Parliamentary immunity : a comprehensive study of the systems of parliamentary immunity of the United Kingdom, France and the Netherlands in a European context
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Bibliographic Information
Parliamentary immunity : a comprehensive study of the systems of parliamentary immunity of the United Kingdom, France and the Netherlands in a European context
（Ius commune, 119）
Intersentia , METRO, c2013
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Based on the author's thesis (Ph.D)--Maastricht University, 2013
Includes bibliographical references
Description and Table of Contents
Description
Is it necessary and just that parliamentarians are immune from legal action? If so, to what extent is such immunity justified and which purpose does it serve? These questions reveal a constitutional dilemma. On the one hand, parliamentary immunity safeguards the necessary independence of the legislature. It protects members of parliament from politically motivated legal action and facilitates freedom of parliamentary debate. On the other hand, however, it distorts equality before the law, limits the rights of citizens and obstructs the administration of justice. This dilemma touches the very core of constitutional law. Immunity rules are intimately linked to the basic setup of the democratic state, to the separation of powers, the concept of representation, the rule of law and fundamental rights. This book contains a comprehensive study of parliamentary immunity in the United Kingdom, France and the Netherlands. It explores and compares the material legal rules as well as the historical and theoretical background of the three systems with a view to identifying common norms and principles.
It also takes into account the -European dimension of parliamentary immunity by placing the national immunity systems in the context of the relevant case law of the European Court of Human Rights and providing an analysis of the immunity regime of the European Parliament. While no universal blueprint for parliamentary immunity is in sight, this book demonstrates that a common legal understanding of the function and purpose of immunity is slowly emerging.
Table of Contents
CHAPTER 1: INTRODUCTION 1. Parliamentary Immunity 1.1. The Relevance of Parliamentary Immunity 1.2. A Definition 1.3. Two Forms of Immunity: Non-accountability and Inviolability 1.4. The Immunity Dilemma 2. Methodology 2.1. Objectives 2.1.1. Understanding Parliamentary Immunity in Context 2.1.2. Differences and Commonalities 2.1.3. Trends and Developments 2.2. Methodological Challenges and Choices 2.2.1. The Problem of Comparison 2.2.2. The Problem of Selection 2.2.3. The Choice of the UK, France and the Netherlands as Case Studies 2.2.3.1. The United Kingdom 2.2.3.2. France 2.2.3.3. The Netherlands CHAPTER 2: THE EUROPEAN DIMENSION OF PARLIAMENTARY IMMUNITY 1. Introduction 2. Parliamentary Immunity and the ECHR 2.1. The Relevance of ECtHR Case Law: Interpretative Effects 2.2. ECtHR Case Law on Parliamentary Immunity 2.2.1. Article 6 of the Convention: Access to Court 2.2.1.1. Non-accountability under Article 6 ECHR 2.2.1.2. Inviolability under Article 6 ECHR 2.2.1.3. Article 6 ECHR and the Penal Powers of Parliament 2.2.2. Parliamentary Immunity and Freedom of Expression: Article 10 ECHR 2.2.2.1. Freedom of Expression for Parliamentarians outside Parliament 2.2.2.2. Freedom of Expression: Speaking about Parliamentarians 2.3. ECtHR Case Law on Parliamentary Immunity: Conclusions 3. The Immunity Regime of the European Parliament 3.1. A Combined Immunity Regime: 27+1 3.2. A Discriminatory System 3.3. Waiving or Defending European Inviolability 3.4. The CJEU and the Scope of European Non-accountability 3.5. The Immunity System of the European Parliament: Conclusion 4. Concluding Remarks on Parliamentary Immunity in Europe CHAPTER 3: PARLIAMENTARY PRIVILEGE IN THE UNITED KINGDOM 1. Introduction 1.1. Structure of this Case Study 1.2. Parliamentary Privilege in the UK 1.3. Delineation 2. The History of Parliamentary Privilege 2.1. The Origins of Parliament 2.2. Historical Origins and Development of Privilege 2.2.1. The Privilege of Freedom of Speech 2.2.2. The Privilege of Freedom from Arrest and Molestation 2.2.3. The Privilege of Access to Her Majesty 2.2.4. The Privilege of Favourable Construction 2.2.5. The Privilege of the House of Commons to Provide for its own Constitution 2.2.6. The Principle of Exclusive Cognisance 2.3. The House of Lords and the Privileges of the Commons 3. Demarcating Exclusive Cognisance: Lex Parliamenti and Lex Terrae 3.1. A Categorisation 3.2. The Evolution of the Relationship between Lex Parliamenti and Lex Terrae in Case Law 3.3. The Defamation Act 1996 3.4. The Parliamentary Expenses Scandal and R v. Chaytor: The End of Exclusive Cognisance? 3.5. Lex Parliamenti and Lex Terrae: Conclusions 4. Parliamentary Privilege Today 4.1. The Modern Perception of Privilege 4.2. Flexibility vs. Legal Certainty 4.3. The Modern Privileges: The Law 4.3.1. The Privileges ex Article 9 of the Bill of Rights 1689 4.3.1.1. Freedom of Speech and Debate 4.3.1.2. Proceedings in Parliament 4.3.1.3. 'Questioned' 4.3.1.4. 'Place Out of Parliament' 4.3.1.5. Recent Developments and the Future of the Article 9 Privileges 4.3.2. The Privilege of Freedom from Arrest 4.3.3. The Enforcement of Privilege: Penal Powers of Parliament 5. Conclusion CHAPTER 4: PARLIAMENTARY IMMUNITY IN FRANCE 1. Introduction 1.1. Structure of this Case Study 1.2. Parliamentary Immunity in France 1.3. Delineation 2. The History of Parliamentary Immunity in France 2.1. The Concept of Parliament in Pre-revolutionary France 2.1.1. Representative and consultative assemblies in pre-revolutionary France 2.1.1.1. The Curia Regis 2.1.1.2. The Conseil du Roi 2.1.1.3. Parlement 2.1.1.4. Les Etats Generaux 2.1.2. The Etats Generaux as a Proto-parliament 2.2. The Emergence of Immunity in the Revolution 2.2.1. Minimal Privilege under the Ancien Regime 2.2.2. The National Assembly 2.2.3. The Earliest Immunity Provisions 2.2.4. Two Possible Interpretations of the Emergence of Immunity 2.3. The 'Waltz of Constitutions' 2.3.1. The Period of the National Convention 2.3.2. The Constitution of Year III 2.3.3. The Constitution of Year VIII 2.3.4. The Constitutional Charters of 1814 and 1830 2.3.5. The Constitution of 1848 2.3.6. The Constitutional Laws of 1875 2.3.7. The Vichy Regime 2.3.8. The Constitution of 1946 2.4. The History of Parliamentary Immunity in France: A Summary Picture 3. Theoretical Foundations of Parliamentary Immunity 3.1. The Significance of Constitutional Theory 3.2. The Justification of Parliamentary Immunity in Classical Theory after Carre de Malberg 3.2.1. National Sovereignty and Representation 3.2.2. Parliamentary Immunity as a Corollary of the Representative Mandate 3.2.3. Popular vs. National Sovereignty: Constitutional Text and Reality 3.3. Theoretical Foundations: A Summary Picture 4. The Immunity Regime of the Fifth Republic 4.1. The Constitutional Amendment of 1995 4.2. The Scope of Non-accountability and Inviolability 4.2.1. The Temporal Scope of the Immunities 4.2.2. The Personal Scope of the Immunities 4.2.3. The Material Scope of Non-accountability 4.2.4. The Material Scope of Inviolability 4.3. Procedures for Lifting Inviolability and for the Suspension of Detention or Prosecution 4.3.1. The Procedure for Lifting Inviolability 4.3.2. The Procedure for the Suspension of Detention and Measures of Prosecution 4.4. The Legal Nature of Parliamentary Immunity 4.5. A Justification for Inviolability? 4.6. The Immunity Regime of the Fifth Republic: A Summary Picture 5. Conclusion CHAPTER 5: PARLIAMENTARY IMMUNITY IN THE NETHERLANDS 1. Introduction 1.1. Structure 1.2. Terminology 1.3. Parliamentary Immunity in the Netherlands 1.3.1. Issues 1.3.1.1. Historical Reasons for Limited Parliamentary Immunity 1.3.1.2. How Limited is Dutch Parliamentary Immunity in Reality? 1.3.1.3. Parliamentary vs. Political Immunity 1.4. Delineation 2. The History of Parliamentary Immunity in the Netherlands 2.1. The Republican Period 2.1.1. The Republic of the Seven United Netherlands (1579-1795) 2.1.2. The Earliest Immunity Provisions in Holland 2.2. The Batavian and French Period: 1795-1814 2.2.1. The Batavian Republic 2.2.1.1. Immunity under the Constitution for the Batavian people of 1798 2.2.1.2. No Immunity under the Batavian Constitutions of 1801 and 1805 2.2.2. The Kingdom of 1806 and the French Annexation 2.3. The Kingdom of the Netherlands 1814/15-1848 2.3.1. 'Enlightened Absolutism' and a Weak Parliament 2.3.2. Inviolability for Crimes in Office: Indirect Freedom of Speech? 2.4. Towards the Constitution of 1848 2.4.1. The Abolition of Inviolability 2.4.2. Inviolability Traded for Non-accountability 2.4.3. The Disputed Scope of Non-accountability 2.5. More Non-accountability and Less Inviolability: A Negative Correlation? 2.6. Developments during the 20th Century 3. The Dutch Immunity System Today 3.1. The Scope of Non-accountability ex Article 71 of the Constitution 3.1.1. Personal Scope 3.1.1.1. Members, Ministers, Secretaries of State 3.1.1.2. Other Persons 3.1.1.3. Can the State be Held Liable Instead? 3.1.2. Temporal and Spatial Scope 3.1.2.1. No Spatial Privilege 3.1.2.2. Non-accountability for the Duration of the Meeting only 3.1.3. Material Scope 3.1.3.1. No Limitations with Regard to the Content of Utterances Covered by Non-accountability 3.1.3.2. No Immunity for 'Private' Publications, even if Identical to Protected Utterances 3.1.3.3. All Forms of Legal Action are Barred 3.2. The Disciplinary Powers of the Chambers 3.3. The Immunity Dimension of Article 119 of the Constitution 3.3.1. A Hypothetical Potential 3.3.1.1. Crimes Committed in Office (Ambtsmisdrijven) 3.3.1.2. Does this Procedure Amount to Inviolability? 3.4. Wilders and Beyond: A Case for Broadening Immunity? 3.4.1. The Prosecution of Geert Wilders 3.4.2. Parliamentary vs. Political Immunity 3.4.2.1. Freedom of Speech for Politicians in Public Political Debate 3.4.2.2. Does Parliamentary Immunity Offer a Solution? 4. Conclusion CHAPTER 6: COMPARATIVE CONCLUSIONS Smallest Common Denominators 2. Lessons from History 2.1. A Summary of the Historical Origins of Parliamentary Immunity 2.2. Freedom of Speech as the Epitome of Parliamentarianism 2.3. Inviolability as a Secondary Immunity 3. Theory and Parliamentary Immunity 3.1. The Justification of Parliamentary Immunity in Constitutional Theory 3.2. Constitutional Theory has a Conservative Effect 4. The State of Material Immunity and Developments 4.1. Parliamentary Immunity in the UK, France and the Netherlands: Material Similarities and Differences 4.1.1. Non-accountability 4.1.2. Inviolability 4.1.3. The Case of the Netherlands: Towards Political Immunity? 4.2. The Immunity of the European Parliament 4.3. ECtHR and CJEU: A Functional Approach Towards Parliamentary Immunity 4.4. Do National Systems Develop in a 'Functional' Direction? BIBLIOGRAPHY POLITICAL DOCUMENTS CURRICULUM VITAE
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