Parliamentary Privilege: A Definition

The classic definition of parliamentary privilege is found in Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament:

Parliamentary privilege is the sum of certain rights enjoyed by each House collectively… 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.5

These “rights” can be divided into two categories: those extended to Members individually, and those extended to the House collectively. Each category can be further divided. The rights and immunities accorded to Members individually are generally categorized under the following headings:

  • freedom of speech;
  • freedom from arrest in civil actions;
  • exemption from jury duty;
  • exemption from being subpoenaed to attend court as a witness; and
  • freedom from obstruction, interference, intimidation and molestation.

The rights and powers of the House as a collectivity may be categorized as follows:

  • the exclusive right to regulate its own internal affairs (including its debates, proceedings and facilities);
  • the power to discipline; that is, the right to punish persons guilty of breaches of privilege or contempts, and the power to expel Members guilty of disgraceful conduct;
  • the right to provide for its proper constitution, including the authority to maintain the attendance and service of its Members;
  • the right to institute inquiries and to call witnesses and demand papers;
  • the right to administer oaths to witnesses appearing before it; and
  • the right to publish papers without recourse to the courts relating to the content.

The privileges of Members of the House of Commons provide the absolute immunity they require to perform their parliamentary work, while the collective or corporate rights of the House are the necessary means by which the House effectively discharges its functions.6 Privilege commences from the time of the Member’s official existence, which is at the moment the deputy returning officer completes the return of the writ with the name of the candidate who received the most votes in a general election or a by-election.7

The House has the authority to assert privilege where its ability has been obstructed in the execution of its functions or where Members have been obstructed in the performance of their duties. Members are not outside or above the law which governs all citizens of Canada. While some privileges seem to provide immunity from the application of certain laws, parliamentary privilege forms part of the general law of Canada.8 The privileges of the Commons are designed to safeguard the rights of each and every elector.9 For example, the privilege of freedom of speech is secured to Members not for their personal benefit, but to enable them to discharge their functions of representing their constituents without fear of civil or criminal prosecution for what might be said in the House and committees. When a constituency has returned a candidate, it is the electors’ right that this chosen representative should be protected from any kind of improper pressure, and particularly from crude violence.10 May states:

The distinctive mark of a privilege is its ancillary character. 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 services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity.11

Privilege essentially belongs to the House as a whole; individual Members can claim privilege only insofar as any denial of their rights, or threat made to them, would impede the functioning of the House. In addition, individual Members cannot claim privilege or immunity on matters that are unrelated to their functions in the House.12

Any conduct which offends the authority or dignity of the House, even though no breach of any specific privilege may have been committed, is referred to as a contempt of the House. Contempt may be an act or an omission. It does not have to actually obstruct or impede the House or a Member; it merely has to have the tendency to produce such results.

What Parliament has asserted as the extent of necessary privileges has varied over the centuries.13 Nevertheless, certain basic principles relating to privilege have become established. Neither House individually can extend its privileges, though either House can, formally by resolution, decide not to claim or apply privileges it has hitherto claimed.14 No one House of Parliament has a right to claim for itself new privileges; new privileges can be created or old privileges extended only by an Act of Parliament.15 Either House can apply its rights to new circumstances.16 Finally, each House can individually adjudicate and punish breaches of its privileges.