At the time
this article was written Terry Moore was a procedural clerk with the Table
Research Branch of the House of Commons. James Robertson was a senior analyst
with the Parliamentary Research Service
Parliamentary
privilege refers to certain immunities from the law provided to Members of
Parliament in order for them to do their legislative work. It also
protects the right of Parliament to perform its constitutional functions. This
article outlines the extent and limitations of parliamentary privilege and gives
some examples of privilege and the process for dealing with such questions.
Parliamentary privilege is a shorthand term.
The term “privilege” usually conveys the idea of a “privileged class”,
with a person or group granted special rights or immunities beyond the common
advantages of others. This is not, however, the meaning of privilege in
the parliamentary context. Parliamentary privilege refers to the rights
and immunities that are deemed necessary for the Senate and the House of
Commons, as institutions, and Senators and Members representing constituencies,
to fulfil their functions. It also refers to the powers possessed by each House
to protect itself, its Members, and its procedures from undue interference, so
that it can effectively carry out its principal functions which are to inquire,
to debate, and to legislate. In that sense, parliamentary privilege can
be viewed as special advantages which Parliament and its Members need to
function unimpeded.
These rights and immunities emerged out of
centuries of struggle between King and Commons in England culminating in the
Bill of Rights of 1689. Freedom of speech, the most important right
enjoyed by Members of the British House of Commons, was contained in Article 9
of the Bill. The passage of the Act was a great victory for democracy not
only in Britain but also in Canada as we are inheritors of the Bill of Rights.
In 1704 the British Parliament decided they would not give themselves any
more privileges and basically the rights and immunities enjoyed by the two
Houses of Parliament and parliamentarians today are those of 1704 with one
important exception.
This exception grew out of the famous case
of Stockdale versus Hansard in 1836, which fixed parliamentary privilege as
part of the English Common Law. Stockdale sued Hansard, the printer of
the British House of Commons, for libel over a report printed by Hansard by
order of the House. The document contained defamatory remarks about
Stockdale. Stockdale eventually won his case thereby forcing the British
Parliament to pass the Parliamentary Papers Act of 1840 allowing both
Houses of Parliament to publish libellous material.
Rights and Immunities of the Houses and
of Individual Members and Senators
Let me turn now to the different types of
rights and immunities. These can be divided into two categories: those
extended to Members and Senators individually, and those extended to each House
collectively. The list of those enjoyed by parliamentarians individually
is short and very specific. The most important of the individual liberties is
freedom of speech in the Chamber and other proceedings of Parliament.
This is the freedom of a Senator or a Member to say what he or she wants
to, it is not freedom to speak whenever one wishes. Through their Standing
Orders and Rules, the Houses control who may speak, when, and for how long, and
to a certain degree what may be said. For example, the Houses prohibit
unparliamentary language, require that members be addressed in particular ways,
and encourage members to refrain from criticizing non-members.
A second individual right where there is often some
confusion relates to freedom from arrest. There was originally some
protection against arrest for a civil action but that privilege disappeared centuries
ago. There is absolutely no immunity from arrest for criminal matters. If a
parliamentarian commits a criminal act he or she is liable to arrest. The
only limitations are that the police must advise the Speaker that they have a
warrant for the arrest of a member and seek his or her permission to enter the
premises. In Westminster there have been cases where members were
arrested in the Chamber (not while the House was in session). Parliament
is not a sanctuary or a place where members can avoid the law.
A third right that applies to individual
members is the exemption from jury duty. The courts have a huge list of
people on whom to draw for jury duty. There is no need to call on a
Member of Parliament or Senator as these individuals have public duties to
perform, which take precedence over the requirement to serve on a jury.
Similarly Members and Senators are exempt
from attending court as witnesses. That does not mean that
parliamentarians do not appear in court. They may do it voluntarily if
their testimony is absolutely required. That is the total sum of rights
and immunities of Members of Parliament.
Collectively, each House has a number of
rights and immunities. The first is the right to discipline, that is, the right
to punish (by incarceration) persons guilty of breaches of privilege or
contempts, and, in the House of Commons, the power to expel Members guilty of
disgraceful conduct. Each House can censure its members or reprimand
members of the public. Each House can imprison, although that has not
been done in a long time. The House of Commons can expel its Members and can
suspend it Members for a day or longer.
The second right of each House is the
regulation and control of its internal affairs by making rules for itself and
controlling the parliamentary precincts including who is allowed onto the
precinct and who is not.
Each House also has the authority to
maintain the attendance and service of its members.
Each House has the right to initiate
inquiries and call witnesses and demand documents. Each has the right to
administer oaths to witnesses and to publish papers containing defamatory
material. That is the sum total of the rights and immunities of the House
collectively.
Contempt
Any disregard of or attack on the rights,
powers and immunities of one of the Houses and its members, either by an
outside person or body, or by a member of that House, is referred to as a
“breach of privilege” and is punishable by the House. There are, however,
other affronts against the dignity and authority of Parliament, which may not
fall within one of the specifically defined privileges. Thus, the Houses also
claim the right to punish, as a contempt, any action which, though not a breach
of a specific privilege, tends to obstruct or impede the House in the
performance of its functions; obstructs or impedes any member or officer of the
House in the discharge of their duties; or is an offence against the authority
or dignity of the House, such as disobedience of its legitimate commands or
libels upon itself, its members, or its officers. The power to punish
contempts, whether contempt of court or contempt of Parliament, exists so that
the courts and the two Houses are able to protect themselves from acts which
directly or indirectly impede them in the performance of their functions.
In that sense, all breaches of privilege are contempts of the House, but
not all contempts are necessarily breaches of privilege.
In the course of a Parliament more accusations of contempt of parliament
than breaches of members' individual privileges are raised.
In Erskine May contempt is defined as
follows: any act or omission which obstructs or impedes either House of
Parliament in the performance of its functions or which obstructs or impedes
any member or officer of such house in the discharge his duties or which has a
tendency to directly or indirectly to produce such results.
In another work on British parliamentary
practice entitled Parliament: Functions, Practice and Procedures,
the authors have provided a list of examples of what the British view as
contempt1:
- The misconduct of individuals in the presence of the
House or its committees (for example, persistent misleading of a committee
by a witness)
- Disobedience of the rules of the House or its
committees (refusal of a witness to attend)
- Presenting forged or falsified documents
- Misconduct (meaning corruption) of Members or officers
of the House
- Constructive contempts (speeches or writing reflecting
badly on the House; premature disclosure of committee proceedings or
evidence; fighting in the lobbies of the House)
- Obstructing Members in the performance of their duties
(impeding entrance; intimidating, molesting or insulting Members)
- Obstructing officers of the House in the performance of
their duties
- Obstructing witnesses (who have full protection of
privilege when engaged as witnesses).
We do not have such
a list in Canada but in fact many of the actions listed above would be and have
been considered contempts and have led to such matters being raised. Let us now
turn to the question of how the House of Commons deals with such issues when
they are raised.
Bringing an
Issue of Privilege or Contempt Before the House
Prior to 1958 there
was no written procedure as to how to deal with questions of privilege in the
Canadian House. In that year the 4th Edition
of Beauchesne's Rules and Forms of the House of Commons was published.
It laid out the practice of the British Speaker in dealing with questions of
privilege. Speaker Michener decided that henceforth the House of Commons
would follow the practice at Westminster and Speakers of both Canadian Houses
since have followed this.
In 1977, however,
the British House of Commons completely changed the way they deal with
questions of privilege so we no longer follow British practice. At
Westminster, a Member who feels that his or her rights have been breached will
send a letter to the Speaker. The Speaker will consult with the Member
and decide if there is a valid question of privilege. If this is the
case, the Member is informed and in the House will move a motion, usually to
refer the matter to committee. The House with little or no debate generally
adopts such motions.
In Canadian
practice, there are two important things for an individual to remember in
raising a matter of privilege. First, he or she must do so at the
earliest opportunity and, second, the member must convince the Speaker that on
the first impression (prima facie) there is a question of privilege.
The Speaker's role
is quite limited. Is the matter being raised of such a nature as to
require priority over all other business? If it is, the House must take
the matter into immediate consideration. So the Speaker is not deciding
if there is in fact a matter of privilege or if a Member's rights have been
breached, but only if there appears to be a breach, which warrants putting
aside other business in order to consider it.
When can this be
done? If the issue of privilege arises out of something that happens in
the House of Commons it must be raised immediately without notice. The Member
raises and describes to the Speaker what privilege has been breached or the
nature of the contempt. To facilitate the work of the House the Speaker
does not normally allow matters of privilege to be raised at certain times.
Such matters cannot be raised during Statements by Members, Question
Period, Royal Assent, the Adjournment Debate (the Late Show) or recorded
divisions.
If something
happens outside of the House that a Member considers a matter of privilege,
then he or she has to proceed in a particular way. At least one hour
before raising it in the House, a written notice must be sent to the Speaker
indicating that the Member intends to raise a question of privilege. The
notice should contain four elements. It should indicate that the Member intends
to raise a question of privilege in the House. It should state that the matter
is being raised at the earliest opportunity. It must describe what
privilege has been violated or the nature of the contempt. And the Member
should include the text of the motion he or she will move if the Speaker
accepts there is a prima facie case of privilege. With this information
the Speaker will be prepared to deal effectively with the issue when the Member
raises it in the House. Questions of privilege for which written notice
has been given are raised at specific times, namely: on the opening of the
sitting; following Routine Proceedings but before Orders of the Day;
immediately after Question Period; and occasionally, during a debate.
Depending on the
circumstances, the Speaker can delay consideration of the question to a later
time or date if, for example, it involves more than one Member and one of them
is absent. If there is more than one question of privilege being raised
the Speaker decides in what order he or she wishes to deal with them.
The Speaker will
recognize the Member who raised the question of privilege and hear what he or
she has to say. He may also recognize other Members wishing to
participate in the discussion. When the Speaker has heard enough to allow
a decision he will end the discussion and make a ruling or he may elect to take
the matter under advisement and make his decision at a later date. If the
matter is urgent the Speaker usually seeks consent to suspend the House in
order to have an opportunity to study the matter and make a decision.
If the Speaker
decides there is no prima facie case of privilege, that is the end of
the matter and the House goes back to its regular business. If the
Speaker decides there is a prima facie question of privilege, then the
Member who raised the matter must be ready to move his or her motion. The
usual form of the motion is to refer the matter to committee for study, but it
may provide for some other action to be taken. The motion must be
seconded, is debatable and amendable and it has priority over Orders of the Day
– that is, Government Orders and Private Members' Business. Routine Proceedings,
Statements by Members, Question Period and the Adjournment Proceedings take
place. Debate on the privilege motion may be limited by the adoption of
closure. Members may move the adjournment of the House or of the debate.
At the conclusion of the debate the House may adopt or defeat the motion.
If the motion is adopted it becomes an order of the House.
Procedure Dealing with Matters Arising from
Committees
The House has not
given its committees the power to punish any misconduct, breach of privilege,
or contempt directly. Committees cannot decide such matters; they can
only report them to the House. Except in the most extreme situations, the
Speaker will only hear questions of privilege arising from committee
proceedings upon presentation of a report from the committee, which directly
deals with the matter and not as a question of privilege raised by an
individual Member. Most matters, which have been reported by committees,
have concerned the behaviour of Members, witnesses or the public.
Once the committee
report has been presented, the House is formally seized of the matter. After
having given the appropriate notice, any Member may then raise the matter as a
question of privilege. The Speaker will hear the question of privilege and may hear
other Members on the matter, before ruling on the prima facie nature of
the question of privilege. Should the Speaker rule the matter a prima facie question
of privilege, the Member who raised the question of privilege may then propose
a motion asking the House to take some action. Should the Speaker rule that
there is no prima facie question of privilege, no priority would be
given to the matter. As with any committee report, any Member may still seek
concurrence in the report by following the normal procedures during the Daily
Routine of Business.
When the House sits
as a Committee of the Whole, a Member may raise a question of privilege only on
matters that have occurred in the Committee. In a Committee of the Whole, a
Member may not raise, as a question of privilege matters affecting the
privileges of the House in general or something, which has occurred outside the
Chamber, but may move a motion that the Committee rise and report progress in
order that the Speaker may hear the question of privilege. If the motion is
adopted, the Chairman will rise and report to the Speaker who will then hear
the Member.
The Execution of
Search Warrants
As custodian of the
rights and privileges of the House of Commons and head of its administrative
structure, the Speaker oversees the management of the precinct of the House.
Cases have arisen where representatives of outside police forces have wanted to
enter the precinct of Parliament for purposes of making an arrest, conducting
an interrogation or executing a search warrant. The Speaker has the authority,
on behalf of the House, to grant or deny outside police forces permission to
enter the precinct. Well-established parliamentary tradition provides that
search warrants may only be executed within the precinct of Parliament with the
consent of the Speaker. The Speaker may withhold or postpone giving his or her
consent if it is determined that the execution of the search warrant will
violate the collective and individual privileges, rights, immunities and powers
of the House of Commons and its Members by interfering with the proper
functioning of the House of Commons.
Parliamentary privilege is not the privilege of an
élite group but rather a necessary component of what is required for the
Canadian electorate's representatives to conduct public business on behalf of
all Canadians free from interference and intimidation.
A search warrant
must be executed in the presence of a representative of the Speaker who ensures
that a copy of it is given to any Member whose affairs are subject of the
search, at the time of the search or as soon as practicable thereafter. The
Parliament of Canada Act and the by-laws of the Board of Internal Economy
make the Board responsible for determining the acceptability of a search
warrant when dealing with matters involving the investigation of the use by a
Member of funds, goods, services or premises granted by the House. The Speaker,
with the assistance of the Law Clerk and Parliamentary Counsel, examines every
search warrant that the police wish to execute within the precinct. In the
examination of a search warrant, there are two major considerations which the
Speaker takes into account: the procedural sufficiency of the search warrant
and the precise description of the documents sought under the search warrant.
Essentially, the Speaker's role in reviewing a search warrant is restricted to
an examination based on form and content.
Ultimately, a
Member of the House of Commons is not “above the law”. The Member is, however,
entitled to the full protection of the law, including the application of both
corporate and individual parliamentary privilege and is subject to the criminal
law and the protection it provides.
Matters of “Personal Privilege” in the House of
Commons
While in House
practice, there is no point of personal privilege, although Members
occasionally rise and use this terminology. The Speaker may sometimes grant
leave to a Member to explain a matter of a personal nature. This is considered
as an indulgence by the Chair and is completely at the discretion of the
Speaker. Members may cite personal privilege in the following circumstances: to
make personal explanation; to correct errors made in debate; to apologize to
the House; to thank the House or acknowledge something done for the Member by
the House; to announce a change in party affiliation; or to announce a
resignation. The Member gives notice to the Speaker in writing or in unusual
circumstances orally but privately. He or she is recognized by the Speaker and
rises in his or her place and makes a statement. This statement is not meant to
be used for general debate and Members arte expected to confine their remarks
to the point they wish to make. No other Members are recognized to speak on the
matter.
How Committees
Deal with Privilege
Most questions of
privilege are referred to a committee for detailed study and investigation. In
the Senate, this means the Standing Senate Committee on Privileges, Standing
Rules and Orders, while in the House of Commons, such matters are referred to
the Standing Committee on Procedure and House Affairs.
Usually
parliamentary committees deal with policy or legislation, but in cases of
privilege these committees are engaged more in a fact-finding and adjudicative exercise:
they have to determine what happened, why, and what should be done about it.
Their role is to determine whether in fact a breach of privilege or contempt of
Parliament occurred and, if so, to recommend the appropriate sanctions.
The procedures of
the Senate and House committees in privilege cases are similar. An issue
referred to the committee will generally be taken up on a priority basis.
Circumstances will dictate whether the committee can complete its work
quickly or whether the issue may take several months to investigate. If there
are outside activities such as court or administrative proceedings that are
relevant to the question, this may affect the timing of hearings.
Committees
investigating a question of privilege have the same powers as any other
committee. They have the power "to send for persons, papers and
records." They can invite or summon witnesses, and require the production
of documents. If a person refuses a summons, the committee can report the fact
to the full chamber, and it is up to the chamber to issue an order to attend or
to provide documents.
The first witness
is usually the Senator or Member who raised the question of privilege in the
chamber. He or she will often reiterate what they said earlier, but may also
give more information than during the initial discussion in the House. The
committee may also want to hear from experts in parliamentary procedure, such
as the Clerk of the House or the Law Clerk. The person or persons whose conduct
led to the complaint will usually be called, and given an opportunity to
explain what happened and why it should not be considered a breach of
privilege. Other evidence may be sought, depending on the case.
Because of the
fact-finding nature of the inquiry, and the consequences that can result, there
may be a requirement that witnesses testify under oath. By tradition,
Members of Parliament and Senators are not required to testify under oath, on
the basis that they have taken a general oath of office which is considered
sufficient. Sometimes, however, they will agree voluntarily to be sworn in so
as to testify on the same basis as other witnesses.
The issue before
the committee is whether there has been a breach of privilege or contempt of
Parliament. The committee, however, does not make the final decision.
It makes findings of fact and recommendations which are reported back to
the chamber. By concurring in the report of the committee, the chamber
will adopt the report of the committee.
If the committee
finds that a breach of privilege has occurred, it will report to the Senate or
House and include some recommendation for a remedy to punish the person or
persons who committed the breach and ensure it does not happen again. There are
various options open, ranging from a reprimand and censure, to suspension,
expulsion, or even imprisonment. In recent years, most of the cases where
a committee has found a breach of privilege, the issue has not been one where
there was a deliberate attempt to undermine the work of the Senate or the House
of Commons so the more drastic remedies have not been used. The more frequent
course of action is for a reprimand.
A committee has no
obligation to report on a matter of privilege that is referred to it but it
generally will do so. If a committee finds there is no breach of privilege, it
will still submit a report to the chamber and the chamber may concur in the
report or, considering there was no breach, it may simply decide to do
nothing and the matter is closed.
In general, the scope of privilege has been very
narrowly construed by committees of both the House and Senate. For
example, a few years ago a newspaper printed an article suggesting that
compensation paid to Senator Pat Carney for some documents relating to her time
as Minister that had been inadvertently destroyed was unwarranted and
inappropriate. The Speaker of the Senate found that the newspaper article
constituted a prima facie case of privilege. The Committee heard
from the Senator, from the journalist who wrote the story, and from experts in
parliamentary privilege. It concluded that although the newspaper article was
misleading, incomplete and inaccurate, it did not infringe Senator Carney's
activities or her ability to function as a Parliamentarian.
The determination that a prima facie question of
privilege exists does not always lead to a finding that a breach occurred or a
contempt has been committed. In many cases, the mere referral of a matter to a
committee is significant. It is then up to the committee to make a
determination following an investigation.
The prima facie
cases of privilege that have been referred to committees of the Senate and the
House of Commons over the last several years can be grouped into several
general categories:
Leaking of
Committee Reports and Other In Camera Material: In recent years the premature release of committee
reports before they are tabled has been raised as questions of privilege in
both the Senate and the House of Commons. In the House, Speakers have
consistently ruled that unless it is possible to identify the individual who
leaked the report, they were unable to find a prima facie cases: there
needs to be more than just a general complain or allegation. The House of
Commons Standing Committee on Procedure and House Affairs did end up investigating
the issue of leaked House reports, but as an order of reference rather than as
a result of a motion of privilege.2 The main
difference in dealing with issues this way is that they do not get the same
priority over other business as if they were dealt with as a matter of
privilege. The Senate took a different approach to the matter of leaks. Several
cases of leaked draft committee reports were found to be prima facie
breaches of privilege, and referred to the Standing Senate Committee on
Privileges, Standing Rules and Orders, which made recommendations to minimize
such problems in the future and a procedure for investigating such leaks that
occur.3
Intimidation or
interference of witnesses before committees: A woman who had appeared before a House of Commons committee
looking at abortion showed an extract from a CBC television programme as part
of her testimony. She was later contacted by a producer from the CBC who
objected to her using the material in such a political context. The committee
decided that a letter of reprimand should be sent to the CBC executive.
More recently, in the Senate, there was a case of an official from Health
Canada who testified before a Senate Committee on the use of Bovine Growth
Hormone. He was subsequently given a five-day suspension without pay by
the Department of Health, which he claimed was a result of his testimony to the
Senate. After looking into the issue, the Standing Senate Committee on
Privileges, Standing Rules and Orders determined that it could not make a
direct link between the demotion and the testimony so no finding of privilege
was reported.
Impeding
Member's access to Parliament:
During the furore over the GST legislation during the early 1990s there
was a protest by taxi drivers on Parliament Hill which impeded members from
using the minibuses to get from their offices to the Centre Block. This
was raised as a question of privilege and the Speaker agreed that there was a prima
facie case of interfering with members ability to attend to business in the
Chamber. The matter was referred to committee but it was not pursued. Another
case involved strikers who picketed parliamentary precincts and buildings, as
part of a protest by public sector unions. The Committee determined that
this was a technical breach of privilege and that the strikers should be
reminded that they cannot interfere with the ability of Members of Parliament
to enter and leave the precincts.
Disturbances in
the House: Several years ago,
a Member of Parliament grabbed the Mace on the table in the chamber, and this
resulted in motion of censure against him. In another case, students
protesting increases in university fees pelted Members of Parliament from the
gallery with macaroni.
Failure of
government ministers to provide or table information: The House of Commons Standing Committee on
Justice and the Solicitor General wanted access to confidential reports
relating to the escapes from prison of certain inmates. The committee was
provided with edited documents. The issue was whether a breach of privilege had
been committed in not providing complete and unedited version. The committee
decided that Parliament had the right to request any unexpurgated information
that it wants and was not bound by the Access to Information or Privacy
Acts. The matter was subsequently resolved by making the documents
available at an in camera briefing of the Justice Committee and not
allowing any documents to leave the room.
Other prima facie cases of privilege: Acrimonious political debates have lead to several
questions of privilege in recent years: for example, during the last Quebec
referendum, a Quebec MP wrote to Quebec Members of the Armed Forces asking them
to report to Quebec City after the result of a successful referendum, while
another issue involved criticism of the Speaker of the House over the issue of
displaying flags on desks in the House.
Notes
1. J.A.G. Griffith and M.
Ryle, Parliament: Functions, Practice and Procedures, London, Sweet and
Maxwell, 1989, pp. 93-4.
2. See Douglas Fisher, “The
Problem of Confidentiality of Committee Reports”, Canadian Parliamentary
Review, Vol. 22, No 3, 1999, pp. 11-13.
3. See Jack Austin, “The Confidentiality
of Committee Reports”, Canadian Parliamentary Review, Vol. 24, No 1,
2001, pp. 5-7.
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