Members summoned as witnesses

14.10The service of a subpoena to attend as a witness has in the past been treated as a breach of privilege by the House1 and the parties responsible for effecting such service have on occasions been committed to the Serjeant for contempt. The modern practice of serving documents by post would not be considered a breach of privilege. But service in person in the precincts of either House on a sitting day would still be likely to be regarded as a contempt, as recommended by both the 1999 and 2013 Joint Committees on Parliamentary Privilege.2

A Member may choose to attend court in response to a subpoena or witness summons without any formality, even on a day on which the House sits or is to sit.3 Nonetheless, the privilege of exemption of a Member from attending as a witness, in criminal as well as civil proceedings, has been asserted by the House upon the same principle as other personal privileges, namely the paramount right of Parliament4 to the attendance and service of its Members. On the matter being raised by the Member concerned, the Speaker communicates with the court, drawing attention to this privilege and asking that the Member should be excused because of the sitting of the House.5 While the 1999 Joint Committee on Parliamentary Privilege recommended that Members' exemption from attendance as a witness should be abolished,6 the 2013 Committee disagreed. It considered that there was no evidence the privilege had caused harm, and that given the frequency of vexatious litigation, it was reasonably foreseeable that ending it could interfere with Members' primary duty to attend Parliament.7

Footnotes

  1. 1. 1 Parl Hist 630; D'Ewes 347; 1 Hatsell 96–97, 169–75; LJ (1620–28) 630; CJ (1547–1628) 34, 48, 203, 205, 211, 368, 401 etc; ibid (1667–87) 339.
  2. 2. See Joint Committee on Parliamentary Privilege, First Report of Session 1998–99, Parliamentary Privilege: Volume I – Report & Proceedings, HL 43-I, HC 214-I para 335; Joint Committee on Parliamentary Privilege, First Report of Session 2013–14, Parliamentary Privilege, HL 30, HC 100 paras 266–69. For the special circumstances in which a military order to a Member who was a Territorial Army Officer to attend a Court of Inquiry was declared to be a breach of privilege, see HC 146 (1937–38); CJ (1937–38) 351.
  3. 3. On occasions in the past, the Commons has specifically granted leave to its Members to attend court; see CJ (1801) 122; ibid (1812–13) 218, 243, 292; ibid (1816) 110; ibid (1826–27) 306, 379; and also Parl Deb (1844) 73, c 433 (Earl of Devon).
  4. 4. On this principle, the privilege would also apply to officers of the House.
  5. 5. 1 Hatsell 170, 171; CJ (1950–51) 186; ibid (1953–54) 42; HC Deb (1953–54) 521, cc 957–58, Joint Committee on Parliamentary Privilege, First Report of Session 2013–14, Parliamentary Privilege, HL 30, HC 100. And see the observations of the court on this privilege, Lewis v Mullally (1953) Times, 3 December.
  6. 6. Joint Committee on Parliamentary Privilege, First Report of Session 1998–09, Parliamentary Privilege: Volume I – Report & Proceedings, HL 43-I, HC 214-I paras 330–33; the Committee did, however, recommend that a subpoena against a Member should not be issued without the leave of a master or district judge.
  7. 7. Joint Committee on Parliamentary Privilege, First Report of Session 2013–14, Parliamentary Privilege, HL 30, HC 100, para 265.