Democracy's Privileged Few

On the forty-second page of “Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions” author Josh Chafetz wrote (some emphasis added):

time be impeached, stayed or delayed by or under colour or pretence of any privilege of Parliament."⁸⁸ The Privy Council determined that this language applied only to "Members of Parliament in respect of their debts and actions as individuals and not in respect of their conduct in Parliament as Members of Parliament."⁸⁹ Thus, the 1770 act did not prevent the House from treating the institution of a libel suit against an MP for words written in proceedings in Parliament as a breach of privilege. Lord Denning, in a dissent that remained unpublished for over a quarter of a century,⁹⁰ thought that privilege was a defense to be raised in court, rather than a bar preventing recourse to the courts in the first place. Article 9 of the Bill of Rights, he wrote, "did not prevent a plantiff from commencing an action or laying an information. It only prevented him from prosecuting it in the court. ... The article is a direction to the courts of law not to allow speeches or debates or proceedings in Parliament to be impeached or questioned."⁹¹ In other words, while the Privy Council's decision adhered to conception 1 of the courts' role in questions of lex parliamenti, Lord Denning's dissent favored conception 2.⁹²

But while the decisions in the Graham-Campbell and Strauss cases were strongly in favor of the primacy of lex parliamenti, several subsequent cases were more nuanced. In the 1972 case Church of Scientology v. Johnson-Smith,⁹³ the plantiff in a libel action sought to introduce statements that the defendant, an MP, had made on the House floor in order to demonstrate that statements made by the defendant during a television interview were malicious. The Queen's Bench, however, refused to allow the floor statements to be introduced, holding that "what is said or done in the House in the course of proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House."⁹⁴ The court's decision was based on functional considerations: "[A] member must have a complete right of free speech in the House without any fear that his motives or intentions or reasoning will be questioned or held against him thereafter,"⁹³ and such fear could certainly result from a decision allowing floor statements to be used against Members in actions for things said elsewhere. In 1993, the House of Lords, in Pepper v. Hart,⁹⁶ held that it did not violate privilege for courts to refer to parliamentary debates when seeking to interpret legislation. Lord Browne-Wilkinson held that the purpose of the Article 9 speech privilege

was to ensure that Members of Parliament were not subject to any penalty, civil or criminal for what they said and were able ... to discuss what they, as opposed to the monarch, chose to have discussed. Relaxation of the rule [against referring to parliamentary debates] will not involve the courts in criticising what is said in Parliament. The purpose of looking at Hansard [the

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(Yale University Press, February 2007. Hardcover, 320 pages. ISBN: 0300113250; EAN: 9780300113259.)