Parliamentary privilege


Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, beginning at the end of the middle ages with the English Parliament and spreading throughout its colonies in the following centuries, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties. It is common in countries whose constitutions are based on the Westminster system.

Origins

In the United Kingdom, parliamentary privilege 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 mentioned by 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.
The rights and privileges of members are overseen by the powerful Commons Select 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, New Zealand, and Australia.
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, whether or not 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 sensitive military or diplomatic information.

By country

Australia

Like in other countries, Parliamentary privilege in Australia is granted to those who participate in “proceedings in Parliament” from outside interference or suit.
Freedom of speech is considered one of the most important privileges.
Article 9 of the Bill of Rights 1689 states:
"That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament."
Freedom from prosecution is incorporated in Australian law by section 49 of the Constitution and by section 16 of the Parliamentary Privileges Act 1987.
Members of parliament taking part in proceedings in parliament enjoy absolute privilege. They may not be prosecuted if they make defamatory statements of an opponent during the heat of debate, nor can they be prosecuted if they make a statement that would be considered a criminal offence outside of the parliamentary chamber.
The privilege of freedom of speech is also granted to those taking part in ‘proceedings in parliament’ such as witnesses who give evidence to properly constituted parliamentary committees.

Canada

In Canada, the 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.
Initially, 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. However, in 1875, this rule was amended by the Parliament of Canada Act, 1875, to specify that it cannot exceed the powers, privileges and immunities of the parliament of the United Kingdom at the time of the passing of Canadian legislation defining those powers, privileges and immunities. This amendment was necessary because the British parliament acquired the right to examine witnesses on oath only in 1871, and the Canadian parliament would not have enjoyed this right if its powers were limited to those extant in 1867.
Individual parliamentary privileges include:
  1. Freedom of speech
  2. Freedom from arrest in civil action
  3. Exemption from jury duty
  4. Exemption from appearing as a witness
  5. Freedom from obstruction, interference, intimidation and molestation
Collective parliamentary privileges include:
  1. Power to discipline
  2. Regulation of the House's internal affairs
  3. Management of employees
  4. Authority to maintain the attendance and service of Members
  5. Right to institute inquiries and to call witnesses and demand papers
  6. Right to administer oaths to witnesses
  7. 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 . In that case, the Court made these observations about parliamentary privilege:
Recent cases of parliamentary privilege in Canada adjudicated by the courts include:
  1. 1993: New Brunswick Broadcasting Co. v. Nova Scotia , where the courts held parliament could restrict who could enter the parliamentary precincts.
  2. 1999: ', where the courts held parliament could restrict who could enter the parliamentary precincts.
  3. 2001: ', where the courts held the actions of the provincial legislative assembly were immune from review by other government bodies including the Human Rights Commission.
  4. 2005: Canada v. Vaid, where the Supreme Court of Canada analyzed the scope of parliamentary privilege and the role of courts in deciding its existence.
  5. 2018: , where a majority of the Supreme Court of Canada determined that parliamentary privilege over the management of employees did not extend to immunizing the Quebec legislature from the labour relations scheme governing its security guards.

    India

The government of India, based largely on the Westminster model, grants limited immunity from legal proceedings to members of Parliament and State Legislature under Articles 105 and 194 respectively, of the Indian Constitution. Article 105 reads as follows:
No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

Ireland

In Ireland, as in other countries, members of the Oireachtas, Irish parliament, are granted privileges to perform their constitutional functions. These privileges are enshrined in Article 15 of the Constitution.
Freedom of speech is one of the most important and fundamental privileges enjoyed by Irish parliamentarians. Article 15.12 of the Constitution provides that — “All official reports and publications of the Oireachtas or of either House thereof and utterances made in either House wherever published shall be privileged”.
However, an Appendix to Article 15, Standing Order 59, places limits on freedom of speech with regards to potential defamation. It states:
"A member shall not make an utterance in the nature of being defamatory and where a member makes such an utterance it may be prima facie an abuse of privilege, subject to the provisions of this Standing Order."
The standing order further states that any utterance that is known to be defamatory must immediately be withdrawn. If the member of parliament does not withdraw the statement it is viewed as an act of disorder and may be referred to the Committee on Procedure and Privileges for review.

New Zealand

The New Zealand Parliament accords its members parliamentary privilege like its British counterpart, preventing members for being sued or prosecuted for anything that was said on the floor while in session.

Singapore

In Singapore, parliamentary privileges are statutorily accorded under the Parliament Act 1962. The Parliament of Singapore accords parliamentary privilege to its members, preventing them from being sued or prosecuted for anything said on the floor while parliament is in session, or during any parliamentary committee meetings.
However, section 20 of the Parliament Act 1962 allows the Parliament of Singapore to imprison, fine, reprimand, or suspend from Parliament any member found to have engaged in "abuse of privilege." This has provided a powerful tool for the ruling People's Action Party to suppress and punish criticism in or about Parliament by opposition members.