Privilege of Peerage - Freedom From Arrest

Freedom From Arrest

The privilege of freedom from arrest applies to members of both Houses of Parliament, because of the principle that they must, whenever possible, be available to give advice to the Sovereign. Several other nations have copied this provision; the Constitution of the United States, for example, provides, "The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses." Theoretically, even when Parliament is not sitting, peers enjoy the privilege because they continue to serve the Sovereign as counsellors. However, peers are free from arrest in civil cases only; arrests in criminal matters are not covered by the privilege. Until 1770, a peer's domestic servants were also covered by the privilege of freedom from arrest in civil matters.

Most often the privilege was applied in cases of imprisonment in debtors' prisons. In 1870, both imprisonment for debt and the privilege in relation to freedom from arrest for bankruptcy were abolished, and as a result the freedom became extremely limited in practical application. Now, civil proceedings involve arrests only when an individual disobeys a court order. Since 1945, the privilege of freedom from arrest in civil cases has arisen in only two cases: Stourton v Stourton (1963) and Peden International Transport, Moss Bros, The Rowe Veterinary Group and Barclays Bank plc v Lord Mancroft (1989). In the latter most recent case, the trial judge considered the privilege obsolete and inapplicable, and said in proceedings, "the privilege did not apply—indeed ... it is unthinkable in modern times that, in circumstances such as they are in this case, it should".