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 the peculiar 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. Thus privilege, though part of the law of the
land, is to a certain extent an exemption from the general law. [7]
These “peculiar rights” can be divided into two categories: those extended to Members
individually, and those extended to the House collectively. Each grouping can be broken down into specific
categories. For example, 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 attendance as a witness.
The rights and powers of the House as a collectivity may be categorized as follows:
- the power to discipline, that is, the right to punish (by incarceration) persons guilty of breaches
of privilege or contempts, and the power to expel Members guilty of disgraceful conduct;
- the regulation of its own internal affairs;
- 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;
- the right to publish papers containing defamatory material.
These two groupings represent all the privileges extended to Members of Parliament and the House of
Commons collectively. Each of these privileges will be examined in greater detail and illustrated with
relevant cases later in this chapter.
The House has the authority to invoke 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. It is only
within this context that privilege can be considered an exemption from the general law. Members are not
outside or above the law which governs all citizens of Canada. The privileges of the Commons are
designed to safeguard the rights of each and every elector. [8]
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. [9]
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. [10]
Privilege essentially belongs to the House as a whole; individual Members can only claim privilege 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. [11]
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 considered as “absolutely necessary” privileges has varied over the
centuries. 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. [12]
No one House of Parliament has a right to claim for itself new privileges; new privileges can only be
created or old privileges extended by Act of Parliament. [13]
Either House can apply its rights to new circumstances, thereby in some cases creating new instances of
contempt. [14]
And finally, each House can individually adjudicate and punish breaches of its privileges.