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Types of Privilege Chapter 45 Types of Privilege There is no definitive list of the types of privileges enjoyed by the House. They are a collection of powers and immunities, often referred to as freedoms. This chapter discusses the specific powers and immunities enjoyed by the House, its committees, its members and other participants in the parliamentary process. Freedom of speech Everyone in New Zealand enjoys a general right of freedom of speech guaranteed by law.1 Although freedom of speech is now regarded as a universal or human right, it first appeared as a specific privilege of the members of the House of Commons, rather than of the public generally.2 “Freedom of speech” in a parliamentary context, while including elements of a right of free speech, is both older and more amorphous. Indeed, freedom of speech in parliamentary proceedings is not a single, discrete privilege of the House at all; rather, it is an idea that is expressed in specific legal powers and exemptions enjoyed by the House, its members and other participants in parliamentary proceedings. The House’s freedom of speech in debate is one of three privileges expressly recited in the Speaker’s claim to all of the privileges of the House submitted to the Governor-General at the beginning of each Parliament.3 It has been suggested that the first Speaker to lay claim to this freedom on behalf of the House was Sir Thomas More in 1523.4 However, the principle of Parliament’s freedom of speech in debate precedes this date and it is thought that More’s claim was limited to asking the Crown to give a “favourable interpretation” to speeches made in the House. A petition specifically seeking recognition of freedom of speech in general was not addressed to the King until 1541.5 Nevertheless, More’s claim to a favourable interpretation from the Crown was tantamount to the House claiming freedom of speech in general, as infringements of freedom of speech were most likely to emanate from the Crown. Since Sir Thomas More’s time, an express claim to freedom of speech has been made by each Speaker at the commencement of a Parliament, almost without exception. Making the claim was symbolic only, 1 New Zealand Bill of Rights Act 1990, s 14. 2 Geoffrey Marshall “Press Freedom and Free Speech Theory” [1992] PL 40 at 41. 3 SO 23. Freedom of speech “in debate” (as mentioned in SO 23) is just one (important) example of freedom of speech in proceedings in Parliament. 4 Richard Marius Thomas More—A Biography (Harvard University Press, Cambridge, Massachusetts, 1984) at 206–207. 5 Geoffrey Marshall “Press Freedom and Free Speech Theory” [1992] Public Law 40. Parl.Prac.pp04.indd 722 9/01/17 8:55 am Types of Privilege 723 but its repeated assertion contributed to the growing acceptance that speech in Parliament ought to be free of legal repercussions. By 1667 this principle was firmly established, although not always respected.6 When the New Zealand Parliament was established almost two centuries later, the principle was understood to apply to all of the proceedings of the two Houses. The practice of expressly claiming the privilege at the beginning of each Parliament was established in 1861. The privileges associated with the House’s freedom of speech are part of a set of rules reflecting the respective constitutional functions of Parliament and the courts. Their primary aim is to prevent any conflict arising between the respective jurisdictions.7 Thus, the courts will uphold and refuse to question the House’s control of its own internal proceedings or the exercise of its power to punish for contempt, and will not visit legal liability on members and others who contribute to parliamentary debates and proceedings. These contributions may be legally relevant and admissible in legal proceedings but they cannot be the basis for or subject of legal proceedings on their own. In these ways, a principle of freedom of speech in Parliament is maintained. Parliament’s freedom of speech is an important expression of legislative independence. Without it, the House’s ability to facilitate the Government’s legislative programme and scrutinise its executive actions would be subject to legal challenge and control in the courts. The fundamental principle of freedom of speech in debate ensures that these functions are not justiciable. EXemption from liability for parliamentary actions General There can be no legal liability for words spoken or actions taken as part of the proceedings of the House, except insofar as this protection may have been statutorily abrogated.8 The legal basis of this exemption from liability is article 9 of the Bill of Rights 1688, although the privilege of freedom of speech in debate predates that enactment. The Bill of Rights is but a part of the wider compact between the legislative and judicial branches of government that secures mutual respect of their respective spheres of action.9 Article 9 of the Bill of Rights 1688 is part of the laws of New Zealand,10 and its effect is reaffirmed and aspects of its operation are clarified in the Parliamentary Privilege Act 2014.11 The protection article 9 offers extends beyond exempting legal liability for things said or done in debates or committees of the House. It entails also exemption from having to account “in any court or place out of Parliament”12 for one’s parliamentary words or actions, even where no personal liability is in question. This latter aspect of the privilege was established by the Bill of Rights 1688 and the political settlement out of which that legislation arose. The prohibition is against impeaching or questioning proceedings in Parliament (questioning arguably has a broader scope than impeaching), although this injunction has not always been respected.13 6 Henry Hallam Constitutional History of England (Garland Publishing Inc, New York, 1978) vol 1 at 423–425 (citing Eliot’s case). 7 Hamilton v Al Fayed [1999] 1 WLR 1569 (CA) at 1587–1588 per Lord Woolf MR; Wilson v Secretary of State for Trade and Industry [2003] UKHL 40, [2004] 1 AC 816 at [55] per Lord Nicholls. 8 For statutory abrogation, see the Crimes Act 1961, ss 102 (corruption and bribery of Minister of the Crown), 103 (corruption and bribery of member of Parliament), and 108 and 109 (perjury committed in a proceeding of the House or one of its committees). 9 (1988) 489 NZPD 4322 Burke; (1999) 576 NZPD at 16210 Kidd. For judicial acknowledgement, see Prebble v Television New Zealand [1994] 3 NZLR 1 (PC) at 7; R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 WLR 669 (CA). See also SO 115(3)(b) (matters subject to judicial decision). 10 Imperial Laws Application Act 1988, s 3 and sch 1. 11 Parliamentary Privilege Act 2014, pt 2, sub-pt 2. 12 Bill of Rights 1688 (Eng), art 9. 13 See: R v Murphy (1986) 5 NSWLR 18 (SC). Parl.Prac.pp04.indd 723 9/01/17 8:55 am 724 Parliamentary Practice in New Zealand The ninth article of section 1 of the Bill of Rights declares: “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”. Several immunities flow from this famous statement of parliamentary privilege, which apply to the House, its members and other participants in parliamentary proceedings. The Privy Council described the basic concept underlying article 9 as “the need to ensure so far as possible that a member of the legislature and witnesses before Committees of the House can speak freely without fear that what they say will later be held against them in the Courts”.14 The important public interest, it went on to say, is to ensure that members or witnesses at the time of speaking are not inhibited from stating fully and freely what they have to say.15 Article 9 is one of a collection of legal principles that give effect to the constitutional relationship between the legislature and the judiciary. The protection article 9 confers is not for the personal benefit of members of Parliament or of any individual; it is conferred to promote the autonomous operation of the parliamentary system. Freedom of speech may protect members and others from liability that might otherwise arise, but equally it may prejudice a member in an individual capacity. For example, a member was held to be unable to give evidence of parliamentary proceedings to support his legal action because to have done so would have been in breach of article 9.16 House’s disciplinary control and electors’ democratic control Parliament’s freedom of speech under article 9 is a protection against incurring legal liability and having to account to bodies outside the House. Freedom of speech is not an exemption from liability to account to the House itself. Nor, in a political sense, is it a freedom from having to account to the electors for one’s parliamentary actions. The legal immunity does not prevent the legislature proceeding against its own members (or anyone else) for a breach of privilege or contempt.17 Furthermore, parliamentary privilege cannot inhibit the fundamental democratic right of free election to Parliament. A political party does not breach privilege by withdrawing electoral support from a sitting member on account of that member’s actions, whether they occurred within or outside Parliament.18 Parliament’s privilege of freedom of speech is not a licence to free members from all discipline and restraint, whether in their capacity as politicians or as members of the House.
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