The second phase: the nineteenth century
16.3In the nineteenth century, a series of cases forced upon the Commons and the courts a comprehensive review of the issues which divided them, from which it became clear that some of the earlier claims to jurisdiction made in the name of privilege by the House of Commons were untenable in a court of law, and that the law of Parliament was part of the general law, that its principles were not beyond the judicial knowledge of the judges, and that the duty of the common law to define its limits could no longer be disputed. At the same time, it was established that there was a sphere in which the jurisdiction of the House of Commons was absolute and exclusive.
The facts in the case of Burdett v Abbot (1810) were that the plaintiff, a Member of the House of Commons, had been judged guilty of a contempt, arising from the publication of a libellous and scandalous paper. The House ordered his committal and in the course of the execution of Mr Speaker Abbot's warrant, the plaintiff's house was entered by force. He then brought an action of trespass against the Speaker. The significance of the outcome is twofold. In the first place, the House of Commons did not resort to the course of action for which earlier years provided ample precedent—committing for contempt counsel and others concerned in the prosecution of the Speaker for obeying an order of the House. The House preferred voluntarily to submit one of its privileges to the jurisdiction of the courts. Secondly, following further dispute on the old battlegrounds of whether the law of Parliament was a particular law or part of the law of the land, and whether the courts were entitled (or indeed bound) to decide questions of privilege coming incidentally before them, the Speaker's action was wholly vindicated.
Thus, about a century after the case of the Aylesbury Men, and commenting on it, Lord Ellenborough CJ held (in Burdett v Abbot ), that the House had acted within its power, and that the powers to commit were no more than those enjoyed by all superior courts.1 The court emphasised that the possession of such powers was essential for the maintenance of the dignity of both Houses, and that without them they would ‘sink into utter contempt and inefficiency’.2 At the same time, however, Lord Ellenborough contemplated the possibility of cases in which the courts would have to decide on the validity of a committal for contempt where the facts displayed could by no reasonable interpretation be construed as such.
Events in the next case, Stockdale v Hansard (1836–37), proved to be more complex. Messrs Hansard, the printers of the House of Commons, had printed by order of that House a report laid on the Table by an inspector of prisons against which a Mr Stockdale brought an action for libel. The court did not consider Messrs Hansard's proof of the House's order to print a sufficient defence. Lord Denman CJ observed that the House's direction to publish all parliamentary reports was no justification for Hansard or anyone else.3 Though Hansard succeeded in a plea of justification, the Commons felt it necessary in 1837 to appoint a committee to ascertain the law and practice of Parliament in reference to the publication of papers printed by order of the House.
The result of these inquiries was the passing of resolutions by the House, declaring that the publication of parliamentary reports, votes and proceedings was an essential incident to the constitutional functions of Parliament; that the House had sole and exclusive jurisdiction to determine upon the existence and extent of its privileges; that to dispute those privileges by legal proceedings was a breach of privilege; and that for any court to presume to decide upon matters of privilege inconsistent with the determination of either House was contrary to the law of Parliament.4
Despite the course of action implicit in those strong resolutions, when Stockdale commenced another suit against Hansard, the House did not proceed against him for contempt, but directed the firm to plead and the Attorney General to defend them, arguing on the basis of the privilege of the House and its recent resolutions. Messrs Hansard in this case relied entirely upon the privileges of the House and its order to print. The defence was unsuccessful. The Attorney General argued the case for regarding the High Court of Parliament as a superior court of exclusive jurisdiction binding on other courts, and its law a separate law. Each House separately, it was contended, possessed the whole power of the medieval English High Court of Parliament, and so subordinate were the courts of law to each that a writ of error ran from them to Parliament. Furthermore, were the privileges of the Commons subject to review by the courts, the Lords would be the arbiter not only of their own privileges but also of those of the Commons. For probably the last time, an appeal was made to the principle that the constitution supposed that the lex parliamenti, like the law administered in equity, ecclesiastical and admiralty courts, was a system different from the common law, the judges of which had no means of arriving judicially at knowledge of it. In such circumstances the courts must respect the general rule that they should follow the law of the court of original jurisdiction. Finally, the Attorney General cited instances of the Commons exercising its inquisitorial powers as a court by examining and committing judges.5
The court rebutted nearly all these contentions. It was accepted that over their own internal proceedings the jurisdiction of the Houses was exclusive: but it was (in Lord Denman's view) for the courts to determine whether or not a particular claim of privilege fell within that category. It was held the House had the right to print papers for its own internal use, but not to publish them to the world at large.6 Though the Commons had claimed that the publication of certain types of papers was essential to its constitutional functions, and the Attorney General argued that the court was bound to accept such a declaration as evidence of the law, Lord Denman held that the court had a duty to inquire further. There was, in his opinion, no difference between a right to sanction all things under the name of privilege and the same right to sanction them by merely ordering them to be done. This would amount to an ‘arbitrary and irresponsible’ superseding of the law, in itself ‘the most momentous and intolerable of all abuses’. The court could find no reason to believe that either House had ‘either actually or virtually’ claimed to authorise by resolution and relying on its privileges the publication of papers injurious to the character of an individual.7
As regards the difference between those matters of privilege arising directly in a cause before a court and those of indirect significance, on which a select committee had recently professed inability to discern a real distinction (which had led them to deny jurisdiction to the courts in either case),8 the judges expressed reservations.9 Lord Coleridge observed that ‘whether directly arising or not, a court of law I conceive must take notice of the distinction between privilege and power; and where the act has not been done within the House (for of no act there done can any tribunal in my opinion take cognizance but the House itself) and is clearly of a nature transcending the legal limits of privilege, it will proceed against the doer as a transgressor of the law’.10
Lord Denman denied further that the lex parliamenti was a separate law, unknown to the judges of the common law courts. Either House considered individually was only a part of the High Court of Parliament, and neither could bring an issue within its exclusive jurisdiction simply by declaring it to be a matter of privilege. Any other proposition was ‘abhorrent to the first principles of the constitution’. The resolutions of the House based on the conclusions of the select committee (see above) were not the action of a court, legislative, judicial or inquisitorial, so that the superiority of the House of Commons over other courts had nothing to do with the question. In any case, there was, it seemed to the judges, no basis for regarding the courts of law as in principle incapable of reviewing any decision of the House of Commons. Conversely, there was no parliamentary revision of court judgments for error. The Commons was not a court of law in the sense recognised in the courts, and was unable to decide a matter judicially in litigation between parties, either originally or by appeal.11
Having received an unfavourable verdict, the House of Commons ordered that the costs for which Messrs Hansard were declared liable should be paid, despite their strong view expressed in the resolutions referred to above. It was, however, agreed that, in case of future actions, the firm should not plead and that the parties should suffer for their contempt of the resolutions and defiance of the House's authority.
When, therefore, a third action was commenced in relation to the original report, judgment was given against Messrs Hansard by default. Damages were assessed and the sheriffs of Middlesex levied for the amount, though they delayed paying the money to Stockdale for as long as possible. In 1840, the Commons committed first Stockdale and then the sheriffs, who had declined to repay the money to Messrs Hansard. Proceedings for the sheriffs' release on a writ of habeas corpus proved unsuccessful.12 Howard, Stockdale's solicitor, was also proceeded against, but escaped with a reprimand.
While in prison, the persistent Stockdale commenced a fourth action, for his part in which Howard was committed. Messrs Hansard were again ordered not to plead, and judgment was entered against them. At this point, the situation was in part resolved by the introduction of what became the Parliamentary Papers Act 1840, affording statutory protection to papers published by order of either House (see para 13.6 ).
The case of Howard v Gosset (1845) may be viewed, however, as a continuation of the conflict in some of its aspects. Howard brought an action against the Serjeant at Arms and others for having taken him into custody and committed him to prison in obedience of the House's order and the Speaker's warrant.13 Leave to appear was given to the defendants and the Attorney General was directed to defend them.14 The court favoured the plaintiff, on the grounds of the technical informality of the warrant. The judges proceeded on the principle that the warrant might be examined with the same strictness as if it had issued from an inferior court (see para 11.25 ), while at the same time concluding that they might adjudge it to be bad in form ‘without impugning the authority of the House or in any way disputing its privileges’.
A select committee roundly condemned this doctrine, but advised the House ‘that every legitimate mode of asserting and defending its privileges should be exhausted before it prevented by its own authority, the further progress of the action’.15 The House accepted the advice and an appeal was lodged.16 In order, however, to avoid submission to any adverse judgment on appeal, the Serjeant was not authorised to give bail and execution was levied on his goods.17 In the event, the decision of the lower court was overturned, and the court found that the privileges involved were not in the least doubtful. The warrant of the Speaker was valid as a protection to the officer of the House; and the warrant should be construed as if it were a writ from a superior court.18
The last of the major nineteenth-century cases is Bradlaugh v Gosset (1884).19 The Parliamentary Oaths Act 1866 required Charles Bradlaugh, who had been elected a Member of the House of Commons, to take the oath. The House, however, had passed a resolution restraining him from doing so, and ordering the Serjeant to exclude Bradlaugh from the House until he engaged not to disturb the proceedings further (following an attempt to administer the oath to himself).20 The plaintiff then sought a declaration from the courts that the order of the House was ultra vires and so void, together with an order restraining the defendant, the Serjeant at Arms, from preventing him from entering the House and taking the oath as a Member. The court decided against Bradlaugh, on the ground that the order of the House related to the internal management of its procedure over which they had no jurisdiction. The exclusive jurisdiction of the House in this instance was considered essential for the discharge of its function.21 The judgment echoed the point made by the Attorney General in Stockdale v Hansard that allowing the courts to arbitrate would involve the House of Lords in judging the powers and privileges of the Commons—at least in relation to the narrower claims of exclusive cognizance.22
- 1. Burdett v Abbot (1810) 104 ER 554 and Burdett v Colman (1817) 3 ER 1289. The former provides one of the principal authorities for the Commons power to commit for contempt, as does that of Lord Shaftesbury for the Lords (see para 11.23 ).
- 2. Burdett v Abbot (1810) 104 ER 559 and esp the observations of Bayley J at 562. The judgment was later affirmed in Exchequer Chamber and in the House of Lords ([1814–23] All ER Rep 101).
- 3. (1836–37) 173 ER 322.
- 4. CJ (1837) 418–20.
- 5. Stockdale v Hansard (1839) 112 ER 1112 at 1118 ff, esp at 1120–22, 1123–26, 1129–30. See also para 16.2.
- 6. Stockdale v Hansard (1839) 112 ER 1112. While the Attorney General considered that ‘The power of publishing is essential to the Commons, in the discharge of their inquisitorial functions' and that constituents needed an account of what the Commons had done, Littledale J considered ‘As to the general information to be given to the public of all that is going on in parliament, I cannot conceive upon what ground that can be necessary.’
- 7. CJ (1837) 419; (1839) 112 ER 1120–22, 1157 ff, 1167, 1168.
- 8. CJ (1837) 352; Select Committee on Publication of Printed Papers, HC 286 (1837) paras 59, 60, 69.
- 9. It was argued, for example, that the courts would find themselves in an impossible situation if the two Houses fell into dispute over the extent or existence of a privilege—as they had in Ashby v White —and the Committee's argument took no account of the possibility of a litigant's claiming a privilege as yet undetermined by either House (Stockdale v Hansard (1839) 112 ER 1112 at 1168).
- 10. (1839) 112 ER 1197.
- 11. (1839) 112 ER 1153–54, 1188, 1196.
- 12. Sheriff of Middlesex (1840) 113 ER 419. The sheriffs paid the money to Stockdale under an attachment (Stockdale v Hansard (1839) 112 ER 1112).
- 13. CJ (1843) 59; (1845) 116 ER 158 and see also Howard v Gosset (1842) 174 ER 553. The House ordered Howard to attend at the Bar when he assisted in the bringing of Stockdale's fourth action against Hansard. He evaded the service of the order and the House, instead of resolving that he was in contempt, followed a precedent of 1731 (CJ (1727–32) 705) and ordered him to be sent for in custody of the Serjeant (ibid (1840) 59). This arrest was the action on which Howard v Gosset (1845) 116 ER 139 was founded.
- 14. CJ (1843) 118 and Parl Deb (1843) 67, cc 22, 945.
- 15. Select Committee on Printed Papers, Second Report, HC 397 (1845) p vi.
- 16. CJ (1845) 642; Parl Deb (1845) 80, c 1097 and ibid (1845) 81, c 1208.
- 17. CJ (1845) 563.
- 18. HC 39 (1847) p 164.
- 19. (1884) 12 QBD 271. For the aspects of this case regarding the right of each House to be the sole judge of the lawfulness of its own proceedings, and the position of criminal acts in Parliament, see para 11.15 ff and below.
- 20. CJ (1883) 332.
- 21. [1883–84] 12 QBD 271. For other aspects of this case, see para 11.16. The case was commented on by the Committee of Privileges, HC 365 (1986–87) para 29.
- 22. See, for example, Stephen J: ‘It seems to me that, if we were to attempt to erect ourselves into a Court of Appeal from the House of Commons, we should consult neither the public interest the interests of parliament and the constitution, nor our own dignity. We should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil; and, even upon the most improbable supposition of their acquiescence in our adverse decision, an appeal would lie from that decision to the Court of Appeal, and thence to the House of Lords, which would thus become the judge in the last resort of the powers and privileges of the House of Commons.’ Bradlaugh v Gossett  12 QBD 271.