TNAG-1440-FCO40-1924-Constitutional-development-in-Hong-Kong-1986 — Page 160

section 6:

り

"The privilege has been defined both positively and negatively; the positive aspect of the privilege is expressed in the claim of the Commons to freedom from arrest in all civil actions or suits during the time of Parliament and during the period when a Member was journeying to or returning from Parliament. In their petition of 1404 the Commons claimed that, according to the custom of the realm, they were privileged from arrest for debt, trespass or contract of any kind (3 Rot Parl, 541)."

It prohibits service of process within the precincts of the Council Chamber when the Council is sitting, and exempts members from having to attend civil proceedings as a witness on a sitting day and from service as a juror. Erskine May (pp. 107, 108)

states

"The service of the subpoena to attend as a witness has been treated as a breach of privilege by the House and the parties responsible for service have on occasions been committed to the Serjeant for contempt. It is doubtful, however, whether under present usage the actual service would as a general rule be regarded as a breach of privilege, unless effected within the precincts of the House, sedente domo, on the general principle of the service of civil process. But the privilege of exemption of a Member from attending as a witness has been asserted by the House upon the same principle as other personal privileges, viz., the paramount right of Parliament to the attendance and service of its Members; and in certain cases on the matter being raised by the Member concerned the Speaker has communicated with the Court drawing attention to this privilege and asking that the Member should be excused. On other occasions the Commons have granted leave to their Members on the ground that their attendance as witnesses was required and have admitted the same excuse for defaulters at calls of the House.

As the withdrawal of a witness might affect the course of justice, the privilege has properly been waived on occasions (see above);