Privileged persons
J. Enoch Powell
'Privilege,' in many of its usages, is an extremely misleading word. It is nowhere more so than in the expression 'parliamentary privilege.'
We are accustomed to 'privilege' meaning advantages, often selfish advantages, which a person or class enjoy at the expense of Others. Parliamentary privilege is the opposite. It denotes advantages—or better, special status—which Parliament as a whole and Members of Parliament individually Possess for the benefit of everybody else. The assertion of parliamentary privilege, and the concomitant prevention and punishment of contempt of Parliament, are for the essential protection of every person in this Country. It is in the common interest that they be maintained.
The ability of Parliament and its members to represent and to defend those who elect them is obviously dependent on freedom of Speech. Their only masters ought to be their electors; and the only punishment to which they ought to be liable, even at their electors' hands, for anything they do or say in Parliament is the penalty of not being elected again if they present themselves once more after the parliament is dissolved. If Members were liable to threats or bribes, physical or pecuniary, designed to stop their mouths or pervert their actions, there would be an end to their usefulness. If Members were not able to name and denounce, as they thought fit, the most influential and wealthy persons Or corporations in the land without fear of Civil action or prosecution, the citizen would have lost a safeguard and a champion which nothing else could replace. If Parliament as a Whole could be traduced or denigrated it Could no more protect and represent the People than a court of law could dispense Justice if it could not protect itself against Contempt. From all this follows the great central principle of parliamentary privilege, that 'nothing done or said in Parliament can be called in question elsewhere.' Once Parliament or its members had to resort to some other place for protection, their liberty of speech and action would be gone, since it would depend upon the discretion of that other place. Once Members of Parliament could be put in jeopardy out of doors for any words or acts of theirs in the Chamber, however outrageous those words or acts might appear, Parliament's freedom of speech, on which the humblest and obscurest citizen is entitled to rely, would have become subject to the findings of judges and juries. Parliament is either supreme over all other courts and outside their jurisdiction, or it is nothing. Thus, in his capacity as a citizen, the Member of Parliament is tried and punished like anybody else, for exceeding a speed limit or for committing murder, and his fellow citizens can sue him for damages or wrongs that he may do to them. In what he does, including what he says, in his capacity as Member of Parliament, he enjoys, because he must, complete immunity. As so often happens, many people who are ready to accept a principle, such as that which I have stated, and to perceive its advantages for themselves, are offended by its working out in practice or unable or unwilling to admit the necessary consequences. Hence the recent ignorant demand, in which some who are themselves foremost in exercising parliamentary free speech were heard to join, that allegations of misconduct in connection with the Poulson scandal by Members in the course of their parliamentary duties should be subject to court proceedings or outside inquiry. Yet this was a demand, which, if complied with, would amount to abrogation of the essence of parliamentary privilege itself. Hence, too, the ridicule, in which again even some Members of Parliament joined, cast upon the rule that Hansard cannot be called in evidence in a court of law without the express permission and waiver of privilege by the House itself. Yet it is manifestly impossible that Parliament, without destroying its own freedom, could allow others at their discretion to bring its proceedings into the course of litigation.
The two consequences of Parliament's privilege which many seem to find most difficult to understand or accept are in reality the plainest and most essential. One is that each House has complete power of discipline over its own members. The other is that each House is the sole judge of its own privileges. Both these flow directly from the principle that `no proceeding in Parliament can be called in question outside.'
This principle would be infringed if the members of either House could seek redress against it elsewhere, since it would then be subordinate to some other authority. I can give an example of this in my own case. I am myself in direct and repeated—though, I trust, nor merely courteous but even deferential—disobedience of an order of the House of Commons. My disobedience arises from my conviction that the order is unconstitutional, being such as constitutionally ought, if made at all, to be made by statute. Yet I would not dream of denying that the House has the power to make that order and to inflict for disobedience of it such punishment, not excluding expulsion, as it thinks fit. The paradox is Sophocleana conflict between two sorts of law and two sorts of duty—but it illustrates neatly the nature of privilege.
More often complained of is the other proposition, that each House is sole arbiter of its own privileges—prosecutor, judge and jury in its own cause. Yet clearly this must be so; for if any other body were to define or adjudicate upon Parliament's privilege, that privilege itself would be lost by becoming dependent on the decisions of another body—and that, incidentally, a body, like the American Supreme Court, of persons appointed, not elected. It follows that the only safeguards and limitations upon Parliament's assertion and vindication of its privileges are internal to itself—its own sense of proportion and of what is just and reasonable, and its own judgment of what is necessary for it in order to do its work in freedom.
In this too lie the seeds of Sophoclean conflict. But so they do in all the institutions of mankind. A printing error in last week's interview with Conor Cruise O'Brien unfortunately confused the sense. A sentence—here italicised—was omitted. Dr O'Brien said: 'Some people have argued that treating [Provisional Sinn Fein] as if they were a legitimate political party will turn them into one. I don't believe it.'
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