‘Impeached’ and ‘questioned’

13.11Use of the term ‘impeached’ in the context of the defence of parliamentary freedoms goes at least as far back as the Commons Protestation of 1621, where it appears in a very broad context along with ‘imprisonment … molestation … censure’.1 Whatever its general meaning in the seventeenth century, its modern significance is plainly important and has been the subject of judicial comment. The issue seems to be whether ‘impeached’ and ‘questioned’ are to be understood as inhibiting only the exposure of Members to legal sanctions for what was done or said in the House, or whether the protection goes further.2

In 1974, it was observed by Lord Simon of Glaisdale that in the case then before the court, an attempt to impeach was not possible without also questioning.3 Subsequently, in Pepper v Hart (see para 16.14 ), impeaching was treated as being limited to cases where a Member of Parliament was sought to be made liable, either in criminal or civil proceedings, for what they had said in Parliament, eg by criminal prosecution, by action for defamation, or by seeking to prove malice on the basis of such words.4 It was also held that ‘questioning’ did not extend to an investigation by a court of what a Member—in this case a Minister—meant by the words he used.5 The courts' approach to and understanding of the scope of ‘questioning’ is further considered below (para 13.15 ).

Footnotes

  1. 1. J R Tanner Constitutional Documents of the Reign of James I (1952), p 289.
  2. 2. Reference to proceedings in an attempt to prove a fact without the drawing of inferences (for which see para 16.11 ) has been permitted: see eg Blackshaw v Lord [1984] 1 QB 1. In Allason v Campbell (1996) TLR 279 a copy of the Official Report was produced in court to rebut evidence of fact about what had been said on the floor of the House of Commons. For petitions for leave to refer to proceedings, see para 24.21. Commonwealth courts have permitted references to the Official Report of the legislature in order to prove that a Member was present in the House on a particular day (Amman Aviation Pty Ltd v Commonwealth of Australia (1988) 81 ALR 710, where the court rejected the submission that use of the Official Report for that purpose was contrary to the Australian Parliamentary Privileges Act 1987 (which specifically applies Article IX of the Bill of Rights to the Parliament of the Commonwealth)); proving as a fact that something was said (Mundey v Askin (1982) 2 NSWLR 369 ) and provisionally to enable to court to determine whether the Official Report might be received as evidence or not (Australian Medical Association v Minister for Health and Community Service (1991–92) 26 NSWLR 114, esp at 129 ). (The Bill of Rights is part of the law of New South Wales.) The Supreme Court of Victoria in R v Theophanous [2003] VSCA 78, however, chose not to read down the Australian Parliamentary Privileges Act 1987, s 16(3); and see also Laurance v Katter (1996) 141 ALR 447 and Della Bosca v Arena [1999] NSWSC 1057.
  3. 3. British Railways Board v Pickin [1974] AC 765 at 799.
  4. 4. [1993] AC 593 at 638, [1993] 1 All ER 43 at 67. See para 12.4 for the historical background to the text of the Bill of Rights at this point.
  5. 5. [1993] AC 593 at 638, [1993] 1 All ER 43 at 68. Popplewell J in Rost v Edwards [1990] 2 QB 460 at 470 and 474–75 discussed whether ‘impeached or questioned’ necessarily involved some allegation of improper motive, and concluded that ‘given the views of the very large number of judges … who have interpreted the Bill of Rights, it is simply not open to the court to take that view’. Lord Browne-Wilkinson commented in Prebble that ‘a number of the authorities on the scope of Article IX betray some confusion between the right to prove the occurrence of parliamentary events and the embargo on questioning their propriety’ ([1995] 1 AC 321 at 337, [1994] 3 All ER 407 at 418). The Australian Parliamentary Privileges Act 1987, at s 16(3), provides that it is not lawful for evidence to be received or questions asked which question or rely on the truth, motive, intention or good faith of proceedings, otherwise questioning or establishing the credibility, motive, intention or good faith of any person, or drawing or inviting the drawing of inferences or conclusions wholly or partly from proceedings. The Act in question stipulates that Article IX of the Bill of Rights is to be taken to have the effect, in addition to any other operation, of s 16.