Topic 1- Parliamentary Privilege: The Constitutionality of arresting Members of Parliament.
1 Introduction
Members of Parliament (MPs) enjoy parliamentary privilege so that they are able to carry out their duties without external interference. This privilege is based in the belief that MPs should be able to speak without restriction, to be able to perform and disclose misconduct without the concern of being held legally responsible for what they say. Without this protection MPs would be limited in their performance. The question arises as to the extent of which parliamentary privilege protects MPs and whether MPs may be arrested. An analysis of the relevant law reveals that while parliamentary privilege broadly protects MPs, this protection
…show more content…
The applicant, the main opposition party in Parliament challenged the Constitutionality of section 11 of the Act. The applicant held that while section 11 stated that “A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts”, that this did not extend to Members of Parliament themselves.
The Court looked at sections 58(1) and 71(1) of the Constitution which affords members of the National Assembly and the Executive a right to freedom of speech in the Assembly and its committees, subject to its rules and orders. The Court also considered section 57(1) of the Constitution which allows Parliament to make rules that temporarily exclude disruptive members from Parliamentary sittings.
The Court held that while Parliament may have the power to conduct its own affairs, the privilege of freedom of speech is essential to allow Parliament to perform its function of conducting debates about matters important to the
The power of executive privilege has been extremely controversial since basically the beginning of the United States as a democratic government. Many saw this power come into a greater public focus particularly during the Nixon presidency and the infamous Watergate Scandal, but the theory and use of executive privilege existed long before Nixon. As in true American fashion, some argue in favor of executive privilege, while others view it in a more negative light. The intense controversy is what makes executive privilege so intriguing to review in a deeper and more in depth analysis. The theory of executive privilege has derived its power throughout evolution of time, a series of presidencies, and quite a few pinpointed circumstances resulting in some very notorious court cases.
Cases on the foundations of a constitutional order, such as parliamentary sovereignty, tend to be rare in any event. But what makes R (Jackson) v. Attorney General [2005] U.K.HL. 56; [2006] 1 A.C. 262 a significant case, is the dicta regarding constitutional issues mentioned by the judges in relation to parliamentary sovereignty. The discussions of the central issues in the case are in many ways constitutionally orthodox, treating the primary concerns as that of statutory interpretation and adopting a literal interpretation of the 1911 Act. By contrast, the discussion of the wider issues suggest that the judiciary may have support for what could be classed as unorthodox opinions on the doctrine of parliamentary sovereignty. The concept of parliamentary sovereignty is to be considered as a mere ideology in the eyes of the legislature, as the modern day practical sovereign parliament is far from that of the theory.
In conclusion it seems that the traditional view of parliamentary sovereignty as purported by Dicey is no longer an immutable part of our constitution. Although it remains a key principle of our constitution, it has now been reinterpreted in light of seminal cases such as Factortame and Jackson, from a legally unchangeable, rule of our constitution, to one in which Parliament is no longer prevented from placing limits to the content and form of itself.
As a member of the dominant race in America, I know that I possess certain unearned privileges that allow me to be more successful overall. I was raised with the mindset that racism doesn't affect me because I am white. The U.S. education system taught me about my racial and ethnic history, but it is likely that my classmates of different races could not say the same. I learned about racism in school but not to view whites as privileged or degrading towards subordinate groups. My group was never seen at fault for oppression or took any responsibility for it. Myself, nor my peers, were ever seen or viewed as unfairly advantaged or privileged. I grew up under the impression that any person could achieve what they wanted if they simply worked hard
... idea of Parliamentary Sovereignty: The Controlling Factor of Legality in the British Constitution’ (2008) OJLS 709.
Conn (1968). Within this case the claimant argued that he did not want to pay his taxes because Parliament was using them to fund nuclear missiles, and this was a breach of the Geneva Convention. The court said that "Parliament shall not be bound if it so desired", that is to say it is not for anyone to declare Parliamentary action illegal. This case shows us how Parliament is supreme in the respect no one can challenge its judgement.
“The Parliament shall, subject to the Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (xxi) Marriage: (xxii) Divorce and matrimonial causes; and relation thereto, parental rights and the custody and guardianship of inf...
The RP helps to keep our powers separated which avoiding the judicial tyranny. After the formation of the two houses of parliament, which called the legislature, the creation of our statutes prevail to the RP. In the case of De Kayser, RP and statute found to co-exist and statute prevails, for the reason that the representatives in the House of Commons are elected from the public in order to create statute to help the development of the country. Moreover, the constitutional conventions are also part of our unwritten constitution and have conflict to the royal prerogative. Some of the RP powers are included to the conventions such as the automatic granting of royal assent, which the Queen should sign after the convention. Finally, the fire brigades union case mentioned that the executive cannot exercise the prerogative in a way which would derogate from the due fulfilment of statutory duty. The data indicates that the current prime minister, has power to overrule the UK’s parliament recent vote of a military intervention in Syria by using the RP which bypass any common decision of acts of war. Generally, powers such as the parliamentary immunity and prerogative powers, destroy the equality and justice of the society, by giving permission, to avoid the soft process of the legitimate society and finally breaking the rule of law. Supporting this argument, a member of parliament, Jack Straw strongly
On one hand, political constitutionalists argue that parliamentary sovereignty is the underlying principle in the British constitution as power and law making are bo...
middle of paper ... ... ccountability to Parliament” (March 2004) www.publications.parliament,uk/pa/cm200204/cmseelct/cmpubadm/422/42202.htm “Unfinished Business? Ministerial Powers and the Prerogative” (May 2003)- http://www.parliament.uk/parliamentary_committees/public_administration_select_committee/pasc_no_12.cfm http://www.guardian.co.uk/monarchy/story/0,2763,407374,00.html --------------------------------------------------------------------- [1] Cited in Barnett H “Constitutional and Administrative Law” (Cavendish Publishing, Australia, 2004) pg 289 [2] Barnett H “Constitutional and Administrative Law” (Cavendish Publishing, Australia, 2004)
The case against a Bill of Rights as shown above includes the fact that it is foreign to our traditions and Australia has survived to date through its existing protection of basic rights. It is argued that a Bill of Right may provide too much power to the judges.
The doctrine of Supremacy of the EU Law has been adopted from the European Court of Justice, in which the doctrine covers all aspects of law in member states. The supremacy is evidently implied in the Treaty on European Union Article 4(3) and Treaty of the functioning of the European Union Article 18 , which emphasises the prohibitions against discrimination. This is then supported by Article 288 TFEU whereby the regulations are binding upon each member state. Furthermore, Article 344 TFEU ensures resolution between member states. This assignment will discuss to what extent the acceptance of the supremacy of the EU law has been problematic in regards to parliamentary sovereignty.
The House of Lords decision in the Daly underpinned one of Lord Bingham’s eight sub rules which refers to the law providing adequate protection for fundamental human rights. It was held the instruction issued by the Secretary of State violated prisoners right to a legal adviser under the seal of legal professional privilege. By holding the Secretary of State had no right to issue such an instruction, the House of Lords gave due regard to the Lord Bingham’s rule of law. A similar notion was present, in Wheeler where it said the club had a basic “constitutional right … to freedom of the person and freedom of speech” which had been interfered with by the council’s decision to ban use of the
Public Law: Text, Cases, and Materials by Andrew Le Sueur, Maurice Sunkin and Jo Murkens (Paperback - 12 Aug 2010) chapter 8 p 368-418
Although Parliament does not usually make law, it has the important role of scrutinising Bills. This involves close inspection and proposed amendments made by both the House of Commons and the House of