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Published online by Cambridge University Press: 02 January 2018
The Privy Council decision in Prebble v Television New Zealand Ltd on parliamentary privilege in the New Zealand House of Representatives might at first sight seem to be of little concern to either the British courts or the Westminster parliament. However, the New Zealand parliament bases its freedom of speech on article 9 of the Bill of Rights 1688. Indeed the need to allow MPs to speak freely in proceedings in parliament without fear of legal action is accepted as a basic principle throughout the Commonwealth. It is perhaps surprising that there is relatively little English case law on the meaning of this article. This may be because as Lord Browne-Wilkinson observed in Prebble, article 9 is one manifestation of a wider principle, namely: ‘that the courts and Parliament are both astute to recognise their respective constitutional roles.
1. [1995) 1 AC 321. The other occasion the Judicial Committee of the Privy Council considered parliamentary privilege was in its opinion on the Strauss affair, Re Parliamentary Privilege Act 1770 (1958) AC 331.
2. Article 9, which applies in NZ by virtue of the Legislature Act 1908 and the Imperial Laws Application Act 1988, provides: ‘That freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament’.
3. Above, n 1 at 332.
4. [1993) AC 593.
5. [1993) 3 NZLR 513.
6. Only the President of the NZ Court of Appeal, Cooke P, had expressly held that the House could waive privilege, above, n 5 at 521–523, the other judges did not make a finding on this, Richardson J at 534–5, Casey J at 537.
7. Interim Report of the Privileges Committee, 1.15B, June 1993, para 15. In the committee's final report, 1.15B October 1994, it did not discuss further its reasons for its decision on waiver of privilege.
8. It was discussed most recently by His Honour Judge White in the County Court in January 1989, when he had to consider whether or not to commit Lord Mancroft to prison for failing to comply with a court order, see Leopold (1989) PL 398, at 404–5.
9. (1831) 2 Russ & M 639.
10. Ibid at 654–655. There are some examples of where parliament appears to waive for the future an aspect of privilege, but the circumstances surrounding these incidents do not suggest any authority for a general power to waive privilege after the event. For example in 1971 the House of Commons resolved that notwithstanding earlier resolutions of the House it would not entertain any complaint of breach of privilege or contempt in respect of the publication of its debates or proceedings; CJ (1970–71) 548–549. A resolution in 1980 provided that the House would not regard the publication of evidence given in public before select committees as breach of privilege or contempt; HC Deb vol 991, col 922. Both these examples are concerned with ‘supposed’ privileges of the House.
11. (1887) 20 LR Ir 600.
12. [1917) AC 309.
13. Above, n 5 at 521. In Rosr v Edwards (1990) 2 All ER 641 Popplewell J. having ruled that certain evidence was inadmissible under article 9, went on to suggest that the plaintiff might petition the House for permission to call that evidence, and went on to express the hope that the House would approach the matter sympathetically, at 651. Although this dictum would seem to suggest a power to waive privilege, the fact that Privy Council in Prebble over-ruled Rost v Edwards in respect of the decision on admissibility, must cast doubt on this dictum. See below n 44 and accompanying text.
14. Above, n 7 para 12.
15. (1986) 5 NSWLR 18.
16. Above, n 1 at 333.
17. Above, n 1 at 332.
18. Above, n 1 at 335.
19. In Duke of Newcastle v Morris (1868–70) LR4 HL 661, Lord Hatherley LC stated that: ‘It seems to me that…the privilege which has been established by common law and recognised on many occasions by Act of Parliament, should be held to be a continuous privilege not abrogated or struck at unless by express words in the statute …’ at 668. Although the Lord Chancellor was referring to the privilege of peerage, it is suggested that his comments would apply equally well to parliamentary privilege. An example of a statute changing parliamentary privilege is s 214(7) of the Insolvency Act 1985, see Griffith and Ryle Parliament (1989) at 86.
20. See Erskine May Parliamentary Practice (21st edn, 1989) ch 10.
21. [1972) 1 QB 522.
22. Above, n 15.
23. Indeed it had not been followed by a New South Wales court in R v Jackson et al (1987) 8 NSWLR 116.
24. Above, n 1 at 333–334.
25. (1811) 14 East 1.
26. (1839) 9 Ad and El 1.
27. Above, n 4.
28. Above, n 21.
29. See Erskine May, above, n 20, at 116.
30. Lock ‘Parliamentary Privilege and the Courts: the Avoidance of Conflict’ [1985) PL 64 at 64.
31. Above, n 26, which resulted in the passing of the Parliamentary Papers Act 1840, see Stockdale ‘The Unnecessary Crises: The Background to the Parliamentary Papers Act 1840.’ [1990) PL 30.
32. Above, n 4.
33. Above, n 4 at 605–608.
34. HC Deb vol 229. col 353–354, (21 July 1993).
35. See n 56 below and accompanying text.
36. See Lock ‘The 1689 Bill of Rights’ (1989) XXXVII Political Studies 540. Lock points out that it was never intended that the articles of the Bill of Rights should stand on their own as substantive law, but that parliament should return to the topics covered and work them up into full-scale statutes. This happened with some of the articles, but not with article 9.
37. Above, n 1 at 333.
38. Above, n 21.
39. [1960) 2 QB 522.
40. For a discussion of what s 16(3) is thought to mean see Evans ‘Parliamentary Privilege: Changes To The Law At Federal Level’, (1988) 11 UNSW Law Journal 11, at 37–38.
41. Above, n 4.
42. In Australia the possibility that the interpretation of article 9, as enacted in s 16(2)–(4) of the PPA 1987, could have the effect of preventing courts from examining parliamentary proceedings for the purpose of determining parliamentary intention, led to the inclusion of s 16(5). This allows for the admission of such proceedings where a case is concerned with the interpretation of a statute.
43. Above, n 1 at 337.
44. Above, n 13.
45. It was probably also an implied reference to Secretary of State for Trade ex p Anderson Strathclyde plc, [1983) 2 AII ER 233, where the Divisional Court had refused to allow an applicant for judicial review to look at Hansard to prove a fact. The House of Lords in Pepper v Hart had held that this case was wrongly decided.
46. Above, n 1 at 337.
47. Lock, above, n 30, at 80.
48. HC 34 (1967–68).
49. CJ (1977–78) 170.
50. Wright and Advertiser Newspapers Ltd. v Lewis (1990) 53 S ASR 416; Adams v Ward (1917) AC 309; New Media Ownership v Finlay (1970) NZLR 1089.
51. Ibid.
52. Section 16 of the Parliamentary Privileges Act 1987 would seem to prohibit the use of parliamentary proceedings even in counter-attack cases, but it does not apply to the Australian State legislatures, and consequently the court made no reference to it.
53. Above. n 50 at 426–427.
54. Above, n 5 at 523.
55. Above, n 1 at 335.
56. [1993) AC 534.
57. Ibid at 547.
58. Ibid at 548.
59. Above, n 1 at 336.
60. Ibid.
61. Above, n 4 at 638.
62. In 1956, during the Suez crisis, the House of Commons required John Junor to appear at the Bar of the House to be reprimanded for an article by him in the Sunday Express critical of the generous petrol allowances MPs had voted for themselves, see HC 38(1956-7). Since then MPs would appear to have become more circumspect, for example the decision by the House, contrary to the suggestion by the Committee of Privileges, not to act against a Times journalist who had published a leaked draft committee report; HC 376 (1985-86), HC Deb vol 98, cols 293-330 (20 May 1986). The Committee of Privileges in its report into the Sunday Times ‘cash for questions’ allegations concluded that although the conduct of the Sunday Times fell below that expected of investigative journalism no disciplinary action should be taken by the House; HC 351-I (1994-1995) paras 58–61.
63. Lock, above, n 36 at 542.
64. Part 2 paras 5.8.4. to 5.8.8.
65. Above, n 1 at 338.
66. Robertson and Nicol Media Law (3rd edn 1992) p 399.
67. 14 EHRR 47 (1991).
68. Although the ECHR does not apply in New Zealand, it has been suggested that the procedures in the House of Representatives is contrary to Article 14 of the International Covenant on Civil and Political Rights (1966), see the article by Rt Hon Sir Geoffrey Palmer in NZLJ Sept 1994, at 328.
69. Erskine May above, n 21 at 110.
70. Chapter 11 in Ryle and Richards The Commons Under Scrutiny 1988, p 228. See also HC 34, (1967–8) at 194. The Nolan Report Standards in Public Life Cm 2850 I recommended an overhaul of the entire disciplinary procedure for members, para 102.
71. See the memorandum submitted by the four MPs who had breached the House of Commons sub judice rule, and were summoned to the Committee of Privileges. They took objection to the procedural inadequacies of the committee, and played a very limited role in its investigation. The committee did not recommend any punishment. HC 222 (1978–79).
72. Evans, above, n 40 at 47.
73. HC 34 (1967–68).
74. See Leopold ‘Parliamentary Privilege and the Broadcasting of Parliament’ (1989) 9 LS 56.