Re:   Joint Committee on Parliamentary Privilege

  I refer to our recent conversations and I now enclose Liberty's submission to the Committee, in the form of an Opinion relating to the implications of the incorporation of the European Convention on Human Rights into domestic law.

  I should be grateful if you would kindly acknowledge receipt.

Philip Leach

Legal Director

30 March 1998

I.  INTRODUCTION

  1.  We are asked to advise Liberty as to the implications for parliamentary privilege of the impending incorporation of the European Convention on Human Rights (ECHR) into domestic law via the Human Rights Bill, to assist with its submission to the Parliamentary Joint Committee on Parliamentary Privilege.

  2.  The question of the proper relationship between a fundamental rights document and parliamentary privilege is of great constitutional importance and in other jurisdictions has received extended consideration in both academic literature and judgments at the highest level. In Canada, for example, the question whether the Canadian Charter of Rights and Freedoms applies to members of provincial legislatures when exercising their parliamentary privileges as members was considered at length by the Supreme Court of Canada in 1993 in Speaker of the House of Assembly v Canadian Broadcasting Corporation (1993) 100 DLR (4th) 212. Members of the Joint Committee might profit from considering the learned analyses of the question contained in the various judgments delivered in that case, which include a useful consideration of the position in the UK.

  3.  In this brief Joint Opinion, however, we confine ourselves to considering, first, the likely relationship between parliamentary privilege and Convention rights as a matter of domestic law when the Human Rights Act comes into effect, and, second, some examples of the most likely potential conflicts between the two which may arise in practice.

II.  THE POSITION UNDER THE HUMAN RIGHTS BILL

  4.  Clause 6(1) of the Human Rights Bill provides that "It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights". This key provision is central to the scheme of the Bill and imposes a general obligation on all public authorities to act compatibly with the Convention. It provides a new and free-standing ground on which the actions of public authorities may be challenged, whether in proceedings brought against such authorities or as a defence in proceedings brought by them.

  5.  An exemption from the obligation to act compatibly with the Convention under clause 6(1) is, however, contained in clause 6(3) which expressly excludes from the definition of public authority "either House of Parliament or a person exercising functions in connection with proceedings in Parliament".

  6.  This exclusion from the definition of public authority in clause 6(3) is consistent with the overall scheme of the Bill, which seeks to balance effective protection for Convention rights with the preservation of Parliament's special place in the UK's tradition of representative democracy. The effect of the exclusion is to preclude Convention rights being directly relied on against either House or any person exercising functions in connection with proceedings in Parliament. For example, proceedings could not be brought against the House of Commons by a newspaper relying on Article 10 of the convention, nor could an individual bring proceedings against an MP based on Article 8.

  7.  However, this does not mean that potential conflicts between parliamentary privilege and convention rights will not arise as a matter of domestic law. The immunities from judicial interference which are conferred by parliamentary privilege are not absolute. When a claim of privilege is made in legal proceedings, the courts will scrutinise the claim to determine whether it falls within a recognised head of privilege. It has become a constitutional truism that it is not open to Parliament to establish or claim new privileges, and it is now accepted that it is the proper province of the courts to define the limits of privilege. In the terms of the formula used by the courts themselves, they will examine the existence and extent of privilege, but, once they have found privilege to apply in a given context, they will not interfere with the manner of its exercise.

  8.  The fact that the courts have a role in defining the limits of parliamentary privilege means that conflicts may well arise between the exercise of parliamentary privilege and Convention rights, notwithstanding clause 6(3). Indeed, this is inevitable as a result of other provisions of the Bill. Courts, which, by virtue of clause 6(3)(a) are public authorities for the purpose of clause 6(1), must decide the scope of parliamentary privileges, to the extent that they are creatures of the common law, and to the extent that they are contained in statute such as the Bill of Rights 1688 they must be interpreted compatibly with Convention rights (clause 3(1)). It follows that, just as the incorporated Convention will have an indirect effect on private law, so it will have an indirect effect on the law of parliamentary privilege.

  9.  In any event, as a matter of European Convention law, the European Commission and Court of Human Rights will in principle be prepared to prefer ECHR rights over parliamentary privilege irrespective of clause 6(3) of the Human Rights Bill. This is clear from the only case to date which, to our knowledge, has come before the Strasbourg organs directly on a point of parliamentary privilege, Demicoli v Malta (1991) 14 EHRR 47 in which the European Court of Human Rights held that Article 6(1) applied to Parliamentary contempt proceedings and that there had, in the circumstances, been a violation of that Article's guarantee of a fair trial by an independent and impartial tribunal. To the extent that any exercise of parliamentary privilege is inconsistent with Convention rights, the UK will therefore remain liable on the international plane.

(1)   Freedom of Speech and Debate

III.  PRIVILEGES IN POTENTIAL CONFLICT WITH ECHR RIGHTS

  10.  We now turn to consider some of the most obvious examples of potential conflicts between parliamentary privilege and Convention rights. We consider there to be at least four areas of privilege in particular in which such conflicts may arise:

(1)  the freedom of speech and debate in Parliament;

(2)  the privilege each House enjoys to regulate its own proceedings;

(3)  privilege in relation to the publication of parliamentary proceedings; and

(4)  the power of each House to punish contempts of Parliament.

  11.  It has long been established in English law that anything said in Parliament, or during parliamentary proceedings, shall be free from scrutiny in any court, in order to ensure that members of the legislature can exercise Parliament's powers uninhibited by the fear of legal proceedings.

  12.  Article 9 of the Bill of Rights 1689 provides:

"That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament".

As Lord Browne-Wilkinson made clear in Prebble v Television New Zealand Ltd (1995) 1 AC 321, Article 9 is merely one manifestation of a wider principle, namely that the courts and Parliament are both astute to recognise their respective constitutional roles.

  13.  It is inevitable that this principle of non-interference by courts with anything said or done in Parliament will come into conflict with other rights. The Convention rights most likely to be affected are the right to a fair trial contained in Article 6, the right to respect for private life, including reputation, contained in Article 8, and freedom of expression and of the press in Article 10. Some examples may help to demonstrate precisely how the conflict may arise.

(a)   Defamation by an MP

  14.  If a member of Parliament were to make comments on the floor of the House defamatory of someone outside the House, a conflict may arise between the absolute privilege enjoyed by him or her under Article 9 of the Bill of Rights and Articles 6 and 8 of the ECHR. Convention law recognises that the right to protect one's reputation is an aspect of the right to respect for private life. The vehicle for protecting that right in UK law is the law of defamation. However, a defamation action against a member of Parliament in respect of something said in the course of parliamentary proceedings would be met with a defence of privilege, thus raising questions under Article 6 concerning the right of access to court and of a fair trial.

  15.  Article 6(1) of the ECHR only applies to disputes over rights and obligations which can be said, at least on arguable grounds, to be recognised under domestic law. It does not in itself guarantee any particular content for civil rights and obligations in the substantive law of the Contracting State: see eg James andothers v UK (1986) 8 EHRR 123; Lithgow and others v UK (1986) 8 EHRR 329. The question which first arises is therefore whether the immunity from defamation proceedings in respect of things said in Parliament attracts the application of Article 6(1) at all.

  16.  Until relatively recently, whether a particular limitation on a right in domestic law was such as to attract the application of Article 6(1) depended on whether the bar to the bringing of proceedings was properly characterised as being "procedural" or "substantive". If the very existence of the limitation amounted to a procedural limitation on the right to bring proceedings to vindicate the substantive right (eg time limits, requirements as to capacity, etc), it was regarded as a restriction on effective access to court which must be justified as being proportionate to a legitimate aim. Alternatively, if the limitation amounted to a substantive limitation on the scope of the substantive right (eg by stipulating the ingredients which must be established in order to make good the claim) that was a question for domestic law, subject only to the requirement that if the limitation on the scope of the right effectively ousts the jurisdiction of the courts, that ouster must not be arbitrary.

  17.  The Court in Fayed v UK (1994) 18 EHRR 393, however, took a rather different approach to the applicability of Article 6(1). The Government argued that the availability of the defence of privilege to an action for defamation delimited the very content of the applicants' right to a good reputation as protected under English law, which, unlike procedural barriers to access to court, did not engage Article 6(1) at all, since it was merely an exercise by the state of its undoubted power to fix the content of a particular substantive right. The applicant and Commission, on the other hand, argued that the defence amounted to a limitation on the right to bring defamation proceedings and therefore a restriction on effective access to court.

  18.  The Court at para 67 said:

"It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy."

  19.  The Court did not consider it necessary to settle the question of the precise nature of the defence of privilege for the purpose of Article 6(1). It made no difference: if the Court were to treat the facts underlying the case as raising a substantive rather than a procedural complaint concerning the right to private life under Article 8, the Court had to deal with exactly the same central issues of legitimate aim and proportionality. The Court therefore proceeded on the basis that Article 6(1) was applicable, and went on to consider the substantive question whether the contested limitation on the applicants' ability to take legal proceedings was justified, ie served a legitimate aim and was proportionate.

  20.  It said (at para 65):

". . . the Convention enforcement bodies may not create by way of interpretation of Article 6(1) a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6(1)—namely that civil claims must be capable of being submitted to a judge for adjudication—if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons."

  21.  The lead given by the Court in Fayed has been followed by the European Commission of Human Rights in two subsequent cases against the UK. In Tinnelly and McElduff v United Kingdom (Nos 20390/92 and 21322/93), Com Rep of 8 April 1997, the Commission considered challenges to "conclusive evidence certificates" issued by the Secretary of State under the Fair Employment Northern Ireland Act, asserting that the refusal of security clearance to certain Catholic contractors was done for the purpose of safeguarding national security. The effect of the certificates under the legislation, once they had been upheld in JR proceedings, was to preclude any court or tribunal from inquiring into the reasons for the refusal of a contract.

  22.  The Commission held that proceedings before the FEA and Tribunal attracted the guarantees of Article 6(1) because the effect of the statutory provision was to set up a form of immunity in respect of certain types of acts, which immunity had to be pleaded by way of a certificate. The applicants therefore could and did bring an action under domestic law and their access to court was then blocked in the course of those proceedings.

  23.  In Osman v UK, an action for damages for negligence was brought against the police by the family of a man killed by a teacher at his son's school after a long campaign of harrassment. The action was struck out as disclosing no reasonable cause of action, the Court of Appeal holding that no action could lie against the police in negligence in the investigation and suppression of crime, on the grounds that public policy required an immunity from suit.

  24.  One of the applicants' complaints was that by virtue of the police's blanket immunity, they had no access to court or any effective remedy in respect of the failure to protect the life of Mr Osman. The Commission again followed the lead given by the Court in Fayed, relying on the basic rule of law principle which underpins Article 6(1). It said that immunities such as that developed by the courts in this case could be expressed in either procedural or substantive terms, as the arguments of both parties had demonstrated, but that distinction was unhelpful in such circumstances. Instead, it enumerated the factors which it considered relevant, before concluding that the police's common law immunity was a restriction on the right of access to court for the adjudication of an arguable claim in negligence (para 123).

  25.  In the light of these recent authorities in the Convention case-law, it seems highly likely that the restriction arising from Article 9 of the Bill of Rights, on what evidence may be adduced, what questions can be asked in cross-examination and what submissions may be made, which in some cases may amount to an immunity from suit, will be held by the Strasbourg authorities to attract the application of Article 6(1), and will therefore require justification according to the well-established principles summarised in Osman (see para 124).

  26.  The outcome of such an exercise in justification would naturally depend on the circumstances of the particular case. Clearly, there is a very powerful public interest in maintaining the freedom of speech of MPs in Parliament by immunising them from potential liability in defamation for matters properly raised on the floor of the House, a public interest which goes to the heart of democratic representative government. This much was explicitly recognised by the Privy Council in Prebble at 336F-H. However, there may be circumstances in which fair trial considerations outweigh that important public interest.

(b)   Defamation of an MP or of the House

  27.  The problem may also arise where a defendant to a defamation action brought by an MP might seek to justify their allegedly defamatory statement by reference to comments made by the MP in the House. The plaintiff MP would be likely to try to preclude reference to the comments on which the defendant seeks to rely by invoking Article 9 of the Bill of Rights. Such a situation may well engage Article 10 ECHR, which guarantees freedom of expression, including the freedom "to receive and impart information and ideas without interference by public authority".

  28.  Article 10(2), however, permits, inter alia, such derogations from free expression as "are necessary in a democratic society. . . for the protection of the reputation or rights of others". It is settled Convention law that, in the context of political expression, the margin of appreciation accorded a State for derogation from the guarantee expressed in Article 10(1) is narrow, for:

"freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention": Lingens v Austria (1986) 8 EHRR 407, para 42.

  29.  It is of course not possible to anticipate the outcome of such a conflict in the absence of familiarity with the facts of a particular case. Just such a conflict was, however, recently considered by the Privy Council in Prebble, referred to above. Their Lordships accepted the principle (at 338D-E) that, where a defendant in a defamation action undertaken by an MP was unable to raise a proper defence because Article 9 Bill of Rights prevented him from adducing in court comments made by the plaintiff on the floor of Parliament, it would be proper to stay the proceedings where the alternative was that parliamentary privilege would operate to prevent fair determination of the issues between the parties.

  30.  That approach has since been followed in Allason v Haines, The Times, 25 July 1995, in which an action for defamation was stayed where the defendant was prevented by Article 9 from criticising the motives of an MP in tabling early day motions, on the basis that it would be unjust to deprive the defendant of his only defence while allowing the MP the benefit of parliamentary privilege.

  31.  We would add as a footnote to the preceding discussion, that while we have concentrated largely on defamation actions, similar considerations will apply in any legal proceedings in which it is sought to adduce evidence, or ask questions about, or make submissions concerning, comments made in the course of parliamentary proceedings. For example, the accused in a criminal prosecution may wish to refer to something said in Parliament in order to make good part of their defence, in which case fair trial considerations arise. The potential range of situations in which the Convention requires consideration of the justification for parliamentary privilege is very wide.

(2)   Privilege to Regulate Proceedings

  32.  An example of a conflict between Parliament's privilege to regulate its own proceedings and freedom of speech and the press is provided by the Canadian Supreme Court case referred to above, in which the inherent privilege of a provincial legislature to exclude strangers was challenged by a broadcaster which wanted to film the proceedings with its own cameras from the public gallery.

  33.  Another possible example where questions of compatibility with Convention rights could arise would be if Parliament were to refuse to admit to the House persons who had been elected as MPs but who refused to pledge allegiance to the Sovereign, as in the recent dispute concerning Sinn Fein's two elected MPs.

  34.  In relation to the elected representatives themselves, such action by Parliament could arguably be in conflict with the guarantees in Articles 9, 10 and 11 ECHR respectively of freedom of conscience, expression and association, which are guaranteed "without discrimination on the ground of political or other opinion" in Article 14. In each case it would certainly be arguable by the state that the requirement was justified under the terms of the second paragraph of each Article.

  35.  Exclusion of elected MPs from Parliament on such grounds could also find itself in conflict with Article 3 of the First Protocol to the ECHR, which guarantees entitlement to free expression through free elections of the opinion of the people in the choice of the legislature.

  36.  The fact that Article 3 is expressed in terms imposing an obligation on Contracting States, rather than in terms guaranteeing rights to individuals, would not preclude individuals from relying in Article 3 in support of recognition of their rights qua electors: Mathieu-Mohin v Belgium (1988) 10 EHRR 1, para 50.

(3) Privilege in Relation to Publication of Proceedings

  37.  The House of Commons resolved on 16 July 1971 not to entertain in future any complaint of contempt or breach of privilege in relation to the publication of debates in the House or its committees. Private sessions of the House and its committees are, however, exempt from this resolution. Private sessions of the House have not occured since 1945, but private sessions of committees continue to take place.

  38.  Publication by an outside person or body of private Parliamentary proceedings (eg, a report of proceedings of a Select Committee which the Committee had deemed appropriate to take place in private) would thus prima facie constitute a breach of privilege, and accordingly invite sanction by Parliament. In the event of the House instituting sanctions for such behaviour, conflict would inevitably arise between parliamentary privilege and Article 10 ECHR, which guarantees the right to receive and impart information and ideas.

(4) Privilege to Punish for Contempt

  39.  All breaches of parliamentary privilege, by members and non-members alike, constitute contempts of Parliament, the power to punish for which is itself an aspect of the privilege.

(a) Contempt by Members

  40.  The power of the House to punish a member for contempt arises whenever the member breaches a privilege. Penal powers include reprimand, admonishment, suspension and (in extreme cases) expulsion of offenders.

  41.  Although the power to punish for contempt invites consideration of Article 6 ECHR, it is unlikely that a conflict would arise between it and Parliament's power to sanction its members. The European Court in Demicoli (above) was careful to distinguish the proceedings with which it was concerned (contempt proceedings against a non-member of the House) from "other types of breach of privilege proceedings which may be said to be disciplinary in nature in that they relate to the internal regulation and orderly functioning of the House" [para 33]. As disciplinary proceedings, such internal matters would, on the present state of the case-law, fall outside the scope of "civil rights and obligations" or "criminal charges" in Article 6 ECHR.

  42.  The potential for application of Article 5 ECHR may arise if Parliament were minded to imprison a member for breach of privilege, but no such punishment has been imposed since 1880, and in our opinion is unlikely to be considered seriously by Parliament today.

(b) Contempt by Non-Members

  43.  Parliament also has the right to punish non-members for contempt. One recent example of the possibility involved the threat by the House of Commons Home Affairs Select Committee to commit a representative of the United Grand Lodge of Freemasons for contempt for failure to provide the Committee with the names of Masons who had been involved in a series of controversial police investigations.

  44.  The sanctions available to Parliament in the event of a non-member being found to have committed a contempt of the House include the power to imprison or impose fines on contumacious persons (see Erskine May, Parliamentary Practice (22nd ed) Butterworths 1997, pp 131-2, 138, although there is a question mark over the power of the House of Commons to impose fines today: see Griffith & Ryle, Parliament: Functions, Practice and Procedures Sweet & Maxwell 1989, p 91) as well as reprimand and admonishment.

  45.  The extent of procedural protection required by Article 6(1) would depend on whether contempt proceedings against non-members involved determination of a "criminal charge". The UK Government might take the view that it involved neither a civil nor a criminal matter. This finds some support in decisions in other jurisdictions. See, for example, Mutasa v Makombe (1997) 2 BHRC 325 (Supreme Court of Zimbabwe), in which Gubbay CJ held that Parliament, in exercising its powers of punishment for contempt under s 6(1) of the Privileges, Immunities and Powers of Parliament Act, was not in conflict with M's constitutional right to a fair hearing, as this power did not involve the exercise of either civil or criminal jurisdiction; and Demicoli, in which the Maltese Civil Court had preferred the view that exercise by Parliament of its powers relating to privilege and contempt had not involved the exercise of criminal jurisdiction.

  46.  Convention law, however, takes the view that contempt proceedings against a non-member in such circumstances would, in light of the nature of the offence and the degree of severity of possible penalties, constitute a criminal charge, irrespective of the fact that breach of parliamentary privilege would not be so classified under UK law: see Demicoli, Commission, para 33; Court, paras 31-35.

  47.  A fair hearing before an independent and impartial tribunal established by law would therefore be required under Article 6. There must be a serious question as to whether Parliament itself would be regarded as such a tribunal. The issue has not been determined by the European Court, but in Demicoli, the Commission took the view that the Maltese Parliament failed the requirements of both independence and impartiality: the former because the House would itself be acting as prosecutor and judge; the latter because the House passed a resolution during the proceedings deeming D's conduct to have constituted a breach of its privileges.

  48.  The European Court decided the matter on the narrow basis that impartiality was wanting because the two MPs who raised the issue of breach in the House participated in the proceedings throughout. The Court thus did not find it necessary to consider the broader questions addressed by the Commission.

  49.  Even if Parliament were to be considered independent and impartial, it would in our opinion run a significant risk of contravening Article 6 in its procedure for examination of allegations of contempt. Such matters are normally referred to the Committee of Privileges, which does not seek to act like a court of law, does not hear counsel and usually does not permit those under investigation to be legally represented. This prima facie breaches Article 6(3) ECHR, which sets out certain minimum procedural rights in relation to the hearing of criminal charges.

  50.  As a distinct matter, if Parliament were minded to pass a sentence of imprisonment in such a case, the right to liberty in Article 5 ECHR may be similarly employed. Article 5(1)(a) prohibits the deprivation of liberty save following conviction by a competent court. For the reasons outlined above, Parliament would, in our opinion, be unlikely to constitute a competent court under Article 5.

  51.  Parliament's coercive powers may also give rise to conflicts with other Convention rights. For example, both the United Grand Lodge of Freemasons, and those Masons whose names were demanded by Parliament, would undoubtedly attempt to utilise Article 8(1) if they chose to oppose such a demand.

IV.  CONCLUSION

  52.  This Joint Opinion has sought to explain briefly the ways in which conflicts between parliamentary privilege and Convention rights may arise under the Human Rights Act, notwithstanding clause 6(3) of the Bill, and to indicate in outline some of the most obvious examples of potential conflicts between the two. The examples we have given are intended as illustrative of the types of circumstances in which conflict may arise; they do not, of course, purport to be exhaustive.

  53.  To the extent that clause 6(3) of the Bill will prevent conflicts arising directly, it should be borne in mind that the UK will remain liable in Strasbourg for any violations of Convention rights resulting from the unjustifiable exercise of parliamentary privilege. We are sure that the Joint Committee will take the opportunity to recommend reforms of the law and practice on parliamentary privilege so as to minimise the likelihood of such conflicts arising between Convention rights and the necessary protection of privilege which is essential to the proper functioning of the democratic process.

Murray Hunt

Chris Gelber

25 March 1998