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
all powers necessary to carry out their functions;
(including) powers to regulate and enforce the rules of debate;
self-defensive powers to enforce their rules;
(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 (4 th ) 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 (21 st 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 (13 th 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 (11 th Ed’n): p231
Ansons Law and Custom of the Constitution (5 th Ed’n): Vol.1, p196
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) (3 rd 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