I was surprised to see a comment on another blog which appeared to suggest that peers enjoy immunity from prosecution. Some members of other legislatures do enjoy significant legal immunity, but parliamentarians in the UK do not. Parliamentary privilege exists to protect parliamentarians in the fulfilment of their parliamentary duties. Speeches made in the course of proceedings in Parliament are privileged. Beyond that, parliamentarians enjoy few legal privileges. MPs and peers can be subject to criminal proceedings the same as anyone else. On occasion, some MPs and peers have been imprisoned.
There has existed what is known as the privilege of peerage, which is distinct from parliamentary privilege. However, as The Companion to the Standing Orders observes, ‘the occasions for its exercise have now diminished into obscurity’. Three of its features did survive into the last century: the right to be tried by one’s peers, the right of access to the sovereign, and freedom from arrest in civil matters. The right to trial by one’s peers was abolished by statute in 1948.
The last peer to be tried by his peers was Lord de Clifford in 1935. He was involved in a car accident in which a man died. He was charged with manslaughter. The trial was held in the Royal Gallery, with 86 peers taking part. Four High Court judges were called on to advise the House, even though the peers taking part included leading judges, including the Lord Chief Justice. Indeed, it must have been one of the most legally-qualified juries to sit! The judges appointed to advise the House concluded that there was no case to answer and the peers accepted this.
The number of peers sitting on that case was somewhat smaller than the number who decided to sit in 1901 when Lord Russell was tried for bigamy. On that occasion, 500 took part.
As far as imprisonment is concerned, peers do seemingly enjoy one privilege. For anyone else, going to prison probably means losing your job, and being removed from any other positions of responsibility. Yet there are at least two current members of the House of Lords who were imprisoned for serious offences in high-profile cases, yet can vote and speak in the house as if nothing had happened. (One of them does, not sure about the other.)
Incidentally, I presume the other two privileges you mention no longer exist, or at least are never exercised?
Jonathan: You are correct that peers who are imprisoned do not lose their membership of the House. When their period of imprisonment is completed, they are entitled to resume attending the House. This distinguishes us from the Commons, where Members who are convicted of serious criminal offences are expelled from membership. There have been attempts to bring us into line with the position in the Commons. The House of Lords Bill introduced by Lord Steel of Aikwood in the present session includes a section to bring us into line. I was responsible for the drafting. There will not be time for the Bill to complete committee stage this session, so the section will never be reached for debate. I think the principle is probably generally accepted; there is some disagreement, though, as to whether, if enacted, the provision should be retrospective.
On the other two privileges, I think it fair to say one has largely fallen into disuse (access to the sovereign) and the other apparently only arose in two cases post-1945.
Doesn’t making it apply retrospectively breach Article 7 of the European Convention on Human Rights. As much as I might like to see the peers in question expelled, if this is the sticking point, surely it’s better to leave them be and get a law passed ready for any future cases?
Jonathan: Not necessarily; my understanding is that it would be difficult to argue in support of retaining your peerage that at the time you accepted it you were not subject to expulsion if you committed a serious criminal offence and that, had you known you would be, you would be less likely to commit the criminal offence! I think I have rendered correctly the legal view offered me by a former law officer. However, I rather share your view and am not pressing for it to be retrospective.
Wonderful manna for political anoraks! I’m fascinated by the ‘right of access to the sovereign’ and ‘freedom from arrest in civil matters’. What did they entail and did they survive where trial by peers did not?
Freedom from arrest is an ancient right asserted by each House and variously enshrined in statute. However, it does not cover criminal or quasi-criminal proceedings. Its significance has decreased over time and the Commons’ Committee on Privileges (1967-68) and the Joint Committee on Parliamentary Privilege (1998-99) recommended that it be abolished.
Privilege of peerage is distinct from parliamentary privilege in that it is continuous and independent of the sitting of Parliament. In a case in 1963 (Stourton v. Stourton), a peer was able to rely on the privilege in a case brought by his wife. However, the most recent court case in which it was considered was in 1989 when a peer in a civil case was subject to a court order for contempt for failing to attend court for examination as to his means. The court decided that the order had the nature of a disciplinary punitive power and therefore was more a criminal than a civil matter. The judge later said “I ruled that privilege did not apply – indeed… it is unthinkable in modern times that in circumstances such as they are in this case, it should.”
The privilege is considered in a useful article by Patricia Leopold, ‘The freedom of peers from arrest’, in ‘Public Law’, Autumn 1989, pp. 398-406.
On the right of access to the sovereign, that appears to remain in name only. I recall that some peers did seek to exercise the power in respect of, I think, the proposed draft Treaty estabishing a constitution for the EU, but they appear not to have got anywhere with it.
The right to trial by one’s peers is a proof positive of a nuanced and relatively careful view of of the nature of a national and societal constituency. It relates to due process and substantial justice which recognizes property in title and status while holding persons bound to the law and the sovreign. It’s disappearance indicates the growing unimportance of the individual and the person in European and British thought.
The parliamentary privilege is simply a matter of the separation of powers and the preservation of government. As a non subject who merely admires much of British government I would say that to me and others like me Britain never carried these principles any further than many other systems. I would also argue that having come form a long history with roots in ancient Greece these principles have been more theoretically fleshed out in the United States than they ever were in the United Kingdom. Perhaps I would argue that this field of distinction is also growing muddier. For example, a few centuries ago every Lord would have understood what was meant by a non-royal monarch and also by royalism that was non-monarchical. While my exposure to Lords is very slight I have not found this to be the case today.
I think that for the larger world today the UK’s parliament is a sign of hope in many ways yet also shows how much of the human patrimony which built Western Civilization is precariously near becoming unintelligible to everyone. Once resources of this kind are fully lost the occasion for needing them may arise. Thus have many great societies stumbled or even fallen. Change is not bad in itself but there is always some global effect by the actions of the UK’s parliament even today. SOme other countries lack your influence and visibility while others lack your coherent deposit of both records and tradtions.
I have the group of medals to Lord de Clifford – yes the one tried in 1935 – the research is immense 25 folders full!