By Sir Malcolm Jack
Former Clerk of the House of Commons
Parliamentary privilege first resulted historically from the assertion of one branch of our constitution – the legislative – against the other branch, the executive.
One of the less known but highly symbolic proceedings in the House of Commons is the presentation of a humble petition, at the commencement of each Parliament, by the Speaker of the House to Her Majesty the Queen laying claim to the ‘ancient and undoubted privileges’ of the Commons.
These privileges include most importantly, freedom of speech in debate but also other freedoms – from arrest and of access to the monarch whom the petitioners beg will look favourably upon their proceedings. The petition is answered by the Presiding Commissioner of the Royal Commission under letters patent, confirming the monarch’s acceptance of all the rights and privileges claimed by the House as set out in the petition.
The particular significance of this little known procedure is to remind us that the privileges of the House were historically gained by an assertion of parliamentary power against the then executive, an absolute monarch.
That early struggle with the Crown can be traced back to the sixteenth century. The origin of the most important privilege, freedom of speech, was established by the tradition of seeking ‘favourable construction’ by the monarch of words spoken in the House, a formula still used in the Speaker’s petition today. The monarch was being asked not to act against any Member on account of what that Member had said in debate: in that sense the legislature was exerting its own authority over the executive.
For a long period there was some ambiguity about exactly how this freedom fitted in with the notion that nevertheless decorum should be shown to the monarch in speeches in the House. When Sir Thomas Gargrave, Speaker petitioned the Queen in 1559 for ‘favourable construction’ of words spoken she acceded to the request but with the slightly ominous warning: ‘your diligence and carefulness be such, Mr Speaker, that the defaults in that part be as rare as may be.’
Another basic freedom – from arrest also had a chequered history. When in some cases the Commons claimed that it was a custom for Members and those serving the House to be protected from arrest, the Crown acting through the courts upheld the view that there was no such custom. In asserting this right, Parliament was attempting to stop the arbitrary arrest of Members who had in one way or another, displeased the Crown. Matters reached a climax when, in 1629, Charles I obtained the arrest of Sir John Eliot and two other Members for seditious words spoken in debate and for violence against the Speaker who had been restrained in his Chair so that the House could not be adjourned. Various acts after the Restoration asserted that the ancient privileges of Parliament could not lawfully be interfered with.
Among the freedoms the Houses insisted upon was access to the monarch in the sense that each House, as a body, could petition the Crown. One of the early and enduring exceptions made by the Commons in asserting its privilege was that there was no exemption for Members from being charged with criminal offences on privilege grounds. That distinction has made the English system different from others where immunity from prosecution for legislators is part of many constitutional arrangements.
Eventually statutory expression was given to parliamentary privilege in the Bill of Rights of 1689. The Preamble of the Bill of Rights tells us it was introduced:
Because King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him did endeavour to subvert and extirpate the laws and liberties of this kingdom
The language of the preamble reminds us that the Bill of Rights was a politically-motivated document, as most documents heralding constitutional reform are. It is a jumble of various contemporary complaints rather than being a comprehensive, constitutional instrument.
The liberty of freedom of speech is asserted in Article IX which famously provides that:
the freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
Parliament and the Courts
The enactment of legislation on parliamentary privilege shifted the struggle as one between Parliament and the courts, rather than with the Crown. Once again two arms of the constitution became entangled in conflict. There would be legal wrangles over the meaning of each of the phrases and words – “proceedings in Parliament”; “impeaching”, “questioning”, “court or place out of Parliament”.
These phrases and words became the subject of much learned and judicial pondering and ruling over the ages. The Courts have never hesitated to consider what are, after all, words in a statute whatever view Parliament itself has taken about its privileges. Indeed judges had never recognised the existence of the hallowed ‘lex parliamenti’ on which privilege was said to be based.
An important point to notice here is that parliamentary privilege long predates anything that we might recognise as a democratic, parliamentary system which only reached fruition in the case of the House of Commons with universal suffrage in the twentieth century and some would say, has never reached the House of Lords hallowed and ancient. Nevertheless it has become essential to the running of a modern, democratic system even if it long predated it.
By the middle of the nineteenth century Parliament, more particularly the House of Commons, had given up its claim to determine whether a privilege existed: that task was ceded to the courts. But the ambits of privilege and the area within which the House maintained exclusive cognisance (which includes the internal regulation of its own affairs by each House) had to be delineated and this came about through a series of cases, not always with complete clarity. Paradoxically most of these cases were settled on first principles, with only a glance at article IX.
As time went on the courts were drawn into broader areas of public life so that they became less attached to a self-imposed rule which excluded from their consideration when interpreting statutes, parliamentary material, including debates, relevant to the legislative history of any statute. A number of cases decided by the House of Lords in its (former) judicial capacity significantly varied this rule. In 1992 as a result of decisions in the case of Pepper v. Hart, the courts now feel free to refer to parliamentary material where legislation is considered to be ambiguous or obscure, or leads to an absurdity. In such cases, debates in the Houses are used to elucidate the meaning of statute.
The rumblings of the dispute over jurisdiction between Parliament and the courts have not entirely abated although the then Attorney General, in an important memorandum in 2009, tried to draw a line under it. Her statement – that that the determination of whether material was admissible in a criminal trial by virtue of Article IX was a question of law for the courts, not a determination to be made by Parliament, or any of its organs, – is not hugely controversial, indeed it matches what I have said about privilege not protecting Members from the operation of the criminal law. What might be less palatable to some parliamentarians is her conclusion that:
There is a risk that the principle of comity would be undermined by a purported attempt by the House to determine such questions [of law relating to parliamentary privilege] and thus usurp the determinative role of the courts