Dimension: 1.2.2 Non-accountability and inviolability

This dimension concerns the legal protections that allow MPs to carry out their parliamentary duties freely and without concern about possible legal action. The ability of MPs to speak freely is fundamental to the ability of parliament to perform its core functions. These protections, which are known as “parliamentary non-accountability”, can normally never be lifted. They should also be extended to former MPs in respect of their previous participation in parliamentary proceedings.

Some jurisdictions also provide MPs with varying degrees of protection against detention and arrest, whether or not the potential legal action against relates directly to exercise of their parliamentary duties. In this scenario, which is known as “parliamentary inviolability”, parliament needs to lift the immunity before an MP can be arrested or detained, or before their office can be searched.

The strict application of parliamentary inviolability in situations in which an MP is accused of something which has little or nothing to do with the exercise of their parliamentary duties can lead to unfair consequences for victims, who should have access to an effective remedy. At the same time, a criminal charge might be brought against an MP for the sole purpose of silencing them. A careful balance is therefore required between protecting MPs and upholding the principle that all people should be treated equally before the law.

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Aspiring goal

Based on a global comparative analysis, an aspiring goal for parliaments in the area of “non-accountability and inviolability” is as follows:

  • Parliamentary non-accountability is established in the legal framework, which contains clear provisions that protect MPs from legal reprisals for the votes they cast, and for the words they express both within and outside parliament in connection with the exercise of their parliamentary duties. This non-accountability can never be lifted. 

  • Parliamentary inviolability is established in the legal framework, under which parliament must give its consent before an MP can be arrested, detained and/or prosecuted. The only exceptions are situations of in flagrante delicto and situations in which an MP’s alleged wrongdoing is unrelated to the exercise of their parliamentary duties. 

  • Due process is followed throughout the procedure for lifting parliamentary inviolability. The MP in question can defend themselves and is heard before the decision on whether or not to lift the inviolability is taken. Parliament, or its relevant committee, reviews the lifting request carefully and only agrees to do so if it is convinced that the proposed legal action is grounded in law and supported by evidence. 

  • MPs are able to claim in court that they were not caught in flagrante delicto and/or that the charge brought against them relates to the exercise of their parliamentary duties and, therefore, that the legal action taken against them should have required the lifting of inviolability first. Likewise, a victim of wrongdoing by an MP is able to claim in court that the wrongdoing does not relate to the exercise of the MP’s parliamentary duties. 

  • The legal provisions on parliamentary inviolability are implemented in such a way that MPs are both adequately protected when needed, but also prosecuted when justified. No majority in parliament should shield an MP from criminal action when there are clear reasons for prosecution. Similarly, no majority in parliament should lift the inviolability of an MP when such a decision does not appear to be justified. 

Assess your parliament against this dimension

Assessment criteria

No 1: Legal provisions on parliamentary non-accountability

The legal framework contains strongly entrenched provisions on parliamentary non-accountability for MPs, covering votes cast and expressions made both within and outside parliament. This protection is also extended to former MPs in respect of their previous participation in parliamentary proceedings. It can never be lifted. 

No 2: Restrictions on MPs’ freedom of speech

Any restrictions on the free expression of views by MPs both within and outside parliament are clearly defined in the legal framework and are limited to matters such as maintaining order and decorum in the chamber, and eliminating hate speech. 

No 3: Legal provisions on parliamentary inviolability

The legal framework contains strongly entrenched provisions restricting the arrest or detention of MPs, and/or searches of their person and their personal/working space, without parliamentary consent. Such consent is always required when an MP faces legal action in connection the exercise of their parliamentary duties. 

No 4: Parliamentary inviolability in practice

Parliament follows due process when it receives a request to lift the inviolability of an MP, including by allowing them to present a defence and by carefully reviewing the legal and factual soundness of the request. The legal framework governing the inviolability of MPs is implemented in a clear and unambiguous manner. MPs, regardless of political affiliation, are not faced with politically motivated legal action. 

How to complete this assessment

This dimension is assessed against several criteria, each of which should be evaluated separately.

For each criterion, select one of the six descriptive grades (Non-existent, Rudimentary, Basic, Good, Very good and Excellent) that best reflects the situation in your parliament, and provide details of the evidence on which this assessment is based. 

The evidence for assessment of this dimension could include the following:

  • Provisions concerning parliamentary non-accountability
  • Provisions placing restrictions on the detention and arrest of MPs in connection with alleged wrongdoing related to the exercise of their parliamentary duties
  • Provisions protecting of the rights of others directly affected by the (alleged) wrongdoing of MPs which is unrelated to the exercise of their parliamentary mandate

Where relevant, provide additional comments or examples that support the assessment.

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Get help with this assessment

The assessment of indicators involves diagnosing and considering strengths and weaknesses, i.e. the things parliament is doing well, and the things it could do better or more effectively, taking into account established good practices that are described in the indicators. 

Read the assessment guidance to find out what to consider when conducting an assessment against the Indicators. Find out how to prepare, how to set the objectives of the assessment, how to organize the process, and more. Contact the project partners for expert advice.

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