Parliamentary Privilege in Jersey

STATES OF JERSEY

PARLIAMENTARY PRIVILEGE IN JERSEY

Presented to the States on 22nd July 2009 by the Privileges and Procedures Committee

STATES GREFFE

2009   Price code: D  R.79

REPORT

Foreword

On  30th  April  2009  the  Chairman  of  PPC  undertook  to  present  to  the  States  a statement on the extent of parliamentary privilege in Jersey.

The Committee requested the Greffier of the States to research this matter and draft such a statement. The report that follows is a very comprehensive summary of the position and it has understandably taken the Greffier slightly longer to prepare than the 6 week period that was initially mentioned.

PPC is hopeful that the attached report will set out the position in Jersey in a definitive way and that this will be of use to members and others. PPC is grateful to the Greffier for the extensive work that he has undertaken on this important subject.

PARLIAMENTARY PRIVILEGE IN JERSEY Greffier of the States

1. INTRODUCTION

1. Since the present Privileges and Procedures Committee was appointed in December 2008 it has been required to consider the application of parliamentary privilege in Jersey on a number of occasions and in a number of different contexts. In the States on 30th April 2009 the Chairman undertook to provide a comprehensive report on the position in Jersey and this report has therefore been prepared for the Committee to enable it to meet that undertaking.
2. This report is intended to provide a brief history of parliamentary privilege and summarise the main areas that it usually covers in parliaments which, as is the case for the States of Jersey, follow a Westminster' tradition. The report summarises, as far as is possible, how the position in Jersey follows the common law principles and statutory provisions that exist elsewhere although it is important to stress that the precise boundaries of privilege cannot always be defined in advance and there are very few cases in the courts in Jersey where the issue has been considered. The position in many continental European countries, which differs considerably from the United Kingdom and Jersey position in that much greater immunity is often available to individual members, is referred to briefly for information at the end of this report.
3. The information contained in this report has been drawn very extensively from a number of books on parliamentary practice and procedure in other jurisdictions and appropriate references are given in the text and in footnotes. In addition the report relies heavily on the 1999 Report of the Joint Committee on Parliamentary Privilege published by the UK House of Lords and House of Commons on 30th March 1999[1] (the 1999 Joint Committee Report') which is still considered to be the most authoritative statement on the position in Westminster even though many of the report's recommendations have not yet been implemented in that jurisdiction.
4. I have approached the task of preparing this report by researching and setting out the position in Jersey as far as I am able to do so following that research. It is not my role to comment on the desirability or otherwise of amending the present position by statute as that is entirely a matter for political discussion and debate. This report merely tries to set out clearly the present position in Jersey on a purely factual basis.

2. HISTORY OF PARLIAMENTARY PRIVILEGE

1. The term parliamentary privilege' is normally taken to refer to 2 separate matters: the immunities of a parliament and the powers of the parliament to protect its own processes. In a democratic society these powers and immunities are both essential to enable parliament to perform its functions of representing the people, determining policy matters, scrutinising the activities of the Executive, holding the Executive to account as well as its fundamental role of debating and passing legislation.
2. Although different forms of privilege apply in parliaments across the world the concept of privilege has its origins in the Westminster parliament. A useful historical summary of the position is set out in this extract from the New South Wales Legislative Council Practice –

"The privilege of freedom of speech in Parliament and other privileges arose to a large extent out of the historical struggle in England between the Monarch and the Parliament, especially during the Tudor and Stuart periods.

The first reasoned plea for the right of members to speak freely to matters before them was delivered by Speaker Sir Thomas More in his address for privileges in 1523 in which he requested that King Henry VIII (1509-47) accept what members said in good part and in good faith for the prosperity of the realm. Later petitions, in addition to freedom of speech, also requested that members be granted freedom from arrest, freedom from molestation for members and their servants, and admittance to the royal presence. By 1541 the request for freedom of speech appeared routinely in the Speaker's petition to the King at the opening of Parliament.

Throughout the reign of Queen Elizabeth I (1558-1603), the Parliament continued to claim the privilege of freedom of speech, and by 1563 it was claiming it as an ancient right which was simply to be confirmed by the Monarch. However, the freedom was seen by many at that time as limited to debate on legislation, rather than granting members freedom to say whatever they willed. In 1593 Lord Keeper Sir Edward Coke reminded the Speaker that the Queen had granted liberal but not licentious speech.

Under King James I (1603-25) the struggle for freedom of speech for members of Parliament intensified. The Parliament insisted that its freedom of speech was an inheritance' of an ancient right, while the King viewed it as a royal prerogative, granted by his toleration' and derived from the grace and permission of our ancestors and us'. The Commons responded with the Protestation of 1621, in which it claimed:

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 by the House itself) for or concerning any

speaking, reasoning or declaring of any matter or matters touching the Parliament or parliamentary business.'

James I dissolved the Parliament shortly thereafter. Reluctantly summoning the Parliament again in 1624, the parliamentary session was characterised by great division. James I died soon after the conclusion of the Parliament in 1625.

However, it was during the reign of James' son, King Charles I (1625-49), that the struggle between the Parliament and the Monarch reached its zenith. In 1629 Charles I ordered the arrest of three members of the Commons, Sir John Eliot, Denzil Holles and Benjamin Valentine, for speeches made in the House which the King considered dangerous, libellous and seditious. Following the dissolution of the Parliament the men were prosecuted in the Court of King's Bench, on charges of conspiring to resist the King's lawful command that the House adjourn, of calumniating his ministers, of creating discord between King and people, and of assaulting the Speaker. Although the men claimed privilege, arguing that as their alleged offences had been committed in Parliament they were not punishable in any other place, the royal court found against them, and they were subsequently imprisoned and fined.

The decision was extremely unpopular and contributed to the growing opposition to Charles I. In 1641 the Commons adopted resolutions declaring the entire proceedings against its members a breach of privilege.

The climax of this struggle was reached on 4 January 1642 when Charles I, attended by an armed escort, entered the Commons chamber and attempted to arrest five members who were most prominent in Parliament's attempt to transfer control of the armed forces away from the Crown. This dramatic moment in parliamentary history has been described in these words:

No king of England had ever interrupted a session of the House of Commons, and at first the members sat stunned when Charles swept down the centre aisle. Then they remembered their duty and stood bareheaded as the King demanded that the Speaker, William Lenthall point out the five members he had come to arrest. Lenthall answered, I have neither eyes to see, nor tongue to speak but as this House is pleased to direct me'. Rebuffed, the King gazed along the serried rows of members. Well', he concluded, I see all the birds are flown. I cannot do what I came for'. With that Charles strode out of the House as the cry of privilege, privilege' rose up behind him.[2]'

The relationship between Charles I and the Parliament was fatally undermined by his attempt to arrest the five members. Had he

succeeded he might have defused the political crisis by removing the opposition party leaders from the House. His failure ignited it, and both the King and the Parliament began to gather their forces. The following  year,  when  Charles I  raised  the  royal  standard  at Nottingham  he  was  met  by  the  Parliament's  forces  under  the leadership of Sir Thomas Fairfax and Oliver Cromwell. The ensuing civil war was a devastating experience for the country. Although the Parliamentary forces were victorious, the war unleashed political and religious radicalism and a period of civil upheaval in which both monarchy and parliament were for a time overthrown and military rule imposed.

The monarchy was restored in 1660 under King Charles II (1661-85). However, it was not until the Glorious Revolution' of 1689 that the long struggle between the Stuart kings and the English people and Parliament  was  finally  resolved  with  the  effective  election'  of William III and Mary II as joint Monarchs on whom were imposed the terms of the Bill of Rights 1689, including the provisions of Article 9.

The Bill of Rights 1689 provided statutory recognition once and for all of the basic privilege of parliament – freedom of speech.

In the late 17th and early 18th centuries, some claims of privilege went beyond those in the Bill of Rights 1689, including claims that the freedom from arrest in civil matters applied not only to members but also to their servants. In addition, members sought to extend privilege to cover claims of trespassing and poaching on their lands. Such claims  were  ultimately  curtailed  as  a  serious  obstruction  to  the ordinary course of justice, and privilege came to be recognised as only that which is absolutely necessary for Parliament to function effectively and for members to carry out their responsibilities.3

3 New South Wales Legislative Council Practice, pages 48-50

3. THE POSITION IN THE STATES OF JERSEY

1. The States of Jersey first emerged from the Royal Court in the 16th century and the Assembly is therefore one of the oldest legislatures in the Commonwealth. The Royal Court was originally not only a law enforcing body but had also been a law making body since the break with Normandy in 1204. A change in the law in Jersey was achieved by an Order made by the Privy Council following a petition from the Royal Court.
2. In time the Royal Court developed the practice of consulting representatives of the 12 parishes, namely the Connétable s and the Rectors, before petitioning the Privy Council. From this process of consultation emerged in due course a legislative assembly made up of the Jurats, Connétable s and Rectors (the three estates) over which the Bailiff presided. The Assembly became known as "Les États de Jersey", paralleling the parliamentary assembly of Normandy, then known as "Les États de Normandie". The minutes of meetings of the States begin in 1524, but they were then intermingled with the records of the Royal Court and it was only in 1603 that the Minutes of the States began to be recorded separately. Notwithstanding the emergence of the States as a legislative body, the Royal Court continued to exercise legislative functions until 1771. In that year an Order in Council enacting a Code of Laws decreed that henceforth only the States Assembly should have legislative power and the residual power of the Royal Court to make regulations and ordinances was removed.
3. Unlike legislatures in many parts of the Commonwealth the States of Jersey did not therefore emerge from a colonial system where the original authority of the legislature stemmed from its initial creation by the Westminster parliament. A series of cases in the 19th century established that the traditional privileges enjoyed by the United Kingdom House of Commons were more limited in the legislatures of the then colonial territories particularly in relation to the inherent punitive powers of the House of Commons which arose from its ancient function as a court. In the case of Kielley v Carson[3] in 1842, which concerned the powers of the Newfoundland House of Assembly in Canada, the Privy Council made this distinction and stated that colonial legislatures possessed only, at common law, those powers of self-protection that were reasonably necessary for the proper exercise of their functions and duties'.
4. There is little judicial authority in Jersey on the extent of the common law privileges that the States Assembly and its members attract but in 1998 the issue was considered by Commissioner Michael Beloff QC in the context of the case of Syvret v Bailhache and Hamon.5 The background to the case was that the plaintiff, Senator Syvret, had been suspended by the States for failing to withdraw certain remarks when directed to do so by the Chair. The Senator brought proceedings in the Royal Court against the Bailiff and Deputy Bailiff of the day seeking an order that the decision to suspend him should be quashed. The defendants argued that this was a matter of the privileges of the States and that the Court had no jurisdiction to intervene. They argued that the legal position was so clear that the Senator's proceedings should not be allowed to proceed to trial but should be struck out at a preliminary stage as

disclosing no reasonable cause of action. After hearing detailed legal argument the Commissioner agreed and struck out the proceedings. In passing he said this –

"I accept that the privileges of the United Kingdom Parliament were influenced by its origin as a court. In New Brunswick Broadcasting Co. v. Speaker of House of Assembly, Nova Scotia, Lamer, C.J.C. said (100 DLR (4th) at 228):

"In that context, a further historical factor was highly relevant. The penal jurisdiction of the Houses of Parliament in the United Kingdom was in large part derived from the fact that at one time they had been part of the High Court of Parliament', the judicial function of which had been as important as its legislative function. The division between legislatures and courts has been much clearer in Canada throughout its constitutional history."

That influenced the reach of the privilege. The kind of privilege in play in the instant proceedings, however, sprang from need, not history.

Unlike the colonial legislative assemblies, the States of Jersey were not created by a statute of the United Kingdom Parliament. They emerged from the Royal Court of Jersey, as the Attorney General put it, from the mists of time. Their history is therefore similar in that respect to that of the United Kingdom Parliament. I accept that the power of the States to discipline their members as part of the necessary power to regulate their own proceedings cannot be any less than that of a colonial legislative assembly: it is unnecessary for present purposes to consider the interesting question whether they equate to that of the United Kingdom Parliament.

Although there is no direct Jersey judicial authority on the matter, Ex p. Nicolle is persuasive in the defendants' favour. In that matter, His Majesty, on the advice of the Privy Council, dismissed the petition against a motion of censure passed by the States upon Mr. Nicolle, a member of the States, for intemperate and offensive language against another member. The Privy Council can be taken to have accepted the following claim by the States of Jersey (5 Ordres du Conseil, at 351):

That the States therefore claimed the privilege which they had ever exercised of maintaining order in the Assembly and a decorous Deportment of the Members towards each other during the Debates a Privilege which appertained to every Representative Assembly in the World and without which no such Assembly of that kind could subsist.'

While it is unclear whether the Privy Council was acting in a judicial or administrative capacity, in my judgment the ruling continues to represent the law of Jersey."

5. The precise nature of any parliamentary privilege can, of course, be set out, amended, extended or restricted by statute and the principal privileges of the States of Jersey were declared in the States of Jersey Law 1966, the long-title of which was –

"A LAW to codify, with sundry amendments, the Law regarding the constitution, procedure and Committees of the States of Jersey, to declare  and  define  the  powers,  privileges  and  immunities  of  the States,  and  to  make  provision  in  relation  to  certain  ancillary matters".

6. The provisions of the 1966 Law were restated, largely without amendment, in the States of Jersey Law 2005 which replaced the 1966 Law.
7. In the absence of further judicial authority in Jersey it is impossible to say with total certainty how the courts would define the precise boundaries of parliamentary  privilege  in  the  Island  but  in  the  light  of  the  judgment  of Commissioner Beloff QC in the case ofSyvret v Bailhache and Hamon it is clear that the courts would almost certainly interpret the position in the light of well-established  precedent  set  in  judgements  in  the United  Kingdom  and across other parts of the Commonwealth and this report is therefore based on this assumption.

4. FEATURES OF PRIVILEGE IN A WESTMINSTER PARLIAMENTARY SYSTEM

1. Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament' (23rd Edition), the definitive work on parliamentary practice in the  United  Kingdom  Parliament,  describes  parliamentary  privilege  at Westminster in the following way –

"Parliamentary privilege is the sum of the peculiar 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. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of  each  House  and  exist  because  the  House  cannot  perform  its functions without unimpeded use of the services of its Members. Other such 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."6

2. In summary privilege can be described as the immunities and powers which a parliament, its members and officers possess to enable them to carry out their functions effectively and without hindrance. Privilege essentially belongs to the parliament as a whole and individual members can only claim privilege insofar as any denial of their rights, or threat made to them, would impede the functioning of the parliament. As explained below, privilege is, in the 21st century, usually considered to be appropriate only to the extent that it covers that which is absolutely necessary for parliaments to function effectively and for members to carry out their responsibilities. When disputes arise in relation to the precise boundaries of parliamentary privilege the courts are likely to consider whether any particular power or immunity is reasonably necessary for the effective functioning of the parliament in question.
3. The  2  most  significant  privileges  usually  available  to  a  parliament  in  a Westminster system are –

• Freedom of speech;

• The exercise by Parliament of control over its own affairs, known technically as exclusive cognisance' (or exclusive jurisdiction').

A third privilege, which is also referred to later, is Freedom from Arrest, although this is now limited to certain very narrow circumstances in relation to civil matters as described below and of limited relevance in Jersey. Each of the above privileges is now considered in greater detail.

6 Erskine May's Treatise on the Law, Privileges and Usage of Parliament, 23rd edition, 2004, Lexis Nexis UK, page 75.

5. FREEDOM OF SPEECH

1. The freedom of members of a parliament to have the right to say what they wish in the parliament (freedom of speech) and to discuss what they wish (freedom of debate) is rightly considered to be the most significant privilege available to members.
2. In the United Kingdom Parliament this right is enshrined in Article 9 of the Bill of Rights 1689 which, using modern spelling, provided "That the freedom of  speech  and  debates  or  proceedings  in  Parliament  ought  not  to  be impeached or questioned in any court or place out of Parliament". (The meaning of the word impeach' in this context is not entirely clear but possible meanings include hinder', challenge' or censure').
3. Article 9 has been the subject of many legal decisions both in the United Kingdom  and  in  many  Commonwealth  countries  which  follow  a Westminster'  parliamentary  tradition.  Argument  often  centres  on what  is covered  by  proceedings  in  Parliament'  and  what  precisely  is  meant  by impeached  or  questioned  in  any  court  or  place  out  of  Parliament'.  The fundamental underlying principle is nevertheless clear and well established; namely that members of parliament are protected from being subjected to any penalty, whether civil or criminal, for what they have said in the course of proceedings  in  parliament  (including  in  parliamentary  committees).  The privilege "provides an altogether exceptional degree of protection".7
4. In Jersey the provisions of Article 9 of the Bill of Rights 1689 are mirrored in Article 34 of the States of Jersey Law 2005 –

34  Immunity from legal proceedings

No civil or criminal proceedings may be instituted against any member of the States –

1. for any words spoken before or written in a report to the States or a committee or panel established under standing orders; or
2. by reason of any other matter or thing brought by the member before or within the States or any such committee or panel by petition, proposition or otherwise.

5. The immunity is extended to witnesses invited or summoned to appear before scrutiny panels or the PAC in Jersey by the provisions of the States of Jersey (Powers, Privileges and Immunities) (Scrutiny panels, PAC and PPC) (Jersey) Regulations 2006 although it should be noted that the immunity has been restricted in the case of witnesses if they give evidence that they know to be untrue. Regulation 8 provides that –

7 1999 Joint Committee Report – paragraph 110

8  Privileges and immunity of person appearing before or producing

documents to a scrutiny panel or the PAC

1. A  person  asked  or  required  to  give  evidence  or  produce documents before a scrutiny panel or the PAC shall be entitled, in respect of such evidence and documents, to legal professional privilege and privilege against self-incrimination.
2. An answer given by a person to a question put to that person, an oral  or  written  statement  made  by  a  person,  or  a  document produced by a person, in the course of his or her appearance before a scrutiny panel or the PAC shall not, except in the case of proceedings  for  an  offence  under  these  Regulations,  be admissible  in  evidence  against  that  person  in  any  civil  or criminal proceedings.
3. Paragraph (2) shall not apply to evidence given or documents produced by that person which he or she knows to be untrue.

6. Similar  protection  is  granted  in  Jersey  to  non-States  members  who  are appointed as members of PAC or as members of a sub-committee of PPC established to investigate an alleged breach of the code of conduct.
7. The scope of the privilege given to members of parliament in relation to freedom of speech is extremely wide and absolute. The 1999 Joint Committee Report refers at paragraphs 38 and 39 to its scope at Westminster as follows –

"38.  This immunity is wide. Statements made in Parliament may not even be used to support a cause of action arising out of Parliament, as

where a plaintiff suing a member for an alleged libel on television was not permitted to rely on statements made by the member in the House of Commons as proof of malice. The immunity is also absolute: it is not excluded by the presence of malice or fraudulent purpose. Article 9 protects the member who knows what he is saying is untrue as much as the member who acts honestly and responsibly. Nor is the protection  confined  to  members.  Article  9  applies  to  officers  of Parliament  and  non-members  who  participate  in  proceedings  in Parliament, such as witnesses giving evidence to a committee of one of the Houses. In more precise legal language, it protects a person from legal liability for words spoken or things done in the course of, or for the purposes of or incidental to, any proceedings in Parliament.

39.  A comparable principle exists in court proceedings. Statements made by a judge or advocate or witness in the course of court proceedings enjoy  absolute  privilege  at  common  law  against  claims  for defamation. The rationale in the two cases is the same. The public interest  in  the  freedom  of  speech  in  the  proceedings,  whether parliamentary or judicial, is of a high order. It is not to be imperilled by the prospect of subsequent inquiry into the state of mind of those who participate in the proceedings even though the price is that a person may be defamed unjustly and left without a remedy."

8. Erskine May (23rd Edition) refers to the scope of the privilege in the following way –

"Subject to the rules of order in debate, a Member may state whatever he thinks fit in debate, however offensive it may be to the feelings, or injurious to the character, of individuals; and he is protected by his privilege from any action for libel, as well as from any other question or molestation".[4] 

9. The privilege exists because, unlike, for example, United Kingdom local or county councils where it does not, members in a legislature must have the freedom to speak freely during proceedings in the Chamber or in a parliamentary committee and raise whatever matters they wish without fear of subsequent legal action. The privilege empowers members, for example, to criticise those with power or wealth who might otherwise not hesitate to pursue matters through the courts. In the New South Wales case of Gipps v McElhone in 1881, Manning J stated –

" the public interests require that what is said in the Legislature should be absolutely privileged. Doubtless there may be members of strong energy, easy credulity, and impulsive temperament, who, in discussing a question of public interest, may injure an individual by reckless and injudicious statements. But it is of greater importance to the community that its legislators should not speak in fear of actions for defamation. It is most important that there should be perfect liberty of speech in Parliament, even though sometimes it may degenerate into license"[5] 

10. The privilege should not, of course, be treated as a licence for members to make totally outrageous and unfounded statements to deliberately injure the reputation of individuals under the cloak of parliamentary privilege. In the Canadian House of Commons on 5th May 1987, in a ruling following a question of privilege, Speaker Fraser stated –

There are only two kinds of institutions in this land to which this awesome and far-reaching privilege [of freedom of speech] extends – Parliament and the legislatures on the one hand and the courts on the other. These institutions enjoy the protection of absolute privilege because of the overriding need to ensure that the truth can be told, that any questions can be asked, and that debate can be free and uninhibited. Absolute privilege ensures that those performing their legitimate functions in these vital institutions of Government shall not be exposed to the possibility of legal action. This is necessary in the national interest and has been considered necessary under our democratic system for hundreds of years. It allows our judicial system and our parliamentary system to operate free of any hindrance.

Such a privilege confers grave responsibilities on those who are protected by it. By that I mean specifically the Hon. Members of this place. The consequences of its abuse can be terrible. Innocent people

could be slandered with no redress available to them. Reputations could be destroyed on the basis of false rumour. All Hon. Members are conscious of the care they must exercise in availing themselves of their absolute privilege of freedom of speech. That is why there are long-standing  practices  and  traditions  observed  in  this  House  to counter the potential for abuse.' 10

11. The  compatibility  of  members'  privilege  of  freedom  of  speech  with  the provisions of the European Convention for the Protection of Human Rights and  Fundamental  Freedoms  was  tested  in  the  European  Court  of  Human Rights in the 2002 case of  A v United Kingdom.11 The case arose out of comments made by Mr. Michael Stern MP in an adjournment debate in the House of Commons on 17th July 1996. In his introductory remarks he referred to  the  behaviour  of  a  named  family  in  a  housing  association  in  his constituency, describing them as neighbours from hell'. He went on to accuse the  named  family  of  anti-social  behaviour  which  included  keeping  their children away from school, allowing members of the family to lead gangs of local vandals and creating disturbance and litter in the neighbourhood. The person  named  by  Mr. Stern,  supported  by  the  civil  liberties  organisation Liberty, subsequently claimed, inter alia, that she had become the subject of racial discrimination and that she had been forced to move residence and change her children's school after the publicity which followed the MP's remarks in the House. She claimed that she was denied the right to a fair hearing  because  of  parliamentary  privilege,  and  that  such  a  denial  was  a contravention  of  Article 6(1)  of  the  Convention  which  provides  that "everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
12. In  its  judgement  the  European  Court  concluded, by  a  majority,  that  "the Parliamentary immunity enjoyed by the MP in the present case pursued the legitimate aims of protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary."
13. The Court went on to assess the proportionality of the immunity. It noted that most, if not all, Council of Europe states had an immunity of a similar kind, and that, therefore, in principle, such an immunity was proportionate. The Court also noted that the immunity afforded in the United Kingdom was in certain respects less extensive than in other member states because it only applied to statements made in the Houses. This showed that the immunity was of benefit to Parliament as a whole rather than to individual MPs. Although the Court was critical of the nature of the comments made by Mr. Stern, the Court nevertheless concluded that "the creation of exceptions to immunity, the application of which depended upon the individual facts of any particular case, would seriously undermine the legitimate aims pursued." The Court therefore found no breach of Article 6 of the Convention.
14. The fact that members have such wide-ranging freedom of speech does not mean that no control is possible. The fundamental underlying principle is nevertheless  that  any  control  exercised  on  members  must  come  from  the parliament itself and cannot be imposed from outside. Parliaments are free to

10 Canadian House of Commons, Debates, May 5th 1987, pp 5765-6 11 A v United Kingdom (2003) 36 EHHR 51

deal with anything that members collectively regard as an abuse by taking action against the member concerned and they are also able to put in place Standing Orders or other procedural rules that limit the manner in which members exercise their freedom of speech. For example, on 25th February 1988 the Australian Senate adopted a resolution which set out the specific manner in which Senators are expected to exercise their freedom of speech –

9.  Exercise of Freedom of Speech

1. That the Senate considers that, in speaking in the Senate or in a committee, Senators should take the following matters into account:

1. the need to exercise their valuable right of freedom of speech in a responsible manner;
2. the  damage  that  may  be  done  by  allegations  made  in Parliament to those who are the subject of such allegations and to the standing of Parliament;
3. the limited opportunities for persons other than members of Parliament to respond to allegations made in Parliament;
4. the  need  for  Senators,  while  fearlessly  performing  their duties, to have regard to the rights of others; and
5. the  desirability  of  ensuring  that  statements  reflecting adversely on persons are soundly based.

2. That  the  President,  whenever  the  President  considers  that  it  is desirable to do so, may draw the attention of the Senate to the spirit and the letter of this resolution.

15. Other legislatures have put in place Citizens' Right of Reply schemes where, in  certain  circumstances,  persons  who  feel  aggrieved  by  statements  made about them in parliament can apply, usually through a specified parliamentary committee, to have a response published in the official parliamentary record.
16. In Jersey, Standing Order 104(2) imposes certain restrictions on the contents of speeches as follows –

(2)  A member of the States must not –

1. unduly repeat his or her own arguments or the arguments of others;
2. use offensive or insulting language about any member of the States;
3. impute  improper  motives,  directly  or  by  innuendo,  to  any member of the States;
4. refer to the private affairs of any member of the States, unless they are of direct relevance to the business being discussed;
5. use the name of Her Majesty the Queen or the Lieutenant- Governor in order to seek to influence the States;
6. refer to the conduct of Her Majesty the Queen, any other member of the Royal Family, any member of the States or any

Jurat or other person performing judicial functions, unless the debate is upon a proposition the purpose of which is to discuss such conduct;

7. refer to a case pending in a court of law in such a way as might prejudice the case;
8. seek, within a debate, to re-open discussion of, a decision of the States made within the preceding 3 months, unless the debate is upon a proposition to rescind the decision; or
9. refer to any individual who is not a member of the States by name, unless use of the individual's name is unavoidable and of direct relevance to the business being discussed.

17. In addition the States recently adopted an amendment to Standing Orders which allows the Presiding Officer to direct, in certain circumstances, that a name spoken in breach of Standing Order 104(2)(i) above should be omitted from the Hansard transcript of proceedings.
18. If a member is considered by others to have misused the privilege of freedom of speech the matter can be raised as a matter of privilege' and considered by the Assembly. It is nevertheless important to stress that, notwithstanding any measures that the States may take to reprimand a member who is considered to  have  abused  his  or  her  freedom  of  speech,  it  is not  possible  for  the fundamental protection from legal action given by the States of Jersey Law 2005 to be waived by the Assembly. To be able to do so would seriously undermine the effectiveness of the protection offered, as a member or witness would never be sure when speaking in the Chamber or at a committee/panel meeting whether the protection would continue to apply at a later date.

Definition of proceedings in parliament'

19. In  the  United  Kingdom  the  protection  given  by  Article 9  extends  to proceedings in Parliament' but, as the 1999 Joint Committee Report explains there is no comprehensive definition available setting out what is covered by this expression in that jurisdiction. Article 34 of the States of Jersey Law 2005 gives  protection  not  only  for  words  spoken  in  the  States  or before  a committee/panel but also "by reason of any other matter or thing brought by the member before or within the States or any such committee or panel by petition, proposition or otherwise".
20. In considering the scope of the privilege available to members of a parliament it is important to gain an understanding of the circumstances in which it might apply and those when it might not.
21. The absolute immunity against civil and criminal liability granted to members of the Westminster Parliament by Article 9 of the Bill of Rights refers to proceedings in Parliament' and, although the wording of the States of Jersey Law 2005 is not identical, it is useful to understand the principles that have been established across the Commonwealth in defining the scope of privilege as these would undoubtedly guide any court in Jersey if it was called on to adjudicate on whether or not a particular matter was covered by this privilege.

22. As the 1999 Joint Committee Report points out "no comprehensive definition has been determined [of the term proceedings in Parliament']  either by Parliament itself or by judicial decision."[6]
23. To illustrate the importance of understanding the scope of privilege it is perhaps useful to set out the various processes that might eventually lead to a debate in the States where, obviously, the absolute immunity from civil and criminal liability will apply to the proceedings.
24. A member of the States might receive a letter or e-mail from a member of the public making allegations about the activities of a particular States department, perhaps even raising concerns about the work of a Minister or named individual officers. The member concerned might start his or her enquiries by writing back to the member of the public concerned to seek further details of the allegations. He or she might also, at this stage, correspond with the relevant Minister, with other States members or with officers to find further information, share the allegations and ascertain whether or not the initial allegations have any substance. A next stage might be to submit a draft oral question to the Greffier of the States who may then correspond with the member over the wording before submitting it to the Bailiff for approval. At that stage further correspondence might take place involving the Bailiff , the Greffier and the member before the question is approved, forwarded to the Minister concerned and listed on the Order Paper. The question is then answered in the Assembly by the Minister with the question and answer transcribed in Hansard and published on the States Assembly website. If the member remains concerned about the matter after the question has been answered the member might decide to bring a proposition for debate on the issue requesting the Minister concerned to take certain action. The member may repeat some of the processes above, namely corresponding with members of the public, Ministers, other members or officers before submitting a draft proposition to the Greffier of the States. As with the draft question above there will be exchanges involving the Greffier, the Bailiff and the member concerned before the proposition is finally prepared for publication, lodged and then debated. Once again the full transcript of the debate is recorded in Hansard and published.
25. Although there are certain stages in the series of events set out above that are clearly and unambiguously covered by the absolute immunity given in Jersey by the States of Jersey Law 2005, for example the publication of the oral question in the Order Paper, the answering of the question in the Assembly, the lodging of the printed proposition, speeches made during the debate on that proposition and the Hansard transcript, the point at which privilege starts' in the remaining processes is less clear.
26. It is important firstly to stress that the protection given to members is unrelated to physical location. The States Chamber, its precincts and the rooms reserved for committee/panel rooms do not in themselves have any special significance and it is simply the activities that take place in them that give rise to the operation of privilege. Remarks made by a member in the States Chamber when the Assembly was not meeting would attract no privilege and similarly an informal meeting of members in one of the

committee  rooms  would  not  either.  An  event  such  as  the  annual  Youth Assembly, even though it takes place in the States Chamber according to certain relatively formal procedural rules, clearly falls outside the scope of privileged activities. Conversely privilege would apply if the Assembly met in another location for whatever reason or, as often happens, a scrutiny panel held  a  properly  constituted  meeting  in  a  location  away  from  the  normal committee rooms.

27. Erskine May (23rd Edition) gives the following broad description of the term proceedings in parliament' –

"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. Nevertheless, a broad description  is  not  difficult  to  arrive  at.  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.  This  is naturally extended to the forms of business in which the House takes action, and the whole process, the principal part of which is debate, by which it reaches a decision. An individual Member takes part in a proceeding usually by speech, but also by various recognized forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking. Officers of the House take part in its  proceedings  principally  by  carrying  out  its  orders,  general  or particular.  Strangers  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."13

28. In Australia, following concern in parliament at the outcome of certain court proceedings in the mid-1980s, the Parliamentary Privileges Act 1987 (Cth) was enacted at Australian Commonwealth level, primarily to codify the scope of  freedom  of  speech.  Section 16(2)  of  that  Act  defines  proceedings  in Parliament' in the following way –

"(2)  For the purposes of the provisions of article 9 of the Bill of Rights,

168814 as applying in relation to the Parliament, and for the purposes of this section, proceedings in Parliament means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes –

1. the giving of evidence before a House or a committee, and evidence so given;
2. the presentation or submission of a document to a House or a committee;

13 Erskine May (23rd Edition) Pages 110-111 14 Old style date

3. the preparation of a document for purposes of or incidental to the transacting of any such business; and
4. the  formulation,  making  or  publication  of  a  document, including a report, by or pursuant to an order of a House or a committee  and the  document  so  formulated,  made  or published."

29. The 1999 Joint Committee report refers to the position at Westminster in the following way –

"100.  The position regarding certain activities is reasonably clear. In this

category  are  debates  (expressly  mentioned  in  article 9),  motions, proceedings  on  bills,  votes,  parliamentary  questions,  proceedings within committees formally appointed by either House, proceedings within sub-committees of such committees, and public petitions, once presented. These are all proceedings in Parliament. Statements made and  documents  produced  in  the  course  of  these  proceedings,  and notices of these proceedings, all appear to be. So are internal House or  committee  papers  of  an  official  nature  directly  related  to  the proceedings,  and  communications  arising  directly  out  of  such proceedings, as where a member seeks further information in the course of proceedings and another member agrees to provide it. So too are the steps taken in carrying out an order of either House.

101.  On the other hand, certain activities of members are not protected,

even though they may take place within the House or a committee. A casual conversation between members in either House even during a debate is not protected, nor an assault by one member on another. In 1947 a member of the House of Commons sued a newspaper for defamation because it claimed she had danced a jig on the floor of the House of Commons' during a division on a bill. Motions were agreed permitting members to attend the trial and give evidence both for and against the member on what had occurred in the Chamber.

102.  Repetition, even verbatim repetition, by a member of what he said

during proceedings has no protection elsewhere under article 9. Nor does  article 9  cover  proceedings  of  committees  not  appointed  or nominated by either House, such as backbench and party committees, or the Ecclesiastical Committee which is a statutory committee."

30. The above extracts indicate that, although some matters, such as a debate in the Chamber or the giving of evidence before a parliamentary committee, are very  clearly  covered  by  privilege  other  matters  only  connected  with,  or ancillary  to,  proceedings  in  parliament'  are  less  clear-cut.  In  order  to ascertain  whether  or  not  a  particular  document  or  activity  is  covered  by privilege it may be necessary to examine the particular circumstances of the individual case.
31. Having  considered  the  position  in  the  United  Kingdom  and  other Commonwealth jurisdictions, it is clear that members are not protected by privilege in respect of all their parliamentary duties when these are performed outside parliamentary proceedings. However, "the closer the relevant activity

is connected to the proceedings of parliament, the easier it is to argue that it should be protected by privilege".15

32. The 1999 Joint Committee considered the issue of members' drafts and notes in relation to parliamentary proceedings and concluded that these were likely to be so closely related to proceedings in parliament' that they would attract immunity. It commented as follows –

113.  Drafts  and  notes  frequently  precede  speeches  and  questions,  and

members  often  need  assistance  and  advice  in  preparing  them.  By necessary extension, immunity accorded to a speech or question must also be available for preparatory drafts and notes, provided these do not circulate more widely than is reasonable for the member to obtain assistance and advice, for instance from a research assistant. It would be  absurd  to  protect  a  speech  but  not  the  necessary  preparatory material. The same principle must apply to drafts of evidence given by witnesses.  This  principle  must  also  apply  to  drafts  of  speeches, questions and the like which in the event are not used. A member cannot always catch the Speaker's eye, or he may change his mind.

114.  This  approach  accords  with  the  view  expressed  by  the  select

committee of the House of Commons on the Official Secrets Acts (1939). The appointment of this committee arose out of the action taken by a member, Mr Duncan Sandys, in threatening to table a question regarding the inadequacy of London's anti-aircraft defences. The draft question included information, classified as secret, about the number of available guns and their state of readiness. Mr Sandys sent the draft to the minister. In its report the committee said there were some:

communications  between  one  member  and  another,  or between a member and a minister, so closely related to some matter  pending  in,  or  expected  to  be  brought  before  the House, that though they do not take place in the chamber or a committee room they form part of the business of the House, as, for example, where a member sends to a minister the draft of a question he is thinking of putting down or shows it to another member with a view to obtaining advice as to the propriety of putting it down or as to the manner in which it should be framed'16

The House agreed with this conclusion.

33. One activity that is clearly not covered by privilege, as indicated in the extract from  the  1999  Joint  Committee  Report  above,  is  repetition  outside  the Chamber by a member of something said under privilege during proceedings. Indeed the challenge to a member in Jersey that has occasionally been heard

15 Carney, G Members of Parliament: Law and Ethics ,Prospect Media, Sydney, 2000,

page 210

16 Report of the House of Commons Select Committee on the Official Secrets Act (1939): HC (1938-1939) 101, paragraph 4

during a debate inviting a colleague to repeat that statement in the Royal Square' indicates that members of the States are no doubt already aware of this distinction. It follows that members must take care in responding to questions outside the States, including from the media, about comments they have made in the Assembly. If a member publishes a speech that he or she has made separately from the officially published Hansard transcript of debate this becomes a separate publication and is unlikely to be covered by privilege. The Canadian House of Commons Procedure and Practice comments on this matter as follows –

"Parliamentary privilege may not protect a Member publishing his or her own speech separate from the official record.

Members are therefore cautioned that utterances which are absolutely privileged when made within a parliamentary proceeding may not be when repeated in another context, such as in a press release, a householder mailing, a telegram, on an Internet site, a television or radio interview, at a public meeting or in the constituency office. Members also act at their peril when they transmit otherwise libellous material for purposes unconnected with a parliamentary proceeding. Thus, comments made by a Member at a function as an elected representative – but outside the forum of Parliament – would not be covered by this special privilege, even if the Member were quoting from his or her own speech in the Debates of the House of Commons. Telecommunications, including new technology such as electronic mail, facsimile machines and the Internet, should therefore not be used to transmit otherwise libellous material.

The publication of libellous material has been considered by most courts to be beyond the privileges of Parliament when such publication was not part of the parliamentary process to begin with. Courts take a distinctly "functional" approach to the interpretation of parliamentary privilege by relating any novel situation in which a Member may become involved back to the function and purpose that parliamentary privilege was originally intended to serve: the need for Members of Parliament to be able to fearlessly debate issues of public policy in Parliament. Thus even correspondence between one Member and another on a matter of public policy may not be considered to be privileged."[7]

34. It is of note that the position of members who repeat allegations outside the Chamber is less favourable than the media and others who report the proceedings. The publication of a fair and accurate account of a debate will normally be protected by qualified privilege by the same common law principle that protects fair reports of court proceedings. Qualified privilege may not apply in these circumstances if it can be shown that the publication was done with malice and not in good faith. In Jersey this common law principle has been codified in Article 39 of the States of Jersey Law 2005 which states –

39 Protection in civil proceedings for publication without malice

1. This Article applies to civil proceedings instituted for publishing any account or summary of or any extract from or abstract of any document published by order or under the authority of the States or of a committee or panel established under standing orders or any proceedings of any such body.
2. The court shall enter judgment for the defendant if satisfied that such account, summary, extract or abstract was published bona fide and without malice.

Members' correspondence

35. An issue that is undoubtedly of interest to members is the one raised in the extract above, namely the status of correspondence sent to or from members.
36. In the course of their work members send and receive a vast amount of correspondence, much of it by e-mail, and the work of a member of any parliament in the 21st century bears no relation to the duties of parliamentarians when the Bill of Rights was enacted in the 17th century. States Members, in common with parliamentarians across the world, receive vast amounts of correspondence from the public and from colleagues and they frequently write to Ministers and departmental officials and outside bodies. They take up a wide range of matters on behalf of their constituents and voters often expect members to take action on their behalf. Many of these activities, even though they fall within the duties and responsibilities of being a member, do not relate directly to proceedings in parliament'.
37. In accordance with the principles set out above the protection afforded by parliamentary privilege only applies to members' correspondence if it can be clearly shown that the correspondence is for the purposes of, or clearly incidental to, proceedings in parliament. Parliamentary Practice in New Zealand (3rd Edition) summarises the position in the following way –

"A person sending information to an individual member is not engaging in a parliamentary proceeding. Such a communication is not a proceeding in Parliament, unless the communication is directly connected with some specific business to be transacted in the House, such as the delivery of a petition to the member for presentation to the House, or was solicited by the member for the express purpose of using it in a parliamentary proceeding.

Other than in these circumstances, no parliamentary privilege applies to a communication to a member of Parliament.

A communication's status after it has been received by the member depends upon the use made of it by the member, If the member takes some action in respect of it for the purpose of transacting parliamentary business, it may, at that point, become part of a proceeding (whether it is referable to a particular debate or not). But, even so, that will not have any retrospective effect so as to afford protection in respect of the original communication to the member.

Where a member communicates with another member, such as a Minister, regarding parliamentary business (for example, forwarding an amendment to a bill before the House or a question that the member is contemplating lodging) this will be regarded as a proceeding in Parliament."[8]

38. The issue arose in 1958 in the case of Mr. George Strauss MP. Mr Strauss wrote a letter to a minister making allegedly defamatory statements regarding the London Electricity Board. The Board's solicitors demanded a withdrawal and apology, failing which a writ of libel would be issued. Mr Strauss brought this letter to the attention of the House of Commons and the Speaker ruled that the threat constituted a prima facie case of breach of privilege. The committee of privileges agreed that, in writing his letter to the minister, Mr Strauss was engaged in proceedings in Parliament and by threatening libel proceedings in respect of statements made in the course of proceedings in Parliament the Board and their solicitors had acted in breach of the privilege of Parliament. The matter nevertheless came before the House and on 8th July 1958 the House resolved by a narrow majority (218 votes to 213) that "this House does not consider that Mr. Strauss' letter of the 8th day of February 1957 was a proceeding in Parliament and is of opinion therefore that the letters from the London Electricity Board and the Board's Solicitors constituted no breach of privilege"[9], the House's reasoning being that the original letter did not relate to any matter that was before the House at the time.
39. The 1999 Joint Committee considered whether legislation should be introduced in the United Kingdom to extend absolute privilege to members' correspondence with Ministers. The Committee noted that both the 1967 House of Commons committee on parliamentary privilege, the 1977 Committee of Privileges and the 1970 Joint Committee on publication of proceedings had accepted that the House of Commons' decision in the relation to the Strauss case had been right in law but all agreed that the arguments in favour of members' correspondence with Ministers having the benefit of absolute privilege were so compelling that the law should be changed. The 1999 Joint Committee did not share this view and set out its reasoning as follows –

107. An extension of absolute privilege to members' correspondence with ministers would therefore seem logical. But on closer examination it

would create problems of principle. Why distinguish between a member's letter to a minister and a member's letter to a public official or a local authority? Should a constituent's correspondence accompanying a member's letter be considered part of a proceeding'? Should a member's reply to the constituent have the same privilege? When a matter is raised in debate in the House a member may be subject to challenge from other members. Parliamentary questions should be short and to the point, and are subject to rules of order. Letters can be extensive, and if absolutely privileged under article 9 might be used as a means of publishing with

impunity defamatory statements or trade secrets. With modern photocopying facilities and e-mail, many people can easily see copies of letters, sometimes inadvertently. One reason why letters to ministers have increased appreciably is the rise in the number of constituency cases ill-suited to proceed by way of written questions, because they are too detailed or for some other reason. If parliamentary privilege were extended to members' correspondence, Parliament would probably become involved in attempting to make rules for correspondence, both constituency correspondence and generally, as it has for questions and other proceedings. The comparison drawn by the 1977 committee is not convincing. Correspondence with the parliamentary commissioner for administration consists mainly of complaints of maladministration by constituents, forwarded by members for investigation by the commissioner under statutory powers. By their nature these complaints may be defamatory, and exposure to defamation actions would unduly obstruct the commissioner's investigations.

108. It remains the case that the distinction between a member's letter and

a member's speech or parliamentary question can be somewhat arbitrary. A letter may relate to the same subject matter as an existing proceeding, and may simply be for the member a more convenient or sensible way of pursuing the same objective. It is anomalous that a member who, for example, received information that children were being abused in a named institution, would have the benefit of article 9 if he tabled a question but not if he wrote to the responsible minister first. But the boundary of privilege has to be drawn somewhere, and the present boundary is clear and defensible. Moreover, although members taking up difficult constituency cases often receive threatening letters from solicitors, cases in court are rare. Professor Bradley summed up the position in evidence:

 There was a strong case for [absolute privilege] in 1957 at the time of the Strauss case. . . . That strong case is still there. However, we have had the last 40 years in which the qualified privilege of common law seems to have enabled members of both Houses to carry out their functions satisfactorily'.

109. This practical consideration has weighed heavily with the Joint

Committee, coupled with the absence of any defensible line between constituency correspondence with a minister and constituency correspondence with others.

110. There is another consideration. Article 9 provides an altogether exceptional degree of protection, as discussed above. In principle this exceptional protection should remain confined to the core activities of Parliament, unless a pressing need is shown for an extension. There is insufficient evidence of difficulty, at least at present, to justify so substantial an increase in the amount of parliamentary material protected by absolute privilege. Members are not in the position that,

lacking the absolute immunity given by article 9, they are bereft of all legal protection. In the ordinary course a member enjoys qualified

privilege at law in respect of his constituency correspondence. In evidence  the  Lord  Chief  Justice  of  England,  Lord  Bingham  of Cornhill, and the Lord President of the Court of Session, Lord Rodger of Earlsferry, both stressed the development of qualified privilege at law and the degree of protection it provides nowadays to those acting in an official capacity and without malice. So long as the member handles a complaint in an appropriate way, he is not at risk of being held  liable  for  any  defamatory  statements  in  the  correspondence. Qualified  privilege  means  a  member  has  a  good  defence  to defamation proceedings so long as he acted without malice, that is, without some dishonest or improper motive.

111.  Admittedly,  qualified  privilege  is  less  effective  than  the  sweeping,

absolute protection afforded by article 9, in two respects. Article 9 provides a defence not only to defamation claims but also to any claim  that  by  sending  the  constituent's  letter  to  the  minister  the member committed an offence under the Official Secrets Acts or a breach of a court order. Secondly, defamation proceedings brought contrary to article 9 will generally be dismissed peremptorily, without any need for a trial, as it will be obvious from the outset that they are bound  to  fail.  With  a  defence  of  qualified  privilege,  if  there  is sufficient  prima  facie  evidence  of  malice  the  case  will  ordinarily proceed to trial for a verdict by the jury. So a member may be put to the inconvenience and expense of defending an action before he is vindicated.

112.  Constituency correspondence has burgeoned over the last 30 years,

but since Strauss there have been remarkably few, if any, instances of defamation actions against members who were acting on behalf of their  constituents.  We  recommend  that  the  absolute  privilege accorded by article 9 to proceedings in Parliament should not be extended to include communications between members and ministers.

40. It  is  important  to  distinguish  between  the  absolute  privilege  granted  to members of a parliament when the parliamentary privilege of freedom of speech applies and the qualified privilege that may, on certain occasions, be available to them.
41. Qualified  privilege  is  a  common  law  concept  available  to  all  and  was recognised as part of the law of Jersey in the case of Johnson v Lucas.20 As a

common law concept it is not strictly within the narrow scope of this report on parliamentary privilege but, as the status of correspondence is a matter that is clearly of interest to members some, consideration of the circumstances in which it may apply could be useful.

42. As explained above, where the absolute privilege provided by parliamentary privilege applies to statements or documents, no action may lie for the matter even, for example, if it is made or published with malice. The protection covers not only civil actions for defamation but extends to matters such as infringement of copyright or other matters which could otherwise be punished

20 1982 JJ 67

as  criminal  offences  (for  example,  breach  of  secrecy  or  data  protection legislation or contempt of court).

43. Qualified privilege exists where a person making a statement is not liable for a successful  action  in  defamation  if  certain  conditions  are  fulfilled  and  the statement is made without malice. It can never give any wider protection in relation, for example, to alleged breaches of the criminal law. A Standard Note issued by the House of Commons Library on 2nd December 200821 gives some  guidance  to  MPs  on  the  application  of  qualified  privilege  in  the following terms –

"Qualified privilege is a legal concept extending well beyond the scope of parliamentary privilege." ()

"According  to  Words  and  Phrases  Legally  Defined,  qualified privilege means:

On grounds of public policy the law affords protection on certain occasions to a person acting in good faith and without any improper motive who makes a statement about another person  which  is  in  fact  untrue  and  defamatory.  Such occasions are called occasions of qualified privilege. As a general rule, there must  be a common and corresponding duty  or  interest  between  the  person  who  makes  the communication and the person who receives it.'22

The standard judicial definition of a privileged occasion is that made by Lord Atkinson in Adam v Ward –

A privileged occasion is an occasion where the 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.  This reciprocity is essential.'23

Malice on the part of a person who communicated information always disapplies the privilege.

The rule was tested in 1930 in a case (Watt v Longsdon) where one director of a company passed allegations about the sexual misconduct of another director to the Chairman, and also to that person's wife. The court held on appeal that communication with the chairman was privileged, as both the maker and the receiver had a common interest in the probity of the company, but that no such reciprocity existed with the wife, and hence that that communication was not privileged.24

21 SN/PC/2024

22 Words and Phrases Legally Defined, 3rd edition (Butterworths) 1989 23 1917 AC 309, at p 334

24 1930 1KB, pp 130-159

44. The issue of qualified privilege for members' correspondence was addressed by Professor Anthony Bradley, Emeritus Professor of Constitutional Law at the University of Edinburgh when he gave evidence to the 1999 Joint Committee –

"There is no doubt that matters that are contained in speech in the House or in a Committee are subject to absolute privilege under Article 9 and so, for that matter, are matters contained in House of Commons papers. We have the supporting authority of the Parliamentary Papers Act in that context. To enable the House and Members to perform their function, documents that are ancillary to those matters must surely also be protected, whether drafts of questions or Members' notes he or she may use in a speech, and other ancillary matters. At the borderline is the question of an MP's letter to the minister which, in my view, raises the difficult issue of where you draw the line. If the argument is that this may be preliminary to or instead of a question in Parliament, why should not such a letter by a Member to a minister be a proceeding in Parliament? If we stop short of that and we have, for example, constituents' letters to MPs or MPs' letters to constituents, or what is said in a surgery or what is said at a protest meeting that a Member attends in his constituency, those do not seem to me to be parliamentary proceedings. They relate to the Member's presence and functions in the constituency. Therefore, I would at the moment not wish to argue that proceedings in Parliament should be widened to include everything that is done by a Member in his or her capacity as a Member. I believe there is a good deal of support for that proposition to be found both in this country and abroad. Of course, what is said in correspondence between a constituent and a Member of Parliament will almost certainly be covered by qualified privilege at common law. As I have indicated earlier today, it seems as if Members of Parliament since the 1950s have been able to carry out their duties on that basis. While I accept that there may be an argument for putting letters to ministers within the definition of proceedings in Parliament, it may not be that there is a real need shown at the present time for that to be done."[10]

45. The established position in the United Kingdom is that the reporting by a Member of a complaint by made by a constituent to a person who has an interest in, or may be in a position to act on, the complaint would be likely to attract qualified privilege. In 1969 the Labour MP Mr. Reg Freeson communicated certain complaints about a firm of solicitors, which he knew were defamatory, to the Law Society and to the Lord Chancellor. It was held by the Court that an MP had "both an interest and a duty to communicate to the appropriate body at the request of a constituent any substantial complaint from the constituent concerning a professional man in practice at the service of the public."[11]  The Court ruled that Mr Freeson's letter was subject to qualified privilege.

46. In the United Kingdom members have, in practice, had an effective defence in any proceedings for defamation for their constituency correspondence since the  confirmation  in  the  Freeson  case,  always  provided  the  channel  of communication was a proper one for the transmission of a complaint or other defamatory  comment,  to  a  responsible  authority,  and  that  no  malice  was involved. But it must be stressed that this is a common law right based on case law, that every case is therefore different and that the qualified privilege is a defence available in defamation proceedings only and, unlike parliamentary privilege, not an absolute privilege that would cause any potential proceedings to be stayed. It is also important to stress that the correspondence must be made in good faith and without malice. In a memorandum to the 1999 Joint Committee the Right Hon. Lord Bingham of Cornhill, the then Lord Chief Justice wrote that the qualified privilege "would be lost if the member were shown to have made the statement in question without believing it to be true or from some ulterior or wrongful motive".27
47. Following difficulties that arose for MPs in the United Kingdom in dealing with constituency matters following the introduction of the Data Protection Act 1998 a statutory instrument, the Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 200228 was passed. The Order has two main functions, which apply where a constituent has contacted a member  of  Parliament  or  another  category  of  elected  representative  as specified in the Order. The first is to give the member (or someone acting with their  authority)  the  authorisation  necessary  under the  Data  Protection  Act 1998 to process sensitive personal information about the constituent in the course  of  the  member's  functions  as  a  representative'  (for  example constituency casework) without having to establish explicit consent'. Second, the  Order  allows,  but  does  not  require,  others  (for  example  agencies  or organisations)  who  are  contacted  by  elected  representatives  to  disclose sensitive personal information to them where this is necessary to help with their functions, without having to obtain the explicit consent of the individual concerned. Current guidance from the Information Commissioner makes clear that it is only in exceptional circumstances that insisting on written consent would likely be justified.29. It should, however, be stressed that no similar subordinate legislation has been enacted in Jersey under the Data Protection (Jersey) Law 2005.
48. In conclusion it can be seen that the absolute immunity provided under the parliamentary  privilege  of  freedom  of  speech  applies  to  statements  and documents directly related to proceedings in parliament' or that can be shown to be so closely related to, or ancillary to, those proceedings that the privilege will also apply. Qualified privilege as a defence against a defamation action may apply in other circumstances.

27 HC 214-III, p 109

28 SI 2002/2095

29 For further details see the Standard Note SN/HA/1936 issued by the House of Commons Library which gives further information http://www.parliament.uk/documents/upload/snha- 01936.pdf

49. Useful examples of circumstances in which parliamentary privilege may apply in the United Kingdom are found in a note issued by the Ministry of Justice in relation to Section 34 of the Freedom of Information Act 2000[12] which relates to an absolute exemption under the Act where disclosure would be an infringement of the privileges of either House of Parliament[13]. The Guidance Note gives the following examples –

The Parliamentary privilege exemption is most likely to be relevant to information contained in documents in the following categories, when they are unpublished -

• memoranda submitted to committees;[14]

• internal papers prepared by the officials of either House directly related to the proceedings of the House or committees (including advice of all kinds to the Speaker or other occupants of the Chair in either House, briefs for the chairmen and other members of committees, and informal notes of deliberative meetings of committees);

• papers prepared by the Libraries of either House, or by other House agencies, either for general dissemination to Members or to assist individual Members, which relate to, or anticipate, debates and other proceedings of the relevant House or its committees, and are intended to assist Members in preparation for such proceedings;

• correspondence between Members, officials of either House, Ministers and government officials directly related to House proceedings, including exchanges between Counsel to the Chairman of Committees and those drafting bills and statutory instruments;

• papers relating to investigations by the Parliamentary Commissioner for Standards;

• papers relating to the Registers of Members' Interests;

• bills, amendments and motions, including those in draft, where they originate from Parliament or a Member rather than from Parliamentary counsel or another government department.

Privileged information which is likely to be in departments' hands

Information which may be covered by parliamentary privilege may also fall under other exemptions, depending on the subject matter. It is important, however, that privilege is asserted wherever it is applicable. Particular care will therefore need to be taken in relation to requests for information about, or contained in:

• any of the unpublished working papers of a select committee of either House, including factual briefs or briefs of suggested questions prepared by the committee staff for the use of committee chairmen and/or other members, and draft reports: these should only be in the possession of a department as a result of a Minister being, or having been, a member of such a committee;

• any legal advice submitted in confidence by the Law Officers or by the legal branch of any other department to the Speaker, a committee chairman or a committee, or any official of either House (even if section 42 (legal professional privilege) would be likely to apply);

• drafts of motions, bills or amendments, which have not otherwise been published or laid on the Table of either House;

• any unpublished correspondence between Ministers (or departmental officials) and any Member or official of either House, relating specifically to proceedings on any Question, draft bill or instrument, motion or amendment, either in the relevant House, or in a committee;

• any correspondence with or relating to the Registrar of Lords' Interests, the proceedings of the Parliamentary Commissioner for Standards or the Registrar of Members' Interests in the House of Commons.

Information relating to matters not regarded as proceedings in Parliament'

Other information arising from or related to a wide range of activities within Parliament is not regarded as privileged, although other exemptions may be relevant. The most significant categories are:

• Papers prepared by the Libraries of either House, or other House agencies, intended to provide general or specific background information on matters not currently under examination, or expected or planned to be considered, in formal proceedings of either House or their committees.

• Members' correspondence and other communications not specifically related to proceedings of either House or of one

of  its  formally  constituted  committees.  For  example, correspondence between a Member and a Minister about a constituency issue that is not the subject of proceedings is not privileged,  but  correspondence  about  a  draft  motion, amendment or Question is privileged.

• The  deliberations  of  parliamentary  bodies  established  by statute (although if they are discussing matters relating to the preparation  of  formal  proceedings  in  Parliament,  those deliberations may be privileged).

• Meetings of political parties and their committees.

• Meetings of all-party groups.

6.  PARLIAMENT'S CONTROL OVER ITS OWN AFFAIRS (EXCLUSIVE COGNISANCE')

1. The  technical  term  Exclusive  cognisance',  sometimes  referred  to  as exclusive jurisdiction' refers to the fact that Parliaments must have control over all aspects of their own affairs, the ability to determine their own internal procedures and to discipline their own members for misconduct.
2. The justification for the privilege is that Parliaments must be free to conduct their proceedings without interference by outside bodies if they are to perform their constitutional duties to legislate, investigate and debate properly.
3. Perhaps  the  most  important  aspect  of  this  privilege  is  that  ability  of  a parliament to regulate its own internal proceedings without interference from outside. As a result he manner in which the States Assembly exercises its own internal rules in relation, for example, to disciplinary matters is entirely a matter for the Assembly and not for the courts or other outside bodies such as the States of Jersey Complaints Board.
4. This long-standing principle of parliamentary autonomy was clearly reiterated in the Jersey context in the case of Syvret v Bailhache and Hamon33 referred to

earlier. In his judgement Commissioner Beloff QC, in allowing the application by the defendants for the application for judicial review to be struck out, held that it was clear that the States Assembly, as a legislative assembly, possessed such  privileges  as  were  reasonably  necessary  for  its  proper  functioning, including the power to regulate its own internal proceedings, the exercise of which could not be questioned by the court. Therefore, although the court was entitled to establish whether the sanctions which had been imposed by the States on the plaintiff were ones which it was entitled to use, it could enquire no further and it was not for the court to consider whether the Standing Orders had been properly interpreted or applied, whether the plaintiff had in fact been guilty of misconduct, or whether the action taken against him had been in accordance with the rules of natural justice or in good faith. That the States were the sole judge of their own privileges in this way was a power common to  all  legislative  assemblies,  which  needed  to  be  independent  of  outside control the better to fulfil their democratic functions. This inherent power clearly included the power to suspend a member for disorderly conduct. In his judgement the Commissioner stated –

"In  my  view,  the  sole  question  for  me  is  whether  the  sanctions imposed were ones available to the defendants (including the States). I  have  no  doubt  that  they  were.  Apart  from  express  powers  and prerogative powers, where relevant, they are both embraced by the general principle of necessity and the particular example canvassed in Barton v. Taylor .

I conclude that all of what was being done and is complained of by the plaintiff relates to the internal proceedings of the States; that the privilege contended for exists; that the States and officers enjoyed the inherent powers claimed; and that, accordingly, I should abstain from further inquiry into the matter. My judicial function is exhausted.

33 1998 JLR 128

It was argued by the plaintiff that I should consider whether the condition precedent for the exercise of such powers, i.e., that the plaintiff was guilty of disorderly conduct, was established. I decline the invitation which seems to me destructive of the privilege. Although, I repeat, it is not for the court to determine whether the plaintiff's conduct was "grossly disorderly," support for the second defendant's decision can be derived from Erskine May, Parliamentary Practice, 21st ed., at 393–395 (1989). For example, a failure to withdraw a disorderly or unparliamentary expression on the direction of the Speaker may lead the Speaker to take action pursuant to Standing Order 42 of the United Kingdom Parliament, which is in almost identical terms to Standing Order 30(3) and empowers the Speaker to deal with "grossly disorderly conduct."

It is further argued that the breach of the rules of natural justice (i.e., absence of notice to the plaintiff) prima facie vitiate the exercise of such powers. Again, I reject the argument. Procedural fairness is an obvious example of the manner in which powers are exercised and the question is thus excluded from judicial scrutiny.

It is further argued that the allegation that the defendants acted in bad faith can be investigated. I reject that argument too. Once the mantle of Parliamentary privilege cloaks an action, its motivation is not a matter for the courts"

5. The 1999 Joint Committee stated at paragraph 275 of its Report that "As far as members are concerned, there can be no doubt that each House should remain responsible for disciplining its own members. The Joint Committee has taken this as axiomatic. It is inconceivable that the power to suspend or expel a member of either House should be exercisable by the courts or some other body". Although it is not a departure from this principle it is nevertheless worth pointing out that in adopting the States of Jersey Law 2005 the States have agreed that there are certain circumstances when a Senator or Deputy would be automatically disqualified from membership of the Assembly without the need for a debate. These include being convicted of an offence and sentenced to an term of imprisonment of not less than 3 months with no option of a fine, being compulsorily detained under the mental health legislation or becoming bankrupt.
6. The disciplinary sanctions referred to in the Standing Orders of the States of Jersey against individual members are censure, no confidence (in relation to an officeholder), suspension and expulsion.[15] The duration of any period of suspension is set out in Standing Order 164(4). There is currently no provision to fine members or withhold their remuneration during any period of suspension.
7. The ability of a parliament to be master of its own membership is an important privilege although it is now common, as in Jersey, for disputes about contested elections to be dealt with by the courts. The power of expulsion from the States is therefore one that is referred to in Standing Orders as

mentioned above. At the time of the debate on the new Standing Orders in 2005 this matter was referred to in the accompanying report of the then PPC –

"The Committee has received legal advice that the States have a prerogative power to expel a member in common with powers found in parliaments around the world. The power has never been used in Jersey  to  the  Committee's  knowledge  and  has  not  been  used,  for example, in the UK House of Commons for many decades. Many of the situations that might lead to expulsion are now dealt with in other ways such as the voluntary resignation of the member concerned or statutory disqualification from office as found in the States of Jersey Law 2005 for matters such as serious criminal conduct. Although PPC hopes and expects that the powers will never be used in Jersey it seems important to include in these Standing Orders the safeguards for the member who might be affected."

8. The safeguards' referred to include matters such as the ability of the member concerned to speak twice during any debate on his or her expulsion.
9. Another important aspect of the privilege of parliament to control its own affairs is its right to judge the lawfulness of its own proceedings. The Courts will not look, for example, at the procedures that were followed to enact legislation to ascertain whether they were defective. The 1999 Joint Committee refers to this in the following way –

232. Both Houses have long claimed, and succeeded in maintaining, the

right to be the sole judges of the lawfulness of their own proceedings and to determine, or depart from, their own codes of procedure. Courts of law accept Parliament's claim that they have no right to inquire into the propriety of orders or resolutions of either House relating to their internal procedure or management. Except for purposes of statutory interpretation, the courts do not look behind the Act' or consider themselves competent to consider the processes within Parliament preparatory to enactment. With minor statutory exceptions the two Houses have a substantial measure of independence in the way in which they organise their business and regulate their internal organisation. Speaking in his judicial capacity in 1974 Lord Morris of Borth-y-Gest stated –

the question of fundamental importance which arises is whether the court should entertain the proposition that an Act of Parliament can so be assailed in the courts that matters should proceed as though the Act or some part of it had never been passed... such doctrine would be dangerous and impermissible. It is the function of the courts to administer the laws which Parliament has enacted. In the processes of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality, unless and until it is amended or repealed by Parliament. . . it must surely be for Parliament to lay down the procedures which are to be followed before a bill can become an Act. It

must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed: it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders.'[16]

233. This ancient right remains of fundamental constitutional importance.

The exclusive right of the two Houses to make and to vary their own rules of procedure protects the legislative supremacy of Parliament and the exclusive right of the Commons to grant aids and supplies.

10. This doctrine was more recently reaffirmed in the case brought by the Chairman of the Countryside Alliance, Mr. John Jackson , to challenge the Hunting Act 2004 which had made it illegal to hunt foxes with hounds.[17] In its judgement the House of Lords, in its judicial capacity, reaffirmed a long line of judicial authority to the effect that the courts of the United Kingdom had no power to declare enacted law to be invalid.
11. Until 1993 the protection given by Article 9 of the Bill of Rights 1689 was held to prevent the courts from even using statements made in Parliament concerning the purpose of Bills as a guide to the interpretation of ambiguous statutory provisions. This principle was overturned in the landmark judgment of Pepper v Hart [18] which led to the lifting of the restriction.
12. The case is described in the following way in the 1999 Joint Committee Report –

43. () The case concerned the proper meaning of a taxation provision. Mr Hart was a schoolmaster at a fee-paying school which operated a concessionary fee scheme enabling members of staff to have their sons educated at the school at reduced fees if surplus places were available. Tax was payable by Mr Hart on the cash equivalent of the benefit', but the statutory definition of that expression was ambiguous. During the committee stage of the Finance Bill in the House of Commons the financial secretary to the Treasury indicated that the basis of taxation for certain benefits in kind would remain the cost to the employer of providing the service. When pressed he interpreted this as being, in effect, the extra cost caused by the provision of the benefit in question. In Mr Hart 's case the actual additional cost to the employer was negligible, because boys educated through the scheme were filling places which otherwise would have been empty. However, relying on the wording in the Act, the Inland Revenue had taxed a proportion of the total cost of providing the services.
44. The House of Lords in its judicial capacity decided that clear statements made in Parliament concerning the purpose of legislation in course of enactment may be used by the court as a guide to the interpretation of ambiguous statutory provisions. The Lords held such

use of statements did not infringe article 9 because it did not amount to questioning a proceeding in Parliament. Far from questioning the independence  of  Parliament  and  its  debates,  the  courts  would  be giving effect to what was said and done there. Lord Browne-Wilkinson said -

I trust when the House of Commons comes to consider the decision in this case, it will be appreciated that there is no desire to impeach its privileges in any way. Your Lordships are  motivated  by  a  desire  to  carry  out  the  intentions  of Parliament in enacting legislation and have no intention or desire to question the processes by which such legislation was enacted  or  of  criticising  anything  said  by  anyone  in Parliament in the course of enacting it. The purpose is to give effect to, not thwart, the intentions of Parliament.'

13. Courts will now, if necessary, consider statements made by Ministers and others in parliament during the passage of legislation, as well as Explanatory Notes accompanying the draft legislation, in order to assist with statutory interpretation in the case of any ambiguity.
14. Certain other traditional aspects of privilege under the heading of exclusive cognisance'  are  increasingly  now  being  dealt  with  in  other  ways  as parliaments and the courts recognise that the exceptional protection and power given  by  privilege  should  be  reserved  for  matters  that  are  reasonably necessary  for  parliaments  to  carry  out  their  functions.  In  addition,  in  the United Kingdom context, the traditional penal powers of Parliament as the former High Court of Parliament' in relation to matters such as the ability to imprison non-members in cases of contempt are increasingly seen as difficult to  maintain  in  the  21st  century.  The  1999  Joint  Committee  Report recommended that Parliament's power of imprisonment should be abolished and its penal powers over non-members should, in general, be transferred to the High Court.38
15. The existence or otherwise of penal powers against non-members has not been tested in living memory in relation to the States of Jersey and it would seem unwise  to  suggest  that  any  such  theoretical  powers  could,  or  should,  be exercised by the Assembly. Through legislation such as the States of Jersey Law  2005  the  Assembly  has  already  transferred  much  of  the  power  of enforcement for matters that in the past might have been covered by the common law of privilege to the courts. These include –

Admission to the Assembly

16. The right of strangers to attend the meetings of the States is governed by Article 33 of the States of Jersey Law 2005. No stranger is entitled, as of right, to enter or remain in the precincts of the States and the Bailiff may at any time order any stranger to withdraw from the precincts of the States. The rules on admission during States meetings are set out in Standing Order 173. Failure to comply with the rules or failure to withdraw when required to do so is an offence and renders the stranger liable to a term of imprisonment of 3 months and a fine of level 2 on the standard scale (currently £500).

38 1999 Joint Committee Report, paragraph 324

Attendance at committee/panel meetings

17. The ability of a parliament to require the attendance of witnesses to give evidence is a further traditional privilege. The powers in Jersey are found in the States of Jersey (Powers, Privileges and Immunities) (Scrutiny panels, PAC  and  PPC)  (Jersey)  Regulations  2006.  These  Regulations,  subject  to certain conditions and rights of appeal, allow committees/panels to issue a summons  to  require  the  attendance  of  a  witness  and  the  production  of documentary evidence. In addition they contain powers to require witnesses who have been summoned to answer specific questions put to them by the committee/panel. Any person who fails to comply with a summons or, when summoned, fails to answer a question as required is guilty of an offence and liable to a fine of level 4 on the standard scale (currently £5,000). These Regulations do not, however, apply to States members who are required to comply with requests to attend committees and panels by the provisions of their own Code of Conduct. This ensures that any failure to comply falls to be dealt with by members themselves as a breach of the Code and not by the criminal courts. Similar Regulations, the States of Jersey (Powers, Privileges and Immunities) (Committees of Inquiry) (Jersey) Regulations 2007 are in place in relation to the work of any Committees of Inquiry established by the States to inquire into any particular matter.

Blackmailing, menacing or compelling a member to act

18. It is clearly a fundamental principle that members of a parliament should be able  to  undertake  their  duties  without  threat  or  hindrance.  In  addition  to normal common law legal remedies that may be available, Article 47 of the States of Jersey Law is in the following terms –

47  Offence of blackmail, menace or compulsion

A person who blackmails or attempts to blackmail or who offers any threat, assault, obstruction or molestation or attempt to compel by force or menace any member of the States, member of a committee of inquiry established under standing orders or officer of the States in order to influence him or her in his or her conduct as such member or officer, or for, or in respect of the promotion of or of opposition to any  matter,  proposition,  question,  bill,  petition  or  other  thing submitted or intended to be submitted to the States, the Council of Ministers,  the  Chief  Minister,  any  other  Minister,  an  Assistant Minister  or  any  committee  or  panel  established  under  standing orders, or who is a party to such an offence, shall be guilty of an offence and liable to imprisonment for a term of 5 years and a fine.