HOW FREE IS PARLIAMENT?

New Zealand Listener, Volume 19, Issue 473, 16 July 1948, Page 6

HOW FREE IS PARLIAMENT?

H*s the broadcasting of proceedings in Parliament affected the protection to members afforded under privilege tor words spoken in debate? The question_has recently been raised, and with it several other questions about the privileges enjoyed by members of the Legislature-some of them riow legendary. To get the broad principles elucidated, and some. popular errors dispelled, we asked T. D. H. HALL, a former Clerk of the House, to explain the purpose and extent of privilege and of the factors to be taken into consideration in deciding what action if any Parliament must take to meet the new situation.

IKE labels which endure long after they have ceased to be descriptions, privileges often are enjoyed long after they have ceased to be deserved. Privilege is part of the law of the land, yet to a certain extent it is an exemption from the ordinary law, for it is the sum of the peculiar rights enjoyed by each House collectively and by its members individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or persons. An example of these rights peculiar to members is that of: saying in the House what would be actionable if spoken outside. The corollary is that they are not answerable in a court of law, which, once privilege is established, would stop further proceedings. Privilege and Function The word function is important. Privilege was claimed and is retained to enable Parliament to perform its proper function. A third ingredient is necessary-disciplinary powers to enforce its privileges. Power to’ punish for a breach of privilege or contempt is the prerogative of a court. The British Parliament in its beginning developed as the High Court of Parliament. Colonial legislatures were however created by statute. It has been held that they are not courts. Under the common law they as legislative bodies are endowed of necessity with powers and privileges similar to those enjoyed by the British legislature, but not the power to punish for contempt. This

~- powef has however been taken by express enactment (Legislature Act, 1908). Privilege is claimed under the law and custom of Parliament, that is, it is claimed as having existed from time immemorial. Some have been confirmed by statute, but it follows that one House of its own motion cannot claim a new privilege. Each House Has Privileges Each House enjoys its own privileges independently of the other, though the privileges of both are part of the common law of Parliament. There are certein privileges, such as the sole right of the lower House to initiate money bills, which some authorities prefer to call constitutional powers. They, will not be dealt with further in this article. The privileges affecting membersgwhich most people are interested in are those mentioned in the ancient claim made by the Speaker of the House of Commons when presenting himself to the King for confirmation of his election as Speaker. They are freedom of speech, freedom from arrest, right of access to

~ the Crown, and the right to have a favourable construction placed on their proceedings. The two last have ceased to have any. practical importance today. Qualified Freedom from Arrest Freedom from arrest was originally due to the success of the King in controlling the more powerful of his subjects. Members of the Commons lawfully summoned to Parliament were not to be’prevented. by some charge brought before a local court. They were to enjoy the King’s peace. Later the privilege was invoked by the Commons against the King. Later still it was used for the more mundane purpgse of preventing the afrest or securing the release of a member unable to pay his debts. It was never available to a member who committed a crime. The privilege ceased to be of importance when imprisonment for debt was abolished. A subsidiary privilege prevented a member being called as a witness or being summoned as a party in a civil action. This is seldom invoked to-day. The tendency is to grant leave of ab-

sence. The privilege is only available when Parliament is sitting and for a brief period before and after the session, Two Parts in Freedom of Speech Freedom of speech though claimed at an early date was won only after a long struggle. It was the right of members called on to provide part of the national finance to criticise national policies and administration without fear of reprisals from the King. Parliament also claimed the essential subsidiary privilege of controlling the publication of debates. In early days total prohibition was necessary. .The right to control publication still exists, as witness the prohibition of the publication of debates in secret sessions, but to-day the widest of publicity is thought necessary in the interest of democracy. There are thus two parts in the privilege of freedom of speech. There is the privilege attaching to words spoken within the walls of Parliament, and, from the time was freely allowed, there is the question of the -protection afforded when members’ speeches are published outside either in print or now by broadcasting. Freedom of speech was confirmed by the Bill of Rights, the wording of which governs the extent of the privilege. It is worth noting that when the battle against the King was practically won a majority of the House of Commons used their right to control publication to prevent the public learning what was being done in the House, The Letters of Junius did a great deal to arouse public opinion against this abuse of privilege. (continued on next page)

(continued from previous page) To-day the privilege serves to protect a member from prosecution by individuals or public bodies for anything however injurious that he may have said in a speech in the House. There are limitations under the rules of the House. Certain persons, for example, the Royal Family, judges, other members, may not be attacked in the course of a speech. There is in New Zealand a Tule as to temperate language. There is @ feeling that a member should not under cover of privilege make a violent personal attack on an opponent or critic and the Speaker has on _ occasions checked a member without asking him to desist. "The claim of the Commons| that its privilege extended protection to the printed debates published under its direction was rejected by the Court as far as the publishers were concerned. This famous Hansard case is a landmark in the contest between the Commons and the Courts as to the latter’s right to interfere in any matter of privilege. The House accepted the Court’s claim in this case to determine whether the privilege was in fact part of the law and protection to the official record was afforded by statute Similar statutory provision was made in New Zealand. It has been held too that if a member publishes his own speech he loses protection. Newspapers reporting Parliamentary proceedings do so under a waiver of the privilege of controlling the publication of debates. They have no protection under privilege, but are covered by the general rule under the law of defamation as to fair and accurate reports. Some Statutory Protection Needed Broadcasting would certainly appear to be a method of publication of debates beyond the walls of the House, and some at any rate of the principles applied in the case of the printed reports would presumably apply. There would be no protection of the publisher in the absence of a statute. The existing statute for the printed reports does not cover the new technique. The question of authorised publication would also be relevant. In New Zealand the fact that the broadcasting is done by a Government department is important in the matter of the liability for libel or slander. Under the Crown Suits Act the Crown could not be sued. The ques-, tion has been raised as to whether the member by speaking over the air is a party to the publication of his own speech outside the House. Broadcasting is a matter for the House to decide and he can press in the House for statutory protection and can refrain from speaking or at least from uttering a slander. The point is one on which there may be a difference of opinion. In general, it would appear to be a case for statutory protection, but a protection which does not extend too widely. This is a very brief statement of general principles extracted from the standard authority, May’s Parliamentary Procedure. It leaves untouched the whole subject of contempts of Parliament, such as disobedience to lawful directions, threats to members, etc., and of the powers and procedure for enforcement of privilege. It barely touches the fascinating personal element in the history of privilege both in Britain over centuries and in New Zealand over less than one."