Parliamentary privilege

[KALKI]

Parliamentary privilege


Parliamentary privilege refers to the special protection from interference outside of Parliament and the rights of the Houses of Parliament (namely, the House of Lords and the House of Commons). Within the British constitution, the vast majority of these special rights and immunities are only enjoyed by Members of Parliament and cannot be claimed by ordinary members of the public, effectively placing MPs in a more privileged position above ordinary citizens. If an MP claims privilege, it is Parliament, and not the courts, who must determine whether a particular privilege affords protection from interference outside Parliament. In other words, Parliament regulates it own privileges. It can even imprison those who interfere with its privileges.

Origins of Parliamentary Privilege
Parliamentary privilege dates back to 12th century Medieval England. The monarch, as ‘the fountain of justice’, had to be able to say and do whatever he wanted without being questioned by his citizens, or even his own advisers. In order to do this, he reserved himself certain rights and immunities, such as protection against arrest or molestation.

When the High Court of Parliament was introduced into the English legal system in the late 12th century, the monarch exercised absolute power over it, and did so up until the 17th century. However during this time, Parliament claimed certain rights and immunities for itself as protection from the Monarch, such as freedom from arrest and freedom of speech. As early as 1404, freedom from arrest covered arrest for debts, in contract and for trespass. Freedom of speech provided Members of the Commons with the limited right to pass comments about the monarch or other constitutional matters without impunity.

In the 17th century, Parliament challenged the power of the then monarch, (Charles I) to impose taxation to cover the cost of war. In the face of this challenge, the King imprisoned those refusing to pay, causing Members of the Commons to petition the King, (in the form of the Petition of Right 1628) complaining of taxation without the consent of Parliament, and requested a writ of habeas corpus to release those unjustly imprisoned. Conflict between the King and Parliament continued up until 1688. In 1688, faced with continued unconstitutional behaviour by the then monarch (James II), England revolted against the rule of the King (in what is known as the ‘glorious revolution’) and following the downfall of James II, the Bill of Rights 1689 was enacted. The Bill of Rights provided, among other things, that the King could not suspend laws and impose tax without the consent of Parliament. More importantly, it secured greater powers for Parliament and confirmed the right of freedom of speech.


The Courts and Privilege
Historically, the courts have conflicted with the House of Commons over the exercise of its privileges.

The result of these struggles ended in the courts accepting that they have no jurisdiction to interfere with parliamentary procedures. In the first of these cases, Ashby v White (1703) 2 Ld Raym 938, the Mayor of Aylesbury wrongfully refused to allow a constituent to vote. The constituent sued and won damages. The House of Commons objected to the involvement of a court because at that time, it had exclusive power to hear disputed election matters.

The Commons claimed interference with its privilege and imprisoned the constituent, along with other constituents who had sued in similar circumstances. Subsequently, in Paty’s Case (1704) 2 Ld Raym 1105 the constituents imprisoned in Ashby v White brought an action for the writ of habeas corpus. This time, the court refused to challenge the Commons, and refused to grant the writ.

Then in 1839, the courts made a further challenge in the case of Stockdale v Hansard (1839) 9 Ad & El.1. On the orders of the Commons, Hansard published a report by prison inspectors.

The report alleged improper books published by Stockdale were circulating in Newgate Prison. Stockdale sued Hansard for defamation. Hansard claimed that as the report was ordered by the Commons, he was covered by parliamentary privilege. The court held the report was not covered by privilege and defiantly stated the Commons could not prevent the courts from protecting the rights of individuals.

The court ordered the Sheriff of Middlesex to recover compensation from Hansard. The Commons in return, ordered that the Sheriff be imprisoned for breaching its privilege and for contempt. As result, the Sheriff applied for a writ of habeas corpus in the Case of the Sheriff of Middlesex (1840) 11 A & E 273. This time, the courts refused to grant the writ and lost ground over the question of the Commons power of detention.

The Parliament Papers Act 1840 subsequently ensured that papers, reports, etc. published outside of Parliament under its authority were covered by absolute privilege.

It is now accepted by the courts that they may not interfere with procedures in Parliament. In Pepper v Hart [1993] 1 All ER 1, the House of Lords had to consider whether the courts could refer to Hansards (the official record of debates and proceedings in Parliament) when interpreting statutes. It was argued that the courts could not because this would amount to the courts questioning proceedings in Parliament, contrary to Article 9 of the Bill of Rights. This was rejected.

Lord Templeman felt that reference to Hansards involved no questioning of Parliament, it was necessary only to clarify what Parliament intended. A different approach was taken by the Privy Council in Prebble v Television New Zealand Ltd [1994] 3 WLR 970 in which the Privy Council ruled that to allow parliamentary papers to be examined by a court without the waiver of privilege by the New Zealand House of Representatives, would be contrary to Article 9.


Privilege and the House of Commons
The House of Commons continues to claim their ancient rights and privileges from the Crown at the opening of each Parliament, such as freedom from arrest, freedom of speech and freedom of access to the Crown. The Commons also has the right to control and initiate finance legislation. The main privileges will be considered below.

Freedom from arrest.
Members of the Commons are protected from arrest in civil proceedings for a period of 40 days before the opening of a Parliamentary Session and 40 days after the end of the Session. There is no similar freedom from arrest in criminal proceedings. This privilege used to be important to Members of the Commons, particularly when imprisonment was a penalty in civil actions, i.e., debts. However, imprisonment for civil debts has been abolished. Imprisonment is still available for the non-payment of maintenance during marriage, on divorce and for children born outside the marriage, notwithstanding a recommendation by the Committee on Parliamentary Privilege in 1967 that privilege should be abolished in this situation.

Freedom of speech.
Today, this remains the most fundamental privilege for Members of the Commons. Article 9 of the Bill of Rights 1689 provides

“freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.
This means that while Members of the Commons are involved in debates or proceedings within the precincts of Parliament, they may pass any comment they wish about any person. The comment may contain a defamatory or damaging statement, it may even be false.

Yet the courts have no jurisdiction to deal with the matter. If the matter does get beyond the various Parliament Committees and end up in court, the courts may only determine whether or not the matter is covered by privilege. For example, in Church of Scientology v Johnson-Smith [1972] 1 QB 522, an MP was sued over remarks he made about the Church of Scientology on television. In order to show malice on his part (required to prove defamation), the Church relied on malicious speeches he had made about it in Parliament.

The court held, that the speeches made in Parliament were absolutely privileged and could not be used as evidence in the present case, even to support a claim of defamation arising outside of Parliament.
The words “proceedings in Parliament” have been interpreted widely. They include debates and questions raised on the floor of the House, as well as comments made during Standing or Select Committee meetings or other committees. They also include things said or done in either House whilst carrying out parliamentary business.

Grey areas. There are grey areas which may or may not fall within the scope of ‘proceedings in Parliament’ as follows:


if a Member of the Commons speaks to another Member or a Minister about a parliamentary matter, but both are outside the boundaries of Parliament, will privilege still apply? In Duncan Sandy’s case 1938, Sandy, an MP sent a draft Parliamentary Question to a government Minister, the Secretary of State for War. The Question quoted highlights figures pointing to a shortage of military equipment. The War Office regarded this disclosure as a breach of the Official Secrets Acts. Sandy refused to reveal where he got the information from and was threatened with prosecution for breach of privilege. The matter was heard by a parliamentary Select Committee. The Committee pointed out that:

“words spoken or things done by a Member beyond the walls of Parliament will generally not be protected. Cases may, however, easily be imagined of communications between one Member and another, or between a Member and a Minister, so closely related to some matter pending in, or expected to be brought before, the House, that though they do not take place in the chamber or a committee room they form part of the business of the House, as, for example, where a Member sends to a Minister the draft of the Question he is thinking of putting down”, (Report from the Select Committee on the Official Secrets Act, 1938-39, HC 146).
The Committee ruled that this was a situation in which privilege would apply.

What about letters containing comments which are potentially defamatory, are they covered by privilege? In the Strauss case 1958 HC 305 (1956-57), Strauss, an MP forwarded a letter from a constitute to the Minister responsible for the electricity industry. The letter contained criticisms about the way in which the London Electricity Board (LEB) disposed of scrap cable. The Minister passed this letter to the LEB, who threatened to sue Strauss for defamation. Strauss claimed he was carrying out a parliamentary duty and as such, covered by privilege, so the threat by the LEB amounted to a breach of privilege. The matter was heard by the parliamentary Committee of Privileges, who had to decide whether privilege applied and whether the letter fell within the meaning of ‘proceedings in Parliament’. The Committee decided the letter did fall within proceedings in Parliament and therefore privilege applied. The LEB was ruled to be in breach of privilege, but it subsequently withdrew its threat to sue Strauss, and was later found not guilty.

What about private conversations or written correspondence held within the precincts of Parliament about things unconnected with parliamentary business? In Rivilin v Bilainkin [1953] 1 QB 485, an MP defamed his former wife in a letter. He delivered one letter by hand to an MP in the House of Commons and posted 4 others in the Commons’ post office to MPs in the Commons. In an action for defamation, he argued he was protected by privilege because the defamatory remarks were made within the precincts of Parliament, so the courts had no jurisdiction to hear the matter. The court held that privilege did not arise as the letter was in no way connected with any proceedings in Parliament.

It could be argued that the Strauss case should have been decided the same way as Rivilin. There was no direct evidence that the letter from his constituent involved a parliamentary matter. It contained a grievance (about a particular operation of the LEB) which was potentially defamatory. However now, s.10(5) of the Parliamentary Commissioner Act 1967 provides that where communications between constituents and MPs fall within the jurisdiction of the Parliamentary Commissioner, they are covered by absolute privilege, (although the Act leaves unclear when such communications fall within his jurisdiction).

The right to regulate its own proceedings. This means the courts cannot interfere with the internal operation of the House of Commons. No one can interfere with the Commons’ right to regulate its own composition and internal procedures. Case such as Bradlaugh v Gosset (1884) 12 QBD 271, (in which the QBD held that it had no jurisdiction to interfere with the internal regulation of Parliament) and British Railway Board v Pickin [1974] AC 765 (in which the House of Lords acknowledged that the courts could not look behind the process of the passage of an Act of Parliament), illustrate the point perfectly.

Power to punish breach of privilege and contempt. This gives the Commons the power to punish both Members of the House and outsiders (such as the Press) for interference with the exercise of its privileges. The power also arises against those whose act or omissions fail to respect the House or interferes with any Member of the House in the discharge of their duty, (known as ‘contempt’), see Strauss in Section 3.ii above. The House can order the offender to be warned by the Speaker.
It can suspend or expel Members or dismiss its own officials. If guilty of contempt, the offender can be put into the of custody of officers of the House or put in prison, only up until the end of the parliamentary session, see Sheriff of Middlesex.


Privilege and the House of Lords
The Lords share the above privileges with the Commons, although privilege is raised infrequently in the Lords. Freedom from arrest protects Members of the Lords from civil arrest at all times. For example, in Stourton v Stourton [1963] P 302 a Member of the House of Lords avoided imprisonment for non-payment of maintenance. There is no similar protection from criminal arrest. Freedom of speech is the same as that enjoyed by the Commons. Freedom of access to the Crown exists for the Lords as a collective, and each individual Member. The Lords may also imprison an offender for breach of its privilege and unlike the Commons, the term of imprisonment need not come to an end at the end of the parliamentary session.


Absolute and Qualified Privilege
In the law of tort, privilege is a defence to a claim of defamation. In this respect, there are 2 kinds of privilege. Absolute privilege refers to statements, reports, papers, etc., made by Members of both Houses of Parliament concerning parliamentary business. As we have seen, things said or done in Parliament are covered by privilege and cannot be challenged by the courts, no matter how malicious or false.

Absolute privilege also applies to statement made during legal proceedings in court by judges, the jury, barristers/solicitors and witnesses, and to communications between senior public officers in the course of their duties.

Absolute privilege therefore provides a total or absolute defence to an action of defamation, (see Church of Scientology v Johnson-Smith, Section 3. above).

Qualified privilege on the other hand provides less of a blanket cover from prosecution. It provides a defence to defamation, in certain situations, provided the statement, correspondence or comment is made honestly, reasonably, and without malice. Any hint of malice will render the defence inoperable. Situations in which qualified privilege may be claimed include:


professional communications between solicitor and client;
fair and accurate reporting of Parliamentary proceedings by the media, Cook v Alexander [1974] QB 279 ;
fair and accurate reports of public judicial proceedings;
fair and accurate newspaper reports on public matters;
fair statements of complaint to a body of the State, i.e., petitions to Parliament.