10.4.2 Composition and procedure: ‘exclusive cognisance’

Although the qualifications for being a member of Parliament are fixed

by statute, each House has the exclusive right to decide who shall

actually sit, to regulate all matters within the House, and to expel mem-

bers. No legal process is possible in respect of any matter before the

House and no one can be prevented from placing a matter before

Parliament (see Bilston Corporation v. Wolverhampton Corporation

(1942); Pickin v. British Railways Board (1974)). Conversely, the courts

cannot order a minister to present a matter to Parliament even where a

change in the law is required by European law (R. v. Secretary of State

for Employment ex parte Equal Opportunities Commission (1992)).

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In Bradlaugh v. Gossett (1884), Charles Bradlaugh, a well-known

freethinker, had been duly elected to the Commons. The House

refused to let him take his seat because it deemed that as an atheist he

had no statutory right to take the oath. In fact the courts had

previously ruled in his favour on this (Clarke v. Bradlaugh (1881)). The

court held that it had no power to intervene since this was a matter

exclusively to do with the internal procedure of the House. However,

the court emphasised that the Commons has no control over those

outside the House itself. Resolutions of the House of Commons

cannot alter the general law (Stockdale v. Hansard (1839); Bowles v.

Bank of England (1913)) and Parliament cannot interfere with court

processes (Ashby v. White (1703)). Conversely, the courts cannot inter-

fere while a matter is before the House, nor prevent the House con-

sidering it. However, approval by the House except as part of a statute

cannot make valid something unlawful (Hoffman La Roche Ltd v.

Trade and Industry Secretary of State (1974)). This standoff between

courts and Parliament could be regarded as an example of the dual

sovereignty which it is claimed that the separation of powers requires.

What counts as ‘internal’? On one view anything which hap-

pens within the precincts of the Houses of Parliament (the Palace of

Westminster) is protected. In R. v. Grahame-Campbell ex parte Herbert

(1935) the Divisional Court held that the House of Commons bar was

exempt from the liquor licensing laws and so could sell drinks without

restriction. However, an explanation of this case is that the Palace of

Westminster, a royal palace, enjoys Crown immunity from statute

law. Another view is that immunity applies only to the official business

of the House. This will be discussed in the next section in connec-

tion with freedom of speech. On this view ordinary criminal offences

unconnected with parliamentary business taking place in the precincts

should fall within the ordinary law, although the Sergeant at Arms

may control the entry of law enforcement officials into the Palace

of Westminster.

The immunity of Parliament from interference by the courts is

reinforced by the Human Rights Act 1998 which provides that Parlia-

ment, except the House of Lords in its judicial capacity is not a public

body for the purpose of the Act (s. 6 (3)). This prevents an action being

brought against Parliament under the Human Rights Act.

10.4.3 Freedom of speech

This is the central privilege of an MP, who must be at liberty to speak

and write without fear of interference from outside bodies. On the

224 General Principles of Constitutional and Administrative Law

other hand, as with any liberty, the price to be paid is that some MPs

might abuse this freedom to make untrue allegations against persons

who cannot answer back or to violate privacy as in the ‘Child Z’ case

(HC 1995–6, vol. 252, para 9, 10) where a child was named in defiance

of an order of the Court of Appeal.

The privilege of freedom of speech is statutory. Article 9 of the Bill

of Rights 1688 (introduced as part of the revolution settlement for the

purpose of protecting MPS against the Crown) states ‘The Freedom

of Speech or Debates or Proceedings in Parliament ought not to be

impeached or questioned in any court or palace out of Parliament’.

Article 9 has been interpreted widely as preventing parliamentary

materials from being used as evidence in court proceedings (Church

of Scientology of California v. Johnson-Smith (1972): MP sued for

defamation: evidence of his statements in Parliament could not be

used). However, the Defamation Act 1996 s. 13 amended the Bill of

Rights in order to accommodate Neil Hamilton, a Conservative MP,

who wished to sue a newspaper for defamation, relying upon parlia-

mentary material for the purpose. Section 13 permits an MP to use

things said in Parliament in evidence provided that the MP waives his

or her own immunity. This illustrates the frailty of constitutional prin-

ciple against party political government. Indeed the Nichols Commit-

tee pointed out that s. 13 was a distortion of the constitution in that

Art. 9 exists in the public interest to protect Parliament and is not a

provision which individual MPs should be able to waive in their own

interests. The Committee therefore proposed that Art. 9 should be

waived only by each House.

In Hamilton v. Al Fayed (1999) the Court of Appeal adopted a

narrower interpretation of Art. 9. It held that that Art. 9 does not

exclude the use of parliamentary material in court but only prohibits

the court from penalising or criticising anything said or done in par-

liamentary proceedings. For example, evidence of something a minister

said in Parliament cannot be used to determine whether he is exercising

his statutory powers improperly (R. v. Secretary of State for Trade ex

parte Anderson Strathclyde [1983] 2 All ER 233 at 238–9), although it

can be used as evidence of what his policy is. In the same way state-

ments made by the proposers of a bill in Parliament may be used by

courts to determine the meaning of a statute (Pepper v. Hart (1993)).

(1) ‘Freedom of speech or debates or proceedings’: This includes

questions asked by an MP in the House whether written or oral,

committee proceedings, and written documents published by Order of

the House (Parliamentary Papers Act 1840, s. 2). Extracts from such

documents enjoy only ‘qualified’ privilege, meaning that they must be

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made in good faith. Broadcasts of parliamentary proceedings also have

qualified privilege (Defamation Act 1952 s. 9) as do other unofficial

reports and broadcasts such as press reports or parliamentary sketches

provided that they are not merely selective extracts but reasonably

comprehensive (Wason v. Walter (1868); Cook v. Alexander (1974)).

(2) ‘In Parliament’: The meaning of ‘in Parliament’ has not been

settled. In 1688, it was no doubt thought that the phrase was self-

explanatory. However, the work of a modern MP is not confined to

work within the Chamber or even in committees. Much of an MP’s

time is spent in writing letters, and attending meetings in the UK and

abroad with pressure groups, local authorities, business organisations,

foreign officials, etc. The MP also meets or writes to ministers and

constituents. To what extent are these activities protected? Anything

said in the Chamber as part of the business of the House and in

committees or reports related to the business of the House, is certainly

protected. Parliamentary committees often visit places around the

country, and interference with their proceedings wherever they take

place is a contempt of Parliament (for example, disturbance at Essex

University, 1969 HC 308, 1968–9).

At the other extreme, speeches by MPs in their own constituencies

are not protected, nor are writings in the press, or TV interviews or

election matters. It is arguable that speech even within the House itself

which is unrelated to parliamentary business enjoys no privilege (see

Re Parliamentary Privilege Act 1770 (1958)). In 1976, in the Zircon

affair, the Committee of Privileges ruled that the showing to MPs

within the precincts of a film about a secret security project was not

protected by privilege and could therefore be the subject of an