Parliamentary Privilege / Rights of the House

Contempt of the House: Officers of Parliament; reflection by one Officer on another

May 28, 2001

Debates, pp. 4276-7

On May 11, 2001, Peter MacKay (Pictou–Antigonish–Guysborough) rose on a question of privilege with regard to a letter that the Privacy Commissioner (George Radwanski) had written to the Information Commissioner (John Reid). Mr. MacKay argued that the letter was a direct public attack by one Officer of Parliament on the work of another which eroded public confidence in the latter Officer and in Parliament, and constituted a contempt of the House of Commons and its officials. Specifically, Mr. MacKay claimed that the Privacy Commissioner’s letter constituted an interference with the work of the Information Commissioner, who was lawfully proceeding based on a request made to him under the Access to Information Act. After hearing from other Members, the Speaker took the matter under advisement.^[1]

On May 28, 2001, the Speaker delivered his ruling. He noted that, in itself, the expression of views by one Commissioner contrary to those of another could not be considered as interference. He added that there was a natural tension between the concepts found in the Access to Information Act and those enshrined in the Privacy Act, and, thus, the Officers charged with the responsibility of implementing the two Acts might well hold differing views. The Speaker stated that, accordingly, in his view, the letter did not interfere with the Information Commissioner’s ability to carry out his mandate. On the matter of whether the conduct of the Privacy Commissioner, in allegedly overstepping his statutory mandate, constituted a contempt of the House, the Speaker stressed that it was neither part of his mandate to comment on points of law nor to interpret the mandate of the Commissioner under the Privacy Act. He suggested that if Members felt that there was a need to examine the role of the Privacy Commissioner, they might ask the Standing Committee on Justice and Human Rights to pursue a study on the question of his mandate and to explore the issue of appropriate communication directly with both Officers.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised by the hon. Member for Pictou–Antigonish–Guysborough concerning interference in the work of Information Commissioner John Reid by Privacy Commissioner George Radwanski.

The hon. Member for Pictou–Antigonish–Guysborough stated that in his letter to Mr. Reid the Privacy Commissioner had carried out what amounted to an attack on the Information Commissioner, an Officer of Parliament. He argued that this alleged attack eroded public confidence in the institution of Parliament and constituted a contempt both of the House and its Officers.

I would like to thank the hon. Member for Pictou–Antigonish–Guysborough for having drawn this matter to the attention of the Chair. I would also like to thank the Government House Leader and the Parliamentary Secretary to the Government House Leader for their thoughtful contributions to the discussion of this point.

A small number of individuals have the special distinction of being Officers of Parliament. So great is the importance which Parliament attaches to the responsibilities entrusted to these individuals that they are appointed by resolution of Parliament rather than by the Governor in Council.

Because of the special relationship that exists between these officials and the House of Commons, any actions which affect them or their ability to carry out their work are watched with particular attention by Members.

The hon. Member for Pictou–Antigonish–Guysborough has brought before the House legitimate concerns about a situation involving the attempt of the Privacy Commissioner to influence the Information Commissioner. This attempt has been carried out by way of a letter—an open letter, not only made public but widely disseminated by the signatory—at a time when the case in point is being appealed to the Supreme Court by the Information Commissioner.

There are in my view two questions which need to be addressed in the case before us. Has there been interference in the Information Commissioner’s ability to carry out his duties? Has the Privacy Commissioner conducted himself improperly?

I have examined with great care the letter sent by Mr. Radwanski to Mr. Reid. The letter unquestionably attempts to influence the Information Commissioner and seeks to exert that influence by reference to the interpretation of statutes and court decisions.

It is not my place to weigh the arguments which the Privacy Commissioner has put forward, nor will I speculate on whether or not the letter will prove persuasive to the Information Commissioner, but I must conclude that in itself the presentation of views by one Commissioner contrary to those of another cannot be considered as interference.

Indeed, it must be recognized that there is a natural tension between the concepts found in the Access to Information Act and those enshrined in the Privacy Act, so that it can come as no surprise that the Officers charged with the responsibility of implementing these two Acts may well hold differing views on issues of great substance. Thus, the letter does not in my view interfere in the Information Commissioner’s ability to carry out his mandate.

Now to the matter of the conduct of the Privacy Commissioner, irrespective of the views which the Privacy Commissioner’s letter contains or even the egregious language in which he chooses to express those views, I can find nothing in his letter which might be taken as a threat or intimidation. One may regret that this representation has been made by way of an open letter and one may be dismayed that this has been presented in the media as an unseemly squabble between one Officer and another, but these are matters of opinion or judgment and as such are not for the Chair to address.

The second point to be considered is whether the action of the Privacy Commissioner in writing, sending and making public this letter constitutes a contempt of the House.

The hon. Member for Pictou–Antigonish–Guysborough stated that, in his view, the Privacy Commissioner had overstepped his statutory role by his attempt to influence the Information Commissioner in this way.

But, as the hon. Member himself went on to point out, it is not part of the Speaker’s mandate to comment on points of law.

The Speaker of the House of Commons has no role in interpreting the mandate of the Commissioner under the Privacy Act. However, as the remarks made by the Government House Leader and the Parliamentary Secretary indicate, there are differing views as to the proper role of the Privacy Commissioner.

Members may conclude that there is a need to examine the role of the Privacy Commissioner and, more to the point, the Privacy Commissioner’s own understanding of his role. There already exists a forum for such an examination and that is the Standing Committee on Justice and Human Rights. I would commend that Committee to hon. Members as the body to which they should have recourse to pursue questions of mandate, where the issues of appropriate communication might be further explored with both the officers themselves.

Neither the Privacy Commissioner nor the Information Commissioner is an agent of the Government. They are both Officers of Parliament. It is their responsibility as well as ours to see that their relationships to each other and to Parliament are maintained and strengthened.