IN the past five years, the conceptual ambiguities of Parliamentary privilege have come to haunt the courts with a vengeance. Ancient constitutional questions such as what constitutes a “proceeding” in Parliament and what counts as “questioning” a proceeding–encapsulated in colourful nineteenth-century cases like Stockdale v. Hansard (1839) 9 Ad.&E. 1, the Case of the Sheriff of Middlesex (1840) 11 Ad.&E. 273, and Bradlaugh v. Gossett (1884) 12 Q.B.D. 271–have been at the forefront of a clutch of recent decisions. In Prebble v. Television New Zealand [1995] 1 A.C. 321, the Privy Council gave new bite to Parliamentary privilege by ruling (in relation to the New Zealand Parliament) that it would be an abuse of both Article 9 of the 1689 Bill of Rights–which prohibits courts from questioning the freedom of speech and debates or proceedings in Parliament–and of a broader principle of mutuality of respect between Parliament and the judiciary, to allow any party to litigation to “bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading” (above, at 337). As a result, domestic courts stayed two libel actions brought by Members of Parliament, on the basis that the claims and defences involved raised issues whose investigation would infringe Parliamentary privilege (see, e.g., Allason v. Haines, The Times, 25 July 1995). Parliament responded by enacting section 13 of the Defamation Act 1996, allowing individual MPs to waive Parliamentary privilege in order to bring defamation actions. But in an apparent reassertion of the spirit of Prebble, the Court of Appeal expressly approved–albeit outside the context of defamation–the Privy Council's wide definition of privilege as a matter of domestic law (R. v. Parliamentary Commissioner for Standards, ex p. Fayed [1998] 1 W.L.R. 669, noted [1998] C.L.J. 6).
6. On the Critical Potential of Rosanvallon’s Wide Definition of Democracy
