having, as at present, an unfettered right to choose which cases to attend as a witness and which to refuse. Sir Donald Limon made no bones about it: he thought this was wrong. Other witnesses, while recognising the courts must accommodate Parliament's needs, considered that members should not be exempt from the obligation to attend and give evidence in response to a subpoena.[379] The Attorney General, although cautious about abandoning the ultimate right of a member to refuse, nevertheless considered that in general a member should not be treated differently from any other citizen.[380]

  332.  The 1967 committee recommended that the exemption should be abolished but the Speaker empowered to require the attendance of a member at the House in priority to the requirements of the subpoena.[381] We consider this procedure is a solution to a problem that today is non-existent. The courts are now well accustomed to accommodating witnesses, such as surgeons, who need to be elsewhere at short notice. Distinguished judicial witnesses stressed that the courts would always be accommodating[382]. The Lord Chief Justice of England thought it wholly inconceivable that a request by a member for a postponement, on the ground that he was engaged in parliamentary business at a particular time, would not be granted.

  333.  Vexatious subpoenas are a problem that assails all public figures. Members of the Commons perhaps suffer more from this than most others. We think a degree of protection is justified, but here also it is wrong in principle that, unlike everyone else, a member himself should decide whether a subpoena is vexatious. A better form of protection is that the issue of a subpoena against a member should require leave from a judge. We recommend that the 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). The Lord Chief Justice of England, the President of the Court of Session and the Lord Chief Justice of Northern Ireland should be invited to draw to the attention of the judiciary the need to be flexible when a member of either House is attending court as a witness.

Service of court documents within the precincts

  334.  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, has long been regarded as a contempt, as tending to obstruct or impede the House in its functions.[383] The main purpose of this rule nowadays is to protect members and others who attend either House from service within the House being used for publicity seeking purposes. Such activity would be an abuse of the precincts of Parliament.

  335.  The Joint Committee considers the present rule does not impede the administration of justice. If personal service elsewhere is difficult, other alternatives, such as postal service or substituted service, are readily available. We recommend the rule should be retained and should apply at all times, irrespective of whether Parliament is sitting. It is doubtful whether service by post on a sitting day could ever be regarded as a contempt, but we further recommend it should be made clear that service by post is not a contempt.

Application of Mental Health Act 1983 to peers

  336.  In 1983-84 the Lords committee for privileges considered the effect of the powers of detention under the Mental Health Act 1983 on the privilege of freedom from arrest referred to in Lords standing orders.[384] The committee accepted the advice of the law lords that the statute would prevail against any privilege of Parliament or of peerage. The committee recommended that for the avoidance of doubt legislation should provide expressly that members of the House of Lords are liable to be detained under the mental health legislation and disqualified from sitting and voting in Parliament. Such legislation is not needed in the case of members of the House of Commons, because section 141 of the 1983 Act makes provision for such members suffering from mental illness. We repeat the recommendation of the Lords committee for privileges that legislation should be introduced to place the matter beyond doubt.

The term `privilege'

  337.  Parliamentary privilege labours under the disadvantage that the word privilege still carries a connotation of benefit or advantage unrelated to public need or duty. Thomas Jefferson's celebrated phrase, `Equal rights for all, special privileges for none', sums up admirably the inevitable knee-jerk reaction to the very use of the word `privilege'.[385] Thus the very title is misleading and unfortunate. The 1967 committee favoured discontinuing the use of the term `privilege' in its traditional parliamentary sense, and recommended that the House should instead refer to `rights and immunities'.

  338.  The Joint Committee considers that the advantage to be derived from a change in the recognised terminology after so many years would be marginal. The disadvantage, however, would be real. Everyone is accustomed to the present title, parliamentarians and non-parliamentarians alike, and the textbooks and cases all use this nomenclature. A change at this juncture would be seen by many as irrelevant.[386] We do not recommend any change.

365   House of Lords Standing Order 20. Back

366   Erskine May, 22nd ed (1997), p 180. Back

367   6 Hen 8 c. 16. Back

368   LJ (1935-36) 33; CJ (1836) 265. See too, First Report from the Select Committee on the Rt. Honourable Member for Walsall, North: HC (1974-75) 273. Back

369   Erskine May, 22nd ed (1997), p 72. Back

370   Standing Order 79. The standing order dates from 1626. Back

371   Erskine May, 1st ed (1844), p 108: `in recent cases, members committed by the courts for contempt have failed in obtaining their release by virtue of the privilege'. See Lord Wellesley's case (1831); see too: Report of the Select Committee on the Imprisonment of a Member, HC (1902) 309, 30 July 1902. Back

372   Debtors Act 1869. Back

373   Stourton v Stourton [1963] 1 AER 606. Back

374   Q 232. Back

375   Q 45. Possible applications are where a member is threatened with imprisonment for contempt to compel performance of a civil obligation, though nineteenth century cases suggest that this is by no means certain: Erskine May, 1st ed (1844), pp 108-109. It might also protect members from imprisonment for non payment of a fine. See Murdie, Municipal Journal, 11-17 October 1994, on the position of two members who were imprisoned for failing to pay their community charge. Back

376   Erskine May, 22nd ed (1997), p 105. Back

377   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). A detailed account of the latter case appears in Patricia Leopold, `The freedom of peers from arrest', Public Law, autumn 1989. See also memorandum of the Clerk of the Parliaments, vol 2, p 30, paragraph 15. Back

378   No reliable statistics can be given since members usually only contact the Speaker or the Clerk of either House in cases of difficulty. Between September 1996 and February 1998 there were at least seven such cases in the House of Commons; memorandum of the Attorney General, vol 3, p 6. Back

379   Vol 2, pp 109 (paragraph 4), 160 (paragraph 6), 192 (paragraph 6); Q 216. Back

380   QQ 240-246; vol 3, p 6. Back

381   HC (1967-68) 34, paragraph 104. Back

382   Lord Chief Justice of England, QQ 446-448; Lord President of the Court of Session, QQ604-605; Lord Chief Justice of Northern Ireland, Q 740. See also comments of the Attorney General, Q 240. Back

383   First Report from the Committee of Privileges HC (1972-73) 144, Complaint of the serving of a writ upon a Member within the precincts of the House; especially pp 6-9; Home Affairs Committee, First Special Report, HC (1993-94) 107. See, too, Erskine May, 22nd edition p 120. Back

384   Memorandum of the Clerk of the Parliaments, vol 2, p 57, paragraph 13; Report of the Committee for Privileges on Parliamentary Privilege and the Mental Health Act 1983, HL (1983-84) 254; Q 505. Back

385   See memorandum of the National Assembly of Quebec, vol 3, p 73. Back

386   See, for example, the evidence of Dr Geoffrey Marshall, vol 2, pp 201-202. Publication of Papers and Reporting of Parliamentary Proceedings Back

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Prepared 9 April 1999