Parliamentary Privilege / Rights of Members

Freedom from obstruction, interference, intimidation and molestation: senior departmental officials allegedly directing employees not to reply to a Member’s electronic survey

February 12, 2003

Debates, pp. 3470-1

On January 29, 2003, Jim Pankiw (Saskatoon–Humboldt) rose on a question of privilege regarding his attempts to use his parliamentary e-mail account to conduct a survey of the views of public servants about the impact of the Government’s bilingualism policy. He alleged that senior departmental officials had directed employees not to reply to the survey, thereby impeding and interfering with his work as a Member, and constituting a contempt of the House. After hearing from another Member, the Speaker took the matter under advisement, but noted that the Member’s use of the e-mail system had caused unprecedented difficulties in that the volume and size of messages sent had interfered with the operation of both House and Government systems. He added that, until specific guidelines had been adopted to regulate mass e-mailings, he was directing officials to contact any Member whose activities impeded the functioning systems, to inform them to cease such activity. If a Member failed to comply, officials were instructed to suspend that Member’s e-mail account.^[1]

On February 12, 2003, the Speaker delivered his ruling, stating that Members do possess certain rights, privileges and immunities, but that they are finite and apply only within the confines of the Parliamentary Precinct and parliamentary proceedings. He stated that since the Member’s survey had not been carried out in the context of a proceeding of the House or one of its committees, parliamentary privilege did not apply, and therefore no contempt was involved. He urged Members to adhere to new guidelines governing mass electronic communication and to carry out their duties such that they could avail themselves of the House’s full authority when conducting inquiries.

Decision of the Chair

The Speaker: Order, please. I am now prepared to rule on the question of privilege raised on January 29, 2003, by the hon. Member for Saskatoon–Humboldt concerning undue interference by senior public servants in his ability to carry out his duties as a parliamentarian.

I would like to thank the hon. Member for Saskatoon–Humboldt for having raised the matter, as well as the hon. Government House Leader for his contribution on the subject.

The hon. Member for Saskatoon–Humboldt stated that on December 27, 2002, and from January 3 to 6, 2003, he attempted to conduct a survey of the views of public servants with respect to the impact of the Government’s bilingualism policy. He named a number of senior public servants from various Government departments who he alleged had either forbidden their staff to reply to his survey, or indicated that the confidentiality of replies could not be guaranteed. These actions, he maintained, constituted undue interference in the conduct of his duties as a Member of Parliament.

In response to the points raised by the hon. Member for Saskatoon–Humboldt, the hon. Government House Leader pointed out that there had been no attempt to interfere with the Member’s right to freedom of speech in parliamentary proceedings. Furthermore, he argued that an individual Member’s right to make inquiries on his or her own initiative should not be confused with the powers of inquiry vested in committees of the House. In concluding his remarks, the Government House Leader asserted that the manner in which the survey material had been presented had had a disruptive effect on many of the recipient Government departments and their staff and that the managers in those departments were justified in taking the action complained of.

I have reviewed the facts relevant to the matter and wish to make several points.

First, it is quite true that the House has certain rights and privileges that are necessary to allow it to conduct its business in the Chamber and in committee.

In his argument, the hon. Member for Saskatoon–Humboldt cited page 50 of Marleau and Montpetit, which states:

“Parliamentary privilege” refers more appropriately to the rights and immunities that are deemed necessary for the House of Commons, as an institution, and its Members, as representatives of the electorate, to fulfil their functions.

Marleau and Montpetit goes on to state at page 51 that:

The House has the authority to invoke privilege where its ability has been obstructed in the execution of its functions or where Members have been obstructed in the performance of their duties.

It is clear that the managers in certain federal Government departments dealt with the disruption caused in their departments by the hon. Member’s e-mails by making various attempts either to prevent their staff from responding, to warn people of the risks that might be involved in responding, or to otherwise limit the negative impact on their networks and e-mail systems. The question before us is whether any of these actions constitute an obstruction of the hon. Member’s ability to perform his parliamentary duties.

In this regard, I would again like to cite Marleau and Montpetit at page 52, where the limitations of the application of parliamentary privilege to the individual Member is described:

Privilege essentially belongs to the House as a whole; individual Members can only claim privilege insofar as any denial of their rights, or threat made to them, would impede the functioning of the House. In addition, individual Members cannot claim privilege or immunity on matters that are unrelated to their functions in the House.

Members do possess certain rights, privileges and immunities—freedom of speech, freedom from arrest in civil actions, exemption from jury duty and so on—but these are finite and apply only in context, which usually means within the confines of the Parliamentary Precinct and a “proceeding in parliament”. In a 1971 ruling related to a question of privilege, Mr. Speaker Lamoureaux made the following point:

In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a Member to discharge his duties in the House as a Member of the House of Commons.

In presenting his case, the hon. Member argued that the directives to staff from managers with regard to his survey infringed upon his right to obtain information from Government sources. Members have an undeniable right to question and obtain information from the Government in order to discharge their responsibility of oversight. This function is chiefly carried out in two ways: by asking questions of the Government either during Question Period or by way of written questions, and through inquiries carried out by committees of the House. Both of these proceedings are protected by the full weight of parliamentary privilege. It is not the case, however, that the privilege to seek such information extends to every aspect of a Member’s activities.

In a related case raised in November 2001, I was asked to rule on whether or not a breach of privilege occurred when the Government ordered its officials not to appear before an ad hoc committee established by the hon. Member and others.

I did not find that the situation constituted a prima facie question of privilege and made the following point:

I do not believe that any one of us has the right to call before us a government official and insist on answers to questions… (the hon. Member) stated that the committee that he was chairing was an ad hoc caucus of Members. It clearly was not a committee of this House.

In the case before us again, I cannot find that there has been any contempt or breach of the Member’s privileges. Had his survey been conducted in the context of a proceeding of this House or one of its committees, it would have been fully protected by privilege. Given the manner in which the survey was circulated and the fact that it was not carried out in relation to a parliamentary proceeding, parliamentary privilege does not apply.

I would urge the hon. Member for Saskatoon–Humboldt and other Members to look to the other parliamentary options that are available to them in carrying out their duties. They will then be able to avail themselves of the full authority of the House in conducting their inquiries.

The House need not be reminded about the unprecedented difficulties that these mass e-mailings cause. The Members will be soon, if they have not already been, informed of new guidelines to regulate this type of communication. In the meantime I know that I can count on the full cooperation of all hon. Members to respect the guidelines in their future work.