For many years, members of the public in Anguilla have been complaining about being abused and defamed by politicians when speaking in the House of Assembly and why they cannot take them to court for legal address. The complainants have been saying that the offending politicians have been using the so-called “Parliamentary Privilege” as a cloak for their attacks on them.
This matter has been explained extensively by retired High Court and Appeal Court Judge, Mr. Don Mitchell, CBE, QC. He gave the explanations in a paper he submitted to parliamentarians on Tuesday, August 11, at La Vue Conference Room during the Post-Election Seminar.
The following is part of Mr. Mitchell’s presentation on Parliamentary Privilege and other matters relating to conduct in the House of Assembly:
WHAT IS PARLIAMENTARY PRIVILEGE?
[1] The concept of ‘parliamentary privilege’ dates back to the English Civil War (1642-1651) when Parliament was fighting King Charles II for supremacy. In those days, the King considered himself supreme in the realm, and Parliament was seeking to free itself from interference by him. Parliament argued that MPs were subject only to the strict rule of Parliament, which ran in tandem with the criminal and civil law. They argued that it was the rule of Parliament that was supreme. The result of this difference was the Glorious Revolution of 1688. Eventually, in 1688 King James II was deposed and replaced on the throne by William and Mary. Parliament’s contract with the new dynasty was formalised in the Bill of Rights, 1689. Article 9 states that
The freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court of place out of parliament.
The modern interpretation of this Article is that it protects members of Parliament from being subjected to any penalty, civil or criminal, in any court or tribunal for what they have said in the course of proceedings in Parliament. [2] In Anguilla, parliamentary privilege is protected by the House of Assembly (Powers and Privileges) Act. This Act sets out the principal privileges of the Assembly. The Act is relatively short and its provisions are clear and succinct. Perhaps, therefore, the best way to enumerate the privileges is to go through the most relevant sections one by one, pausing for such explanation as may appear necessary or useful.
Immunity from legal proceedings
2. No civil or criminal proceedings may be instituted against any member for words spoken before, or written in a report to, the Assembly or to a committee or by reason of any matter or thing brought by him before the Assembly by petition, bill, question, motion or otherwise.
Privileges
3. No member shall be liable to arrest for any civil debt, except a debt the contraction of which constitutes a criminal offence, while going to, attending at, or returning from a sitting of the Assembly or any committee.
Right to enter Assembly
4. No stranger is entitled, as of right, to enter or to remain within the Chamber and precincts of the Assembly.
Speaker may regulate admittance
5. (1) The Speaker is hereby authorised to issue any orders that he may in his discretion deem necessary for the regulation of the admittance of strangers to the Chamber and precincts of the Assembly.
(2) Copies of orders made by the Speaker under this section shall be duly authenticated by the Clerk and exhibited in a conspicuous position in the Chamber and precincts of the Assembly, and those copies, when so authenticated and exhibited, are deemed to be sufficient notice to all persons affected by them.
Speaker may order withdrawal of stranger
6. The Speaker may at any time order any stranger to withdraw from the Chamber and precincts of the Assembly, and any person who fails to obey his order may be forcibly removed from the Chamber and precincts of the Assembly by any officer of the Assembly, and no proceedings shall lie in any court against the Speaker or officer in respect of the removal.
Offences relating to admittance to Assembly
7. Any stranger who—
(a) enters or attempts to enter the Chamber or the precincts of the Assembly in contravention of any order of the Speaker;
(b) fails or refuses to withdraw from the Chamber or the precincts of the Assembly when ordered to withdraw therefrom by the Speaker; or
(c) contravenes any of the Standing Orders or any order made by the Speaker under section 5 relating to the admission of strangers;
is guilty of an offence and is liable on summary conviction to a fine of $4,800 or to imprisonment for a term of 3 months or to both.
Attempted intimidation of Assembly or committee
8. (1) Any person who is a member of a group of 12 or more persons who come in a riotous, tumultuous or disorderly manner to the Chamber or the precincts of the Assembly while the Assembly or any committee is sitting in order to hinder or to promote the passing of any bill, resolution, or other matter before the Assembly or committee is guilty of an offence and is liable on summary conviction to a fine of $19,200 or to imprisonment for a term of 6 months or to both.
(2) Any person who incites any other person to come in a riotous, tumultuous or disorderly manner to the Chamber or the precincts of the Assembly while the Assembly or any committee is sitting in order to hinder or to promote the passing of any bill, resolution or other matter before the Assembly or committee is guilty of an offence and is liable on summary conviction to a fine of $19,200 or to imprisonment for a term of 6 months or to both.
Other offences
9. (1) Any person who—
(a) offers to any member or to any officer of the Assembly any bribe, fee, compensation, gift, benefit or reward of any kind in order to influence him in his conduct as a member or officer, or for or in respect of the promotion or of opposition to any bill, motion or matter submitted to or intended to be submitted to the Assembly or any committee;
(b) assaults, obstructs, molests or insults any member coming to, being within, or going from the Chamber or the precincts of the Assembly, or endeavours to compel any member by force, insult or menace to declare himself in favour of or against any proposition or matter pending or expected to be brought before the Assembly or any committee;
(c) assaults, interferes with, molests, hinders, resists, obstructs or insults any officer of the Assembly while in the execution of his duty, or assaults, obstructs, molests or insults any officer of the Assembly on his way to or from the Assembly, knowing him to be an officer of the Assembly;
(d) creates or joins in any disturbance that interrupts or is likely to interrupt the proceedings of the Assembly or any committee while the Assembly or committee is sitting;
(e) presents to the Assembly or a committee any false, untrue, fabricated or falsified document with intent to deceive the Assembly or committee;
(f) subject to subsection (2), publishes or prints any libel on the Assembly, or publishes by words spoken any false, scandalous or defamatory matter, reflecting on the character or proceedings of the Assembly or which tends to bring the Assembly into odium, contempt or ridicule, or publishes or prints any libel on, or publishes by words spoken or by writing any false, scandalous or defamatory matter reflecting on the character or proceedings of a committee of the Assembly, or publishes any libel on a member of the Assembly touching his conduct as such member;
(g) abstracts any record or other document from the custody of the Clerk or falsifies or improperly alters any records of or documents presented to the Assembly or any committee;
(h) inflicts or threatens to inflict harm in body or estate upon any member or officer of the Assembly with intent to influence him in his conduct as a member or officer;
(i) molests any member or officer of the Assembly on account of his conduct as a member or officer;
(j) disobeys any order to attend, or to produce documents before, any committee duly authorised in that behalf;
(k) refuses to be examined before, or to answer any question put by, any committee;
(l) gives false evidence, prevaricates or commits other misconduct as a witness before any committee;
(m) destroys any document that has been ordered to be produced before a committee;
(n) endeavours, directly or indirectly, to deter or hinder any person from appearing or giving evidence before any committee;
(o) tampers with any witness in regard to evidence to be given by him before any committee;
(p) threatens, punishes, damnifies, injures, assaults or insults any person who has given evidence before a committee on account of his evidence; or
(q) publishes any evidence taken by, or document presented to, any committee before the evidence or document has been reported to the Assembly;
is guilty of an offence and is liable on summary conviction to a fine of $4,800 or to imprisonment for a term of 3 months or to both.
(2) Nothing in paragraph (1)(f) shall apply to a fair and accurate report of the proceedings of the Assembly published in any newspaper, radio, television or other medium of communication or to fair comment on them. …
Acceptance of bribes by members
12. Any member who accepts or agrees to accept or obtains or attempts to obtain for himself or for any other person any bribe, fee, compensation, reward or benefit of any kind for speaking, voting or acting as such member or for refraining from so speaking, voting or acting or on account of his having so spoken, voted or acted or having so refrained is guilty of an offence and is liable on conviction on indictment to a fine of $38,400 or to imprisonment for a term of 3 years or to both.
Contempt by members
13. (1) Any member who—
(a) being a member of a committee, publishes any evidence taken by or documents presented to, the committee before the evidence or documents have been reported to the Assembly;
(b) without the permission of the Speaker first had and obtained, gives evidence before any court or person authorised by law to take evidence relating to the contents of the minutes of evidence taken or any documents laid before a committee or in respect of any proceedings or examinations held before the committee;
(c) assaults or obstructs any other member within the Chamber or precincts of the Assembly;
(d) assaults or obstructs any officer of the Assembly while in the execution of his duty; or (e) is convicted of any offence under this Act;
is guilty of contempt of the Assembly.
(2) Where any member is guilty of contempt of the Assembly, the Assembly may order the member to be reprimanded by the Speaker or suspend him from the service of the Assembly for the period that it may determine but that period shall not extend beyond the last day of the meeting next following that in which the resolution is passed, or of the session in which the resolution is passed, whichever first occurs.
(3) No allowance payable to a member of the Assembly for his service as a member shall be paid in respect of any period during which he is suspended from the service of the Assembly under subsection (2).
(4) Nothing in this section shall be construed to preclude the bringing of proceedings, civil or criminal, against any member in respect of any act or thing done contrary to paragraph (1)(c) or (d).
Exclusion of suspended member
14. A member who has been suspended from the service of the Assembly shall not enter or remain within the Chamber or precincts of the Assembly while the suspension remains in force, and, if any member is found within the Chamber or precincts of the Assembly in contravention of this section, he may be forcibly removed therefrom by any officer of the Assembly and no proceeding shall lie in any court against the officer in respect of the removal.
Restriction on admissibility of evidence
15. No evidence relating to—
(a) debates or other proceedings in the Assembly; or
(b) the contents of the minutes of evidence taken, or any documents laid or any proceedings or examinations held, before any such committee;
by any member or officer of the Assembly or any shorthand writer employed to take minutes of any such evidence or proceedings in respect of any of the matters specified in paragraph (b), by any person who was a witness before the committee shall be admissible in any proceedings before a court or person authorised by law to take evidence unless the court or that person is satisfied that permission has been given by the Speaker for such evidence to be given. . . .
Powers of Speaker to be supplementary to Standing Orders
21. The powers of the Speaker under this Act shall be supplementary to any powers conferred on him by the Standing Orders.
Jurisdiction of courts in respect of acts of Speaker or officers
22. Neither the Speaker, nor any officer of the Assembly is subject to the jurisdiction of any court in respect of the exercise of any power conferred on or vested in the Speaker or officer under this Act.
Service of criminal or civil process
23. Notwithstanding anything to the contrary, no process issued by any court in the exercise of its criminal or civil jurisdiction shall be served or executed within the Chamber or the precincts of the Assembly while the Assembly is sitting or through the Speaker, the Clerk or any officer of the Assembly.
Restriction on prosecution
24. No prosecution shall be instituted for an offence under this Act except with the written consent of the Attorney General upon information given to him in writing by the Speaker.
[3] To summarise, then, the term ‘parliamentary privilege’ refers to two significant aspects of the law relating to Parliament: (i) the privileges or immunities of the House of Assembly; and (ii) the powers of the House to protect the integrity of its processes, particularly the power to punish a contempt. These immunities and powers are very extensive, but they carry with them great responsibilities.
[4] The term ‘privilege’, in relation to parliamentary privilege, refers to immunity from the ordinary law, which is recognized by the law as a right of the House and its members. Privilege in this restricted and special sense is often confused with privilege in the colloquial sense of a special benefit or special arrangement. The word ‘immunity’ is best used in relation to privilege in the sense of immunity under the law.
[5] Parliamentary privilege exists for the purpose of enabling the House of Assembly to carry out its functions of inquiring, debating and legislating. It does not exist to elevate Members of the House above ordinary citizens.
[6] As we have seen above, the principal immunity is the freedom of parliamentary debates and proceedings from question and impeachment in the courts, the most significant effect of which is that members of the House cannot be sued or prosecuted for anything they say in debate in the House. The principal powers are the power to compel attendance of witnesses, the giving of evidence and the production of documents, and to adjudge and punish contempts of the House.
