Parliamentary privilege and the rule of law

Abstract

Parliamentary privilege immunises certain activities of legislative bodies and their members from the ordinary law and judicial scrutiny. The rule of law, on the other hand, insists that everyone - including public officials - is subject to the law. Moreover, the rule of law is usually understood to involve judicial review of executive rather than legislative action. Thus, parliamentary privilege seems to establish a public sphere that is beyond the rule of law. Notwithstanding the tension that appears between these two ideas, I argue that parliamentary privilege and the rule of law, properly understood, support rather than oppose one another. However, the ideas can be reconciled only if we reject the jurisdictional and categorical approach to parliamentary privilege adopted recently by the Supreme Court of Canada in Canada (House of Commons) v. Vaid [2005] 1 S.C.R. 667, 2005 SCC 30. This approach should be rejected because it trades on an unsustainable distinction between review of the scope of an asserted privilege and review its actual exercise, with the Court finding that only issues of scope are subject to review, even if important human rights are at stake.

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2009-01-28

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Evan Fox-Decent
McGill University

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