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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
    1. Stockdale v. Hansard (1839) 9 Ad. & E. 1; 3.St.Tr.(N.s.) 723
    2. Case of the Sheriff of Middlesex (1840) 11 Ad & E 273
    3. Bradlaugh v Gossett (1884) 12 QBD. 271
    4. Pepper (Inspector of Taxes) v Hart [1993] 1 All ER 42
    5. R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Ltd [2001] 1 All ER 195
    6. R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 All ER 93
    7. Hamilton v Al Fayed [1999] 3 All ER 317
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Stockdale v. Hansard (1839) 9 Ad. & E. 1; 3.St.Tr.(N.s.) 723

LORD DENMAN CJ: This was an action for a publication defaming the plaintiff's character, by imputing that he had published an obscene libel....

[Hansard's] plea, it is contended, established a good defence to the action on various grounds.

1. The grievance complained of appears to be an act done by order of the House of Commons, a court superior to any court of law, and none of whose proceedings are to be questioned in any way.... It is a claim for an arbitrary power to authorise the commission of any act whatever, on behalf of a body which in the same argument is admitted not to be the supreme power in the State.

The supremacy of Parliament, the foundation on which the claim is made to rest, appears to me completely to overturn it, because the House of Commons is not Parliament, but only a co-ordinate and component part of the Parliament. That sovereign power can make and unmake the laws; but the concurrence of the three legislative estates is necessary; the resolution of any one of them cannot alter the law, or place anyone beyond its control. The proposition is therefore wholly untenable, and abhorrent to the first principles of the constitution of England.

2. The next defence involved in this plea is, that the defendants committed the grievance by order of the House of Commons in a case of privilege, and that each House of Parliament is the sole judge of its own privileges. This last proposition requires to be first considered. For, if the Attorney-Ceneral was right in contending, as he did more than once in express terms, that the House of Commons, by claiming any thing as its privilege, thereby makes it a matter of privilege, and also that its own decision upon its own claim is binding and conclusive, then plainly this court cannot proceed in any inquiry into the matter, and has nothing else to do but declare the claim well founded because it has been made.

This is the form in which I understand the Committee of a late House of Commons to have asserted the privileges of both Houses of Parliament: and we are informed that a large majority of that House adopted the assertion. It is not without the utmost respect and deference that I proceed to examine what has been promulgated by such high authority.....

Parliament is said to be supreme; I most fully acknowledge its supremacy. It follows, then, as before observed, that neither branch of it is supreme when acting by itself. It is also said that the privilege of each House is the privilege of the whole Parliament. In one sense I agree to this: because whatever impedes the proper action of either impedes those functions which are necessary for the performance of their joint duties. All the essential parts of a machine must be in order before it can work at all. But it by no means follows that the opinion that either House may entertain of the extent of its own privileges is correct, or its declaration of them binding....

That Parliament enjoys privileges of the most important character, no person capable of the least reflection can doubt for a moment. Some are common to both Houses, some peculiar to each, all are essential to the discharge of their functions. If they were not the fruit of deliberation in aulia regia, they rest on the stronger ground of a necessity which became apparent at least as soon as the two Houses took their present position in the State.

Thus the privilege of having their debates unquestioned, though denied when members began to speak their minds freely in the time of Queen Elizabeth, and punished in its exercise both by that Princess and her two successors, was soon clearly perceived to be indispensable and universally acknowledged. By consequence, whatever is done within the walls of either assembly must pass without question in any other place. For speeches made in Parliament by a member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete impunity.... But, if the calumnious or inflammatory speeches should be reported and published, the law will attach responsibility to the publisher.....

The privilege of committing for contempt is inherent in every deliberative body invested with authority by the constitution. But, however flagrant the contempt, the House of Commons can only commit till the close of the existing session. Their privilege to commit is not better known than this limitation of it. . . .

Nothing is more undoubted than the exclusive privilege of the people's representatives in respect of grants of money, and the imposition of taxes. But, if their care of a branch of it should induce a vote that their messenger should forcibly enter and inspect the cellars of all residents in London possessing more than a certain income, and if some citizen bring an action of trespass, has any lawyer yet said that the Speaker's warrant would justify the breaking and entering?

....We were, however, pressed with numerous authorities, which were supposed to establish that questions of privilege are in no case examinable at law....But, as to these proceedings by habeas corpus, it may be enough to say that the present is not of that class, and that, when any such may come before us, we will deal with it as in our judgment the law may appear to require.

The Attorney-General told us of another case in point in his favour, Burdett v Abbot (1811 14.East 1). We must then examine that case fully. The plaintiff committed a breach of privilege by the publication of a libel; the defendant, the Speaker, stating that fact on the face of his warrant, committed him by order of the House to prison; an action was brought for this assault and false imprisonment. Did the House of Commons threaten the plaintiff or his attorney or counsel for a contempt of their privileges? On the contrary, by an express vote they directed their highest officer to plead and submit himself to the jurisdiction of this court. When the suit was pending, did they entertain questions on the course of the proceedings, or resolve that they alone could define their own privileges, or declare that Judges who should presume to form an opinion at variance with theirs should be amenable to their displeasure? They suffered the cause to make the usual progress through its stages, and placed their arguments before the court. Their arguments were just; their conduct had been lawful in every respect. The court gave judgment in the Speaker's favour. The grounds of the decision were not that all acts done by their authority were beyond the reach of inquiry, or that all which they called privilege was privilege, and sacred from the intrusion of law, but that they had acted in exercise of a known and needful privilege, in strict conformity with the law. . . . The decision manifestly rests on the privilege to punish for contempt, inherent no doubt in Parliament and in each House, whether regarded in the legislative or in the judicial capacity, but which it only possesses in common with the courts of justice, and which was there exercised within the strictest bounds of common law.

This great case, solemnly argued at the bar, and on both sides with extraordinary learning and power, and in which the court evidently pursued their own inquiries in the interval between the arguments, presents a striking contrast to the rash and unmeasured language employed by former judges in ex parte proceedings, as writs of habeas corpus and motions for criminal information.....

To the assertion, that the courts have always acquiesced in the unlimited claim of privilege, I have already stated enough to authorise me in opposing the contrary assertion. [His Lordship then referred by name to many early authorities and cited with approval the judgments of Holt C.J. in Knollys's Case (1693 12 St.Tr. 1167; 2 Salk, 509; 1 Ld.Raym. 10); Ashby v. White (1704 2 Ld.Raym. 938; 14 St.Tr. 695); and The Case of the Men of Aylesbury (R v Paty (1704) 2 Ld.Raym. 1105; 14 St. Tr. 849).

Two admissions were made by the Attorney-Ceneral in the course of his argument here, either of which appears to me fatal to his case. He very distinctly recognised the words of Lord Mansfield that, if either House of Parliament should think fit to declare the general law, that declaration is undoubtedly to be disregarded, adding that it should be treated with contempt..... But, if the claim were to declare a general law, the Attorney-General agrees that no weight would belong to it. Clearly then the court must inquire whether it be a matter of privilege, or a declaration of general law: as indisputably, if it be a matter of general law, it cannot cease to be so by being invested with the imposing title of privilege.

The other concession to which I alluded is, that, when matter of privilege comes before the courts not directly but incidentally, they may, because they must, decide it. Otherwise, said the Attorney-General, there would be a failure of justice. And such has been the opinion even of those judges who have spoken with the most profound veneration of privilege. The rule is difficult of application.....

Since, then, the courts may give judgment on matters of privilege incidentally, it is plain that they must have the means of arriving at a correct conclusion, and that they may differ from the Houses of Parliament, as Holt and the Court of Queen's Bench differed from the Lords in the Banbury case,' as he did in Paty's case, and as the same and many other of the judges as well as the Lords did from the Commons in the case of Ashby v. White.....

Before I finally take leave of this head of argument, I will dispose of the notion that the House of Commons is a separate court, having exclusive jurisdiction over the subject-matter, on which, for that reason, its adjudication must be final. The argument placed the House herein on a level with the Spiritual Court and the Court of Admiralty. Adopting this analogy, it appears to me to destroy the defence attempted to the present action. When the subject-matter falls within their 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.

3. I come at length to consider whether this privilege of publication exists. The plea states the resolution of the House that all parliamentary reports printed for the use of the House should be sold to the public, and that these several papers were ordered to be printed, not however stating that they were printed for the use of the House. It then sets forth the resolution....

The Attorney-Ceneral would preclude us from commencing this inquiry. But, having convinced myself that the mere order of the House will not justify an act otherwise illegal, and that the simple declaration that that order is made in exercise of a privilege does not prove the privilege, it is no longer optional with me to decline or accept the office of deciding whether this privilege exists in law....

It is likewise fit to remark that the defamatory matter has no bearing on any proceeding in Parliament, or that could arise there. Whether the book found in the possession of a prisoner in Newgate were obscene or decent could have no influence in determining how prisons can best be regulated; still less could the irrelevant issue whether it was published by the plaintiff. The most advisable course of legislation on the subject is wholly unconnected with those facts....And if the ascertainment of them by the House was a thing indifferent, still less could the publication of them to the world answer any one Parliamentary purpose.

The proof of this privilege was grounded on three principles-necessity - practice - universal acquiescence. If the necessity can be made out, no more need be said: it is the foundation of every privilege of Parliament, and justifies all that it requires. But the promise to produce that proof ended in complete disappointment. It consisted altogether - in first adopting the doctrine of Lake v King (1670 1 Saund 131) that printing for the use of the members is lawful, and then rejecting the limitation which restricts it to their use. . .. The case just alluded to drew a line, in the nineteenth year of Charles the Second, which has always been thought correct in law. The defendant justified the libel he had printed by pleading that it was only printed for the use of the members. Much doubt at first existed whether the justification were good in law.... After an advisement of many terms and even of some years, Lord Hale and the court sustained the defence, because, being necessary to their functions, it was the known course in Parliament to print for the use of members. But wherefore all this delay and doubt, if the House then claimed the privilege of authorising the publication of all papers before them? Or how can we believe that the defendant would not have pleaded at first that privilege, when we find that he was admitted to have acted according to the course and proceedings of Parliament, if it was then their understood right?....

Another ground for the necessity of publishing for sale all the papers printed by order of the House was, that members might be able to justify themselves to their constituents, when their conduct in Parliament was arraigned, appealing to documents printed by the House. This is precisely the principle denied and condemned by Lord Pellenborough and the court in R v Creevey (1813) 1 M & S 273). a decision which it may now perhaps be convenient to censure as inconsistent with privilege, but which...has been uniformly regarded until this time as a just exposition of the law....

It can hardly be necessary to guard myself against being supposed to discuss the expediency of keeping the law in its present state, or introducing any and what what alterations. It is no doubt susceptible of improvement: but the improvement must be a legislative act....

The practice, or usage, is the second ground on which the Attorney-General seeks to rest this privilege.... But "the practice has prevailed from all time." If so, it is strange that no vestiges of it are tracked to an earlier period than 1640....The origin disproves the antiquity of the privilege, or its necessity for the functions of one of the three estates; no such necessity was thought of till [the Commons] began to struggle against the [King and the Lords] for an ascendancy which reduced them to nothing. True it is, the practice of so printing and publishing has proceeded with little interruption till this hour. But the question is not on the lawfulness or expendiency of printing and publishing in general; it is whether any proof can be found of a practice to authorise the printing and publication of papers injurious to the character of a fellow subject. Such a privilege has never been either actually or virtually claimed by either House of Parliament....

The practice of a ruling power in the State is but a feeble proof of its legality. I know not how long the practice of raising ship-money had prevailed before the right was denied by Hampden; general warrants had been issued and enforced for centuries before they were questioned in actions by Wilkes and his associates, who by bringing them to the test of the law, procured their condemnation and abandonment....

I apprehend that acquiescence in this subject proves, in the first place, too much.... During the session, it must be remembered that privilege is more formidable than prerogative, which must avenge itself by indictment or information, involving the tedious process of law, while privilege with one voice accuses, condemns and executes. And the order to "take him," addressed to the serjeant-at-arms, may condemn the offenders to persecution and ruin. Who can wonder that early acquiescence was deemed the lesser evil, or gravely argue that it evinced a general persuasion that the privilege existed in point of law?

Besides, the acquiescence could only be that of individuals in particular hardships, brought upon themselves by the proceedings published. We have a right to suppose that a considerate discretion was fairly applied to the particular circumstances of each case; that few things of a disparaging nature were printed at all;... that the imputations were generally true, and actions for libel would only have made them more public.... All kinds of prudential considerations, therefore, considered to deter from legal proceedings, and will fully account for the acquiescence.... I am of opinion, upon the whole case, that the defence pleaded is no defence in law, and that our judgment must be for the plaintiff....