§ 157. “Powers, Privileges, and Immunities.”

The rights, duties, powers, privileges, and immunities of each House of the British Parliament, and of the committees and members of each House, form a part of the common law technically called the lex et consuetudo parliamenti. This law of Parliament is only to be collected “out of the ancient rolls of Parliament and other records, and by precedents and continual experience.” (Coke, 4 Inst. 15.) The sole evidence of the ancient law of Parliament is to be found in the declarations, customs, and usages of Parliament. Each House may expound the law of Parliament and vindicate its own privileges, but no new privileges can be created. In 1704 at a joint conference of the Lords and Commons, it was resolved: that neither House of Parliament has any power by vote or declaration to create for itself new privileges not warranted by the known laws and customs of Parliament. (May, 10th ed. p. 61.)

POWERS And PRIVILEGES.—The following are among the principal powers and privileges of each House, and of the members of each House, of the Imperial Parliament, as now known to the law:—

  • (i.) The power to order the attendance at the bar of the House of persons whose conduct has been brought before the House on a matter of privilege.
  • (ii.) The power to order the arrest and imprisonment of persons guilty of contempt and breach of privilege.
  • (iii.) The power to arrest for breach of privilege by the warrant of the Speaker.
  • (iv.) The power to issue such a warrant for arrest, and imprisonment for contempt and breach of privilege, without showing any particular grounds or causes thereof.
  • (v.) The power to regulate its proceedings by standing rules and orders having the force of law.
  • (vi.) The power to suspend disorderly members.
  • (vii.) The power to expel members guilty of disgraceful and infamous conduct.
  • (viii.) The right of free speech in Parliament, without liability to action or impeachment for anything spoken therein; established by the 9th article of the Bill of Rights.
  • (ix.) The right of each House as a body to freedom of access to the sovereign for the purpose of presenting and defending its views.

BREACHES OF PRIVILEGES.—The following are instances of breaches of privileges:—

  • (i.) Wilful disobedience to the standing rules and orders of the House passed in the exercise of its constitutional functions.
  • (ii.) Wilful disobedience to particular orders of the House, made in the exercise of its constitutional functions.
  • (iii.) Wilfully obstructing the business of the House.
  • (iv.) Insults, reflections, indignities and libels on the character, conduct and proceedings of the House and of its members.
  • (v.) Assaults on members of the House.
  • (vi.) Interference with the officers of the House in the discharge of their duties.

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ENFORCEMENT OF PRIVILEGES.—The privileges of Parliament are enforced, and breaches thereof punished, by the power vested in each House to order the arrest and imprisonment of offenders. The power of commitment, with all the authority which can be given by law, is said to be the Keystone of Parliamentary privilege.

“Either House may adjudge that any act is a breach of privilege and contempt; and if the warrant recites that the person to be arrested has been guilty of a breach of privilege, the courts of law cannot inquire into the grounds of the judgment, but must leave him to suffer the punishment awarded by the High Court of Parliament, by which he stands committed.” (May's Parl. Prac. 10th ed. p. 66.)

“The Habeas Corpus Act is binding upon all persons whatever, who have prisoners in their custody; and it is therefore competent for the judges to have before them persons committed by the Houses of Parliament for contempt; and it is the practice for the Serjeant-at-arms and others, by order of the house, to make returns to writs of habeas corpus.” (Id. p. 67.)

“But although the return is made according to law, the parties who stand committed for contempt cannot be admitted to bail, nor the causes of commitment inquired into, by the court of law.” (Id. p 67.)

“It may be considered, accordingly, as established, beyond all question, that the causes of commitment by either house of Parliament, for breaches of privilege and contempt, cannot be inquired into by courts of law; but that their ‘adjudication is a conviction, and their commitment, in consequence, an execution.’ No other rule could be adopted consistently with the independence of either house of Parliament; nor is the the power thus claimed by Parliament greater than the power conceded by the courts to one another.” (Id. p. 67.)

“One qualification of this doctrine, however, must not be omitted. When it appears, upon the return of the writ, simply that the party has been committed for a contempt and breach of privilege, it has been universally admitted that it is incompetent for the courts to inquire further into the nature of the contempt; but if the causes of commitment were stated on the warrant, and appeared to be beyond the jurisdiction of the house, it is probable, judging by the opinion expressed by Lord Ellenborough, in Burdett v. Abbot (5 Dow 165; 14 East 1), and by Lord Denman in the case of the sheriff of Middlesex (11 A. and E. 273), that their sufficiency would be examined. The same principle may be collected from the judgment of the Exchequer Chamber in Gosset v. Howard (10 Q.B. 359), where it is said ‘It is presumed, with respect to such writs as are actually issued by superior courts, that they are duly issued, and in a case in which they have jurisdiction, unless the contrary appears on the face of them.” (Id. p. 68.)

IMMUNITIES.—The following are instances of Parliamentary immunities:—

  • (i.) Immunity of members for anything said by them in the course of Parliamentary debates.
  • (ii.) Immunity of members from arrest and imprisonment for civil causes whilst attending Parliament, and for forty days after every prorogation, and for forty days from the next appointed meeting.
  • (iii.) Immunity of members from the obligation to serve on juries.
  • (iv.) Immunity of witnesses, summoned to attend either House of Parliament, from arrest for civil causes.
  • (v.) Immunity of Parliamentary witnesses from being questioned or impeached for evidence given before either House.
  • (vi.) Immunity of officers of either House, in immediate attendance and service of the House, from arrest for civil causes.

WHAT ARE NOT PRIVILEGES.—Neither House has a right to promulgate standing rules and orders, or to make or enforce any particular votes or resolutions, which are contrary to the common law, or to the statute law of the country. Several historical cases have established the principle that there are defined limits to parliamentary privilege, and that any attempted exercise of privilege, in excess of that recognized by law, if not checked by the force of public opinion, may be pronounced illegal on appeal to the courts of law. It is an acknowledged right of the House of Commons to expel a member, who disgraces or defies it, but the House could not legally go further and declare him disqualified for re-election.

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“In 1764, John Wilkes was expelled, for being the author of a seditious libel. In the next Parliament (3rd February, 1769) he was again expelled for another libel; a new writ was ordered for the county of Middlesex, which he represented, and he was re-elected without a contest; upon which it was resolved, on the 17th February, ‘that, having been in this session of Parliament expelled this house, he was and is incapable of being elected a member to serve in this present Parliament.’ The election was declared void: but Mr. Wilkes was again elected, and his election was once more declared void, and another writ was issued. A new expedient was now tried: Mr. Luttrell, then a member, accepted the Chiltern Hundreds, and stood against Mr. Wilkes at the election, and, being defeated, petitioned the house against the return of his opponent. The house resolved that, although a majority of the electors had voted for Mr. Wilkes, Mr. Luttrell ought to have been returned, and they amended the return accordingly. Against this proceeding the electors of Middlesex presented a petition, without effect, as the house declared that Mr. Luttrell was duly elected. These proceedings were proved by unanswerable arguments to be illegal; and on the 3rd May, 1782, the resolution of the 17th February, 1769, was ordered to be expunged from the journals, as ‘subversive of the rights of the whole body of electors of this kingdom.’ In 1882, Mr. Bradlaugh, having been expelled, was immediately returned by the electors of Northampton; and no question was raised as to the validity of his return.” (May's Parl. Prac. 10th, p. 53.)

The House of Commons could not, by passing a particular or general order authorize the publication of parliamentary papers containing libels. In the case of Stockdale v. Hansard (1836), 9 A. and E. p. 1, it was held to be no defence in law, to an action for publishing a libel, that the defamatory matter was part of a document which was, by order of the House of Commons, laid before the House, and which was afterwards, by order of the House, printed and published by the defendant. In consequence of that decision the Act 3 and 4 Vic. c. 9 was passed which provided that where an action or criminal prosecution, similar to the above, is commenced, it can be stayed by bringing before the court or judge a certificate under the hand of the Lord Chancellor, or of the Speaker of the House of Commons, to the effect that the publication in question was by order of either House, together with an affidavit verifying the certificate. What could not be legally done by one House under cover of privilege could, without any difficulty, be legalized by an act of Parliament; the power of Parliament being unlimited.

PRIVILEGES OF COLONIAL LEGISLATURES.—The law and custom of Parliament (lex et consuetudo parliamenti) is not a part of the common law which Englishmen are presumed to have carried with them, as their political birthright and heritage when they founded new settlements and colonies beyond the seas. The inherent powers and privileges of colonial legislative bodies which have no express grant of powers and privileges similar to those of the British Parliament, have been considered and expounded by the highest legal tribunals of the Empire in a number of leading cases. The principles affirmed were (1) that a colonial legislative body, whether it has been established by Royal Charter, or by statute of the Imperial Parliament, is not entitled to enjoy and exercise the powers, privileges, and immunities of the Houses of the British Parliament, unless those powers, privileges, and immunities have been expressly conferred upon such a body by Imperial statute; (2) that such legislative assemblies can, without express grant, exercise all regulating and self-preserving powers that are necessary for their existence, and for the proper exercise of the functions they are intended to execute. Whatever, in a reasonable sense, is necessary for these purposes is impliedly granted, whenever any such legislative body is established by competent authority. These principles are founded on the maxim, “quando lex aliquid alicui concedit, conceditur et id sine quo res ipsa esse non potest.” For those purposes protective and self-defensive authority only, and not punitive, are necessary. If a member of a colonial Legislative Assembly is guilty of disorderly conduct in the House, while it is sitting, he may be removed or excluded for a time or even expelled. The power to suspend a member guilty of obstruction or disorderly conduct, during the continuance of any sitting, was held to be reasonably necessary for the proper exercise of the functions of any Legislative Assembly. It was also held that the same doctrine of reasonable

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necessity would authorize a suspension until submission or apology by the offending member, but that such legislative bodies had no power to order the imprisonment of disorderly members or of other persons guilty of breach of privilege and contempt. (Kielley v. Carson, 4 Moore, P.C. 63; Doyle v. Falconer, L.R. 1 P.C. 328; Fenton v. Hampton, 11 Moo. P.C. 360; Barton v. Taylor, 11 App. Ca. 197.)

Sec. 35 of the Constitution Act of New South Wales, scheduled to 18 and 19 Vic. c. 54. enacted that the Legislative Council and Legislative Assembly of that colony should, from time to time, prepare and adopt standing rules and orders, provided that such rules and orders should be approved by the Governor. In pursuance of this power the Assembly adopted a standing order as follows: “In all cases not specially provided for hereinafter, or by sessional or other orders, resort shall be had to the rules, forms, and usages of the Imperial Parliament, which shall be followed so far as the same can be applied to the proceedings of this House.” At the time when the standing order was so approved, it was one of the rules or usages of the Imperial Parliament for either House of Parliament to suspend from the service of the House for such period as it should name, or, without naming any period of suspension, until it should give directions in the matter, any member persistently and wilfully obstructing the business of the House. Subsequently to the passing of the standing order a rule was adopted by the House of Commons, authorizing the suspension of an obstructing member for a week on the first occasion, for a fortnight on the second occasion, and for a month on the third or any other occasion. The effect of this standing order was considered in 1884 by the Supreme Court of New South Wales, and afterwards by the Privy Council, on appeal, in the case of Taylor v. Barton (6 N.S.W. L.R. 1, 11 App. Ca. 197), in which the plaintiff, a member, sued the Speaker of the Legislative Assembly to recover damages for assault in directing the Serjeant-at-Arms to remove him from the Chamber. The plaintiff had been “suspended from the service of the House” for obstruction. No term of suspension was specified in the resolution directing suspension. Within a week from the passing of the resolution of suspension Mr. Taylor re-entered the chamber and was thereupon removed, which constituted the assault complained of.

It was held by the Supreme Court, and by the Privy Council on appeal, that the resolution must not be construed as operating beyond the sitting during which the resolution was passed; that the standing order of the Legislative Assembly adopting so far as is applicable to its proceedings the rules, forms, and usages in force in the British House of Commons, and assented to by the Governor, was valid, but must be construed to relate only to such rules, forms, and usages as were in existence at the date of the order. (Barton [appellant] v. Taylor [respondent], 11 App. Ca. p. 197.)

The Privy Council was of opinion that the authority conferred upon the Legislative Assembly, by the Constitution Act, was not limited by the principles of common law applicable to those inherent powers which, without express grant, must be implied from mere necessity; but that its authority was sufficient to enable the Assembly to adopt from the Imperial Parliament, or pass by its own authority, any standing order giving itself power to punish an obstructing member, or remove him from the Chamber for any period longer than the current sitting. This of course could not be done by the Assembly without the Governor's assent. The affirmance of the judgment appealed from was founded on the view, not that it could not have been done, but that nothing appeared on the record which gave the resolution, suspending the respondent, a longer operation than the current sitting. (Barton v. Taylor, 11 App. Ca. 197.)

Section 34 of the Constitution Act of Victoria, scheduled to 18 and 19 Vic. c. 55 (1st July, 1855), authorized the Legislative Council and Legislative Assembly to prepare and adopt standing rules and orders, which, when approved by the Governor, should be binding and of full force in law. Sec. 35 of the same Act provided:—

“It shall be lawful for the Legislature of Victoria by any Act or Acts to define the privileges, immunities, and powers to be held, enjoyed, and exercised by the Council and Assembly and by the members thereof respectively. Provided that no such

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privileges, immunities, or powers shall exceed those now held, enjoyed, and exercised by the Commons, House of Parliament, or the members thereof.”

Section 35 of the Constitution of South Australia (24th Oct., 1856), contained a similar clause enabling the Parliament of that colony to declare its privileges in like manner. In pursuance of the power conferred by sec. 35 the Parliament of Victoria passed the Act 20 Vic. No. 1, of which sec. 3 (re-enacted in sec. 10 of the Constitution Act Amendment Act, 1890) was as follows:—

“The Legislative Council and Legislative Assembly of Victoria respectively, and the committees and members thereof respectively, shall hold, enjoy, and exercise such and the like privileges, immunities, and powers as, and the privileges, immunities, and powers of the said Council and Assembly respectively, and of the committees and members thereof respectively, are hereby defined to be the same as, at the time of the passing of ‘The Constitution Statute’ were held and enjoyed and exercised by the Commons House of Parliament of Great Britain and Ireland and by the committees and members thereof, so far as the same are not inconsistent with the said Act, whether such privileges, immunities, or powers were so held, possessed, or enjoyed by custom, statute, or otherwise.”

On 29th April, 1862, Mr. George Dill, the publisher of the Argus, was arrested on a warrant signed by the Speaker of the Legislative Assembly, by direction thereof, on a charge of having printed and published a libel concerning the Assembly and one of its committees. On his being brought to the bar of the House, Mr. Dill was adjudged guilty of contempt, and was ordered to be detained in custody for the space of one month. Mr. Dill applied for, and was afterwards brought before a judge of the Supreme Court on, a writ of habeas corpus. Mr. Palmer, the Serjeant-at-Arms, made a return to the writ, justifying detention under the mandate of the warrant of the Speaker, according to the order of the House. The warrant in this case set forth the nature of the contempt complained of as the ground for commitment. It was held by the Court that the power given by sec. 35 of the Constitution Act was well exercised by the legislature of Victoria in the enactment of 20 Vic. No. 1, sec. 3, that the Legislative Council and Legislative Assembly of Victoria have all the privileges, immunities and powers which were legally held, enjoyed, and exercised by the Commons House of Parliament at the time of the passing of the “Constitution Statute,” and that the publication outside the House, in a newspaper, of an article which the Assemby adjudged to be a libel on the Assembly, on a select committee thereof, and on a member of each, qua such member, is a contempt for which the House has authority to commit. (In re Dill, 1 W. and W. [L.] 171.)

The offending publisher was then remanded in custody. Subsequently he brought an action against Sir Francis Murphy, the Speaker, for false imprisonment. In that action it was held by the Supreme Court that the impossibility of the Legislative Council or Assembly exercising the power of impeachment did not restrict the general words of sec. 35 of the Constitution Act creating the power, or render invalid an enactment which gave other powers that might be exercised by the Council and Assembly. (Dill v. Murphy, 1 W. and W., L. 342, 356.) On appeal to the Privy Council, the decision of the Supreme Court was affirmed. The word “defined” was held equivalent to “declared,” and the power given by the Act had been properly exercised. (1864, 1 Moo. P.C. N.S. 487.)

On 11th March, 1869, the Legislative Assembly of Victoria appointed a select committee to enquire and report upon certain charges which had been made relating to the character and conduct of some of its members. Hugh Glass was examined as a witness before the committee, which afterwards reported to the House that Hugh Glass and John Quarterman had been guilty of bribing and unduly influencing certain members of the Assembly. Glass and Quarterman were then adjudged guilty of contempt and of breach of privilege. They were arrested on the Speaker's warrant, brought before the House, found guilty and committed to the custody of the keeper of the Melbourne gaol. The warrant in this case was couched in general terms, and did not recite particulars of the contempt and breach of privilege. Whilst they were in goal the Speaker issued

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another warrant against Glass, similar to the first except that it contained no reference to Quarterman. On 30th April Glass obtained a writ of habeas corpus, directed to the keeper of the gaol, who made a return to the writ, relying on the two warrants as the cause of his detaining the prisoner. The Chief Justice, Sir William F. Stawell, assisted by two other judges, heard the arguments of counsel for and against the discharge of Glass. On the 1st May prisoner was discharged on the ground that the warrant was bad, as it did not describe the contempt so as to show that it was of a kind for which the House of Commons might have committed in 1855. By direction of the House a rule nisi was obtained to set aside the order of the Chief Justice. This rule was argued before the Full Court, which decided that it had no jurisdiction to rescind the order of a judge made on the return to a writ of habeas corpus. The Speaker petitioned Her Majesty in Council for special leave to appeal against the decision of the Chief Justice, and also against that of the Full Court. On the case coming before the Privy Council for hearing, the appeal was allowed, and the orders of the court in the colony were reversed. The Privy Council held that the Assembly had, under sec. 35 of the Constitution Act and the Act 20 Vic. No. 1, the same powers and privileges as those of the House of Commons, and, among them, the power of judging for itself what is a contempt, and of committing for contempt by a warrant stating generally that a contempt has been committed. (Speaker of the Legislative Assembly v. Glass, 1871, L.R. 3 P.C. 560.)

The Legislative Assembly of Victoria, it has been held, does not possess the privilege, by passing resolutions imposing customs duties, to authorize the collection of those duties by a customs officer till the end of the session of Parliament in which such resolutions have been passed. The Supreme Court has power to determine the legality of the privilege. And the statement in the pleadings of such a privilege is a question of law and not of fact, and sec 2 of Act 20, Vic. No. 1, making the journals of the House of Commons, and consequently of the Assembly, prima facie evidence of the privilege, does not turn the privilege into a question of fact; and therefore the privilege could not be admitted by a demurrer to a plea averring such privilege. (Stevenson v. The Queen, 2 W.W. & A'B [L.] 143.)