An interesting question has arisen as to whether the privileges of Parliament are infringed where a court exercising criminal jurisdiction issues a warrant for the arrest of a Member of Parliament who, being enlarged on bail, fails to appear before that court on a day on which Parliament is sitting.

In my opinion they are not. The privilege of freedom from arrest conferred by the Parliament (Powers and Privileges) Act is confined to civil process. It has never extended to, and has never been permitted to interfere with the administration of criminal justice.

Attendance in Parliament confers no immunity from criminal process. At its highest it is a circumstance which may be urged upon the court as a reasonable excuse for non-appearance, and it must be urged in advance and accepted in the exercise of the court’s discretion.

Section 5 of the Parliament (Powers and Privileges) Act is confined to civil process. Section 4 of the Act is confined to proceedings in Parliament. By section 7 of the Act, Parliament and its Members hold, enjoy and exercise, in addition to the privileges conferred by the Act, such and the like immunities as are for the time being held, enjoyed and exercised by the Commons House of the Parliament of the United Kingdom. The importation is of the Commons position as it presently stands, together with its limits.

That position is stated in Erskine May, Parliamentary Practice (25th edition). At paragraph 14.1 it is said that the principle upon which the privilege of freedom from arrest rests, is the absolute priority of attendance at the House by its Members, but that the privilege is now confined to civil arrest and is of extremely limited application.

Its abolition was recommended by the Joint Committees on Parliamentary Privilege of 1999 and of 2013, the latter observing that the likelihood of the privilege arising at all was extremely remote. At paragraph 14.2 it is stated in terms that the privilege of freedom from arrest has never been allowed to interfere with the administration of criminal justice.

Section 63(1) of the Code of Criminal Procedure Act, No. 15 of 1979 empowers a court, in any case in which it may issue a summons for the appearance of a person other than a juror, to issue, after recording its reasons in writing, a warrant for his arrest:

(a) where, before the issue of summons or thereafter but before the time fixed for appearance, the court sees reason to believe that he has absconded or will not obey the summons.

(b) where at such time he fails to appear, the summons is proved to have been duly served in time to admit of his appearing in accordance therewith, and no reasonable excuse is offered for such failure.

Where the accused has been enlarged on bail, section 64(2) is ordinarily the operative provision. It empowers the court, where a person bound by a bond taken under the Code to appear before it does not so appear, to issue a warrant directing that he be arrested and produced. The sureties are separately liable to notice and to proceedings upon their bonds.

The jurisdiction to issue the warrant is conferred by statute and is exercised as part of the judicial power of the People under Article 4(c). It is not an executive act, and it is not an interference by any outside agency with the service of Parliament. Most importantly, the statutory formula is that a warrant may issue where “no reasonable excuse is offered”.

Attendance in Parliament is not recognised in the Code, in the Act, or in the Standing Orders as an automatic excuse. It is a matter which may be offered to the court and which the court may accept in the exercise of its discretion.

The excuse must, however, be offered, and offered before the time fixed for appearance, ordinarily by an application made through counsel and supported by material establishing the clash. Where no such application is made, and where neither the accused nor his surety appears, the court is entitled to proceed under sections 63 and 64 of the Code of Criminal Procedure Act.

However, the only head of privilege under which such a complaint could conceivably be framed is paragraph 1 of Part A of the Schedule to the Act, which declares to be a breach of privilege the assaulting, insulting or willfully obstructing of any Member coming to or going from Parliament, or on account of his conduct in Parliament or any committee. That head is not made out, for three reasons:

First, “willfully obstructing” connotes a deliberate act directed at preventing or impeding the Member’s attendance. The issue of process in the exercise of a statutory judicial discretion, consequent upon the Member’s own default in appearing, is not such an act.

Secondly, the Member is proceeded against as an accused person answering a charge, and not “on account of his conduct in Parliament”.

Thirdly, and decisively, to construe it as reaching the judicial act of a Magistrate would convert a provision protecting Members from private interference into a personal immunity from the criminal law, an immunity which section 5 conspicuously withholds and which Article 4(c) does not provide for.

It is also to be borne in mind that offences under Part A of the Schedule are punishable only by the Supreme Court, and only upon an application made by the Attorney-General under section 23. Such an application may be made in a matter committed in respect of or in relation to Parliament only where the Attorney-General has furnished a report to the Speaker under section 26 that there is sufficient evidence to warrant further steps, and Parliament has thereafter by resolution required him to make the application (section 25).

Parliament itself has no jurisdiction to punish a Part A offence (cf. sections 22(2) and (3), 27(1) and 32). In practice, a complaint of this character would first be examined by the Committee on Ethics and Privileges under Standing Order 118, and then only where the Speaker is satisfied that a breach of privilege is prima facie disclosed.

Moreover, it is emphasised that what may be said in the House about the proceedings is constrained. Standing Order 91(f) precludes reference in any motion or debate to a matter under adjudication by a court of law, subject to the Speaker’s discretion where there is no real and substantial danger of prejudice.

Standing Order 83(1) precludes any reference to the personal conduct of Judges or other persons engaged in the administration of justice except upon a substantive motion. A Member aggrieved by an order of court must seek his remedy in the courts and not upon the floor of the House.

Thus, it can be concluded that attendance in Parliament is not an automatic reasonable excuse for non-appearance. It must be raised with the court in advance, and its acceptance rests in the discretion of the court.

Privilege operates upon the execution of process within the precincts of Parliament on a sitting day, which requires the leave of the Speaker, and, as a matter of comity, upon notification to the Speaker of the arrest or detention of a Member. It does not operate upon the issue of the warrant itself.