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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> 1998/88 - Syvret v Bailhache and Hamon [1998] UR 88 (28 April 1998)
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Cite as: [1998] UR 88

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ROYAL COURT

(Samedi Division)

Judgment Reserved: 17 February 1998.

Reserved Judgment delivered: 28 April 1998

Before: The Hon MJ Beloff, QC, Commissioner

BetweenStuart SyvretPlaintiff

AndPhilip Martin BailhacheFirst Defendant

AndFrancis Charles HamonSecond Defendant

 

Application by the Defendants for an Order that:

 

Advocate PC Sinel for the Plaintiff

Her Majesty’s Attorney General for the Defendants

JUDGMENT

THE COMMISSIONER:

INTRODUCTION

The Plaintiff is a Senator in the States of Jersey ("the States"). The First and Second Defendants are the Bailiff and Deputy Bailiff of the Bailiwick of Jersey. In these roles they act, inter alia, as President and Deputy President respectively of the States.

By the present summons, dated 3 November 1997, the First and Second Defendants ("the Defendants") seek to strike out the Plaintiffs Order of Justice dated 17 July 1997 ("the Order of Justice") pursuant to Rule 6/13 of the Royal Court Rules and/or the inherent jurisdiction of the Court on the ground that it discloses no reasonable cause of action and/or is frivolous or vexatious, and/or an abuse of the process of the Court (see also Answer dated 12 November 1997).

All the matters complained of in the Order of Justice arise out or are connected with proposed or actual disciplinary action taken against the Plaintiff in his capacity as a Senator of the States as a result of comments made by him in the States on 23 July 1996 ("the critical comments"). The questions raised, accordingly, are of considerable constitutional significance for the Bailiwick of Jersey.

LEGAL FRAMEWORK

The constitution, procedure and Committees of the States of Jersey are set out in the States of Jersey Law 1966 ("the 1966 Law") whose long title is as follows:

"A LAW to codify, with sundry amendments, the Law regarding the constitutions, procedure and Committees of the States of Jersey, to declare and define the powers, privileges and immunities of the States, and to make provision in relation to certain ancillary matters ...".

Article 1 of the 1966 Law provides, so far as material, as follows:

"(1) The states of Jersey are constituted as follows -

the Bailiff, who is the President;

Article 3 of the 1966 Law provides, so far as material, as follows:

"ARTICLE 3

Presidency in absence of Bailiff and Deputy Bailiff

If both the Bailiff and Deputy Bailiff are unable to preside at a meeting of the States, such elected member or officer of the States as the Bailiff shall choose, shall preside at the meeting, and, subject to any standing orders, anything authorised or required to be done by the Bailiff while presiding at a meeting of the States may or shall be done by the person so chosen while presiding at the meeting in question."

Article 27 of the 1966 Law provides, so far as material, as follows:

"(1) Subject to the provisions of this Law, the States may make standing orders for any purpose for which standing orders may be made under this Law and shall make standing orders for the regulation of their proceedings and business."

Part IV of the 1966 Law is entitled "POWERS, PRIVILEGES, IMMUNITIES AND OFFENCES" and provides, so far as material, as follows:

"ARTICLE 37

Immunity from legal proceedings

No civil or criminal proceedings may be instituted against any member of the States for words spoken before, or written in a report to, the States or a Committee, or by reason of any matter or thing brought by him therein by petition, bill, proposition or otherwise."

Part IV of the 1966 Law provides, so far as material, as follows:

"ARTICLE 55

Exercise of jurisdiction by courts

No person shall be subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in him by or under this Part of this Law."

Part V of the Law is entitled "GENERAL" and provides, so far as material as follows:

"ARTICLE 59

Saving of powers

Save as otherwise provided by this Law, nothing in this Law shall prejudice or affect the prerogatives, rights and privileges attaching to the office of ... Bailiff, Deputy Bailiff ...".

Relevant Standing Orders made pursuant to the power and duty of Article 27 of the 1966 Law provide so far as material, as follows:

"1. Presiding in the States

(1) The Bailiff, or in his absence the Deputy Bailiff, or in the unavoidable absence of both of them such elected member or officer of the States as the Bailiff shall choose, shall preside at the meetings of the States.

The Deputy Bailiff ... shall have all the authority and power of the Bailiff when presiding.

13. Contents of Questions

The right to ask a question shall be subject to the following general rules, in the interpretation of which the Bailiff shall be the sole judge -

...

(b) a question shall not contain a statement which the member who asks it is not prepared to substantiate;

Part III

PROPOSITION AND AMENDMENTS

18. Notice of propositions and amendments

...

(3) Notice of a proposition or an amendment shall be given by the delivering of a copy of it in writing either -

...

shall be signed by the member giving notice or another member authorised by him;

and, in the case of a proposition, shall state the day for which the member wishes to have the proposition entered in the Order book.

(4) A notice of a proposition or an amendment shall be submitted by the Greffier to the Bailiff, who shall direct -

...

(c) that it be returned to the member who handed it in, or authorised it to be handed in, as being in his opinion out of order.

24. Contents of Speeches

...

(6) No member shall impute improper motives to any other member.

30. Order in the States

(1) The Bailiff shall be responsible for the observance of the rules of order in the States and his decision on any point of order shall not be open to appeal and shall not be reviewed by the States save upon a substantive proposition.

...

(3) The Bailiff shall order a member whose conduct is grossly disorderly to withdraw from the precincts of the States for the remainder of that meeting, and the Viscount shall act upon such orders as he shall receive from the Bailiff to ensure compliance with this Standing Order.

(4) If on any occasion the Bailiff considers that his powers under the previous paragraph of this Standing Order are inadequate having regard to the nature of the offence, he may forthwith put the question in relation to the offending member "That Mr (naming him) be suspended from the service of the States", no debate or amendment being allowed. A member suspended under this paragraph shall be forthwith directed by the Bailiff to withdraw from the precincts of the States, and his suspension shall last for one meeting day (excluding that on which the offence is committed) on the first occasion and for two such meeting days on any subsequent occasion during the same session.

(6) A member who is suspended under paragraph (4) of this Standing Order shall not be permitted to attend a meeting of any Committee of the States during the whole period of his suspension.

43. Employment of members in professional capacity

No member shall appear before any Committee of the States in any professional capacity for or on behalf of a party from whom he is to receive or has received a fee or reward.

44. Declaration of financial interest

(1) Where any member of the States has a direct pecuniary interest, being an interest which is immediate and personal and not merely of a general or remote character, in the subject matter of any proposition submitted to the Assembly, he shall, as soon as practicable, declare his interest and withdraw from the Chamber during the consideration of and voting on the question.

49. Decision on matters not provided for in Standing Orders

(1) Any question of order or procedure not provided for in these Standing Orders shall be decided by the Bailiff, whose decision in the matter, or on any disputed point of interpretation of any of these Standing Orders, shall be final.

(2) Every decision made under paragraph (1) of this Standing Order shall be recorded by the Greffier, who shall from time to time publish selections from such decisions as an appendix to the volume of the Standing Orders.

...".

FACTUAL BACKGROUND

In support of their application, the Defendants sought to include an Affidavit of Paul Matthews, Crown Advocate, dated 19 January 1998. It is well established in English law that where the only ground on which an application is made under the rule is that the pleading discloses no reasonable cause of action, no evidence is admitted RRC: 6/13 (para.24 below] RSC 18/19/10 Supreme Court Practice 1997 ("SCP") Vol.1, p325 but (curiously) where an application is made to the inherent jurisdiction of the Court on whatever ground, all the facts can be gone into and affidavits are admissible (SCP 1997: Vol.1, 18/19/6 p329, 18/19/19, p334). The same rules apply in Jersey (see further para.29 below). However, as a result of objections taken to that affidavit on behalf of the Plaintiff, it was agreed that I should consider only those exhibits to that affidavit which evidenced uncontroversial matters: these were indeed themselves expressly or impliedly referred to in the Order of Justice. I have adhered to that agreement.

13.Defendants assert that they acted on the basis that, by the critical comments, the Plaintiff imputed improper motives to Senator Jeune in alleging that he had, in his capacity as President of the Policy and Resources Committee, used his influence to speed up the law drafting process of the Limited Liability Partnerships (Jersey) Law ("the LLP Law") into the published drafting programme for 1996 and that he had spoken in support of the LLP Law notwithstanding the fact that he had a financial interest in the LLP Law.

14.The Plaintiff asserts that by the critical comments he alleged only that Senator Jeune had breached Standing Orders 43 and 44 of the States of Jersey: (See Order of Justice para.19].

15.On 25 July 1996, the First Defendant wrote to the Plaintiff:

"These remarks (see above] constitute serious imputations upon the character of a member of the States. Allegations of this kind under the cloak of parliamentary privilege should not be made unless the member concerned is able to substantiate them."

The Plaintiff was given until Friday 26 July to provide such evidence.

16.At a meeting on 26 July 1996, in response, the Plaintiff produced to the First Defendant a copy of a letter dated 19 October 1995 written by Mr Ian James of MDF by way of a proposal for the introduction of the LLP Law addressed to Senator Horsfall, President of the Finance and Economics Committee ("the MDF letter"). The First Defendant informed the Plaintiff that the MDF letter did not substantiate the allegations he had made and warned the Plaintiff that he would be called upon to withdraw them when the States next sat.

17.On 30 July 1996, Senator Jeune made a personal statement in the States explaining his position, and denying the Plaintiffs allegation. It is not part of my function to evaluate (certainly not to reject) the denial; but it is appropriate in fairness that I draw attention to it. Following this speech, the Second Defendant summarised the history of the matter to the States and indicated that the Plaintiff had produced the MDF letter. The Second Defendant then declared that the allegations were unsubstantiated and therefore in breach of Standing Order 24(6). The Second Defendant thereafter directed the Plaintiff to withdraw the comments. The Plaintiff refused. The Second Defendant therefore held him guilty of gross disorderly conduct within Standing Order 30(3) and directed him to withdraw for the remainder of the session ("the first suspension").

18.On 30 August 1996, the First Defendant wrote again to the Plaintiff stating that he would be asked again to withdraw the statement, but that if he refused, the First Defendant would invite the House to resolve:

"that Mr Syvret be suspended from the service of the States until he has withdrawn, by notice in writing to the Greffier, his imputations of improper motives against Senator Jeune."

("the question").

19.On the morning of 3 September 1996, the Plaintiff handed the First Defendant a long letter enclosing a personal statement. At the meeting of the States the First Defendant read out his own letter to the Plaintiff of 30 August 1996 and then stated:

"Senator Syvret did not respond to the invitation in the last paragraph of my letter but he delivered to me a few moments ago a long letter together with the draft of a personal statement. A personal statement or explanation may only be given with the leave of the Bailiff. I am not prepared to give that leave because his statement does not contain any withdrawal of the allegations against Senator Jeune. Indeed it repeats them and seeks to justify them."

20.The First Defendant then put the question to the States. The First Defendant refused any amendment or debate of the question and explained that he was relying on his prerogative powers at common law to formulate the same because he regarded the powers available to him under the Standing Orders of the States as inadequate to deal with the Plaintiff's continuing breach of parliamentary privilege.

21.The question was carried by 36 votes in favour 3 against, and the Plaintiff was directed to withdraw ("the second suspension").

22.On 10 February 1997, Deputy Crowcroft proposed the unconditional readmittance of the Plaintiff to the States. The First Defendant declined to allow him to put the proposition to the States as being out of order within the meaning of Standing Order 18(4)(c).

23.On 18 February 1997 Senator Walker presented a report to the States raising the issue of the Plaintiffs suspension and proposing that the suspension be lifted for the purpose of allowing him to address the States. This course was duly adopted.

24.On 4 March 1997, the Plaintiff addressed the States. The Plaintiff again claimed not to be alleging improper motives against Senator Jeune, but continued to refuse to withdraw the critical comments. The Plaintiff then withdrew from the States meeting. The States then resolved to censure him ("the censure") but to lift his suspension.

25.There are very few issues of primary fact which divide the parties. There is a dispute as to (i) what the critical comments meant (ii) what the Plaintiff intended by them (iii) the true nature of the interpretation placed on them by the Defendants (iv) the Defendants motivation, in doing what they did, and, linked to that, a question as to the capacity in which they were doing it (v) precisely what transpired at the meeting of 26 September 1996.

26.I cannot resolve these disputes, but, as will appear, I do not need to do so. I can and do assume, in accordance with the usual practice, that the Plaintiff can make good all disputed facts: (X v Bedfordshire CC (1995) 2 AC 633 at p741G-L] For this reason I considered it unnecessary for the Jurats to participate in any way in this judgment, although they courteously held themselves in reserve for that purpose throughout the hearing, which they attended: they are masters of fact, but I of law. (Article 13(1)(2) Royal Court (Jersey) Law 1948.)

THE APPLICATION FOR DISMISSAL

27.Rule 6/13 of the Royal Court Rules provides, so far as material:

"(1) The Court may at any stage of the proceedings order to be struck out or amended any claim or pleading, or anything in any claim or pleading, on the ground that:

(a)it discloses no reasonable cause of action ...

(b)it is scandalous, frivolous or vexatious; or

(d)it is otherwise an abuse of the process of the Court;

and may make such consequential order as the justice of the case may require.

(2) No evidence shall be admissible on an application under paragraph (1)(a) of this Rule."

28.Notwithstanding Rule 6/13, the Court also has an inherent jurisdiction to strike out or stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process. This inherent jurisdiction is in no way affected or diminished by Rule 6/13. See Finance and Economics Committee v. Bastion Offshore Trust Company Limited (9 October 1991) Jersey Unreported, CofA at p14 (last paragraph) to p17 (first paragraph) (unreported) and Mauger v Batty (9 October 1995) Jersey Unreported at p4.

29.It has been held that the principles to be applied in Jersey, on an application to strike out, are identical to those in England both in relation to the statutory and inherent jurisdiction. Cooper v Resch (1987-88) JLR 428 at p432-433; Stephens v Stephens (1989) JLR 284 at p.289-290, 294. There is a useful summary of those well-known principles in SCP Vol.I, paras.18/19/11 to 18/19/21.

30.I accept, in particular, that the draconian order of striking out should only be made in a "plain and obvious" case: Hubbard & Sons v Wilkinson (1899) QB 86 per Lindley MR at 91; Attorney General of the Duchy of Lancaster v LNWR Co. (1892) Ch.D. 274 at pp276-278. The apparent weakness of the claim is insufficient to justify such order (Mauger-v-Batty (9 October 1995) Jersey Unreported pp6-7.]

31.The absence of an exact precedent governing the circumstances of this case, a matter on which the Plaintiffs placed considerable emphasis, is, however, in no sense dispositive of the application. Established principle, manifestly adaptable to new circumstances, may dictate the outcome of a strike out application. The novelty of a submission is no guarantee of its arguability. Litigation teaches that the fact that an argument is made for the first time can result from its inherent instability rather than from its inherent merit. I bear in mind the observations of Lord Templeman in Williams and Humbert [1986] AC 368 at pp435-437 that even an apparently complex case may, on analysis, deserve to be struck out, not least in the interests of economy of court time, and that cases where bad faith is alleged are not excluded.

32.The main grounds relied on by the Defendants for the application for dismissal pursuant to Rule 6/13(a), (b) and (d) and/or pursuant to the Court's inherent jurisdiction are in essence as follows:

All the matters complained of in the Plaintiffs Order of Justice relate to the regulation of the internal proceedings of the States of Jersey. Such matters are outside the jurisdiction of, and are not justiciable in, any court of law. See Answer para.1.

("regulation of internal proceedings").

At all material times, the Defendants acted as members of the States of Jersey in accordance with the provisions of the 1966 Law and/or the Standing Orders made thereunder and/or pursuant to prerogative powers preserved to the Defendants by Article 59 of the 1966 Law and therefore the Defendants are immune from the proceedings purportedly commenced by the Order of Justice by reason of Articles 37 and 55 of the 1966 Law and, or alternatively, the matters complained of are therefore outside the jurisdiction of any court of law, see Answer para2.

("immunity").

The European Convention on Human Rights ("the Convention") is not part of Jersey law and therefore those complaints made in the Order of Justice under the Convention are outside the jurisdiction of the Royal Court of the Island of Jersey, see Answer para.3.

("Convention").

4.The Defendants are not legally responsible for, or otherwise accountable, for the actions of the States. The second suspension and the censure motion were acts of the States and not acts of the Defendants, see Answer para.4.

("Acts of the States").

33.I note at once that for convenience as to (iv) the case has been argued as if the Defendants included the States. Striking out is not encouraged where a Plaintiff can effect a saving amendment (SCP Vol.1, p330, 18/19/11(4).)

GROUND (1): REGULATION OF INTERNAL PROCEEDINGS

34.In essence the facts disclose:

A ruling by the speaker of a legislative assembly that a member has breached the Standing Orders of the assembly by what the member has said.

A refusal by the member to accept the ruling and comply with the direction by the speaker that the member should withdraw the offending remark.

Measures taken to enforce the speaker's ruling by:

a one day suspension by the speaker ("the first suspension");

a suspension by the legislative assembly as a whole until the member complies with the ruling of the speaker ("the second suspension").

A decision of the speaker not to allow a particular proposition to be put;

A decision of the legislative assembly as a whole to censure the member for his continued non-compliance with the ruling ("the censure"); (coupled with a decision to end the suspension].

35.The Defendants consequently assert, in broad terms, that the Plaintiff is seeking to challenge the validity of sanctions imposed upon him (or steps taken vis à vis him) qua member of a legislative assembly by a Speaker, and subsequently the legislative assembly as a whole, where he has been held to be in breach of Standing Orders and has thereafter failed to comply with the ruling and direction of a Speaker.

36.Each Defendant further asserts insofar as the disciplinary acts complained of were his act he was acting in his official capacity presiding over the States. This function is expressly provided for in Articles 1 and 3 of the 1966 Law as well as in Standing Order 1 made under the 1966 Law.

37.The Defendants submit that the enabling powers for any disciplinary action taken in the present case derive from three sources:

(i)Express powers granted to them under the 1966 Law and the Standing Orders made thereunder.

(ii)Historic prerogative powers of the Bailiff, Deputy Bailiff and the States of Jersey.

(iii)An inherent power of all legislative assemblies which is necessary to enable them to exist and exercise their functions.

Jurisdiction of the Court

38.I must at the outset determine the limits of the Courts powers in this peculiar context.

39.In my judgment, if I am satisfied that the matters complained of do relate to the regulation of the internal proceedings of the States, I cannot interfere with any of them and must decline jurisdiction. Existence of a privilege (the nature of which may vary between legislative assemblies), may be for the Courts. Exercise of an acknowledged privilege manifestly is not. I remind myself that "it behoves the court to be ever sensitive to the paramount need to refrain from trespassing on the province of Parliament" (R v HM Treasury ex p Smedley (1983) QB 657 per Sir John Donaldson MR at p666).

40.In Burdett v Abbott (1811) 14 East, Lord Ellenborough said at p150:

"... if a commitment ... for a contempt of the House of Commons generally, I would neither in the case of that Court, nor of any other of the superior Courts, inquire further."

41.In Stockdale v Hansard (1839) 9 Ad & E, Lord Denman CJ said at pp147-148:

"Where the subject matter falls within their jurisdiction, no doubt we cannot question their judgment; but we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons."

42.In Bradlaugh v Gossett (1884) 12 QB 271, Lord Coleridge LJ said at pp275-7:

"What is said or done within the walls of Parliament cannot be inquired into in a court of law. On this point all the judges in the two great cases which exhaust the learning on the subject - Burdett v Abbott and Stockdale v Hansard; - are agreed, and are emphatic. The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive. To use the words of Lord Ellenborough, "They would sink into utter contempt and inefficiency without it".

Whether in all cases and under all circumstances the Houses are the sole judges of their own privileges, in the sense that a resolution of either House on the subject has the same effect for a court of law as an Act of Parliament, is a question which it is not now necessary to determine. No doubt, to allow any review of parliamentary privilege by a court of law may lead, has led, to very grave complications, and might in many supposable cases end in the privileges of the Commons being determined by the Lords.

It is said that in this case the House of Commons has exceeded its legal powers, because it has resolved that the plaintiff shall not take an oath which he has a right to take, and the threatened force is force to be used in compelling obedience to a resolution in itself illegal. But there is nothing before me upon which I should be justified in arriving at such a conclusion in point of fact. Consistently with all the statements in the claim, it may be that the plaintiff insisted on taking the oath in a manner and under circumstances which the House had a clear right to object to or prevent. Sitting in this seat I cannot know one way or the other. But, even if the fact be as the plaintiff contends, it is not a matter into which this Court can examine. If injustice has been done, it is injustice for which the Courts of law afford no remedy. On this point I agree with and desire to adopt the language of my Brother Stephen. The history of England, and the resolutions of the House of Commons itself, shew that now and then injustice has been done by the House to individual members of it. But the remedy, if remedy it be, lies, not in actions in the courts of law (see on this subject the observations of Lord Ellenborough and Bayley, J, in Burdett v Abbott, 14 East, 150, 151 and 160, 161), but by an appeal to the constituencies whom the House of Commons represents."

Stephen J said at pp277-287:

"Taken by itself, the order of the 9th of July states nothing except that the House had by resolution excluded a member, who in the judgment of the House had disturbed its proceedings, till he undertook not further to disturb it. It is obvious that we could not interfere with what might be a mere measure of internal discipline. The order as it stands is consistent with the supposition that Mr Bradlaugh, on presenting himself to take the oath, had in some way misconducted himself, and that the House had ordered him to be excluded till he promised not to repeat his misconduct. With such a measure of internal discipline we obviously could not interfere.

...

The legal question which this statement of the case appears to me to raise for our decision is this - Suppose that the House of Commons forbids one of its members to do that which an Act of Parliament requires him to do, and, in order to enforce its prohibition, directs its executive officer to exclude him from the House by force if necessary, is such an order one which we can declare to be void and restrain the executive officer of the House from carrying out? In my opinion, we have no such power. I think that the House of Commons is not subject to the control of Her Majestys Courts in its administration of that part of the statute-law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable.

Many authorities might be cited for this principle; but I will quote two only. The number might be enlarged with ease by reference to several well-known cases. Blackstone says "The whole of the law and custom of Parliament has its original from this one maxim, that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates and not elsewhere". This principle is re-stated nearly in Blackstones words by each of the judges in the case of Stockdale v Hansard. As the principal result of that case is to assert in the strongest way the right of the Court of Queen's Bench to ascertain in case of need the extent of the privileges of the House; and to deny emphatically that the Court is bound by a resolution of the House declaring any particular matter to fall within their privilege, these declarations are of the highest authority. Lord Denman says 9Ad & B at p114 "Whatever is done within the walls of either assembly must pass without question in any other place". Littledale J, says at p162 "It is said the House of Commons is the sole judge of its own privileges; and so I admit as far as the proceedings in the House: and, some other things are concerned". Patteson J, said at p209 "Beyond all dispute, it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled, that whatever is said or done in either House should not be liable to examination elsewhere". And Coleridge J, said at p.233 "That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity".

Apply the principle thus stated to the present case. We are asked to declare an order of the House of Commons to be void and to prevent its execution in the only way in which it can be executed, on the ground that it constitutes an infringement of the Parliamentary Oaths Act. This Act requires the plaintiff to take a certain oath. The House of Commons have resolved that he shall not be permitted to take it. Grant for the purposes of argument that the resolution of the House and the Parliamentary Oaths Act contradict each other; how can we interfere without violating the principle just referred to. Surely the right of the Plaintiff to take the oath in question is "a matter arising concerning the House of Commons" to use the words of Blackstone. The resolution to exclude him from the House is a thing "done within the walls of the House", to use Lord Denman's words. It is one of those "proceedings in the House of which the House of Commons is the sole judge", to use the words of Littledale J It is a "proceeding of the House of Commons in the House", and must therefore in the words of Patteson J "be entirely free and unshackled". It is "part of the course of its own proceedings" to use the words of Coleridge J and is therefore "subject to its exclusive jurisdiction". These authorities are so strong and simple that there may be some risk of weakening them in adding to them. Nevertheless, the importance of the case may excuse some further exposition of the principle on which it seems to me to depend.

The Parliamentary Oaths Act prescribes the course of proceeding to be followed on the occasion of the election of a member of Parliament. In order to raise the question now before us, it is necessary to assume that the House of Commons has come to a resolution inconsistent with the Act; for, if the resolution and the Act are not inconsistent the plaintiff has obviously no grievance. We must of course face this supposition, and give our decision upon the hypothesis of its truth. But it would be indecent and improper to make the further supposition that the House of Commons deliberately and intentionally defies and breaks the statute-law. The more decent and I may add the more natural and probable supposition is, that, for reasons which are not before us, and of which we are therefore unable to judge, the House of Commons considers that there is no inconsistency between the Act and the resolution. They may think there is some implied exception to the Act. They may think that what the plaintiff proposes to do is not in compliance with its directions. With this we have nothing to do. Whatever may be the reasons of the House of Commons for their conduct, it would be impossible for us to do justice without hearing and considering those reasons; but it would be equally impossible for the House, with any regard for its own dignity and independence, to suffer its reasons to be laid before us for that purpose, or to accept our interpretation of the law in preference to its own. It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings within its own walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly.

...

That part of the prayer of the statement of claim which asks us to restrain the Serjeant-at-Arms from using force to prevent the plaintiff from entering the House, may be disposed of in a few words. The order is, to exclude the plaintiff from the House; and we cannot suppose that this means more than that the plaintiff is to be prevented by the use of such force as may be absolutely necessary for the purpose from entering such parts of the Houses of Parliament as the order applies to. We should not be warranted either in law or by the use of common experience in supposing that anything else was intended. If, however, this only is intended, I am of the opinion that the use of such force is strictly justifiable. Every private man has the right of preventing a stranger from entering his house by such force, and of authorising others to act for him if he is unable or unwilling to act for himself; and to say that the House has by law power to exclude one of its members from the House, but has not the power to direct the use of such force for that purpose would be contradictory.

...

It is certainly true that a resolution of the House of Commons cannot alter the law. If it were ever necessary to do so, this Court would assert this doctrine to the full extent to which it was asserted in Stockdale v Hansard. The statement that the resolution of the House of Commons was illegal, must I think be assumed to be true, for the purposes of the present case. The demurrer for those purposes admits it. We decide nothing unless we decide that, even if it is illegal in the sense of being opposed to the Parliamentary Oaths Act, it does not entitle the plaintiff to the relief sought. This admission, however, must be regarded as being made for the purposes of argument only. It would, as I have already said, be wrong for us to suggest or assume that the House acted otherwise than in accordance with its own view of the law; and as we know not what that view is, nor by what arguments it is supported, we can give no opinion upon it. I do not say that the resolution of the House is the judgment of a Court not subject to our revision; but it has much in common with such a judgment. The House of Commons is not a Court of Justice; but the effect of its privilege to regulate its own internal concerns practically invests it with a judicial character when it has to apply to particular cases the provisions of Acts of Parliament. We must presume that it discharges this function properly and with due regard to the laws, in the making of which it has so great a share. If its determination is not in accordance with law, this resembles the case of an error by a judge whose decision is not subject to appeal. There is nothing startling in the recognition of the fact that such an error is possible. If, for instance, a jury in a criminal case give a perverse verdict, the law has provided no remedy. The maxim that there is no wrong without a remedy does not mean, as it is sometimes supposed, that there is a legal remedy for every moral or political wrong. If this were its meaning, it would be manifestly untrue. There is no legal remedy for the breach of a solemn promise not under seal and made without consideration; nor for many kinds of verbal slander, though each may involve utter ruin: nor for oppressive legislation, though it may reduce men practically to slavery; nor for the worst damage to person and property inflicted by the most unjust and cruel war. The maxim means only that legal wrong and legal remedy are correlative terms; and it would be more intelligibly and correctly stated, if it were reversed, so as to stand, "Where there is no legal remedy, there is no legal wrong".

The assertion that the resolution of the House goes beyond matter of procedure, and that it does in effect deprive both Mr Bradlaugh himself and his constituents of legal rights of great value, is undoubtedly true if the word "procedure" is construed in the sense in which we speak of civil procedure and criminal procedure, by way of opposition to the substantive law which systems of procedure apply to particular cases.

No doubt, the right of the burgesses of Northampton to be represented in parliament, and the right of their duly-elected representative to sit and vote in parliament and to enjoy the other rights incidental to his position upon the terms provided by law are in the most emphatic sense legal rights, legal rights of the highest importance, and in the strictest sense of the words. Some of these rights are to be exercised out of parliament, others within the walls of the House of Commons. Those which are to be exercised out of Parliament are under the protection of this Court, which as has been shewn in many cases, will apply proper remedies if they are in any way invaded, and will in so doing be bound, not by resolutions of either House of Parliament, but by its own judgment as to the law of the land, of which the privileges of Parliament form a part. Others must be exercised, if at all, within the walls of the House of Commons; and it seems to me that, from the nature of the case, such rights must be dependent upon the resolutions of the House. In my opinion, the House stands with relation to such rights and to the resolutions which affect their exercise, in precisely the same relation as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound by the most solemn obligations which can bind men to any course of conduct whatever, to guide their conduct by the law as they understand it. If they misunderstand it, or (I apologise for the supposition) wilfully disregard it, they resemble mistaken or unjust judges; but in either case, there is in my judgment no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can be produced in which any Court has ever interfered with the internal affairs of either House of Parliament, though the cases are no doubt numerous in which the Courts have declared the limits of their powers outside of their respective Houses. This is enough to justify the conclusion at which I arrive.

We ought not to try to make new laws, under the pretence of declaring the existing law. But I must add that this is not a case in which I at least feel tempted to do so. It seems to me that, if we were to attempt to erect ourselves into a Court of Appeal from the House of Commons, we should consult neither the public interest, nor the interests of parliament and the constitution, nor our own dignity. We should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil; and, even upon the most improbable supposition of their acquiescence in our adverse decision, an appeal would lie from that decision to the Court of Appeal, and thence to the House of Lords, which would thus become the judge in the last resort of the powers and privileges of the House of Commons."

43.In Speaker of the House of Assembly v Canadian Broadcasting Corporation et al (New Brunswick Broadcasting Co v Nova Scotia] (1993) 100 DLR (4) 212 Lamer CJC said at p229:

"The general rule which has developed from the above and subsequent case law is that courts will inquire into the existence and extent of privilege, but not its exercise.

at p232:

Historically, the courts have been careful to respect the independence of the legislative process just as legislators have been careful to protect the independence of the judiciary.

at p233:

There is a clear parallel between the doctrines of independence of the judiciary and of parliamentary privilege as the latter is the means by which the Houses of Parliament protect their independence. In Canada, it is through the exercise of the privileges inherent in all legislative bodies that the provincial Houses of Assembly are able to control their own proceedings and thereby maintain the independence of the legislative process. To incorporate by way of the preamble the broad principle of the fostering of the independence of the legislative process through the exercise of parliamentary privileges is much more palatable than incorporating a specific article of the Bill of Rights of 1689.

at p236:

As elaborated in detail earlier in this judgment, the courts have long maintained a "hands off" approach to the exercise of parliamentary privilege, particularly when it is directed toward maintaining control of the internal proceedings of the House. This approach fosters the independence of the legislative and judicial branches of our government from one another.

at p241:

It should be noted here that this does not mean that the members of legislative assemblies can exercise parliamentary privileges with absolute immunity. First, the courts can still review the validity of claims of privilege to the same degree they have always done. That is, they can pronounce upon the existence or extent of a particular privilege. Second, even if the members are not accountable to the judiciary with respect to the exercise of parliamentary privileges, they are, obviously, still accountable to the electorate."

McLachlin J said at p265:

"I turn first to the historical tradition of parliamentary privileges. "Privilege" in this context denotes the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.

at p268:

It is for the courts to determine whether necessity sufficient to support a privilege is made out. Lord Denman CJ in Stockdale v Hansard (1839), 9 Ad. & E 1, 112 ER 1112 (QB) stated at p149 Ad. & E. p1169 ER "If the necessity can be made out, no more need be said: it is the foundation of every privilege of Parliament, and justifies all that it requires". He noted, however, that it is up to the courts to determine whether necessity supports the privilege claimed; if it does, and only if it does, the courts will not inquire into its exercise (at pp.147-8 A & Ed, p1168 ER):

"Where the subject matter falls within (the House of Commons] jurisdiction, no doubt we cannot question their judgment; but we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privileges, I have already stated my answer: it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it."

The test of necessity is not applied as a standard for judging the content of a claimed privilege, but for the purpose of determining the necessary sphere of exclusive or absolute "parliamentary" or "legislative" jurisdiction. If a matter falls within this necessary sphere of matters without which the dignity and efficiency of the House cannot be upheld, courts will not inquire into questions concerning such privilege. All such questions will instead fall to the exclusive jurisdiction of the legislative body.

at p269:

So defined, the principle of necessity will encompass not only certain claimed privileges, but also the power to determine, adjudicate upon and apply those privileges. Were the courts to examine the content of particular exercises of valid privilege, and hold some of these exercises invalid, they would trump the exclusive jurisdiction of the legislative body, after having admitted that the privilege in issue falls within the exclusive jurisdiction of the legislative body. The only area for court review is at the initial jurisdictional level: is the privilege claimed one of those privileges necessary to the capacity of the legislature to function? A particular exercise of a necessary privilege cannot then be reviewed, unless the deference and the conclusion reached at the initial stage be rendered nugatory.

In summary, it seems clear that, from an historical perspective, Canadian legislative bodies possess such inherent privileges as may be necessary to their proper functioning. These privileges are part of the fundamental law of our land, and hence are constitutional. The courts may determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the rightness or wrongness of a particular decision made pursuant to the privilege.

at p272-3:

But, it is argued, it is not necessary that the right be absolute. The courts should be given the power to monitor the exercise of this power to ensure that only those strangers who are truly disruptive are excluded. In my view, a system of court review, quite apart from the constitutional question of what right the courts have to interfere in the internal process of another branch of government, would bring its own problems. The ruling of the Assembly would not be final. The Assembly would find itself caught up in legal proceedings and appeals about what is disruptive and not disruptive. This in itself might impair the proper functioning of the chamber. This lends support to the venerable and accepted proposition that it is necessary to the proper functioning of a legislative assembly modelled on the parliamentary system of the United Kingdom that the Assembly possess the absolute right to exclude strangers from its proceedings, when it deems them to be disruptive of its efficacious operation.

...

It may be added that the historical record suggests that the danger of abuse of the Speakers power to control proceedings in the House, even to the point of excluding strangers, is not grave. The right to exclude strangers has been recognised in the United Kingdom for centuries and in this country for well over 100 years without adverse effect. And the legislative assembly always faces the ultimate sanction, that of the voters.

I add this. Our democratic government consists of several branches: the Crown, as represented by the Governor-General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other."

44.In Prebble v Television New Zealand Limited [1995] 1 AC 321, Lord Browne Wilkinson said at pp.332-3:

"In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v Abbot (1811) 14 East 1; Stockdale v Hansard (1839) 9 Ad. & El. 1; Bradlaugh v Gossett (1884) 12 QBD 271; Pickin v British Railways Board [1974] AC 765; Pepper v Hart [1993] AC 593. As Blackstone said in his Commentaries on the Laws of England, 17th ed., (1830) vol.1 p.163:

"the whole of the law and custom of Parliament has its original from this one maxim, 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates and not elsewhere'".

According to conventional wisdom, the combined operation of article 9 and that wider principle would undoubtedly prohibit any suggestion in the present action (whether by way of direct evidence, cross-examination or submission) that statements were made in the House which were lies or motivated by a desire to mislead. It would also prohibit any suggestion that proceedings in the House were initiated or carried through into legislation in pursuance of the alleged conspiracy.

And at p335:

The wider principle encapsulated in Blackstones words quoted above prevents the courts from adjudicating on issues arising in or concerning the House, viz. whether or not a member has misled the House or acted from improper motives. The decision of an individual member cannot override that collective privilege of the House to be the sole judge of such matters.

And at p336:

Their Lordships are acutely conscious (as were the courts below) that to preclude reliance on things said and done in the House in defence of libel proceedings brought by a member of the House could have a serious impact on a most important aspect of freedom of speech viz. the right of the public to comment on and criticise the actions of those elected to power in a democratic society: see Derbyshire County Council v Times Newspapers Ltd [1993] AC 534. If the media and others are unable to establish the truth of fair criticisms of the conduct of their elected members in the very performance of their legislative duties in the House the results could indeed be chilling to the proper monitoring of members’ behaviour. But the present case and Wright's case 53 SASR 416 illustrate how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail.

Finally, at p337:

For these reasons (which are in substance those of the courts below) their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives, or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House."

It appears that the Privy Council considered that the laws of Parliamentary privilege applied uniformly throughout the Commonwealth.

45.Recent case law provides yet further support for this pervasive proposition. In R v Parliamentary Commissioner for Standards Ex p Al Fayed, (24 April 1997), Unreported Judgment of the High Court of England rejecting an application to quash a report of the Parliamentary Commissioner, Sedley J spoke at p15G of

"a mutuality of respect between two constitutional sovereignties."

When the same case went to appeal in R. v. Parliamentary Commissioner for Standards Ex p Al Fayed (1998) 1 ALL ER 93 Lord Woolf MR said at p96h-j:

"Activities of Parliament are accepted in general ... to be not subject to judicial review."

at p97c what the Commissioner was doing:

"directly related to what happens in Parliament."

46.Re an application of M McGuinness (23 October 1997) Unreported Judgment of the Northern Ireland High Court (when there was a challenge to the decision of Speaker to ban the applicant from use of Commons facilities unless he took the oath). Kerr J said at p.9:

"... I am quite satisfied that, whether it qualifies as a proceeding in Parliament or not, the Speakers action lies squarely within the realm of internal arrangements of the House of Commons and is not amenable to judicial review. Control of its own internal arrangements has long been recognised as falling uniquely within Parliament's domain and superintendence from which the Court's intervention is excluded."

47.Academic commentary is to the same unequivocal effect:

"The propriety of exercise by each House of one of its established privileges is a question, not for the Court, but for each House alone."

(Holdsworth, A History of English Law, Vol.X p539.]

"The House has the right to control its own proceedings and to regulate its internal officers without interference by the Court."

(Bradley: Constitutional and Administrative Law (11th Ed’n) p231.]

"Except as regards the internal regulation of its proceeding by the House, Courts of Law will not hesitate to inquire into the alleged privilege."

(Anson's Law and Custom of the Constitution (5th Ed’n) Vol.I p196.]

"... The courts take the view that it is for them to determine whether a parliamentary claim to privilege in a particular case falls within that area where what is claimed is necessary to the discharge of parliamentary functions or internal to one or other of the Houses in which case parliamentary jurisdiction is exclusive."

(Halsbury: Laws (4th Ed’n). Vol34, para.1006.]

48.This principle in my judgment, applies not only to the United Kingdom Parliament, but to any legislative assembly. Even where such assembly is exclusively set up under statute it has nonetheless absolute privilege over its "internal proceedings".

49.In Maha v Kipo (Papua New Guinea) [1996] 2 LRC 328, Woods J said (at p331b-c; f-g]

"The Supreme Court has agreed that what is done within the walls of the Parliament in respect of its own procedures cannot be inquired into in a court of law. Parliament has the exclusive right to control its own officers, which are not specifically governed by constitutional directives.

...

In recognising that the courts have no jurisdiction in regard to disputes over the interpretation, application or enforcement of standing orders does not mean that such issues are beyond solution. It is only saying that the courts recognise the jurisdiction of the assembly to govern its own internal proceedings. All those are to be dismissed and can be determined by the assembly itself, by process of standing orders."

50.In Siale v Fotofili (Tonga) [1987] LRC 240, Martin J said (at p243a-b to 245d-e]

"Certain privileges are well established. They are necessary for Parliament to function effectively. Their purpose is to enable members to carry out their duties effectively - without interruption; and fearlessly - without fear of consequences.

For this reason it is now well recognised that the control of Parliament over its internal proceedings is absolute, and cannot be interfered with by the court.

...

There is one clear thread running through all those cases. Parliament is entitled to absolute privilege over its "internal proceedings". That includes speaking and voting on proposals to make law. It includes bringing matters of concern to the attention of the House. It relates to all things said and done for the purpose of carrying out the duties and functions of the House. It includes all decisions made by the House in its collective capacity. On all these matters the court has no power to intervene. It is highly undesirable that it should. The court has no more right to interfere with the proper working of the House than the House has to interfere with the proper working of the court."

51.In Sanft v Fotofili [1987] LRC (Tonga) (Const) 247 Martin J said (at p249(b)-(d)]

"For the reasons given in my previous judgment, which I will not repeat here, I hold that this court does have the power to decide whether a constitutional or statutory requirement has been observed. If not, any act of the Legislative Assembly in contravention of that condition would be invalid. But this Court has no power to pronounce on the validity of the "internal proceedings" of the House. That, in my view, includes the procedure adopted within the House to conduct its business."

52.Such inherent powers, needed in order to enable the Legislative Assembly to function properly, are immune from attack on the basis of infringement of general constitutional rights even where such rights are enshrined in a charter. See Speaker of the House of Assembly v Canadian Broadcasting Corporation et al (New Brunswick Broadcasting Co. v Nova Scotia] (supra) 212 especially per McLachlin J at p.258(b)-261(b).

53.This same principle appears to be accepted and endorsed by the Strasbourg institutions in Demicoli v Malta (1991) 14 EHRR 47.

54.The Commission of Human Rights said at para.35 (p57):

"Breach of privilege consists of a number of various offences - from an insult or disrespect to the Speaker during the sitting of the House... The Commission finds that the former type relates to the inner regulation and smooth functioning of the institution and can be regarded purely as a matter of internal discipline."

The Court said para.33 (p62):

"Mr Demicoli was not a Member of the House. In the Courts view, the proceedings taken against him in the present case for an act of this sort done outside the House are to be distinguished from other types of breach of privilege proceedings which may be said to be disciplinary in nature in that they relate to the internal regulation and orderly functioning of the House."

and at para.39 (pp63-64):

"The Court, like the Commission, notes that the power of the Maltese Parliament to impose disciplinary measures and to govern its own internal affairs is not in issue. Moreover, the Court's task is not to review the relevant law and practice in abstracto, but to determine whether the manner in which the proceedings against Mr Demicoli were conducted gave rise to a violation of Article 6(1)."

55.In my judgment, once the nature of the sanction imposed by a legislative assembly or its officers appears to be one within its arsenal, the matter becomes immune from further judicial scrutiny. As the pervasive case law illustrates, the sun never sets on the principle relied on by the Defendants. It is not for the Court to consider whether such standing orders were properly interpreted or applied, or whether such historic privileges or inherent powers were properly exercised.

56.The main reasons (relevant to this case) for judicial abstention from reviewing the internal proceedings of the legislature, firmly rooted as they are, in constitutional principle and legal history, appear to me to be these:

(1)The legislature is the key organ of democratic government. It ought, accordingly, to enjoy absolute independence from outside interference or control, the better to perform its functions and to enjoy continued respect.

(2)In particular, appeals to the Courts as to whether particular behaviour of a member did or did not merit particular sanction would impair the proper functioning of the chamber by enmeshing it in legal proceedings;

(3)The judicial and legislative organs of government both ought to and ought to be seen to enjoy independence of each other if they are to command confidence.

(4)Judicial abstention from the interference in Parliamentary proceedings is the best guarantee of Parliamentary abstention from interference in the judicial process.

(5)A legislature can provide its own remedies for injustice effected against a member by its officer or itself.

(6)Ultimately an aggrieved member has the right to appeal to the electorate.

(The consideration that it would be a constitutional absurdity for the privilege of the Commons to be determined by the Lords (exercising via the Appellate Committee these judicial functions) does not apply in Jersey.]

57.I accordingly next consider whether the Defendants have made good their contention that at all material times, they were exercising powers under one or more of the three heads identified. If so, they enjoy immunity: if not, not.

(i) Express Powers

58.Acting on the basis that the allegations made by the Plaintiff against Senator Jeune alleged improper motives contrary to Standing Order 24(6), the Defendants required the Plaintiff to substantiate such allegations or withdraw them.

59.The Second Defendant concluded that the Plaintiff's continued refusal to withdraw the allegations of improper motives amounted to "grossly disorderly conduct" within the meaning of Standing Order 30(3) since it was a refusal to comply with a direction from the Chair which was made to enforce a Standing Order.

60.In my judgment, all action taken requiring the Plaintiff to withdraw or substantiate allegations and the consequent first suspension itself was therefore as a matter of objective analysis wholly within the express powers granted to the Defendants under the 1966 Law and the Standing Orders 30(3).

(ii) Prerogative Powers

61.The Bailiff, Deputy Bailiff and the States all predate the 1966 Law. Both the office holders and the legislative assembly enjoy an ancient historical origin.

62.Following the separation from Normandy in 1204, the Royal Court consisted of the Bailiff as President of the Court and 12 Jurats.

63.Initially the Court alone passed any relevant legislation but gradually, when considering legislation, the Court developed the practice of consulting the Rectors and the Constables of the Parishes. This Assembly became known as the States and was also presided over by the Bailiff.

"I think, however, it is probable that the States of this Island have come into existence without any special legislative enactment; that they were not originally a regularly constituted body; but that in cases of importance it was usual for the Court to call together the constables and clergy, with the principal people of the Island, to consult and advise on matters affecting the Island generally; and this at first, not as a matter of obligation, or of compulsion, or of necessity on the part of the Court, but as a judicious and wise course, to ascertain what were the opinions, the views, and the desires of the community on the matters submitted to them: "Pour conseiller la justice," as it is declared in some of the acts."

(Le Quesne - Constitutional History of Jersey (1856) p100.]

"6/2. The Assembly of the States originates from the Royal Court, which, at an unknown time before 1524, called on the parishes to send representatives to attend their meetings. Thus came into being the assembly of the Three Estates, the Jurats, the Rectors and the Constables. The Assembly was sometimes so called, but more commonly it was called the Assembly of the States or the States."

(Bois - A Constitutional History of Jersey (1970).]

64.Differences gradually arose between the Court and the States as to who should legislate. This dispute was resolved in 1771 by Order in Council which directed that thereafter only the States should have the power of legislating, and provided, so far as material, as follows:

"Whereas there was this day read at the Board a Report from the Right Honourable the Lords of the Committee of Council for the Affairs of Jersey and Guernsey dated the 26th of this instant, upon considering the annexed Collection or Code of laws agreed upon by the states of the Island of Jersey, and transmitted for His Majesty's Royal approbation - His Majesty taking the same into Consideration, is herby pleased, with the advice of His privy Council, to approve of, ratify, and confirm the Said Collection or Code of laws, and to order, that the same, together with this Order, be entered upon the register of the Said Island and observed accordingly - And His Majesty Doth hereby declare that all other Political and written laws heretofore made in the Said Island, and not included in the Said Code, and not having had the Royal assent and confirmation, Shall be from henceforward of no force and validity - And His Majesty doth hereby order that no Laws or Ordinances whatsoever, which may be made provisionally or in view of being afterwards assented to by His Majesty in Council, Shall be passed but by the whole Assembly of the States of the said Island."

(cf. Le Quesne op.cit. p102.]

65.The Bailiff has therefore presided in the States since its first beginnings and has been responsible for the order and procedure of the States. (Le Quesne op.cit. pp18-19.) The nature of his functions is authoritatively explained in Report of the Committee of the Privy Council on Proposed Reforms in the Channel Islands Cmnd 7-74, which stated at pp.6-7:

"The Bailiff

The Bailiff, who is appointed by the Crown and holds office during His Majestys pleasure, is the President of the States, and President of the Royal Court. The States recommend no change in this office. The combination of legislative and judicial functions was noted by the Royal Commission of 1861 on the Civil, Municipal and Ecclesiastical Laws of Jersey (Reports Commissioners 1861, Vol.10), who observed as follows:-

"Whatever may, in the abstract, be the objections to this combination, it will suffice for our present purpose to state that in Jersey there neither exists, nor can be provided, any other functionary at once learned in the law and of sufficient dignity to preside in the legislative body, and we therefore do not recommend any change in this respect".

We thought it desirable to enquire into the nature of the Bailiff's functions as President of the States. The Bailiff is entitled to speak on any matter, and has a casting vote if the members are equally divided. He has a power of Dissent in matters concerning His Majestys Interest or Prerogative and on occasions when, by established practice, certain changes affecting the constitution and laws of the Island must be tendered in the first instance as propositions for His Majestys Assent before any alteration is effected. Certain of the Bailiff's functions, as they were explained to us, resemble those of the Speaker of the House of Commons; but there are some important differences.

...

In the course of evidence it was suggested that in order to ensure a proper separation between the Judiciary and the Legislature, the Bailiffs functions should be confined to the Court and that the President of the States should be appointed by the States from among their members. But support for this view was limited and the weight of evidence was against any change in the present arrangement.

We consider that the objection to the combination of the dual functions in the Bailiff would be justified only if it could be established that in the States the Bailiff exercised undue influence in the course of the deliberations, or in the Court allowed his political position to influence his decisions. No evidence was tendered to us in support of such contentions. We also consider that the Bailiff as President of the States exercises important functions in advising the assembly on constitutional procedure which, from the nature of the constitution, requires an intimate knowledge of the privileges, rights and customs of the Island, the exercise of the Dissent being a pertinent example. It is an advantage in a small community and in a legislative body very limited in numbers that this Dissent should be expressed (or an intimation given that it may have to be expressed), directly to the States.

We recommend that there should be no alteration in the present functions of the Bailiff."

BAILIFF

66.The Bailiff and Deputy Bailiff, originally acted in such capacities under old powers which existed as a matter of common law. The long title of the 1966 Law describes it as a law, inter alia, "to declare and define the powers, privileges and immunities of the States ...". That these continue to exist in addition to the powers of the 1966 Law is expressly recognised by the Article 59 which is entitled "Saving of Powers" and refers in its text to "prerogatives" and "rights". This conclusion is fortified by the presumption that the 1966 Law does not change any pre-existing laws or prerogatives unless expressly stated to the contrary. (See Bennion Statutory Interpretation (1997) 3rd ed., pp465-466 and the cases there cited.]

67.The right of the Bailiff and Deputy Bailiff at common law to preside over the States of Jersey expressly preserved by Articles 1 and 3 of the 1966 Law must in my judgment necessarily include powers to regulate and control the internal proceedings of the States and in particular, powers to control the conduct of the proceedings preserved by Article 59 of the 1966 Law.

68.Therefore in my judgment, in so far as the First or Second Defendants acted otherwise than pursuant to those powers expressly granted to them under the Standing Orders, they acted in accordance with prerogative powers held by them in their respective capacities at common law, in order to control the proceedings of the States. This is particularly, if not exclusively, relevant to the putting of the question (see above paras.[18]-[20]).

(iii) Inherent Power

69.In addition to the prerogative powers peculiar to the Bailiff, Deputy Bailiff and the States owing to their unique historical background and origin, the States (and consequently the Speaker) also possess powers which are intrinsic to all legislative assemblies and enable them to carry out their functions properly and to function as a working legislative assembly.

70.In the case law concerning former Colonial Legislative Assemblies which were set up by statute but were subject to the United Kingdom Parliament, the Courts have consistently held that, even where there is no express grant of power enabling a legislative assembly to take disciplinary steps to control its proceedings, such power is deemed to exist in so far as it is necessary to enable the legislative assembly to control its own proceedings and exercise its functions. Such power includes the power to suspend a member for disorderly conduct.

71.In Kielley v Carson ((1842) IV Moore PC 63] it was held that The House of Assembly of the Island of Newfoundland did not possess, as a legal incident, the power of arrest, with a view of adjudication on a contempt committed out of the House; but only such powers as are reasonably necessary for the proper exercise of its functions and duties as a local legislature.

Baron Parke said at pp[88], [89]:

"The whole question then is reduced to this, - whether by law, the power of committing for a contempt, not in the presence of the Assembly, is incident to every local Legislature.

The Statute Law on this subject being silent, the Common Law is to govern it, and what is the Common Law, depends upon principle and precedent.

Their Lordships see no reason to think, that in the principle of the Common Law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it was competent for the Crown to perform. This is the principle which governs all legal incidents. "Quando Lex aliquid concedit, concedere viditur et illud, sine quo res ipsa esse non potest". In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediments to the due course of its proceeding. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law. But the power of punishing any one for past misconduct as a contempt of its authority, and adjudicating upon the fact of such contempt, and the measure of punishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different character, and by no means essentially necessary for the exercise of its functions by a local Legislature, whether representative or not. All these functions may be well performed without this extraordinary power, and with the aid of the ordinary tribunals to investigate and punish contemptuous insults and interruptions.

at p[92]:

… we decide according to the principle of the Common law, that the House of Assembly have not the power contended for. They are a local Legislature, with every power reasonably necessary for the proper exercise of their functions and duties, but they have not what they have erroneously supposed themselves to possess - the same exclusive privileges which the ancient Law of England has annexed to the House of Parliament."

72.In Doyle v Falconer (IV Moore NS 203 1 328] it was held where a Member of the Lower House of Assembly of Dominica, who had been taken into custody by the Serjeant-at-Arms, and committed to the common goal, by virtue of the Speaker's warrants, for a contempt committed in the face of the Assembly, he could bring an action for damages to trespass and false imprisonment. The House of Assembly had no such power to commit and punish as had been assumed, by analogy to the Lex et consuetudo Parliamenti, which is inherent in the two Houses of Parliament in the United Kingdom, or to a Court of Justice, which is a Court of Record, a Colonial House of Assembly having no judicial functions. The Speaker and Members were accordingly liable.

Sir James Colville said at pp [219], [220], [221]:

"It is necessary to distinguish between a power to punish for a contempt, which is a judicial power, and a power to remove any obstruction offered to the deliberations or proper action of a Legislative body during its sitting, which last power is necessary for self-preservation. If a Member of a Colonial House of Assembly is guilty of disorderly conduct in the House whilst sitting, he may be removed, or excluded for a time, or even expelled; but there is a great difference between such powers and the judicial power of inflicting a penal sentence for the offence. The right to remove for self-security is one thing, the right to inflict punishment is another. The former is, in their Lordship's judgment, all that is warranted by the legal maxim that has been cited, but the latter is not its legitimate consequence. To the question, therefore, on which this case depends, their Lordships must answer in the negative. If the good sense and conduct of the members of Colonial Legislatures prove, as in the present case, insufficient to secure order and decency of debate, the law would sanction the use of that degree of force which might be necessary to remove the person offending from the place of the meeting, and to keep him excluded. The same rule would apply a fortiori, to obstructions caused by any person not a member. And whenever violation of order amounts to a breach of the peace, or other legal offence, recourse may be had to the ordinary tribunals.

It may be said that the dignity of an Assembly exercising supreme legislative authority in a Colony, however small, and the importance of its functions, require more efficient protection than that which has just been indicated; that it is unseemly or inconvenient to subject the proceedings of such a body to examination by the local Tribunals; and that it is but reasonable to concede to it a power which belongs to every inferior Court of Record. On the other hand, it may be urged, with at least equal force, that the power contended for is of a high and peculiar character; that it is in derogation of the liberty of the subject and carries with it the anomaly of making those who exercise it Judges in their own cause and Judges from whom there is no appeal: and that if it may be safely intrusted to Magistrates, who would all be personally responsible for any abuse of it to some higher authority, it might be very dangerous in the hands of a body which, from its very constitution, is practically irresponsible.

Their Lordships, however, are not at liberty to deal with considerations of this kind. There may or may not be good reasons for giving by express grant to such an Assembly as this, privileges beyond those which are legally and essentially incident to it. In the present instance, this possibly might have been done by the instrument creating the Assembly; since Dominica was a conquered or ceded Colony, and the introduction of the law of England seems to have been contemporaneous with the creation of the Assembly. It may also be possible to enlarge the existing privileges of the Assembly by an Act of the Local Legislature, passed with the consent of the Crown, since such an Act seems to be within the 3rd section of the recent Statute, 28th and 29th Vict., c63. That extraordinary privileges of this kind, when regularly acquired, will be duly recognised here, is shown by the recent case of Dill v Murphy (1 Moores PC Cases (NS) 487). But their Lordships, sitting as a Court of Justice, have to consider not what privileges the House of Assembly of Dominica ought to have, but what by law it has. In order to establish that the particular power claimed is one of those privileges, the Appellants must show that it is essential to the existence of the Assembly, an incident "sine quo res ipsa esse non potest". Their Lordships are of opinion that it is not such an incident."

73.In Barton v Taylor (1886) XI AC 197, it was held that a resolution of the New South Wales Assembly that a member be "suspended from the service of the House" must not be construed as operating beyond the sitting during which the resolution was passed.

The Earl of Selborne said at pp202-5:

"The intention of that plea seems to have been to justify the trespass on the ground of an inherent power in every Colonial Legislative Assembly to protect itself against obstruction, interruption, or disturbance of its proceedings by the misconduct of any of its members in the course of those proceedings. The nature, grounds and limits of that power (which undoubtedly exists) have been several times considered at this board, especially in the case of Keilley v Carson (4 Moo PC 63) and Doyle v Falconer (Law Rep 1 PC 328). It results from those authorities that no powers of that kind are incident to or inherent in a Colonial Legislative Assembly (without express grant), except "such as are necessary to the existence of such a body, and the proper exercise of the functions which is intended to execute" (4 Moo PC 88). Whatever, in a reasonable sense is necessary for these purposes, is impliedly granted whenever any such legislative body is established by competent authority. For these purposes, protective and self-defensive powers only, and not punitive, are necessary. If the question is to be elucidated by analogy, that analogy is rather to be derived from other assemblies (not legislative), whose incidental powers of self-protection are implied by the common law (although of inferior importance and dignity to bodies constituted for purposes of public legislation), than from the British Parliament, which has its own peculiar law and custom, or from Courts of Record, which have also their special authorities and privileges, recognised by law. "If a member of a Colonial House of Assembly is guilty of disorderly conduct in the House while sitting, he may be removed or excluded for a time, or even expelled ... The right to remove for self-security is one thing, the right to inflict punishment is another ... If the good sense and conduct of the members of Colonial Legislatures prove insufficient to secure order and decency of debate, the law would sanction the use of that degree of force which might be necessary to remove the person excluded from the place of meeting, and to keep him excluded".

Those words were used by Sir James Colville, when delivering the judgment of this tribunal in Doyle v Falconer, and their Lordships adopt them. It does not, however, appear to be a just inference from the expressions, "excluded for a time", and "to keep him excluded", that a power to exclude a member, and to keep him excluded, for a length of time unlimited, or limited only by the discretion of the assembly, was considered in Doyle v. Falconer, or ought, on sound principles, to be now held by their Lordships to be necessary to the existence of such a body or to the proper exercise of its functions. The principle on which the implied power is given confines it within the limits of what is required by the assumed necessity. That necessity appears to their Lordships to extend as far as the whole duration of the particular meeting or sitting of the assembly in the course of which the offence may have been committed. It seems to be reasonably necessary that some substantial interval should be interposed between the suspensory resolution and the resumption of his place in the assembly by the offender, in order to give opportunity for the subsidence of heat and passion, and for reflection on his own conduct by the person suspended; nor would anything less be generally sufficient for the vindication of the authority and dignity of the assembly. The sitting or meeting, as a whole, has a practical unity.

...

The power, therefore, of suspending a member guilty of obstruction or disorderly conduct during the continuance of any current sitting, is, in their Lordships judgment, reasonably necessary for the proper exercise of the functions of any Legislative Assembly of this kind; ...

If these are the limits of the inherent or implied power, reasonably deducible from the principle of general necessity, they have the advantage of drawing a simple practical line between defensive and punitive action on the part of the Assembly. A power of unconditional suspension, for an indefinite time, or for a definite time depending only on the irresponsible discretion of the Assembly itself, is more than the necessity of self-defence seems to require, and is dangerously liable, in possible cases, to excess or abuse. It is true that confidence may, generally, be placed in such bodies; and there may be cases (as in such very important colonies as this of New South Wales) in which there may be preponderating reasons for entrusting them with much larger powers than those which ought to be implied from the mere necessity of the case. But their Lordships are at present considering only those powers which ought to be implied on the principle of necessity, and which must be implied in favour of every Legislative Assembly of any British possession, however small, and however far removed from effective public criticism. Powers to suspend a member sitting after sitting, in case of repeated offences (and, it may be, till submission or apology), and also to expel for aggravated or persistent misconduct, appear to be sufficient to meet even the extreme case of a member whose conduct is habitually obstructive or disorderly. To argue that expulsion is the greater power, and suspension the less, and that the greater must include all degrees of the less, seems to their Lordships fallacious. The rights of constituents ought not, in a question of this kind, to be left out of sight. Those rights would be much more seriously interfered with by an unnecessarily prolonged suspension than by expulsion, after which a new election would immediately be held."

74.Barton v Taylor is, in my judgment, particularly significant, since it contemplates in terms of approbation precisely the exercise of powers here effected in this case ie the suspension of a member until submission or apology. Moreover such a power (a self-defensive measure) would seems to be itself derived from the doctrine of necessity which is the touchstone of its existence. Indeed such a power is less draconian than a power to suspend for a finite period, since it lies in the members own hands to cancel the suspension. No punishment is involved.

75.In summary, colonial legislatures enjoy

1. all powers necessary to carry out their functions;

2. (including) powers to regulate and enforce the rules of debate;

3. self-defensive powers to enforce their rules;

4. (including) the power to expel, to suspend for a finite period, if not to punish.

76.Whether a power exercised is one of internal discipline rather than of punishment depends upon its nature, not its motive. Suspension and censure are clearly disciplinary. Fines and imprisonment are clearly penal. Malice cannot convert the former into the latter.

77.The judgments in Speaker of the House of Assembly v. Canadian Broadcasting Corporation et al (New Brunswick Broadcasting Co v Nova Scotia] (1993) 100 DLR (4th) 212, in respect of the proceedings of a provincial legislative assembly, provide further and modern authoritative guidance on the inherent powers of Colonial Legislative Assemblies.

Lamer CJC said at p224:

"Parliamentary privilege, and immunity with respect to the exercise of that privilege, are founded upon necessity. Parliamentary privilege and the breadth of individual privileges encompassed by that term are accorded to members of the Houses of Parliament and the legislative assemblies because they are judged necessary to the discharge of their legislative function. In Stockdale v Hansard (1839) 9 Ad & E 1 at p.232, 112 ER 1112 at p1199 (KB) Coleridge J, as he then was, made the following statement to this effect:

"... that the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules, or derogation from its dignity, stands upon the clearest grounds of necessity."

The content and extent of parliamentary privileges have evolved with reference to their necessity. In Precedents of Proceedings in the House of Commons, vol.1, 3rd ed., (London: T Payne, 1796), John Hatsell defined at p1 the privileges of Parliament as including those rights which are "absolutely necessary for the due execution of its power". It is important to note that, in this context, the justification of necessity is applied in a general sense."

at p226:

"(ii) The colonial legislatures

In the colonial legislatures in Canada and elsewhere, parliamentary privileges were derived from common law or statute law."

at p227:

"Thus, it was held that the inherent powers of the colonial legislatures were not as broad as those of the Houses of Parliament of the United Kingdom for two reasons. First, the relatively shorter histories of such bodies had not given rise to a similar claim by way of custom and usage. Second, the same powers were not perceived to be justified by necessity."

at p240:

"In this case the respondent did not argue that the privilege used to prohibit the independent use of video cameras in the House was in excess of inherent privilege. Given the long-standing acceptance of the power to exclude strangers and to control the internal proceedings of the House as valid categories of privilege founded on necessity, in this country as well as in the United Kingdom, … that argument would be difficult to make."

McLachlin J said at p265:

"… our legislative bodies possess those historically recognised inherent constitutional powers as are necessary to their proper functioning."

at p266:

"The privileges attaching to colonial legislatures arose from common law. Modelled on the British Parliament, they were deemed to possess such powers and authority as are necessarily incidental ..."

at p267:

"There is no dispute in the case law that necessity is the test."

at p270:

"The pragmatic argument: necessity.

I earlier alluded to scholarly and judicial opinion supporting the conclusion that Canadian legislative bodies possess such historically recognised constitutional privileges as may be necessary to their efficient functioning. Implicit in this conclusion is the assertion that, from a practical point of view, legislative bodies must possess certain inherent powers in order to properly discharge their functions.

As a general proposition, can unwritten constitutional privileges inherent to our legislative bodies be justified on the ground of necessity? Putting the matter differently, can our legislative bodies function properly, clothed only with those powers expressly conferred by our written constitutional documents? The answer to this question must, in my view, be negative.

...

(b) exclusive control over the Houses own proceedings."

at pp270-271:

"The right of the House to be the sole judge of the lawfulness of its proceedings, is similarly evident; Erskine May states that this right is "fully established". In settling or departing from its own codes of procedure "the House can 'practically change or practically supersede the law’ (p90)."

...

at p272:

In my view, this privilege is as necessary to modern Canadian democracy as it has been to democracies here and elsewhere in past centuries. The legislative chamber is at the core of the system of representative government. It is of the highest importance that the debate in that chamber not be disturbed or inhibited in any way. Strangers can, in a variety of ways, interfere with the proper discharge of that business. It follows that the Assembly must have the right, if it is to function effectively, to exclude strangers. The rule that the legislative assembly should have the exclusive right to control the conditions in which that debate takes place is thus of great importance, not only for the autonomy of the legislative body, but to ensure its effective functioning."

78.The position under English law confirms the existence of these distinct and necessary powers which may be distinguished from other parliamentary privileges.

79.In Burdett v Abbott (1811) 14 East 1, Lord Ellenborough said at pp137-139:

"The privileges which have been since enjoyed, and the functions which have been since uniformly exercised, by each branch of the Legislature, with the knowledge and acquiescence of the other House and of the King, must be presumed to be the privileges and functions which then, that is, at the very period of their original separation, were statutably assigned to each. The privileges which belong to them seem at all times to have been, and necessarily must be, inherent in them, independent of any precedent: it was necessary that they should have the most complete personal security, to enable them freely to meet for the purpose of discharging their important functions, and also that they should have the right of self-protection: I do not mean merely against acts of individual wrong; for poor and impotent indeed would be the privileges of Parliament, if they could not also protect themselves against injuries and affronts offered to the aggregate body, which might prevent or impede the full and effectual exercise of their Parliamentary functions. This is an essential right necessarily inherent in the supreme Legislature of the kingdom, and of course as necessarily inherent in the Parliament assembled in two Houses as in one. The right of self-protection implies, as a consequence, a right to use the necessary means for rendering such self-protection effectual. Independently, therefore, of any precedents or recognized practice on the subject, such a body must à priori be armed with a competent authority to enforce the free and independent exercise of its own proper functions, whatever those functions might be. On this ground it has been, I believe, very generally admitted in v argument, that the House of Commons must be and is authorised to remove any immediate obstructions to the due course of its own proceedings. But this mere power of removing actual impediments to its proceedings would not be sufficient for the purposes of its full and efficient protection: it must also have the power of protecting itself from insult and indignity wherever offered, by punishing those who offer it."

80.Erskine Mays Treatise on the Law, Privileges, Proceedings and Usage of Parliament (21st Ed’n. 1989) analyses the case law in this way:

(Burdett v Abbott] at p151:

"Lord Ellenborough CJ held that the House had acted within its powers, and that the power were no more than those enjoyed by all superior courts. The court emphasized that the possession of such powers was essential for the maintenance of the dignity of both Houses, and that without them, they would ‘sink into utter contempt and inefficiency’."

(Stockdale v Hansard] at p152:

"It was accepted that over their own internal proceedings the jurisdiction of the Houses was exclusive: but it was (in Lord Denman's view) for the courts to determine whether or not a particular claim of privilege fell within that category."

(Bradlaugh v Gossett] at p154:

"The Court decided against Bradlaugh, on the ground that the order of the House related to the internal management of its procedure over which they had no jurisdiction. The exclusive jurisdiction of the House in this instance was considered essential for the discharge of its function, and based on necessity.

Most of the modern instances of interaction between the courts and Parliament have their origin in the determination of the proper limits of proceedings in Parliament, some of them with a particular concern for what is internal to Parliament. The courts have recognised the need for an exclusive Parliamentary jurisdiction, as a necessary bulwark of the dignity and efficiency of either House. The judges have further admitted that when a matter is a proceeding of the House, beginning and terminating within its own walls, it is obviously outside the jurisdiction of the courts, though there may be an exception for criminal acts so far as they may be comprehended within the term proceedings in Parliament.

In practice, however, a variety of views has been taken on what properly distinguishes the proceedings or the purely internal concerns of either House. In Bradlaugh v Gosset it was decided that even if the House of Commons wrongly interpreted a statute prescribing rights within its own walls, the courts had no power to interfere. For such purposes the House can 'practically change or practically supersede the law'. In the same case, however, Stephen J limited the rights on which the Commons could interpret the statute as those such as sitting and voting. He contrasted those with 'rights to be exercised out of and independently of the House' in which the court must be arbiter."

81.This principle in English law is designed to ensure that the legislative assembly has effective power to regulate its own proceedings in the manner that it thinks appropriate to ensure the proper working of Parliament. It is a matter of necessity to enable Parliament to discharge its functions. It is not a matter of privileges which are peculiar to the United Kingdom Parliament.

82.I accept that the privileges of the United Kingdom Parliament were influenced by its origin as a Court. In Speaker of the House of Assembly v Canadian Broadcasting Corporation et al (New Brunswick Broadcasting Co v Nova Scotia] (supra), Lamer CJC said at p228a-b:

"In that context, a further historical factor was highly relevant. The penal jurisdiction of the Houses of Parliament in the United Kingdom was in large part derived from the fact that at one time they had been part of the "High Court of Parliament", the judicial function of which had been as important as its legislative function. The division between legislatures and courts has been much clearer in Canada throughout its constitutional history."

That influenced the reach of the privilege. The kind of privilege in play in the instant proceedings, however, sprang from need, not history.

83.Unlike the Colonial Legislative Assemblies, the States of Jersey was not created by a statute of the United Kingdom Parliament. It emerged from the Royal Court of Jersey, as the Attorney-General put it, from "the mists of time". Its history is to that extent therefore similar in that respect to the United Kingdom Parliament. I accept that the power of the States to discipline its members as part of the necessary power to regulate its own proceedings cannot therefore be any less than that of a Colonial Legislative Assembly: it is unnecessary for present purposes to consider the interesting question whether they equate to that of the United Kingdom Parliament.

84.Although there is no direct Jersey judicial authority on the matter, in Ex parte Nicolle et autres (1827) [18 août, O du C 5: p335] is persuasive in the Defendants favour. In that matter, His Majesty on the advice of the Privy Council, dismissed the petition against a motion of censure passed by the States upon Mr Nicolle, a member of the States, for intemperate and offensive language against another member. The Privy Council can be taken to have accepted the following claim by the States of Jersey at p351:

"That the States therefore claimed the privilege which they had ever exercised of maintaining order in the Assembly and a decorous Deportment of the Members towards each other during the Debates a Privilege which appertained to every Representative Assembly in the World and without which no such Assembly of that kind could subsist ..."

While it is unclear whether the Privy Council was acting in a judicial or administrative capacity, in my judgment the ruling continues to represent the law of Jersey.

85.In my view, the sole question for me is whether the sanctions imposed were ones available to the Defendants (including the States). I have no doubt that they were. Apart from express powers and prerogative powers, where relevant, they are both embraced by the general principle of necessity and the particular example canvassed in Barton v. Taylor.

86.I conclude that all of what was being done and is complained of by the Plaintiff relates to the internal proceedings of the States; that the privilege contended for exists; that the States and officers enjoyed the inherent powers claimed; and that, accordingly, I should abstain from further inquiry into the matter. My judicial function is exhausted.

87.It was argued by the Plaintiff that I should consider whether the condition precedent for the exercise of such powers i.e. that the Plaintiff was guilty of disorderly conduct was established. I decline the invitation which seems to me destructive of the privilege. (Although, I repeat, that it is not a matter for the Court to determine whether the Plaintiff's conduct was "grossly disorderly", support for the Second Defendant's decision can be derived from Erskine May (21st Ed’n) pp393-395. For example a failure to withdraw a disorderly or unparliamentary expression on the direction of the speaker may lead to the speaker to take action pursuant to Standing Order 42 of the United Kingdom Parliament which is in almost identical terms to Standing Order 30(3) and empowers the Speaker to deal with "grossly disorderly conduct" (ditto).]

88.It is further argued that the breach of the rules of natural justice (i.e. absence of notice to the Plaintiff) vitiate prima facie the exercise of such powers. Again I reject the argument. Procedural fairness is an obvious example of the "manner" of exercise of powers and thus excluded from judicial scrutiny.

89.It is further argued that the allegation that the Defendants acted in bad faith can be investigated. I reject that argument too. Once the mantle of Parliamentary privilege cloaks an action, its motivation is not a matter for the Courts: (see eg. Bradlaugh v Gossett; cit.sup. Prebble v Television New Zealand TV cit.sup; Pickin v British Railways Board [1974] AC 675.]

GROUND (2) : IMMUNITY

90.Article 37 of the States of Jersey Law, 1966 (which I repeat for convenience) provides, so far as material, that:

"No civil ... proceedings may be instituted against any member of the States for words spoken before ... the States … or by reason of any matter or thing brought by him therein by petition, bill, proposition or otherwise."

Article 37 therefore prevents civil proceedings being instituted against the Defendants as Members of the States for any words spoken before or written in a report to the States or by reason of any matter or thing brought by them in petition, bill, proposition or otherwise.

91.The concept of "civil proceedings" can include applications for judicial review: see eg. Ex Parte Ewing [1991] 1 WLR 388, a decision of the English Court of Appeal on section 42 of the Supreme Court Act, 1981, which governs (inter alia) civil proceedings orders obtained against vexatious litigants at p.394C-F per Nicholls LJ. This was applied by the Court of Appeal in Ex Parte Ewing (No.2) [1994] 1 WLR 153 at 1558E-1559F. In so doing the Court of Appeal expressed some doubt as to the correctness of the decision in Ex Parte Waldron [1986] QB 824 where it was held that Section 139 of the Mental Health Act, 1983, which confers immunity from civil proceedings for certain acts done under that Act, does not apply to judicial review proceedings, eg. see p.848B-H.

92.In my judgment, the expression "civil proceedings" must be construed in the context of the particular statute in which it appears. I hold that the wording of Article 37 should be construed broadly for the following reasons.

93.Firstly, in the context of Parliamentary procedure the general principle is that members of a legislative assembly should have absolute immunity from legal proceedings in connection with what they have done or said as part of the Parliamentary process. See eg. per Lord Browne-Wilkinson in Prebble v Television New Zealand Limited (supra) at p332D where he says:

"In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges ..."

94.Secondly, Jersey does not have the prerogative remedy of "certiorari" nor does it have any special procedure for actions for judicial review (itself an English expression) Lesquende Limited v The Planning and Environment Committee of the States of Jersey (5 January 1998) Jersey Unreported CofA (para.12]. Such actions, as indeed the present one, are instituted against the defendant as an ordinary action and the rules governing ordinary actions apply. It would therefore be difficult to distinguish between private (non-criminal) and public law proceedings in the Jersey context.

95.Thirdly, Article 37 does not refer (as did Section 139 of the Mental Health Act, 1983 in Waldron) to a person being "liable" which could be held to suggest only private actions. Article 37 is much wider in providing that "no civil ... proceedings may be instituted against any member ...".

96.Fourthly, Jersey authority supports the wider interpretation. See Re: Cooper (1992) JLR 215 at 217 lines 20-25. Corby v Le Main (1982) JJ 157 at 158:

"It may be said that Article (Article 37]is analogous in principle to Article 9 of the Bill of Rights 1688 which laid down that ‘freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament’."

97.In my view, it is plain that:

in concluding that the Plaintiffs imputations against Senator Jeune were in breach of Standing Order 24(6), each Defendant was acting in the course of his duties qua President of the States;

in directing the Plaintiff to substantiate the imputations, each Defendant was acting in the course of their duties qua President of the States;

in seeking to prevent the Plaintiffs continued grossly disorderly conduct in refusing to comply with a direction of the Chair of the States, each Defendant was acting in the course of their duties qua President of the States;

the first suspension was a result of a "matter or thing" brought by the Second Defendant before the States qua pursuant of the States; and

the second suspension was the result of "a matter or thing" brought about by resolution of the States (following the First Defendant's question to the States qua President of the States).

98.I conclude that in respect of each matter complained each of the Defendants were clearly acting within the scope of their duties as members (and officers). As such, those acts cannot form the basis of proceedings against such Defendants and therefore the Plaintiff's claim should be struck out under Article 37 as well.

99.It was accepted, however, by the Attorney-General that Article 37 does not protect the States. Even if, as a matter of general principle of interpretation, the singular includes the plural, the States can not speak or write to themselves. But the States are protected by reason of the matters referred to under Regulation of Internal Proceedings Ground (1) supra.

GROUND (3) : THE CONVENTION

100.In my judgment, the complaints made in the Order of Justice alleging breaches of the Convention are plainly outside the jurisdiction of this Court because the Convention is not part of Jersey law (see Order of Justice paras. 27, 32.04, 34, 39, 48.04, 48.05, 48.07 and para49).

101.In Snooks v AG (26th September, 1997) Jersey Unreported CofA observed "It is true that the Convention is not part of the domestic law of Jersey" (p.5) (cf. R v. Secretary of State for the Home Department, Ex Parte Brind [1991] 1 AC 696: where Lord Bridge said at p747G-H:

"It is accepted, of course, by the applicants that, like any other treaty obligations which have not been embodied in the law by statute, the Convention is not part of the domestic law, that the courts accordingly have no power to enforce Convention rights directly and that, if domestic legislation conflicts with the Convention, the courts must nevertheless enforce it."

102.In my judgment also, even if the Convention were part of the Jersey law, the Order of Justice discloses there has been no breach of the Convention. In particular:

Article 6 of the Convention (fair trial) would not apply to action taken by the States against a member by means of sanctions which are disciplinary in nature where such sanctions relate to the internal regulation and orderly functioning of the States. See Demicoli v Malta (1991) 14 EHRR 47 and at Speaker of the House of Assembly v Canadian Broadcasting Corporation et al (New Brunswick Broadcasting Co v Nova Scotia] [1993] 100 DLR (4th) 212 (relevant in this context because a decision on an analogous instrument ie. Canadian Charter of Fundamental Rights and Freedoms 1982.]

The alleged breaches of Article 9 (freedom of thought), Article 10 (freedom of expression) are vain. The Plaintiffs freedom of thought is not affected. His freedom of expression is

"subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the protection of the reputation or rights of others, ..." (Article 10(2)).

The rights of others, in my view, includes the rights of the legislature and its members.

There is no sustainable allegation of discrimination contrary to Article 14 (no discrimination).

Article 3 of the First Protocol which deals with free elections is not engaged.

GROUND (4): MAIL

103.The Plaintiff alleges in paragraph 49 of the Order of Justice that the Plaintiff's mail was withheld from him upon the express order of the First Defendant contrary to Articles 31 and 32 of the Post Office (Jersey) Law, 1969 and to Article 8 of the Convention.

104.As to argument based on the Convention, the conclusions under Ground [4] supra are relied on mutatis mutandis. See also Demicoli (cit.sup. paragraph 54].

105.The relevant parts of the Post Office (Jersey) Law, 1969 provide, so far as material, as follows:

"ARTICLE 31

RETENTION OF MAIL BAG OR POSTAL PACKET

Any person who fraudulently retains, or wilfully secretes or keeps, or details, or who, when required by a postal officer, neglects or refuses to deliver up -

(a) any postal packet which is in course of transmission by post and which ought to have been delivered to any other person; or

(b) any postal packet in course of transmission by post or any mail bag which has been found by him or by any other person;

shall be guilty of an offence ..."

ARTICLE 32

UNLAWFUL OPENING OF POSTAL PACKET

(1) Any person who unlawfully opens or causes to be opened any postal packet which ought to have been delivered to another person or does any act or thing whereby the due delivery of the packet to that other person is prevented or delayed shall be guilty of an offence …

(3) In this Article the expression "postal packet" means a postal packet which is in course of transmission by post or which has been delivered by post."

106.In my judgment, the allegations in paragraph 49 of the Order of Justice relate to "the regulation of internal proceedings", given the breadth of that concept, see e.g. In the Matter of Martin McGuinness (cit.sup.].

107.Moreover

it is plain that the relevant Articles of the Post Office (Jersey) Law, 1969 only apply to items of Royal Mail.

it is equally plain that there is no obligation under this or any other Law to forward items of Royal Mail once they have been received at the address they were posted to. In particular, Article 31 only applies to a postal packet in the course of "its transmission".

108.Only two items of Royal Mail were received at the Greffe and not forwarded during the relevant period. The failure to forward these items does not for the reasons set out in para.107 above amount to a breach of the 1969 Law or any other relevant Law of Jersey. In any event, any such breach of the 1969 Law would give rise to criminal proceedings and not found a civil cause of action against the First Defendant or any person.

109.Mr Sinel valiantly sought to suggest that it was a tort to refuse to forward mail sent to the Plaintiff 'care of the States'. He was, however, unable to identify any recognised right, protected by the law of tort, which would render the act or inaction of which he complained tortious (see definition of tort in Halsburys Laws: 4th ed., Vol.45, para1201).

110.On instructions, Mr Sinel creditably abandoned any ambition to fix the Defendants with the opening of the letter.

CONTENTIONS ON THE PRAYER OF THE ORDER OF JUSTICE

111.The Defendants also wish to contend that without prejudice to their general assault on the Order of Justice, paragraph 4, of the Prayer, in so far as it refers to paragraphs 25, 33 and 48.01 of the Order of Justice should be struck out on the grounds that it discloses no reasonable cause of action or is frivolous and vexatious or otherwise an abuse of the process of the Court.

112.Paragraph 25 refers to a meeting at which the First Defendant is alleged to have said certain things to the Plaintiff. In my judgment, no legal consequences (direct or indirect) followed from those alleged comments as such. They were merely part of the picture which led to the first and second suspensions. (Relief is, of course, sought by the Plaintiff in respect of those suspensions.] A mere conversation cannot give rise to judicial review: cf eg. R v Secretary of State for Employment ex p. Equal Opportunities Commission [1995] AC 1.

113.Paragraph 33 refers to the letters dated 25 July 1996, and 30 August 1996, which the First Defendant sent to the Plaintiff. The first asked for evidence in support of the allegations against Senator Jeune and the second gave notice of the proposition which the First Defendant intended to put to the States in the event of the Plaintiff failing to withdraw the remarks. In my judgment, the sending of the letters was not an action which of itself has legal consequences and for the same reasons as in para.[112] above, it cannot therefore be subject to judicial review.

114.Paragraph 48.01 refers to failure on the part of the First Defendant to withdraw an allegedly false statement which he had made on 3 September 1996, during the course of the States sitting in which the censure motion was passed. In my judgment such failure by itself had no legal effect, direct or indirect and did not alter legal rights. It is accordingly not, for the reasons in para[112] above, in itself a subject for judicial review.

115.In all the circumstances, these parts of the Plaintiffs Order of Justice are plainly bad and should be struck out for these reasons too.

116.Accordingly, I conclude that the Defendants application should succeed. The Order of Justice should be struck out in its entirety, and the action dismissed. I am grateful to all lawyers involved for their considerable assistance.

 

AUTHORITIES

Royal Court Rules 1992, as amended

States of Jersey Law, 1966

Standing Orders of the States of Jersey

Post Office (Jersey) Law, 1969: Articles 31, 32

RSC (1997 Ed’n): paras. 18/19/1-20

Le Quesne: "Constitutional History of Jersey" (1856): pp.18-19; 98-103 (Origin of the States)

Bois: "A Constitutional; History of Jersey" (1970): paras. 4/10-12; 6/1-3 (Origin of the States)

Report of the Committee of the Privy Council on Proposed Reforms in the Channel Islands: pp6-7. (Home Office Command Paper 7074: March 1947.)

Keilley-v-Carson (1842) IV Moore PC 63

Doyle-v-Falconer IV Moore NS 203 1 328

Barton-v-Taylor (1886) 11 AC 197

Speaker of the House of Assembly-v-Canadian Broadcasting Corporation et al (New Brunswick Broadcasting Co.-v-Nova Scotia] (1993) 100 DLR (4th) 212

Bradlaugh-v-Gossett (1884) 12 QBD 271

Ex parte Nicolle et autres (1827) 18 août O.C. 5: p334

Prebble-v-Television New Zealand, Ltd. (1995) 1 AC 321

R-v-Parliamentary Commissioner for Standards ex parte Al Fayed (24 April 1997) Unreported Judgment of the High Court of England.

R-v-Parliamentary Commissioner for Standards ex parte Al Fayed (1998) 1 All ER 93.

Demicoli-v-Malta [1991] 14 EHRR 47

R-v-Secretary of State for the Home Department ex parte Brind (1991) 1 AC 696

The European Convention on Human Rights: Articles 1-14

Williams and Humbert Ltd-v-W & H Trade Marks (Jersey) Ltd [1986] 1 AC 368

X (Minors)-v-Bedfordshire County Council [1995] 2 AC 633

Council of Civil Service Unions-v-Minister for the Civil Service [1985 1 AC 374

R-v-Secretary of State for Employment, ex parte Equal Opportunities Commission [1995] AC 1

Erskine May’s Treatise on The Law, Privileges, Proceedings, and Usage of Parliament (21st Ed’n, 1989): pp393-6; 991-992

Ex parte Godfray (1833) 20 Mai O.C. 5, p262

Snooks-v-A.G. (26 September 1997) Jersey Unreported

Winfield & Jolowicz on Tort (13th Ed’n, W.V.H. Rogers): Chapter 1: pp1-15

Finance & Economics Committee-v-Bastion Offshore (9 October 1998) Jersey Unreported CofA

Cooper-v-Resch (1987-88) JLR 428

Stephens-v-Stephens (1989) JLR 284

Hubbard & Sons-v-Wilkinson (1899) QB 86

Attorney General of Duchy of Lancaster-v-LNWR Co (1892) Ch.D 274

Mauger-v-Batty (9 October 1995) Jersey Unreported

R-v-HMs Treasury, ex parte Smedley (1983) QB 657

Burdett-v-Abbott (1811) 14 East 1

Stockdale-v-Hansard (1839) 9 Ad & E pp147-8

Re an application of M. McGuiness (23 October 1997) Unreported Judgment of the Northern Ireland High Court

Holdsworth: "A History of English Law": Vol X: p539

Bradley: Constitutional and Administrative Law (11th Ed’n): p231

Ansons Law and Custom of the Constitution (5th Ed’n): Vol.1, p196

4 Halsbury 34: para. 1006

Maha-v-Kipo (Papua New Guinea) [1996] 2 LRC 328

Siale-v-Fotofili (Tonga) [1987] LRC 240

Sanft-v-Fotofili [1987] LRC (Tonga) (Const) 247

Bennion: Statutory Interpretation (1997) (3rd Ed’n): pp.465-6

Pickin-v-British Railways Board [1974] AC 675

Ex parte Ewing [1991] 1 WLR 388

Ex parte Ewing No.2 [1994] 1 WLR 153

Ex parte Waldron [1986] QB 824

Lesquende, Ltd-v- Planning and Environment Committee of States of Jersey (5 January 1998) Jersey Unreported. CofA

Re Cooper (1992) JLR 215

Corby-v-Le Main (1982) JJ 157


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