CHAPTER 7: OTHER PRIVILEGES
Freedom from arrest
325. Lords are required to attend the sittings
of the House unless granted leave of absence.
Such leave is granted automatically, and in practice peers without
leave are not expected to attend every sitting. Similarly members
of the House of Commons are `presumed to be in attendance upon
their service in Parliament',
and the statutory prohibition on departure from the House without
licence appears still to be extant.
However, both that Act (of 1515) and the `call of the House'
by which members of both Houses were summoned to attend urgent
business, are in abeyance.
In practice, attendance is dictated mostly by the demands of
government business and the requirements of the party whips.
326. The principle that both Houses impose
upon their members an absolute priority of attendance is the origin
of other privileges that remain. One such privilege is `freedom
from arrest'. The immunity is confined to arrest in civil matters,
such as orders for payment of amounts of money.
The privilege, as set out in Lords standing orders, is that `
no Lord . . . is to be imprisoned or restrained without sentence
or order of the House unless upon a criminal charge or for refusing
to give security for the peace'.
The privilege appears never to have applied to members of either
House in respect of criminal charges, or to any matter which includes
an element of criminality, such as criminal contempt of court.
The privilege is enjoyed `within the usual times of privilege
of Parliament' which is customarily interpreted to mean during
the session of Parliament and for 40 days before and after. It
thus covers long adjournments such as the summer recess.
327. The immunity lost most of its importance
in 1870 when, with a few exceptions, imprisonment for debt was
It now seems to have little, if any, scope beyond providing immunity
from arrest for disobedience of a court order in civil proceedings,
such as an order to hand over property.
The Attorney General told us the privilege was of extremely limited
and Sir Donald Limon thought it was no longer relevant and was
confusing to the public.
Such justification as exists for its continuance resides in the
principle that Parliament should have first claim on the service
of its members, even to the detriment of the civil rights of others.
The 1967 committee took the view it was wrong for the claims of
individuals to be obstructed by use of members' immunity from
arrest, and considered the privilege anomalous and of little value.
The 1967 committee recommended that legislation should be introduced
to abolish the privilege. We agree, and so recommend.
328 Because of their immunity from arrest,
it used to be the case that members of Parliament could not be
accepted as sureties for bail.
Although members of both Houses have been accepted as sureties
for bail on at least two occasions since 1970, as recently as
1978 a Lord was not accepted. Clearly, peers should be admitted
as bail if our recommendation is accepted that the privilege of
freedom from arrest should be abolished.
Privilege of peerage
329. `Privilege of peerage' belongs to all
peers, whether or not they are members of the House of Lords,
and also to the wives of peers and widows of peers provided they
do not marry commoners. The extent of the privilege has long been
obscure and ill-defined, and for that reason alone the present
situation is unsatisfactory. Three of its features survived into
the twentieth century. The first was the right of trial by peers,
which was abolished by statute in 1948. The second is the right
of access to the sovereign at any time. The third is freedom from
arrest; but the application of this aspect of the privilege appears
to have arisen in only two cases in the courts since 1945.
In view of our recommendation that the privilege of freedom from
arrest be abolished, privilege of peerage should also be abolished.
We so recommend.
Exemption from attendance in court as witness
330. Courts compel the attendance of witnesses,
either to give evidence or produce documents, by making an order
known as a subpoena. The issue of a subpoena is a formality. Currently
members of both Houses are exempt from any obligation to attend
as a witness in court. The exemption applies to criminal proceedings
as well as civil proceedings. The privilege is absolute, and may
be used in a personal matter, unconnected with membership of the
House. From time to time the exemption is exercised by members.
331. As with freedom from arrest, this exemption
is based on Parliament's paramount claim to the services of members.
When attendance at Parliament is essential, the need to be present
in the House should prevail over the need to attend court as a
witness. But this principle does not necessitate or justify members
having, as at present, an unfettered right to choose which cases
to attend as a witness and which to refuse. Sir Donald Limon made
no bones about it: he thought this was wrong. Other witnesses,
while recognising the courts must accommodate Parliament's needs,
considered that members should not be exempt from the obligation
to attend and give evidence in response to a subpoena.
The Attorney General, although cautious about abandoning the
ultimate right of a member to refuse, nevertheless considered
that in general a member should not be treated differently from
any other citizen.
332. The 1967 committee recommended that
the exemption should be abolished but the Speaker empowered to
require the attendance of a member at the House in priority to
the requirements of the subpoena.
We consider this procedure is a solution to a problem that today
is non-existent. The courts are now well accustomed to accommodating
witnesses, such as surgeons, who need to be elsewhere at short
notice. Distinguished judicial witnesses stressed that the courts
would always be accommodating.
The Lord Chief Justice of England thought it wholly inconceivable
that a request by a member for a postponement, on the ground that
he was engaged in parliamentary business at a particular time,
would not be granted.
333. Vexatious subpoenas are a problem that
assails all public figures. Members of the Commons perhaps suffer
more from this than most others. We think a degree of protection
is justified, but here also it is wrong in principle that, unlike
everyone else, a member himself should decide whether a subpoena
is vexatious. A better form of protection is that the issue of
a subpoena against a member should require leave from a judge.
We recommend that the exemption from attendance as a witness
should be abolished, but a subpoena should not be issued against
a member without the leave of a master or district judge (or the
equivalent). The Lord Chief Justice of England, the President
of the Court of Session and the Lord Chief Justice of Northern
Ireland should be invited to draw to the attention of the judiciary
the need to be flexible when a member of either House is attending
court as a witness.
Service of court documents within the precincts
334. Service of court documents such as
writs and orders within the precincts of the House on a day when
the House is sitting, but not otherwise, has long been regarded
as a contempt, as tending to obstruct or impede the House in its
The main purpose of this rule nowadays is to protect members
and others who attend either House from service within the House
being used for publicity seeking purposes. Such activity would
be an abuse of the precincts of Parliament.
335. The Joint Committee considers the present
rule does not impede the administration of justice. If personal
service elsewhere is difficult, other alternatives, such as postal
service or substituted service, are readily available. We recommend
the rule should be retained and should apply at all times, irrespective
of whether Parliament is sitting. It is doubtful whether service
by post on a sitting day could ever be regarded as a contempt,
but we further recommend it should be made clear that service
by post is not a contempt.
Application of Mental Health Act 1983 to peers
336. In 1983-84 the Lords committee for
privileges considered the effect of the powers of detention under
the Mental Health Act 1983 on the privilege of freedom from arrest
referred to in Lords standing orders.
The committee accepted the advice of the law lords that the statute
would prevail against any privilege of Parliament or of peerage.
The committee recommended that for the avoidance of doubt legislation
should provide expressly that members of the House of Lords are
liable to be detained under the mental health legislation and
disqualified from sitting and voting in Parliament. Such legislation
is not needed in the case of members of the House of Commons,
because section 141 of the 1983 Act makes provision for such members
suffering from mental illness. We repeat the recommendation
of the Lords committee for privileges that legislation should
be introduced to place the matter beyond doubt.
The term `privilege'
337. Parliamentary privilege labours under
the disadvantage that the word privilege still carries a connotation
of benefit or advantage unrelated to public need or duty. Thomas
Jefferson's celebrated phrase, `Equal rights for all, special
privileges for none', sums up admirably the inevitable knee-jerk
reaction to the very use of the word `privilege'.
Thus the very title is misleading and unfortunate. The 1967 committee
favoured discontinuing the use of the term `privilege' in its
traditional parliamentary sense, and recommended that the House
should instead refer to `rights and immunities'.
338. The Joint Committee considers that
the advantage to be derived from a change in the recognised terminology
after so many years would be marginal. The disadvantage, however,
would be real. Everyone is accustomed to the present title, parliamentarians
and non-parliamentarians alike, and the textbooks and cases all
use this nomenclature. A change at this juncture would be seen
by many as irrelevant.
We do not recommend any change.
365 House of Lords Standing Order 20. Back
Erskine May, 22nd ed (1997), p 180. Back
6 Hen 8 c. 16. Back
LJ (1935-36) 33; CJ (1836) 265. See too, First Report from the
Select Committee on the Rt. Honourable Member for Walsall, North:
HC (1974-75) 273. Back
Erskine May, 22nd ed (1997), p 72. Back
Standing Order 79. The standing order dates from 1626. Back
Erskine May, 1st ed (1844), p 108: `in recent cases, members
committed by the courts for contempt have failed in obtaining
their release by virtue of the privilege'. See Lord Wellesley's
case (1831); see too: Report of the Select Committee on the Imprisonment
of a Member, HC (1902) 309, 30 July 1902. Back
Debtors Act 1869. Back
Stourton v Stourton  1 AER 606. Back
Q 232. Back
Q 45. Possible applications are where a member is threatened
with imprisonment for contempt to compel performance of a civil
obligation, though nineteenth century cases suggest that this
is by no means certain: Erskine May, 1st ed (1844), pp
108-109. It might also protect members from imprisonment for non
payment of a fine. See Murdie, Municipal Journal, 11-17
October 1994, on the position of two members who were imprisoned
for failing to pay their community charge. Back
Erskine May, 22nd ed (1997), p 105. Back
Stourton v Stourton  1 All ER 366, Peden International
Transport, Moss Bros, The Rowe Veterinary Group and Barclays Bank
plc v Lord Mancroft (1989). A detailed account of the latter
case appears in Patricia Leopold, `The freedom of peers from arrest',
Public Law, autumn 1989. See also memorandum of the Clerk
of the Parliaments, vol 2, p 30, paragraph 15. Back
No reliable statistics can be given since members usually only
contact the Speaker or the Clerk of either House in cases of difficulty.
Between September 1996 and February 1998 there were at least seven
such cases in the House of Commons; memorandum of the Attorney
General, vol 3, p 6. Back
Vol 2, pp 109 (paragraph 4), 160 (paragraph 6), 192 (paragraph
6); Q 216. Back
QQ 240-246; vol 3, p 6. Back
HC (1967-68) 34, paragraph 104. Back
Lord Chief Justice of England, QQ 446-448; Lord President of
the Court of Session, QQ604-605; Lord Chief Justice of Northern
Ireland, Q 740. See also comments of the Attorney General, Q 240. Back
First Report from the Committee of Privileges HC (1972-73) 144,
Complaint of the serving of a writ upon a Member within the precincts
of the House; especially pp 6-9; Home Affairs Committee, First
Special Report, HC (1993-94) 107. See, too, Erskine May, 22nd
edition p 120. Back
Memorandum of the Clerk of the Parliaments, vol 2, p 57, paragraph
13; Report of the Committee for Privileges on Parliamentary
Privilege and the Mental Health Act 1983, HL (1983-84) 254;
Q 505. Back
See memorandum of the National Assembly of Quebec, vol 3, p 73. Back
See, for example, the evidence of Dr Geoffrey Marshall, vol 2,
pp 201-202. Publication of Papers and Reporting of Parliamentary