While speakers and judges
are alike in many ways, the institutions they serve are very different.
Parliament is the representative body of the people, charged with making
laws for the good of the country. The courts play the more modest yet
constitutionally vital role of ruling on disputes and maintaining the integrity
of the Constitution from decade to decade, generation to generation. This
article offers some reflections on the relationship between these two
institutions – the legislatures and the courts.
The role of a speaker is similar in certain respects to a
role that I am quite familiar with – the judicial role. Speakers,
like judges, spend most of their time doing something most people avoid at all
costs – making decisions. Like judges, they rule on points of order and
make a myriad of decisions on questions of process. Like judges, they are
required to render objective and impartial decisions on issues that can prove
controversial and complex. Like judges, they must be above the fray and
free from bias. Like judges, they are required to abandon partisan
politics and must be independent and free from political influence. Like
judges – speakers are human beings. But like judges, they must strive to
set aside personal preferences and opinions and rule as objectively as humanly
possible. And like judges, speakers doubtless sometimes feel a little
lonely. Both roles entail sacrifice and dedication to the office. Yet
both offer great rewards, the most important being the privilege of serving
one’s nation and community by promoting justice, the rule of law and democracy.
Let me start with an
historical fact. The relationship between the judicial and legislative
branches has not always been either clear or harmonious. There was a time
when judges and parliamentarians in the British democratic tradition feared
displeasing the Sovereign and each other – and with good reason. Indeed,
such fears are even today a fact of life in nations not yet fully committed to
democracy and the rule of law. We are all familiar with the struggle
between Chief Justice Coke and King James I, a struggle which ultimately led to
Chief Justice Coke’s removal from office in 1616. And there were other
episodes. In 1689 two judges of the English Court of King’s Bench were
brought before the House of Commons, questioned and imprisoned for a decision
they rendered against the Sergeant-at-Arms.1 Such an event today, we hope, would be unthinkable.
On the other side of the coin, Parliamentarians were not always free from
judicial interference and threat. For example, in 1629, Sir John Eliot
and two other Members of the House of Commons were arrested and found guilty in
the Court of King’s Bench for words spoken in the House deemed to be seditious.2
The struggle over
parliamentary independence eventually led to the adoption in 1689 of Article 9
of the English Bill of Rights which provides that “the freedom of speech
and debates or proceedings in Parliament ought not to be questioned in any
court or place out of Parliament”. At the same time, judicial
independence eventually found statutory protection in 1700 under the Act of
Settlement. All this was fine on paper. But the question
remained: how could parliamentary independence be reconciled with judicial
independence in fact?
The answer came from the
courts of common law, which used two principles to construct a workable and
practical balance between the potentially conflicting powers of Parliament and
the courts: parliamentary autonomy and the rule of law.
Let’s look for a moment at the
first of these principles – parliamentary autonomy. Today, it is accepted
without question that the courts cannot interfere in proceedings before
Parliament. The process of parliamentary decision-making must proceed
free from judicial oversight. Where constitutionally permissible, courts may
review the product of parliamentary decision-making – for example, how a
particular law is to be interpreted or whether a particular law is
constitutional. However, judicial interference in the process by which
elected representatives come to their collective decision is tantamount to
interference in the democratic process itself, and under our
constitutional tradition is unacceptable. To operate effectively, the
decision-making process of legislative assemblies must be free from
interference – whether judicial or executive – and must remain firmly in the
hands of speakers and Parliament itself. In a democracy it cannot be
otherwise. Parliament, as the representative of the ultimate sovereign –
the people – must be free to set its own agenda and govern its own proceedings.
The second principle that
characterizes the relationship between Parliament and the courts is commitment
to the rule of law. The rule of law signifies that all actors in our society –
public and private, individual or institutional – are subject to and governed
by law. The rule of law excludes the exercise of arbitrary power in all
its forms. Without the rule of law and an independent judiciary to
enforce it there is no democracy, only tyranny or mob rule. The rule of
law thus implies that even Parliament itself is not above the law; and with
that comes the possibility that courts may be called upon to ensure that
Parliament acts in accordance with the rule of law.
It thus becomes apparent that
simply stating these two principles – parliamentary autonomy and the rule of
law – does not however resolve the problem, since the principles themselves can
conflict. Autonomy implies that Parliament must be entitled to govern
itself and thus cannot be subject to judicial review of the legality of its
proceedings. But the rule of law, pushed to its extreme, entails judicial
oversight and legislative submission to the same general law that applies to
everyone else. This potential conflict has been resolved by seeking a
balance under the principle of lex et consuetudo Parliamenti – the law
and custom of Parliament – and the doctrine of parliamentary privilege.
In the 22nd Edition of Erskine
May’s seminal treatise on Parliamentary Practice, parliamentary
privilege is defined as “the sum of the peculiar rights enjoyed by each House
collectively as a constituent part of the High Court of Parliament, and by
Members of Each House individually, without which they could not discharge
their functions and which exceed those possessed by other bodies or
privilege gives to members discharging their duties special legal exemptions
that other individuals and bodies do not enjoy. Otherwise, it makes “no
go” zones for the law, reserved only to Parliamentarians. “Privilege”
connotes “the legal exemption from some duty, burden, attendance or liability
to which others are subject”.4 It is the “necessary immunity
that the law provides for Members of Parliament … in order for these
legislators to do their legislative work.”.5 Among other privileges,
parliamentarians enjoy freedom of speech including immunity from civil
proceedings with respect to matters arising from the duties of a member of the
House, exclusive control over the House’s proceedings, the right to eject
strangers from the House and its precincts and the right to control the
publication of debates and proceedings of the House.6
How, precisely, is the
balancing act between parliamentary autonomy and the rule of law executed
through the medium of parliamentary privilege? What role does Parliament
play? What role is left for the courts? After some dispute, it is
now settled that parliamentary autonomy requires that the main role in judging
matters of privilege must fall to Parliament itself. Thus the exercise of
an existing parliamentary privilege is not amenable to review by the courts.
However, in order to ensure preservation of the rule of law, the courts
are entitled to inquire into whether a claimed privilege exists.
This allocation of powers in
Canada rests on two court decisions, one English and one Canadian. The
first is an 1839 decision of the English Court of Queen’s Bench in the case of Stockdale
v. Hansard.7 Mr.
Stockdale brought a law suit against Hansard alleging that the publication of a
report tabled in the House of Commons defamed him. In defence it was
argued that the report was published under an order of the House of Commons
and, as such, was protected by parliamentary privilege. In his reasons
for judgment, Chief Justice Denman recognized that the independence of Parliament
was the “cornerstone” of a free Constitution.8 Nevertheless,
he rejected the argument that once privilege was claimed by the House of
Commons, the courts had no jurisdiction but to accept the claim so made.
The House of Commons, acting alone, could not bring a matter within its
jurisdiction by simply declaring it so. It followed, Chief Justice Denman
reasoned, that the courts must be entitled to inquire into such a claim to
determine whether it is indeed a matter of privilege – that is, whether the privilege
claimed existed. But at the same time, once a matter was found to
properly fall within the jurisdiction of the House, the courts could not review
the exercise of privilege. In Stockdale, the Court of Queen’s
Bench found that the existence of the claimed privilege had not been proven.
Stockdale v. Hansard laid down the compromise that prevails
at common law. Over 150 years later, the Supreme Court of Canada reviewed
parliamentary privilege in light of the Canadian Charter of Rights and
Freedoms – our constitutionally entrenched Bill of Rights. The
question arose in Canada – did the 1982 Charter change this; could
courts now pronounce not only on the existence of privilege but also on its
exercise? In 1993, we heard the case of New Brunswick Broadcasting v.
The Speaker of the Nova Scotia House of Assembly. The case involved a claim
by a television broadcaster who sought an order allowing it to film proceedings
in the Nova Scotia provincial House of Assembly from the public gallery and
using hand-held television cameras. The Nova Scotia House of Assembly, in the
purported exercise of its privileges, had prohibited the use of television
cameras in the House except on special occasions. The broadcaster claimed
that this infringed its right to freedom of expression protected by the Charter.
The issue for the Court was whether the Charter applied to the
exercise of Parliamentary privilege.
The question was novel and,
not surprisingly, admitted of several possible answers. On one view, that
of Chief Justice Lamer, the Charter applied to the provincial
legislatures, but not to Houses of Assembly, which are mere components of the
legislature. On another view, that expressed by Justices Cory and
Sopinka, the Charter applied to all aspects of parliamentary privilege.
Parliamentary rulings on privilege must comply with the Charter,
and the courts are entitled to review the exercise of such privileges in light
of the various Charter guarantees.
The majority, for whom I wrote,
affirmed that the common law position enunciated in Stockdale continued to
apply. This view grounds itself in the Preamble to the Constitution Act,
1867, which provides that Canada is to have a “Constitution similar in
Principle to that of the United Kingdom”. This Constitution includes the
parliamentary privileges that “have historically been recognized as necessary
to the proper functioning of our legislative bodies”.9 Since one part of the Constitution –
the Charter – cannot be used to invalidate another, Charter
review of parliamentary privilege was precluded.
The majority affirmed that the
courts’ only role is to ensure that the privilege claimed in fact exists and
that the test for existence of a privilege is a test of necessity. Thus
Canadian legislative assemblies possess the inherent privileges that are
necessary to their proper functioning.10 Courts can determine whether a claimed privilege is indeed
necessary to the proper functioning of the House, but may not review the
rightness or wrongness of any decision taken pursuant to a necessary privilege.11
We concluded that the right to exclude strangers from the House and thus
prohibit the use of television cameras was necessary to the functioning of the
Legislative Assembly and hence a privilege, and that the courts consequently
could not interfere.
And the story is not over.
The question of what is and what is not a privilege necessary to the
proper functioning of a legislative assembly is a difficult one and it will
arise again later this year, when my Court examines a case concerning whether
the Canadian Human Rights Act applies to parliamentary employees.12
I have stated that
parliamentary autonomy is a fundamental principle, and that while the courts
can rule on the existence of privilege, they cannot rule on its exercise.
Allow me to add this: the corollary to parliamentary freedom from
judicial interference in its internal proceedings is judicial independence from
parliamentary interference. Like parliamentary privilege, judicial independence
is a principle of constitutional importance.13 It implies that Parliament and parliamentarians cannot interfere
with the process of judicial decision-making. Once the courts have
rendered their decision, it may be perfectly legitimate for Parliament to
discuss and criticize the decision and if, seen fit, to change the law.
However, when a matter is before the courts – sub judice –
Parliament and parliamentarians must refrain from seeking to influence in any
way the courts’ decision. Indeed in Canada, ministers of the Crown who
have contacted judges in relation to cases before them have been required to
offer their resignations.
Despite this fundamental
precept of democratic governance, many parts of the world are still witness to
gross interference with judicial independence. Judges have been “called
down” to explain or justify their decisions to members of the executive.
Judges have been attacked publicly, removed from office, punished
and even physically assaulted for rendering unpopular decisions. Interference
with judicial independence threatens judicial impartiality and public
confidence in the administration of justice. It threatens the
constitutional order, just as surely as courts interfering with the processes
of Parliament would threaten it. Both are assaults upon the rule of law
which stands as a cornerstone to all civil societies.
Just as the courts must
respect parliamentary privilege and freedom from interference in the
parliamentary decision-making process, Parliament, parliamentarians and members
of the executive must respect the judicial process and judicial independence.
The result is a regime of mutual respect, which serves to further the
ideals of justice, democracy and the rule of law to which we all, legislators
and judges alike, are committed.
1. See J.P. Joseph Maingot, Parliamentary
Privilege in Canada, 2nd Ed. (Ottawa, 1997), pp. 276-277.
2. See D. Limon and W.R. McKay ed., Erskine
May’s Treatise on the Law Privileges, Proceedings and Usage of Parliament,
22nd Ed. (London, 1997), pp. 70-71.
3. Ibid., p. 65.
4. New Brunswick Broadcasting Co. v. Nova
Scotia (Speaker of the House of Assembly),  1 S.C.R. 319, at p. 378.
5. J. Maingot, op. cit. p. 12.
6. Supra, note 4, 385.
7. (1839) 112 E.R. 1112.
8. Ibid., p. 1154.
9. Supra, note 4, p. 377.
10. Ibid., p. 384.
11. Ibid., pp. 384-385.
12. House of Commons et al. v. Satnam Vaid
13. See Ell v. Alberta, 2003 SCC 35,
paras. 18 ff.