The following evidence was submitted to the Select Committee on Parliamentary Privilege and printed with its Report of Session 1967-68, HC 34, as Appendix V to the Minutes of Evidence (pp 187-95).
- PRELIMINARY STATEMENT
- PART ONE: INITIAL PROCEDURE
- PART TWO: THE SCOPE OF PRIVILEGE AND CONTEMPT POWERS
- PART THREE: A POSSIBLE TRANSFER OF JURISDICTION
The Study of Parliament Group is a private group of university teachers and officers of both Houses of Parliament who have been meeting since the summer of 1964 under the chairmanship of Sir Edward Fellowes, former Clerk of the House of Commons. It exists to further serious study of the working of Parliament. This evidence has been agreed to by the group as a whole but does not necessarily express the views of every member.
We have considered three questions:
1. Is the initial procedure for raising matters of privilege in the House satisfactory?
2. Is the scope of privilege and contempt powers, particularly as they affect persons and bodies outside Parliament, too wide?
3. Should the exclusive jurisdiction of both Houses to adjudicate upon breaches of privilege and contempts be retained or modified?
As questions two and three raise fundamental issues on which we would not expect to find complete agreement (and did not find it amongst our members) we think it best to set out our suggested answers in three parts, making a firm division between them, to emphasise that they are not interdependent and might be accepted in whole or in part.
PART ONE: INITIAL PROCEDURE
The Select Committee on Procedure of 1959 drew attention to the anomalies arising from the practice which requires that a matter of privilege should be raised in the House at the first opportunity if it is to secure precedence in debate over the other business. The effect of this is that a member will often bring up in the House, for fear of losing his opportunity, a matter which further reflection might have led him to regard as trivial and not worth the trouble of pursuing. The Committee recommended that precedence over the orders of the day should not be withheld from matters of privilege, provided that they are raised not later than 24 hours after the first opportunity for so doing. This recommendation has not been adopted by the House. Although the Speaker is now allowed to defer for 24 hours his decision as to whether a matter which has been raised is prima facie a breach of privilege, the raising of the matter itself must still take place at the first opportunity. Whilst it is certainly desirable that the Speaker should be given time to reflect before giving his ruling, it would be better still if that reflection could take place, and the would-be complainant be apprised of its result, before that matter was raised in the House at all. We believe therefore that the recommendation of the Committee of 1959 should be implemented with the additional suggestion that a practice should be encouraged of members wishing to raise matters of privilege (other than ones needing the immediate intervention of the House) apprising the Speaker privately of their intention beforehand.
PART TWO: THE SCOPE OF PRIVILEGE AND CONTEMPT POWERS
Despite the theory that the privileges of Parliament are the privileges of the people acting through their representatives, the exercise of a wide jurisdiction to define the application of Privilege and to punish contempts has always implied some conflict of interest between Parliament and the electorate. Partly this is a matter of history. It is doubtful whether, if we were starting afresh and designing a legislative organ and a constitution, we should wish to strike the balance as it at present stands. The present prerogatives of Parliament stem in part from the successful outcome of its struggle with the Crown and rest also on its traditional judicial status as the High Court of Parliament. The power to punish contempts is not inherent in legislative functions (as the Privy Council has held in relation to colonial Parliaments).(1) It is not directly exercised by the Congress of the United States. Nevertheless, considering the matter from the standpoint of present utility rather than history, it is conceivable that the courts and the public have rightly recognised that both Houses enjoy a pre-eminent role in adjudicating upon matters affecting the operation of the legislative process. What the public may legitimately ask is whether all the powers claimed are genuinely needed in the twentieth century to secure the free working of Parliament as an institution. The rationale of contempt powers is the acknowledged right of both Houses to promote this end by the exercise of undisputed control over their own internal proceedings, A contempt is an act or omission which obstructs or impedes either House or its members or officers in the performance of their functions or which has a direct or indirect tendency to do so.(2) Where disorder, misconduct or molestation occur within the House the effect is direct and obvious. This may be less so with the range of actions (some of which May denotes “constructive contempts”) which may not occur within the precincts of either House or physically affect its proceedings, but which may be treated by the House as contemptuous on the basis of their direct or indirect tendency. Libels or reflections on the House fall into this category.
Breach of Privilege and Contempt
The difference between breach of privilege and contempt is of more than terminological interest since it touches on a major issue of principle about the limits to the Houses’ powers. Though the right to commit for contempt might itself as matters stand be classified as one of the privileges of the House, it is not amongst those specifically claimed by the Speaker at the beginning of each Parliament. Modern commentators have tended to deprecate the practice of speaking of all offences punished by the House as breaches of privilege on the ground that the power to punish for contempt is in principle not confined to those offences which can be identified as infringements of some specific head of privilege (Freedom of Speech, Freedom from Arrest and Molestation etc.). It might perhaps be imagined that if the true essence of contempt is that it “prevents the House from carrying out its work … as any legislature is entitled to” and if the function of the House is that of unimpeded debate and legislation, there cannot be a great many acts which are contemptuous but which “cannot be identified as a breach of privilege”–either the privilege of freedom of debate and proceedings or the right to be free from molestation (given the wide interpretation which the House has placed upon “proceedings” and “molestation” in its resolutions). Nevertheless there are acts and affronts punished as contemptuous which do not in a direct sense either infringe the privilege of free debate nor directly “prevent the House from carrying out its work”. The Clerk of the House in the words just quoted was answering Sir Kenneth Pickthorn who remarked that he had “been taught often the distinction between contempt and breach, but I always forget it as soon as I am taught it”.(3) In the past the House itself does not at all times seem to have drawn the distinction very clearly. Various forms of disobedience to the House’s orders, for example, were stigmatised in the Journals sometimes as contempt(4) and sometimes as unwarranted interferences with its privileges.(5) The forms of recalcitrance in issue, however–refusals to attend as witnesses, non-compliance with rules about petitioning or unlicensed publication of debates–were plainly connected with the House’s proceedings and classifiable as impediments, as almost any conceivable order by a legislative body naturally would be. More recently reflections on the House or its members have usually been labelled by the Committee of Privileges as contempts (cf. the Junor and Hogg cases with the cases of Jordan and Strauss). But the insistence on an ambit for contempt which is not in principle restricted to acts infringing established heads of privilege raises the very question which has notoriously been in issue between the courts and Parliament. Its historical significance has been in its reinforcement of the House’s claim to be the sole interpreter of the content and application of its privileges. It has never lain easily with the view that, at least where the House states the grounds for a committal, the courts are competent to decide whether the House has exceeded the limits of its known powers.
Constructive or unenumerated contempts
The privileges of Parliament are a part of the law of England and it is known what they are. It seems questionable whether a legislative body at the present time can properly claim the right to punish as contemptuous an additional unenumerated set of actions. When the function of such powers was in part to protect members from interference by the Crown, it might well have been dangerous to make any precise enumeration of rights claimed, for the reason which Blackstone gives, namely, that to delimit them exactly would be to invite encroachment at the limits. But that argument for keeping the rights of the Commons indefinite is less forceful today.
The result of this undefined reach of the House’s powers whether by way of contempt or applications of privilege is to maintain uncertainty about a large number of activities occurring outside the House which affect members in their roles as public representatives. The development of different modes of opinion-formation, interest group activity and political organisation inside and outside Parliament has obviously altered in a radical way the pressures which operate upon members and the environment in which they carry out their duties. Yet Privilege rests in part on eighteenth-century assumptions.
There is, for example, the major source of pressure, threats and inducements which is brought to bear on members by the Whips and party organisations to which Privilege and the law and custom of Parliament in general have offered no objection. At the same time actions, utterances or threats by private citizens, having much less coercive significance, are stigmatised as impediments to Parliamentary independence and free will. When Parliamentary proceedings are televised the conduct of the House and its officers may be subjected to a more direct form of scrutiny, comment and selective portrayal than now exists, and queries about the limits of what is permissible may multiply. It would seem therefore desirable to attempt some separation of the necessary and defeasible rights and immunities of members from those which are anachronistic.
A possible classification
Without seeking to enumerate a precise list of contempts or breaches, it may be possible to divide them into categories. Four suggest themselves:
(a) Direct interference with or obstruction of Parliamentary machinery, such as molestation of witnesses, disobedience to orders of the House, assaults, disorder and misconduct within the precincts of the House.
(b) Physical and financial intimidation calculated to coerce or penalise members’ votes or attitudes by threats of assault or attempts at bribery or other improper forms of monetary inducement.
(c) All other forms of political or psychological pressure brought to bear by individuals, interest groups or constituency or party officers (e.g. posting of names; threats relating to voting or renomination of members and certain methods of lobbying).
(d) Reflections, attacks or defamatory statements in speeches, writings or broadcasts (to which might be added other constructive contempts mentioned in Erskine May, e.g. perverted reports or misrepresentation of debates).
We would suggest that actions falling into categories (a) and (b) should continue to be treated as falling within the scope of privilege and contempt, and that those which fall into categories (c) and (d) should not. It is fair to say that we were not unanimous in wishing to exclude category (d) in its entirety and that we recognise that any exclusionary principle will not eliminate doubt in borderline cases. As an example of such a case one might nominate the Sunday Graphic complaint (H.C. 27, 1956-57) in which the editor was held to have erred in instigating readers to conduct a mass telephone lobby of a member compelling the member as a result to disconnect his telephone. There might be argument as to where such a case stands in relation to a borderline between physical molestation on the one hand and legitimate representation on the other. But we believe that there is such a dividing line and that most cases can be distinguished as falling on one side or other of it without undue difficulty.
Something may need to be said in amplification of the proposal for excluding from the ambit of privilege everything falling into our third and fourth categories, i.e. all forms of pressure other than physical and financial, together with all forms of reflection on the House by speech or writing.
This category is a broad one and contains some potentially crucial cases which do not seem to have been the subject of precise rulings by the House of its Committee of Privileges. Some forms of pressure which do not involve either physical or financial threats have been held to be improper (e.g. the posting of members’ names in a public place,(6) or certain types of circular sent to members by pressure groups or trade associations). On the other hand threats to withdraw electoral support or not to renominate a sitting member as the result of his conduct in the House are usually thought to be permissible. M.P.s are understandably reluctant to raise privilege issues in relation to their constituents(7) but the absence of cases of this type leaves it unclear whether there is thought to be something intrinsically different about threats of electoral, as distinct from other, action or whether, for example, there is a distinction to be drawn between penalising the past and influencing the future activities of a member; or between pressures relating to general future conduct as compared with attempts to secure a particular vote on a future measure by threats connected with elections or the nominating process. Whatever the present position, it is hard to conceive of a principle which penalises the threats of individuals and pressure groups whilst tolerating those of constituency caucuses and party Whips. The House cannot consistently adopt a Burkeian stance and claim immunity from the former whilst tolerating and embracing the latter, Furthermore, the credibility, and therefore effectiveness of Parliamentary criticism of the executive depends to a large extent on its being reflective of electoral opinion. Members should therefore not be shielded against electoral criticism.
Reflection by speech or writing
The case for excluding this category is simply that of promoting the freedom of speech. Privilege and contempt powers are meant to ensure freedom of speech by members in the House and obvious interference with the legislative process is hostile to the freedom of expression. Adverse reflection or even misrepresentation by outsiders does not, in the same sense, directly hinder members themselves from speaking as conscience demands and the assumption that it will do so indirectly in the long run, if unchecked, is an unproven one. As the courts have conceded, following Coke and Blackstone, the House’s judgment is to be trusted and given effect to in matters necessary to the control of its internal proceedings. Whatever matters arise in this sphere are to be determined in the House to which they relate and not elsewhere. Even where the general law is in question but falls to be enforced within the walls of the House–as by the administration of an oath (Bradlaugh v. Gossett)(8) or by supplying intoxicants to members (Ex parte Herbert)(9) there is still a sense in which the privilege and issue in question relates to and concerns the House in which it arises. But what is said in newspapers or television does not in the same sense relate to the House. It relates to the Press and broadcasting equally. It affects the rights of citizens as well as M.P.s, and the case for allowing the line between liberty and licence to be drawn exclusively by members is to that extent weaker.
It is interesting at least to note the direction taken by recent American doctrine as to the constitutional right of citizens to criticise legislators and public officials. Such criticism is protected by the free speech guarantee in the First Amendment even if it contains distorted or untrue factual statements. In New York Times v. Sullivan(10) in 1964 it was said that neither factual error nor injury to official reputation afford a warrant for suppressing attacks on official conduct in public affairs. In public controversy, it was added, “there are notoriously resorts to exaggeration, to vilification of men who have been or are prominent in Church or state and even to false statement. … Erroneous statement is inevitable in free debate and … must be protected if the freedoms of expression are to have breathing space they need to survive”.(11) Congress has not yet been reduced to impotence or incoherence by exposure to this constitutional hazard. The American principle contrasts markedly with the attitude which the Commons has on occasion adopted towards the right of outsiders to attack the conduct of the House or its officials. The Committee of Privileges recently concluded (Mr. Hogg’s case) that it is important “that the law of Parliamentary privilege should not, except in the clearest case, be invoked so as to inhibit or discourage the formation and free expression of opinion outside the House … in relation to the conduct of the affairs of the nation”.(12) Given that the conduct of the House and its members constitutes an important part of the affairs of the nation, it is not easy to reconcile this declaration by the committee with the attitudes of individual members in seeking the protection of privilege, particularly at times of acute party controversy. (Some of the cases raised in 1956 and 1964-65 might be suggested as examples.) If the comment may be made without disrespect, Members of Parliament are in no way different from anybody else in their reaction to the freedom of speech and discussion. Everybody, and particularly all governments and office holders, believe in it in principle and in general, but less so in particular and when its manifestations are adverse to their own reputations or conduct, or when they believe criticism to be uninformed, untruthful or unfair. We believe the reputation of Parliament to be sturdy enough to withstand without special protection anything which is said, written or broadcast about it. Defamatory statements about individual members are subject to the law of libel, but the legislature ought not as an institution to be more in need of protection than any other part of the constitution such as the Crown. In principle the Crown and Parliament are protected by the law of seditious libel. A conviction however for that offence in modern times requires proof of language ” calculated … to promote public disorder or physical force or violence in a matter of State”.(13) There seems no reason why Parliament should wish to impose in its own defence a severer control on the freedom of speech than the general law of the land.
PART THREE: A POSSIBLE TRANSFER OF JURISDICTION
Assuming that activities in the first two categories distinguished above continue to be treated as breaches or contempts (or even if no restriction in scope is acceptable) it may be asked whether the House’s function in itself hearing and adjudicating upon disputed cases is open to objection. Criticism levelled in the past has amounted to saying that the House’s procedure involves infringement of the principles of natural justice–that none shall be condemned unheard and that none shall be a judge in his own cause. As against such criticisms it has been said that the exercise of contempt powers by courts or Parliament necessarily involves judgment by a court of the alleged contempt and that in its procedure the House accords substantial (if not natural) justice to accused persons. A further issue is raised by the question of legal representation.
Right to hearing and legal representation
The House, of course, normally gives to persons accused of contempts or breaches of privilege a hearing before the Committee. Difficulties can however arise. In 1956 the Editor of the Romford Recorder complained that he had not been allowed to put his case to the Committee or to publish his defence to an allegation of contempt. In this case(14) the difficulty arose because the Committee decided to take no action and presumably thought it unnecessary in the circumstances to hear the Editor or to print in its report to the House the written statement which he had submitted. When an inquiry was made whether it would be permissible to publish this statement the reply given to the Editor was that the House’s resolution of 1837 precluded the publication of statements or evidence given to a committee but not reported to the House. This last is a point of more general significance and we suggest that the necessity for the rule in its present form should be re-examined.(15)
A related grievance stemming from the 1956 cases arose from the conclusion by the Committee of Privileges that “Comment on a matter which has been referred to the Committee … before the report of the Committee thereon bas been made to, and considered by, the House may constitute a contempt”.(16) It was not perhaps clear whether what was in issue was an application of the sub-judice rule or an independent contempt of improper comment, but in either event the claim seems a wide one, not easy to defend in principle.
The opportunity to be represented by Counsel is a facility which is not conceded as of right, though May mentions cases where it has been permitted, the hearing being sometimes limited to “such points as do not controvert the privileges of the House”. It is sometimes suggested, in fact, that the House is more lenient to accused persons than it might otherwise be and that the absence of legal representation is a positive benefit to them as compared with a more judicialised form of procedure. If this argument were taken seriously it might be a reason for questioning the value of legal representation in other spheres too. But, if anything, the right to representation before a wide range of bodies exercising administrative as well as judicial functions has been increasingly recognised in recent times. The Franks Committee treated it as a general right with some particular exceptions (to secure cheapness and speed of proceedings) which are without relevance to the present issue. Some might argue that the right to representation is implicit in the principle of natural justice which urges the right to be heard. That view would certainly be taken in the United States where in recent times arguments about the utility of the right to Counsel have been more thoroughly debated than in any other liberal society.(17)
Impartial judgment and the analogy with judicial contempt powers
The criticism that a denial of natural justice is involved in the House’s judging its own cause is sometimes answered by the assertion that this is inherent in the power exercised by any court when it exercises contempt powers. Two points may be made here. One is that the judicial power to punish for contempt has itself not escaped criticism (not least by the Commons)(18) and has been the subject of recent legislation. The other substantial point is that there are marked differences between the contempt power as exercised by a legislature and by the courts. Apart from civil contempt powers designed to secure obedience to orders made by the court, committal proceedings of a criminal nature are used either for the purpose of avoiding prejudice to impending proceedings or to prevent the undermining of judicial authority by conduct which is abusive or scandalous. Only the last purpose bas any relevance by way of analogy to the major use of the Parliamentary power, and the analogy is not a strong one. The punishment of this form of contempt against judges and courts is tied to the notion that they are not political bodies and to the principle that the adjudicative process ought to be immunised as far as possible from political or public pressure. The power is rarely invoked against speeches or writings. “No wrong is committed by … criticising in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way; the wrongheaded are permitted to err therein. … Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.(19) The power is not exercised without appeal. Under the Administration of Justice Act 1960 there is an appeal to the Divisional Court of the Court of Appeal from lower courts and from orders made by those courts appeal lies to the House of Lords.
The House of Commons on the other hand, whatever its formal status, is not in substance a judicial body. An assembly of six hundred and thirty members cannot be, and is the wrong sort of body to carry out an essentially adjudicative process, namely the resolution of an individual case arising under the law and custom of Parliament. Even adjudication by a legislative committee may be thought objectionable in principle. In a nineteenth-century privilege case involving The Times newspaper a Conservative solicitor-general once called it “the unsatisfactory arbitrament of a committee of the House of Commons nominated by the political leaders or the political managers of that House”.(20) It was feelings of this kind which persuaded the House to commit to the courts the adjudication of disputed elections (by the Parliamentary Elections Act, 1868). We suggest that consideration should now be given to a similar transfer to the courts of jurisdiction over cases of contempt or breach of privilege.
Transfer of Jurisdiction
General questions of law relating to privilege–and sometimes affecting individual cases, as with the Rev. J. G. MacManaway and Mr. Strauss–are already referred on occasion to the Judicial Committee of the Privy Council. A more appropriate tribunal for the present purpose would probably be two judges of the High Court as with election petitions.(21) If the arguments for narrowing the basis of the offences in question are valid it would not be satisfactory merely to give the court the task of applying the existing precedents as formulated in Commons resolutions and reports of the Committee of Privileges. One of several courses might be followed, e.g.:
(a) To set out a number of general heads of breach or contempt, following the method adopted in the Privilege Laws of many Commonwealth legislatures(22) (but omitting any reference to slanders or libels on the House).
(b) To enact as a statutory definition the general description of contempt in Erskine May (but omitting any reference to “indirect tendency”) i.e.–“an act obstructing or having a direct tendency to obstruct or impede either House in the execution of its functions”. This test might be applied generally to the issue “whether any person, other than a member of either House, has acted in violation of the Privileges of Parliament, or contrary to the provision of Article 9 of the Bill of Rights, or has otherwise committed a contempt of either House”.
The interpretation of this formula would obviously involve an element of judicial legislation but as a justiciable issue it would be no broader than many statutory formulae which the courts apply in other fields (Restrictive Trade Practices for example) or in the development of general concepts such as negligence or public policy. An enactment of this kind would leave within the House’s jurisdiction the determination of offences committed by Members within the House (such as, for example, the Allighan and Profumo cases). It would be for consideration whether offences committed by members outside the House should be determined by the House or referred to the court. The judicial procedure need not of course follow automatically upon every complaint of breach of privilege. The existing procure of reference to the Committee of Privileges could be followed and the Committee could then either decide to recommend no action or to advise reference to the court. Statutory penalties would need to be incorporated in the legislation.
We think that there are good reasons both for clarifying the scope of privilege and contempt powers in principle and also for providing a judicial forum where justice is seen to be done in individual cases. It is reasonable that citizens and political interests of all kinds should know what they may and may not do and the situation of uncertainty which indefinite powers engender seems unhealthy whatever its historical justification. It is important also to remember that uncertainty is not confined to this country, since British practice and convention may be incorporated by reference in some Commonwealth law (as the Australian Bankstown Observer case of 1955 illustrates).
The transfer of an undisputed jurisdiction to the courts would in part resolve a long-standing duality between the claims of the courts and those of Parliament. In theory, as May remarks, “there may be at any given moment two doctrines of privilege, the one held by the courts, the other by either House, the one to be found in the Law Reports, the other in Hansard; and there is no way of resolving the real point at issue should the conflict arise”.(23) In principle Parliament cannot extend its privileges, but an undefined power to commit for contempt approaches to the exercise of such a power. Rival claims by Legislature and judiciary ought not be remain unresolved and apart from any other consideration the graceful yielding of the Parliamentary jurisdiction to punish offenders would help to heal this minor breach in the fabric of the constitution.
1. Kielley v. Carson, 4 Moo P.C. 63.
3. H.C. 247, 1964 (Complaint concerning speech by Rt. Hon. Quintin Hogg), Minutes of Evidence, p. 18.
4. e.g. C.J. 1770-1, 208 (cases of Thomson and Wheble).
6. H.C.181, 1945-46 (Mrs. Tennant’s case).
7. None of the members whose constituents took action against them in 1956 after the Suez vote of confidence made any effort to invoke Privilege. A similar issue might have been raised by a threat reported in The Times in 1958 (7th March), “Brierley Hill Labour Club, Staffordshire, are informing Mr. C. J. Simmons, Labour M.P. for the constituency that unless he drops his Private Members’ Bill now before the House of Commons, the Club will advise its 600 members not to support him at the next General Election”.
13. Rex v. Aldred (1909), 22 Cox 1, at p. 3.
15. For example, in relation to the reporting contemporaneously of evidence to Select Committees. See for example The Times complaint (29/5/58) about the evidence given to the Select Committee on the Obscene Publications Bill that none of the evidence given by the Home Office, Customs and Excise, the Metropolitan Police Commissioner or the Publishers’ Association was reported in the Press at the time. “The newspapers had to wait more than nine months before they could inform their readers of the testimony … given on a matter of extreme interest and considerable legal and social importance and when the reports did appear … the bulky Blue Book could not be condensed into a column or two.”
The difficulties might be less if (1) Committees more frequently sat in public and (2) if Committees more frequently exercised their power to report from time to time written evidence, at least from persons outside the public service, in advance of the Committee’s report to the House. This would not, of course, necessarily involve publication or disclosure of any oral evidence, transaction or proceeding in the Committee.
17. e.g. Article 6 of the Bill of Rights. Gideon v. Wainwright, 372 U.S. 335 (1963), Powell v. Alabama, 287 U.S. 45, at 68 (“The right to be heard would be in many cases of little avail if it did not comprehend the right to be heard by counsel”).
18. In 1908 it was resolved (185 Parl. Deb., 4s., col. 1394) “that the jurisdiction of Judges in dealing with contempt of court is practically arbitrary and unlimited and calls for the action of Parliament with a view to its definition and limitation”.
19. Ambard v. Attorney General for Trinidad and Tobago (1936), A.C. 323, 335.
20. Sir Edward Clarke, Public Speeches, 1890, p. 122.
21. Petitions are heard by two judges who notify the Speaker in writing of their decision. (Representation of the People Act, 1949, section 110).
22. Uganda provides an example. See the Legislative Council (Powers and Privileges) Ordinance, 1955 (No. 11 of 1955).
23. Cited by May from Keir and Lawson, Cases in Constitutional Law (4th ed.), p. 125.
© 1968, Study of Parliament Group
Prepared by Simon Patrick, 24 July 2001