FREE CHAPTER from ‘A Practical Guide to United Kingdom Parliamentary Privilege in Judicial Review Proceedings’ by Sam Fowles

10/07/2026

CHAPTER ONE – WHAT IS PRIVILEGE?

Elements of Privilege

  1. The most well-known statement of Privilege appears in Article IX of the Bill of Rights 1688:

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.

  1. That, however, is but one aspect of privilege. As Lord Brown-Wilkinson held in Prebble v Television New Zealand Ltd:

In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges…

As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol. 1, p. 163:

“the whole of the law and custom of Parliament has its original from this one maxim, ‘that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.”[1]

  1. Erskine May, the authoritative text on the law of Parliament, describes the extent of Privilege as follows:

Privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by statute.

Certain rights and immunities such as freedom from arrest or freedom of speech are exercised primarily by individual Members of each House. They exist in order to allow Members of each House to contribute effectively to the discharge of the functions of their House. Other rights and immunities, such as the power to punish for contempt and the power to regulate its own constitution, belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members. The Speaker has ruled that Privilege is absolute.[2]

  1. The Privilege beyond Article IX is known as “exclusive cognisance”[3]. This means, primarily, that Parliament has control over its own affairs. Exclusive cognisance was described in R v Chaytor as:

areas where the courts have ruled that any issues should be left to be resolved by Parliament rather than determined judicially. Exclusive cognisance refers not simply to Parliament, but to the exclusive right of each House to manage its own affairs without interference from the other or from outside Parliament. The boundaries of exclusive cognisance result from accord between the two Houses and the courts as to what falls within the exclusive province of the former. Unlike the absolute privilege imposed by article 9, exclusive cognisance can be waived or relinquished by Parliament. Thus in 1980 Parliament agreed to a resolution which permitted reference to be made in court to certain Parliamentary papers which, up to then, had been subject to a claim of exclusive cognisance: see Erskine May , at p 105. The areas subject to exclusive cognisance have very significantly changed, in part as a result of primary legislation.[4]

  1. Exclusive cognisance also limits the application of certain statutory provisions to Parliament. The extent of this limitation is explored in Chapter 3.
  2. Members of the House of Lords enjoy further privileges but those lie outside the scope of this book.[5]
  3. While Privilege is absolute, members also enjoy a qualified privilege by virtue of their office. Qualified privileges arises:

Where a person who makes a communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. The reciprocity is essential.[6]

  1. Qualified privilege is a common law rule which protects those entitled to it from claims for defamation. It is not reserved solely to Parliamentarians. Anyone who meets the test can benefit. Communications by Parliamentarians to ministers of officers of Parliament can attract qualified privilege by virtue of the offices held by the communicants.[7] Reports of proceedings in Parliament benefit from qualified privilege so long as they are “fair and accurate”.[8]

Historical Roots

  1. Privilege is often described as having some “ancient” (albeit unspecified) origin.[9], The courts treat the principle as rooted in common law. As Lord Hatherley held in Morris v The Duke of Newcastle:

The privilege of Parliament… is a privilege which has been recognised as being founded upon Common Law. No doubt it did stand upon the Common Law, and in the subsequent legislation on the subject care was taken that that Common Law privilege should be protected by special clauses inserted in the various Acts of Parliament, the general provisions of which might seem to militate against the privilege.[10]

  1. The Bill of Rights does not purport to establish privileges but, rather, to reaffirm the existing “Lawes and Liberties of this Kingdome”.[11]
  2. A closer look reveals this to be something of a legal (or perhaps political) fiction. It appears more likely that Privilege’s origins lie not in common law but, rather, in favourable treatment or certain Parliamentarians by the monarch and, later, military conquest and the assertion of special status through political power.
  3. The earliest references to Privilege as a distinct claim arise under the Tudor monarchs. In 1523 Sir Thomas More, then Speaker, asked Henry VIII to “take all in good part, interpreting every man’s words, how uncunningly soever they may be couched, to proceed yeat of a good zeale towardes the profitt of your Realme.” While this has been referred to as a claim of the right to freedom of speech, it is more likely a claim to favourable construction (a now largely otiose element of Privilege)[12]. A more explicit claim for freedom of speech was certainly made during the reign of Elixabeth I.[13] This described free speech as privilege which arose “according to the old antient order”. There are no references to the privilege (construed in this manner) which pre-date 1563, so it seems unlikely that this was true.
  4. The Elizabethan “privilege” of free speech was generally limited to speech that the monarch considered acceptable. As Lord Keeper Sir Edward Coke reminded the speaker in 1593:

Her Majesty granteth you liberal but not licentious speech, liberty therefore but with due limitation … To say yea or no to bills, God forbid that any man should be restrained or afraid to answer according to his best liking … which is the very true liberty of the House; not, as some suppose, to speak there of all causes as him listeth … No King fit for his state will suffer such absurdities.[14]

  1. Privilege under Elizabeth was, thus, “privilege” in the literal sense: licence granted to favoured Parliaments at the discretion of the monarch.
  2. In Dr Bonham’s Case,[15] in 1610, Coke (by then Chief Justice of the Court of common Pleas) held that “in many cases, the common law will control Acts of Parliament.” It has been argued that, by this Coke intended that statute should be subject to (what subsequently developed in to[16]) the sort of judicial review practiced in American courts.[17] It seems unlikely that a doctrine of privilege (which prevents the courts from questioning anything said or done in Parliament) could exist in a legal context in which courts claimed the right to strike down even primary legislation.
  3. The assertion of Privilege as of right did not begin, in any real way, until the reign of James I. Parliamentarians, in the Apology of 1604, argued that their privileges were not “of grace only, renewed every Parliament … upon petition and so to be limited”. In 1610 the Committee on the Commons petition argued that freedom of speech “could not well be taken from us without shaking the foundations of the liberties of Parliament”. James I disagreed, reminding Parliament in 1621 that its privileges “were derived from the grace and permission of our ancestors and us”. Parliament replied, in the Protestation of 1621:

that every Member of the House of Commons hath and of right ought to have freedom of speech … and … like freedom from all impeachment, imprisonment and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning or declaring of any matter or matters touching the Parliament or Parliament business.[18]

  1. The language of the protestation is ambiguous. It may be seen as an assertion of an existing privilege. The phrase “has and of right ought to have” could, however, equally be interpreted as an acknowledgement that Parliament enjoyed the privilege at the discretion of the monarch combined with an assertion that it should, going forward, enjoy it as of right.
  2. Charles I demonstrated that, in practice, no such right existed. In 1629 he arrested and convicted Sir John Eliot and other members for speaking seditious words in debate and for violence against the Speaker (who they had physically restrained in the Chair to prevent him from adjourning the House). The convictions were only overturned , and the concept of privilege as of right re-established, after the Civil Wars.[19]
  3. On the accession of Charles II, Parliament sought to preserve the privilege as of right that it had enjoyed during the period of the Commonwealth. This was achieved not by reliance on the common law, but by statute (the Treason and Seditious Practices Act 1661). This did not, however, restrain James II from ordering the arrest of members of Parliament. The situation was only resolved when, in 1688, the Glorious Revolution put Parliament in a position of dominance by coercive force. The Bill of Rights was imposed accordingly.[20]
  4. The privilege against arrest has similarly obscure historical origins. The earliest reference occurs in 1340, when Edward III released a member of Parliament from prison so that he could take his seat in the Commons. In reality this doesn’t demonstrate any sort of privilege as of right (particularly as Edward left the member foundering for some considerable time) but, rather, the monarch extending a favour to an individual.[21] The Commons claimed, in 1404, that it was privileged from arrest for debt, contract, or trespass of any kind “according to the custom of the realm”[22]. In reality, however, the privilege persisted at the gift of the monarch. In 1452 Thomas Thorpe, the Speaker of the House, was imprisoned despite advice that he was entitled to release. The Commons acquiesced and elected a new speaker. In 1472 the Court of Kings Bench held that there was no custom of freedom from arrest.[23] As with freedom of speech, it was only in the 17th century that the privilege of freedom of arrest was asserted as being as of right and this was only enforced as a matter of law after 1688.
  5. In reality, therefore, there is little historical evidence for the assertion that Privilege has its origins in common law. Rather, the roots of privilege (as it is understood today) lie in realpolitik and in statute. The courts, however, prefer the fiction. It seems unlikely that argument along the above lines would find favour in the current judicial context.

Constitutional Role

  1. The constitutional utility of Privilege lies, ostensibly, in the separation of powers. It ensures that the courts restrain themselves to their constitutional “lane” and allow Parliament to discharge its own constitutional function unencumbered. The necessity for such a safeguard may have arisen due to the Stuart monarchs’ executive overreach. An alternative view is that emerged from the clash between an increasingly mighty oligarchic class’s growing self-confidence and domination of Parliament and the Stuart monarchs determination to maintain the constitutional assumptions of their forbears[24] (it may, of course, be both). It is clear, however, that the assertion of Privilege (particularly in Article IX) was a direct response to the arrest and conviction of various members of Parliament on the basis of things said and done in the chamber. According to Blackstone:

Privilege of Parliament was principally established, in order to protect it’s members not only from being molested by their fellow-subjects, but also more especially from being oppressed by the power of the crown.[25]

  1. Blackstone’s justification is still cited today. There is a certain irony in this because the executive branch (which now exercises the power of the crown) is led entirely by members of Parliament. As I have written elsewhere[26], this allows the executive to (in practice) exercise substantial control over Parliament. The executive is able, for example, to control the Parliamentary agenda This allows it to determine what Parliament debates, when, and for how long. Since, for the majority (normally), promotion lies solely at the discretion of the Prime Minister, the executive is also able to exert significant pressure on members and, most of the time, determine how they will vote (relying on the whipping system). It seems difficult, therefore, to accept the argument that modern Privilege ( provides protection for Parliament from interference by the executive branch.
  2. The Joint Committee on Privileges has offered a broader justification based on the constitutional function of Parliament:

Parliament makes the law and raises taxes. It is also the place where ministers are called to account by representatives of the whole nation for their decisions and their expenditure of public money. Grievances, great and small, can be aired, regardless of the power or wealth of those criticised.

In order to carry out these public duties without fear or favour, Parliament and its members and officers need certain rights and immunities. Parliament needs the right to regulate its own affairs, free from intervention by the government or the courts. Members need to be able to speak freely, uninhibited by possible defamation claims.[27]

  1. For the courts, Privilege is a matter of constitutional comity. The courts respect the boundaries of Parliament’s constitutional role just as they expect Parliament to respect their own (such as by observing the sub judice rule[28]). As Lord Reid held in Pickin v British Railways Board:

For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them.[29]

  1. This deference should not, however, be taken too far. In Rost v Edwards, Popplewell J reminded the court that it:

… while giving full attention to the necessity for comity between the courts and Parliament, should not be astute to find a reason for ousting the jurisdiction of the court and for limiting or even defeating a proper claim by a party to litigation before it.[30]

  1. This was later demonstrated (rather more explicitly) by Lord Roger of Earlsferry JSC in Chaytor:

An invocation of Privilege is apt to dazzle lawyers and judges outside Parliament. In Wellesley v Duke of Beaufort (1831) 2 Russ @ M 639, 660, Lord Brougham LC warned courts of justice against acceding to claims of privilege “the instant they hear that once magical word pronounced”…[31]

  1. There is, therefore, an inevitable tension between Privilege and the rule of law. This may, however, be understood as a feature rather than a bug. As the Committee on Privileges reported in 3013:

The tension between Privilege and the general rule of law can be uncomfortable. In his response to Government’s consultation on the Green Paper, Dr Adam Tucker, Lecturer in Law at the University of Manchester, asserted that “Privilege undermines the rule of law. Specifically it undermines the requirement, which is central to the rule of law, that the law be general”. But he continued: “The rule of law is not, however, an absolute principle. Its claims must be balanced against the competing claims of other principles. One of those competing principles is the separation of powers, specifically the requirement that no branch of government should interfere in the operation of another branch of government. There are occasions when insisting upon the general application of the law would cause (or risk causing) the judiciary or the executive to interfere with the proper operation of Parliament.” In the United Kingdom, Parliament’s exception to the general application of the law has, over time, become a fundamental constitutional principle, itself part of the law. The European Court of Human Rights has also acknowledged that the immunity conferred by Privilege, even though it may restrict the right of access to the courts, is proportionate.[32]

Scope

  1. The scope of Privilege, it is now acknowledged, is a matter for the courts. This was not always the case. Throughout the 17th and 18th centuries the power to determine the scope of privilege was disputed hotly between the legislature and judiciary. The disagreement was largely resolved in the 19th In Stockdale v Hansard Lord Denman CJ said:

Where the subject matter falls within their [Parliament’s] jurisdiction, no doubt we cannot question their judgment; but we are now inquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privileges, I have already stated my answer: it is perfectly clear that none of these courts could give themselves jurisdiction by adjudging that they enjoy it.[33]

  1. Parliament now accepts that the scope of privilege is for the courts to determine. The courts have embraced this role. In R v Chaytor, Lord Phillips of Worth Matravers PSC held:

It is now accepted in Parliament that the courts are not bound by any views expressed by Parliamentary committees, by the Speaker or by the House of Commons itself as to the scope of Privilege. On 4 March 2010 the Clerk of the Parliaments wrote to the solicitor acting for Lord Hanningfield a letter that had received the approval of the Committee for Privileges. This stated:

“Article 9 limits the application of Privilege to ‘proceedings in Parliament.’ The decision as to what constitutes a ‘proceeding in Parliament’, and therefore what is or is not admissible as evidence, is ultimately a matter for the court, not the House.”

This statement was correct. It applies as much to the House of Commons as to the House of Lords, and to an issue as to the scope of the exclusive cognisance of Parliament as it does to an issue as to the application of article 9.[34]

  1. Baroness Hale PSC, in R (Miller) v The Prime Minister explained the reasoning behind this:

These [the Bill of Rights] are Acts of Parliament. It is one of the principal roles of the courts to interpret Acts of Parliament.[35]

  1. It follows that the exclusive cognisance aspect of privilege, being (ostensibly) a creature of the common law, is also for the courts to interpret.
  2. There is, however, no bright line test which the courts can apply to determine whether something falls within the scope of Privilege. In Australia, the Commonwealth Parliament has provided a statutory definition:

In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of—(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.[36]

  1. No such statutory definition exists in UK law. Erskine May provides:

The term ‘proceedings in Parliament’ has received judicial attention (not all of it in the United Kingdom) but comprehensive lines of decision have not emerged and indeed it has been concluded that an exhaustive definition could not be achieved. The primary meaning of proceedings, as a technical Parliamentary term, which it had at least as early as the seventeenth century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognised by its inclusion in the formulation of Article IX. Not all proceedings require debate: a motion for an unopposed return, on which there is no debate, is held to be a proceeding.An individual Member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee.

Officers of the House take part in its proceedings principally by carrying out its orders, general or particular. Members of the public also may take part in the proceedings of a House, for example by giving evidence before it or one of its committees, or by securing the presentation of a petition.[37]

  1. Both the courts and Parliament are wary of providing an exhaustive definition of privilege. As Blackstone put it:

If all the privileges of Parliament were set down and ascertained, an no privilege was allowed but what was so defined and determined, it were easy for the executive power to devise some new case, not within the line of privilege, and under pretence thereof to harass any refactory member and violate the freedom of Parliament.[38]

  1. In the UK, therefore, Privilege remains one of the relatively few questions of law in which the courts will generally reason from first principles. Judges employ, what is commonly known as, the “doctrine of necessity”[39]. As Lord Phillips of Worth Matravers held in Chaytor:

The jurisprudence to which I have referred is sparse and does not bear directly on the facts of these appeals. It supports the proposition, however, that the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in Parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within Parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.[40]

  1. In R (Warsama) v Foreign and Commonwealth Office, Lord Burnett of Maldon CJ, Coulson and Rose LJJ suggested (albeit obiter):

The case law establishes not only that the courts are able to identify the current boundaries of Privilege but that they are able to adapt the scope of privilege where appropriate as occurred when the House of Lords held in Pepper v Hart [1993] AC 593 that clear statements made in Parliament concerning the purpose of legislation in course of enactment may be used by the courts as a guide to the interpretation of ambiguous statutory provisions.[41]

  1. This assertion seems problematic. As will be seen when Pepper v Hart is discussed in the next chapter, the courts did not purport to “alter” the scope of privilege but, rather, determined (in line with Article IX) whether reliance on Parliamentary statements as an interpretive aid amounted to “impeaching or questioning” a proceeding in Parliament.
  2. Much of the legal debate has focused on the extent of the term “proceeding in Parliament”, essentially grappling with the question of “what is protected by Privilege?” The courts are also, however, called on to determine from what Privilege protects. This requires them to grapple with the term “place out of Parliament”. As Lord Nicholls of Birkenhead has argued[42], this cannot be taken literally:

To read the phrase [‘place out of Parliament’] as meaning literally anywhere outside Parliament would be absurd. It would prevent the public and the media from freely discussing and criticising proceedings in Parliament. That cannot be right, and this meaning has never been suggested. Freedom for the public and the media to discuss Parliamentary proceedings outside Parliament is as essential to a healthy democracy as the freedom of members to discuss what they choose within Parliament.[43]

  1. Patricia M Leopold points out, however, this opens up a substantial area of ambiguity:

An unresolved issue was whether it applies to industrial tribunals, land tribunals and coroners’ inquests. The Joint Committee thought so, and accepted the Australian method of identifying “places out of Parliament” as any person or body having power to examine witnesses on oath. the Tribunals of Inquiry (Evidence) Act 1921 was not entitled to inquire into the behaviour of, or comments by members of either House in the course of proceedings in Parliament. Ironically the purpose of the 1921 legislation was to provide for something more satisfactory than the type of Parliamentary inquiry used to investigate the Marconi affair; yet the Select Committee that investigated that affair, as a Parliamentary committee, was entitled to inquire into proceedings in Parliament… Interestingly non-statutory inquiries such as the Scott inquiry into “arms for Iraq”, did not appear to feel inhibited from questioning various aspects of Parliamentary proceedings, from answers to questions to ministerial statements.[44]

  1. Parliament, of course, has the power to alter the scope of privilege through statute. In Stockdale v Hansard,[45] for example, a court held that privilege extended only to papers which were printed by order of the House for use by its own members. It did not extend to papers printed for use by the public. Parliament reversed this decision by the Parliamentary Papers Act 1840.[46]
  2. The Committee on Privileges has suggested that, in certain cases (such as where it wishes to make clear that a public inquiry can consider Parliamentary material), Parliament may waive privilege by resolution. It is not clear that such a course would survive judicial review since the free speech privilege is created by statute and cannot be altered save by further statute.

Privilege in the Devolved Legislatures

  1. The privilege of the Devolved Legislatures (the Scottish Parliament, Senedd, and Northern Ireland Assembly) is a very different beast from the privilege enjoyed by Westminster. The Devolved Legislatures are, unlike Westminster, creatures of statute. As the Supreme Court acknowledged in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland):

…the Scottish Parliament is not a sovereign Parliament in the sense that Westminster can be described as sovereign: its powers were conferred by an Act of Parliament, and those powers, being defined, are limited. It is the function of the courts to interpret and apply those limits, and the Scottish Parliament is therefore subject to the jurisdiction of the courts…[47]

  1. The provisions conferring privilege in the Scotland Act 1998, the Government of Wales Act 2006, and the Northern Ireland Act 1998 are, to a significant extent, materially identical. It is likely, therefore, that the Axa analysis also applies to the Senedd and Northern Ireland Assembly. The privilege enjoyed by the Devolved Legislatures is, therefore, set down in statute and it’s limits are defined therein. It is also a far more limited privilege than that enjoyed by Westminster.
  2. The Scottish Parliament and the Senedd enjoy privilege in three of areas of law: Defamation, Contempt of Court, and Judicial Review (limited to the question of remedy). Any statement made during “proceedings” in the Scottish Parliament, Senedd or Northern Ireland Assembly is absolutely privileged for the purposes of the law of defamation.[48] It is, similarly, largely impossible to bring a claim for contempt of court on the basis of anything said or done during “proceedings” in one of the Devolved Legislatures.[49] During the debates around the Scotland Act, the Advocate General, Lord Hardie, (introducing the legislation) said:

…we have deliberately framed Clause 37 [Section 41] so that absolute privilege applies only to any statement made in the proceedings of the Parliament, and to any publication made under the Parliament’s authority. This is deliberately done to ensure that the work of the Parliament is not hindered or inhibited by fear that actions for defamation may be raised, while at the same time restricting the areas which are protected.[50]

  1. The Scottish Parliament and the Senedd both benefit from a third form of privilege. In judicial review proceedings, in which the Parliament or the Senedd is the defendant, the court is prohibited from granting any remedy save for a declaration.[51] Where proceedings are brought against a member, presiding officer or deputy presiding officer, member of staff, or commission, the court is prohibiting from awarding any relief save for a declaration if, to do so, would amount to awarding such relief against the Parliament or Senedd.[52]
  2. The Northern Ireland Assembly does not enjoy this additional protection. This is ironic given that previous Northern Ireland legislatures enjoyed privilege akin to Westminster.[53]
  3. The limitation as to remedy has not, however, prevented the courts from entertaining judicial review claims which touch on “proceedings” in the Scottish Parliament or Senedd. In Whaley, and Ors v Lord Watson of Invergowrie[54] the Inner House held:

The (original ruling) gives insufficient weight to the fundamental character of the Parliament as a body which – however important its role – has been created by statute and derives its powers from statute. As such, it is a body which, like any other statutory body, must work within the scope of those powers. If it does not do so, then in an appropriate case the court may be asked to intervene and will require to do so, in a manner permitted by the legislation. In principle, therefore, the Parliament like any other body set up by law is subject to the law and to the courts which exist to uphold that law…Some of the arguments of counsel for the first respondent appeared to suggest that it was inconsistent with the very idea of a Parliament that it should be subject in this way to the law of the land and to the jurisdiction of the courts which uphold the law…On the contrary, if anything, it is the Westminster Parliament which is unusual in being respected as sovereign by the courts…While all United Kingdom courts which may have occasion to deal with proceedings involving the Scottish Parliament can, of course, be expected to accord all due respect to the Parliament as to any other litigant, they must equally be aware that they are not dealing with a Parliament which is sovereign.[55]

Procedure

  1. Where a claim is brought in which the arguments may touch upon matters falling within Privilege, the proper course is to inform the Speaker’s Counsel (if only as a matter of courtesy). Underhill LJ expressed the prevailing view on this in R (National Council for Civil Liberties) v Secretary of State for the Home Department:

Finally, Ms Hannett made submissions about the importance of notifying the Parliamentary Authorities of hearings in which issues about Privilege may arise. I will quote paras 35–37 of her submissions in full:

“It is of some concern to the Parliamentary Authorities that they did not become aware of the extensive use of Parliamentary materials in these proceedings until the publication of the Divisional Court judgment on 21 May 2024. This was despite the Divisional Court itself having indicated—albeit in the context of an issue not arising in this appeal—that ‘In past cases where article 9 has been live Parliament has on occasion appeared before the court to make submissions’ and ‘We would have welcomed such assistance’

“Without criticism of any party or of the Divisional Court, the Parliamentary Authorities would respectfully recall the mechanisms by which either House of Parliament may be notified where issues of Privilege arise.

“First, any party may write to Speaker’s Counsel, in the House of Commons, or to Counsel to the Chairman of Committees, in the House of *564 Lords, identifying the issue which has arisen, to enable the relevant Parliamentary Authority to take a view on whether an intervention is likely to assist the court.

“Second, the court may of its own motion inform Speaker’s Counsel or Counsel to the Chairman of Committees where an issue of privilege arises and invite the relevant Parliamentary Authority to intervene (or apply to intervene) if appropriate—as occurred in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2021] 1 WLR 3049 (see para 1).

“Given the course of events in these proceedings, the Parliamentary Authorities would respectfully invite the court in its judgment to encourage the use of either or both of these mechanisms in appropriate cases.”

I am happy to accept the invitation in para 37. Litigants and courts should make use of the indicated mechanisms whenever occasion to do so arises.[56]

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[1]    [1995] 1 A.C. 321 at 332

[2]    Erskine May, 12.1

[3]    See Erskine May, 13.1

[4]    [2011] 1 AC 684

[5]    For more information see Erskine May at 12.2

[6]    Adam v Ward [1917] A.C. 309 at 334, per Lord Atkinson

[7]    Tettenborn, A., Clerk and Lindsell on Torts, (24th Ed.), (London; Sweet and Maxwell, 2025), 21-109

[8]    Curistan v Times Newspapers [2009] 2 WLR 149

[9]    See, for example, Joint Committee on Privilege, Privilege, (HL Paper 30, HC 100) (2013) at 14

[10]   (1869-70) L.R. 4 H.L. 661 at 667

[11]   Bill of Rights 1689, preamble

[12]   See Erskine May, 12.7

[13]   CJ (1547-1628) 37

[14]   Elton, G. R., The Tudor Constitution (Cambridge; CUP, 1982), p 274

[15]   (1610) 8 Co. Rep. 107 (1610) 77 Eng. Rep. 638

[16]   See Marbury v Madison 5 US 137 (1803)

[17]   See, for example Edlin, D., Judges and unjust laws: common law constitutionalism and the foundations of judicial review. (Ann Arbor; University of Michigan Press, 2008)

[18]   Erskine May, 12.4

[19]   Erskine May, 12. 4

[20]   See, for example, Vallance, E., The Glorious Revolution, (London; Abacus, 2007)

[21]   Bulletin of the Institute of Historical Research vol 43 (1970), pp 214–15

[22]   See Erskine May, 12. 5: “Following the punishment meted out to the individual who subjected Richard Chedder, a Member of the Commons, to ‘orible baterie et mal-fait’, the Act 5 Hen 4, c 6 (1404) provided that those who assaulted the servants of Members of Parliament should pay double damages besides a fine (3 Rot Parl 542; 1 Hatsell 15–17). The same penalty was later imposed by a general statute for assaults on Members of either House coming to Parliament (11 Hen 6, c 11 (1432); 1 Hatsell 17).”

[23]   1 Hatsell 41–43

[24]   This is an interesting historical question but, perhaps, not one that can be explored fully in this book. The basis for the view is set out in the previous section of this chapter.

[25]   Blackstone, W., Commentaries on the Laws of England: A Facsimile of the First Edition of 1765-1769 (Chicago, University of Chicago Press, 1979), 1:159-61

[26]   Fowles, S., Overruled: Confronting Our Vanishing Democracy in Eight Cases, (London; Oneworld, 2021)

[27]   Privilege – First Report, Joint Committee Reports, Session 1998-99, 9 April 1999, HC 214-I (executive summary) this justification was broadly repeated in Joint Committee on Privilege, Privilege, (HL Paper 30, HC 100) (2013), 14-15

[28]   See, for example, Pepper v Hart [1993] AC 593 at 608

[29]   [1974] A.C. 765 at 788

[30]   [1990] 2 Q.B. 460

[31]   [2011] 1 A.C. 684 at 101

[32]   Joint Committee on Privilege, Privilege, (HL Paper 30, HC 100)
(2013), 19

[33]   (1839) 9 A & E 1, 147–148

[34]   [2011] 1 A.C. 684 at 15

[35]   [2020] A.C. 373

[36]   Privileges Act 1987, s. 16(3)

[37]   13.12

[38]   Quoed in H.C. 101 (1938-39) at 22 (extracted in Wilson, G., Cases on Constitutional and Administrative Law (2nd ed.) (Cambridge; CUP,
1976), 454

[39]   For the first use of this term see Canada (House of Commons) v Vaid [2005] 1 SCR 667 per Binnie J

[40]   [2011] 1 A.C. 684 at 47

[41]   [2020] Q.B. 1076 [2020] 3 W.L.R. 351 at 24

[42]   [2004] UKPC 36 [2005] 1 A.C. 115 at 9 (quoted with approval by Lord Bingham of Cornhill, with whom the other members agreed, in Buchanan v Jennings [2004] NZPC 4; [2004] UKPC 36; [2005] 2 NZLR 577; [2005] 1 AC 115

[43]   Joint Committee on Privilege (Session 1998-1999, HL Paper 43-I, HC 214-I) at 91

[44]   Leopold, P. M., “Report of the joint committee on Privilege [1999] P.L. (Win) 604-615, 3

[45]   (1839) 9 A&E 1

[46]   See Lord Burnet of Maldon’s comments in Warsama [2020] Q.B. 1076 [2020] 3 W.L.R. 351 at 25

[47]   AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) [2011] UKSC 46 [2012] 1 A.C. 868
at 138

[48]   Scotland Act 1998, s. 41, Government of Wales Act 2006, s. 42, Northern Ireland Act 1998, s. 50

[49]   Scotland Act 1998, s. 42, Government of Wales Act 2006, s. 43, Northern Ireland Act 1998, s. 50

[50]   HC Deb (28 July 1998) Vol. 592, Col. 1448

[51]   Scotland Act 1998, s. 40, Government of Wales Act 2006, s. 41

[52]   Scotland Act 1998, s. 40, Government of Wales Act 2006, s. 41

[53]   Government of Ireland Act 1920, s. 18, Northern Ireland Constitution Act 1973, s. 26

[54]   [2000] Scot CS 41

[55]   Whaley, and Ors v Lord Watson of Invergowrie [2000] Scot CS 41

[56]   R (National Council for Civil Liberties) v Secretary of State for the Home Department [2025] EWCA Civ 571 [2025] 3 W.L.R. 543 at 57