Parliamentary Privilege Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Parliamentary privileges refer to a collection of rights and immunities held by legislatures and their members, meant to allow a legislature to function effectively without outside interference. Although these privileges have ancient origins, they remain controversial in their scope and application. At their heart, they pit the legislature against the executive and the judiciary, declaring certain areas of activity in which legislators claim full protection from interference from the other branches of government.

Some parliamentary privileges create immunities that shield against laws that would otherwise impose penalties for wrongdoing and responsibilities in the treatment of others; as such, these immunities run the risk of protecting corruption or oppression instead of protecting legislative independence. As well, many legislatures claim the power to punish those held in contempt of the legislature, including fines and imprisonment. The most controversial aspect of modern parliamentary privileges is whether they must yield to the courts’ enforcement of the constitutional rights of citizens.

Origins Of Parliamentary Privilege

The origins of parliamentary privilege are usually traced from British history, with claims of immunity from arrest dating from at least the mid-fourteenth century. Some of the privileges, particularly punishing for contempt committed against either house, arise from the British parliament’s historical origins as a court. The High Court of Parliament enjoys the powers of a superior court to control proceedings, compel attendance of witnesses, the production of records, and punish contempt. While these powers may have once had judicial origins, they are more practically thought of in the modern era as powers necessary for parliament to function effectively in its legislative capacity.

Freedom of speech is considered the bedrock for meaningful parliamentary debates in a democracy. For legislators to speak freely, they must be protected from defamation suits that might otherwise have a devastating chilling effect on forceful debates and questions. This privilege was embodied several centuries ago in the 1688 British Bill of Rights. Section 9 proclaims “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.” The legislatures in former colonies of Britain enjoy many of the same range of privileges as the British parliament. While still colonial legislatures, their privileges were considered to be only a subset of those of the Westminster system, although a few legislatures, such as Jamaica’s, successfully challenged this distinction as early as the eighteenth century. Modern legislatures in former British colonies now enjoy a wide range of privileges. Some countries, such as Canada and Australia, have entrenched privileges equivalent to the British parliament’s into their constitutions. A number have enumerated specific privileges, such as the freedom of speech, but not all the British equivalents into either constitutional or statutory law; for example, India protects free speech in parliament in Article 105 of their constitution but leaves other matters of privilege to statutory law. Free speech and a limited immunity from arrest are protected for members of both houses of the U.S. Congress by the debate clause of Article I of the U.S. Constitution, which provides that members of Congress “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, and in going to and from the same, and for any Speech or Debate in either House, they shall not be questioned in any other Place.” Several jurisdictions, such as California, however, still rely on the common law inherited during the colonial era as a base for some privileges and immunities.

Immunities

A separate tradition of parliamentary privileges grew through the experience of the French Republic and spread to a number of other countries. A big difference between the French and British models of parliamentary privileges relates to the scope of immunities enjoyed by legislators. The French developed a concept of inviolability when the National Assembly declared in 1789 that “the person of each deputy shall be inviolable.” In this tradition, criminal charges can only proceed against members with the permission of the National Assembly. Legislators have no immunity against criminal charges in the British model. Other countries have adopted the French concept of inviolability to shield their legislators against criminal charges. At times, immunity from criminal prosecution can have very dubious applications. For example, the prime suspect in the 2006 murder of Russian exile Alexander Litvinenko in Britain won a seat in Russia’s lower house in 2007 and consequently enjoyed immunity from any potential prosecution; in theory, however, the Duma can strip this immunity from one of its members.

In the British tradition, legislators do enjoy immunity from arrest in civil matters, but this is more theoretical than practical since civil arrests are virtually unheard of in the modern era. A more tangible immunity is the right not to be compelled to be a witness in a civil trial during a parliamentary session, and for a certain period before and after a session. Some jurisdictions extend this immunity to legislators who are lawyers in civil matters. In both instances, the notion is to ensure that legislators are not prevented from attending to state business because of vexatious lawsuits designed to tie up the legislators’ time and attention. However, this immunity can also be misused. For example, a frequent tactic for delaying a trial for months in Texas is to enlist a lawyer who is also a member of the state legislature; in 2005, there were 319 continuances filed for this reason.

Challenges From The Courts

The definition and enforcement of parliamentary privileges must inherently pit the courts against the legislatures in an ongoing contest for the final say of what immunities and special powers, beyond the ordinary law, should be enjoyed by legislatures. The most famous showdown occurred when the British House of Commons decided in 1836 to publish a report that an indecent book by John Stockdale was circulating in prisons; Stockdale then sued the printer of the report for libel. The 1839 Stockdale v. Hansard case held that no privilege protected this report’s publication. Parliament replied with the Parliamentary Papers Act in 1840, which granted immunity to anything published under its authority.

The courts have a necessary role to play in defining the reach, although perhaps not the application, of constitutionally entrenched privileges. However, there is a more controversial role for the courts when they have to decide whether common law or statutory privileges conflict with the constitutional rights of others. The European Court of Human Rights heard a seminal case in 1991, when they ruled in Demicoli v. Malta that the Maltese parliament had infringed the rights of a magazine editor when it held him in contempt of parliament for an article he published. The court concluded that the legislature’s decision to fine the individual essentially constituted a criminal charge and was, as a result, subject to the European Convention on Human Rights. Furthermore, the Court held that Parliament had not acted as a fair and impartial tribunal to hear the case.

Bibliography:

Campbell, Enid. Parliamentary Privilege in Australia. Melbourne: Melbourne University Press, 1966.
Chafez, Joshua A. Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions. New Haven: Yale University Press, 2007.
Huefner, Steven F. “The Neglected Value of the Legislative Privilege in State Legislatures.” William and Mary Law Review 45 (2003): 221–318.
MacKay,William, ed. Erskine May’s Treatise on the Law, Privileges, Proceedings and Usages of Parliament. 23rd ed. London: Butterworths Law, 2004.
Maingot, J. P. Joseph. Parliamentary Privilege in Canada. 2nd ed. Montreal: McGill-Queens University Press, 1997.
Van der Hulst, Marc. The Parliamentary Mandate: A Global Comparative Study. Geneva: Inter-Parliamentary Union, 2000.
Wittke, Carl. The History of English Parliamentary Privilege. New York: Da Capo Press, 1970.

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