Privacy and Injunctions - Evidence - Parliament

Robert Rogers, Clerk of the House of Commons—Written evidence
of its privileges and that any attempt to institute a suit to call its privileges into question,
or any attempt by a court to decide on a matter of privilege in a way which was
inconsistent with the determination of either House was, in itself, a breach of privilege.
23. Stockdale brought another action against Hansard, which was tried solely on the
privilege issue, since the Attorney General directed Hansard not to enter an alternative
plea of justification. Notwithstanding the earlier Resolutions of the House, Stockdale
won the case; the court ruled that it, not the House of Commons, had jurisdiction
regarding Parliamentary privilege. Another select committee was appointed but the
House ultimately decided to pay the damages and costs. It was decided that any future
action should not be defended in court but that anyone breaching the earlier Resolutions
of the House would be pursued by the House itself for contempt. Stockdale sued
Hansard for a third time, in respect of another copy of the Report. Judgement was
entered in default and the Sheriffs of Middlesex seized Hansard’s presses to raise the
£600 damages. 59
24. The House committed Stockdale to Newgate for contempt, he having breached the
Resolution of May 1837. He was followed by the Sheriffs of Middlesex, who refused to
return the proceeds of the sale of the presses to Hansard. Stockdale began two more
actions against Hansard, for which his Attorney and two of his clerks were also locked up
by the House.
25. It was at this point that the Act was passed, in order to bring the Stockdale debacle to
an end and enact in law the House’s own interpretation of its privileges. A few points
about Stockdale v. Hansard are worth noting:
• the case was brought against the House’s publisher, not the author of the publication
in question;
• it was the first time an action had been brought in relation to a Parliamentary
publication which was on sale to the general public: there are no earlier or (given the
passage of the Act) later judgements which address the status of these documents;
• it was the clear view of the House and the Government at the time that the privilege
of free speech did extend to publications of this kind, 60 but the courts, largely in the
person of Lord Denman, took a different view; and
• the case involved an Act paper, produced by a body outside Parliament but published
by Order of the House—precisely the category of paper from which the Joint
Committee proposes privilege should be removed.
59 Erskine May describes the Commons’ predicament: ‘The position of the Commons was surrounded with difficulties.
Believing the judgment of the court to be erroneous, they might have sought its reversal by a writ of error. But such a
course was not compatible with their dignity. It was not the conduct of their officer that was impugned: but their own
authority, which they had solemnly asserted. In pursuing a writ of error, they might be obliged, in the last resort, to seek
justice from the House of Lords,—a tribunal of equal but not superior, authority in matters of privilege; and having already
pronounced their own judgment, such an appeal would be derogatory to their proper position in the state. They were
equally unwilling to precipitate a conflict with the courts. Their resolutions had been set at defiance; yet the damages and
costs were directed to be paid! Their forbearance was not without humiliation’. Sir Thomas Erskine May, The Constitutional
History of England Since the Accession of George the Third 1760–1860, Seventh Edition (London, 1882), Volume II, Chapter
VII.
60 The Attorney General argued in court that the Commons, in publishing the report, were exercising ‘a privilege which
they have enjoyed from ancient times—long before the Revolution—a privilege which is recognised by the Bill of Rights,
and which since the Revolution has never been questioned by anyone but Mr Stockdale’.
208