What constitutes privilege

12.1Parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute.

Certain rights and immunities such as freedom from arrest or freedom of speech are exercised primarily by individual Members of each House. They exist in order to allow Members of each House to contribute effectively to the discharge of the functions of their House. Other rights and immunities, such as the power to punish for contempt and the power to regulate its own constitution, belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity.1 Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members.2 The Speaker has ruled that parliamentary privilege is absolute.3

When any of these rights and immunities is disregarded or attacked, the offence is called a breach of privilege and is punishable under the law of Parliament. Each House also claims the right to punish contempts. These are actions which, while not necessarily breaches of any specific privilege, obstruct or impede it in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its Members or its officers. The power to punish for contempt or breach of privilege has been judicially considered to be inherent in each House of Parliament4 not as a necessary incident of the authority and functions of a legislature (as might be argued in respect of certain privileges) but by virtue of their descent from the undivided High Court of Parliament and in right of the lex et consuetudo parliamenti.

Since parliamentary privilege is a means to the collective discharge by each House of Parliament of its functions, occasions have arisen and will continue to arise when one House or the other is content not to insist upon its privileges, either generally or in a particular instance.5

In 1607, the House of Commons gave leave, at his request, for a Member to be sued, a process against which Members were then protected by privilege.6 In current practice, tacit permission is normally given to Members of the Commons to attend a court on a day on which that House sits, though it is equally possible for the Member to insist on the undoubted privilege not to do so (see para 14.10 ). Similarly, though service of a writ within the precincts of Parliament on a sitting day is a contempt (see para 15.11 ), select committees of the Commons have contemplated an application to the House for leave to serve and execute process.7 Both Houses no longer prevent (and indeed arrange for) the publication of debates or proceedings except when these are held in private or publication is prohibited.8

There is, however, an area where such considerations do not arise. Article IX of the Bill of Rights 1689 lays on courts an obligation not to ‘impeach or question’ proceedings in Parliament. The prohibition is statute law and, unless there has been amending legislation, the protection it confers cannot be waived by either House (see para 13.14 ).9 In 1917, a court permitted the examination of what a plaintiff, who was a Member of the House of Commons, had said in Parliament, evidently in an attempt to assess the merits of an argument (which was based on a rebuttal of what had been said in the House) about the extent to which the defendant enjoyed a qualified privilege at law.10 It was subsequently judicially assumed that the court in 1917 considered that it was no more than taking notice of the fact that the speech had been made.11 Certainly, the House of Commons had taken no steps to ‘waive’ any statutory duty—which in any event rests on the courts and not on the House—not to impeach or question proceedings in Parliament. In 1994, the Judicial Committee of the Privy Council implicitly endorsed the contention that the privilege enshrined in the Bill of Rights may be altered only by an amending statute. The committee reversed a conclusion reached by the New Zealand Court of Appeal to the effect that Article IX need not be interpreted so as to exclude the possibility of waiver by a resolution of a legislature to the proceedings of which it applied.12 Since then the Bill of Rights has been judicially recognised as a constitutional statute and as such not amenable to implied repeal.13

Footnotes

  1. 1. In this and the five following chapters, the term ‘privilege’ is used in the sense of fundamental right necessary for the exercise of constitutional functions. The use of the term in the context of the financial powers of the Commons, ie ‘financial privilege’, including rights both against the Crown and against the Lords, is dealt with separately in Chapters 33 to 37.
  2. 2. The Commons asserted in 1675 that privilege existed so that Members might ‘freely attend the public affairs of the House, without disturbance or interruption’ (CJ (1667–87) 342).
  3. 3. HC Deb (23 April 2008) 474, c 1313. The ruling related to the privilege of freedom of speech.
  4. 4. The position of Parliament in the United Kingdom thus differs from that of independent Commonwealth or colonial legislatures, for which see Kielly v Corson (1842) 12 ER 225. That decision was followed by the Privy Council in Fenton v Hampton (1858) 14 ER 727; Doyle v Falconer (1866) 16 ER 293; Barton v Taylor (1886) 11 App Cas 197; and Fielding v Thomas [1896] AC 600; and by the Supreme Court of Canada in Landers v Woodworth (1878) 2 SCR 158, esp 210–12. See also New Brunswick Broadcasting Corpn v Nova Scotia (Speaker of House of Assembly) (1993) 100 DLR (4th) 212, esp 243, 262. The doctrine was accepted that under the common law only such powers are inherent in a legislative assembly as were necessary to its existence, and the proper exercise of its functions and duties as a legislature. Among these necessary powers is the right to order the production of State papers, including those for which legal, professional or public interest immunity might be claimed (Egan v Willis and Cahill (1996) 40 NSWLR 650 and Egan v Chadwick (1999) 46 NSWLR 563 ). Wider power must depend on express grant by statute of constitutional power, as in the case of Victoria (Dill v Murphy (1864) 15 ER 784 ) and New South Wales (Harnett v Crick [1908] AC 470–77 and Armstrong v Budd (1969) 71 SR (NSW) 386 ). However, s 10 of the New Zealand Parliamentary Privilege Act 2014 (c 58) stipulates that ‘In determining under subsection (1) whether words are spoken or acts are done for purposes of or incidental to the transacting of the business of the House or of a committee, no necessity test is required or permitted to be used.’
  5. 5. In 1831, in the case of Wellesley v Duke of Beaufort (Mr Long Wellesley's case) (1831) 39 ER 538, Lord Brougham LC observed that ‘if a court of law or equity … entertains an opinion that a Member of either House of Parliament has privilege of Parliament, that court is … bound to give him the benefit of the privilege, and to give it to him with all its incidents’. This, his Lordship added, would be true even if a claim to the privilege had actually been abandoned by Parliament, because the court had no means of knowing judicially, short of a statute, what Parliament had decided (at 544). But no subsequent judicial authority seems to have followed Brougham's view in its entirety.
  6. 6. CJ (1547–1628) 378. The decision was relatively soon regarded as significant, since it gained a place in Henry Scobell's Memorials (1656), p 95. Cf a case in 1559, where the House divided on whether a Member in outlawry should—as would normally have been the case—have privilege (CJ (1547–1638) 55).
  7. 7. For example, Committee of Privileges, First Report, HC 31 (1945–46) p vii. No such application seems, however, to have been made.
  8. 8. CJ (1970–71) 548: and see paras 13.3–13.5.
  9. 9. It was held by Lord Hatherley LC in Duke of Newcastle v Morris (1870) LR 4 HL 661 that a privilege of Parliament, established by common law and recognised by statute, should not be abrogated except by express words in a statute.
  10. 10. Adam v Ward [1917] AC 309, commented on in Prebble v Television New Zealand Ltd [1995] 1 AC 321 at 335–36, [1994] 3 All ER 407 at 416–17 per Lord Browne-Wilkinson.
  11. 11. Lord Dunedin LJ, however, explicitly recognised that absolute privilege attached to speeches in the House of Commons ‘for motives of high public policy’; but he added that it was not right that such privilege, intended to safeguard liberty of discussion, should be turned into ‘an abominable instrument of oppression’ (Adam v Ward [1917] AC 324 ).
  12. 12. Prebble v Television New Zealand Ltd [1995] 1 AC 321, [1994] 3 All ER 407. Both the New Zealand House of Representatives and its Privileges Committee had come to the conclusion reflected in the Privy Council's judgment (New Zealand Debates, vol 536, pp 16191–95, and Interim Report of the New Zealand Privileges Committee, 1991–93). For the reasoning of the New Zealand Court of Appeal in a contrary sense, see Television New Zealand Ltd v Prebble (1993) 3 NZLR 513, esp 520–21.
  13. 13. See Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151, [2002] 3 WLR 247 for discussion of implied repeal of constitutional statutes.