WHAT IS THE PURPOSE AND SCOPE OF PARLIAMENTARY PRIVILEGE?

  We have three comments under this heading:

  1.  We wonder whether the evolution in the conception of the democratic protections of freedom of speech, etc, for the citizenry in general is not in practice eroding the scope within which Parliament can exercise its traditional privilege to punish contempts. (Please see the first part of our reply below under the heading "What uncertainties are there . . . in the application of parliamentary privilege?")

  2.  We have become aware of growing pressures in some Assemblies, including our own, to shelter under the broad umbrella of parliamentary immunity the ever-increasing role that elected Members are coming to play as intermediaries between their electorate and the public administration. It seems perfectly clear to us that this aspect of Member's work, important though it may be, cannot properly be viewed as forming part of the proceedings of Parliament and thus ought not to enjoy any of the essential protections accorded by privilege to such proceedings.

  Nonetheless, a bill that is in the drafting stage here in Quebec, if passed, would grant Members of the National Assembly liability insurance, at public expense, for any act accomplished in the course of their intermediary role. That, of course, is not parliamentary privilege; but it is clearly inspired by the immunities that traditionally accrue to proceedings in Parliament, and it seeks unequivocally to extend those immunities via the domain of civil liability.

  We would be interested in knowing to what extent such pressures are being felt elsewhere and what the Joint Committee think might be the appropriate response to them.

  3.  We take this opportunity to draw to your attention a landmark decision rendered in 1993 by the Supreme Court of Canada. Known formally as New Brunswick Broadcasting Co versus Nova Scotia, it is familiarly called the "Donahoe case", after the then Speaker of the Nova Scotia House of Assembly. We presume that either the Nova Scotia Assembly or the federal Parliament will likely provide you detailed information on this matter. In brief, it brings Canadian jurisprudence on parliamentary privilege up to date in the light of the Canadian Charter of Rights and Freedoms, adopted in 1982, and makes important observations, among other things, on the criterion of necessity in defining privileges as well as on the distinctions between inherent and legislated privileges.

WHAT UNCERTAINTIES ARE THERE AT PRESENT IN THE APPLICATION OF PARLIAMENTARY PRIVILEGE?

Contempts involving reflections on a Member's conduct [treated in May 21 edition, on pages 126-128]

  Two questions arise under this general heading:

  1.   Reflections on Members or on the House by persons other than elected Members:

  (a) Given the wide latitude accorded to freedom of the press in our day, has the concept of contempt of Parliament in respect of reflections on Members by persons who are not Members, in practical terms, retained any real meaning outside the statutory protections against libel and defamation that are accorded to all citizens?

  (b) To the extent that the scope of utterances contemptuous of Parliament is synonymous with that covered by statutory libel and defamation, to what extent ought the process of adjudicating and punishing such offences be left to the courts? In other words, can a modern Parliament still truly exercise its historical powers to repress contempts of this kind, or must it now invariably defer to the courts in such matters?

  These questions are inspired by an incident that occurred in Quebec in March 1997 in which a popular television program invited its viewers to phone in their nominations for the most untruthful politician in Quebec. The Leader of the Opposition subsequently moved a motion in the Assembly—though not on a matter of privilege—inviting the Assembly to "deplore" the actions of the broadcaster and the discredit they would unjustifiably bring upon all persons in elected public service.

  Although the contents of the broadcast in question likely approached, and possibly exceeded, the outer limits of fair critical commentary short of contempt of Parliament, it was this relatively mild response by the Assembly itself that provoked controversy. In fact, although the motion was carried by the Assembly, it did not even receive universal support from the Members of the Assembly themselves.

  2.   Reflections on Members or on the House made by Members speaking in the House or a parliamentary committee:

  Is it conceivable for a Member of Parliament, speaking in the House, to make comments that are so injurious to another Member or to the House itself as to surpass a simple breach of order and constitute a contempt or a breach of privilege? Or can elected Members speaking in the House be found only to have been disorderly in such circumstances, the sanctions regarding breaches of privilege or contempt being reserved only for someone (whether a Member or not) who is speaking without parliamentary immunity?

  If such behaviour on the part of a Member could potentially be considered to be in contempt, how ought one to distinguish reflections of an insulting or injurious nature that merely constitute a breach of order from those that may constitute a contempt?

  We raise this question because, in Quebec, Standing Order 35(7) forbids language in the Assembly that is violent, or insulting, while the Act respecting the National Assembly, which sets forth the essential rights and immunities of the Assembly and its Members, makes it a breach of the rights of the Assembly to defame one of its Members or to use abuse language towards him but leaves unclear the scope of its application (subsection 55(8)). Faced with allegations in the House that they considered particularly abusive, Members have on rare occasions invoked this provision of the Act to elevate such allegations to breaches of privilege rather than questions of mere order, but the rulings of our Speaker have not yet established any clear course of interpretation in these cases.

Accusations of having deliberately misled the House

  Members in Quebec have from time to time raised questions of privilege—or, more properly, contempt of Parliament—in which they allege that another Member has deliberately misled the House. The standard ruling by our Speaker, often citing the "Profumo case" (referred to by May, 21st edition, p. 119), has been that a Member can be found in contempt for deliberately misleading the House only if he himself has admitted to having done so; in the absence of such an admission, the very allegation is itself disorderly.

  Granted that it is important to maintaining a civilised climate for debate to presume that all Members are honourable at all times, some parliamentarians, and even a few specialists in procedure, remain troubled by the paradox that one can knowingly mislead the House with (parliamentary) impunity so long as one does not admit to having done so and that by so admitting, and only then, one can open oneself to a finding of contempt of Parliament, with all the consequences attendant thereupon.

  On this subject Joseph Maingot, the recognised authority on parliamentary privilege in Canada, asserts that deliberately misleading statements may in fact be considered contempts (Le privile"ge parlementaire au Canada [Parliamentary Privilege in Canada], deuxie"me edition, Chambre des communes et Les presses universitaires McGill-Queen's, 1997, p 251-252). He further states that such an accusation cannot properly be made by way of a question of privilege—since an allegation of deliberately misleading the House remains unparliamentary until proved—but must rather be done by way of a substantive motion. Unfortunately, among the cases he cites of Members whose conduct has been formally impugned, none concern the wilful misleading of the House. So far as we know, the prevailing modern tendency is to reject such allegations out of hand as unparliamentary.

  Bearing in mind the cynicism towards parliamentarians that is prevalent among the general public today in most democracies, we wonder whether some way ought not to be found to allow Parliaments to proceed—whether as a matter of contempt or otherwise, and always within carefully circumscribed limits—against Members about whom there is irrefutable, or at least very stong, evidence that they have deliberately misled the House regarding material facts.

SHOULD THE SCOPE AND APPLICATION OF PARLIAMENTARY PRIVILEGE BE MODIFED TO MEET MODERN-DAY NEEDS: ESSENTIAL PROTECTIONS FOR THE 21ST CENTURY?

  Please see below, "Scope of Proceedings in Parliament."

WHAT ARE THE MERITS OF HAVING THE NECESSARY PROTECTIONS CODIFIED IN LEGISLATION OR IN RESOLUTIONS?

  In Canada parliamentary privilege is grounded both in the Constitution and in federal and provincial statutes. In Quebec the pertinent provisions appear in sections 42 to 56 and 133, 134 and 137 of the Act respecting the National Assembly (please see copy attached).

  We note that while in principle parliamentary privilege ought to gain in transparency by being codified, our experience in Quebec is that persistent uncertainty continues to cloud some elements of this subject. Some of these difficulties are of course unavoidable, because, in the case of contempt of Parliament at least, an exhaustive codification of all potential offences is scarcely possible. (Please also see our response below under the heading "What, in modern circumstances, should constitute contempt of the House. . . ")

IS THERE A MORE MODERN AND BETTER PHRASE TO REPLACE "PARLIAMENTARY PRIVILEGE"?

  We regret that we are unable to offer a compelling alternative to the expression "parliamentary privilege," but we heartily applaud the willingness to look for one.

  While the handful of specialists in Canada who understand parliamentary privilege have little difficulty with the term, for most North Americans, largely ignorant of the long struggle that gave birth to the rights and privileges of the British Parliament, the popular notion of "privilege" has distinctly negative connotations. Thomas Jefferson's celebrated phrase "equal rights for all, special privileges for none" sums up admirably the inevitable knee-jerk reaction to the very use of this word.

  That being the case, to the extent that this subject may ever come to the attention of the Canadian public, the prevailing social climate can be counted on to be highly unsympathetic to any form of privilege accruing to a group of persons—namely, elected Members of Parliament—who are widely viewed as already enjoying broad, even unwarranted powers and privileges (in the ordinary sense of the word).

  Thus, any new term that may be chosen ought probably to emphasise the idea of the rights, or, better, the protection of Parliament, perhaps underscoring that of necessity, rather than ideas such as "privilege" or "immunity."

  Please note, too, that the use of the term "immunity" or "immunities" would risk confusion with the concept of diplomatic immunity, which, apart from being completely unrelated, is most often associated in the public mind with periodic reports of scandalous behaviour by irresponsible foreign diplomats.

WHAT ARE THE ISSUES ARISING OUT OF ARTICLE 9 OF THE BILL OF RIGHTS AND FREEDOM OF SPEECH?

  An aspect of this theme is touched on above in our reply concerning reflections on Members or on the Assembly by persons other than Members.

WHAT REMEDIES SHOULD THERE BE FOR CITIZENS WRONGED BY WORDS OR ACTIONS IN PARLIAMENT?

  While we can cite no recent instances in Quebec of citizens who felt they had been seriously wronged by words or actions in our Assembly, we know that this issue has been raised elseswhere.

  Any remedy proposed must be respectful of the inherent right of Parliament to regulate its own internal affairs. Two possibilities come to mind:

—  Permit persons who believe themselves to have been unduly aggrieved by what they consider to be slanderous references in parliamentary debates, or otherwise, to apply to the Speaker. If satisfied that the matter had some substance, the Speaker could then refer it, or bring it personally, to the appropriate committee, which would then be instructed to investigate and to recommend to the Assembly a suitable response. (In Quebec, for example, the Committee on the National Assembly is already mandated, among other things to investigate formal allegations by Members of misconduct by other Members or by persons other than Members of the Assembly).

—  Establish a special committee of elected Members—perhaps with strictly equal representation from all parliamentary parties—to act as a parliamentary "ombudsman". The committee would have full investigative powers, and its recommendations, if not binding on the House, would nonetheless be recognised as carrying considerable moral weight.

WHAT IS THE SCOPE OF THE PHRASE "PROCEEDINGS IN PARLIAMENT"? WHAT ASPECTS OF PARLIAMENTARY ACTIVITY SHOULD BE TREATED AS "PROCEEDINGS IN PARLIAMENT"?

  Documents prepared for Members, the Assembly, or a parliamentary committee: Please see our comments below under the heading "Any other relevant issues: Reconciling the subjudice principle with the right of Parliament to protect its privileges."

  Adjustments for new technologies: New communications technologies that are finding applications in the work of Parliament inevitably raise questions, although they need not always be difficult to answer or necessitate substantial modifications in the concept of parliamentary privilege.

  For example, do the immunities extended to witnesses testifying before committees (in Quebec, under section 53 of the Act respecting the National Assembly) automatically include testimony given through video-conferencing?

  Should electronic mail communications sent and received in the course of a Member's parliamentary duties be considered analagous to his other parliamentary documents?

  In both of the examples cited above, we think the traditional parliamentary immunities should continue to apply. Nevertheless, we believe that an assessment must be made of the implications of each new technological development for parliamentary proceedings and that in each case a conscious decision must be taken on the scope of its application.

  Authenticity of electronic documents: The ramifications of this problem go far beyond the question of parliamentary privilege, which may be only marginally touched by it.

  The "virtual Parliament": Continuing advances in interactive communications technology permit us to speculate that we may one day see the birth of the "virtual Parliament", in which Members will, at least occasionally, deliberate as a legislative body from widely dispersed locations, free of the obligation to be physically assembled in what are normally defined as the parliamentary precincts. Such a development would probably not change the fundamental nature of their work, but it would likely cloud the distinctions between what may properly be called "proceedings in Parliament" and other communications of a less formal nature, and it would have undeniable implications for the delineation of the parliamentary precincts.

WHAT ISSUES ARISE FROM THE EXCLUSIVE JURISDICTION OF THE TWO HOUSES OVER THEIR MEMBERS' AND INTERNAL PROCEEDINGS?

  No comment.

WHAT ISSUES ARISE FROM MEMBERS' FREEDOM FROM ARREST AND MOLESTATION AND PROTECTION FROM OUTSIDE INTERFERENCE?

  No comment.

WHAT RESPONSE SHOULD PARLIAMENT MAKE TO THE ANNOUNCEMENT BY THE GOVERNMENT THAT IT INTENDS TO LEGISLATE ON CORRUPTION? (ETC)

  No comment.

SHOULD PROCEEDINGS IN PARLIAMENT BE SUBJECT TO THE SCRUTINY OF THE COURTS IN ACTIONS FOR DEFAMATION?

  Please see our answer regarding remedies for citizens wronged by words or actions in Parliament, above.

WHAT, IN MODERN CIRCUMSTANCES, SHOULD CONSTITUTE CONTEMPT OF THE HOUSE: SHOULD THOSE ACTIONS WHICH EITHER HOUSE MAY TREAT AS A CONTEMPT BE CODIFIED EITHER BY RESOLUTION OR IN STANDING ORDERS OR EVEN IN LEGISLATION?

  Contempts are, by their nature, difficult to codify in an exhaustive fashion. What constitutes a contempt can often be appreciated only in the light of the circumstances of the moment; and even the more or less subjective predispositions of the Speaker who must rule, prima facie, whether a contempt exists, can be said to play a role. In truth, to the degree that the notion of contempt of Parliament must continue to exist—and, for the record, we believe it must—it would probably be counterproductive to try to circumscribe it too narrowly.

  That said, prevailing ethic of modern society encourages ordinary citizens and the mass media to exercise far greater latitude in their expression of critical comment regarding Parliament and its Members than was heretofore the case. What is more, the evolving communications technologies available to those who wish to express opinions on parliamentary matters are so varied and pervasive as to complicae considerably the very proces of evaluating potential contempts and to render virtually useless—or, worse, counterproductive—any serious attempt to repress them. For example, the Internet seems to imply profound future changes to power relations. If a publication ban is declared in one country, the material in question will often be made available within a matter of hours on two dozen or more foreign-based web sites—against whom there will be no recourse whatever!

  It may well be that future parliamentarians will be increasingly obliged to respond to some of the behaviours traditionally regarded as contempts less through their traditional powers to punish contempt than through educational efforts, "playing the media game", etc.

THE POWERS OF EACH HOUSE TO PUNISH THOSE WHO HAVE COMMITTED CONTEMPTS; WHETHER THE PENALTIES FOR CONTEMPT NEED TO BE MODIFIED AND UPDATED

  No comment.

WHAT ARE THE IMPLICATIONS FOR PARLIAMENTARY PRIVILEGE OF:

  (i)  the incorporation of the European Convention on Human Rights into UK law.

  No comment.

  (ii)  a Freedom of Information Act

  The civil chamber of the Court of Quebec recently handed down a decision that clarifies the scope of parliamentary privilege with respect to Quebec's own Act respecting Access to documents held by public bodies and the Protection of personal information. In brief, this Act applies expressly to the National Assembly as a public body but exempts documents produced by or for elected Members.

  To summarise, a citizen of Quebec had requested a document produced by a parliamentary standing committee that related to the organisation of certain public hearings and contained nominal information about him. Having been refused access to this document by the Assembly on the grounds that it was a privileged matter and therefore exempted from the Act, the applicant appealed to the access to information commission, the administrative body established under the Act to review decisions regarding access to information. Although the commission recognised the existence and general necessity of parliamentary privileges for the proper functioning of the Assembly and acknowledged that the Act in question could not abrogate them, the commission nonetheless took the view that the said document did not concern the actual deliberations of any committee and was not of such nature as to compromise parliamentary privilege. It therefore ordered the Assembly to provide the document.

  The Assembly appealed the commission's decision to the Court of Quebec. In overturning the commission's ruling, and with ample reference to the landmark decision in New Brunswick Broadcasting Co versus Nova Scotia (cited above under the heading "What is the purpose and scope of parliamentary privilege?"), the court ruled that the access to information commission had only to satisfy itself of the existence and the necessity of the parliamentary privilege invoked by the Assembly, which in this case was the right to govern its internal proceedings free of outside interference. That determination having been made, the commission was not competent to review any judgement made by the Assembly in the actual exercise of that privilege.

  (iii)  the Official Secrets Act?

  No comment.

ANY OTHER RELEVANT ISSUES

Reconciling the sub-judice principle with the right of Parliament to protect its privileges:

  In December 1993 two Members of the Assembly were physically assaulted by demonstrators in their riding (ie constituency) offices. Each Member raised a question of privilege about the incident in the Assembly and, pursuant to Standing Orders, gave notice of his intention to move that the Assembly take action thereon. In both cases, however, criminal charges were also laid.

  Asked to rule on the propriety of debating these matters in the Assembly while they were still sub-judice, the Speaker determined that the strict application of the sub-judice principle to criminal proceedings obliged the Assembly to await the outcome of such proceedings before undertaking its own deliberations on these matters of privilege, even though they concerned very serious allegations that two elected Members had been physically assaulted and intimidated. (It should be noted that the Assembly was dissolved and a general election held before the criminal proceedings were concluded. No action was ever taken on these incidents as a matter of privilege.)

  Section 133 of the Act respecting the National Assembly (please see text, attached) does clearly assign to the courts jurisdiction over infractions of this kind perpetrated against elected Members by persons other than Members. Nonetheless, some have wondered whether, the sub-judice principle notwithstanding, the Assembly ought not to have had the right to consider these questions of privilege even before the criminal proceedings were concluded—if necessary behind closed doors.

  We hope the Joint Committee's inquiry might include an examination of the exercise of parliamentary privilege involving matters that are also before the courts. In what circumstances and to what extent must Parliament defer to the courts in order to protect the rights of the individual to a fair trial? Can Parliament ever be justified in disregarding this principle and proceedings separately on a matter of privilege that is before the courts? Must Parliament feel bound by a court decision that exonerates the accused when it nonetheless feels its privileges have been breached? Is this a further example of the judiciarisation of matters of privilege or contempt heretofore regarded as belonging exclusively to Parliament, and should this evolution be encouraged or discouraged?

Decisions of the House regarding breaches of privilege: Can the "tyranny of the majority" be circumvented?

  It is well established that the Speaker can determine only whether a prima facie case of breach of privilege exists; the ultimate decision on alleged breaches of privilege or contempts of Parliament rests with the House. That means, of course, the majority, and in modern Parliaments, majorities tend to form along partisan lines.

  While alleged breaches by persons who are not Members of Parliament, or which attack Parliament as an institution or all Members as a class, may encourage manifestations of nonpartisan solidarity by Members, one would need to be quite naive not to acknowledge that alleged breaches involving Members themselves rarely escape the stranglehold of partisan politics. One can imagine only with difficulty, for example, a government majority voting with the opposition to censure the conduct of a member of cabinet, however flagrantly contemptuous that conduct may have been of Parliament.

  The raison d'etre of the hard-won rights and immunities of Parliament that constitute the sum of its privilege is serious and legitimate; and yet it would appear that both the practical delineation and the day-to-day defence of these rights are inextricably intertwined with partisan considerations.

  Can anything be done about this problem?

30 January 1998