Parliamentary privilege, also known as absolute privilege, is a legal mechanism employed within the legislative
bodies of countries whose constitutions are based on the Westminster system. In other legislatures, a similar mechanism is known as parliamentary immunity.
In the United Kingdom, it allows members of the House
of Lords and House of Commons to speak freely before those houses
without fear of legal action on the grounds of slander. It also means while a member is
within the grounds of the Palace of Westminster he/she cannot be arrested on civil
matters; there is no immunity from arrest on criminal grounds. A consequence of the privilege of free speech is that legislators
in Westminster systems are forbidden by conventions of their House from uttering certain words, such as "liar" (see
unparliamentary language).
The rights and privileges of members are overseen by the powerful Committee on Standards and Privileges. If a member of the house is in breach of
the rules then he/she can be suspended or even expelled from the House. Such past breaches have included giving false evidence
before a committee of the House and the taking of bribes by members.
Similar rights apply in other Westminster system countries, such as Canada and
Australia. Further, though the legislature of the
United States was not modelled on Westminster, the US system of privilege is based on Westminster practice.
Parliamentary privilege is controversial because of its potential for abuse; a member can use privilege to make damaging
allegations that would ordinarily be discouraged by defamation laws, without first determining whether those allegations have a
strong foundation.
Privileges of the UK House of Commons
The ancient and undoubted rights and privileges of the Commons are claimed by the Speaker at the beginning of each new Parliament:
- Freedom of speech;
- Freedom from arrest (except in criminal matters);
- Access of the Commons to the Crown (via the Speaker); and
- That the most favourable construction should be placed upon the deliberations of the Commons.
Privileges not so claimed:
- Right of the House to regulate its own composition;
- Right of the House to regulate its own internal proceedings (to take exclusive cognisance of matters within the house);
- Right to punish members and “strangers” for breach of privilege and contempt;
- Right of impeachment; and
- Right to control finance and to initiate financial legislation (as against the Lords).
Parliamentary papers
There is an absolute common law privilege for papers circulated among MPs by order of the
House (Lake v. King (1667) 1 Saunders 131). This is extended to all papers published under the House's authority, and to
correct copies by the Parliamentary Papers Act 1840. The Act also extends
qualified privilege to extracts.
Parliamentary privilege in Canada
In Canada, the federal Senate and House
of Commons and provincial legislative assemblies follow the definition of
parliamentary privilege offered by the British parliamentary authority, Erskine May's Treatise on The Law, Privileges,
Proceedings and Usage of Parliament, which defines parliamentary privilege as "the sum of the peculiar rights enjoyed by each
House collectively as a constituent part of the High Court of Parliament, and by Members of each house individually, without
which they could not discharge their function... the privileges of Parliament are rights which are absolutely necessary for the
due execution of its powers. They are enjoyed by individual Members, because the House cannot perform its functions without
unimpeded use of the service of its Members, and by each House for the protection of its members and the vindication of its own
authority and dignity." Parliamentary privilege can therefore be claimed by Members individually or by the House
collectively.
The rule for when parliamentary privilege applies is that it cannot exceed the powers, privileges and immunities of the
imperial parliament as it stood in 1867, when the first constitution was written.
Individual parliamentary privileges include:
- Freedom of speech
- Freedom from arrest in civil action
- Exemption from jury duty
- Exemption from appearing as a witness
- Freedom from obstruction, interference, intimidation and molestation
Collective parliamentary privileges include:
- Power to discipline
- Regulation of the House’s internal affairs
- Management of Employees
- Authority to maintain the attendance and service of Members
- Right to institute inquiries and to call witnesses and demand papers
- Right to administer oaths to witnesses
- Right to publish papers containing defamatory material
The Supreme Court of Canada has previously dealt with the question of parliamentary privilege in New Brunswick Broadcasting Co. v. Nova Scotia
(Speaker of the House of Assembly). In that case, the Court made these observations about parliamentary privilege:
“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.
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 to their proper functioning. These privileges were
governed by the principle of necessity rather than by historical incident, and thus may not exactly replicate the powers and
privileges found in the United Kingdom.
Recent cases of parliamentary privilege in Canada adjudicated by the courts include:
- 1993: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), where the courts held parliament
could restrict who could enter the parliamentary precincts.
- 1999: Zundel v. Boudria, et al., where the courts held parliament could restrict who could enter the parliamentary
precincts.
- 2001: Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission), where the courts held the actions
of the provincial legislative assembly were immune from review by other government bodies including the Human Rights
Commission.
Leading cases
See also
External links
- British Council India's LEGAL eNEWS Theme article comparing British and Indian perspectives
- Australia's Parliamentary Privileges Act 1987
- Josh Chafetz, Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American
Constitutions (Yale Univ. Press 2007) (ISBN 0-300-11325-0)
- Simon Wigley, 'Parliamentary Immunity: Protecting Democracy or Protecting Corruption?,' Journal of
Political Philosophy, Vol. 11, No.2, pp. 23-40.
- Erskine May, Parliamentary Practice: The Law, Privileges, Proceedings and Usage of Parliament, W.R. Mackay et al.
(eds) (London: Butterworths, 2004) (ISBN 0-406-97094-7)
- UK Parliament, Reports of the Joint Committee on Parliamentary Privilege in Session HL 43-I/ HC 214-I. (London: The
Stationary Office Limited, 1999).
- Marc Van der Hulst, The Parliamentary Mandate. (Geneva: Inter-Parliamentary Union, 2001) (ISBN 92-9142-056-5)
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