The House of Commons Committee of Privileges has its origins in 1995 when, in the light of scandals such as ‘cash for questions’, a Committee of Standards and Privileges was established to monitor and regulate the conduct of MPs. In 2012 it was divided into separate committees, one for Standards and the other for Privileges, and the latter has been in the news recently over its investigation into statements to Parliament about lockdown compliance in Downing Street. In the latest blog for the Georgian Lords, Dr Charles Littleton considers some of the earlier privileges committees of both Lords and Commons.
‘Privileges’ is an important term that appears throughout parliamentary history, though its meaning and scope change over time. At its creation in 1995 the remit of the Commons Committee of Standards and Privileges was widened to include investigation of potential ‘contempts’ of Parliament from its own members. Previous conceptions of parliamentary privilege have not always concerned what Members did, but rather what was done to them, and to the institution, by those outside Parliament.
While the full chamber of the Commons often considered perceived threats to the House’s privilege such as the reporting of its proceedings (until they effectively gave up the fight after 1771), from the early 17th century a separate Committee of Privileges and Elections was established at the beginning of each session to deal with individual complaints of breaches of privilege. As its name suggests, this Committee was concerned primarily with the numerous petitions regarding controverted elections that usually took up a significant amount of the House’s attention. The Committee also heard complaints of breaches of privilege when Members found themselves sued, or in some cases arrested, in civil legal suits. The original privilege of freedom from arrest during time of Parliament had by the late 18th century been expanded to include a right to evade all adversarial civil suits while sitting as an MP.
Each session in the House of Lords also began with the nomination of a Committee of Privileges, which generally included the entire membership of the House. Its scope was larger than that of the Commons, as it was to consider ‘the Privileges of Parliament, and of the Peers of Great Britain and Lords of Parliament’: that is, both privilege of Parliament and the separate privilege of the peerage. It was primarily concerned with commoners taking members of the Lords to law, which was seen as infringing both types of privilege. Members of the peerage also had the right to exempt their personal servants from legal proceedings through signed ‘protections’. The Committee occasionally reported abuses of this system, as valuable forged protections were sometimes traded like currency.
Under its assignment to deal with privilege of peerage, the Lords’ Committee also considered controverted title claims and, occasionally, cases of scandalum magnatum, libellous words derogatory to individual peers. The Lords guarded their privileges jealously, perhaps more so than the lower house did. When the Commons expelled John Wilkes in 1764, after resolving that the privilege of freedom from arrest did not extend to charges of seditious libel [How to expel an MP from Parliament: The ejection of John Wilkes in 1764], members of the House of Lords objected to this extenuation of their vaunted privilege. Seventeen peers submitted a strongly worded protest against the Commons’ resolution, which portrayed this diminution of parliamentary privilege as heralding the eventual destruction of Parliament:
We cannot hear, without the utmost Concern and Astonishment, a Doctrine advanced now for the First Time in this House, which we apprehend to be new, dangerous, and unwarrantable… [and] by which, all the Records of Parliament, all History, all the Authorities of the gravest and soberest Judges, are entirely rescinded; and the fundamental Principles of the Constitution, with regard to the Independence of Parliament, torn up, and buried under the Ruins of our most established RightsLords Journal, 29 November 1763
Worse was to come, for in 1770 an Act was pushed through Parliament which put an end to the privilege of immunity from civil suits during time of Parliament, for both commoners and lords… and their servants.
The Committee of Privileges in the 18th century was primarily concerned with protecting Parliament and its members from external opposition. Both Houses, however, could establish a ‘Committee of Secrecy’, whose proceedings remained closed, to investigate allegations of malfeasance and ‘contempts’ by its own members. In 1715 the Commons established such a body to investigate the previous Tory administration of 1710-14 and the Commons subsequently impeached some of the principal former ministers. The principal target, Robert Harley, earl of Oxford, languished in the Tower for two years until he was ultimately acquitted in 1717. [Acquitted with three huzzas: the impeachment of Robert Harley, earl of Oxford.]
It is ironic that Sir Robert Walpole, the driving force of the 1715 Committee, was himself the subject of a later secret investigation. In February 1742 Walpole resigned from the premiership after narrowly losing a vote of confidence involving the contested election for Chippenham. Within days he was conveyed to the safety of the Lords through creation as earl of Orford. His many enemies in the Commons were nevertheless determined to expose his alleged crimes of corruption and misuse of patronage, and extract punishment. A Committee of Secrecy was established to investigate his activities, but its remit was limited to the last ten years of his premiership. Furthermore, the House of Lords rejected a bill to indemnify witnesses who could provide evidence of Orford’s malfeasance in office. Without this protection important witnesses such as Nicholas Paxton, solicitor of the Treasury, were unwilling to testify.
When the Committee submitted its reports, the Commons, engaged in a war with Spain and one with France looming, were not inclined to embark on a time-consuming vindictive impeachment. Orford remained unscathed and was able to live his remaining few years in the Lords under privilege of peerage, untroubled by the Committee of Secrecy’s censures.
Erskine May, Treatise on the Law, Privileges, Proceedings and Usage of Parliament (25th ed., 2019), Part 2, ‘Powers and Privileges of Parliament’
J. H. Plumb, Sir Robert Walpole: The King’s Minister (1960)
Paul Seaward, ‘Parliamentary Privilege and Libel, Part II: from Wilkes to 1835‘
A.S. Turberville, ‘The Protection of Servants of Members of Parliament’, English Historical Review, 42 (1927), 590-600