… Parliament has fiercely guarded its nebulously defined privileges that extend to society at large — as opposed to those privileges and immunities necessary for the smooth internal functioning of both Houses. Article 105(3) stipulated that the special privileges of Parliament shall be defined “by law” and “until so defined” shall be those that prevailed before the enactment of the 44th amendment in 1978. Prior to 1978, it was defined by the precedents set by the House of Commons until 1950.
It is revealing that in the past 60 years, Parliament has turned a blind eye to its obligations and not lifted a finger to codify its privileges and immunities into law. When the subject was last debated in 1994, most MPs were opposed to codification. This was in sharp contrast to Canada, Australia and New Zealand — countries that also traced their parliamentary privileges to the Bill of Rights (1689) — that have enacted laws defining parliamentary privilege.
In the United Kingdom, a seminal report by a joint parliamentary committee on parliamentary privilege, chaired by Lord Nicholls of Birkenhead, has become the de facto rule book on the subject. The Nicholls report defined parliamentary privilege as “the rights and immunities which the two Houses of Parliament and their members… possess to enable them to carry out their parliamentary functions effectively”. It did not list privileges. Instead, it specified the functions legislative privilege sought to achieve — passing laws, holding the executive accountable and voicing the concerns of ordinary citizens. Protecting the reputation and dignity of Parliament was missing from the list.
The Nicholls report, in fact, suggested doing away with the right of the House to punish non-members. It suggested that disputes could be heard by the high court under existing laws of libel and defamation. In any case, the last occasion a non-MP was committed by the order of the Commons was in 1880.
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