The Zircon Affair
The Zircon affair concerned a BBC programme made in 1986 by the investigative journalist Duncan Campbell. It covered a secret defence project, an intelligence-gathering satellite named Zircon, and particularly the failure to submit it to parliamentary scrutiny. The BBC, under pressure from the government and its governors, decided not to screen it. After the decision was announced in January 1987, Campbell looked for other ways of publishing his scoop. On 21 January, the government obtained an interim injunction to prevent him. A group of MPs, organised by Robin Cook, planned a showing of Campbell’s film within the precincts of the House of Commons (in room W1, just off Westminster Hall, at 11am on Thursday 22 January) – presumably on the assumption that the injunction had no effect within the Palace of Westminster. The government appealed to the Speaker to allow a motion to be debated in the House that evening to prevent the film being shown. Since the rules of the House would not allow a motion to be debated without notice unless there was no objection, the Speaker refused; he also refused to ban the showing of the film on his own authority. On the morning of the planned showing of the film, the Attorney General asked the High Court for another injunction against it. The application was refused – apparently in the belief that the business was for the House, or the authorities of the House to deal with, although the judge did not explain his grounds for turning it down. Under further pressure from ministers, the Speaker reluctantly agreed to make an order on an interim basis, preventing the showing of the film until the House had had an opportunity to discuss the matter, and while the original injunction remained in force.
The House’s debate the following week proved to be less receptive to the government’s motion to confirm the Speaker’s ruling than the Leader of the House had expected. He was forced to accept a manuscript amendment that referred the business to the committee of privileges. Tony Benn both in the House and in the committee strongly pushed the claim that the Speaker’s order had been unprecedented, and that the attempt to prevent the film being shown had been a contravention of parliamentary privilege. The main concern that forced the Leader to accept the reference to the committee of privileges, though, was that the government’s motion would have impeded select committees from going about their work in the future – that it would represent a decision that would select committees from obtaining evidence where there was an injunction in force.
Privilege and proceedings in parliament
The first question for the committee of privileges was whether the speaker’s decision to prevent the showing of the film ‘affected in any way the privileges of the house or its members’. The answer boiled down to the interpretation of a ‘proceeding in parliament’, the phrase used in the Bill of Rights of 1689 . ‘Freedom of Speech and Debates or Proceedings in Parliament’, it asserted, ‘ought not to be impeached or questioned in any Court or Place out of Parliament’. It’s a venerable phrase, but rather a vague one, and there have been frequent, if increasingly hopeless, calls for its meaning to be more clearly set out in legislation. But in spite of the absence of a parliamentary privilege act, precedent and usage provided plenty of guidance for the committee, which was summarised for them by the clerk of the house.
Was the showing of a film within the precincts of the Palace of Westminster a proceeding, and therefore subject to Article IX? It was pretty clearly understood, in fact, that proceedings in parliament refers to the formal proceedings of either house – either contributions to debate, or voting, within the house, placing a motion on the order paper, or activities in the course of a select committee inquiry, and so on – and not to just anything done by members of parliament within the Palace of Westminster. It had also previously been determined that those who chose to send information to members of parliament – even whistleblowers who were revealing matters that might be of vital significance – were not protected by parliamentary privilege unless they did so as part of a formal proceeding – they had, in other words, been formally asked to do so by the house or by a committee of the house.
Few were in any doubt, therefore, that the screening was not covered by parliamentary privilege, and that it would have been perfectly proper for a judge to have issued an injunction to prevent it.
Parliament and the courts
Which takes one to one of the more interesting questions about the Zircon affair: why did the judge turn down the application for an injunction? The judge (Sir Ian Kennedy) had not explained. The committee drew its own conclusions: that he had exercised his discretion by declining to grant an injunction ‘if, for example, the matter could be regulated by the house itself, or if there could be problems of enforcement of an order within the Palace of Westminster’. ‘It may also be thought’, the committee went on, ‘that a court would be unlikely to grant an injunction where the specific purpose of the application was to prevent the publication or disclosure of material within the precincts of the House’. ‘The House has little to fear’, the committee concluded, ‘regarding possible attempts by the courts to impose injunctions restraining members in any matter relating to its proceedings or in any area under its control’ (para. 31). (The statement, it might be added, precedes more recent problems over blanket super-injunctions, but these may be left to one side for the moment.)
It’s an instance, in fact, of the working of the largely uncodified but delicately negotiated relationship between the courts and parliament. Lord Browne-Wilkinson suggested that both the courts and parliament ‘are astute to recognise their respective constitutional roles’; or as the former clerk of the house of commons, Lord Lisvane, has paraphrased it in an article on ‘what should be the relationship between the Courts and Parliament’: ‘no tanks on either’s lawn; and the two institutions seeking to act “in comity”’ [Public Law, April 2016, 274].
It is an old issue. Parliament and courts have far from always been in ‘comity’; but they have always been highly wary of one another. There is no space here, thank goodness, to do more than to introduce the long and involved history of that relationship.
Freedom from Arrest
How does it begin? Most modern cases surround the question of Article IX and freedom of speech, though they are sometimes complicated by other issues (the Zircon affair is complicated by the question of exclusive cognizance – the supposed right of parliament to deal with matters that relate to it itself). Article IX is the post-1689 version of what was regarded by some as a right, by others as a royal concession, well before the Bill of Rights Some elements of the early history of freedom of speech are dealt with in this earlier blog: and I intend to come back to it in later blogs.
But the earliest cases of tension between parliament and the courts involved what was originally the claim for freedom to attend parliament without obstruction. In its earliest form, it was a recognition that persons summoned to parliament should not be arrested in the course of civil legal proceedings in order to ensure that they turned up in court (a common occurrence until imprisonment in civil cases was largely abolished under the Debtors Act 1869). The claim never affected criminal proceedings; but it was extended in the course of the fifteenth and sixteenth centuries to cover not just arrests made during the course of proceedings (mesne process), but also to the holding in debtors’ prison of someone who had been adjudged responsible for the debt until the debt was paid off (in execution). It was also extended to cover the initiation of any legal proceedings directed against a member of parliament while a parliament was in session.
The creeping horizon of privilege was already causing alarm to judges in the reign of Henry VI: lord chief justice Sir John Fortescue made a protest against it when he was consulted about the case of Thomas Thorpe, Speaker in the 1453 parliament and judge in the exchequer court whose removal from the speakership was engineered through a process for debt by the Duke of York in 1454. The judges had been asked whether the prosecution of Thorpe was a contravention of parliamentary privilege. Fortescue, on their behalf, swerved from that one, in what was no doubt as much an act of reasonable political prudence as one of acting ‘in comity’:
To the which question the chief justices, on behalf of all the justices, after lengthy discussion and mature deliberation had taken place between them, answered saying that they ought not to answer that question for it has not been customary in the past for the justices determine in any way the privilege of this high court of parliament; for it is so high and so mighty in its nature that it may make law and may annul what is law; and the determination and acknowledgement of that privilege belongs to the lords of parliament and not to the justices.
But the judges did make a demarche about the extension of parliamentary privilege beyond arrest into staying proceedings altogether:
But as regards declaration of procedure in the lower courts in such cases as when writs of supersedeas of privilege of parliament are brought and delivered, the said chief justice said that there are many and diverse supersedeas of privilege of parliament submitted to the courts, but there is no general supersedeas brought to surcease all processes; for if there were it would seem that this high court of parliament, which administers all justice and equity, should allow the process of the common law, and so it would leave the plaintiff without remedy, considering that actions at the common law are not determined in this high court of parliament; and if any person who is a member of this high court of parliament is arrested in such cases which are not for treason or felony, or security of the peace, or for a condemnation made before parliament, it is customary that all such persons should be released from such arrests and appoint an attorney, so that they may have their freedom and liberty freely to attend parliament.
Parliament and the judges also struggled, on many occasions, with the implications of the extension of the freedom from arrest to execution, as well as mesne process, for in many cases this would leave the plaintiff without any remedy at all for the recovery of his or her debt. The usual solution to this was supposed to be the passage of a specific act to ensure that the debt was not lost as a result, though it was an extremely unsatisfactory solution.
Freedom from arrest was, in fact, the point at which the operation of the courts and parliament came closest and most regularly into contact, and though it has concerned historians very little, the privilege of freedom from arrest would continue to be a major issue for parliamentary governance for more than three centuries. A 1770 act allowed suits to be prosecuted in all courts against peers and members of the house of commons and their servants, ‘and no such action, suit, or any other process or proceeding thereupon, shall at any time be impeached, stayed, or delayed, by or under colour or pretence of any privilege of parliament’ – though it continued to exempt them from arrest or imprisonment for civil proceedings until these were largely abolished in 1869.
‘The High Court of Parliament’
Why was there such embarrassment and difficulty in negotiating the relationship between the courts and parliament? In modern, constitutional, terms, the answer is obvious enough: the need for certain immunities and freedoms in order for these two elements of the system of the state to operate effectively. But in historical terms, the matter is more complicated. The whole idea of separation of powers may be older than the eighteenth-century jurist and political theorist Montesquieu, to whom it is usually attributed (something like it has been attributed to the early fourteenth-century master of the Domincan Order Hervaeus Natalis); but it was not common to recognise with any clarity these distinctions much before Montesquieu.
Fortescue, in his response to the lords on the Thorpe affair, referred to the ‘high court of parliament’; and this phrase – frequently used in the past, and still occasionally dragged out – is the source of a good deal of obscurity and confusion in the whole question of privilege and the relationship between parliament and the royal courts. It was used regularly when parliamentarians liked to assert their privileges; but no-one seems to have been very clear what it meant. The legal historian John Baker has translated the words of the twelfth century courtier Walter Map, at the beginning of his book De Nugis Curialium, ‘De curia loquor et nescio, Deus scit, quod sit curia’ as ‘I am speaking of the court, but God knows I have no idea what a court is’ (Baker, ‘The changing concept of a court’, in Collected Papers on Legal History, 413). As Baker goes on to say, in the middle ages (and indeed to some extent now) the phrase might mean a place, a meeting of a group of people, a place where business – including legal business – is transacted (some commercial enterprises, such as the chartered companies, would normally refer to their business meetings as courts), or simply to the process of transacting some business.
There is a long-running controversy about whether early parliaments were really courts or really political bodies. As Baker has emphasised, the definition of a court, let alone parliament, in the early middle ages was highly imprecise. It is fairly clear that parliaments would often operate as both: they were a forum in which, with the king present in person, difficult cases, which could not be delegated to others, could be finally determined. But if parliaments could operate as courts, they were a very special sort of court; and the court system and parliament were diverging in the fourteenth century, if not before. By the end of it – the 1380s or so – the way parliament dealt with petitions was starting to look more like the process of making law than the process of adjudicating on cases. It’s true that parliament did, in certain circumstances continue to behave like a court. The Lords continued to exercise an occasional appellate jurisdiction, though only on writs of error from the other courts – there is a handful of cases recorded in its journal between 1514 and 1589, though it went into abeyance until its revival in 1621 and its development from the early eighteenth century into a significant slice of the business of the upper house. And there was impeachment, which was a form of legal proceeding, although the essential character of the process was of a political witchhunt masquerading as a properly legal prosecution. But the differentiation between the normal roles of parliament and a court was fairly clear, even when Fortescue was responding to the Thorpe case in 1454.
But if the difference in role was clear enough, there was, in the minds of lawyers, at least, a fundamental similarity: both were ways in which the decisive authority of the king was expressed. Parliament was more authoritative, the high court, because it incorporated the king: it was the king in person who was making judgements, with the advice of the lords, and the consent of the commons. The royal courts held their authority by delegation from the king; parliament, a body in which the king was physically present, or gave his specific assent to its decisions, would have the king’s presence to a greater extent than would his other courts. Theorists (including Fortescue) would equally recognise that parliament encompassed the consent of the ‘whole realm’, though this was perhaps not an essential part of its nature as a court.
Privilege and the corporate identity of the House of Commons
So the courts’ original respect for parliament was probably not because of their recognition of the different role of a political body, but because they regarded it as a senior emanation of royal authority; and their respect for parliamentary privilege was to do with their respect for and allegiance to that authority. Parliamentary privilege was, in effect, an instruction to the courts from the crown, rather than from parliament itself.
But it is curious, and still unclear, how both houses come to assert that privilege as a right inherent in themselves individually, and ultimately connected to their status either as peers or as representatives of the people, rather than as a concession from the crown to parliament in general stemming from the king’s wish to have counsellors and people who can speak for their communities’ assent to taxation. As argued in the previous blog, these represent two very different conceptions of privilege, already visible in the fourteenth century, but articulated in a series of rows from the mid-sixteenth century onwards. The classic exchanges come in the 1621 parliament, leading to the Protestation, famously ripped out of the Commons Journal by James I. In fact, in the absence of any clearer expression of a corporate identity for parliament or its two houses, parliamentary privilege comes to fill that role, to be the signifier of their independent existence, and their freedom from control by external authority. It is in that guise that it would come to be seen for later generations as something that the courts would avoid touching if at all possible.
This blog has strayed a long way from the Zircon affair. But Zircon is a useful example of how the difficulty in the relationship between the courts and parliament has often been gingerly negotiated. Not always – for there have been much less tactful interventions by the courts from time to time; and parliament has itself behaved badly enough. But those can be later blogs.