Is that it acts as a revising chamber to scrutinise the detail of legislation

proposed by the Commons and to allow time for second thoughts so

acting as a constitutional safeguard against the possible excesses of

majoritarianism and party politics. The Royal Commission on the

future of the House of Lords (Wakeham, 2000; see Chapter 11),

recommended that the second chamber should be subordinate to the

Commons, that it should provide constitutional checks and balances

and that it should provide a parliamentary voice for the ‘nations and

regions of the United Kingdom’.

Particular roles of the second chamber include the following (see

Wakeham, 2000; see also House of Lords Reform (1968), Cmnd. 3799):

. To provide advice on public policy bringing a range of perspec-

tives to bear which according to Wakeham (2000) should be broadly

representative of British society and in particular provide a voice for

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the nations and regions of the UK and for ethnic minorities and

interest groups.

. To provide a forum for general debate on matters of public concern

without party political pressures.

. To process relatively uncontroversial legislation or private bills as a

method of relieving the workload of the Commons. Any bill other

than a financial measure can be introduced in the Lords.

. To provide committees to discuss general topics, such as the Euro-

pean Communities Committee and the Science and Technology

Committee. Such reports are highly respected.

. To permit persons who have made a contribution to public life other

than party politicians to participate in government. Life peerages

provide the mechanism for this.

. To act as a constitutional check by preventing a government from

prolonging its own life in respect of which the Lords has a veto. The

consent of the Lords is also needed for the dismissal of senior judges

(above, p. 84).

. To act as the highest judicial appellate body (although there appears

to be no particular reason other than historical continuity and the

convenience of existing members why the House of Lords, rather

than a separate supreme court, should perform this function).

. To provide a means of patronage for persons seeking a prestigious

lifestyle whom the government wishes to bribe or reward. Prime

ministers have sometimes being accused of selling peerages to raise

election campaign funds, the most notorious example being that of

Lloyd George in 1922.

These functions can be pursued in the House of Lords partly

because its procedure and culture differ significantly from the Com-

mons. In particular party discipline is less rigorous and the House

of Lords is less partisan than the Commons. Members of the House of

Lords (other than bishops of the Church of England sitting as such) are

life members removable only by statute and are therefore less sus-

ceptible to political pressures than MPs. The House as a whole controls

its own procedure and is relatively free from procedural constraints and

is subject to less time pressure than the Commons. Its members have

considerable accumulation of experience and knowledge. The House of

Lords cannot therefore easily be manipulated by the government, it is

attractive to external lobbyists and can ventilate moral and social issues

in an objective way. Occasionally members of the House of Lords

will respond to their individual consciences, or to public opinion, and

220 General Principles of Constitutional and Administrative Law

defeat government proposals. Bills are frequently amended, if only in

minor respects, after discussion in Parliament.

10.4 Parliamentary Privilege and Standards

It is important that a legislature be protected against disruption and

interference both by outsiders and from within its ranks. Interference

by the Crown with parliamentary business was an ingredient of the

seventeenth-century revolution and at the beginning of every Parlia-

ment the Speaker symbolically asserts the ‘ancient and undoubted

privileges’ of the House of Commons against the Crown. The House

of Lords also has its privileges which it polices collectively but does not

have the power to punish.

Some parliamentary privileges are mainly of historical or symbolic

interest. These include the collective right of access of the Commons to

the monarch. Members of the Commons also enjoy immunity from

civil, as opposed to criminal arrest, during a period from 40 days before

to 40 days after every session. In the case of peers, the immunity is

permanent and seems to be based on their status as peers rather than

membership of the House (Stourton, 1963). Now that debtors are no

longer imprisoned, civil arrest is virtually obsolete, being concerned

mainly with disobedience to court orders. There is no privilege pre-

venting a civil action against an MP in his private capacity (Re Par-

liamentary Privilege Act 1770 (1958)). Members and officers of both

Houses have automatic exemption from jury service (Juries Act 1974)

and the House can exempt members from giving evidence in court.

The two most important privileges are (i) the collective privilege

of each House to control its own composition and procedure, and

(ii) freedom of speech. We shall discuss these below. We shall also dis-

cuss the conflicts that have arisen between Parliament and the courts

over parliamentary privilege. At present there is an uneasy stalemate.

Parliament has never accepted that the courts have the power to decide

what are the proper limits of its privileges. The ordinary courts accept

that Parliament has the exclusive power to regulate its own internal

affairs, but claim the right to determine the limits of other privileges

(that is, those affecting the rights of people outside the House) but not

to interfere with how established privileges are exercised.

10.4.1 Contempt of Parliament

Breach of a specific parliamentary privilege should be distinguished

from contempt of Parliament. A parliamentary privilege is a special

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right or immunity available either to the House collectively (for exam-

ple, to control its own composition and procedure) or to individual

members (for example, freedom of speech). Contempt is a general term

embracing any conduct, whether by MPs or outsiders, ‘which obstructs

or impedes either House of Parliament in the performance of its func-

tions or which obstructs or impedes any member or officer of the

House in the execution of his duty or which has a tendency directly or

indirectly to produce such a result’ (May, 1983, p. 143). This is very

wide. It includes, for example, abuses by MPs of parliamentary pro-

cedure, disruption in the House, improper or dishonest behaviours by

MPs, and even harassment of, or allegations against, MPs in news-

papers (see, for example, Daily Graphic case HC 27 (1956–7); Duffy’s

case, HC 129 (1964–5)). Contempt not only protects the ‘efficiency’ of

the House but also its ‘authority and dignity’.

One controversial aspect of contempt of Parliament concerns public

access to parliamentary information which arguably should be un-

restricted except where the disclosure would harm the public interest.

However, parliamentary committees often sit in private, and ‘leaks’ of

reports of Select Committees have been prohibited since 1837, although

action is only likely to be taken if the leak causes ‘substantial inter-

ference with the function of a Committee’ (see Report of Committee

of Privileges, 1984–5, paras 51–60; and Leopold, 1986). The House of

Commons has waived any more general right to restrain publication

of its proceedings and has authorised the broadcasting of its pro-

ceedings subject to a power to give directions.

Perhaps the most striking feature of contempt of Parliament is that

Parliament accuses, tries and punishes offenders itself. The ordinary

courts have no jurisdiction in the matter, and there are no independent

safeguards for the individual. Parliament is not subject to the Human

Rights Act 1998. This means that in any dispute between Parliament

and the courts, Parliament in theory can have the last word, for exam-

ple by imprisoning the litigants and court officials for contempt. How-

ever, there is a broad consensus of mutual respect between Parliament

and the courts (see Hamilton v. Al Fayed [1999] 3 All ER 317 at 33–34).

The procedure for dealing with a contempt of Parliament, or a

breach of privilege, is as follows (see HC 417, 1976–7):

1. Any member can give written notice of a complaint to the Speaker.

2. The Speaker decides whether to give priority over other business.

3. If the Speaker decides not to do so, the member may then use the

ordinary procedure of the House to get the matter discussed. This

would be difficult in practice.

222 General Principles of Constitutional and Administrative Law

4. If the Speaker decides to take up the matter, the complaining

member can propose that the matter be referred to the Committee

of Standards and Privileges or that some other action be taken, for

example, an immediate debate. A select committee can in certain

cases refer a contempt against itself direct to the Committee (HC

Deb. vol. 94. col. 763–4, 18 March 1986).

5. The Committee (17 senior members) investigates the complaint.

Witnesses are examined but there is no right to legal representation.

The procedure is entirely up to the Committee. The accused has no

legal right to a hearing nor to summon or cross-examine witnesses.

6. The Committee reports back to the House, which decides what

action to take. This could range from a reprimand, through suspen-

sion or expulsion from the House, to imprisonment for the rest

of the session, renewable indefinitely. The House of Lords can

imprison for a fixed term and can also impose a fine.

7. The Speaker also has summary powers to deal with disruptive

behaviour in the House, or breaches of the rules of debate. He can

exclude MPs and others from the Chamber until the end of the

session (HC Standing Orders 24–6), and make rulings on matters of

procedure. The Lord Chancellor presides over the House of Lords,

but has no procedural or disciplinary powers.

The conduct of MPs and the justice and effectiveness of the inter-

nal disciplinary process came in the public spotlight during the 1990s

when several MPs, notably Neill Hamilton a junior minister, were

accused of payments to give favours to outside interests. In 1999 the

Joint Committee on Parliamentary Privilege (the Nichols Committee,

HL 43-1, HC 214-1 (1998–9)) recommended that the procedure be

reformed in favour of stronger procedural rights reflecting contem-

porary standards of fairness relating to the right to a fair trial.