Introduction to privilege of freedom of speech
13.1The long historical development of the privilege of freedom of speech in both Houses of Parliament found statutory form in Article IX of the Bill of Rights 1689,1 which states that ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. In this chapter the practical effect of Article IX on freedom of speech within Parliament itself, its application to the publication of parliamentary proceedings beyond the precincts, and the significance of the expressions in Article IX: ‘proceedings in Parliament’, ‘impeaching’, ‘questioning’ and ‘court or place out of Parliament’, are considered in turn.
Many jurisdictions both within the Commonwealth—Australia, Canada, India and New Zealand, for example—and beyond, such as the United States, share, in varying degree, the concepts and even the texts on which British parliamentary privilege rests.2 Where relevant, their experience is referred to in this and succeeding chapters since they form part of a shared parliamentary tradition.
- 1 Will and Mary, sess 2, c 2. The Claim of Right Act 1689 (c 28) passed by the Scottish Parliament referred only to ‘… the freedom of speech and debate [which ought to be] secured to the members'. For the application to Scotland and Northern Ireland of the provisions of the Bill of Rights, see the Report of the Joint Committee on Parliamentary Privilege, HL 43-I, HC 214-I (1998–99) paras 133–34, and W R McKay ‘The Bill of Rights, the Claim of Right and the Anglo-Scottish Union of 1707’ (1998) 66 The Table 53–67.
- In Australia, the Commonwealth Parliament enacted the Parliamentary Privileges Act 1987 which, though in certain respects it varies British practice, in other important areas is very close to it. The legislation specifically enacts that except as otherwise provided, the link with the privileges of the British House of Commons of 1901 should remain, and that Article IX should be taken to have the effect of s 16 of the Act (see para 6.13 ). Most Australian States enjoy United Kingdom privileges, though the dates at which the comparisons are drawn vary. In New South Wales, however, Parliament possesses only those privileges (including Article IX) which it has acquired by statute: other privileges are limited to those necessary for that parliament's existence and performance of its functions. New Zealand has enacted the Parliamentary Privilege Act 2014, which has as its main purposes to ‘(a) reaffirm and clarify the nature, scope, and extent of the privileges, immunities, and powers exercisable by the House of Representatives, its committees, and its members; and (b) ensure adequate protection from civil and criminal legal liability for communication of, and of documents relating to, proceedings in Parliament.’ The privileges of both Houses of the Parliament of Canada are defined in the Parliament of Canada Act 1985 and are those of the British House of Commons in 1867, and may not exceed those limits. Many Canadian provinces have legislated to adopt the same privileges as those of the Canadian House of Commons, and others have aligned their position directly with that of the British House. The Constitution of the United States of America provides that ‘for any Speech or Debate in either House’, Senators and Representatives ‘shall not be questioned in any other place’: and indeed the articles of Confederation of 1777 had used exactly the same formula as Article IX, replacing only ‘Parliament’ by ‘Congress’.