Editorial: Privilege for MPs vital to democracy

Since Ms Leigh could not sue Mr Mallard, she brought a defamation action against the official who briefed him. Photo / Ross Setford

Advice to ministers needs protection of Parliament.

Our rights and freedoms depend on two powerful institutions, Parliament and the Supreme Court, that normally keep a respectful distance from each other. When one of them intrudes on the territory of the other, the clash bears watching. It can have important implications for democracy and civil rights.

Yesterday, Parliament received a report from its privileges committee that proposes legislation to reassert its freedom of speech on two fronts where it believes rulings of our highest court have been wrong. One of them involved a reference outside the House to a statement made in the chamber, the other, advice to a minister to enable him to answer a question in the House.

The Privy Council in the first case and the Supreme Court in the second ruled that statements made in those circumstances were not protected from defamation suits by Parliament's absolute privilege.

If this sounds far removed from ordinary human rights, it is not. Under Parliament's privileges MPs speaking in the chamber can malign named individuals at no personal risk to themselves. It is considered important and sometimes vital to democracy that they can do so. But it can be unfair to the individual, who has none of the rights available to an accused person in a court.

Though an MP making use of the privilege normally takes care to speak in precise and restrained terms, the person named is unlikely to be present, may have no warning of the public accusation to be made and no comparable right to challenge it. The only right of reply that Parliament provides - and it's a fairly recent concession - is a written statement that may be put into the record if the Speaker allows it, after consulting the member who made the accusation.

This form of redress did not appeal to Erin Leigh, a communications officer for the Ministry for the Environment in 2007, who believed she was criticised unfairly in Parliament by its minister at the time, Trevor Mallard, when he faced questions in the House about why a Labour Party member was hired to oversee her work.

Since Ms Leigh could not sue Mr Mallard, she brought a defamation action against the official who briefed him and the Supreme Court rejected the Crown's view that the official enjoyed the same privilege.

As soon as that ruling was issued in 2011, the Speaker referred the issue to the privileges committee. Responsible parliamentarians are reluctant to criticise a court decision and the committee has taken two years to declare, as it did yesterday, that it believes the ruling wrong.

If this is intruding on the court's territory, it insists the court was the first offender. "It is unfortunate that the Parliament now finds itself in the position of needing to clarify for the courts the nature of Parliament's privilege," says the report. "We consider that the Parliament has been put in a position where its relationship of trust and confidence with the courts has become strained because comity (respecting each other's roles) has not been recognised."

Strong words, and justified. If advice to a minister is not privileged, the minister's ability to inform Parliament and the public is severely compromised. "Chilling" is the committee's word.

Some might find equally chilling the committee's criticism of the court for "placing the rights of individuals ahead of the interests of our system of representative parliamentary democracy".

In the end, Parliament is supreme, but the judiciary is right to test the boundaries at times.