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Parliamentary Privilege in United Kingdom

Parliamentary privilege Meaning, as used in the UK Parliament

Parliamentary privilege grants certain legal immunities for Members of both Houses to allow them to perform their duties without interference from outside of the House. Parliamentary privilege includes freedom of speech and the right of both Houses to regulate their own affairs.

Evolution

Centuries ago, the British House of Commons began its struggle to win its basic rights and immunities from the King.[1] The earliest cases go back to the fourteenth and fifteenth centuries when several Members and Speakers were imprisoned by the King who took offence to their conduct in Parliament, despite the claims of the House that these arrests were contrary to its liberties. In the Tudor and early Stuart periods, though Parliament was sometimes unable to resist the stronger will of the Sovereign, the conviction continued to be expressed that Parliament, including the House of Commons, was entitled to certain rights. Elected Speaker of the House of Commons in 1523, Sir Thomas More was among the first Speakers to petition the King to seek the recognition of certain privileges for the House.[2] By the end of the sixteenth century, the Speaker’s petition to the King had become a fixed practice.[3]

Despite these early petitions of the Speaker, the King was not above informing the Commons that their privileges, particularly freedom of speech, existed by his sufferance. James I did this in 1621. In protest, the Commons countered:

“[E]very Member of the House of Commons hath and of right ought to have freedom of speech … and … like freedom from all impeachment, imprisonment and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning or declaring of any matter or matters touching the Parliament or parliament business.”[4]

In rebuke, James I ordered that the Journals of the House be sent to him; he tore out the offending page of protest and then summarily dissolved Parliament.[5]

Nor was privilege able to prevent the detention or arrest of Members at the order of the Crown. On several occasions in the early seventeenth century, Members were imprisoned without trial while the House was not sitting or after the dissolution of Parliament. In 1626, Charles I arrested two Members of the House while it was in session and, in 1629, judgements were rendered against several Members for sedition. These outrages by the Crown were denounced after the Civil War and in 1667 both Houses agreed that the judgement against the arrested Members had been illegal and contrary to the privileges of Parliament.[6]

In 1689, the implementation of the Bill of Rights confirmed once and for all the basic privilege of Parliament, freedom of speech. Article 9 states “that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.[7] Free speech in the House was now finally established and protected from interference either from the Crown or the courts.

In the late seventeenth century and the first half of the eighteenth century, some claims of the House as to what constituted privilege went too far. The privilege of freedom from arrest in civil matters was sometimes applied not only to Members themselves, but also to their servants. In addition, Members sought to extend their privilege from hindrance or molestation to their property, claiming a breach of privilege in instances of trespassing and poaching. Such practices were eventually curtailed by statute because they clearly had become a serious obstruction to the ordinary course of justice.[8] Thus, privilege came to be recognized as only that which was absolutely necessary for the House to function effectively and for the Members to carry out their responsibilities as Members.
In the midst of their occasional excesses, the House of Lords and the House of Commons both acknowledged that a balance had to be maintained between the need to protect the essential privileges of Parliament and, at the same time, to avoid any risk that would undermine the interests of the nation. In this connection, it was agreed in 1704 that neither House of Parliament had any power, by any vote or declaration, to create for themselves any new privileges not warranted by the known laws and customs of Parliament.[9] Since then, neither House alone has ever sought to lay claim to any new privilege beyond those petitioned for by Speakers or already established by precedent and law.[10]

The nineteenth century witnessed numerous cases of privilege, which helped to determine the bounds between the rights of Parliament and the responsibility of the courts.[11] Perhaps the most famous of the court cases was Stockdale v. Hansard. In 1836, a publisher, John Joseph Stockdale, sued Hansard, the printer for the House of Commons, for libel on account of a report published by order of the House.[12] Despite numerous resolutions of the House protesting the court proceedings and the committal to prison of Stockdale by the House, the courts refused to acknowledge the claims of the House because it had not been proven that the claimed privilege existed:

“Lord Denman denied … that the lex parliamenti [the Law of Parliament] 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’.” [13]

In the end, the situation was partially resolved by the enactment of the Parliamentary Papers Act of 1840, which gave statutory protection to papers published by order of either House.

The late eighteenth and nineteenth centuries also saw, for the first time, the systematic study of the history of privilege and contempt with the publication of several manuals on parliamentary procedures.[14] The culmination of these efforts to understand and elucidate better the constitutional history of Parliament was achieved in 1946 with the publication of the 14th edition of May.[15] This edition presented a thorough and elaborate examination of parliamentary privilege based on an exhaustive examination of the Journals and the principles of the law of Parliament.[16] It also cited instances of misconduct of strangers or witnesses, disobedience to the rules or orders of the House or committees, attempts at intimidation or bribery and molestation of Members or other Officers of the House as cases that more properly involve a contempt of Parliament rather than an explicit breach of an established privilege.

The British House of Commons now takes a more narrowly defined view of privilege than was formerly the case, with the emphasis being placed on parliamentary proceedings. The change became apparent in 1967 when the Select Committee on Parliamentary Privilege accepted the need for the radical reform of the law, practice and procedure relating to privilege and especially contempt, agreeing that they required simplification and clarification and to be brought into harmony with contemporary thought. The Committee went further to express the conviction that the recognized rights and immunities of the House “will and must be enforced by the courts as part of the law of the land”.[17]

While the House took note of the Committee’s report, it was never adopted. In 1977, the Committee of Privileges re-examined the meaning of privilege and contempt, and the general thrust and conclusions of the 1967 report were reiterated in its report, later adopted by the House. The Committee recommended that the application of privilege be limited to cases of clear necessity in order to protect the House, its Members and its officers from being obstructed or interfered with in the performance of their functions.[18] Twenty years later, a joint committee of the British Parliament was charged with examining parliamentary privilege. The Joint Committee on Parliamentary Privilege made a number of recommendations calling for the codification of various matters of privilege in statutory law.[19] Although the report was debated in the Commons on one occasion, it was never adopted and no legislation has yet resulted from the recommendations.[20]

Source: House of Commons Procedure and Practice, Second Edition, 2009

Resources

See Also

Notes

  1. For further information, see Maitland, F.W., The Constitutional History of England, Cambridge: Cambridge University Press, 1908; and Pollard, A.F., The Evolution of Parliament, 2nd ed., rev., London: Longmans, Green and Co., Ltd., 1926.
  2. It has been argued that Sir Thomas More did not consider his petition a petition of right, as free speech was not yet a formal privilege. “Parliament is the king’s court; he may be displeased with what members say, and as discipline is his to maintain, he may punish the too bold or too rash for their speeches … More wants liberty of speech, whereas his predecessors wished to avoid punishment, thereby tacitly renouncing the liberty which More claims” (Neale, J.E., “The Commons’ Privilege of Free Speech in Parliament”, Historical Studies of the English Parliament, Vol. 2, 1399‑1603, Cambridge: Cambridge University Press, 1970, pp. 157‑8).
  3. This ceremony is also part of Canadian practice. See, for example, Debates of the Senate, November 19, 2008, p. 3.
  4. May, 23rd ed., p. 81.
  5. Davies, G., The Oxford History of England: The Early Stuarts, 1603−1660, Oxford: Clarendon Press, 1938 (reprint of 1937 ed.), pp. 26‑7.
  6. May, 23rd ed., pp. 81‑2.
  7. May, 23rd ed., p. 82.
  8. Maitland, pp. 322‑3; May, 23rd ed., pp. 85‑6. See also Parliamentary Privileges Act, 1770 (U.K.).
  9.  May, 23rd ed., p. 93.
  10. May, 23rd ed., p. 93.
  11. May, 23rd ed., pp. 183‑8.
  12. May, 23rd ed., pp. 184‑7. For the importance of this case in Canada, see Maingot, 2nd ed., pp. 63‑74.
  13. May, 23rd ed., p. 186.
  14. Hatsell, J., Precedents of Proceedings in the House of Commons, 4 Vols., South Hackensack, New Jersey: Rothman Reprints Inc., 1971 (reprint of 4th ed., 1818); Ferrall, S.A., An Exposition of the Law of Parliament, as it Relates to the Power and Privileges of the Commons’ House, London: S. Sweet, 1837; and May, T.E., A Treatise Upon the Law, Privileges, Proceedings and Usage of Parliament, South Hackensack, New Jersey: Rothman Reprints Inc., 1971 (reprint of 1st ed., 1844), now in its 23rd edition.
  15. May, T.E., A Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 14th ed., edited by Sir G. Campion, London: Buttersworths & Co. (Publishers), Ltd., 1946.
  16. This edition concluded that any “act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as a contempt even though there is no precedent of the offence” (May, 14th ed., p. 108).
  17. United Kingdom, House of Commons, Report from the Select Committee on Parliamentary Privilege, Together with the Proceedings of the Committee, Minutes of Evidence Taken Before the Select Committee on Parliamentary Privilege in Session 1966-67, and Appendices, December 1, 1967 (reprinted 1971), pp. xiii‑xiv, par. 38. The Committee recommended that legislation be introduced to extend and clarify the scope of privilege. The Committee also proposed a number of significant reforms with respect to the consideration of privilege complaints and other changes to bring the House’s formal rules into line with the practice of nearly 200 years. See the “Summary of Principal Recommendations”, pp. xlix‑li, par. 205.
  18. May, 23rd ed., p. 93.
  19. United Kingdom, Joint Committee on Parliamentary Privilege, Report, Volume I—Report and Proceedings of the Committee, www.parliament.uk, March 30, 1999, “Summary of Recommendations”, pp. 1‑7. In particular, the Joint Committee proposed that Parliament discard any rights and immunities no longer deemed necessary for it to carry out its functions. The Committee recommended that “place out of Parliament” and “proceedings in Parliament” be defined in statute and that Members of both Houses be included within the scope of forthcoming legislation on corruption. It called for the codification in statute of contempt of Parliament, for the abolition of Parliament’s power to imprison for contempt and for the transfer of Parliament’s penal powers over non Members to the courts. In addition, the Committee recommended the termination of Members’ exemption from attendance in court as witnesses, the abolition of Members’ freedom from arrest in civil cases, and the replacement of the Parliamentary Papers Act, 1840 by a modern statute. Finally, it recommended that a Parliamentary Privileges Act be passed incorporating all the proposed changes in the law and codifying parliamentary privilege as a whole.
  20. May, 23rd ed., p. 94. In 1987, the Australian Parliament passed legislation declaring, clarifying and substantially changing its law of parliamentary privilege. Finding that the courts were severely restricting its freedom of speech, the Australian Parliament enacted statutory remedies to protect its proceedings. The Australian Parliamentary Privileges Act, 1987 provides definitions for a number of concepts, including contempt. For further information, see House of Representatives Practice, 5th ed., edited by I.C. Harris, Canberra: Department of the House of Representatives, 2005, pp. 708‑9, and Odgers, J.R., Odgers’ Australian Senate Practice, 12th ed., edited by H. Evans, Canberra: Department of the Senate, 2008, pp. 29‑30, 34‑43.


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