Freedom of speech

12.4The first claim in the Speaker's petition, and regarded as the most significant, is for freedom of speech in debate. By the latter part of the fifteenth century,1 the Commons of England seems to have enjoyed an undefined right to freedom of speech, as a matter of tradition rather than by virtue of a privilege sought and obtained. Earlier Speakers made no claim for such a privilege but instead to favourable construction of their remarks and those of the House.2

The earliest evidence of a shift of emphasis away from reliance on traditional assumptions and attempts to avoid the visitation of royal displeasure on the Speaker, and towards a distinct claim of privilege for the House, appears to be the petition of Speaker Sir Thomas More in 1523, asking Henry VIII ‘to take all in good part, interpreting every man's words, how uncunningly soever they may be couched, to proceed yeat of a good zeale towardes the profitt of your Realme’. More's plea may or may not have been answered,3 and what was sought in the immediately following Parliaments is not clear. By the first Parliament of Elizabeth I, however, a claim for freedom of speech in debate was certainly made,4 and in 1563 it was justified as ‘according to the old antient order’.5 Though no claim appears to have been made in 1566, by the end of the century the practice had become regular.

Although it was recognised that freedom of speech was important and the Crown ought not to act against a Member directly for something said in the House, it seems to have been common ground that decorum and obedience to the Sovereign's wishes ought to be respected. Just as the House increased its ability to protect its Members from arrest and molestation, so it was frequently ready to take punitive action, without waiting for the Crown or Council, against those who overstepped the mark in debate.6 There was much in these views with which the Crown agreed. Lord Keeper Sir Edward Coke emphasised the executive's view in 1593 when he reminded the Speaker that:

‘Her Majesty granteth you liberal but not licentious speech, liberty therefore but with due limitation … To say yea or no to bills, God forbid that any man should be restrained or afraid to answer according to his best liking … which is the very true liberty of the House; not, as some suppose, to speak there of all causes as him listeth … No King fit for his state will suffer such absurdities.’7

Much of what was unresolved under Elizabeth remained debatable in the years before the civil war, though under Charles I the acuteness of successive political crises diminished the likelihood of resolution. Those who took the view that the basis of freedom of speech was inherent argued in the Apology of 1604 that it was erroneous to believe that the House's privileges were ‘of grace only, renewed every Parliament … upon petition and so to be limited’. The view was expressed in Committee on the Commons petition in 1610 that freedom of speech ‘could not well be taken from us without shaking the foundations of the liberties of Parliament’. In 1621, James VI and I challenged these assumptions. Privileges, he said, ‘were derived from the grace and permission of our ancestors and us’. To this the House rejoined:

‘that every Member of the House of Commons hath and of right ought to have freedom of speech … and … like freedom from all impeachment, imprisonment and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning or declaring of any matter or matters touching the Parliament or parliament business.’

The Protestation of 1621 had much in common with Elizabethan views, not least because it explicitly contemplated the reference to the king of anything questioned or complained of in Parliament, provided it was ‘with the advice and assent of all the Commons’.8

The actions of Charles I appeared to challenge this tradition, particularly when in 1629 Sir John Eliot and two other Members were arrested and found guilty in King's Bench of seditious words spoken in debate and for violence against the Speaker, who had been physically restrained in the Chair in order to delay the adjournment of the House. Among the Crown's arguments were the contentions that parliamentary privilege did not protect seditious comments in the Chamber, and that King's Bench could properly take note of day-to-day events in the High Court of Parliament, such as the assault on the Speaker.9

By the time of the final breakdown in the early 1640s, the House had in practice bypassed Elizabethan conventions which denied Members the initiative in debate on great matters of State, and the limits of what was unacceptable in criticism of the Government had been drastically narrowed.

When the 11 years of Charles I's personal rule came to an end, the attention of the Commons returned to free speech and the events of 1629. Consequently, in 1641, as the political relationship between Parliament and the King was on the verge of breakdown, the arrests of Eliot and the others were declared to be contrary to the law and privilege of Parliament.10 It is apparent that on the return of the Stuarts from exile in 1660, not only was Parliament anxious to preserve at least some of what had been gained in the years of the Republic and the Commonwealth but that the arrests of 1629 still rankled in some quarters. A bill for maintaining and confirming the rights and privileges of Parliament was read for the first time in the Commons within months of the re-establishment of the monarchy. Much of its purpose was of course to emphasise the illegality of the way the Commons had been treated in the 1640s and 1650s, but it also made the clear statement that ‘the Parliaments of England and the Members thereof shall forever hereafter fully and freely enjoy all their ancient and just rights and privileges in as ample a manner as … formerly’.11 The following year, the Treason and Seditious Practices Act repeated in statutory form the claim to freedom of speech in debate.12 In 1667, a Commons committee was nominated to review the issue of freedom of speech, and in particular the case of the arrests, then nearly 40 years in the past. The Commons declared that the Court of King's Bench should not have accepted jurisdiction in the cases of Eliot and the others, and that the judgment was illegal and against the privileges of Parliament.13 The Lords then took up the cause. One of those arrested in 1629, by then a peer, successfully moved to reverse the judgment.14

Though the decision of a court had been overturned, there remained the possibility of direct royal intervention in debate, in response to what Charles II or James II deemed politically unacceptable. In the event, such a threat failed to materialise.15 Nevertheless, when in the revolutionary circumstances of 1688–89 the constitutional initiative passed to Parliament, the opportunity was taken to repeat in the fullest form the claim to freedom of speech, and to protect its status by grounding it in statute, secure from royal interference in or through the courts. The assertion in Article IX of the Bill of Rights that freedom of speech and debates and proceedings in Parliament are not to be ‘impeached or questioned in any court or place out of Parliament’ was intended to stifle both the courts and the Crown.16

Chapter 13 will illustrate the elaboration in practice of the principles confirmed in 1689.

Footnotes

  1. 1. Earlier cases indicating the establishment of a distinct privilege of freedom of speech in debate seem inconclusive. The first possibility is Haxey's case (1396–97) (Rot Parl iii, 339, 341, 407, 430, 434). The fact that Haxey was not a Member of the House must alter the significance of the grounds on which the House petitioned that judgment against him should be reversed, namely the ‘Libertes de lez ditz Communes’. The petition of Younge (a Member) in 1455, that he should be compensated for having suffered for a speech he made in the House, a punishment meted out contrary to ‘the olde liberte and fredom of the Comyns of this land … to speke and sey in the House … without any maner [of] chalenge, charge or punicion’, should be considered in the light of the fact that he was asking a Yorkist Parliament to compensate him for the effects of an untimely and unwelcome political proposal made to its Lancastrian predecessor. Finally, the case of Strode in 1513, who was punished in the Stannary Court for having proposed in Parliament measures to regulate Cornish tinners, is of limited significance, despite its popularity in the early seventeenth century. The statute which voided the proceedings and sanctions against Strode bore similarly, it is true, on other suits against Members of that or future Parliaments ‘for any bill, speaking or declaring of any matter concerning the Parliament’. But this can hardly be a manifesto directed at the most likely source of a limitation on freedom of debate, Henry VIII; nor was it probably intended to be such. A committee of the Commons concluded in 1667 that Strode's Act was:
    ‘general law extending to indemnify all and every the Members of both Houses of Parliament in all Parliaments, for and touching any bills, speaking, reasoning or declaring of any matters in or concerning the Parliament to be communed and treated of; and is declaratory … law of the ancient and necessary rights and privileges of Parliament.’
    This is, however, a political understanding some century and a half after the event (CJ (1667–87) 19). What the case did undoubtedly establish was the privileged position of the Commons against inferior courts, as a full partner in Parliament. For comments on the cases mentioned, see Erskine May (20th edn, 1983), pp 78–79; and see also Sir John Neale ‘The Commons Privilege of Free Speech in Parliament’ in eds E B Fryde and Edward Miller Historical Studies of the English Parliament (1970) vol 2, p 147 ff, and G R Elton The Tudor Constitution (1982), p 260 ff.
  2. 2. See eg the claim made by Mr Speaker Cheney in 1399, 3 Rot Parl 424, 425.
  3. 3. See G R Elton The Parliament of England, 1559–81 (1986), pp 331, 341–49.
  4. 4. CJ (1547–1628) 37.
  5. 5. D'Ewes 66.
  6. 6. Elton The Parliament of England, 1559–81 (1986), pp 342–49.
  7. 7. Elton The Tudor Constitution (1982), p 274.
  8. 8. See J P Kenyon The Stuart Constitution (1986), pp 24–27, 38–42.
  9. 9. R v Eliot, Holles and Valentine (1629) 3 State Tr 293–336, esp 309–10. In R v Chaytor [2010] UKSC 52, [2011] 1 AC 684, [2011] 1 All ER 805 Lord Philips remarked that Eliot established that nothing said in Parliament by a Member as such could be treated as an offence by the ordinary courts, but that the House of Lords ‘had carefully avoided the question’ of whether the court could try a Member for an assault on the Speaker in the House, see para 11.18.
  10. 10. CJ (1640–42) 203; 3 State Tr 294.
  11. 11. CJ (1660–67) 42, 49, 80. Despite several reminders from the Commons, the Lords failed to return the bill before the end of the session (ibid 201).
  12. 12. 1661, c 1. The Act included a proviso that its main provisions should not deny Members of either House ‘their just ancient freedom and privilege in debating any matters or business which shall be propounded or debated’.
  13. 13. CJ (1667–87) 3, 19, 25.
  14. 14. LJ (1666–75) 166, 223; 3 State Tr 331–33.
  15. 15. It is, however, relevant to note the action taken in King's Bench in 1684–85 against Speaker Sir William Williams for licensing, in 1680 and on the order of the House of Commons, a pamphlet critical of the Duke of York, later James VII and II. Counsel for the Speaker argued that the court had no jurisdiction over the proceedings of the Commons, of which Williams' actions formed part. The court, however, found the publication a seditious libel, and went on to punish the former Speaker for his part in its publication (13 State Tr 1370 ff). The Commons subsequently declared the judgment to have been illegal and against the freedom of Parliament (CJ (1688–93) 215)—like that against Eliot—though it was never reversed. Lord Denman was to observe later that:
    ‘R v Williams was ill decided, because he—(the defendant)—was questioned for what he did by order of the House within the walls of Parliament. R v Dangerfield— the individual who sold the offending pamphlet—is undoubted law, because he sold and published beyond the walls of Parliament, under an order to do what was unlawful’
    (Stockdale v Hansard (1839) 112 ER 1112 ).
  16. 16. The inclusion of the phrase ‘proceedings in Parliament’ as well as ‘freedom of speech and debates’ among those things protected by the Bill of Rights may reflect this distinction between direct royal interference with the business of Parliament, and indirect harassment of Members through the courts for what they had said in the House.