Parliamentary privilege
Encyclopedia
Parliamentary privilege is a legal immunity enjoyed by members of certain legislature
s, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitution
s are based on the Westminster system
. 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 during ordinary parliamentary proceedings without fear of legal action on the grounds of slander, contempt of court
or breaching the Official Secrets Act
. It also means that members of Parliament
cannot be arrested on civil matters for statements made or acts undertaken as an MP within the grounds of the Palace of Westminster
, on the condition that such statements or acts occur as part of a proceeding in Parliament—for example, as a question to the Prime Minister in the House of Commons. This allows Members to raise questions or debate issues which could slander an individual, interfere with an ongoing court case or threaten to reveal state secrets, such as in the Zircon affair
or several cases involving the Labour MP Tam Dalyell
.
There is no immunity from arrest on criminal grounds, nor does the civil privilege entirely extend to the devolved administrations in Scotland or Wales. 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, or implying that another member is lying. (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
. In the United States
, the Speech or Debate Clause
in Article One of the United States Constitution
provides for parliamentary privilege based on Westminster, and many state constitutions provide similar clauses for their state legislatures.
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. A member could, even more seriously, undermine national security and/or the safety of an ongoing military or covert operation or undermine relations with a foreign state by releasing information that the Government does not wish to be in the public domain.
at the beginning of each new Parliament. The privileges are only codified in Erskine May's Parliamentary Practice and the House itself is the only judge of its own privileges. Most of those specifically claimed are practically obsolete, but others remain very real:
Privileges not specifically mentioned:
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.
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:
Collective parliamentary privileges include:
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:
Management of employees
This privilege was considered in the South Australian Industrial Relations Court in the case of Kosmas v Legislative Council (SA) and Others [2007] SAIRC 86. The Court found that employment statutes apply to the Parliament and therefore employees can seek judicial relief for matters such as unfair dismissal or workers compensation.
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
s, in which legislators are granted protection against civil or criminal liability for actions done or statements made related to one's duties as a legislator. It is common in countries whose constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
s are based on the Westminster system
Westminster System
The Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
. A similar mechanism is known as parliamentary immunity
Parliamentary immunity
Parliamentary immunity, also known as legislative immunity, is a system in which members of the parliament or legislature are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the parliament itself...
.
In the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, it allows members of the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
and House of Commons to speak freely during ordinary parliamentary proceedings without fear of legal action on the grounds of slander, contempt of court
Contempt of court
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority...
or breaching the Official Secrets Act
Official Secrets Act
The Official Secrets Act is a stock short title used in the United Kingdom, Ireland, India and Malaysia and formerly in New Zealand for legislation that provides for the protection of state secrets and official information, mainly related to national security.-United Kingdom:*The Official Secrets...
. It also means that members of Parliament
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
cannot be arrested on civil matters for statements made or acts undertaken as an MP within the grounds of the Palace of Westminster
Palace of Westminster
The Palace of Westminster, also known as the Houses of Parliament or Westminster Palace, is the meeting place of the two houses of the Parliament of the United Kingdom—the House of Lords and the House of Commons...
, on the condition that such statements or acts occur as part of a proceeding in Parliament—for example, as a question to the Prime Minister in the House of Commons. This allows Members to raise questions or debate issues which could slander an individual, interfere with an ongoing court case or threaten to reveal state secrets, such as in the Zircon affair
Zircon affair
The Zircon affair was an incident in 1986 that raised many important issues in the British constitution.During the winter of 1985–1986, journalist Duncan Campbell was commissioned by the BBC to make six half-hour television documentaries under the title Secret Society...
or several cases involving the Labour MP Tam Dalyell
Tam Dalyell
Sir Thomas Dalyell Loch, 11th Baronet , known as Tam Dalyell, is a British Labour Party politician, who was a Member of Parliament in the House of Commons from 1962 to 2005, first for West Lothian and then for Linlithgow.-Early life:...
.
There is no immunity from arrest on criminal grounds, nor does the civil privilege entirely extend to the devolved administrations in Scotland or Wales. 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, or implying that another member is lying. (See unparliamentary language
Unparliamentary language
In a Westminster system, unparliamentary language is words or phrases that are deemed to be inappropriate for use in the House whilst it is in session. This includes, but is not limited to the suggestion of dishonesty or profanity. The most prohibited case is any suggestion that another member is...
.)
The rights and privileges of members are overseen by the powerful Committee on Standards and Privileges
Committee on Standards and Privileges
The Standards and Privileges Committee of the United Kingdom House of Commons was established in 1995 to replace the earlier Committee of 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
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
and Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the Speech or Debate Clause
Speech or Debate Clause
The Speech or Debate Clause is a clause in the United States Constitution . The clause states that members of both Houses of Congress...
in Article One of the United States Constitution
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
provides for parliamentary privilege based on Westminster, and many state constitutions provide similar clauses for their state legislatures.
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. A member could, even more seriously, undermine national security and/or the safety of an ongoing military or covert operation or undermine relations with a foreign state by releasing information that the Government does not wish to be in the public domain.
Privileges of the UK House of Commons
The ancient and undoubted rights and privileges of the Commons are claimed by the SpeakerSpeaker of the British House of Commons
The Speaker of the House of Commons is the presiding officer of the House of Commons, the United Kingdom's lower chamber of Parliament. The current Speaker is John Bercow, who was elected on 22 June 2009, following the resignation of Michael Martin...
at the beginning of each new Parliament. The privileges are only codified in Erskine May's Parliamentary Practice and the House itself is the only judge of its own privileges. Most of those specifically claimed are practically obsolete, but others remain very real:
- Freedom of speechFreedom of speechFreedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
; (members speaking in the House are not liable for defamation) - Freedom from arrestArrestAn arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
in civil matters (practically obsolete); - Access of the Commons to the CrownThe CrownThe Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
(via the Speaker); and - That the most favourable construction should be placed upon the deliberations of the Commons.
Privileges not specifically mentioned:
- Right of the House to regulate its own composition; (although election petitions are now determined by the ordinary Courts)
- Right of the House to regulate its own internal proceedings, both as to matters and procedures;
- Right to punish members and “strangersStrangers (Parliament of the United Kingdom)The term stranger is the traditional way of referring to someone physically present in the Palace of Westminster who is neither a member of parliament nor a parliamentary official...
” for breach of privilege and contempt; - Right of freedom from interference (although members are no longer immune from all civil actions)
Parliamentary papers
There is an absolute common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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
Parliamentary Papers Act 1840
The Parliamentary Papers Act 1840 is an Act of the Parliament of the United Kingdom. The Act was passed in response to the case of Stockdale v...
. The Act also extends qualified privilege
Qualified privilege
The defense of qualified privilege permits persons in positions of authority or trust to make statements or relay or report statements that would be considered slander and libel if made by anyone else...
to extracts.
Select committees
In addition to applying to members speech within the chamber, parliamentary privilege also applies to select committees. Written and oral evidence given to, and published by these committees is also subject to the same absolute privilege as parliamentary papers. This means that any evidence given by a witness to a select committee may not be used against them or any other person in a court of law, whether for civil or criminal proceedings. This privilege only applies, however, if the committee has formally accepted it as evidence and does not apply to materials published before they were given to the committee.Parliamentary privilege in Canada
In Canada, the SenateCanadian Senate
The Senate of Canada is a component of the Parliament of Canada, along with the House of Commons, and the monarch . The Senate consists of 105 members appointed by the governor general on the advice of the prime minister...
and House of Commons
Canadian House of Commons
The House of Commons of Canada is a component of the Parliament of Canada, along with the Sovereign and the Senate. The House of Commons is a democratically elected body, consisting of 308 members known as Members of Parliament...
and provincial legislative assemblies
Legislative Assembly
Legislative Assembly is the name given in some countries to either a legislature, or to one of its branch.The name is used by a number of member-states of the Commonwealth of Nations, as well as a number of Latin American countries....
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)
New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly)
New Brunswick Broadcasting Co. v. Nova Scotia is a leading Supreme Court of Canada decision wherein the court has ruled that parliamentary privilege is a part of the unwritten convention in the Constitution of Canada...
. 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.
- 2005: Canada (House of Commons) v. Vaid, where the Supreme Court of Canada analyzed the scope of parliamentary privilege and the role of courts in deciding its existence.
Leading cases
- Sir Thomas HaxeyHaxey's caseHaxey's case Rotuli Parliamentorum 434, is a leading case in English law that established the right to free speech within Parliament. In January 1397, Sir Thomas Haxey presented a petition to Parliament, criticising the costs of King Richard II of England's household...
– free speech [1397] - Richard StrodeStrode's caseStrode's Case 3 Howell's State Trials 294 is one of the earliest and most important English cases dealing with parliamentary privilege.- Facts :...
(Privilege of Parliament Act) [1512] - George FerrersGeorge FerrersGeorge Ferrers was a courtier and writer. In an incident which arose in 1542 while he was a Member of Parliament for Plymouth in the Parliament of England, he played a key role in the development of parliamentary privilege.-Life:...
– debt default [1542] - Stockdale v. HansardStockdale v. HansardStockdale v Hansard 9 Ad & El 1 was a case in which the Parliament of the United Kingdom unsuccessfully challenged the common law of parliamentary privilege, leading to legislative reform.-Facts:...
– defamation by Hansard [1839] - Charles BradlaughCharles BradlaughCharles Bradlaugh was a political activist and one of the most famous English atheists of the 19th century. He founded the National Secular Society in 1866.-Early life:...
– Oath of Allegiance [1880] - Duncan Sandys – free speech [1938]
- Archibald Maule RamsayArchibald Maule RamsayCaptain Archibald Henry Maule Ramsay was a British Army officer who later went into politics as a Scottish Unionist Member of Parliament . From the late 1930s he developed increasingly strident antisemitic views...
– treason [1940] - Garry AllighanGarry AllighanGarry Allighan was a British journalist and Labour Party Member of Parliament . His birth name was Ernest Alligan...
– defamation [1947] - Duncan Campbell (the Zircon affairZircon affairThe Zircon affair was an incident in 1986 that raised many important issues in the British constitution.During the winter of 1985–1986, journalist Duncan Campbell was commissioned by the BBC to make six half-hour television documentaries under the title Secret Society...
) – free speech [1986] - Neil HamiltonNeil Hamilton (politician)Mostyn Neil Hamilton is a former British barrister, teacher and Conservative MP. Since losing his seat in 1997 and leaving politics, Hamilton and his wife Christine have become media celebrities...
– Cash for Questions [1994] - Bill HeffernanBill HeffernanWilliam Daniel Heffernan, more commonly known as Bill Heffernan, , Australian politician, has been a Liberal Party member of the Senate, representing the state of New South Wales, since September 1996.-Early life:...
– free speech [2002] - Ryan GiggsRyan GiggsRyan Joseph Giggs OBE is a Welsh professional footballer who plays for Manchester United. Giggs made his first appearance for the club during the 1990–91 season and has been a regular player since the 1991–92 season...
- affair cover-up - Executive privilegeExecutive privilegeIn the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government...
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?,' 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, 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)
Management of employees
This privilege was considered in the South Australian Industrial Relations Court in the case of Kosmas v Legislative Council (SA) and Others [2007] SAIRC 86. The Court found that employment statutes apply to the Parliament and therefore employees can seek judicial relief for matters such as unfair dismissal or workers compensation.