Parliamentary privilege is a legal immunity enjoyed by members of certain legislatures, 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.


In the United Kingdom, it 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.[1][2] 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[3] 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.[4] 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.[5] (See unparliamentary language.)

The rights and privileges of members are overseen by the powerful Committee on Standards and 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 and Australia. In the United States, the Speech or Debate Clause in Article One of the United States Constitutionprovides for a similar privilege, and many state constitutions provide similar clauses for their state legislatures.

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.

UK House of Commons

The ancient and undoubted rights and privileges of the Commons are claimed by the Speaker at the beginning of each new Parliament. The privileges are only codified in Erskine May’s Parliamentary Practice and the House itself is the only judge of its own privileges. Most of those specifically claimed are practically obsolete, but others remain very real:

  1. Freedom of speech; (members speaking in the House are not liable for defamation)
  2. Freedom from arrest in civil matters (practically obsolete);[4]
  3. Access of the Commons to the Crown (via the Speaker); and
  4. That the most favourable construction should be placed upon the deliberations of the Commons.

Privileges not specifically mentioned:

  1. Right of the House to regulate its own composition; (although election petitions are now determined by the ordinary Courts)
  2. Right of the House to regulate its own internal proceedings, both as to matters and procedures;
  3. Right to punish members and “strangers” for breach of privilege and contempt;
  4. Right of freedom from interference (although members are no longer immune from all civil actions)

Parliamentary papers

There is an absolute common law privilege for papers circulated among MPs by order of the House (Lake v. King (1667) 1 Saunders 131). This is extended to all papers published under the House’s authority, and to correct copies by the Parliamentary Papers Act 1840. The Act also extends qualified privilege to extracts.

Select committees

In addition to applying to members’ speech within the chamber, parliamentary privilege also applies to select committees. Written and oral evidence given to, and published by these committees is also subject to the same absolute privilege as parliamentary papers.[6] This means that any evidence given by a witness to a select committee may not be used against them or any other person in a court of law, whether for civil or criminal proceedings. This privilege only applies, however, if the committee has formally accepted it as evidence and does not apply to materials published before they were given to the committee.

In 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.

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.[7]

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 (Speaker of the House of Assembly). In that case, the Court made these observations about parliamentary privilege:

“Privilege” in this context denotes the legal exemption from some duty, burden, attendance or liability to which others are subject. It has long been accepted that in order to perform their functions, legislative bodies require certain privileges relating to the conduct of their business. It has also long been accepted that these privileges must be held absolutely and constitutionally if they are to be effective; the legislative branch of our government must enjoy a certain autonomy which even the Crown and the courts cannot touch.

The privileges attaching to colonial legislatures arose from common law. Modelled on the British Parliament, they were deemed to possess such powers and authority as are necessarily incidental to their proper functioning. These privileges were governed by the principle of necessity rather than by historical incident, and thus may not exactly replicate the powers and privileges found in the United Kingdom.

Recent cases of parliamentary privilege in Canada adjudicated by the courts include:

  1. 1993: New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), where the courts held parliament could restrict who could enter the parliamentary precincts.
  2. 1999: Zundel v. Boudria, et al., where the courts held parliament could restrict who could enter the parliamentary precincts.
  3. 2001: Ontario (Speaker of the Legislative Assembly) v. Ontario (Human Rights Commission), 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 (House of Commons) v. Vaid, where the Supreme Court of Canada analyzed the scope of parliamentary privilege and the role of courts in deciding its existence.

In Australia

In 1904, the Parliament of Western Australia imprisoned John Drayton for three weeks for a breach of parliamentary privilege.

In 1955, a newspaper proprietor Raymond Fitzpatrick and his editor Frank Browne were jailed by the Australian House of Representatives for three months for what the House considered a gross breach of parliamentary privilege. The public and most commentators, then and since, felt the punishment far outweighed the crime.

In South Africa

Helen Suzman used parliamentary privilege in her anti-apartheid campaigning. Helen Suzman reported during a 1994 interview that she was able to get around state of emergency rules applied against press reporting of violence in the country by asking questions in parliament about the subjects that the press were forbidden from talking about. South African legislation allowed anything said in parliament to be published in spite of emergency legislation. She commented on the hypocrisy of anti-apartheid campaigners criticising her for fighting apartheid from the inside in this way, yet publishing information revealed by her by means of parliamentary privilege.

Management of employees

This privilege was considered in the South Australian Industrial Relations Court in the case of Kosmas v Legislative Council (SA) and Others [2007] SAIRC 86. The Court found that employment statutes apply to the Parliament and therefore employees can seek judicial relief for matters such as unfair dismissal or workers compensation.

Parliamentary privileges are the rules protecting individual MP’s & institutions of parliament themselves from outside interference from civil and criminal courts during parliamentary proceedings. In order to carry out its duties parliament must do so without fear or favour, and hence these legal immunities are vital for the efficient functioning of parliament. These privileges can come under two sections. The first section of individual privileges includes; Freedom of speech; Freedom of arrest in civil action; Exemption of jury duty; Exemption from appearing as a witness; Freedom from obstruction, interference, intimidation and molestation. The second section includes the collective privileges parliament benefit from which it contains; Power to discipline; Regulation of the House’s internal affairs; Management of Employees; Authority to maintain the attendance and service of Members; Right to institute inquiries and to call witnesses and demand papers; Right to administer oaths to witnesses; Right to publish papers containing defamatory material.

Members must be able to speak freely and be uninhibited by any defamation claims, thus making freedom of speech an important privilege which is stated in Article IX of the Bill of Rights 1689. However, in light of recent events, such as that of the MP’s expense scandal and the Royal Assent of The Parliamentary Standards Act 2009, parliamentary privilege has been significantly brought to our attention, especially the privilege of exclusive cognisance. Therefore this privilege of exclusive cognisance will be the focus at present.

The notion of exclusive cognisance refers to Parliament being able to control its own affairs, free from interference by the courts. This allows parliament to be a statute free zone. In effect, the House of Commons can apply its own rules for its own proceedings and determine whether these rules have been complied with. Bradlaugh v Gosset is a clear example of this point. Bradlaugh had been elected to take up a seat within the House. Being an atheist, Bradlaugh would not swear the parliamentary oath to God which was required under statute law. The House organised the Serjeant-at-Arms to exclude Bradlaugh. In order to stop such action, Bradlaugh sought an injunction against the Serjeant-at-Arms. It was held, that to due this being an internal matter in the house, the courts had no power to interfere. Lord Coleridge CJ carried on to say that ‘If injustice had been done, it is injustice for which the courts of law afford no remedy.’ It has been seen that with this privilege, the courts will not consider whether any procedural defects from the House have caused an invalid report of a committee neither will the courts investigate any alleged defects with an Act of parliament nor will they issue a restraining injunction to a local authority from breaking a contractual obligation not to oppose in Parliament a Bill promoted by another local authority.

In recent history, there has been a media and public outcry regarding speculated corruption in Parliament. This has been due to a number of instances which have been widely reported by the media. The ‘Cash for questions’ scandal is an illustration of such an affair. In such an event, a reporter for the Sunday Times offered a number of MPs money in return for raising a question in Parliament. Many MPs didn’t take the offer but several did causing a media outcry. Not only was contempt of the house found, the two MPs were suspended from the House for a number of days.

Pressure for an independent watchdog over MPs’ earnings intensified after the Speaker of the Commons let off Sir Jerry Wiggin with a personal apology to the House for tabling amendments to a Bill in the name of another Tory MP. The MP Wiggin tabled amendments to a Bill in the name of Sebastian Coe, another MP, without Coe’s knowledge. The reason behind this was that these amendments would cause financial gain to Wiggins and they would not have been passed if penciled in under his own name. On the face of things these actions could be gross contempt, however under the notion of exclusive cognisance, the House of Commons dealt with the matter and the Speaker of the House decided that the punishment for Wiggins was to apologise to the house. Again the importance of parliament privilege is brought to our attention with this case, however with this attention came public outcry.

On the back of these two scandals, the government appointed the Nolan committee, which restated seven key principles of conduct in public life. Qualities such as integrity, accountability and openness were stressed. Following the report from this committee further measures were put in place to regulate the receipt of payments and other rewards by MPs in connection with services performed in their capacity as members. The report also recommended that a new committee should be created in order to regulate its members more effectively and in November 1995 the Committee on Standards and Privileges was created. This committee consisted of ten members of the House of Parliament to make recommendations to the House of any complaints or breech of Parliament. This shows that the House was concerned over privileges being exploited and its efforts to limit this. But, it is worth noting that the Commissioner for Standards and Privileges is the same to that of any other officer of the House of Commons. Therefore, any decision from the Commissioner would not be subject to judicial review.

The arrest of Damian Green is very significant in reference to Parliamentary Privilege. MP Damian Green was arrested on 27 November 2008 on suspicion of “aiding and abetting misconduct in public office” and “conspiring to commit misconduct in a public office”. What was interesting about his arrest was that the Speaker of the House, allowed police to seize his computer and search Green’s office. Many members of Parliament were outraged by this allowance, claiming it was a breach of their Privilege as this was an internal affair. But is has been stated that the police were within their rights to raid Green’s office. But the problem for the Speaker, is that there appears to be no precedent in recent years for the arrest of an MP and the seizure of his Commons computer in relation to a leak inquiry, which partly explains why there is uncertainty as to whether parliamentary privilege should have applied.

Undoubtedly the biggest scandal arising from the privilege of exclusive cognisance, is with the very recent events of the MPs expenses scandal. During the summer of 2009, the media had started to report and publish a series of damaging revelations relating to MPs’ expenses claims. Such information had been obtained by the media pursuant to the Freedom of Information Act 2000. It was made clear that MPs had endeavoured to claim expenditures that had little or no bearing on their ability to carry out their work. Examples of such claims included, mortgage payments which had already been paid off, home entertainment systems and one MP even made the claim for the cleaning of a moat. By no means where all the claims granted, the very fact that MPs were processing these claims, showed that a change was needed. In respect to the House of Commons Green Book, which encompasses the rules regarding expenditure claims, it states that before submitting a claim, members are expected to consider whether the claim would in way damage the reputation of Parliament or its members. It is clear that without the privilege of exclusive cognisance, these MPs could have been eligible to be liable for fraud at the very least. However as this was an internal affair, the courts could not interfere. What was understood by all in the government was that a change in how privilege is seen needed to be addressed. From such an event the executive had taken a massive blow in the eyes of the electorate. The electorate view was that a public body was exploiting its rights which when in any other position would face a legal battle, however due to parliamentary privileges such exploitation had been acceptable. So much pressure was put on the Speaker of the House of the Commons at the time that he was forced to resign. This was the first time it happened in 300 years. With this in mind the government had to act, and passed a Bill for the need to put to an end to self-regulation.

The Parliamentary Standards Act 2009 was the governments’ answer. However through its passage, several amendments were made before Royal Assent was given in July 2009. Most importantly, the clause which would have limited parliamentary privilege to allow, among other things, an offence of paid advocacy to be prosecuted before the courts was dropped. The offence of an MP knowingly providing false or misleading information in the context of an allowances claim was the only offence not to be dropped from the Bill. Looking at the bill it states that “Nothing in this act shall be construed by any court in the United Kingdom as affecting Article IX of the Bill of Rights 1689”. This was brought in after there were concerns over the potential impact of the Bill on Parliament’s ability to administer its own affairs. Here we can see that on the face of things the government is trying to amend its damaged reputation after the expenses scandal, but with the inclusion of S 1 of the Act it is clear that Parliament does not want to hinder its privileges and is ensuring that this statue isn’t doing such. In effect this Parliamentary Standards Act is narrowing down the interpretation of ‘Parliamentary Proceedings’ when dealing with Parliamentary privileges.

This Act did create a new public body which itself insinuates a close control on Parliamentary Privilege. The Parliamentary Standards Authority among many other issues will address the procedures for investigations and complaints relating to MPs, showing that the government are trying to limit the exploitation of its privileges. This new body will be keeping a tight control on its members and if any complaints arise it will deal with them effectively. It is still using the privilege of exclusive cognisance, as Parliament is still in control of its internal affairs but it does seem to ensure that scandals’ such as the expense row does not occur in the future.

In addition to this public body the Act also establishes the commissioner for parliamentary investigations. The main role for the commissioner is to carry out any investigations where he has reason to believe that an MP may: have been paid an amount under the allowances scheme which he is not entitled to; or may have failed to register information required by the code of conduct relating to financial interests. If an investigation occurs the commissioner is under a duty to refer his findings to the House of Commons Committee on Standards and Privileges. This ultimately keeps the power to control its internal matters within the House and thus still adhering to the privilege of exclusive cognisance.

The Parliamentary Standards Act 2009, has been brought in to improve the electorate’s confidence back into its government. Its main objective was to ensure the electorate that the row over expenses would not occur again. On the face of things this Act does seem to show that the government is trying to regulate its internal proceedings better than it has in the past. This in turn would back the claim that parliamentary privilege is still important in the context of the constitution today. Without such privileges many members of Parliament could be open to court cases, but due to this all being an internal affair the courts had no hold and could not intervene. A similarity between this scandal and the case of R v Graham-Campbell, ex p Herbert can be drawn. In such a case, the MP Herbert had been selling alcohol without a license within the Palace of Westminster. Due to the privilege of exclusive cognisance and this was an internal affair, the courts could not convict the member.

However, when looking in more detail at the Act, we can see that although Parliament has created a new public body to regulate its internal proceedings it doesn’t apply to both Houses’. This Act only applies to the House of Commons. Under section 2 (1) it states:

“Nothing in this Act shall affect the House of Lords”

That declaration is then qualified by subs (2)(a)-(c), which recognises the role which the upper chamber will have in relation to, for example, approving by resolution a draft order seeking to renew ss 3(3) and (4), 8-11, and Sch 2 of the Act. This term is in effect a renew clause and is the worth bring attention to. With such a clause it will be necessary for Parliament to review the Bill in due course and decide whether it is necessary to continue with them.

The concept of privilege is an ancient one that developed out of the need for MPs to assert their rights against the power of the sovereign. As with many features of the British constitution, the concept has been developed over time as new “case law” has emerged. Privilege can only be used in what is referred to as parliamentary proceedings. This in itself can cause confusion. A definition of parliamentary proceedings must be made clear. The Parliamentary Standards Act 2009, although states it is not affecting Parliamentary privilege, it does narrow down the definition of parliamentary proceedings and henceforth narrows down the usage of Parliamentary privilege. Historically, privilege has been very useful to Parliament. However, due to recent aspersions there has been a public outcry that these privileges have been abused. In order to regain the electorates support again the government has had to act in order to ensure these privileges aren’t abused any more then they have been. As with anything the British constitution has changed with time. This would mean that the privileges would have to be developed and changed in a way to fit in with the constitutional changes. However these longs over due haul of privileges has only been brought to light with recent scandals. Although the constitution is changing and the government has had to bring about new measures, specifically the Parliamentary Standards Act 2009, it is clear that parliamentary privileges are still important, but the exploitation of them will indeed limit the usage in order to the support of the electorates.