Parliamentary Privilege

Introduction

Members of Parliament individually and the House as a collectivity enjoy certain rights and immunities without which Members could not carry out their duties and the House could not fulfil its functions. These various rights and immunities, while not admitting of ready classification, are referred to as “parliamentary privilege”. Whenever Members feel that their rights as Members have been infringed upon or that a contempt against the House has been committed, they rise on a question of privilege to voice their complaints. In presenting their case, Members are stating that the breach they are complaining of is of such importance that it demands priority over all other House business. It is the role of the Speaker to judge if that claim is well founded; that is, if on a prima facie basis, or as far as can be judged by first disclosure, it deserves privileged consideration.

In order to assess the claim, the Speaker first hears a description of the problem from the Member raising the question of privilege. Although not obliged to do so, the Speaker may also hear comments from other Members, as Mr. Speaker Milliken often did. While in theory, debate on a question of privilege properly begins only after the Speaker has decided that a prima facie question of privilege exists, in practice, there may be extensive discussion beforehand and, most often, the Speaker’s decision determines the issue. Formal debate on a question of privilege properly begins only if the Speaker has decided that a prima facie question of privilege exists. In reaching such a decision, the Speaker reviews the facts and the arguments presented by Members, as well as the relevant rules, authorities and precedents. The Speaker’s decision may also consider factors other than the merits of the case itself: factors such as the terms of the motion the Member seeks to move to remedy the situation; whether the issue was raised at the first opportunity; whether the notice, if required, was given; and whether the question was raised at the appropriate time during proceedings. In the vast majority of questions of privilege, the Speaker decides that a prima facie case has not been made. This was also true during Mr. Speaker Milliken’s tenure.

During his speakership, Mr. Speaker Milliken rendered more than 160 decisions on matters related to parliamentary privilege. The 47 Speaker’s rulings included in this chapter are grouped into two broad categories: those relating to the rights of the House and those relating to the rights of individual Members. The decisions are listed chronologically within each category. Other decisions appear in other chapters where they have a direct relevance.

Mr. Speaker Milliken presided over both majority and minority parliaments and during both Liberal and Conservative governments, frequently navigating a careful course in the midst of partisan struggles. The Thirty-Eighth, Thirty-Ninth and Fortieth Parliaments saw historic clashes between the Government and Opposition, often over privilege matters. As in all of his rulings, Mr. Speaker Milliken’s focus was the protection of the rights and privileges of the House and its Members.

With regard to the collective rights of the House, two prima facie questions of privilege were especially significant to our understanding of those rights: the first related to the House’s Order to produce documents relating to the detention of combatants by Canadian Forces in Afghanistan and the second regarding the Standing Committee on Finance’s Order for the production of documents related to cost estimates for a variety of Government policy initiatives. Events arising from this latter case subsequently led to the adoption by the House of a motion of non-confidence in the Government and the dissolution of the Fortieth Parliament.

Other prima facie questions of privilege concerning the rights of the House included those related to: the Government’s disclosure of the contents of a bill prior to its introduction; the use of the title “Member of Parliament” by non-Members; and the disclosure of confidential information. In addition, there were also several prima facie questions of privilege concerning matters of contempt. These included questions regarding a Member touching the mace; motions to find two different Officers of Parliament in contempt (the first for having misled a committee, and the second for having breached the provisions of the Conflict of Interest Code); and, on two occasions, allegations that Ministers had deliberately misled the House.

The second section of the chapter focuses on the individual rights of Members. Those questions of privilege found prima facie were argued from the perspective that Members had been impeded in carrying out their duties. One arose from a British Columbia court ruling that there was no legal support for extending the privilege for exempting Members from being summoned to a court proceeding for 40 days before and after a parliamentary session. Another arose from the disclosure of confidential information from a meeting of the Ontario Liberal Caucus. One concerned the denial of access to the Parliamentary Precinct to a Member during the visit of a foreign head of state. Several others concerned instances where bulk mailings sent to their constituents by other Members may have had the effect of unjustly damaging the reputations of the Members raising the questions of privilege.