Privilege

Jefferson wrote in his Manual - which is one of the fundamental source materials for procedure in the House of Representatives -

"The privileges of the members of Parliament, from small and obscure beginnings, have been advancing for centuries, with a firm and never yielding pace. Claims seem to have been brought forward from time to time, and repeated, till some example of their admission enabled them to build law on that example. We can only therefore state the point of progression at which they now are. It is now acknowledged,

1. That they are at all times exempted from question elsewhere for any thing said in their own house; that during the time of privilege,
2. Neither a member himself, his wife, or his servants, (familiares sui) for any matter of their own, may be arrested, on mesne process, in any civil suit:
3. Nor be detained under execution, though levied before time of privilege:
4. Nor impleaded, cited, or subpoenaed in any court:
5. Nor summoned as a witness or juror:
6. Nor may their lands or goods be distrained:
7. Nor their persons assaulted, or characters traduced.

And the period of time covered by privilege, before and after the session, with the practice of short prorogations under the connivance of the crown, amounts in fact to a perpetual protection against the course of justice. In one instance, indeed, it has been relaxed by the 10. G. 3. c. 50, which permits judiciary proceedings to go on against them. That these privileges must be continually progressive, seems to result from their rejecting all definition of them; the doctrine being that "their dignity and independence are preserved by keeping their privileges indefinite;" and that "the maxims upon which they proceed, together with the method of proceeding, rest entirely in their own breast, and are not defined and ascertained by any particular stated laws." 1. Blackst. 163. 164.

It was probably from this view of the encroaching character of privilege, that the framers of our constitution, in their care to provide that the laws shall bind equally on all, and especially that those who make them shall not exempt themselves from their operation, have only privileged "Senators and Representatives" themselves from the single act of "arrest in all cases, except treason, felony and breach of the peace, during their attendance at the session of their respective Houses, and in going to and returning from the same, and from being questioned in any other place for any speech or debate in either House." Const. U.S. Art. 1. Sec. 6.

Under the general authority "to make all laws necessary and proper for carrying into execution the powers given them," Const. U.S. Art. 2. Sec. 8., they may provide by law the details which may be necessary for giving full effect to the enjoyment of this privilege. No such law being as yet made, it seems to stand at present on the following ground: 1. The act of arrest is void ab initio. 2. The member arrested may be discharged on motion. 1. Bl. 166. 2. Stra. 990, or by Habeas Corpus under the federal or state authority, as the case may be; or by a writ of privilege out of the Chancery, 2 Stra. 989, in those states which have adopted that part of the laws of England. Orders of the H. of Commons. 1550. February 20. 3. The arrest, being unlawful, is a trespass, for which the officer and others concerned are liable to action or indictment in the ordinary courts of justice, as in other cases of unauthorised arrest. 4. The court before which the process is returnable, is bound to act as in other cases of unauthorised proceeding, and liable also, as in other similar cases, to have their proceedings staid or corrected by the superior courts."

A Joint Committee of the House of Commons & House of Lords reported on Parliamentary Privilege in 1999. The full report is accessible here. The Executive Summary gives a useful overview of the subject -

Parliament makes the law and raises taxes. It is also the place where ministers are called to account by representatives of the whole nation for their decisions and their expenditure of public money. Grievances, great and small, can be aired, regardless of the power or wealth of those criticised.

In order to carry out these public duties without fear or favour, Parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts. Members need to be able to speak freely, uninhibited by possible defamation claims. These rights and immunities, rooted in this country's constitutional history, are known as parliamentary privilege.

Despite its ancient origins, parliamentary privilege must meet the current needs of Parliament, and must do so in a way acceptable today as fair and reasonable. The Joint Committee was set up by both Houses of Parliament to review the whole subject. The touchstone applied by the Joint Committee was that Parliament should be vigilant to retain necessary rights and immunities, and equally rigorous in discarding all others.

Freedom of speech is guaranteed by article 9 of the Bill of Rights 1689: `freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament'. It is the single most important parliamentary privilege. Article 9 affords legal immunity (`ought not to be questioned') to members for what they say or do in `proceedings in Parliament'. The immunity applies in `any court or place out of Parliament'.

This legal immunity is comprehensive and absolute. Article 9 should therefore be confined to activities justifying such a high degree of protection, and its boundaries should be clear.The scope of article 9 has been the subject of two recent developments in the courts. In 1993 the courts decided (in a case called Pepper v Hart) that when interpreting ambiguous statutes the courts may look at ministerial statements made in Parliament during the passage of the Bill through Parliament. The courts have also established a practice of examining ministerial statements made in Parliament in another circumstance, namely, when considering challenges by way of judicial review to the lawfulness of ministers' decisions. These are beneficial developments, but they should not lead to any general weakening of the prohibition contained in article 9.

Article 9 caused difficulty when a member was defamed outside Parliament regarding the manner in which he carried out his parliamentary duties. The truth of the defamatory allegations could not be decided in court when this would involve examining parliamentary proceedings. Unlike any other citizen, the member was unable to clear his name. Section 13 of the Defamation Act 1996 was passed to remedy this situation. This section enables a person to waive parliamentary privilege so far as he is concerned, for the purpose of defamation proceedings. Section 13 has been much criticised: it could be unworkable in some cases, it is anomalous in applying only to defamation proceedings, and it suffers from the flaw of undermining the basic principle that freedom of speech is the privilege of the House as a whole and not of the individual member.

The Joint Committee recommends that section 13 should be replaced with a new statutory provision enabling the House, and not any individual, to waive the privilege in court proceedings. Waiver would apply to all court proceedings, whether relating to defamation or any other matter, provided there is no question of the person who made the statement in Parliament being exposed in consequence to a risk of legal liability. This power of waiver would also resolve the difficulty currently confronting Parliament when Parliament itself becomes involved through its corporate officers in court proceedings relating to contractual disputes.

The traditional view of article 9 as a blanket prohibition on examination of parliamentary proceedings in court, should be confirmed, subject to specific and limited exceptions for court proceedings (1) so far as they relate to interpretation of a statute or subordinate legislation, or the judicial review of, or the consequences of, government decisions, (2) where there is no suggestion that anything forming part of the parliamentary proceedings was inspired by an improper motive or was untrue or misleading, and (3) when the House waives privilege.
The meaning of `proceedings in Parliament' and `place out of Parliament' should be clarified and defined. Article 9 protects activities that are recognisably part of the formal collegiate activities of Parliament. Constituency correspondence does not fall within this description and should not be brought within the protection of article 9. The registers of members' financial interests should form part of parliamentary proceedings, despite a recent court decision to the contrary.

Legislation should also confirm that the laws of Scotland and Northern Ireland are the same
as the law of England and Wales on this subject, and that the other rights and immunities of Parliament, its members and officers under the law of England and Wales are likewise applicable throughout the United Kingdom.

The Government is proposing to introduce modern criminal legislation on bribery and corruption. The Joint Committee investigated whether Parliament should continue to be self-regulating in this regard and, if not, various ways this legislation might be applied to members of Parliament. These included: (1) members being liable to criminal prosecution in the courts, (2) a system of part self-regulation, part criminal prosecution, with serious cases dealt with by the courts, and less serious ones by Parliament, (3) criminal prosecution of members being subject to approval by the House, and (4) criminal investigations or prosecutions being subject to parliamentary sifting.

The Joint Committee concluded that corruption, a serious and insidious offence, can only be dealt with effectively by using the police and the courts. Prosecution through the courts is the only credible remedy. It is also the only credible deterrent for any briber. This will involve only a minimal encroachment upon the territory safeguarded by article 9. The Joint Committee is confident there are very few instances of corruption involving members of Parliament. The occasions when a court will be called upon to question a parliamentary proceeding will be rare.

The proposed bribery legislation will expose members of Parliament and other public figures to a high risk of vexatious allegations or private prosecutions. Accordingly, prosecution under the new legislation should require the consent of the Attorney General or the Lord Advocate. In order to prevent abuse, freedom of speech is subject to self-regulation by Parliament. By the sub judice rule Parliament ensures that court proceedings are not prejudiced by discussion in Parliament. The Chair in the House of Commons has wide discretionary powers, and is rightly vigilant to enforce the rule and relax it only in exceptional circumstances. The rule in the two Houses should be harmonised and modified in certain minor respects. Formal restrictions should not be introduced in respect of statements or disclosures in Parliament which are made in breach of court `no publicity' orders or the official secrets legislation. An advisory guide should be produced by each House to assist members, especially new members, on the rules and conventions regarding the conduct of debate and the exercise of freedom of speech.

The Joint Committee considered a `right of reply' scheme for members of the public who feel they have been unfairly criticised or even defamed, but decided against it. Such a scheme would raise expectations it could not fulfil because it would not establish the truth or falsity of the criticism, no financial redress would be forthcoming, and a statement published in Hansard would not necessarily attract publicity matching the original comments.
Freedom of speech is one facet of the broader principle that what happens within Parliament is a matter for control by Parliament alone. This principle, of control by Parliament of its affairs free from interference by the courts, often called `exclusive cognisance', consists of a collection of related rights and immunities. Each House has the right to judge the lawfulness of its own proceedings. Each House has the right to institute inquiries and require the attendance of witnesses and the production of documents. The Joint Committee considers that witnesses should be informed in advance of the powers of the House and their own rights. The procedure committees of each House should review the convention that one House does not compel the attendance of a member of the other House before its committees. It is important that former ministers elevated to the House of Lords should attend select committees in the House of Commons to answer questions about their periods in office.

The right of each House to administer its internal affairs within its precincts should be confined to activities directly and closely related to proceedings in Parliament. Parliament should no longer be a statute-free zone in respect of Acts of Parliament relating to matters such as health and safety and data protection. In future, when Parliament is to be exempt, a reasoned case should be made out and debated as the legislation proceeds through parliament.

Parliament's disciplinary and penal powers are part of the control exercised by Parliament over parliamentary affairs. Conduct, whether of a member or non-member, which improperly interferes with the performance by either House of its functions, or the performance by members or officers of their duties, is a contempt of Parliament. Contempt should be statutorily defined. The penal sanctions make it particularly important that the scope of contempt should be clear and readily understood. Imprisonment as a penalty for contempt, not used for many years, should be abolished, save that each House should keep its power to detain for short periods persons who misconduct themselves in the House or its precincts. In lieu there should be power to fine.

Each House should retain its jurisdiction over its own members. The power of the House of Lords to suspend its members should be clarified and confirmed. The disciplinary procedures of both Houses should be revised to bring them into line with contemporary standards of fairness, including rights guaranteed by the European Convention of Human Rights. Any decision involving a penalty should remain the decision of the whole House, but the House should not have power to increase the penalty above that recommended in the report of the committee to the House.

Parliament's jurisdiction over contempts committed by non-members should be transferred to the courts. Parliament should retain a residual jurisdiction, including power to admonish in non-contentious cases. Wilful failure to attend committee proceedings or answer questions or produce documents should be made a criminal offence punishable by a fine of unlimited amount or up to three months' imprisonment. Fairness requires that this should also apply to members in the unlikely event of their committing such an offence.

Freedom from arrest in civil cases should be abolished (it has never applied in criminal cases). So should the obscure privilege of peerage. Members should cease to be exempt from subpoenas to attend court as witnesses, but a subpoena should not be issued against a member without the approval of a judge. Personal service of court documents on members within the precincts of Parliament should remain a contempt, but service by post should not be a contempt.

Papers published by order of either House have absolute privilege under the Parliamentary Papers Act 1840. The extent to which such orders are currently made by the House of Commons conflicts with the principle that absolute privilege should be confined to areas where it is needed. The House of Commons procedure committee should look into this matter. The Act of 1840, expressed in its impenetrable early Victorian style, should be replaced with a modern statute.

The recommendations of the Joint Committee requiring enactment by legislation should be included in a new Parliamentary Privileges Act. These recommendations will stand enactment by themselves, but if so enacted the result will be an uncomfortable mixture of modern statute and ancient learning. Overall statement as a code is the natural next step in a modern presentation of parliamentary privilege. This can be done without loss of flexibility for the future. A code would assist non-members as well as members, because it would enable the ordinary citizen to have access to the privileges of his member of Parliament. Parliament should now take steps to enact such a code.