Raising a complaint of breach of privilege or contempt
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15.32The procedure of the House of Commons governing the raising by Members of complaints of breach of privilege or contempt (other than where the offence is committed in the face of the House) follows the House's approval in 1978 of recommendations made by the Committee of Privileges.1 That Committee made their recommendations following their examination of the Report of the Select Committee on Parliamentary Privilege 1966–67, in which it was suggested that in general the House should exercise its penal jurisdiction: (i) in any event as sparingly as possible, and (ii) only when satisfied that to do so was essential in order to provide reasonable protection for the House, its Members or its officers from improper obstruction or attempt at or threat of obstruction causing, or likely to cause, substantial interference with the performance of their respective functions.
The procedure is designed to prevent frivolous complaints of breach of privilege. The following safeguards are in place: the Committee of Privileges does not have power to inquire at will, but can only deal with complaints which are referred to it; decisions as to whether to refer a matter of privilege to the Committee of Privileges are taken by the House as a whole; and Members require the permission of the Speaker to raise a matter of privilege.2
A Member who wishes to raise a privilege complaint is required to give written notice to the Speaker as soon as reasonably practicable after the Member has notice of the alleged contempt or breach of privilege. Privilege complaints should not be raised on the floor of the House without first writing to the Speaker.3 The Speaker has discretion to decide whether or not the matter should have the precedence accorded to matters of privilege (see paras 18.39, 19.2, 19.25 ). A decision by the Speaker not to allow precedence in no way limits the Member's right to use other procedures for publicising their complaint but the Speaker has ruled against such matters being raised on a point of order.4
If it is decided that a matter should not have precedence, the Member is informed by letter. If precedence is allowed, the Speaker will announce their decision to the House5, and the Member is told beforehand when such an announcement will be made. When the announcement has been made, the Member is entitled to table a motion for the following day formally calling attention to the matter, and either proposing that it be referred to the Committee of Privileges or making some other appropriate proposition.6
The recommendations of the 1977 Committee adopted by the House make special provisions for the Speaker's action in two particular circumstances. Thus, whereas the decision about precedence would normally be made within a day or two of receiving notice of the complaint, it is provided that the Speaker should, in appropriate cases of urgency, deal with the matter at once. Again, if, in a case which the Speaker considers not worthy of precedence, there is a novel point of privilege which ought nevertheless to be drawn to the attention of the House, they may make a statement to the House.7
Complaints of privilege may also be brought to the notice of the House of Commons by a communication from the Speaker,8 or the Serjeant at Arms, or by a report from a committee (see para 15.33 ff), or by a report to the Lords from a committee of that House or a communication from the Lord Speaker or Senior Deputy Speaker.
A report from a select committee of the Commons to the effect that improper disclosure of a report, its evidence or proceedings has interfered with its work stands automatically referred to the Committee of Privileges9 (see paras 38.56, 38.76 –38.77 ). A matter alleged to have arisen in committee but not reported by it may not generally be brought to the attention of the House on a complaint of breach of privilege.10
When a contempt is committed in the actual view of either House, the House has in the past proceeded at once, without hearing the offender, unless by way of apology, to punish the contempt. If the offence involves a Member or Members of the House, the House may debate whether or not such Members are in contempt, and those Members may take part in that debate.11 Alternatively, the House could order a Member to withdraw until such time as the Standards or Privileges Committee has considered the matter and recommended appropriate action.
In the past, the House has punished a contempt committed in the actual view of a Committee, and reported by the Committee. More recently, practice in the Commons has been to refer such matters to the Committee of Privileges, which will give parties accused an opportunity to defend themselves (see below).
- 1. CJ (1977–78) 170 and Third Report of the Committee of Privileges, HC 417 (1976–77) paras 9–12. Details of the House's procedure in this regard before 1978 are to be found in previous editions of Erskine May (eg 19th edn, 1976, p 162 ff). In the past, matters affecting the privilege of the House might be raised by petition. In the Commons at least, it is unlikely that this procedure would now be followed, in view of the present practice in raising matters of privilege, which is described above. For a full account of the procedure based on a petition, see Erskine May (20th edn, 1983), p 178 ff.
- 2. See Joint Committee on Parliamentary Privilege, Report of Session 2013–14, Parliamentary Privilege, HL 30, HC 100, para 91.
- 3. HC Deb (10 November 2011) 535, c 480; ibid (26 April 2011) 527, c 60; ibid (15 June 2011) 529, c 795; the Speaker has reminded the House that complaints of breach of privilege should be made in writing and not raised as a point of order, ibid (11 November 2002) 412, cc 188 and 304. Members have used a point of order to announce they had written to the Speaker (ibid (7 November 2017) 630, c 148), or that others had done so (ibid (3 December 2018) 650, c 582).
- 4. HC Deb (8 July 2010) 513, c 551.
- 5. See HC Deb (21 May 2012) 545, c 845.
- 6. CJ (2009–10) 138. It is not the practice for such letters to be made public (HC Deb (1984–85) 72, c 747 and ibid (1985–86) 106, c 1044). Members should not challenge the Speaker's decision in the House (ibid (1986–87) 114, cc 303–4). The Speaker does not usually communicate an unfavourable outcome to the House or to other Members (ibid (1985–86) 87, cc 1042–3), though this may sometimes be done (ibid (1993–94) 238, c 21); see HC Deb (14 December 2017) 633, col 605.
- 7. HC Deb (1980–81) 3, c 789. Cf the Speaker's comment on a personal statement made by a Member (ibid (1994–95) 260, c 612); a statement made by the Speaker in connection with a document which they considered made threats of a kind which might have—but in that instance was unlikely to have—intimidated Members in their parliamentary conduct (ibid (1993–94) 238, c 21); and a statement (in relation to reports of pressure from a union) reminding the House of its resolution of 6 November 1995 (ibid (2001–02) 388, c 885) (see para 5.20 ). In Session 2008–09, the Speaker turned down repeated applications for reference of a matter upon which the House had decided to set up a committee which was not empowered to proceed beyond electing a Chairman until criminal investigation was completed; see HC Deb (17 December 2008) 485, cc 1097 and 1115–16.
- 8. CJ (1945–46) 38.
- 9. CJ (1985–86) 252; ibid (2008–09) 402.
- 10. The Speaker refused to allow a motion to have precedence as a matter of privilege for the attendance of a person who, it appeared from the minutes of the evidence taken before a Committee, had refused to answer questions and to produce certain documents which they had been ordered to produce (Parl Deb (1897) 51, c 311). Allegations about proceedings in committee have been raised in Points of Order, but an election intervened before the committee itself took action; see HC Deb (25 March 2015) 594, c 1536.
- 11. See HC Deb (4 December 2018) 650, c 667.