Parliamentary Privilege and its Abuses – A Proposal for Reform

Parliamentary privilege, and in particular the doctrine of parliamentary immunity contained in Article 9 of the Bill of Rights of 1689, are considered critical to the functioning of the Westminster system of government. The protection that parliamentary immunity offers to debates and proceedings in parliament secures the freedom of expression required for open debate and the conduct of legislative inquiries. However, changes in the relationship between crown and cabinet in the 18th century, coupled with the rise in the party system in the 19th and 20th centuries, had the unintended and paradoxical consequence that parliamentary immunity has become a shield behind which governments avoid accountability to parliament. In addition, the fact that the doctrine enables parliament to decide controversies over the election of members or their eligibility to sit, means that legal questions are decided on political grounds, contrary to the nemo iudex in sua causa rule. The article discusses these issues with reference to parliamentary practice in the United Kingdom and Australia and ends by presenting a draft legislative provision which, it is argued, would better balance freedom of political debate on the one hand and executive accountability to the legislature and the principle of impartial judgment on the other.