1 November 2007

Parliamentary privilege and the fracas in the lobby

I've been wondering whether the police have any jurisdiction over the fracas between Mallard and Henare in the lobby of the Chamber and also whether the private prosecution amounts to a breach of parliamentary privilege or is a contempt of Parliament. I've had a brief look at the issue and have so far reached the view that it's arguable – but by no means certain – that the incident is part of the proceedings of Parliament and therefore covered by parliamentary privilege. - The starting point is article 9 of section 1 of the Bill of Rights 1688 (along with the associated s242(1) of the Legislature Act 1908 which preserves the broader parliamentary privilege):
"That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."

- As McGee says, this protects "'proceedings in Parliament' from external review" (McGee, p620) and means that "[c]onduct in parliamentary proceedings cannot be the foundation of legal liability, either criminal or civil…" (McGee, p 626). - It is arguable that the incident falls within the rubric of proceedings in Parliament. This terms is not defined in NZ. In Australia, it has been defined as "all words spoken and acts done in the course of, or for the purposes of or incidental to, the transacting of the business of a House or of a committee…" (McGee, p621). In any event, it is clear it include "words or deeds" (Joseph, p400) and is not restricted to the proceedings within the Chamber itself. Joseph suggests that privilege "will protect communications between members, or between members and Ministers of the Crown, if they relate to the proceedings in Parliament" (Joseph, p403). Accordingly, there's a strong case for arguing that the fracas in the lobby relating to words expressed in the Chamber would be treated a part of the proceedings of Parliament. But this is the critical issue in this analysis.- I should note that McGee says that the "principle of exemption from legal liability from parliamentary conduct does not mean that criminal acts are exempt from prosecution merely because they are committed in a parliamentary environment" (McGee, p619) and gives a number of examples of where criminal conduct by people in the galleries or in the grounds may be subject to criminal sanction. However, the assumption underlying that statement is that the conduct in question is not part of the proceedings of Parliament, which – as noted above – is arguably not the case here. - Assuming the acts are part of the proceedings of Parliament, then the filing of charges based on them would involve the questioning of parliamentary proceedings and would be a breach of privilege. There are various possible consequences. The prosecution may fail due to a lack of jurisdiction (and/or the Speaker may intervene in the proceedings to protect the privilege). The Parliament may elect to waive the privilege in this case. The prosecution may amount to contempt of Parliament. - Of course, that does not mean the members are exempt from responsibility. It's just that Parliament itself is responsible for dealing with the behaviour. But the processes surrounding that have been covered by other commentators. As an aside, I should note that Standing Order 42 makes it clear that the Speaker has authority over admission to, and conduct in, the lobbies generally (McGee, 129). It will be interesting to see how this case plays out. As usual, comments and feedback welcomed.

UPDATE (2.11.2007):

A colleague of mine has referred me to the English "Bible" on parliamentary privilege, Erskine May's Treatise on the Law Privileges, Proceedings and Usage of Parliament. It makes the point - one that I accept - that simply because the act occurs within Parliament does not mean it is privileged:

There [is] no precedent for the House's affording Members any privilege on the sole ground that their activities were within the Palace...

However, as they note, the question remains open:

[T]hough the Bill of Rights will adequately protect a Member as regards criminal law in respect of anything said as part of proceedings in Parliament, there is more doubt whether criminal acts committed in Parliament remain within the exclusive cognizance of the House in which they are committed. In the judgement of the House of Lords in Eliot's case [[1883-84] 12 QBD 283], it was deliberately left an oepn question about whether the assault on the Speaker might have been properly heard and determined in the King's Bench. .... In Bradlaugh v Gosset, Stephen J said that he 'knew of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice'. ... Apart from Eliot's case over 350 years ago, no charge against a Member in respect of an allegedly criminal act in Parliament has been brought before the courts. Were such a situation to arise, it is possible that the House in which the act was committed might claim the right to decide whether to exercise its own jurisdiction.

I think this is consistent with my analysis above.

1 comment:

Nigel Kearney said...

I can't see the connection between Mallard punching Henare and the proceedings of Parliament, except that they both took place in the same building.

It wasn't 'in the course of' or 'for the purposes of' the business of the House so it would have to be 'incidental to'.

But 'incidental to', in context, is just a broadening of 'for the purposes of'. It doesn't encompass every act that could possibly be related to House business.

Could Mallard rely on Parliamentary Privilege if he was stopped at a checkpoint while driving home drunk from Parliament?

I think people are making too much of the fact the attack occurred in Parliament buildings. Privilege attaches to the activity being done, not the physical location.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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