PARLIAMENTARY PRIVILEGE
“There is
undoubtedly a tension between the public interest in bringing to justice those accused of criminal offences, and the public interest in the absolute protection afforded to freedom of speech in Parliament.”
by the other side—contravening the basic tenet that proceedings in Parliament should not be questioned in the courts. After considering several options,
including legislation, we concluded that the current concerns were not sufficient to warrant legislation. We made clear in our report, however, that Parliament should be prepared to legislate to protect its privileges, should the courts encroach further into Parliament’s area of exclusive jurisdiction. The government agreed with us
they might be applied in a modern context. While we acknowledged that
legislation had worked well in Australia since the late 1980s, our preference was to avoid legislation, which we believed could risk a radical shift of power from Parliament to the courts, opening up the possibility of judicial scrutiny of parliamentary proceedings, and potentially increasing uncertainty about how contempts which were not covered by any criminal statute could, or should, be dealt with. Instead, we urged both Houses
to assert their existing privileges and put in place procedures to exert those privileges that meet contemporary standards of fairness and due process. Our report set out in detail
what those procedures might involve, including issues such as a right of reply and access to legal counsel. The government, in their response to our report, agreed that legislation was not the right approach and supported our call for the two Houses to set out how clearly their powers would and should be exercised.
Judicial questioning of proceedings in Parliament Another area of concern addressed by the green paper was judicial questioning of proceedings in Parliament. Underlying the relationship between Parliament and the judiciary in the UK is what has been described as the principle of “comity”. Both Parliament and the judiciary recognize that conflict
is likely to damage the constitution as a whole, and they therefore each “respect the sphere of action and the privileges of the other”. Despite the general principle
of comity, which nobody would challenge, there is occasional tension. The main current area of
concern is the growth of “judicial review” cases, where ministerial statements to Parliament have on occasion been admitted as evidence. Even more disturbing have been several instances of courts going much further, praying in aid select committee reports when reaching decisions. In an adversarial system, the
admission in evidence of select committee reports by one side will necessarily lead to its questioning
that there was no need for legislation at the present time, and stated that the issue could be revisited should there be an increase in inappropriate judicial questioning of Parliament.
Conclusion I have covered here only the most significant of the many issues raised in the green paper. Throughout the inquiry it was clear that, although the origins of parliamentary privilege in the U.K. are ancient, it remains relevant in the modern world. The fact that privilege is nowhere
codified means that it can adapt and evolve, even while the essential principle – that Parliament should be able to carry out its work effectively and without interference –remains unchanged.
The Parliamentarian | 2014: Issue One | 49
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72