12. Parliamentary privilege and related matters
Privilege of Parliament
Freedom of speech
Freedom to attend freely
Control by Parliament of its affairs
Disciplinary and penal powers
Privilege of peerage
Freedom of information
12.1 In order to carry out their duties Parliament, its members and others who participate in or support the work of Parliament need certain rights and immunities. These are known as parliamentary privilege.(1)
12.2 It is a basic principle that parliamentary privilege belongs to the House as a whole and not to the individual member,(2) and that the protection afforded by privilege is no more than Parliament needs to carry out its functions effectively. Privilege accordingly protects each House in respect of the conduct of its internal affairs. It extends beyond members to the staff of the House in carrying out their duties and to external or lay members, witnesses and others taking part in the work of the House or a committee. It does not, though, protect the activities of individuals, whether members or non-members, simply because they take place within the precincts of Parliament.
12.3 In general, the House of Lords enjoys the same parliamentary privileges as the House of Commons. These privileges include:
- freedom of speech;(3)
- control by the House of its affairs (‘exclusive cognisance’);
- power to discipline its members for misconduct and punish anyone, whether a member or not, for contempt of Parliament;
- freedom from interference in going to, attending at, and going away from Parliament;
- freedom from arrest in civil cases;
- exemption from subpoenas to attend court as a witness;
- freedom from service of court documents within the parliamentary precincts; and
- absolute protection of all papers published by order of the House.(4)
12.4 Members need to be able to speak freely in the House and in committee, uninhibited by possible defamation claims. Freedom of speech found statutory form in article 9 of the Bill of Rights 1689: “Freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. Article 9 affords legal immunity (“ought not to be questioned”) to members for what they say or do in “proceedings in Parliament”. The immunity applies in “any court or place out of Parliament”. The meaning of “proceedings in Parliament” and “place out of Parliament” has not been defined in statute.
12.5 The scope of article 9 is the subject of extensive case law, as a result of which the courts do now in certain circumstances consider things said in Parliament. In 1993, the House of Lords decided (in Pepper v Hart) that when interpreting ambiguous statutes the courts may look at ministerial statements made in Parliament during the passage of the bill through Parliament. The courts have also established a practice of examining ministerial statements made in Parliament in another circumstance: when considering challenges by way of judicial review to the lawfulness of ministers’ decisions.
12.6 In order to prevent abuse, freedom of speech is subject to self-regulation by Parliament. Thus, for example, by the sub judice rule(5) the two Houses ensure that court proceedings are not prejudiced by discussion in Parliament.
Freedom from arrest
12.7 SO 82 and common law govern this privilege. Traditionally the privilege extends from forty days before until forty days after the session, and it may cover any form of molestation of, or interference with, a member while carrying out parliamentary duties. This privilege covers any form of arrest or detention, except on a criminal charge or for refusing to give security for the peace or for a criminal contempt of court. SO 82 states that notification of any order for the imprisonment or restraint of a member should be given to the House by the court or authority making the order. Such notification is read out in the Chamber and recorded in the Minutes of Proceedings.
12.8 The House has expressed the opinion that privilege would not protect a member of the House suffering from mental illness from being detained under the Mental Health Act 1983.(6)
12.9 The 2013–14 Joint Committee on Parliamentary Privilege, like its 1998–99 predecessor, called for legislation to abolish the privilege of freedom from arrest.
Attendance before other legislatures
12.10 The House of Commons does not have the power to summon a member of the House of Lords to appear before one of its committees, but any member of the House of Lords requested by a Commons committee to attend as a witness is free to do so, if the member thinks fit.(7)
12.12 Freedom of speech is one facet of a broader principle that what happens within Parliament is a matter for control by Parliament alone. This principle of control by Parliament of its affairs, free from interference by the courts, is often called ‘exclusive cognisance’. It consists of a collection of related rights and immunities.
12.13 The courts have held that the two Houses are exempt from statute law, e.g. on employment, health and safety at work, and from the regulation of the sale of alcohol, though the Supreme Court has noted that this is “open to question”.(10) Notwithstanding this presumption, the two Houses have applied many such statutory provisions voluntarily, and in an attempt to clarify the position in 2014 the House resolved that “legislation creating individual rights which could impinge on the activities of the House should in future contain express provision to this effect”.(11)
12.14 The House’s disciplinary and penal powers are part of the control exercised by Parliament over its affairs. Conduct, whether of a member or non-member, which improperly interferes with the performance by either House of its functions, or the performance by members or staff of their duties, is a contempt of Parliament. Thus the House has the right to institute inquiries and require the attendance of witnesses and the production of documents, and wilful failure to attend committee proceedings or answer questions or produce documents could be judged to be a contempt.
12.15 The House of Lords has historically possessed the power to punish contempts by imprisonment, fine and reprimand. Although these powers have never been abolished, they have not been used since the nineteenth century, and there is doubt over whether the House’s powers to punish non-members could in practice be used today.(12)
12.16 The House possesses an inherent and a statutory power to discipline its members; the means by which it does so are described in chapter 5.
12.17 A member can be disqualified temporarily either by statute or at common law, for reasons such as bankruptcy or the holding of a disqualifying judicial office (see paragraph 1.2).
12.18 Privilege of peerage, which is distinct from parliamentary privilege, still exists although the occasions for its exercise have now largely disappeared. 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.(13) The extent of the privilege has long been ill-defined, but 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 in civil matters; but the application of this aspect of the privilege appears to have arisen in only two cases in the courts since 1945.(14) All privilege of peerage is lost upon a disclaimer under the Peerage Act 1963.
12.19 Section 6(1) of the Human Rights Act 1998, which provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”, does not apply to the House or its committees, or to a person exercising functions in connection with a proceeding in Parliament.(15) However, the United Kingdom as a whole is a signatory to the European Convention on Human Rights, and the House is therefore in certain circumstances subject to the jurisdiction of the European Court of Human Rights.(16)
12.20 Under sections 165, 166 and 167 of the Copyright, Designs and Patents Act 1988 “parliamentary copyright” exists in:
- select committee reports; and
- any other work made by or under the direction or control of either House of Parliament.
12.21 Parliamentary copyright in a public bill belongs in the first instance to the House into which the bill was introduced and, once the bill has reached the second House, to both Houses jointly. It subsists from the time the bill is handed in to the House in which it is introduced, and ceases on Royal Assent, or the withdrawal or rejection of the bill, or the end of the session.
12.22 Parliamentary copyright in a private bill belongs to both Houses jointly from the time the bill is first deposited in either House. Acts and Measures once enacted are subject to Crown copyright.
12.23 Literary, dramatic, musical or artistic work made by or under the direction of either House is subject to parliamentary copyright for 50 years from the end of the year in which it was made. Such work includes works made by employees of either House in the course of their duties, and any sound recording, film, live broadcast or live cable programme of the proceedings of either House. The ownership of such copyright belongs to the House under whose direction or control the work was made (or, as appropriate, both Houses).
12.24 The functions of the House of Lords as owner of copyright are exercised by the Clerk of the Parliaments on behalf of the House, and legal proceedings relating to copyright are brought by or against the House of Lords in the name of the Clerk of the Parliaments. Any person may, without charge and subject to certain conditions, reproduce, adapt or commercially exploit parliamentary copyright material.(17)
12.25 The sound broadcasting and televising of proceedings are governed by resolutions of the House of 28 July 1977 and 15 May 1986.(18) The Services Committee has responsibility for supervising the arrangements for, and dealing with any problems or complaints arising out of, the televising and sound broadcasting of the proceedings of the House and its committees. The House has given power to a committee to refuse to allow the televising of proceedings to which visitors are admitted.(19) The Filming Steering Group considers requests for permission to film in the House. The Filming Steering Group is chaired by the Lord Speaker and works within a set of guidelines agreed by the Administration and Works Committee.(20) Day-to-day monitoring of adherence to rules of coverage is delegated to the Director of Parliamentary Audio/Video.
12.26 The UK General Data Protection Regulation, as supplemented by the Data Protection Act 2018, applies to both Houses of Parliament.(21) The UK GDPR gives individuals (data subjects) a number of rights including a general right of access to personal information held about them, subject to certain exemptions. It also places a duty on all controllers to comply with the principles relating to the processing of personal data (Article 5). These relate to the collection, use, maintenance, accuracy, security and retention of personal information. The Clerk of the Parliaments has the role of controller in relation to the processing of personal data by or on behalf of the House of Lords. Personal data are exempt from certain provisions if the exemption is required for the purpose of avoiding an infringement of the privileges of either House of Parliament.
12.27 Individual members of the House are controllers of the personal data they process in relation to their parliamentary duties.
12.28 The Freedom of Information Act 2000 gives a general right of access to information held by public authorities, sets out exemptions from that right and places a number of obligations on public authorities. The House of Lords is a public authority under the Freedom of Information Act 2000 and the rights of access apply to recorded information held by the House of Lords Administration with the exception of information set out in the Freedom of Information (Parliament and National Assembly for Wales) Order 2008. The Clerk of the Parliaments has entrusted day-to-day responsibility for House of Lords’ arrangements to the Head of Information Compliance. The Act requires every public authority to maintain a publication scheme setting out the classes of information which it publishes or intends to publish, the form in which it intends to publish the information, and details of any charges.
12.29 The Clerk of the Parliaments as the authorised officer of the House may refuse to disclose information on the grounds of either parliamentary privilege (section 34) or prejudice to the effective conduct of public affairs (section 36). A certificate signed by him is conclusive of the fact, and a dissatisfied applicant has no right of appeal to the Information Commissioner.
1 A detailed and authoritative account of the history and extent of parliamentary privilege can be found in Part 2 of Erskine May (25th edition, 2019).
2 For this reason, privilege of Parliament does not extend to minors or the husbands, wives, widows or widowers of members of the House (SO 83).
3 But see sub judice rule, paragraphs 4.68–4.73.
4 Parliamentary Papers Act 1840.
5 See paragraphs 4.68–4.73.
6 Privileges Rpt 1983–84.
7 SO 23.
8 Criminal Justice Act 2003 s. 321.
9 Amendment 9 to the Consolidated Criminal Practice Direction, handed down on 22 March 2005.
10 R v. Graham-Campbell ex parte Herbert  1 KB 594; R v Chaytor  UKSC 52, at 78.
11 LJ, 2013–14, 1621.
12 See House of Commons Committee of Privileges, Select committees and contempts: clarifying and strengthening powers to call for persons, papers and records (1st Rpt, 2021–22, HC 350).
13 SO 83.
14 Stourton v Stourton (1963) 1 All ER 366; Peden International Transport, Moss Bros, The Rowe Veterinary Group and Barclays Bank plc v Lord Mancroft (1989).
15 Human Rights Act 1998 s. 6(3).
16 Compare Erskine May, paragraph 16.20.
17 These terms are set out in full in the Open Parliament Licence v3, published online at parliament.uk/site-information/copyright/open-parliament-licence.
18 LJ (1976–77) 820, (1985–86) 331.
19 Animals in Scientific Procedures Committee (HL Deb. 12 July 2001 col. 1181).
20 Minutes of the Administration and Works Committee, 19 June 2012. The Services Committee is now responsible for this area.
21 The Act is applied to both Houses by s. 210 of the 2018 Act.