THE PRIVILEGES OF PARLIAMENT.

Dominion, Volume 6, Issue 1789, 30 June 1913, Page 8

THE PRIVILEGES OF PARLIAMENT.

WHAT THEY ARE & WHENCE

THEY SPRING.

HOW THEY ARE ENFORCED,

A POPULAR DESCRIPTION.

(Prom a Parliamentary Correspondent.)

Most people have heard of the privileges of Parliament. Comparatively few know what those privileges qre, whence they spring, or how they are enforced. The purpose of this article is to provide a succinct popular account of the subject, omitting nothing that is essential, but avoiding dry technical detail. THE SPEAKER'S PETITION. The curious in these matters who will turn to the Standing Orders of the Houso of Hcpre-sentatives setting forth the proceedings on the meeting of a new Parliament will fmd that alter the election of the Speaker, "Mr. Speaker elect, attended by his proposer and seconder, presents himself to the Governor for his Excellency's approbation, and the Governor signifies his approbation of the choice of the House." He then lays claim to the usual privileges, and the Standing Order (No. 20) bearing upon this may bo quoted in oiteuso: — "Mr. Speaker then, on behalf of the House of Representatives of New Zealand, lays claim to all their privileges, and especially to freedom of speech in debate, and to free access to his Excellency whenever occasion may require it; and that the most favourable construction may be put on alt their proceedings." The practice in New Zealand of the Speaker presenting himself for the Governor's approbation follows moro or less closely that of the Imperial Parliament, but in the latter the Speaker presents himself, not to the.monarch, but to the Lord Chancellor in the House of Lords, who informs him "that his Majesty most fully approves and confirms him as tho Speaker" (May, "Parliamentary Practice, II Edn., p. 156). The origin of the practice by which the Speaker of the House of a Commons submits himself for the Royal approbation is to be traced back to the fourteenth century, when the two Houses first began to sit separately, and when the Speaker, then known as "ponrparlour" br "parlour et procuratour," was chosen quito as much as tho mouthpiece of the Sovereign as ho was of tho Commons. Tho Crown then, naturally cin.'.m«l ant! exeroisod a virtual right of selection (Anson, "law and Custom of the Constitution," 4 Edn., Vol. I, p. 117). It, was formerly the ' custom for the Speaker, when presenting himself to tho lord Chancellor, to express a sense of his own unworthiness for the position, adding that should Ims Majesty disapprove of the choice, the Commons would at once select someone else (May, loc. cit., note). But this formula was dropped more than a I century ago, nnd now the choice of the Commons is accepted as a matter of course. It is interesting to note that in the ?\ew Zealand Parliament alone of all the Dominions' Legislatures is the Gqver- ■ nor*s confirmation of the . choice of a Speaker legally required, though in Tasmania and South Australia the choice must be notified. In most of the other Legislatures the office is an elective one (Keith, "Responsible Government in the Dominions," Vo.. I, p. 4GB). En passant, it muy bo noted that when tho office of Speaker becomes vacant during a. session" of Parliament the new Speaker, when presented for the Governor's approbation, does not lay claim to the privileges of the House, which 'have already bom confirmed. The eame, of coarse, applits ■wihrai- the <>ffic®;cf Speaker becomes vacant duriil" the recess. Now, for a reason which -will appear presently, let uis contrast tho wording of the Standing Orders quoted above with tho wording of the petition of the Speaker of the House of Commons. In May's Parliamentary Practice we Tend that at the commencement of every Parliament since tho sixth Henry VIII, it has been the custom for the Speaker, "In the name, nnd on, behalf of tho Commons, to lay claim by humble petition to their ancient and ' undoubted rights and privileges; particularly that their persons and servants might be free from arrest and all . molestations; that they maj enjoy liberty of speech in all their debates; may have acccss to his' Majesty's royal porson whenever, occasion shall require; and that all their proceedings may receive from his Majesty the most favourable construction. . I. ■AN IMPORTANT DIFFERENCE. If tho reader will compare the two forms of petition set forth above, he will see that whilst the Speaker of the Houso of Commons lays claim to "ancient and -undoubted rights and privileges," in New Zealand tho words "ancient and undoubted" aro'not used. Their omission is not without significance. The privileges of tho House of Commons rest partly upon the law and custom of Parliament—"lei et consuetudo Parliament!"—and partly upon specific statutory enactments. "Upon these grounds alone," says May, "all privileges whatever are. founded," and it may be worth while. noticing here'-that "although either Houso may expound the law of Parliament, and vindicate its own privileges, it is agreed that no new privilege can be created" by either. House, although, as will appear presently, the Legislature can oreate new privileges by Act. , On the other hand, custom has nothing whatever to do. with tho privileges of colonial Legislatures. "There is no don,bt." says Keith ("Responsible Government in the Dominions," vol. I. p. 446),_ "that apart from statute, a colonial Legislature has no more real power than a debating society, except in so far as measures to preserve order therein might be allowed to take more drastic fonns than in a mere debating society." At one time it was thought that the "lex et consurtudo Parliamenti" would apply to tho supreme Lrgislatu.ro of a colony by the introduction tlioro of the common law, but tho Privy Council, in numerous decisions, has declared that such is not the case, and it has long been "settled law." says Keith, "that, tho extraordinary privileges of (he House (of Common?) aye a. part cf the 'lex et consuetudo Parliament!' which is peculiar to the House in England, and cannot be claimed except liy virtus of a statute by the colonial Legislatures. THE POSITION IN NEW ZEALAND. It appears, therefore, that tho privileges of colonial Legislatures rest' solely upon such sitatutoTy powers as they mar have taken. But, unlike the Imperial Parliament, colonial Legislatures are. not sovereign legislative bodies. Their peners to make laws aro limited by their Constitutions. As a rule, the latter expressly j give them the right to confer uron both I Houses of Parliament, and on the mem-1 ters"(rf tho<o Houses, powers equal 10, or , less than, those of the House.of Common*, j The point i?> important as showing that! the nower of a colonial Legislatim- to i or'nt« privileges by statute is limited. In the rase of New Zealand, 'Section 52 of the Constitution Act, 1852 (In and 16 Vict. cap. 72), only conferred upon our Lo7i<." latnre the power to make Standing Onl»r« with limited efTeet. which if did bv the . Privilege* Act. 185 G. but the Constitution \et Amendment Act, 1857 f2O and 21 Vict, rap. 53\ made it lawful for the General Assembly to amend the Constitution .Art with the exception of certain dauses. 'of which Section 52 is not one. Accord in ISffil the General Assembly passed "tin Act to confer on the Legislative Cnunci-: and the Hons" of Representatives of New Zealand certain privileges, inimnnitieseiirt powers." This is the Act usually cited a< the Parliamentary Privileges Act, 1865. Tt repealed the Privil-vres Act, 185(5, and also Section 52 of tho Constitution Act, 1852, and declared, inter alia, that "The Legislative Council or House of Representatives of Now Zealand reepectively, and the committees and members thereof reap ..lively, shall hold, enjoy, and exercise sticli and the like privileges, immunilip-, and powers as on the first day of January, one thousand eight hundred and sixtvfive, were held, enjoyed, and cxerci-ed by the Commons House of Parliament of Great Britain and Ireland, and by the committees nnd members thereof. so far as the same are not in-

consistent with or repugnant to such and so many of the sections and provisions of tlio said Constitution Act lis at the tiino of the coming into operation of this Act arc unrepealed, whether such privileges, immunities, or powers were so held, possessed, or enjoyed by custom, statute, or otherwise; and such privileges, immunities and powers shall bo deemed to be and shall bo part of the general and public law of the colony, and it shall not be necessary to plead the same, and the same shall in all Courts and by and before nil Judges be judicially taken notice of." The Act also contains clauses dealing with the printing and publication of the reports, papers and proceedings of Parliament, nnd it provides for the ndminisfratiOii of Subsequently a series of amending statutes were enacted dealing with attendance in the Courts of Law and the immunities of witnesses, but to these matters reference will be made later. ' ' , THE PRIVILEGES. It appears, therefore, that the privileges of the New Zealand Parliament are those which were enjoyed by the Imperial House of Commons,"by custom, statute, or otherwise," on January 1, 1805. What, then, are those privileges? "The privileges of the House of Commons," says Anson ("Law nnd Custom of the Constitution," Vol. I, p. 145), "have been the topic of much legal discussion, nnd difficulties have arisen, not unnaturally, in ascertaining tlie rules of which they consist; for they only obtain legal definition when cast in . a statutory form, or when they have become tho subject of judicial decision in tho Courts of Law. Statute law on tho subject is scanty. Privilege exists chiefly for the maintenance of the dignity of the House of Commons, and it is no wonder that the House thinks itself capable of maintaining its dignity without the aid of the Legislature. Such statute law as exists has for its object the limitation of the prerogative of the Crown as against the liouse of Commons, and the limitation of the privileges of tho House of Commons as against private rights. There is also a mass of judicial decision, dealing for the most part with eases in which the courts and tho House have come into conflict." But, apart from statutes and judicial decisions, "it follows," to use the words of May, "that whatever the "Parliament has constantly declared to be a privilege, is the sole evidence of its being part of the ancient law of Parliament." It appears that the undoubted privileges are: (1) Free access to the Governor's person.' (2) That the most favourable construction shall be placed upon proceedings. (3) Freedom of speech. (4) Freedom of person. (5/ Tho right or either House to provide for its own constitution. (6) Tho right to the exclusive cognisance of matters arising within the House. (7) Power of inflicting punishment for breach of privilege.. The first two of these privileges are purely formal. right of free access is a collective right, and not a right of individual members. The second privilege is only asked for "by courtesy." The fifth'nnd sixth are technical and need not detain us at any length in an article of this nature, but some qualification of the 6ixth appears to be necessary. "It is not .true to say that because a matter has arisen concerning tho House, and has been adjudged within tho House'; such a matter cannot be considered elsewhere, if it affects rights exercisable outside and independently of the House," says Anson. "It is strictly true to say that the Housa has the exclusive right 'to regulato its own internal concerns,' and that, short of a criminal offence committed within the House or by its order, no Court would take cognisance of that which passes within its walls." The most interesting and important of tho privileges, however, ; from tho point of view of the general public, are thoso relating to freedom of speech and of the person, and tho power to punish for breach of privilege, and to these we may now turn our attention. FREEDOM OF THE PERSON. The privilege of freedom from nrrest can bo disposed of briefly. It was more extensive formerly than it is to-day, and then used to include the serrants of members as well as members themselves. It operates during the session and for forty days before the session begins and after it ends. The object of the privilege is to secure the safe arrival and regular attendance of members, bnt it never was held to protect members from the consequences of treason, felony, or breach of the peace. Tho period of forty days before and after the session is probably derived from the old notice of summons required in Magna Carta. Akin to this privilege of freedom from arrest is the privilege of resisting «, subpoena to attend as a witness, now, as stated previously, always waived by tho Ho,use of Commons, but in New Zealand confirmed by statute, and extended to parties as well as witnesses, subject, however, to the qualification that the privilege shall not bo exercised where to do so would be prejudicial to the duo administration of justice; and also tho privilege of exemption from servico on juries. FREEDOM OF SPEECH. Freedom of speech—in its various ramificntions the- most interesting of all tho privileges—though founded upon tho ancient law and custom of Parliament—was only asserted and maintained in its entirety as the result of a prolonged struggle between tho Commons and tho Crown. Although it secured judicial recognition as far back as the reign of Henry IV, repeated attempts were made to fetter the exorcise of this privilege, both by tho Crown and by servile Ministers of t>.e Crown, until as late as the reign of George 111. In the reign of Queen Elizabeth, for instance, the Koyal view of the nature of tho privilego was thus defined by tho Lord Keeper in reply to tho ■Speaker's petition: "Privilege of speech i 3 granted, but vou must know what privilege you have; not to speak every one what he listeth or what cometh in his brain to utter tlmt; but your privilege is ayo or no. Wherefore, Mr. Speaker, her Majesty's pleasure is that if you perceive niiy idlo heads that will not stick to hazard their own_ estates; which will meddle with reforming the Church, and transforming the Commonwealth, and do exhibit any Bills to such purposes, that you receive them not, until they be viewed and considered by those who.it is fitter should consider of such thing? and can better judge of them." It is scarcely necessary to state that this view of tho nature and scope of the privilege of free speech is not tho one which ol>tains to-day. The privilege, asjiow understood, is defined in the Bill of Rights, 1089, which declares that "tho freedom of speech and debates or proceedings in Parliament ought not to"bo impeached or questioned in any Court or place out of Parliament." SpE-ecli and action in Parliament, therefore, are now unquestioned and free, so far as exbrnal influence or interference are concerned. But, as Anson points out, this freedom does not involve any unrestrained license'of speech within the walls of the House. "The House," he -ays, "controls the action of its own members, and enforces this con- j trol by censure, by suspension from the i service of the liouse, by commitment, by | expulsion. Abuse of the forms of debate, irregular or disrespectful use of the King's name, tho use of language which | is ofTensivo or insulting to either House, or to individual members of either House, or to Parliament collectively, are the offences which may be thus dealt with." STRANGERS AND THE PRESS. Two claims of great interest, arising out at the privilege of freedom of speech, but pometimcs.cited us separate and independent privileges, have been invariably asserted by Parliament, wnl, though not at present insisted upon, they could at any time be legally enforced." The one is the right to exclude strangers and debate with closed doori. The other is tlie right to prohibit the publication of debates and proceedings. Both strangers and press representative! are .only present in. the liouse on'sufferance. Strangers can at any time be ordered to withdraw on a motion to that effect being carried, or simply, at the discretion of the Speaker or Chairman of Committee#. As regards press representatives, it is claimed that in New Zealand their right to be- present has received statutory recognition in Section I) of the Parliamentary Privileges Act, ISGS, which declares that extracts or abstracts of' reports, papers, votes, or proceedings of Parliament, if published bona fide and without malice, are privileged, and cannot be made the cause of civil or criminal proceedings. It. in, however, a moot point as to whether tilis confers a statutory right upon press representatives to be Dresent, As a matter of :

fact, on only one occasion in recent times has tho power been exercised. In that case a prolonged stonewall was in programs, and all the galleries were cleared with the exception of the Ladies' Gallery. The value of publicity is too well reoognised to bo interfered with. But it is still a gross breach ofi privilege to publish the proceedings of Committees before the same have reported to the House which set them up, and on occasion press representatives have been fined for so doing. THE GOVERNMENT PRINTER. Though not ooming strictly under the subject of this article, no treatment ni tho privileges of Parliament could b? considered complete without Homo reference to the peculiai position ot tho Government Printer and the famous constitutional case of Stockdale v. Hansard. It ha.s been stated above, on the authority of May, that "ali though either House may expound the law of Parliament, and vindicate its own privileges, it is agreed that no new privilege can be created," and it is because 1 from time to time tho House has sought 1 to assert privileges not recognised by the law and custom of Parliament and not enacted by statute that it lias came into - conflict with tho Courts. Now, it is pointed out by Anson that "though tils 1 privileges of tho House confer a right to privacy of debato, they do not. confer a 1 corresponding right to the publication of debate. Apart from powers conferred by statute, the right of the House of Com- ■ mons to publish its proceedings, other- ■ wise than for tho use of its members, would bo limited by tho common law rules as to defamation of character; and 1 it would be no answer to an action for 1 libel brought against the publisher that ! tho libellous matter was a part of a debate in the House of Commons, or was a < part of a report made for the use of the House, and printed and published by its order. Still less is a private member en- ■ titled to claim privilege for tho publi--1 cation of a speech delivered within the walls of the House. Within those walls ho may say what ho pleases, and is pro- ■ tected by the general privilege of the House; but if he chooses to circulate_ outside the House statements made within it, he does so at his peril, and if they contain defamatory matter lie will be liable to proceedings for libel." In 1539, one John Stockdale brought an action claiming .£SOO damages for libel > against the Messrs. Hansard, Government printers, for having printed and sold, by order of the House of Commons, a report by two inspectors of prisons describing a book he had written as "disgusting and obscene." The defendants pleaded the privileges of the House of Commons, and cited a resolution of the Honso "that the power of publishing such of its reports, votes, and proceedings as it shall deem necessary or conducive to the public interests is an essentihl incident to tho constitutional functions of Parliament, more especially to tho Commons' House of Parliament ai the representative portion of it." Judgment was entered for the plaintiff. Lord Deninan, C.J., Littledale, l'atteson, and Coleridge, J..T., concurring, held that "the resolution of any one of the three legislative estates cannot alter the law or place anyone beyond its control. The claim for an arbitrary power to authorise the commission of any rffct whatever is abhorrent to the first principles of the constitution. The privilege of cach House may be tho privilege of tho whole Parliament, but it does not follow that the opinion of its privileges held by either House is correct or binding. . . . Nor has it been shown that tho privilege of publication exists. . . . Tho House of Commons, by ordering a report to bo printed, could not legalise the publication of libellous matter." (Thximas, "Leading Coses in Constitutional Law," 4th edn., p. 44.) In consequence of this decision, a statute (3 and 4 Vict. cap. 9) was passed, in virtue of which any person called upon to defend an action in respect of tho publication of any reports, papers, votes, or proceedings of either House of Parliament ordered by either House, may bring before any Court of Law in which such proceeding has been commenced, a certificate from the Lord Chancellor, or the. Clerk of the Parliaments, or tho Speaker of the House of Commons, or the cierk of the same House, • that the publication was under the authority of tho Houso of Lords or tho House of Commons, and such Court shall thereupon stay ail such proceedings. The principle of this statute is embodied in Clause 7 of our own Parliamentary Privileges Act, ISGS. It is to bo noticed, therefore, that the immunity of tho Government Printer does not depend upon any privilege of Parliament, but upon a special enactment which, be it obsorved, does not create any new privilege of Parliament. Tho privilege here is not a privilege of Parliament, but a privilege of the Government Printer conferred upon him by Act of Parliament. HOW THE PRIVILEGES ARE ENFORCED. Having now concluded our survey of the privileges of Parliament, and matters incidental thereto, it only remains to inquire how those privileges are enforced. We have seen that it is one of the privileges of Parliament to inflict punishment for the breach of its privileges. The process by which those privileges are enforced is by order to attend at tho bar of the House, or, in caso of wilful disobedience to such order, by order for the Speaker to issue a warrant for bringing the person summoned in the custody of the Sergeant-at-Arms, or by a like order for a warrant of commitment for contempt, and it has been judicially held that "tho House, and that alone, is the proper judge when these powers or either of them are to be exercised." Anson stales that "the offences for which punishment is inflicted may be generally described as disrespccfc to any member of tho House, as 6uch, by a person not being a member; disrespect to the House collectively, whether committed by a member or any other; disobedience to orders o£ the House, or interference with its vrocedure, with its officers in the execution of their duty, or with witnesses in respect of evidence given before tho House or a Committee of the House." The punishment may merely involve an apology, or it may range from admonition and reprimand to £do and imprisonment. Fines have not been imposed by the House of Commons since 1G66, but they are one of the forms of punishment employed by our Parliament. Member? who offend may be expelled, if necessary, and tho Hoiise may order the Speaker to issue his writ for a new election for the seat of the member expelled, but tho House cannot prevent the re-election of the member so expelled. As regards the power to commit to prison, this power is limited by the duration of tlie session. The House cannot commit to prison for a term extending beyond the end of the session, but a warrant for commitment for contempt need not state the nature of the contempt. |