Parliamentary Privilege / Rights of Members

Freedom from obstruction, interference, intimidation and molestation: public servants’ refusal to communicate with a Member during dissolution

May 3, 2006

Debates, pp. 844-5

On April 6, 2006, Tom Wappel (Scarborough Southwest) rose on a question of privilege with regard to the refusal of public servants to communicate with Members while Parliament was dissolved, emphasizing his understanding that he retained his status as a Member even during a dissolution. Explaining that he had wished to discuss with them some proposed recommendations that arose from committee work carried out prior to dissolution, he alleged that this refusal impeded him in the discharge of his duties as a Member of Parliament.^[1] The following day, Tom Lukiwski (Parliamentary Secretary to the Leader of the Government in the House of Commons and Minister for Democratic Reform) replied that the Privy Council Office had no policy prohibiting public servants from being in contact with Members of Parliament during an election campaign. He argued that, in any case, the Member had had no parliamentary duties to fulfil because dissolution terminates all parliamentary business, including business before committees,^[2] and that therefore his privileges could not have been breached. The Speaker took the matter under advisement.

The Speaker delivered his ruling on May 3, 2006. He noted that the Parliament of Canada Act implies that Members remain Members for the purpose of allowances payable during a dissolution and the By-laws of the Board of Internal Economy of the House of Commons permit Members to continue to use their offices to serve constituents. While acknowledging that serving constituents may involve communicating with public servants, the Speaker ruled that Mr. Wappel had not been obstructed in the performance of his parliamentary duties as Parliament was dissolved. He concluded that, accordingly, he could not find a prima facie breach of privilege.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on Thursday, April 6, 2006, by the hon. Member for Scarborough Southwest, alleging that public servants refused to communicate with him during the recent election campaign.

I would like to thank the hon. Member for raising this matter, as well as the hon. Member for Prince George–Peace River, the hon. Member for Saint-Hyacinthe–Bagot and the hon. Member for Halifax for their interventions. I also want to thank the hon. Parliamentary Secretary to the Government House Leader and Minister for Democratic Reform for his intervention on April 7, 2006.

In presenting his case, the hon. Member for Scarborough Southwest stated that departmental officials refused to meet with him during the recent general election to discuss the Anti-terrorism Act. In the last Parliament, the hon. Member had been a member of the Subcommittee on Public Safety and National Security of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. The Subcommittee had been reviewing the operations of the Anti-terrorism Act, but before it had the opportunity to finalize its report, the Thirty-Eighth Parliament was dissolved on November 29, 2005.

After dissolution, the hon. Member attempted unsuccessfully to contact departmental officials from various departments to discuss some of his proposed recommendations. He was advised on two separate occasions that a policy directive had been issued prohibiting public servants from communicating with Members of Parliament during the campaign period.

The Member alleged that this directive impeded his ability to discharge his duties as a Member of Parliament. In support of his position, the hon. Member argued that, after dissolution, Members of Parliament remain in office until election day, and thereafter if re-elected, and during this period are still considered by their constituents to be Members.

In his intervention, the hon. Parliamentary Secretary indicated that the Privy Council Office did not have a policy prohibiting public servants from communicating with Members during a dissolution period. That being said, he went on to argue that a Member of Parliament is a Member only for such period as the Parliament exists, referring in particular to the Parliament of Canada Act, which deems that Members continue in office for purposes of allowances payable only. He posited that the dissolution of Parliament terminates all parliamentary business, including committee work, and concluded that the Member’s parliamentary privileges were not breached.

The hon. Member for Scarborough Southwest has raised two important issues, namely, the status of a Member during a general election period and the issue of the relationship between Members of Parliament and public servants. Let me deal first with the matter of whether or not a Member remains a Member during a dissolution period.

As the hon. Parliamentary Secretary noted, this gives rise to certain questions. At dissolution, Parliament, comprised of the Crown, the Senate and the House of Commons, no longer exercises its powers; however, the Government continues to exist and Ministers remain in office until they are replaced. Members are discharged from their parliamentary duties, in other words, from the requirement to attend sittings of the House and its committees.

One could argue, as did the hon. Parliamentary Secretary, that the wording of the Parliament of Canada Act implies that once Parliament is dissolved, Members are only Members for purposes of allowances payable. Section 69 of the Parliament of Canada Act states that for purposes of allowances payable under sections 55.1 and 63, anyone who was a Member as of dissolution “shall be deemed to continue to be a Member of the House until the date of the next following election”.

Nonetheless, as all returning Members and their staff are aware, constituents do not stop requiring assistance just because Parliament is dissolved. To this end, bylaw 305 of the Board of Internal Economy permits Members to continue to use their offices to serve their constituents.

It might be argued, therefore, that during the election period, a Member’s role in assisting constituents continues, and this might include contacting Government departments on behalf of their constituents.

This brings us to the second matter: the relationship between Members and Government departments. Specifically, if Parliament had not been dissolved, would the difficulties experienced by the Member in meeting with public service officials constitute a prima facie breach of privilege or contempt of the House?

For the sake of new Members in the House, I believe it would be useful if I briefly described what is meant by parliamentary privilege. The classic definition of parliamentary privilege is found in Erskine May’s Treatise on the Law, Privileges, Proceedings and Usages of Parliament:

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively… and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.

Obstructing Members in the discharge of their responsibilities to the House or in their participation in its proceedings is considered a contempt of the House. My predecessors have consistently upheld the right of the House to the services of its Members free from intimidation, obstruction and interference. However, before the protection of parliamentary privilege can be invoked, the Member’s activity must be linked to a proceeding in Parliament.

The 22nd edition of Erskine May, on page 121, puts the matter succinctly:

Correspondence with constituents or official bodies, for example, and the provision of information, sought by Members on matters of public concern will very often, depending on the circumstances of the case, fall outside the scope of ‘proceedings in Parliament’… against which a claim… of privilege will be measured.

As I have already indicated, Members have risen on numerous occasions over the years on questions of privilege, alleging that they have been obstructed by Government officials in fulfilling their responsibilities. For example, on May 15, 1985, two Members, Mr. Frith, Sudbury, and Mr. Malépart, Montréal–Sainte-Marie, rose in the House to claim that their privileges had been breached, alleging that the Department of Employment and Immigration had directed its officials not to release information on certain projects, thus infringing their ability to serve their constituents. Speaker Bosley ruled that a complaint about the action or inaction of Government departments could not constitute a question of parliamentary privilege as it did not infringe on Members’ freedom of speech or prevent Members from fulfilling their duties. This ruling can be found at page 4768 of the Debates for May 15, 1985.

On another occasion, in ruling on a question of privilege raised by hon. Member for Wild Rose concerning information allegedly denied to him by an official of the Department of Indian Affairs and Northern Development, Speaker Parent found that the situation had not precluded the Member from participating in a parliamentary proceeding. The Speaker ruled, therefore, that a contempt of Parliament had not occurred. This ruling is found at pages 687 to 689 of the Debates for October 9, 1997.

These precedents, where no prima facie case of privilege was found, arise in cases where the House was actually in session, whereas in the case before us not only was the House not in session, Parliament was actually dissolved. Accordingly, while I will concede that the hon. Member may very well have a grievance, I have to conclude that the hon. Member has not been obstructed in the performance of his parliamentary duties. I cannot, therefore, find a prima facie case of privilege.

I thank the hon. Member for Scarborough Southwest for bringing this matter to the attention of the House as well as those Members who contributed to the discussion.