‘Proceedings in Parliament’

13.12The term ‘proceedings in Parliament’ has received judicial attention1 (not all of it in the United Kingdom)2 but comprehensive lines of decision have not emerged and indeed it has been concluded that an exhaustive definition could not be achieved.3 The primary meaning of proceedings, as a technical parliamentary term, which it had at least as early as the seventeenth century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognised by its inclusion in the formulation of Article IX. An individual Member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking.

Officers of the House take part in its proceedings principally by carrying out its orders, general or particular. Members of the public also may take part in the proceedings of a House, for example by giving evidence before it or one of its committees, or by securing the presentation of a petition. For consideration of whether writing to a Member can be considered to form part of a proceeding in Parliament, see para 15.25.4 Letters to the Parliamentary Commissioner for Standards are not considered to be privileged unless and until the Commissioner decides that the complaint is appropriate for inquiry (see para 5.22 ).

On a number of occasions, the House of Commons or a committee has endeavoured to elucidate this very broad understanding. The Select Committee on the Official Secrets Act in 1938–39 argued that ‘proceedings' covered both the asking of a question and the giving of written notice of the question, and includes everything said or done by a Member in the exercise of his functions as a Member in a committee of either House, as well as everything said or done in either House in the transaction of parliamentary business.5 After considering the scope of the protection, the committee concluded:

‘cases may be easily 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, although 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 a question he is thinking of putting down, or shows it to another Member with a view to obtaining advice as to the propriety of putting it down or as to the manner in which it should be framed.’6

The conclusions of the committee were later agreed to by the House.7

In 1947, the House of Commons accepted the conclusion of its Committee of Privileges that ‘attendance of Members at a private party meeting held in the precincts…during the parliamentary session to discuss parliamentary matters…is attendance in their capacity as Members of Parliament’. Such meetings did not enjoy ‘all the privileges which are attached to the transactions of Parliament as a whole’, but financial arrangements to induce a Member to disclose information from such a meeting about his work in Parliament was a form of bribery and a breach of privilege. The Member who accepted the payment was for that and other reasons found guilty of a contempt.8

On the other hand, in 1958 the House rejected the opinion of the Committee of Privileges in the Strauss case that a particular letter written by a Member to a Minister relating to a nationalised industry was a proceeding in Parliament.9

The 1999 Joint Committee on Parliamentary Privilege concluded that complexities of establishing boundaries and definitions led them to not recommending an extension of absolute privilege to correspondence, noting that qualified privilege at common law had enabled Members to carry out their duties satisfactorily.10 In another case in 2008, the Speaker intervened in proceedings in the Appeal Court against the use by both parties of a report of the Public Administration Select Committee. The judge accepted the arguments made on the Speaker's behalf that statements of the then Leader of the House as to the intention and effect of legislation passed in an earlier session and the reports of the Committee were not admissible as legitimate aids to construction.11

Notwithstanding such purely parliamentary attempts to clarify the interpretation of the phrase, Article IX is of course statute law, and the courts have in the past drawn attention to that limitation on its interpretation by either House. In Bradlaugh v Gosset, Stephen J said that the House of Commons, though capable of effectively superseding the general law so far as its internal affairs were concerned (see para 16.3 ), could not properly extend the scope of the term ‘proceedings in Parliament’ so as to preserve Bradlaugh from the effect of a statute, and the courts would take no notice if the House tried.12

In OGC v Information Commissioner, the Speaker intervened on the grounds of a possible breach of Article IX of the Bill of Rights. The case concerned an appeal against two decisions of the Information Tribunal which had ordered the disclosure under the Freedom of Information Act 2000 of information relating to gateway reviews carried out by the Office of Government Commerce of the Government's identity card programme. The Speaker took no view on the substantive issue of the case but argued that the Tribunal had infringed Article IX and the wider principle of parliamentary privilege inter alia by assuming jurisdiction to consider the adequacy of a Minister's reply to a parliamentary question. Although the Information Commissioner had refused to treat the parliamentary question as a valid request for the purposes of the Act, he had treated a subsequent request for a review of the answer to that question from the Member who had asked it as such a request. This was criticised by the judge as necessarily challenging the correctness of the ministerial answer when such a challenge cannot be the subject of a judicial decision. In response to the Speaker's intervention, the judge concluded that ‘it would be better if Parliamentary questions are not answered by a Ministerial statement as to the result of the application of [the Freedom of Information Act] to a particular case’.13

Footnotes

  1. Recently, in the Supreme Court judgment in the case of R v Chaytor [2010] UKSC 52, [2011] 1 AC 684, [2011] 1 All ER 805. See also the dissenting judgment in R v Bunting (1885) 7 OR 524 at 563; and Gruban v Booth (1915), referred to in Re Parliamentary Privilege Act 1770 [1958] AC 331, where an action was brought against a Member of the Commons in respect of a letter he had written to a Minister mentioning the plaintiff. There was no suggestion that the courts were unable to use the letter to determine the character of the defendant's conduct. Other cases touching on related issues are described at para 15.25, fn 2.
  2. The United States Supreme Court has described the American analogue of ‘proceedings in Parliament’, the phrase ‘legislative sphere’, as including all activities which are ‘an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration … of proposed legislation or with respect to other matters which the [United States] Constitution places within the jurisdiction of either House’ (Gravel v United States 408 US 606 at 625 (1972). See also Kilbourne v Thompson (1880) 103 US 168 ). For an early United States case, see Coffin v Coffin (1808) 4 Mass 1. The possibility of omissions being part of proceedings in Parliament was affirmed in Manganaro Enterprises v A-G of New Zealand [1994] 2 NZLR 451. In a South African case where English privilege law was considered ‘[a] relevant and persuasive authority’, a court found against a Member of a legislature who had arranged for the distribution in the Chamber of a document containing allegedly libellous statements which had no connection with the business of the day (Poovilingam v Rajbansi (1992) (1) SA 283 ). See also Re Clark and A-G of Canada (1977) 81 DLR (3d) 33, and Stopforth v Goyer (1978) 87 DLR (3d) 373. In Westco Lagan Ltd v Attorney-General and the Clerk of the House of Representatives, the New Zealand High Court held that the submission of a bill for the Royal Assent was not a proceeding in Parliament, though the Privileges Committee of the New Zealand Parliament disagreed: [2001] 1 NZLR 40; Report of the New Zealand House of Representatives Privileges Committee, March 2001.
  3. Rost v Edwards [1990] 2 QB 460 at 478. The Defamation Act 1996, since repealed, set out certain circumstances, without prejudice to the generality of proceedings in Parliament, in which the protection would apply: the giving of evidence before either House or a committee; the presentation or submission of a document to either House or a committee; the preparation of a document for the purposes of or incidental to the transacting of any such business; the formulation, making or publication of a document, including a report, by or pursuant to an order of either House or a committee; and a communication with the Parliamentary Commissioner for Standards or any person having functions in connection with the registration of Members' interests. The provisions in the Defamation Act 1996 were based on the Australian Parliamentary Privileges Act 1987, s 16(5), which itself enacts, in s 16(1), that the Bill of Rights is to be taken to have, in addition to any other operation, the effect of the provisions of s 16.
  4. Several United States cases have considered the role of officials and Members' aides in carrying out functions which would be protected if done by Members: see Gravel v US 408 US 606 (1972) at 620; Doe v McMillan 412 US 306 (1973) at 320.
  5. HC 101 (1938–39) p v. See, however, Allason v Campbell (1996) TLR 279, (1996) Times, 25 April, where the court heard detailed evidence on who initiated and participated in the drafting, signing and tabling of an early day motion, and the reasons for its coming into being. In United States v Johnson (1966) 383 US 169 at 173, the court found that drafting and other preparatory work on a speech in Congress was covered by the ‘speech or debate’ clause of the United States Constitution.
  6. HC 101 (1938–39) p v. In Attorney-General of Ceylon v De Livera [1963] AC 103 at 121, [1962] 3 All ER 1066 at 1070, the Judicial Committee of the Privy Council, in reviewing the scope of the protection of privilege in the United Kingdom, observed:
    ‘it is impossible to regard [a Member's] only proper functions as a Member as being confined to what he does on the floor of the House itself. In particular, in connection with his approaches to or relations with ministers whether or not on behalf of one of his own constituents it is recognised that his functions can include actions other than the mere putting down and asking of a parliamentary question.’
    In 2000 the House of Commons agreed that provision should be made for insurance of Members ‘in relation to the performance of their duties as Members', specifically extended to include the ‘cost of defending a civil claim for defamation … where the act complained of was not covered by parliamentary privilege but arose from a Member's duty as a Member’, HC Deb (1999–2000) 350, cc 917–37.
  7. CJ (1938–39) 480. A number of Australian cases turned on the necessary proximity to undoubted proceedings which must attach to papers in the possession of Members before they enjoy the same complete protection. See for example, O'Chee v Rowley (1997) 150 ALR 199 and Crane v Gething [2000] FCA 45. See also a leading case in the United States, Brown and Williamson Tobacco Corporation v Williams 1995 62 F 3d 408. The decision of the New Zealand Supreme Court ‘that public servants assisting Ministers to answer Parliamentary questions are not protected by absolute privilege against claims for defamation arising from what they say to the Minister’ (Attorney General & Gow v Leigh, SC 11/2011 [2011] NZSC 106, media summary) was followed by passage of the New Zealand Parliamentary Privilege Act in 2014.
  8. Committee of Privileges, HC 138 (1946–47) paras 17 and 21; HC 142 (1946–47); and CJ (1947–48) 22. See also Re Parliamentary Privilege Act 1770 [1958] AC 331 and D McGee Parliament and Caucus in New Zealand Law Journal (April 1997) 127, 137 on Rata v Attorney-General of New Zealand.
  9. Committee of Privileges, Fifth Report, HC 305 (1956–57); HC 227 (1957–58); and CJ (1957–58) 260. Cf also Rost v Edwards [1990] 2 QB 460, where it was held that a letter written by a Member of the Commons to the plaintiff (another Member) and to the Speaker in relation to questions which the Member who wrote the letter then raised in the House about the plaintiff's conduct was covered by parliamentary privilege.
  10. Joint Committee on Parliamentary Privilege Report, HL 43, HC 214 (1998–99) paras 103–12.
  11. R (on the application of Bradley) [2008] EWCA Civ 36, [2009] QB 114, [2008] 3 All ER 1116, para 50.
  12. [1883–84] 12 QBD 271 at 281–82.
  13. [2008] EWHC 737 (Admin), paras 51 and 54.