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PARLIAMENTARY PRIVILEGE

Introduction Parliamentary privilege is an aspect of parliamentary sovereignty/supremacy. Parliament claims to itself the right to be the sole judge of its own composition and procedures.

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PARLIAMENTARY PRIVILEGE

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  1. Introduction Parliamentary privilege is an aspect of parliamentary sovereignty/supremacy. Parliament claims to itself the right to be the sole judge of its own composition and procedures. The privileges of Parliament are both collective (relating to both Houses of Parliament) & individual (relating to individual members of the HOC & HOL). Note: privileges of Parliament are set down & no new privileges can be created, other than by an Act of Parliament. Thus, actions which impede the work of Parliament e.g. assaulting a MP or disrupting proceedinsgs are regarded as contempts of Parliament rather than breach of privilege. PARLIAMENTARY PRIVILEGE

  2. Meaning of Parliamentary Privilege (s): The privileges of Parliament are defined as: “...the sum of the pecucliar rights enjoyed by each House collectively as a constitutent part of the High Court of Parliament, & by Members of each House individually, without which they could not discharge their functions, & which exceed those possessed by other bodies or individual. Thus, privilege, though part of the law of the land, is to a certain extent an exemption from the general law”. (Erskine May, 1997) Note: It is a special right or immunity available either to House collectively (e.g. to control its own composition & procedure) or to individual members (e.g. Freedom of speech). PARLIAMENTARY PRIVILEGE

  3. Purpose (s) of Parliamentary Privilege: According to Erskine May, parliamentary privilege is a necessary requirement of our constitution for without it MP's, 'could not discharge their functions'. * To protect the Houses collectively & their members individually from any obstruction or interference in the performance of their functions, thereby maintaining independence & authority. * It provides protection for MP's against accusations of defamation from outside Parliament & also protects the individual member in the exercise of his/her freedom of speech from the executive. (See Art 9 of the Bill of Rights 1689) PARLIAMENTARY PRIVILEGE

  4. Types of Parliamentary Privileges: (a)Individual Privileges (Privileges expressly claimed) (b)Collective Privileges (Privileges not expressly claimed) (a) Individal Privileges: 1.Freedom of speech & debate * Art 9 of the Bill of Rights 1689 provides that: '...freedom of speech & debates or proceedings in Parliament ought not to be impeached or questioned in any ct or place outside Parliament'. PARLIAMENTARY PRIVILEGE

  5. Continuation on the types of Parliamentary Privileges: Note: This is by far the most important privilege. Parliament is the forum for debate about the nation and its govt, as well as being the law making body. The deliberations of members, & therefore the institution as a whole, could be impeded if their speeches were susceptible to any outside sanctions. Freedom of speech is uncertain in its scope, since the term 'proceedings in Parliament' has never been authoritatively defined. However, it is clear that the freedom applies to debates in Chamber & in committees. It may apply to communications which are closely connected to an impending proceeding. PARLIAMENTARY PRIVILEGE

  6. Case law on freedom of speech as an example of Parliamentary privilege: * Church of Scientology v Johnson Smith [1972] 1 QB 522, where an attempt was made to sue an MP claiming that he had slandered the Church of Scientology & its members. In order to succeed, it was necessary to show that the MP had spoken with malice. It was attempted to prove this by relying on a speech made by him in Parliament. The Ct held that these words could not be used as the words were absolutely privileged. * R v Secretary of State for Trade ex parte Anderson Strathyclyde [1983] 2 All ER 233. Evid of something a Minister says in Parliament cannot be used to determine whether he exercised his statutory powers properly. PARLIAMENTARY PRIVILEGE

  7. Continuation on case law on freedom of speech as an example of parliamentary privilege: * In ex parte Anderson Strathyclyde, the phrase 'proceedings in parliamentary' was given wider meaning. It seems clear that the phrase is wider than simply 'debates in Parliament' & would cover questions in the House, remarks in committee, & statements during any parliamentary business in the House. * Duncan Sandy's Case (1937)- Mr Duncan Sandys had sent to the Secretary of State for War the draft of a parliamentary question in which he drew attention to a shortage of military equipment. PARLIAMENTARY PRIVILEGE

  8. Continuation on case law on freedom of speech as an example of parliamentary privilege: * Continuation on Duncan Sandy's Case (1937)- Within the draft, Mr Duncan quoted figures which, in the view of the War Office, could have been obtained only as a result of breach of OSA 1911. The AG interviewed Mr Duncan, who later complained that he was being threatened with prosecution in breach of privilege-for failing to disclose the source of his information. It was ruled out that the threat of prosecution for alleged breach of the OSA 1911 was a breach of privilege. PARLIAMENTARY PRIVILEGE

  9. Problems associated with freedom of speech as an example of Parliamentary Privilege: 1. There is some confusion about the meaning of the words “proceedings in Parliament”. However, it clearly covers debates, questions & everything said & done by a member both in committee & on the floor of the House. But as Erskine May point out, it does not follow that everything is said & done within the confines of the chamber during a debate or other business forms part of a proceeding in Parliament. It would not cover a private conversation btn two MPs. Nor does a geographical location of the speaker give automatic protection. PARLIAMENTARY PRIVILEGE

  10. Problems associated with freedom of speech as an example of Parliamentary Privilege: See the following cases regarding the meaning of 'proceedings in Parliament': * Rivlin v Bilainkin [1953] 1 QB 485- where it was held that a private conversation is not a proceeding before Parliament. * GR Strauuss Case [1958] AC 331-where the communication does not relate to any matter before the House, then it would not be a proceeding in Parliament and hence not protected. PARLIAMENTARY PRIVILEGE

  11. Problems associated with freedom of speech as an example of Parliamentary Privilege: Note: Letters from the public are not covered by parliamentary privilege but only covered by qualified privilege. (See the cases of Beach v Freeman [1972] 1 QB 14 & R v Rule [1937] 2 KB 375) In the case of Beach v Freeman, a MP was sued by a firm of solicitors, concerning whom the Member had received complaints from a constituent & forwarded the letter, with a covering letter, to the LC & the Law Society. That the letters were defamatory was not contested, but the ct nevertheless held that publication of the letters (to the LC & Law Society) was protected by qualified privilege on the basis of public interested. In R v Rule, a letter by a constituent to an MP complaining of the conduct of public officers was held to enjoy qualified privilege. PARLIAMENTARY PRIVILEGE

  12. Problems associated with freedom of speech as an example of Parliamentary Privilege: 2. The meaning of the 'precincts of Parliament' which appear to signify the physical precincts of Parliament. In Rivlin v Bilainkin [1953] 1 QB 485- it was ruled that repetition of a defamatory remarks subject to an injunction by a ct of law, through posting letters within the precincts of the HOC does not attract privilege. 3. The jurisdiction of the ct & Parliament appear to conflict in determining issues of Parliamentary Privilege. In Rost v Edward [1990] All ER 641-it was held that in recognising the respective jurisdictions of Parliament & the cts, the cts should nevertheless be slow to refuse or admit in evid documents which could affect the outcome of legal proceedings & hence individual rights. PARLIAMENTARY PRIVILEGE

  13. Problems associated with freedom of speech as an example of Parliamentary Privilege: The above decision was doubted in Prebble v New Zealand Ltd [1994] 3 WLR 970. The House of Representatives ruled that it had no power to waive its own privileges & thereby allow papers to be considered in ct. The PC ruled that to adduce such evid without the House's waiver of privilege-contravened privilege & the protection given to parliamentary proceedings under Art 9 of the Bill of Rights 1689. In Pepper v Hart [1993] 1 All ER 1- where six of the seven judges hearing a case ruled in favour of admitting parliamentary debates before the ct in some circumstances (the LC dissented on this point). This decision was affirmed in the case of Three Rivers District Council v Bank of England PARLIAMENTARY PRIVILEGE

  14. Continuation on Individual Privileges (b) Freedom from arrest The House claims for its members the privilege of freedom of arrest. This is confined to arrest in civil matters. This immunity extends not only while Parliament sits, but also for 40 days before & after it. MPs are not immune from arrest in criminal matters. This privilege has been removed as a result of the Parliamentary Privilege Act 1770. In Stourton v Stourton [1963] in which a Member of the HOL was held to be immune from arrest b'se of privilege when he failed to pay maintenance to his wife. PARLIAMENTARY PRIVILEGE

  15. Continuation on Individual Privileges (b) Freedom from arrest In Captain Ramsay's (1940), whereby in 1939, Captain Ramsay (an MP) was detained under defence regulations. His detention did not amount to a breach of privilege, although it would have done so had he been detained for words spoken in Parliament. Note: When an MP is imprisoned following a conviction for a criminal offence, the member may then be expelled from the House as being considered unworthy of continued membership. PARLIAMENTARY PRIVILEGE

  16. Types of Parliamentary Privileges (b) Collective Privileges 1. Right to regulate its own composition The HOC has the capacity to determine for itself whether Members are disqualified or whether they should be expelled for any reasons. For example,the Commons has the right to fill casual vacancies by calling for a by-election. It can also determine the results of disputed elections. In practice this is now dealt with by the Election Ct.(See the case of Re MacManaway [1951] AC 161) PARLIAMENTARY PRIVILEGE

  17. Continuation on Collective Privileges: 2. Right to take cognisance of matters arising within the precincts of the House (Procedure) Parliament has exclusive power to determine how it will conduct its business. It regulates proceedings through Standing Orders of the House etc. No outside body including a ct of law may interfere with Parliament's internal workings. (See the case of Pickin v Britrish Railway Board-it was held that the cts are not prepared to intervene with the internal affairs of the House. PARLIAMENTARY PRIVILEGE

  18. Continuation on Colective Privileges: 2. The right to take cognisance of matters arising within the precincts of the House (Procedure) See also the case of Bradlaugh v Gosset [1884] 12 QBD 271. In this case, Parliament expelled an MP who had refused to take Oath of allegiance to the Crown under Parliamentary Oaths Act 1866, on the ground that he was atheist & the Oath would be meaningless. It was said that “the HOC is not subject to the control of the cts in the administration of that part of statute law which has relevance to its own internal proceedings” The ct would not intervene. PARLIAMENTARY PRIVILEGE

  19. Continuation on Collective Privileges: 3. Crimes in the House The House does not generally assert jurisdictions over serious criminal matters arising within its precincts. These are usually left to criminal cts. However, there are occasions of concurrent jurisdiction btn the House & the cts. For example, a Magistrate could appropriately issue a summons of assault & try the case, & the House might also decide that the incident amounted to contempt of the House. (See the case of R v Graham Campbell ex parte Herbert [1935] 1 KB 594- where the ct held that it had no jurisdiction to try breaches of the licensing law by the Kitchen Committee, for these were alleged to have taken place within the precincts of the House). PARLIAMENTARY PRIVILEGE

  20. Continuation on Collective Privileges: 4. Penal Jurisdiction of the House The House may employ various disciplinary measures against its members such as suspension & expulsion. This is as a result of a breach of privilege. For example, the House can vote to allow the offender be prosecuted by the Police like in 1972 when a stranger threw CS gas canister into the Chamber. Also, Gary Alligham (an MP) was expelled from the House in 1948 when he was found to have lied to a committee accusing other members of taking money. See the case of Stockdale v Hansard (1839) PARLIAMENTARY PRIVILEGE

  21. Procedure & complaints on matters of privilege: * As soon as possible after the oocurrence of an alleged breach of privilege or contempt, a Member must give written notice to the Speaker. The Speaker will decide whether this should take precedence & will inform Member of his decisions and if in favour will make an announcement to the House. * The House will then debate the motion whether to refer to the Committee of Privileges. (See Standing Order No. 121). The Committee's recommendations are reported to the House. The House's decision need not necessarily agree with the committee. (See Strauss Case-rejection of the Committee's recommendation by the House). PARLIAMENTARY PRIVILEGE

  22. The position of the MPs & oustide interests: MPs are supposed to discharge their functions honestly & without undue or improper influence from individuals or interest groups outside Parliament. For example, such a problem was considered in the HOC in the WJ Brown's Affair in 1947. Brown was an MP sponsored by the Civil Service Clerical Association. The Association came to disagree with Brown's political view & sought to terminate the sponsorship. Brown argued that this was a breach of privilege & threatened his independence & integrity. The Committee of Privileges found no breach in this instance & argued that it must be possible for the association to terminate the contract legitimately. PARLIAMENTARY PRIVILEGE

  23. The position of MPs & outside interests: (Continuation) Note: It is very difficult to determine where legitimate pressures end and where improper or unacceptable pressure begin. (a) Pressure Inside Parliament Party managers, by the use of the whip system & other means to seek control & influence over their Members. Anything which constitutes or may constitute obstruction, intimidation or blackmail would be the wrong side of the line. PARLIAMENTARY PRIVILEGE

  24. The position of the MPs & outside interests: (b) Outside Parliament The difficulties of drawing the line are greatest when pressures or the risks of influence come from outside connections which Members themselves have to embrace. There are Members who are trade union sponsored; who are being rewarded directly or indirectly by foreign governments & acting as consultants or advisers to pressure groups or commercial concerns. PARLIAMENTARY PRIVILEGE

  25. Reaction of the House to the problem of outside Parliament pressures: * WJ Brown's Case (1947), where the House has regarded it as contemptous when trade unions have overtly tried to restrict the freedom of their sponsored MP. Thus, in recent years the House has preferred to tackle the problem by publicity rather than prevention. The following are some of the means adopted by the House: - imposition of a duty upon Members to disclose their private interests when relevant. - to establish a Register of Members Interests (which was actually introduced in 1974) PARLIAMENTARY PRIVILEGE

  26. Abuses & possible reforms on Parliamentary Privileges: (a) The practice goes against the principles of natural justice. The House acts as judge in its own cause, which goes against natural justice- Strauss Case. Reform: Select Committee reported in 1967 & recommended that persons against whom a complaint is made should be entitled to attend hearings on the complaint, to make submissions & call witnesses & apply for representation & legal aid. (b) The ambiguity of the phrase “proceedings in Parliament”. PARLIAMENTARY PRIVILEGE

  27. Abuses & possible reforms of Parliamentary Privilege: Reform: The phrase 'proceedings in Parliament” should be defined in legislation. For example, the Joint Committee on Parliamentary Privilege Report 1999- has considered the question of definition & scope of the meaning “proceedings in Parliament” as this need to be clarified in order that Members are clear whether they are protected by privilege or not. (c) Abuse of the privilege of freedom of speech-The freedom clothes members with immunity from legal proceedings when they are engaged in “proceedings in Parliament”. Some Members use of privilege to say with impunity inside Parliament what they declined to outside it, has caused some critics to call for curtailment of this privilege, or at least means to prevent or correct what they see as its abuse. PARLIAMENTARY PRIVILEGE

  28. Abuses & possible reforms on Parliamentary Privilege: (d) Difficulties with the scope of the penal jurisdictions of the House. The Houses discriminating in their use of the various penalties at their disposal for dealing with offenders. Reforms: The Select Committee in 1967 had hoped that recourse to the House's penal jurisdiction would be confined to serious cases. In 1978, the House accepted guidelines to the effect that its powers of punishment should be resorted to as sparingly as possible. PARLIAMENTARY PRIVILEGE

  29. The standard of conduct in public life expected from MPs: * In the 1990's allegations that MPs had been accepting payment for asking parliamentary questions i.e., the 'cash for question' affair in 1994. * Improper payments being accepted by MPs from outsiders in form of payment for hotel bills etc. Because of all the above allegations, Lord Norlan came up with following suggestions in his report: (Report on Standards in Public Life 1996) -Selfishness:Holders of public office should take decisions solely in terms of public interest. PARLIAMENTARY PRIVILEGE

  30. Standard of conduct in public life expected from MPs: -Integrity:Holders of should not place themselves under any financial or other obligation to outside individuals or organizations that might influence them in the performance of their official duties. -Objectivity:In carrying out public business, including making public appointments, awarding contracts etc holders of public office should make choices on merits. -Accountabilty, openess, honesty & leadership (leadership by example). PARLIAMENTARY PRIVILEGE

  31. The HOC response to the report (Norlan Report): * Introduced a rule against paid advocacy. * Require members entering into agreements for the provision of service in their capacity of members to deposit the terms of their agreement with Parliamentary Commissioner for Standard at the same time as they are registered in the Register of Members Interests. * Established the office of Parliamentary Commissioner for Standards. The first commissioner was Sir Gordon Downey. * The Committee on Standards & Privileges undertook an investigation into the allegation against David Willets. As a result of the Committee's report, Mr Willets resigned from office. PARLIAMENTARY PRIVILEGE

  32. Other reforms suggested on the operation of Parliamentary Privilege: (The Joint Committee on Parliamentary Privilege Report 1999) * Defining “Proceedings in Parliament”. * “Contempt of Parliament” be statutorily defined. * Immunity from civil arrest be abolished. * On contempt of Parliament by non-members,the ct should be given concurrent jurisdiction. * The Parliamentary Papers Act 1840 be replaced by a modern statute. There should be a statutory code to supplement the statute. PARLIAMENTARY PRIVILEGE

  33. Conclusion: Both Houses of Parliament enjoy privileges, & that these privileges are essentially the same although there are some minor differences (i.e., the Lords does not have a compulsory Register of Members Interests). All in all, the privileges of Parliament are ancient origin but still serve their original function i.e., to protect Parliament from outside interference-albeit from different sources nowadays. Thus, privilege is a matter within Parliament's supremacy and the courts are slow to interfere. PARLIAMENTARY PRIVILEGE

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