Parliamentary Privilege First Report


Memorandum by Mr Geoffrey Lock*

PARLIAMENTARY PRIVILEGE

SUMMARY AND CONCLUSIONS

  (The numbers in brackets at the end of each point refer to the order of the headings in the invitation document).

  1.  The need for a framework of immunities protecting the free speech of peers and MPs would be generally accepted. However, the scope of parliamentary privilege has become too wide, because of the claim that the two Houses are exempt from various statutes by the application of the judgment in the Graham—Campbell case of 1935, (1&3).

  2.  Legislation should be introduced to reverse this judgment, and there should be a general presumption that the law of the land applies to the two Houses. If an exemption is necessary, the procedure for enacting it should be transparent, with the justification for it made explicit (1&3).

  3.  I recount my own experience over legislation in the mid 1970's narrowing the scope of privilege (1&3).

  4.  There is a doubt over what is meant by the phrase "internal affairs" (1&3).

  5.  People outside Parliament concerned with these matters favour clarity in the rules; those inside favour flexibility and hence uncertainty. Examples of uncertainty are given (2).

  6.  The rules on privilege should be comprehensively codified and should be made statutory. The application of statutes "by analogy" has no legal validity (4).

  7.  Difficulties over Article 9 of the Bill of Rights stem partly from its origin. The Bill does not cover the whole of the United Kingdom, but only England and Wales. The corresponding Article of the Scottish Claim of Right is narrower in scope, and Article 9 does not apply to Northern Ireland (6).

  8.  The meaning of various words and phrases in Article 9 is discussed (6).

  9.  Various aspects of the Scott Tribunal's work were a breach of Article 9, but a necessary one. Strict observance of the Article is not possible: in some contexts it is unworkable (6).

  10.  In addition to "Proceedings in Parliament" other concepts are in use, which need to be distinguished (8).

  11.  The scope of exclusive jurisdiction should be kept to the minimum needed to safeguard the core functions of Parliament. Its "internal affairs" are subject to outside influences—for example, as mentioned in this paper, from the courts, the European Union, the TUC, the trade unions and the International Labour Organisation (9).

  12.  The attitude of the courts has varied over time. The Graham-Campbell judgment was followed by a period of quiescence, but there has been more judicial activism in the 80's and 90's. This need not be a cause for concern (9).

  13.  Four cases involving arrest/detention are reviewed.

    Bankruptcy A House of Lords case which is still an authority for the principle that an established privilege can be abolished only by statute.

    Married Womens Property Privilege saved a peer from committal for contempt of court.

    Mental Health (Peers) The law is unclear, but the Law Lords advised that the relevant Act applied to Peers. Confirming legislation is still awaited.

    Debt The trial judge declined to apply privilege. The court staff feared they would themselves be imprisoned if they arrested a peer (10).

  14.  Rules on contempt of the House should be modernised, codified and made statutory. Their enforcement should be transferred to the courts (13).

  15.  It should be made clear that there is no longer a possibility of proceedings for contempt against judges, lawyers and court staff (14).

  16.  If a person is committed for contempt, the warrant should state the specific cause, rather than be drafted in general terms (14).

  17.  The consequences of the incorporation of the European Convention on Human Rights into UK Law are illustrated by a Maltese case (15a).

  18.  It would be advisable for the two Houses to conform to European Union Law. If they obey statutes based on Union directives, ideally they should observe UK-generated statutes also (16).

  19.  It would be desirable for the Joint Committee's enquiry to cover the following matters not mentioned in the invitation document:

    (a) Privilege of Peerage; and

    (b) Can privilege be waived? (16)

  20.  Some points are made about the experience of overseas countries. (17)

MEMORANDUM

  (Footnotes are given at the end of this paper. I have numbered the topics set out in the invitation document—I have not commented on all of them—and give the numbers at the beginning of each section).

  The Joint Committee has invited me to submit a paper on parliamentary privilege, a subject on which I published articles, and I welcome the opportunity to give my views.

  Few would deny the need for a framework of legal rules protecting the freedom of speech of peers and MPs, and as a long-serving now retired parliamentary official I should certainly not wish to do so. As Lord Denman said in his judgment in Stockdale v Hansard "all the privileges that can be required by the House of Commons for the energetic discharge of the duties inherent in that high trust [as the grand inquest of the nation] are conceded without a murmer or a doubt".1 If parts of this paper should seem to be critical of the present situation, the reason lies in my belief that the scope of privilege has become too wide. There was a marked change in 1935, caused by the decision of Lord Hewart C J in R v Graham Campbell, ex parte Herbert. 2 The case was concerned with arrangements for the supply of liquor in the House of Commons, but has been applied much more widely. The 1967 Select Committee on Parliamentary Privilege cited the judgment as entitling the House "in a proper case [to] claim exemption from Acts of Parliament which do not expressly apply to it". As criteria for a proper case have not been established, in practice the view has been taken that no Act applies to Parliament unless it says that it does. On the basis of the 1935 judgment Parliament has regarded itself as exempt from laws quite unrelated to its core activities and remote from the protection of free speech. Examples are given below.
ActRelevant Matters/Events
Trade Descriptions ActSale of bogus "fine old claret" by the Commons Refreshment Department4
Health and Safety at Work ActBlue asbestos fibres circulated by the Commons air conditioning system; pollution of a drinking water tank by a dangerous substance. 5
Food Safety ActOutbreak of salmonella in a Lords kitchen. 6
Offices, Shops and Railway Premises Act Disregard of the requirement for a 50 sq ft minimum working space per head
Prices and Income Act 1966Non-observance of the statutory price freeze by Commons restaurants
Data Protection ActVoluntary, non-binding scheme to regulate Members' computer databases.
Various acts in the sphere of Industrial relations See below

  Narrowing the scope of privilege: I have some relevant personal experience. In the early and mid 1970's I was Chairman of the House of Commons branch of the Association of First Division Civil Servants (FDA), and in this capacity was a member of the Staff Side of the Commons Whitley Committee. On one occasion in the course of discussions with the Official side, I chanced to refer to the provisions of a statute. I was immediately corrected by a member of the Official Side who said: "Parliament is above the law. Parliament can do what it likes".7 The FDA was not content to accept this situation, and requested a meeting with Ministers. I led a deputation to the Secretary of State for Employment (Mr Foot) and the Minister of State (Mr Booth); in consequence, provision was made in the Employment Protection Act 19758 applying parts of several industrial relations acts to staff of the House of Commons. (The Sex Discrimination Act was particularly important in view of the poor record of the House over sex discrimination in recruitment). In a later role, as Leader of the House, Mr Foot was responsible for the passage of the House of Commons (Administration) Act 1978, which inter alia repealed the House of Commons Offices Act 1812—long outmoded but then still in force.

  In the 1970s the staff of the House of Lords were not covered statutorily by the legislation covering their Commons colleagues; instead the procedure of "application by analogy" was adopted—a procedure which I shall argue below is fundamentally flawed. In March 1980 the UK ratified the Labour Relations (Public Services) Convention9 which came into force for it in March 1981. Some time later, the Trade Union Congress, acting at the request of the FDA, complained to the International Labour Organisation (ILO) that the government was failing to fulfil its obligations under the Convention because, inter alia, of the lack of statutory application of labour law to House of Lords staff. The complaint was sustained by the ILO Committee of Experts—a group of eminent international jurists which oversees the operation of the Conventions. The government's reaction was to rebuff the ILO, which nevertheless persisted in its contentions. In the end the government abandoned its rearguard action and legislation was passed in 1993 to cover House of Lords staff. 10

  What are internal affairs? It will be apparent from what I have already written that I do not regard staff matters as among those that should be immune from outside influences. Some guidance may be obtained from judicial pronouncements over the years on the demarcation between matters reserved to the two Houses and those that are subject to the Courts. It is clear that Lord Hewart's view in the Graham-Campell case was out of line with that of earlier and later judges, and that he adopted "a remarkably generous view of the scope of the internal affairs of the House of Commons". Lord Denman in Stockdale v Hansard (already mentioned) held that the sale of parliamentary papers to the general public was not an internal matter. Stephen J in Bradlaugh v Gossett drew a distinction between rights to be exercised within the House itself such as sitting and voting "on which the House and the House only could interpret the statute" and "rights to the exercised out of and independently of the House on which the statute must be interpreted by the Court independently of the House." 12 In 1899 a predecessor of Lord Hewart as Lord Chief Justice (Lord Russell of Killowen) had shown by his remarks that he thought that the bars of the House were within the jurisdiction of the Courts, 13 and in an Australian case of 1981, the judge (Russell J) ruled that an injury to a waitress in a parliamentary restaurant was "not part of the internal business of Parliament" governed by privilege. 14 In 1962, Lord Radcliffe mentioned "a reluctance to treat a Member's privilege as going beyond anything that is essential", and referred to "the proper anxiety of the House to confine its own or its Members' privileges to the minimum infringement of the liberties of others".15 It seems to me quite wrong that, unless there are special reasons, the institutions that make the law should be exempt from the laws they make for everybody else. The present practice should be reversed, and there should be a presumption that relevant statutes should apply to both Houses as they apply to other bodies. Where there is a case for exemption, this should be made out during the passage of the legislation and the exemption made explicit in the Act. Legislation should be introduced to over-ride the judgment in the Graham-Campell case. To quote Mr Justice Stephen again; the Commons "are bound by the most solemn obligations which can bind men to any course of action whatever, to bind their conduct by the law as they understand it." 16

2.   Uncertainties

  People outside Parliament who are concerned with privilege matters want the law to be clear and certain, so that they can forecast with some assurance whether or not a given contemplated action is or is not likely to be regarded as a breach of privilege. 17 Parliamentary opinion, on the other hand, may want the law to be vague and indefinite, so that privilege can be deployed to cover circumstances that have not previously arisen. The differing views may be seen in a comparison of the following passages:

    "The privileges of Parliament, like many other institutions of the British constitution, are indefinite in their nature and stated in general and sometimes vague terms. The elasticity thus secured has made it possible to apply existing privileges in new circumstances from time to time. Any attempt to translate them into precise rules must deprive them of the very quality which renders them adaptable to new and varying conditions, and new or unusual combinations of circumstances, and indeed might have the effect of restricting rather than safeguarding Members' privileges." 18

    "The uncertainty which affects the law of Parliamentary Privilege comes from the dearth of ordinary case law, a paucity of statutes and a large number of Parliamentary precedents of doubtful relevance to the present day. The uncertainty arises in two main ways:

      (i)  In determining whether an alleged privilege exists . . .

      (ii)  In the application and enforcement of a particular privilege . . . within the accepted head of Freedom of Speech, for instance, there are many areas of uncertainty, eg the meaning of a 'Proceeding in Parliament' within Article 9 of the Bill of Rights . . . There is no doubt that the uncertainty can sometimes give an impression of arbitrariness." 19

  In my view, imprecision cannot be considered to be desirable quality in what purports to be a body of law, and Parliament should avoid giving the impression that it is making up the rules as it goes along.

  Examples of current uncertainty in the application of parliamentary privilege are (some are discussed in more detail later):

    (a)  the meaning of Article 9 of the Bill of Rights

    (b)  does the Parliamentary Papers Act 1840 cover Command Papers? 20

    (c)  are broadcasting staff who are responsible for parliamentary radio and TV broadcasts protected against prosecutions for obscenity, blasphemy and criminal contempt of court, and against actions for defamation? 21

    (e)  is it lawful to compulsorily detain insane peers in a mental hospital? 22

    (f)  if court staff are called upon to imprison a peer in obedience to a court order might they be arrested in their turn for contempt of the House of Lords?

4.  Codification

  Comprehensive codification would be desirable, so that everybody knows where they stand, both within Parliament and outside. The code should be in the form of statute for two reasons:

    (a)  with the exception of budgetary resolutions, 23 Resolutions have no legal force outside Parliament itself (Stockdale v Hansard, Bowles v The Bank of England) 24; and

    (b)  if the codification process involves the abolition of an existing privilege, this can be done only by legislation (Duke of Newcastle v Morris). 25 (It is for these reasons that the "application of statutes by analogy" procedure is invalid).

  The new statutory code could with advantage incorporate both case law and existing statute law, where it was desirable for it to be retained. There could be a clear-out of obsolete precedents, with a fresh start made on a clean sheet of paper. The Law Commissions could be asked to produce a draft for two Houses to consider. The most recent United Kingdom legislation dates from 1770, and the Judicial Committee of the Privy Council had to be consulted on the meaning of part of that Act. 26 Australia has recently legislated27 and it would be desirable for this country to follow suit. A corollary of the enactment of a statutory code would be that authoritative interpretations could be given only by the Courts. As the then Attorney-General said in 1958 of Article 9: "The Bill of Rights is a statute, and the meaning to be attached to the words in that statute, 'Proceedings in Parliament', is a question of law. This House, of course, can put its own interpretation upon those words, but . . . that will not be binding on any court of law." (Sir Reginald Manningham-Buller, later Lord Dilhorne LC). 28

6.   Article 9 of the Bill of Rights

  The difficulties over the application of Article 9 are founded partly in its origins. The articles were contained in a "shopping list" of grievances and claims presented to William and Mary at the ceremony at which they were offered the crown in February 168929—the Declaration of Rights. The Articles had been drawn up by the Convention Parliament in the course of the preceding fortnight and were the product of compromises reached between the two Houses. The King subsequently told Halifax that he did not regard the Articles are binding, and this view would have prevailed until December 1689, when the Declaration was turned into an Act. Originally it was intended to work up each Article into a proper Act, but this was never done with Article 9, so over the succeeding three centuries people have had to do their best with the terse and obscure language of the original.

  Territorial coverage: In general, the Bill covers only England and Wales. 30 The greater part of the Bill has never applied to any part of Ireland—and this non-application continues with Northern Ireland today. (This point is discussed fully in my 1989 article). The exceptions were the references to the Irish Crown and to electoral laws (ie including Articles 8 and 13) applied to Northern Ireland under a Section, now repealed, of the Government of Ireland Act 1920.

  As for Scotland, Article 25 of the Claim of Right corresponds to both Article 13 and Article 9 of the Bill of Rights. It reads (the spelling is modernised):

  "That for the redress of all grievances and for the amending, strengthening and preserving of the laws parliaments ought to be frequently called and allowed to sit and the freedom of speech secured to the members."

  My comments refer to the last eight words. The scope of the Scottish Article is narrower than that of the English one: it covers only members, not, say committee witnesses; it does not mention "Proceedings in parliament" or forbid their being "impeached or questioned in any court or place out of Parliament". Thus, for example, if the Pickin case31 had taken place in Scotland rather than England and if the court had been guided by Article 25, it might have been willing to review the validity of parliamentary proceedings on a private bill. (The main authority relied upon by Mr Pickin's lawyers was an old Scottish case.) The effect of the Scottish formulation is broadly similar in scope to the interpretation of Article 9 by Hunt J in R v Murphy in the Supreme Court of New South Wales32. (On this case see my comments on point 17 of the invitation document.) A leading Scottish text book33, which is however 30 years old, notes that on freedom of speech "the Bill of Rights is much more specific than the Claim of Right". Although parliamentary privilege was different in origin and development in Scotland and England "as a general rule the law must be taken as uniform, though in particular cases where procedure rules of general law are important there may still be differences. There is, however, little modern authority in Scotland and the weight of English authority as forming a pattern of thought must be regarded as substantial". There can, however, be no guarantee that a Scottish Court would follow English precedents, as the statute law is plainly different.

  The Language: The language of Article 9 has been a cause of difficulty for years. A main question that arises (mentioned earlier as having been raised with the 1967 Select Committee) is: what are "proceedings in Parliament"? The 1939 Report of the Select Committee on the Official Secrets Act34 suggested a definition, but this would of course not be binding on any court, and would need to be modified to take account of the 1958 decision of the House that correspondence between MPs and ministers was not a "Proceeding in Parliament". Four committees between 1967 and 1977 urged the need for legislation to define the phrase and in 1978, Mr Foot, when Leader of the House, promised its introduction35; but the government fell before this could be done. A memorandum by the Clerk of the House of Commons on the "Zircon" affair in 1987 also raised the matter. 36 Section 16 of the 1987 Australian Act37 provides a non-exhaustive definition of the phrase, and section 16(2) of this Act has been used as the basis of section 13(5) of the UK Defamation Act 1996. (However, the latter definition, which is only partial may be confined to the purposes of the Act and may not apply generally.) In 1994, the Judicial Committee of the Privy Council commended section 16(3) of the Australian Act, saying that the sub-section declared "what had previously been regarded as the effect of Article 9" and that it contained "what, in the opinion of their Lordships, is the true principle to be applied".38

  The Strauss case of 1958 raised the question whether correspondence between an MP and a minister was a "Proceeding in Parliament". The Privileges Committee said that it was, but the House of Commons said it was not39.

  To continue the examination of the language of Article 9—what is the force of "ought"? Sir Clarrie Harders, in a very useful paper, 40 suggests that the word was "carefully chosen so as to allow for a measure of flexibility in its application"; and he quotes Lord Pearce: "ought" is "the language of discretion not compulsion".41

  The word "impeached" probably adds nothing to the concept of "questioned". The Oxford English Dictionary gives the relevant 1690 meaning of "impeach" as to "challenge, call in question, attack; to discredit, disparage". On the free speech argument presented by Lord Browne-Wilkinson in Pepper v Hart, 42 it is not possible in a 20th century democracy to interpret Article 9 as prohibiting comment on parliamentary discussions in the media. "Plainly Article 9 cannot have effect so as to stifle the freedom of all to comment on what is said in Parliament, even though such comment may influence Members in what they say." What does the phrase "court or place out of parliament" mean? In the Australian case R v Murphy43 counsel for the President of the Senate first suggested that "place" included the media, but Parliament would take no action on media comments, even though they were prima facia a breach of Article 9. He then changed tack and suggested that "place" did not cover the media, but referred to "a tribunal or other organ of state". On this interpretation, "place out of parliament" would have included Sir Richard Scott's enquiry, 44 which was not conducted by a court, but by a tribunal sharing some of the attributes of a court. The Report of the enquiry severely criticised various aspects of parliamentary proceedings—the veracity of answers to Parliamentary questions; a statement in the House of Commons by a minister; evidence to a Select Committee by a Minister and a Civil Servant; and the choice of departmental witness for a Select Committee enquiry. These aspects of the Scott enquiry were in my view a clear but very necessary breach of Article 9, and a demonstration that Article 9 is unworkable today in some contexts. A blind eye had to be turned to the problem; the contrast is marked between the freedom to comment possessed by Sir Richard as a one-man tribunal and the restrictions he would have had to observe as a judge in a court hearing.

  8.  Under heading 6, I have already referred to the difficulties over the meaning of the phrase "proceedings in Parliament". This phrase, which is statutory, is not the only concept in circulation. One also finds:
Proceedings in the House and some other things (Stockdale v Hansard)
What is said and done within the walls of Parliament (Bradlaugh v Gossett)
Its own internal concerns(Bradlaugh v Gossett)
Internal affairs of the House(R v Graham-Campbell
ex p Herbert
)

  The meaning of all these phrases is different. For example the pollution of a water tank may be an "internal affair" but it is hardly a "proceeding in Parliament"; it is important to be clear about the scope of the concept one is talking about.

9.   Exclusive jurisdiction of the two Houses over internal proceedings

  In my view the right approach to defining the desirable scope of exclusive jurisdiction is to start from the minimum needed to safe-guard the core functions, and add extra rights only if there is a strong justification for them. The courts have tended to emphasise that the privileges of Parliament, while justifiable on the grounds of the general good, are offset by a reduction in the rights of litigants; so that what is Parliament's gain is the community's loss. Thus the Judicial Committee of the Privy Council in 1958 referred to "the inalienable rights of Her Majesty's subjects to have recourse to her courts of law for the remedy of their wrongs",45 implying that these rights should be impeded as little as possible by parliamentary privilege. Similarly, in 1990, Popplewell J observed that a court "while giving full attention to the necessity for comity between the courts and Parliament, should not be astute to find a reason for ousting the jurisdiction of the court and for limiting or even defeating a proper claim by a party to litigation before it." 46 On these views, the aim should be for privilege to make as little impact as possible on normal legal processes.

  Earlier in this paper (under heading 1) I made some comments about where the boundary of exclusive jurisdiction lies and it is plain that this has varied over time. Judges in the nineteenth century and early twentieth century were prone to claim a more extensive right to adjudicate in parliamentary matters than they have done since 1935. The Graham-Campbell judgment of that year (note 2) was followed by a lengthy period of judicial quiescence in the field of the domestic law of Parliament, but in the last two decades some judges have shown that they do not always feel a need to keep their distance. In the King47 case of 1974, an Industrial Tribunal was invited to assume jurisdiction in a staff matter, in the light of a pledge about "analogous treatment" under the Industrial Relations Act. In the Bear case of 1981 (already mentioned, note 14), the judge declined to follow the Graham-Campbell judgment; and this Australian ruling might be found to be persuasive here. In 1984, the three Law Lords on the Lords Privileges Committee advised that in relation to compulsory detention in a mental hospital the general law of the land should apply to insane peers, even though there were no specific words in the statute to say so. 48 In the Mancroft case of 198949 the judge withheld the benefit of privilege from a peer. (The last two matters are discussed below). In 1990, Popplewell J ruled that the Register of Members' Interests was not a "proceeding in Parliament" within the meaning of Article 9 of the Bill of Rights and that evidence about entries in the Register could therefore be given and challenged in court50. In 1993 the House of Lords, sitting judicially, firmly rejected the suggestion that Article 9 was infringed by a proposed partial relaxation of the rule under which the Courts were forbidden to consult Hansard to help them to construe ambiguous statutes51. In 1994 Simon Brown LJ decided that aspects of the work of the Parliamentary Commissioner for Administration were subject to the supervision of the courts52, and this was confirmed two years late by Sedley J in a somewhat similar case. 53

  Thus in recent years some judges have been re-occupying part of the territory ceded by Lord Hewart in 1935 by the Graham-Campbell judgment, and re-asserting the influence of the courts over some aspects of Parliament. This is a reversion to the stable relationship that prevailed for almost a century after the Stockdale affair of 1837-40, and with the exercise of restraint on both sides there is no reason why equilibrium should not be maintained. One has only to compare the Stockdale affair with the Strauss case of 1958. In the former business some MPs wanted to imprison the judges for defying the Commons (but were dissuaded by the Attorney General), court officials were imprisoned and a general atmosphere of crisis was stoked up. 54 In the latter case the temperature was deliberately kept down and the Commons voluntarily involved a court—the Judicial Committee of the Privy Council55—on one aspect. (However one difference was undoubtedly the fact that, as a litigant, the London Electricity Board was a much less tough proposition than Mr Stockdale.)

10.   Freedom from arrest

  Some of the issues arising from arrest/detention may be illustrated by the four cases mentioned below, all involving peers.

  The Duke of Newcastle v Morris (note 25) was concerned with the law of bankruptcy as applied to a peer. A creditor (Morris) sought the committal of the bankrupt Duke into custody, as was normal at that time for bankruptcy; the Duke appealed, and the case went up to the House of Lords. The appeal was on two grounds: that the law of bankruptcy did not apply to peers, and that peers were exempt from arrest in civil suits. The Duke lost on the first ground: in effect the court ruled that "all debtors" in the relevant Act meant what it said, and included peers. He won on the second ground: Lord Hatherley LC said of bankrupt peers and MPs that it was "one consequence of their position, not for their personal benefit at all, but for the good of the state and resting upon sound grounds of state policy, that they should have a privilege which is secured to them by Common Law . . . that they should be personally free from arrest".

  However, simultaneously with the earlier stages of the case, Parliament passed a new Act, which was of course not retrospective, providing that "if a person having privilege of Parliament commits an act of bankruptcy, he may be dealt with under the Act in like manner as if he had not such privilege". A similar provision has been re-enacted in subsequent Insolvency Acts, and its effect is that peers and MPs subject to bankruptcy proceedings who misbehave in certain ways (eg abscond or fail to attend for examination on their affairs) are subject to arrest.

  Three points may be made:

    (a)  bankruptcy law provides an example of the way a previously existing privilege can be abolished by statute.

    (b)  The judgment in the Newcastle case laid down the principle that legislation is the only way in which abolition is possible, and this part of the judgment, given in the highest court, is still an authority.

    (c)  What is notable, in this case at any rate, is how promptly nineteenth-century legislators acted to rectify an anomaly thrown up in litigation—in great contrast, it may be thought, with their twentieth century successors.

  Stourton v Stourton56 was concerned with the application of the Married Women's Property Act 1882. A peer (the 25th Baron Mowbray) had failed to comply with a court order to restore some furniture to his estranged wife, and she sought a writ of attachment against him for contempt. The judge, Scarman J, refused the application on grounds of privilege, so presumably Lady Mowbray did not get her furniture back. In the course of his judgment, the judge said the following: "I do not think, however, that I, sitting in the High Court of Justice, must necessarily take the law that I have to apply from what would be the practice of the House. I think I have to look to the common law as declared in judicial decisions in order to determine in the particular case whether privilege arises and, if so, its scope and effect".

  This is an example of the claim by the courts to decide on the existence and extent of privilege.

  Mental Health Law: In the early 1980s the question arose whether a peer can lawfully be compulsorily detained in a mental hospital. A case was due to be heard at the Preston Crown Court, but was abandoned when the peer in question was released from confinement. The Lords' Committee for Privileges thought it right to review the issue generally, even though it no longer arose in relation to a specific case, and their report was published in June 1984. 57 The Committee had received two conflicting views in evidence. On the other hand, the three Law Lords on the Committee (Lords Diplock, Scarman and Bridge of Harwich) considered that further legislation was unnecessary, and that, if the matter ever came before the courts, they would hold that the Mental Health Act 1983 "overrides any previously existing privilege of Parliament or peerage so far as it conflicts with the liability to compulsory detention in hospital under sections 2 to 6". In effect the Law Lords' opinion was that the phrase "any patient" included a peer, just as in the Newcastle case over a century earlier the Lords had decided that "all debtors" included peers. However, on the other hand, the Law Officers58 advised that it was not possible to predict how the courts would decide; they concluded (having considered the Law Lords' opinion) that it remained doubtful whether it was lawful to detain a member of the House of Lords without a breach of Parliamentary privilege. To quote from the Attorney General's memorandum. "It appears . . . that there is no disqualification, either statutory or in common law to prevent members of the House of Lords who are 'mentally disordered' from sitting". An incident may be recounted from the nineteenth century. In 1849 a close division was anticipated in the House, with both sides wishing to maximise their strength; and the "Tory Whips pushed past the tellers two quite insane peers rushed from their institutions to the House for the purpose, the keeper of one of them in attendance in the lobby".59

  Could anything similar happen today? The Committee suggested that legislation should be introduced to clarify the position, 60 but nothing has been done. (Similarly promises to extend the Health and Safety at Work Act to both Houses on a statutory basis have not been fulfilled.) In interpreting the Mental Health Act as applying to peers, the Law Lords did not require that it should contain express words binding the House, but based their argument on considerations of rational public policy:

  "Can Parliament really have considered it to be necessary for the proper functioning of the legislative process in the public interest that mentally disordered peers should be released from detention in a hospital, to which they were confined for their own good, in order to take an active part in making the laws of the land? The only possible answer must be 'no' ".

  This is obvious common sense, but (with the greatest respect to the learned authors) is it the law? If it is the law, then it follows that several Acts currently regarded as not applying to the two Houses61, on the authority of the judgment in the Graham-Campbell case—because they lack express words—do in fact apply.

  The last case to be reviewed in this section is the Mancroft case, 62 which came before Judge White in the Wandsworth County Court. Like Stourton v Stourton, this case was concerned with a failure to obey a court order; but the outcome was totally different. Whereas privilege was extended to Lord Mowbray so that he did not have to comply, Lord Mancroft would have been committed to prison if he he had not purged his contempt. The judge said:

    "If the privilege protects him from the ultimate sanction, then effectively his creditors will be deprived of the important right they would otherwise have had to call for a formal examination; without powers of enforcement and the rights ancillary to them justice is liable to be snuffed out at judgment."

  And in later proceedings:

    "I ruled that the privilege did not apply—indeed . . . it is unthinkable in modern times that, in circumstances such as they are in this case, it should".

  The judgment would not be binding on other courts, but its brisk, no-nonsense tone (in contrast with that of the Stourton judgment) may be indicative of the attitude of some contemporary judges.

  A point that arose over the case was that the court staff feared that, if they were called upon to arrest Lord Mancroft, they might be imprisoned themselves, for contempt of the House of Lords—as was the Sheriff of Middlesex on the orders of the House of Commons. This point is considered further below.

  13 and 14 Contempt: It would be desirable that the whole business of contempt should be codified, made statutory and handed over to the courts to enforce, in the same way as that in which decisions on disputed elections were transferred in 1868. In the course of this process of modernisation, the opportunity should be taken to renounce the possibility of contempt proceedings against certain categories, for example:

  Judges: In 1839, in the course of the Stockdale affair, some MPs favoured the committal of Lord Denman C J and the other Queen's Bench judges for defying the Commons, but fortunately were restrained by the Attorney General. The MPs wanting to lock up the judges included Mr Sergeant Wilde who was shortly afterwards appointed Solicitor General. 63

  Court Staff: As mentioned above, the Wandsworth County Court staff at the time of the Mancroft case feared they might be imprisoned if they arrested Lord Mancroft. This action would have followed the precedent of the imprisonment of the Sheriff of Middlesex—actually two persons—who were imprisoned by order of the House of Commons for carrying out their duties to the court in the Stockdale case.

  Lawyers: Erskine May up to and including the 20th edition used to to explain how legal actions against the House of Commons could be stopped by the imprisonment of the lawyers. By committing for contempt, the Commons endeavour "to stop actions at their source and thus to prevent the courts from giving judgment. But . . . an action cannot be legally obstructed if the parties be determined to proceed with it. Their counsel may be prevented from pleading, but others could immediately be instructed to appear." The theory therefore was that, unless Parliament was inconveniently in recess, a succession of lawyers was clapped into prison until none was willing to take the case on, so that the litigants had to desist. All this was belatedly recognised to be unrealistic—I made a sceptical comment in my 1985 article—and the text has been changed in the 21st and 22nd editions. But it must be remembered that, in the Stockdale case, not only was the plaintiff himself imprisoned, but all his legal team, including an 18-year-old solicitor's clerk.

Detention of persons with no cause specified on the warrant

  If a person is committed into custody by Parliament with no cause specified on the warrant, the court will not go behind the warrant to investigate the reason. This was established in various early 19th-century cases, including that of the Sheriff of Middlesex64 and was confirmed as recently as 1955 in an Australian case, 65 in which the House of Representatives had two journalists imprisoned.

  Yet in 1628 the House of Commons extracted from a reluctant monarch (Charles 1) an undertaking that the King would cease imprisoning persons without showing cause. The Petition of Right complained that:

    "Against the tenor of the said statues . . . divers of your subjects have of late been imprisoned without any cause shown . . . and when for their deliverance they were brought before your justices . . . and their keepers commanded to certify the causes of their detainer, no cause was certified . . . and yet (they) were returned back to several prisons without being charged with any thing to which they might make answer according to the law".66

  The House of Commons retains a power which it has denied to the Executive for over three and half centuries. As Lord Simmonds put the matter in a judgment in 1947:

    "Arrested with or without a warrant the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moment's delay, take such steps as will enable him to regain it."

  It should be recognised that warrants drafted in general terms are not in accord with contemporary thinking, and they should be abandoned. The corollary is that, if warrants gave reasons, courts would be able to enquire into them; and this is inevitable. It is difficult to see how the House of Commons could function satisfactorily as a judicial body, and much better that it should not try to do so.

  15A.  The European Court of Human Rights has considered parliamentary privilege in relation to a case in the Maltese House of Representatives. 68 The House had fined a journalist who had criticised the performance of two MPs in a debate which had been broadcast live. The Court found that the accused had not received a fair and public hearing before an independent and impartial tribunal. The present arrangements in the UK Parliament might be open to the same strictures. The authors of a work on Media Law69 give the following view of investigations by the former Commons' Committee of Privileges:

    "There are no procedural safeguards. Accused persons may be condemmed unheard, or summoned for cross-examination without legal representation or being given notice of the charges, and without any right to challenge the evidence given against them or to call witnesses in rebuttal. The Committee sits in secret, and reports in due course to the Commons. The House decides whether and what punishment to inflict after a further debate in which biased MPs vote entirely as judges in their own cause. [These procedures] are in blantant breach of at least three articles of the European Convention on Human Rights".

  16.   Other issues A. European Union Law Under Section 2 of the European Communities Act 1972, Union law prevails over UK law, presumably including parliamentary law. Some rules of Union Law are directly applicable—ie they do not have to be re-enacted—and others are first formulated as directives, to which effect is given in national legislation. The two Houses would be unwise to try to ignore Union law, but it will be anomalous if they apply to their affairs statutes based on European directives, while at the same time repudiating domestically-generated statutes as not binding on them. Possibly the purchase of Rosenthal China in the mid 1970s by the Commons Refreshment Department stemmed from observance of the European rules on competitive tendering which public authorities have to follow. The application to the staff of a limit of 48 hours to the working week under the Social Chapter will raise more substantial issues, but it would surely be ill-advised for the two Houses to assume that they could ride rough-shod over the rules applicable to everybody else.

  B.   Privilege of peerage In order that the Joint Committee's enquiry should be comprehensive, it might be desirable for it to cover privilege of peerage, in so far as it differs from privileges available to MPs, and to recommend what, if anything, should be retained.

  C.   Can Privilege be waived? Two points are clear about the renunciation or waiver of privilege:

    (a)  that a specific privilege may be renounced, once and for all, by either House or both, by statute: for example in relation to the law of Bankruptcy under the Bankruptcy Act 1869;

    (b)  that, under section 13 of the Defamation Act 1996, an individual may temporarily waive the privilege afforded by Article 9 of the Bill of Rights for the purposes and in the circumstances specified in that Act.

  Apart from these two points, it is unclear whether or not one House of Parliament or an individual may temporarily waive privilege: ie on one particular occasion, without affecting the permanent state of affairs. In his paper, 70 Sir Clarrie Harders reviewed the authorities: he noted that the Australian Senate decided in 1985 that a statutory privilege could not be waived, and surveyed the law in Australia, Canada and the United Kingdom. However, for the UK the most recent case cited was Rost v Edwards. 71 In his judgment in that case, Popplewell J envisaged the possibility of a procedure under which the plantiff petitioned the House to secure its permission for the calling of evidence on a decision of the Committee of Selection—a procedure which would have amounted to a waiver of Article 9; but in 1994, the Judicial Committee of the Privy Council suggested that Rost v Edwards had been wrongly decided72.

  Mrs Leopold also reviewed the case law in her 1995 article; 73 she noted the decisions of the Committee of Privileges of the New Zealand House of Representatives that the House could not waive Article 9—a view which appeared to be endorsed by the Judicial Committee in its judgment in Prebble.

  The question of waiver was considered judicially by Judge White in the Mancroft case74; though he left open the question whether privilege can be waived either by an individual or collectively by one of the Houses, he concluded:

    "There is no case directly in point but such obiter as there is suggests that privilege cannot be waived."

  In passing, a 1904 case may be mentioned. An MP wished to waive the privilege that Members have of not being sheriffs: he wanted to be one. Lord Alverstone CJ ruled that he could not waive privilege75.

  The prevailing view would appear to be that in general a waiver is not possible. The Joint Committee may wish to consider whether the flexibility of a system of waiver would be desirable. If such a system were to be adopted, it would have to be statutory for the courts to take cognisance of it.

  17.   The experience of other countries  This section is somewhat fragmentary, rather than an outline of comparative study that the subject really needs. Two preliminary points:

    A.  I am sure that the Research Services of Commonwealth and foreign Parliaments would be very willing to assist with information, if approached.

    B.  Suggested written sources:

1.  Sir Clarrie Harders' excellent paper (footnote 40) is good on the United States, as well as on Australia and the UK.

2.  Various articles in legal journals by Mrs PM Leopold—particularly that cited in footnote 68 on New Zealand (background to Prebble) and Malta (Demicoli case).

3.  Pages 553-4 of my own 1989 article in Political Studies, giving references and more detail on Australia and Canada.

4.  Parliamentary Immunity in the Member States of the European Community and in the European Parliament (European Parliament, Luxembourg, 1993).

  The United States  Article 1.6 of the Constitution provides that: "The Senators and Representatives . . . shall in all cases except treason, felony and breach of the Peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same, and for any speech or Debate in either House, they shall not be questioned in any other place."

  The last clause is a clear echo of article 9 of the English Bill of Rights. Harders comments on some of the case law, and there are some useful points in a recent article by A Sharland and I Loveland76—including the suggestion that immunity from defamation suits may not be complete. "There is even some authority for the proposition that a legislator's speech in the House or Senate may be the subject of a defamation action if the speaker has knowingly or recklessly disseminated lies." Harders tells the story of the Colonel North case, and shows how the congressional hearings (with the grant of immunity) in the end made a criminal conviction impossible. There may be lessons here for our own Select Committees.

  Canada  In Canada the tendency has been to widen the application of Article 9 in such a way as to grant absolute privilege to MPs' utterances outside the Chamber.

  Australia  In Australia, some judges adopted a restrictive interpretation of the Article—in particular Hunt, J in the Supreme Court of New South Wales in the Murphy case77.

  There were two sequels:

    The Commonwealth Parliament legislated to reverse the judgment (just as the UK Parliament reversed the judgment in Stockdale by legislation); the judgment was considered by the Judicial committee of the Privy Council in the course of the Prebble case78. The Judicial Committee, while saying that it was not their function to decide on Australian Law, stated that it was their view that the judgment was incorrect as far as the rest of the Commonwealth was concerned. With regard to Australia, the lesson of the Murphy case is that Parliament can always have the last word if it dislikes judicial decisions.

NOTES

1.  (1839) 9 A and E at p144.

2.  [1933] l K B 594.

3.  Report from the Select Committee on Parliamentary Privilege (1967-68, HC 34). p xxxi. Emphasis added.

4.  H C Deb 21 Nov 1977, written answers col 1093.

5.  H C Deb 6 June 1985, cols 449-56.

6.  E Mitchell and others. British Medical Journal 14 Jan 1989 p 101. The inspectors were admitted on a voluntary basis rather than under statutory powers.

7.  Letter to myself from the Rt Hon Richard Crossman MP, Leader of the House of Commons.

8.  Now in the Employment Rights Act 1996, Section 195.

9.  International Labour Convention no 151 concerning Protection of the Right to Organise and Procedures for determining Conditions of Employment in the Public Service. cmnd 8252, previously published as cmnd 7786.

10.  Now in the Employment Rights Act 1996, Section 194.

11.  S de Smith and R Brazier, Constitutional and Administrative Law, 7th ed, 1994, p 351.

12.  (1884) 12 QBD at p 282.

13.  Williamson v Norris [1899] 1 QB7.

14.  Bear v the State of South Australia (1981) 48 (2) South Australian Industrial Reports 604.

15.  Attorney-General of Ceylon v de Livera [1962] 3 All E R at p 1069.

16.  Bradlaugh v Gossett footnote 12, at p 286.

17.  See 1967 Report from the Select Committee on Parliamentary Privilege: memoranda from the Bar Council and the Law Society.

18.  Report from the Select Committee on the Official Secrets Act (1938-39, H C 101) p xiv.

19.  Report from the 1967 Select Committee on Parliamentary Privilege op cit memorandum from the Bar Council p 171-2.

20.  Patricia Leopold, "The Parliamentary Papers Act 1840 and its Application Today". Public Law 1990 p 183-206.

21.  Patricia Leopold "Parliamentary Privilege and the Broadcasting of Parliament". Legal Studies, 1989, p 53-66.

22.  Report of the House of Lords Committee for Privileges on Parliamentary Privilege and the Mental Health Legislation (HL 254 of 1983-84).

23.  Provisional Collection of Taxes Act.

24.  [1913] 1 Ch 57.

25.  1870 LR 4 HL 661.

26.  (1958) A C 331 Also printed as cmnd 431.

27.  (Australian) Parliamentary Privileges Act 1987.

28.  HC Deb 8 July 1958, col 251.

29.  New Style of year-numbering.

30.  H L Deb 7 May 1996 cols 49-50 Lord Mackay of Clashfern LC.

31.  Pickin v British Railways Board (1974) 2 AC 765.

32.  (1986) 5 NSWLR 18.

33.  J B D Mitchell Constitutional Law (1968) p 127 and 125. Emphasis added.

34.  Footnote 18, para 3.

35.  HC Deb, 6 February 1978 Cols 1190-1192.

36.  1st Report from the Committee of Privileges, HC 365 of 1986-87 p 5.

37.  See note 27.

38.  Prebble v TV New Zealand [1994] 3 ALL ER, 407 at p 414 per Lord Browne-Wilkinson.

39.  See my 1985 article in Public Law, p 66-8.

40.  "Parliamentary Privilege—Parliament versus the Courts: Cross-Examination of Committee Witnesses". Parliament of Australia, Parliamentary Research Services Background Paper, 8 Oct 1991.

41.  Conway v Rimmer (1968) I ALL ER 874, 907.

42.  [1993] AC 593, at p 638.

43.  Footnote 32. These two sentences are based on Harders, op cit p 22 (footnote 40).

44.  Report on the Inquiry into the Export of Defence Equipment and Dual Use goods to Iraq and Related Prosecutions. 5 Vols HC 115 of 1995-96.

45.  Footnote 26, p 353.

46.  Rost v Edwards [1990] 2 WLR 1280, 1293.

47.  King v the Sergeant at Arms, Industrial Tribunal case no 1719/74 not reported. see Harvey on Industrial Relations and Employment Law, CI [II 79].

48.  Footnote 22.

49.  Wandsworth Country Court, unreported. See Patricia Leopold "The Freedom of Peers from Arrest", Public Law 1989, p 398.

50.  Rost v Edwards, footnote 46. It is unclear whether this part of the judgement stands. The reported case dealt with only preliminary issues, of which the point on the Register was one- and probably the less important of the two. The Attorney-General intended to appeal on the Register issue, but as the main action was settled before it could come to trial, there was no opportunity to do so. In Prebble (footnote 38,) Lord Browne-Wilkinson suggested that Rost v Edwards had been wrongly decided, but from the context it seems probable that this comment referred only to Popplewell J's ruling on the other, more important issue before him.

51.  Pepper v Hart [1993] 1 ALL ER 42 (HL).

52.  R v Parliamentary Commissioner for Administration, ex p Dyer [1994] 1 all ER375.

53.  R v Parliamentary Commissions for Administration, ex p Balchin QB, 25 Oct 1996.

54.  In the end the Commons had to recognise that, as the court would not agree that their resolutions had the force of law, their only course was to legislate. The Duke of Wellington had recently suffered two strokes, so his will to resist the necessary Bill had been weakened. The measure was therefore able to surmount the potential obstacle of the House of Lords, and the Court's judgement was over-ridden.

55.  The Commons had referred another matter to the Judicial Committee for an opinion eight years earlier—the Macmanaway case of 1950.

56.  [1963] p 302.

57.  HL 254 of 1983-84.

58.  The Attorney General was Sir Michael Havers (later Lord Havers LC) and the Lord Advocate was Lord Mackay of Clashfern, also a future Lord Chancellor.

59.  M Bentley, Politics without Democracy, 1815-1914, 1984, p 137.

60.  In relation to MPs the matter is covered by statute.

61.  Strictly, the Graham-Campbell judgment referred only to the House of Commons.

62.  Barclays Bank plc v Lord Mancroft and three other cases taken together. Case No. 88/05589 and others, Wandsworth County Court not reported, but see Mrs Leopold's article in Public Law (footnote 49).

63.  As Sir Thomas Wilde, later Lord Truro LC. He distinguished himself by speaking against one of his own government's bills—the Parliamentary Papers Bill, reversing the Court's decision in the Stockdale case. Melbourne had not wanted Wilde as Solicitor General, but all the other eligible candidates favoured the use of the secret ballot in elections, and that was against the party line.

64.  (1840) II Ad & E 273.

65.  R v Richards ex parte Fitzpatrick and Browne (1955) 932 CLR 157.

66.  3 Car I c I.

67.  Christie v Leachinsky [1947] A C 573 at p 592. See also Viscount Simon at p 585.

68.  Demicoli v Malta 14 EHRR 47 (1991). This passage is based on Patricia Leopold's article. "Free Speech in Parliament and the courts", Legal Studies, July 1995, p 204-218 at p 216-7.

69.  Robertson and Nicol: Media Law (3rd ed 1992) p 399; quoted by Leopold, footnote 68.

70.  Footnote 40, pp 30-33.

71.  Footnote 46.

72.  Prebble v TVNZ, footnote 38 at p 418, per Lord Browne-Wilkinson. See note 50.

73.  Footnote 68.

74.  Footnote 49.

75.  The Times 14 Nov 1904 p 13.

76.  Andrew Sharland and Ian Loveland: The Defamation Act 1996 and Political Libels (Public Law, Spring 1997), p 121.

77.  Footnote 32. The judge allowed the use as evidence in court of testimony given before a Committee of the Senate.

78.  Footnote 38.

*  Geoffrey Lock: On the staff of the House of Commons 1953-91 (Head of Research Division, House of Commons Library 1977-91).

  Member of the Study of Parliment group since 1965—but this paper consists of my own views, not those of the Group. I am not a lawyer. Contributor to various works on parliamentary topics, including the following which are relevant to the subject matter of this paper:

  Labour Law, Parliamentary Staff and Parliamentary Privilege (Industrial Law Journal, March 1983).

  Parliamentary Privilege and the courts: the avoidance of conflict. With an annex on the Strauss Case by Lord Denning (Public Law, Spring 1985).

  The application of the general Law to Parliament (Public Law, Autumn 1985)—a short note.

  The 1689 Bill of Rights (Political Studies, December 1989).

  Forthcoming: a chapter in Oliver and Drewry (editors) Parliament and Law (provisional title) to be published by Butterworths in the "Law in Context" series.


 
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