Parliamentary privilege : A concept
In British Coal Corporation v. The King[1] (1935) AC 500, at p 520 the Judicial Committee said that the power of the Imperial Parliament to pass on its own initiative any legislation extending to a Dominion (in that case, to Canada) remained in theory unimpaired by the Statute. The 1929 Conference saw the continuance of this power to be a problem in the way of achieving equality between Great Britain and the Dominions. Paragraph 54 of the 1929 Report read:
" With regard lastly to the problem which arises from the existence of a legal power in the Parliament of the United Kingdom to legislate for the Dominions, we consider that the appropriate method of reconciling the existence of this power with the established constitutional position is to place on record a statement embodying the conventional usage. We therefore recommend that a statement in the following terms should be placed on record in the proceedings of the next Imperial Conference -
'It would be in accord with the established constitutional position of all members of the Commonwealth in relation to one another that no law hereafter made by the Parliament of the United Kingdom shall extend to any Dominion otherwise than at the request and with the consent of that Dominion.'
We further recommend that this constitutional convention itself should appear as a formal recital or preamble in the proposed Act of the Parliament of the United Kingdom." The recommendation was adopted at the 1930 Conference and carried into effect in the third preamble of the Statute. A clause was also recommended for enactment in the body of the Statute with a view to resolving the problem (1929 Report, par.55; Imperial Conference, 1930 Summary of Proceedings, Cmd.3717, p.18). That clause is to be found as s.4 which provides:" No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof.[2]"
“In the unwritten legal order of the British State, at a time when the common law continues to accord a legislative supremacy to Parliament, the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically confers the power to abrogate. General words will not suffice. And any such rights will be creatures of the common law, since their existence would not be the consequence of the democratic political process but would be logically prior to it.[3]” “Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.[4]” “But no power on earth, except the authority of Parliament, can send any subject of England out of the land against his will, no, not even a criminal.[5]”
“. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.[6]”
“It is well known that in the past there have been dangerous strains between the law courts and Parliament—dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other—Parliament, for example, by its sub judice rule, the courts by taking care to exclude evidence which might amount to infringement of parliamentary privilege (for a recent example.”[7]
“ Your Lordships have referred to two of those fundamental principles, the sovereignty or supremacy of Parliament and the conclusiveness of the Parliamentary roll or the Speaker's certificate. The first is one of the pillars of the modern constitution of this country and has been so fully accepted by the courts and described by so many writers on the constitution from Dicey onwards that it needs no further elaboration. Both this principle and the second, which is discussed in paras 112 and 116 of the opinion of my noble and learned friend Lord Hope of Craighead, are judicial products of that carefully observed mutual respect which has long existed between the legislature and the courts. As a judge I am very conscious of the proper reluctance of the courts to intervene in issues of the validity of Acts of Parliament. I should be most unwilling to decide this or any other case in a way which would endanger that tradition of mutual respect. I do not, and I have no doubt your Lordships do not, have any wish to expand the role of the judiciary at the expense of any other organ of the State or to seek to frustrate the properly expressed wish of Parliament as contained in legislation. The attribution in certain quarters of such a wish to the judiciary is misconceived and appears to be the product of lack of understanding of the judicial function and the sources of law which the courts are bound to apply.[8]” “The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself.[9]”
Parliamentary privilege is part of the law of the land (see Erskine May's Parliamentary Practice, 18th ed., 1971, ch. v). Among the privileges of the Houses of Parliament is the exclusive right to determine the regularity of their own internal proceedings:
"What is said or done within the walls of Parliament cannot be enquired into in a court of law. On this point all the judges in the two great cases which exhaust the learning on the subject—" Burden v. Abbott and Stockdale v. Hansard [10] " are agreed and are emphatic."
LORD COLERIDGE C.J. in Bradlaugh v. Gossett [11]. The rule, indeed, is reflected in the Bill of Rights, 1688, art. 9, s.l., of the words which are relevant: "That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any place out of Parliament.[12]"
A further practical consideration is that if there is evidence that Parliament may have been misled into an enactment, Parliament might well-indeed, would be likely to—wish to conduct its own inquiry. It would be unthinkable that two inquiries—one parliamentary and the other forensic— should proceed concurrently, conceivably arriving at different conclusions; and a parliamentary examination of parliamentary procedures and of the actions and understandings of officers of Parliament would seem to be clearly more satisfactory than one conducted in a court of law—apart from considerations of Parliamentary privilege.”All that a Court of Justice can do is to look to the Parliamentary roll: if from that it should appear that a bill as passed both Houses and received the Royal assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament during its various stages through both Houses”.[13]
Although in the past the courts and the House of Commons both claimed the exclusive right to determine whether or not a privilege existed, it is now apparently accepted that it is for the courts to decide whether a privilege exists and for the House to decide whether such privilege has been infringed.[14]. Thus, Erskine May p. 150 says:
"In the 19th century, a series of cases forced upon the Commons and courts a comprehensive review of the issues which divided them, from which it became clear that some of the earlier claims to jurisdiction made in the name of privilege by the House of Commons were untenable in a court of law: that the law of Parliament was part of the general law, that its principles were not beyond the judicial knowledge of the judges, and that it was the duty of the common law to define its limits could no longer be disputed."
Again, at p. 154 it is said:
"Though events have revealed no single doctrine by which all issues of privilege arising between Parliament and the courts may be resolved, many of the problems of earlier years which are dealt with above have been substantially solved. Neither House is by itself entitled to claim the supremacy
over the courts of law enjoyed by the undivided medieval High Court of Parliament. Since neither House can by its own declaration create a new privilege, privilege may be considered to be capable of being ascertained and thus judicially known to the court." Further it was stated by Accordingly, if the nature of the privilege going beyond the Bill of Rights had been identified, your Lordships could have determined
whether or not such privilege exists, although it would be for the House of Commons to determine whether or not there was an infringment of any privilege found to exist. In fact, neither the letter from the Clerk of the Commons nor the Attorney-General have identified or specified the nature of any privilege extending
beyond that protected by the Bill of Rights. In the absence of a claim to a defined privilege as to the validity of which your Lordships could make a determination, it would not in my view be right to withhold from the taxpayers a decision to which, in law, they are entitled.[15]”
[1] British Coal Corporation v. The King (1935) AC 500, at p 520
[2] Kirmani v Captain Cook Cruises Pty Ltd (No 1) [1985] HCA 8; (1985) 159 CLR 351 (27 February 1985),HIGH COURT OF AUSTRALIA., per GIBBS J
[3] Witham [supra] per LORD JUSTICE LAWS
[4] Ex p. Simms [1999] 3 WLR 328, 341 per LORD HOFFMAN
[5] Blackstone ( Commentaries, vol. I (15th edn) p. 137)
[6] Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56 (13 October 2005)
URL: http://www.bailii.org/uk/cases/UKHL/2005/56.html
Cite as: [2005] 4 All ER 1253, [2006] 1 AC 262, [2005] UKHL 56, [2005] 3 WLR 733 [per LORD STEYN]
[7] see Dingle v. Associated Newspapers Ltd. [1960] 2 Q.B. 405)
[8]Jackson & Ors v. Her Majesty's Attorney General [2005] UKHL 56 (13 October 2005) per LORD CARSWELL
[9] Burah (1878) 3 App Cas 889
[10] Stockdale v. Hansard [(1839) 9 Ad. & E. 1
[11] Bradlaugh v. Gossett (1884) 12 Q.B.D. 271, 275).
[12] Edinburgh & Dalkeith Railway Co. v. Wauchope (1842) 8 Cl. & F. 710 Also see: Edinburgh & Dalkeith Railway Co. v.
Wauchope (1842) 8 Cl. & F. 710
[13] Edinburgh and Dalkeith Railway Co v Wauchope (1842) 8 Cl & F 710,
[14] see Erskine May on Parliamentary Practice 21st ed. (1989), pp 147-160
[15] Pepper v.Hart [supra] per LORD BROWNE-WILKINSON
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