Parliamentary privilege is essential to the functioning of a modern, democratic Parliament. Free speech in Parliament is as crucial now as it was when the Bill of Rights was enacted in the seventeenth century. However if Parliament has an ‘adversary’ in the twenty-first century it is no longer an over-powerful monarch but may be an over-powerful judiciary.
While its constitutional importance remains paramount, the modern context of Parliamentary privilege has changed. Moreover, the word ‘privilege’ in our modern, democratic society has negative, elitist connotations. If the Houses are to justify privilege in the twenty-first century it is essential to convince the public that it remains a vital element in the functioning of Parliament in a democratic age.
This paper examines whether this is best achieved by leaving things alone or by principled legislation. It considers the Government’s Green Paper on Parliamentary privilege and asks how real is the danger of judicial activism in the affairs of Parliament and whether that danger is increased or diminished by a new statue.