Presentation to Clerks

Privilege

Privilege:

 May: “Parliamentary privilege is 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 functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law. Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its Members. Other such rights and immunities such as the power to punish a contempt and the power to regulate its own constitution belong primarily to each House is a collective body, for the protection of its Members and a vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members.”  Recent report by the Joint Committee on Parliamentary Privilege (2013 – 14). Australian statutory solution. Eve Samson to cover much of this.  Judicial activism: ECHR - declaration of incompatibility with the European Convention or striking down decision - and the European Communities Act 1972 - right to overturn statute if incompatible with EU law (Isle of Man a semi-detached member of the EU; it has its own Human Rights Act).

History:

 Isle of Man is an independent kingdom which has never been part of England, Great Britain or the United Kingdom. Sovereignty in the island was purchased by the United Kingdom in 1765. o Tynwald is not based on the Westminster model but follows modern Westminster and Commonwealth practice closely.  The Bill of Rights 1689 does not apply in the Isle of Man. So there is no principle of "exclusive cognizance". There is specific statutory protection for Members and witnesses against civil or criminal suit as result of anything said before Tynwald or a committee. o The case of Brown: 1864 the Court of Queen’s Bench released Brown from imprisonment imposed by the House of Keys (one of the legislative branches of Tynwald) for offensive remarks in the course of his campaign for election of the Keys by Suffrage on the basis that it had exceeded its powers. o Tynwald Proceedings Act 1876: statutory framework set for punishment of contempts as if they were a contempt of the High Court. This has never been used. No one knows how to use it, although it probably involves a certificate from the Clerk of Tynwald that a person has been judged guilty of contempt and should be punished accordingly. o Human Rights Act 2001 (in imitation of the UK Human Rights Act 2000) gives the courts the same power to interfere directly with matters in Tynwald. It is unlikely that the 1876 Act procedure would stand up to HR challenge - prosecution judgement by the same organisation; opportunities for a fair trial involving an appeal process; no guarantee of the opportunity of being represented by counsel etc.  Principal interest in privileges is the enforcement of the will of Committees and Tynwald. We need to reform the out of date purpose-built statutory procedure. Is the solution a codification of specific criminal offences? What are the associated problems: o statutory change needed, rather than resolution or Standing Order changes; o conflicting statutory duties (statutory duty of confidentiality in relation to e.g. taxpayer affairs: the case of the C&AG before the PAC in October 2012; o common law privilege against self-incrimination; o legal professional privilege; o inherent reasonableness of the actions of Tynwald/a committee?  The habit of deference has gone so in the light of developing case law it is possible that any reform carried out now have to be changed sooner rather than later.  Questions to discuss: interplay of courts and Parliament; judicial activism - is it necessarily a bad thing?