The need for parliamentary privilege
The ancient origins of parliamentary privilege, and the archaic language that is sometimes used in describing it, should not disguise its continuing relevance and value. The work of Parliament is central to our democracy, and its proceedings must be immune from interference by the executive, the courts or anyone else who may wish to impede or influence those proceedings in pursuit of their own ends.
“Exclusive cognisance” and the rule of law
The corollary of Parliament’s immunity from outside interference is that those matters subject to parliamentary privilege fall to be regulated by Parliament alone. Parliament enjoys sole jurisdiction—normally described by the archaic term “exclusive cognisance”—over all matters subject to parliamentary privilege. As Sir William Blackstone famously noted in his Commentaries on the Laws of England, the maxim underlying the law and custom of Parliament is that “whatever matter arises concerning either house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere”.
The principle of exclusive cognisance underpins all privilege, including those aspects of privilege which are now based in statute. Thus Article 9 of the Bill of Rights, the most important statutory expression of parliamentary privilege, 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”. This encapsulated a pre-existing claim to exclusive cognisance over things said or done in Parliament—the preamble to the Bill of Rights notes that King James II had sought to subvert the liberties of the realm “by Prosecutions in the Court of King’s Bench for Matters and Causes cognizable only in Parliament”.
A consequence of Parliament’s possession of exclusive cognisance over proceedings in Parliament is that participants, both Members and non-Members, are not legally liable for things said or done in the course of those proceedings; nor are those outside who are adversely affected by things said or done in Parliament able to seek redress through the courts.
Thus exclusive cognisance in certain circumstances may over-ride other generally accepted legal rights. It is, in effect, an exception to the general principle of the rule of law. This has been accepted by the courts since at least the case of Bradlaugh v. Gosset in 1884, in which the court held that the decision of the House of Commons in resolving not to allow an elected Member, Charles Bradlaugh, to take the oath, and the actions of the Serjeant at Arms in preventing Bradlaugh from entering the House, were subject to the sole jurisdiction of the House—even though Bradlaugh was under a statutory obligation to take the oath in accordance with the Parliamentary Oaths Act 1866. In his judgment, Mr Justice Stephen held that “the House of Commons is not subject to the control of Her Majesty’s courts in its administration of that part of the statute law which has relation to its own internal proceedings”. That ruling holds true to this day and should do so in perpetuity.
The tension between parliamentary privilege and the general rule of law can be uncomfortable. In his response to Government’s consultation on the Green Paper, Dr Adam Tucker, Lecturer in Law at the University of Manchester, asserted that “Parliamentary privilege undermines the rule of law. Specifically it undermines the requirement, which is central to the rule of law, that the law be general”. But he continued: “The rule of law is not, however, an absolute principle. Its claims must be balanced against the competing claims of other principles. One of those competing principles is the separation of powers, specifically the requirement that no branch of government should interfere in the operation of another branch of government. There are occasions when insisting upon the general application of the law would cause (or risk causing) the judiciary or the executive to interfere with the proper operation of Parliament.” In the United Kingdom, Parliament’s exception to the general application of the law has, over time, become a fundamental constitutional principle, itself part of the law. The European Court of Human Rights has also acknowledged that the immunity conferred by parliamentary privilege, even though it may restrict the right of access to the courts, is proportionate.
The limits of exclusive cognisance: the “doctrine of necessity”
The possibility of tension between parliamentary privilege and the rule of law means that Parliament’s claim to exclusive cognisance should be strictly limited to those areas where immunity from normal legal oversight is necessary in order to safeguard the effective functioning of Parliament. It is agreed that immunity applies to that core work itself, to things said or done as part of proceedings in either Chamber or in a select committee of either House—the “proceedings in Parliament” whose immunity from challenge is enshrined in Article 9. The difficulty lies in assessing how far such immunity applies to ancillary matters, to things said or done outside proceedings themselves, but which are necessarily connected to those proceedings.
Both the courts and committees have in recent years adopted a test based on a “necessary connection” to proceedings, in assessing whether or not privilege extends to certain activities. Thus the “one test” adopted by the 1999 Joint Committee in assessing the value of any element of parliamentary privilege was “whether each particular right or immunity currently existing is necessary today, in its present form, for the effective functioning of Parliament”.
In R v. Chaytor, Lord Phillips of Worth Matravers applied an essentially similar test:
“In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament”.
In the 2005 case of Canada (House of Commons) v. Vaid the Supreme Court of Canada went so far as to elevate this approach into a “doctrine of necessity”:
“If the existence and scope of a privilege have not been authoritatively established, the court will be required to test the claim against the doctrine of necessity—the foundation of all parliamentary privilege. In such a case, in order to sustain a claim of privilege, the assembly … must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their legislative work with dignity and efficiency”.
We endorse the approach adopted in Vaid. Absolute privilege attaches to those matters which, either because they are part of proceedings in Parliament or because they are necessarily connected to those proceedings, are subject to Parliament’s sole jurisdiction.
One of the advantages of the “doctrine of necessity” is that it ensures a degree of flexibility. The working practices of Parliament change, and our understanding of what is or is not subject to Parliament’s sole jurisdiction needs to adapt and evolve accordingly.
It is therefore neither possible nor desirable to identify and specify every single element of parliamentary privilege. This point was made forcefully to us by Sir Robert Rogers KCB, the Clerk of the House of Commons, who said that “It is very difficult to have a shopping list that meets every possible development or eventuality”. He then gave examples of the kind of developments that might be missed in preparing a “shopping list” of matters subject to exclusive cognisance, such as decisions of the Speaker on meetings organised by all-party groups. David Beamish, the Clerk of the Parliaments, agreed, noting that “one problem with a list is that what Parliament does evolves and you need to adapt”.
If flexibility is the key advantage of adopting the “doctrine of necessity”, the other side of the coin is that such flexibility leaves an element of uncertainty, at least at the outer edges of privilege. There is reasonable clarity in those key areas where elements of parliamentary privilege have been expressed in statutory form. There is no question, for instance, that “freedom of speech and debates or proceedings in parliament”, the areas set out in Article 9 of the Bill of Rights, are absolutely privileged. But the terms themselves have not been authoritatively defined in modern times—Erskine May notes that “it has been concluded that an exhaustive definition [of proceedings in Parliament] could not be achieved”.
There is also an exception to the general principle of necessity in the existence of certain powers that are part of the “law and custom of Parliament” (sometimes known by the Latin term lex et consuetudo parliamenti). These ancient powers, including a power to punish breaches of privilege, or contempts, are deemed to be inherent in the two Houses of the Westminster Parliament—though not in Commonwealth parliaments of more recent date. In the words of Erskine May:
“The power to punish for contempt has been judicially considered to be inherent in each House of Parliament not as a necessary incident of the authority and functions of a legislature (as might be argued in respect of certain privileges) but by virtue of their descent from the undivided High Court of Parliament and in right of the lex et consuetudo parliamenti”.
The role of the courts
In the absence of an exhaustive definition of “proceedings in Parliament”, certain matters are generally accepted as falling within the terms of Article 9, and in such cases Parliament’s sole jurisdiction may be said, in the terms used in the Vaid judgment, to have been “authoritatively established”. These matters include:
the procedures adopted by the two Houses: the courts may not challenge the means by which legislation was passed or decisions reached;
proceedings in Parliament: words spoken in the course of debate, votes cast, or decisions taken by either House;
actions of Members, office-holders or officials which are necessarily linked to proceedings.
Although cases relating to such matters could in theory come before a court, our expectation is that where the existence of a privilege is authoritatively established (either by statute or, in some cases, by case law), the court will immediately decline jurisdiction, without enquiring further into the nature or origins of the privilege.
Yet even here there may be uncertainty, not over the existence of a privilege, but over its precise extent. For instance there may be uncertainty over the extent to which the protection afforded by Article 9 extends beyond words spoken in the course of debate to briefing or correspondence that is preparatory to that debate. In such cases of uncertainty, the decision as to whether a matter falls within Parliament’s sole jurisdiction rests, paradoxically, with the courts. This has been accepted at least since the case of Stockdale v. Hansard in the 1830s, in which the Lord Chief Justice, Lord Denham, while accepting in terms that “whatever be done within the walls of either [House] must pass without question in any other place”, rejected the proposition that the House of Commons, in its guise as a court, had sole jurisdiction over the extent of its own privileges:
“Where the subject matter falls within their jurisdiction, no doubt we cannot question their judgment; but we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privileges, I have already stated my answer: it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it”.
This approach was endorsed and re-stated by Lord Phillips of Worth Matravers in R v. Chaytor: “the extent of parliamentary privilege is ultimately a matter for the court”.
The role of statute
The courts can only interpret and apply the law—Parliament alone can make law. So underlying the generally accepted proposition that determining the extent of parliamentary privilege is a matter for the courts is the fact that, if the courts interpret privilege in a way which Parliament perceives to be wrong or damaging, Parliament has the power simply to change the law. This point was forcefully made by the Lord Chief Justice of England and Wales, Lord Judge, in oral evidence: “ultimately it is Parliament that is sovereign”.
The Lord Chief Justice’s comment accurately reflects the development of privilege not only in this country but in other jurisdictions. We have already quoted the preamble to the Bill of Rights 1689, which referred to the arbitrary rule of King James II: the Bill of Rights was explicitly enacted by the Lords and Commons “for the Vindicating and Asserting their ancient Rights and Liberties”.
In the case of Stockdale v. Hansard, already mentioned, the court held that the House’s publisher, Thomas Hansard, was not protected from an action for defamation in respect of a report published by order of the House. The long-running law-suit led ultimately to the enactment of the Parliamentary Papers Act 1840, which put the immunity afforded to such reports on a statutory basis.
In more recent times, the Australian Parliamentary Privileges Act 1987, perhaps the most comprehensive statutory expression of the meaning and extent of privilege, was enacted “for the express purpose of overturning the adverse court judgments” in the New South Wales case of R v. Murphy, where the court allowed both prosecution and defence to make “free use of the evidence given before the Senate committees for their respective purposes”.
The Privileges Committee of the New Zealand House of Representatives has recently recommended legislation in response to two adverse court decisions, on a Member’s liability to legal action in respect of the “effective repetition” of statements previously made in Parliament, and on the status of briefing materials provided to a minister for the purpose of answering a parliamentary question. The Clerk of the House of Representatives, Mary Harris, recalled the Australian experience in describing the position: “we have got to the point that the Australians perhaps got to in the 1980s with the Murphy case, where the courts had taken a direction that was starting to impinge potentially on the way the House might operate and, therefore, at the very least proceedings in Parliament need to be defined”.
Thus there have been many examples of parliaments enacting legislation in response to adverse decisions of the courts regarding the extent of their exclusive cognisance. On the other hand, attempts by Parliament to assert its privileges short of legislation have been less successful. Responding to the actions of the court in the course of the Stockdale v. Hansard case, the House of Commons passed a series of resolutions asserting, among other things, “that the House had sole and exclusive jurisdiction to determine upon the existence and extent of its privileges.” The court rejected the proposition, describing it as “abhorrent to the first principles of the constitution”. As mentioned above, the conflict was resolved only by the enactment of the Parliamentary Papers Act 1840.
The Lord Chief Justice, in oral evidence, commented on the status of resolutions as follows:
“The reality is that a resolution of both Houses does not change the law—it can’t. So if both Houses pass a resolution but decide that they are not going to pass an enactment, the law does not change. If there were a resolution by both Houses in the field of parliamentary privilege saying, “This is how we would like to—we must—conduct our business and it is necessary for our business,” I think it would be pretty astonishing if the court said, “Well, so what?” But there might be some right in someone else—a right vested in them by statute—that would overbear the resolution”.
While these comments demonstrate the respect that the senior judiciary afford to the views of the two Houses, they also illustrate the difficulty that would be faced by judges in construing resolutions of the two Houses. Ultimately the role of the courts is to apply the law, and anything short of statute could be overborne by pre-existing legal rights. A more succinct expression of the same basic point was offered by Mr Justice Blake in a recent case, in which he held that: “it has long been the law that a resolution of the House of Commons is not given supremacy akin to primary legislation by the court”.
In summary, if Parliament feels that the limits of its exclusive cognisance have been eroded to the extent that it can no longer effectively perform its core work, it can change the law. But this is a last resort, and such legislation carries the risk that statute law, and the judicial interpretation of that law will, over time, ossify privilege, taking away the possibility of evolution and adaptation to changing circumstances. The Lord Chief Justice put the point as follows:
“Parliament has to decide whether it has sufficient privilege to be able to conduct its business in the way that Parliament wishes. If you have reservations about that, you have to produce a system that enables you to have the conditions under which you can perform your responsibilities properly. If you had no real reservations about it, I would not go down a legislative route that defined, semi-defined, sub-divided, allowed for, or exercised this and that, because you would end up in interminable discussions, and, in court, interminable arguments, about what that really meant. Unless you are dissatisfied with the way in which your privileges operate, I would leave this well alone”.
The fact that legislation to confirm the scope and meaning of parliamentary privilege is a “last resort” means that it also tends to be reactive. The flexibility that we have already identified as one of the key advantages of the doctrine of necessity militates against proactive statutory codification.
The 1999 Joint Committee, having undertaken an exhaustive analysis of the component parts of parliamentary privilege, was well aware of the advantages and disadvantages of codification—essentially, increased clarity as against reduced flexibility. The Joint Committee, having weighed up these considerations, concluded that “There should be a Parliamentary Privileges Act, bringing together all the changes in the law referred to above, and codifying parliamentary privilege as a whole”.
The Green Paper dissents from this key recommendation, noting that “the Government does not see enough evidence of problems in practice to justify such a significant exercise”. The first, over-arching question posed in the Green Paper invites agreement with this conclusion: “Do you agree that the case has not been made for a comprehensive codification of parliamentary privilege?”
There is an important difference between what is here called “comprehensive codification”, and what we have described earlier in this chapter, namely the pragmatic use of statute, as a last resort, to confirm or clarify specific elements of privilege when court decisions or executive action have cast doubt upon them. In reality, and notwithstanding the recommendation of the 1999 Joint Committee, we are not aware of any country which relies on privilege having sought to bring about “comprehensive codification” of that privilege. The example most often cited, the Australian Parliamentary Privileges Act of 1987, was a direct response to the courts trespassing on parliamentary exclusive cognisance; at no stage did it purport to be a “comprehensive codification” of all aspects of privilege. Indeed, the 1987 Act explicitly retained the general constitutional basis for privilege in Australia, that is to say the privileges of the United Kingdom House of Commons.
This point was clearly made in the evidence submitted by the President and Clerk of the New South Wales Legislative Council:
“The UK Green Paper perhaps overstates the case when it characterises the Parliamentary Privileges Act 1987 (Cth) as an attempt at ‘comprehensive codification of privilege’ … The Commonwealth legislation … was a legislative response to particular circumstances in an attempt to reassert the true law of privilege. It was not an attempt to cover the field of privilege. Section 5 of the Parliamentary Privileges Act 1987 specifically preserves parliamentary privilege as it existed prior to the Act under section 49 of the Commonwealth Constitution of Australia”.
We accordingly disagree with the 1999 Joint Committee’s recommendation seeking to codify “parliamentary privilege as a whole.” There is no precedent for such codification, and the potential consequences are impossible to predict. At the same time, our opposition to “comprehensive codification” does not mean that we rule out legislation, where such legislation is needed to resolve uncertainty and confirm the existence or extent of specific privileges.
In summary, the following general principles underlie our examination of the issues addressed in the Green Paper and in this report:
Absolute privilege attaches to those matters which, either because they are part of proceedings in Parliament or because they are necessarily connected to those proceedings, are subject to Parliament’s sole jurisdiction or “exclusive cognisance”.
The extent of Parliament’s exclusive cognisance changes over time, as the work of Parliament evolves: it would be impracticable and undesirable to attempt to draw up an exhaustive list of those matters subject to exclusive cognisance.
Where there is uncertainty in a case brought before the courts, the extent of Parliament’s exclusive cognisance will be determined by the courts.
Parliament cannot establish a new privilege or extend an existing privilege by resolution; if Parliament were to consider that its privileges had been reduced to the extent that it could no longer effectively perform its core work, it could in the last resort change the law.
We do not consider that comprehensive codification is needed at this time. This does not mean that we reject all legislation; but legislation should only be used when absolutely necessary, to resolve uncertainty or in the unlikely event of Parliament’s exclusive cognisance being materially diminished by the courts.
26 Sir William Blackstone, Commentaries on the Laws of England (1765), pages 58 to 59
27 Erskine May’s Treatise on the Law, Privileges, Proceedings and Usages of Parliament, 24th edition, ed. Sir Malcolm Jack KCB (hereafter Erskine May, 24th edition), page 291
28 Bradlaugh v. Gosset (1884) 12 QBD 271
29 Dr Adam Tucker response to Government consultation on the Green Paper, Cm 8318, paragraph 2
30 A v. The United Kingdom  ECHR 35373/97
31 Report from the 1999 Joint Committee on Parliamentary Privilege, paragraph 4
32 R v. Chaytor and others  UKSC 52, paragraph 47
33 Canada (House of Commons) v. Vaid  1 SCR 667, paragraph 4
34 Q 191
36 Erskine May, 24th edition, page 235
37 Ibid., pages 203 to 204
38 Stockdale v. Hansard (1839) 9 Ad & E 1, pages 147 to 148
39 R v. Chaytor and others  UKSC 52, paragraphs 15 and 16
40 Q 246
41 Odgers’ Australian Senate Practice, 13th edition (2012), pages 48 to 49
42 Jennings v. Buchanan  UKPC 36
43 Attorney General and Gow v. Leigh  NZSC 106; Report from the Privileges Committee of the New Zealand House of Representatives on Question of privilege concerning the defamation action Attorney-General and Gow v. Leigh, I.17A, June 2013
44 Q 134
45 Erskine May, 24th edition, page 289
46 Q 248
47 Izuazu (Article 8 – new rules)  UKUT 00045 (IAC)
48 Q 239
49 Report from the 1999 Joint Committee on Parliamentary Privilege, recommendation 39; see also paragraphs 378 to 385
50 Cm 8318, paragraph 38
51 Section 49 of the Commonwealth of Australia Constitution Act states that “The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.”
52 Written evidence from the New South Wales Legislative Council
See for the Principles
Acknowledgment: UK parliament