The dividing line between privileged and non‑privileged activities of each House is not easy to define. Perhaps the nearest approach to a definition is that the areas in which the courts ought not to intervene extend beyond proceedings in Parliament, but the privileged areas must be so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly.
Parliamentary privilege is one of the ways in which the fundamental constitutional separation of powers is respected. Each of the branches of the State is vouchsafed a measure of autonomy from the others. The parliamentary privilege was partially codified in art. 9 of the U.K. Bill of Rights of 1689, 1 Will. & Mar. sess. 2, c. 2, but the freedom of speech to which it refers was asserted at least as early as 1523 CE. Parliamentary privilege is a principle common to all countries based on the Westminster system and has a loose counterpart in the Speech or Debate Clause of the United States Constitution, art. 1, § 6, cl. 1. Privilege is what sets hon. members apart from other citizens giving them rights which the public does not possess. I suggest we should be careful in construing any particular circumstance which might add to the privileges which have been recognized over the years and perhaps over the centuries as belonging to members of the House of Commons. It is said that the parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member to discharge his duties in the House as a member of the House of Commons (House of Commons Debates, vol. V, 3rd Sess., 28th Parl., April 29, 1971, at p. 5338). In Canada Parliamentary privilege includes the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces . . . in order for these legislators to do their legislative work. The fact that this privilege has been upheld for many centuries, abroad and in Canada, is some evidence that it is generally regarded as essential to the proper functioning of a legislature patterned on the British model. The Constitution Act, 1867 (as amended in 1875) provides:
18. The privileges, immunities, and powers to be held, enjoyed and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.
Parliamentary privilege is defined by the degree of autonomy necessary to perform Parliament’s constitutional function. Sir Erskine May’s leading text on the subject defines parliamentary privilege as the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. [Emphasis added; p. 75.] Similarly, Maingot defines privilege in part as “the necessary immunity that the law provides for Members of Parliament, and for Members of the legislatures of each of the ten provinces and two territories, in order for these legislators to do their legislative work” (p. 12 (emphasis added)). To the question “necessary in relation to what?”, therefore, the answer is necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.
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