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Rules established by parliaments to govern their internal discipline usually imply reductions of financial allowances on members, banning them from the parliament's grounds for a set period of time, or even expelling them in some countries and/or parliaments. These sanctions may usually be decided by a presiding officer, a special commitee/commission, or even the whole house. They are rarely appealable, and never (that I know of) before a normal trial jurisdiction (the EU's Court of Human Rights notwithstanding).

Can non-members of these assemblies be subject to application of these rules ?

There are things I don't include in my question, such as offences made under normal law on parliament grounds or against members of congress/parliament, or even enforced by parliament police. In particular, contempt of Congress (refusing to answer as a witness in a committee) is outside the purview of this question, since it's an offence established by law and adjudicated by a judge. Capitol Police ousting someone from the building at times when the internal rules say the building is closed also wouldn't count, if the person can walk away freely and no prosecution, sentence or fine is engaged.

I'm mainly asking about whether a parliament's internal rules can be applied like a law on a non-member, and whether internal organs such as the president of an assembly can apply that rule the same way a judge would apply a law.

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  • "contempt of Congress ... is outside the purview of this question" In several jurisdictions, especially Westminster ones, the power of finding contempt or breach of privilege and the consequent punishment are not regulated by statutes and may not be reviewable by courts, unlike the situation in the U.S.
    – xngtng
    Dec 28, 2022 at 8:42
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    @xngtng: That is true, but see also Jurney v. MacCracken.
    – Kevin
    Dec 28, 2022 at 19:04
  • @Kevin wtf, I wasn't expecting that... That's understandable for impeachment proceedings, as established by the Nixon case in the 90's, but this one is broad as hell and completely overrides normal process of adopting criminal laws... If you post it as an answer I may consider it better than the other ones Dec 28, 2022 at 20:20
  • @Gouvernathor: Your question specifically excludes contempt of Congress for refusal to answer questions (which is exactly what that case was about), so such an answer would be invalid.
    – Kevin
    Dec 28, 2022 at 22:11
  • @Kevin I meant Contempt as defined by statute, enforced by police and sentenced by a judge. This is another matter : a House having the right to hold someone after and in addition to a judicial sentencing, overriding Habeas Corpus and wielding powers which could not be granted to the federal government even by an act. Dec 30, 2022 at 22:31

3 Answers 3

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Yes

The Browne-Fitzpatrick Privilege Case in 1955 resulted in the two being gaoled for 90 days for breaching the privilege of the Australian Parliament. They were, respectively, the owner and editor of the Bankstown Observer and the breach was an article in that paper that alleged that a then sitting MP, Charles Morgan, had been involved in immigration malfeasance as a lawyer prior to being elected.

The men were grilled by the Privileges Committee of Parliament during which they were denied legal representation. The Committee determined that they had infringed privilege and the House, on the motion of the Prime Minister Robert Menzies, voted to gaol them.

The High Court of Australia refused to hear an appeal as did the UK Privy Council (which was the highest court with Australian jurisdiction at the time).

So, for things printed 300km from Parliament, Parliament decided that these men had broken Parliamentary rules and should be imprisoned.

There is doubt, both then and now, that this was a political hatchet job. There is also no doubt that what was done was legal then, however, given that the High Court has since discovered an implied right to political communication in the Constitution, it may not be possible today.

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  • Wow.Would that fly today?
    – jcm
    Dec 27, 2022 at 12:10
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    @jcm: Hard to say. In the UK (whose parliamentary rules are similar to Australia's), although these powers are still on the books, there has been some debate over whether they can still be used (especially detaining someone), due to (for example) conflict with the Human Rights Act. Dec 27, 2022 at 14:54
  • @jcm In the UK where you can be arrested for holding a sign? Definitely. Dec 28, 2022 at 0:08
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    @ComicSansSeraphim "The UK has a law I think is bad therefore it has some other law that I also think is bad" is a very weak argument
    – ajd138
    Dec 29, 2022 at 3:50
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House of Commons Procedure and Practice: Privileges and Immunities: Power to Discipline:

Whether it is against its own Members, staff or “strangers”, the House has the power to discipline whoever is guilty of a misconduct, which it considers to amount to a breach of privilege or contempt. Article 9 of the Bill of Rights gives both Members and strangers protection from outside interference when engaged in the business of the House; it also subjects them to the disciplinary power of the House for their conduct during proceedings. This power affords the House a wide range of penalties for dealing with misconduct: non-Members may be removed from the galleries of the Chamber or from the parliamentary precinct, be given a reprimand, or incarcerated

The article goes on to provide numerous examples, most for failure to testify (with one person held in prison for four months). One example shows the flexibility of this power:

In November 1873, the Sergeant-at-Arms was ordered to take Ottawa Alderman John Heney into custody and bring him to the Bar of the House for attempting to bribe a Member. Mr. Heney was held in custody from November 4 to 7, 1873, but never appeared at the Bar as Parliament was prorogued on November 7.

Another example was that a non-member visitor was disciplined for directing "offensive remarks" from the gallery at a member.

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  • The incarceration is a bit much, but otherwise it's playing on the fine line between police powers and judicial actions under a law. But that's always been a very fine line. Dec 28, 2022 at 20:25
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This comes down to the concept of sovereignty. In parliamentary republics, sovereignty rests in the "People with a capital P" as represented by the parliament in accordance with the constitution. The parliament gets to select the executive and to organize the judicative. So if the parliament meets and passes a "regulation which is not a law, yet applies to everybody," who is to say that they cannot do this?

For one, the constitution might set out how laws are passed and how violations are adjudicated. A constitutional court might decide that parliament may not pass these "regulations which are not laws," either parliament has to pass them as laws, or the constitution needs to be clarified to spell out how these regulations get administered.
For instance, some constitutions spell out how laws are published, and that they cannot take effect until the forms have been observed.

For another, the country might have signed up to international agreements which stress the rule of law, and also require that laws are passed and adjudicated within the traditional pattern. But parliaments tend to reserve the right to leave treaties.

So it becomes a question of the pecularities of the individual constitution.

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    The issue comes in any bicameral system : rules of procedure are established by one house, whereas laws upon which one may be subject to trial are voted by both houses. That's a big difference when it comes to legitimacy. Dec 28, 2022 at 20:14

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