Tuesday, 9 February 2010


Lord Millett (retd Law Lord, 2004) joins the debate in the Times letter pages today:

Sir, Memory is fallible, but I seem to remember being taught, more than 50 years ago, that parliamentary privilege, which may of course be invoked by individual members of either House when faced with civil or criminal proceedings, nevertheless belongs to Parliament and not to the Member (letters, Feb 8). If this is correct, then two things follow. First, Parliament can waive it. This would not require legislation; a simple resolution of the appropriate House would be sufficient.

Second, its Privileges Committee could rule whether any proposed proceedings would constitute a breach of privilege. It could not, of course, extend the scope of the privilege, but it could limit its application.

Waiving the privilege would not constitute a breach of the Member’s human rights, since it is a privilege not a right and (if the premise is correct) does not belong to him. Nor would it amount to a retrospective change in the law, since it would not be retrospective but affect a trial that has not yet taken place, and would not change the law but give effect to it.

Lord Millett
House of Lords

Lord Millett is right on waiver (see Lord Browne-Wilkinson in Hamilton v Al-Fayed in 2000: The privileges of the House are just that. They all belong to the House and not to the individual.) 

I am not sure, however, he has quite got article 7 ECHR right - any retrospectivity is repugnant at the date of commission of the offence not the date of trial for the offence - 'at the time when it was committed' is what article 7 says. 

There are other interesting things to read on this:

This blog is very good:

Administratively constitutional law, or What is Parliament’s privilege? 

I have also dug up this from 1998 - evidence of the CPS to a Parliamentary Committee considering privilege:

Not quite on point for the expenses scandal, but interestingly it says this:
The experience of the CPS is that Article 9 of the Bill of Rights acts as a serious impediment in the effective prosecution of corruption when the allegation is that the defendant has acted corruptly in connection with his or her duties as a Member of Parliament. If Members of Parliament are to be successfully prosecuted for corrupt conduct, the protection conferred by Article 9 must be either narrower in scope, or qualified.

and this:

Article 9 of the Bill of Rights presently affords the protection of parliamentary privilege to "proceedings in Parliament". The evidence supporting an allegation of corrupt conduct on the part of a Member in connection with his or her duties in that capacity may come from a wide variety of documentary evidence, much of which will not necessarily be closely associated with the primary functions of Parliament. The exact scope of the phrase "proceedings in Parliament" is far from clear. Accordingly, it is very difficult to assess the evidential sufficiency of any particular case.

There is also the Duncan Sandys case:
On 27 June 1938, Duncan Sandys raised on the floor of the House, the fact that he had been asked by the Attorney General about the sources of information Mr Sandys had used to draft a parliamentary question. The Attorney General had, Mr Sandys, said, threatened him with prosecution under the Official Secrets Acts. This was denied by the Attorney General. The detail of Mr Sandys allegations and the general question of the applicability of the Official Secrets Acts to Members was referred to a special select committee, the Select Committee on the Official Secrets Act. This issued a first report in September 193835 and a further report in April 1939.36 These concluded that the soliciting or receipt of information was not a proceeding in Parliament, but that it would be inadvisable to attempt to define “the extent of immunity from prosecution under the Official Secrets Act to which Members of Parliament are or ought to be entitled.

Sir Donald Somervell's memorandum (1939) 

  I received from your Secretary a letter in which he gave me a general indication of the form which the Committee would desire this Memorandum to take. I have endeavoured to follow this direction. I set out first the main provisions and effect of the Offical Secrets Acts. I follow this with a statement as to the nature of Parliamentary Privilege and in particular the Privilege of Freedom of Speech. I then give my views as to the effect of Privilege on action by Members of Parliament which but for the existence of Privilege would render them liable to proceedings under the Acts.
  Summary of the provisions of the Official Secrets Acts, 1911 and 1920. I should make it clear that I set out below in general terms the main effect of the relevant sections, omitting a good deal of detail.
    (a)  Section 1 of the Act of 1911 as amended by the Act of 1920. Marginal note. "Penalties for spying." This section makes it a felony for any person to obtain or communicate secret documents or information for a purpose prejudicial to the safety or interests of the State, the documents or information being such as might be useful to an enemy.
    (b)  Section 2 of the Act of 1911 as amended by the Act of 1920. Marginal note. "Wrongful communication etc of information." This section makes it a misdemeanour:
      (i)  for those holding or having held office under His Majesty or for Government contractors or their employees to communicate without authorisation official documents or information in their possession.
      (ii)  for others to receive such information voluntarily if they have reason to believe it is being communicated to them in contravention of the Act.
      (iii)  for others having received information as in (ii) above to communicate it without authorisation to any person other than a person to whom it is their duty in the interests of the State to communicate it.
  Broadly speaking this section covers all cases of unauthorised disclosure of official information in which the espionage purpose is absent. It is of course possible to think of very serious cases connected with foreign affairs, financial or other secrets which would come under this section.
    (c)  Section 7 of the Act of 1920 makes it an offence to solicit or incite a person to commit an offence under the Act.
    (d)  Section 6 of the Act of 1920. Marginal note: "Duty of giving information as to commission of offences." This section imposes a duty on every person to give on demand to a Chief Officer of Police or other specified person any information in his power relating to an offence or suspected offence under the Acts.
      It provides for the attendance of persons on payment of their reasonable expenses and makes a failure to attend or to give the information a misdemeanour.
  The Acts, like the rest of the Criminal Law, apply to Members of Parliament apart from Privilege. Parliamentary Privilege is of course part of the law of the land. The disputes that have taken place between Parliament and the Courts have been as to the extent of Privilege and not as to its character as law. Cases involving Privilege may come before the ordinary Courts. They may also be decided and are normally decided by whichever House of Parliament is concerned, and punishment may in a proper case be inflicted by the House. In dealing with cases of Privilege the House is expounding and applying as a Court the law of Parliament as found in existing principles and precedents. The Law of Privilege is to be found partly in Acts of Parliament defining Privileges, partly in the declarations and decisions of Parliament dealing with Privilege, and partly in decisions of the Courts in cases involving points of Privilege. As long ago as 1704 a Resolution of the House of Lords was assented to by the House of Commons to this effect:
    "That neither House of Parliament have power, by any vote or declaration, to create to themselves new privileges not warranted by the known laws and customs of Parliament."
  The cases which I am asked to consider are those in which words are spoken or written which, if not protected by Privilege, would be punishable as an offence against the Official Secrets Acts. The relevant Privilege is that usually referred to as the Privilege of Freedom of Speech, though it does not merely apply to spoken words. It is a privilege which was asserted and recognised at a very early stage in the history of Parliament. Although older than the Bill of Rights it is declared therein as follows:
    "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."
  Parliament itself can of course control the exercise of the right in any way it thinks proper. "But, although by the ancient custom of Parliament and the law, a Member may not be questioned out of Parliament, he is liable to censure and punishment by the House itself of which he is a Member." (Erskine May p 107.)
  I will consider the case of a Member who in the course of debate or proceedings in Parliament made a disclosure which, apart from Privilege, would constitute an offence under the Acts. The hypothetical disclosure might, for example, be by a Member who was holding or had held office under the Crown, of information which he had obtained in that capacity. It might be by a Member who, without holding or having held such an office, had reasonable ground to believe that the information which he was disclosing had been obtained in contravention of the Acts. 
  Such statements could not in my view be made the subject of proceedings in the Courts. To do so would I think be to question in a "Court or place out of Parliament" "debates and proceedings in Parliament".
  Issues of Privilege of a somewhat different kind might in certain circumstances arise under section 6. That section is only of course brought into operation if it is clear or thought to be clear, first that a person has information relevant to the investigation of an offence or suspected offence, and secondly that he is unwilling to give the information voluntarily. Assume that it was clear from a speech made by a Member in Parliament that he had information relevant to an offence which on inquiry he refused to volunteer. Would he be protected by Privilege from the operation of section 6?
  If he refused to answer and proceedings were taken to punish him for refusal the prosecution might fail to show that he had relevant information unless they could give evidence of his statement in Parliament. The authorities are not clear but it may well be that, without the permission of Parliament, there would be difficulty in getting this evidence before the Court. There is however a further point quite apart from this difficulty. Could it be said that such proceedings were precluded in principle by the Privilege of Freedom of Speech? It might be said on the one hand that the prosecution was not "impeaching" or "questioning" anything done in Parliament. It was proceeding against the Member for failing to fulfil out of Parliament the duty of giving the information which Parliament itself had directed should be given.
  It might be said on the other hand that the Member found himself interrogated by the Police and subsequently in the dock as a result, though an indirect result, of what he said in debate and that this was contrary to the principal of freedom of speech as formulated in the Bill of Rights and illustrated by the precedents.
  How the Court or either House might decide this question should it ever arise is a question on which owing to its difficulty I ought not to be dogmatic. If such a case should ever arise and the authorities felt that the Member was not or might not be protected by Privilege, I find it difficult to imagine the Police being authorised to interrogate unless the very gravest issues were involved.
  I have done my best to set out concisely the principle which appear to me to be applicable to this matter in a form which I hope is that desired by the Committee. There has so far as I know been no prosecution of a Member of Parliament under the Official Secrets Acts. The question might arise whether acts done by a Member contrary to the Statute but not protected by Privilege might be so related to his duties as to make a prosecution improper or oppressive. It would I think, for reasons which the Committee will appreciate, be inappropriate for me to propound hypothetical circumstances and then state what decision I think should be come to upon them. Assuming however that in such a case the machinery for the consideration of proceedings was set in motion, the consent of the Attorney-General in England or the Lord Advocate in Scotland would have to be obtained. It would be impossible to formulate in a precise form all the circumstances which would fall to be considered but should such an issue ever be placed before an Attorney-General, it would clearly be proper and inevitable for him to have due regard to the special position and duties of a Member of Parliament.
D B Somervell
Law Officers' Department
27 January 1939

1 comment:

  1. The opinion of Somervell is interesting. He puts the following propositions about which there is really no disagreement:-
    a) privilege is a part of the law;
    b) there have been disputes as to the extent of a particular privilege;
    c) parliament is a court;
    d) no new privileges may be created;
    e) parliament itelf may censure a member.

    Somervell then considered three situations with regard to the Official Secrets Acts:

    1] A disclosure is made during the course of a debate or proceeding in parliament - no prosecution possible.

    2] Possession of information subject to s.6 which the member chooses not to reveal though he has made it known in debate that he possesses such information.

    Here Somervell does not really offer any clear answer and, to be fair, he was probably wisest not to.

    It would actually be a rather unwise MP who let it be known that he had such information but then refused to say what it was. Better to say nothing and be sure to reveal it to the Police.

    3] That there might be disclosures by a member which are NOT protected by privilege but for which a prosecution would be improper.

    It would seem that the special position and duties of a member of parliament would be a consideration but, given that the matter is not protected by privilege, then those matters would not be in themselves decisive.

    Beyond that, I don't really think that Somervell took us much further and, to be frank, I don't think he threw any light on what the phrase "proceeding in parliament" meant.

    Duncan Sandys was an interesting matter. If memory serves me correctly he was one who fed various information to Churchill who, at the time, was in "the wilderness" but warning the nation of the impending peril. Given that Sandys was ultimately on the side of the great politician then I suspect that he was pretty much fireproof!