Introduction to Parliamentary privilege.

• Author: Moore, Terry

Parliamentary privilege refers to certain immunities from the law provided to Members of Parliament in order for them to do their legislative work. It also protects the right of Parliament to perform its constitutional functions. This article outlines the extent and limitations of parliamentary privilege and gives some examples of privilege and the process for dealing with such questions.

Parliamentary privilege is a shorthand term. The term "privilege" usually conveys the idea of a "privileged class", with a person or group granted special rights or immunities beyond the common advantages of others. This is not, however, the meaning of privilege in the parliamentary context. Parliamentary privilege refers to the rights and immunities that are deemed necessary for the Senate and the House of Commons, as institutions, and Senators and Members representing constituencies, to fulfil their functions. It also refers to the powers possessed by each House to protect itself, its Members, and its procedures from undue interference, so that it can effectively carry out its principal functions which are to inquire, to debate, and to legislate. In that sense, parliamentary privilege can be viewed as special advantages which Parliament and its Members need to function unimpeded.

These rights and immunities emerged out of centuries of struggle between King and Commons in England culminating in the Bill of Rights of 1689. Freedom of speech, the most important right enjoyed by Members of the British House of Commons, was contained in Article 9 of the Bill. The passage of the Act was a great victory for democracy not only in Britain but also in Canada as we are inheritors of the Bill of Rights. In 1704 the British Parliament decided they would not give themselves any more privileges and basically the rights and immunities enjoyed by the two Houses of Parliament and parliamentarians today are those of 1704 with one important exception.

This exception grew out of the famous case of Stockdale versus Hansard in 1836, which fixed parliamentary privilege as part of the English Common Law. Stockdale sued Hansard, the printer of the British House of Commons, for libel over a report printed by Hansard by order of the House. The document contained defamatory remarks about Stockdale. Stockdale eventually won his case thereby forcing the British Parliament to pass the Parliamentary Papers Act of 1840 allowing both Houses of Parliament to publish libellous material.

Rights and Immunities of the Houses and of Individual Members and Senators

Let me turn now to the different types of rights and immunities. These can be divided into two categories: those extended to Members and Senators individually, and those extended to each House collectively. The list of those enjoyed by parliamentarians individually is short and very specific. The most important of the individual liberties is freedom of speech in the Chamber and other proceedings of Parliament. This is the freedom of a Senator or a Member to say what he or she wants to, it is not freedom to speak whenever one wishes. Through their Standing Orders and Rules, the Houses control who may speak, when, and for how long, and to a certain degree what may be said. For example, the Houses prohibit un-parliamentary language, require that members be addressed in particular ways, and encourage members to refrain from criticizing non-members.

A second individual right where there is often some confusion relates to freedom from arrest. There was originally some protection against arrest for a civil action but that privilege disappeared centuries ago. There is absolutely no immunity from arrest for criminal matters. If a parliamentarian commits a criminal act he or she is liable to arrest. The only limitations are that the police must advise the Speaker that they have a warrant for the arrest of a member and seek his or her permission to enter the premises. In Westminster there have been cases where members were arrested in the Chamber (not while the House was in session). Parliament is not a sanctuary or a place where members can avoid the law.

A third right that applies to individual members is the exemption from jury duty. The courts have a huge list of people on whom to draw for jury duty. There is no need to call on a Member of Parliament or Senator as these individuals have public duties to perform, which take precedence over the requirement to serve on a jury.

Similarly Members and Senators are exempt from attending court as witnesses. That does not mean that parliamentarians do not appear in court. They may do it voluntarily if their testimony is absolutely required. That is the total sum of rights and immunities of Members of Parliament.

Collectively, each House has a number of rights and immunities. The first is the right to discipline, that is, the right to punish (by incarceration) persons guilty of breaches of privilege or contempts, and, in the House of Commons, the power to expel Members guilty of disgraceful conduct. Each House can censure its members or reprimand members of the public. Each House can imprison, although that has not been done in a long time. The House of Commons can expel its Members and can suspend it Members for a day or longer.

The second right of each House is the regulation and control of its internal affairs by making rules for itself and controlling the parliamentary precincts including who is allowed onto the precinct and who is not.

Each House also has the authority to maintain the attendance and service of its members.

Each House has the right to initiate inquiries and call witnesses and demand documents. Each has the right to administer oaths to witnesses and to publish papers containing defamatory material. That is the sum total of the rights and immunities of the House collectively.

Contempt

Any disregard of or attack on the rights, powers and immunities of one of the Houses and its members, either by an outside person or body, or by a member of that House, is referred to as a "breach of privilege" and...