Parliamentary Privilege

This from Devlin Johnson clearly lays out the problem with allowing MPs to be protected from slander when speaking in the House as well as some of the problems with removing that privilege. The British parliament, upon whose system ours is based, recently tried to change that practice and not only failed but landed up explicitly preserving Parliamentary privilege!

……………………………

A member of the legislature rises slowly, pausing for dramatic effect. Her eyes glare across the aisle at a member of another party. She opens her mouth to speak, denouncing her opponent's views. Her voice steadily rises in a great crescendo as the content of her speech becomes more and more personal until, in a great climax of righteous anger, she accuses her opponent of a great offense against morality (or the law, or whatever you like). The opponent, it turns out, has done nothing of the sort.
If this scenario transpired outside of the halls of the legislature, the person making the unfounded accusation might find herself liable under provincial defamation laws. But in Canada, as in most common law jurisdictions, politicians who make such statements in the legislature are immune from such private law actions. This is a legal doctrine known as "Parliamentary privilege" and it extends to the Senate, the House of Commons, and to all provincial legislatures. It protects legislators from both civil actions and criminal prosecution in a wide variety of circumstances.

If you watch legislative proceedings regularly (and I know you do), you will often hear members taunting one another with challenges to "step outside the House of Commons and say that". This is a reference to the Parliamentary privilege doctrine; if the same words uttered in the House of Commons were repeated outside they grounds, they might be considered slanderous (or even, in some cases, criminal offences).
The doctrine of Parliamentary privilege, like most legal doctrines, traces its origins to England. It arose out of a need for politicians to be uninhibited in fulfilling their duties as legislators. In Strode's Case (1512), a Member of Parliament from Plympton, Devon had planned to introduce legislation in the House of Commons that would alleviate the harsh working conditions for tin miners in Cornwall. While en route to Westminster to present the bill, Strode was detained. The Stannary court, which had jurisdiction over matters of equity relating to the tin mines, prosecuted Strode. He was fined and imprisoned. Parliament responded by passing Strode's Act (now the Privilege of Parliament Act), which declared that any legal proceedings "for any bill, reasoning, or declaring of any matter or matters concerning the Parliament, to be communed or treated of, should be utterly void and of none effect" (quoted from The Law and Custom of the Constitution, William Reynell Anson).

The doctrine has surfaced again and again throughout the annals for Parliamentary democracy. Consider, for example, the case of Duncan Sandys. In 1938, Sandys was serving as a Conservative MP in the British House of Commons. During question period, Sandys directed a question to the Secretary of War, Leslie Hore-Belisha concerning the state of London's anti-aircraft defenses. Hore-Belisha, who had assured Parliament of London's preparedness, became concerned that Sandys was in possession of military information protected by the Official Secrets Act. Hore-Belisha drew the matter to the attention of the Attorney General, who advised Sandys that he would be obliged to reveal his source or else face imprisonment for up to two years. After consulting with the Speaker, Sandys raised a point of privilege on the floor of the House of Commons to determine whether he would be protected by the doctrine of Parliamentary privilege. The Committee of Privilege found that Sandys was not subject to the Act, although he could still be disciplined by the House of Commons.

As recently as 1986, the issue of national security and Parliamentary privilege arose again in England in what became known as the "Zircon affair". The BBC had commissioned a documentary which uncovered a secret spy satellite programme that had not been approved by the Public Accounts Committee. Although the government pressured the BBC to shelve the programme, the filmmaker revealed his account of what had happened to New Statesman magazine. As the details became public, opposition MP Robin Cook managed to obtain a copy of the documentary and arranged to screen the programme in the House of Commons. The Attorney General sought to prevent the screening and convinced the Speaker of the House of Commons to ban the documentary from being screened in the Palace of Westminster. On subsequent review by the Committee of Privileges, the Speaker's ban was upheld on the basis that a screening is not part of the normal proceedings of Parliament and not protected by privilege.
The last two cases raise challenging questions about privilege, state secrets, and democratic accountability, and there is certainly an argument to be made that the Parliamentary privilege doctrine has played an integral role in allowing Members of Parliament to hold cabinet to account when that would otherwise be impossible. Moreover, the privilege doctrine helps to ensure that minority viewpoints can be expressed in the legislature, which is essential for a full and healthy debate about public policy.

However, there is another side to the privilege doctrine. For example, legislators can get away with making irresponsible statements about one another (and about private citizens) with impunity so long as those statements are made within the confines of the legislative process. The combative environment in question period provides ample opportunities for Members of Parliament to overstep the bounds of responsible discourse. Often, the temptation to take cheap shots or to level harsh accusations (often based on little or no real evidence) lures Parliamentarians into the trap of base politics.
The Cadman affair seemed to boil over in that way in 2008. Author Tom Zytaruk had come forward with evidence of an alleged attempt by Conservative Party Officials (including the Prime Minister) to bribe dying Member of Parliament Chuck Cadman. In their zeal to hold the governing party to account, Liberal Members of Parliament made numerous statements both inside and outside the House of Commons to the effect that they believed the Prime Minister to be guilty of official corruption. To the extent that their comments were confined to Parliament, they were protected by Parliamentary privilege. As the controversy grew, however, more and more comments were made outside of the House. The Liberals ran an article on their official party website with the headline "Harper knew of Conservative bribery".
In an almost unheard of move, Stephen Harper filed a lawsuit against the Liberal Party. However, the case was settled when Michael Ignatieff took over as leader of the party (although the details of the settlement are not available to the public, the Liberals have been silent on the Cadman affair ever since the lawsuit was settled; some have speculated that Ignatieff agreed to gag his caucus in exchange for Harper dropping the suit).
Perhaps the time has come to re-think Parliamentary privilege. Undoubtedly, it will survive in one form or another; after all, there is considerable evidence to suggest that it is an essential component of a free and open democracy. On the other hand, absolute privilege is an invitation to discourteous comments and unfounded accusations. I think that we are living in an age in which the risk of Members of Parliament being arrest for proposing legislation is low, while the risk of the Members of Parliament spreading vicious rumours about one another is high. To that end, perhaps it is time to ease up on Parliamentary privilege in order to make it more responsive to the needs and challenges of contemporary political reality.

Parliamentary privilege should be broad enough that it protects what is integral to democracy and accountability, but narrow enough that there is a disincentive to act like children. Moreover, a flood of defamation litigation would be an ineffective deterrent to such behaviors and creates the risk of libel chill. There are, of course, other strategies to be employed in curtailing the lack of civility in Parliament. One option is to expand the concept of unparliamentary language to include a more generalized expectation of Members' conduct (as it stands, it is essentially a banned words and phrases list which includes, for example, "inspired by forty-rod whiskey").
Reform to Parliamentary privilege would be difficult. The Supreme Court ruled in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) that Parliamentary privilege forms part of the unwritten portion of the Constitution of Canada insofar as it is inherited via the preamble to the Constitution Act, 1867 (formerly the British North America Act) which states that our constitution is "similar in principle to that of the United Kingdom". It is not clear whether or how constitutional conventions such as Parliamentary privilege can be adapted by Parliament. For example, it is unclear whether a legislative amendment would be necessary (or even possible) or whether our constitutional conventions can adapt gradually as practices and societal expectations change.
In any event, the possibility of reforming Parliamentary privilege is one of the many dimensions that should be given careful attention in the project of improving the quality of discourse in the House of Commons and in provincial legislatures across the country.


This from Great Britain July 2009

PARLIAMENTARY PRIVILEGE - DEFEATED
There was plenty of criticism of an early proposal which would have allowed MPs' words in the Commons - now protected by Parliamentary privilege - to have been used against them in court. As worded, the original bill said "no enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court" should stop "any evidence from being admissible in proceedings" against MPs accused of breaking rules. It was not just MPs who had their doubts. The most senior official in the Commons, Malcolm Jack, warned it could have a "chilling effect" on MPs' freedom of speech. The government stuck with it but were defeated when more than 20 Labour MPs rebelled to vote against it - among them former cabinet ministers John Reid and Margaret Beckett. A new clause, explicitly preserving Parliamentary privilege regardless of anything else in the Act was later added.


What do you think should our MPs be able to lie, slander and make personal attacks in the HoC with impunity? I say this immunity from accountability is a major impediment to the modernization of our parliamentary democracy. Support Democracy - Recommend this Post at Progressive Bloggers

Who is caring for our democracy?

Every party talks about running (I'll put the words in quotes because someone surely has said this) "the most open, transparent, and accountable government the country has ever had" yet every party in my waking life has failed to deliver on this promise.
To the Liberal's I issue a challenge: if your guy and your party were really serious about reforming Canada's governance in a positive way, ultimately even the most jaded Canadian apathetic voter might perk up and notice.

Is it too alarmist to claim that Canada's democracy is on life support? Not in my opinion. Our representatives are often no better than puppets. Rather than representing regions and their constituents, our parliamentarians at all levels of government more often than not are whipped to adhere to the party line and that is decided by a few, mostly unelected people, in the Prime Minister's Office. Parliament is side-stepped at every turn. First among equals is a concept many prime ministers, notably our current one, have trouble identifying with.

The weakening of parliament in favour of increased power in the PMO - to the point where today the U.S. system is actually more democratic than ours - is as a result of intentional design by both Conservative and Liberal government leaders dating back almost four decades.
Manning's "Reform" movement recognised some of this, to their credit; but despite being one of the architects of the Reform Party, Harper wasn't so much interested in democratic reforms, only in power that would allow him to "re-form" (quite a different notion) Canada in his own vision.
I want to see a truly open government. We have the technology available to us now that can easily permit all to see spending done by almost every department in near real-time. Open all the doors and windows, pull back all the curtains. Lets see not only who is lobbying who, in real time, but what they are talking about. Lets have more citizen involvement than a token election every year or every four years.
………………………..

The above is reposted from http://mikewatkins.ca/ , one of several bloggers writing about our “dysfunctional” parliament this week, well said Mike, without open government democracy is indeed in trouble.. The following is from Peace, order and good government, eh? . The point is well made that once again out politicians are misleading the public into believing that there is something inherently wrong with a coalition government (despite the fact that ALL the partys have in recent years attempted to form one!). Perhaps it must once again be pointed out that our parliament consists of elected MPs from several different political persuasions who SHOULD all work together for the good of the country. A coalition is simply a more formal agreement to that end, and is not only perfectly legal but could in fact be more productive than the usual non cooperative mood in the HoC!

…………………….……….

Liberal Leader Michael Ignatieff vowed Friday that his party would never enter into a governing coalition and said he could make Parliament work without such a deal.
Ignatieff said he has a "certain credibility" on the coalition issue, pointing out that he could have become prime minister back in January had he agreed to a pact with the other opposition parties, but he turned it down.
"I don't think I need to give further proof of my feeling that that's not what Canadians want."

When the pundits refer back to that ill-fated coalition attempt they love to remind us that it didn't poll at all well. But I think we discovered late last year that a significant number of those who make their living explaining our politics to us either don't understand our system of government themselves or don't really have a problem with misrepresenting it to us. A big part of the reason the public reacted negatively to the coalition was because the media told them to. If it wasn't print pundits competing to see how many times the word "coup" could be squeezed into the same short column, it was broadcasters signaling that they were in dire need of a fainting couch at the mere thought that a bunch of scruffy MPs whose uniforms weren't all the same colour might have the temerity to try and form a government.

Since then, the constitutional experts have spoken and reminded us of some of the facts of life in Canada. This isn't a republic; it's a parliamentary democracy. We don't vote for a prime minister or a government; we each of us vote for a representative of the riding in which we live and when those representatives reach Ottawa it's up to them to sort out which group of them, and with which leader, can govern with the confidence of the majority of them. The political parties involved are a convention but not a requirement; the confidence of the majority of the members is a requirement and not a convention.

With an election campaign not even underway yet, there was probably a teachable moment here. There was an opportunity for the opposition leaders to point out that the Conservative talking points about the illegitimacy of a coalition are nonsense. Using teachable moments to actually teach something important and valuable would show leadership.
Instead, Ignatieff has just reinforced the view that there's something wrong with the idea of a coalition and that voters who reacted badly to something that was a shock when it happened and that was misrepresented by a lot of the voices who were shouting at them at the time, were right to do so. Aside from allowing a misconception to stand unchallenged, Ignatieff has allowed Harper to set the terms of the debate and reacted defensively. If he keeps doing that, he'll lose.
………………..

“Never” is such a long time, sounds like another promise that cannot be kept! Support Democracy - Recommend this Post at Progressive Bloggers

Leaders Debates

“How can it be that we grant TV networks control over what is arguably a defining moment in any election campaign? Above all, leaders’ debates should serve the public interest, by being informative, fair and a way to pique campaign curiosity in Canadians. The TV networks do not exist to serve public interest – they exist to make money”

This quote from the article at http://www.camillelabchuk.ca/ pretty much sums it up, how can we allow the “consortium” decide who can and cannot put their point of view before the public in what is often a defining moment in a election. The choices of who to include (particularly when it comes to emerging partys) is a difficult one, but to allow the broadcaster to arbitrarily make that determination is, in my view, clearly wrong.

Here is Camille’s full article which includes links to the CSD report.


I’ve been awaiting the Tom Axworthy/Centre for the Study of Democracy (CSD) study on the televised leaders’ debates for some time, and was pleased to see it finally released yesterday. It’s been clear for several election cycles that the leaders’ debates need tweaking. Canadian outrage over the long-time exclusion of the Greens reached a boiling point in 2008, when public pressure propelled Elizabeth May into the debates after the Conservatives, NDP and broadcast consortium conspired to keep her out. This was a happy ending, but it raises critical questions over debate fairness, including transparency, who controls the leaders’ debates, who participates, and the format.

As the CSD study notes, debates are virtually the only unregulated aspect of the election cycle — it’s the wild, wild west as far as rules go. Participation, format, focus and other issues are discussed behind closed doors by the mysterious and ominous-sounding Broadcast Consortium. How can it be that we grant TV networks control over what is arguably a defining moment in any election campaign? Above all, leaders’ debates should serve the public interest, by being informative, fair and a way to pique campaign curiosity in Canadians. The TV networks do not exist to serve public interest – they exist to make money, and this bias became apparent in 2008, when they scheduled our leaders’ debate to coincide with the American VP debate, so as to minimize loss in ad revenue. The CSD concludes, and I strongly agree, that control over the debates be wrested from the consortium and given to an independent, transparent and accountable debates commission, as is the case in nearly every other jurisdiction.

The only CSD recommendation with which I take issue is that the Bloc be barred from the English debate, as they don’t run in a majority of English-speaking ridings. Perhaps my views are shaped by the long and hard battle we Greens waged for debate inclusion, but I would tend to err on the side of having more voices at the debate table — not fewer.
At any rate, Canada is long overdue for a review of our leaders’ debates, and I encourage parliamentarians to introduce legislation brining these debates under the umbrella of the Elections Act.

It’s time to take the power back from the biased and secretive TV networks and ensure the debates truly serve the electorate in a way I think we all would like them to.
.......................................

If a broadcaster donates broadcast time to SELECTED partys during an election period is that not a donation of goods and services that should be declared by those partys as such? Just asking! Support Democracy - Recommend this Post at Progressive Bloggers

Party Positions on Democracy.

Having been beating the Democracy Drum for some time now and with the strong possibility of an election coming this fall I thought it would be interesting to see where each of the Political Parties stood regarding democratic principals and related matters. To that end I went to each official party site and searched for a statement of values and / or the party platform in that regard. (my bold throughout)

I first went to the Conservative Party of Canada’s web site and quickly found these extracts …..

The Conservative Party will be guided in its constitutional framework and its policy basis by the following principles:

A belief in loyalty to a sovereign and united Canada governed in accordance with the Constitution of Canada, the supremacy of democratic parliamentary institutions and the rule of law;

A belief in the equality of all Canadians;

A belief in the freedom of the individual, including freedom of speech, worship and assembly;

A belief in our constitutional monarchy, the institutions of Parliament and the democratic process;

A belief in the federal system of government as the best expression of the diversity of our country, and in the desirability of strong provincial and territorial governments;

A belief that the quality of the environment is a vital part of our heritage to be protected by each generation for the next;

A belief that Canada should accept its obligations among the nations of the world;

A belief that good and responsible government is attentive to the people it represents and has representatives who at all times conduct themselves in an ethical manner and display integrity, honesty and concern for the best interest of all;


At first glance this would seem to be a great start, however having watched our Conservative Government in the last couple of years show complete distain for each of these beliefs I am not so sure that this is going to be a useful exercise at all. Never the less I pressed on and next went to the Liberal Party of Canada’s web site and found …….nothing useful. I could find not general statement of values, no general statement of policy in this regard, indeed I found very little to tell me what the Liberals were all about. No doubt I could have downloaded and read their main policy statement PDF but I was just looking for an introductory statement of values not a major document.

Ok, lets move on to the New Democratic Party of Canada, here once again I did not find any broad statement of principals but there was a number of platform statements and several specific policy statement with regard to our governance which included the following:-

To strengthen federalism for a mature and modern Canada, Jack Layton and the New Democrats will:

Modernize key federal institutions:

House of Commons: change the electoral system to ensure that every vote counts. We will implement a proportional representation system that mixes constituency representation with party representation. This will result in fairer representation in Parliament, fewer regional differences, and more women in elected office.

Senate: abolish the undemocratic and unnecessary Senate, following the lead of Canadian provinces and other jurisdictions that have abolished their upper houses. A referendum on Senate abolition will be held to put the final decision in the hands of all Canadians.

Floor crossing: Democratic accountability should mean no MP can ignore his/her voters. We will implement legislation so no MP can ignore the voters’ wishes and become a member of another party without first resigning their seat and running in a by-election.

Hardly a broad and comprehensive statement but at least support for proportional representation is included!

We must I suppose include the Bloc, they do after all despite their avowed intent to separate from Canada try to do so in a democratic manner. In fact at times I think their leader could teach the rest of them a thing or two about democracy, despite their clearly stated goals they have not disrupted parliament, committees or Senate hearing to the extent that some of the other parties have.


Finally I went to the Green Party of Canada’s web site and quickly found a number of statements regarding their vision including this regarding our democracy ………

We strive for a democracy in which all citizens have the right to express their views, and are able to directly participate in decisions which affect their lives;

This requires:

individual empowerment through access to all the relevant information required for any decision, and access to education to enable all to participate

breaking down inequalities of wealth and power that inhibit participation

building grassroots institutions that enable decisions to be made directly at the appropriate level by those affected, based on systems which encourage civic vitality, voluntary action and community responsibility

strong support for giving young people a voice through educating, encouraging and assisting youth involvement in every aspect of political life including their participation in all decision making bodies

that all elected representatives are committed to the principles of transparency, truthfulness, and accountability in governance

that all electoral systems are transparent and democratic, and that this is enforced by law

that in all electoral systems, each adult has an equal vote

that all electoral systems are based on proportional representation, and all elections are publicly funded with strict limits on, and full transparency of, corporate and private donations. that all citizens have the right to be a member of the political party of their choice within a multi-party system



So to sum it up we have a Party that says one thing and does another, a Party with no vision or policies, a party who wants to do away with one of the few checks and balances we have upon our politicians, a party who whishes to break up our federation, and a Party with a clearly stated vision who has no members sitting in the House of Commons. It was indeed an interesting exercise but hardly useful, this is not looking good for democracy in Canada!



It seems I am not the only one thinking along these lines, I recently found this piece which sums up nicely what many of our politicians seem to have forgotten…..

With an election looming the Fifth Column calls on all federal political parties and party leaders to adopt the following:

Statement of Democratic Principles

The Canadian people have the right to elect Members of Parliament of their choosing and the House of Commons of their choice.

The House of Commons elected by the Canadian people has the right to govern.

A government that has the support and confidence of a majority of the Members of the House of Commons is legitimate, and indeed a government requires the confidence of a majority of the Members of the House of Commons to be legitimate.

The letter and spirit of fixed election date legislation must be respected and that an early election should only be held when it is not possible to form a government that has the confidence of a majority of the House of Commons.

And further, that party representation in the House of Commons should reflect the popular vote and that a process should begin immediately following the election to amend the electoral process to ensure that.

Finally, we all pledge to inform the Governor General that we have adopted and support this Declaration of Democratic Principles


Even if we could get our representatives to make such a pledge how long would it be before one or more of them ignored such restraints and what actions would or could be taken against such actions? The number one question we must all ask those candidates who come to our door is “What will YOU do to protect and enhance our Parliamentary Democracy” because if things continue to go they way they are now the only question you will soon be able to ask is “Who was appointed to represent the Government in this area”! Support Democracy - Recommend this Post at Progressive Bloggers