A blog to give a voice to our concern about the continued erosion of our democratic processes not only within the House of Commons and within our electoral system but also throughout our society. Here you will find articles about the current problems within our parliamentary democracy, about actions both good and bad by our elected representatives, about possible solutions, opinions and debate about the state of democracy in Canada, and about our roles/responsibilities as democratic citizens. We invite your thoughtful and polite comments upon our posts and ask those who wish to post longer articles or share ideas on this subject to submit them for inclusion as a guest post.
Contact us at democracyunderfire@gmail.com

Sunday, September 27, 2009

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

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

1 comment:

Mark Richard Francis said...

It is likely that Harper settled the suit because the judge had an expert examine the recording and found that it was not not tampered with. This appeared to contradict Harper's affidavit. Oops.

How about the broadcasting of Question period? The libel, not actionable in Parliament, flies around the country into everyone's living room. And yet, if a political party publishes the same on its website, that's actionable in court? It's actually quite ridiculous.

Our libel law in Canada remains a mess. It is very plaintiff friendly. Until that is fixed, I hope Parliamentary privilege remains the way it is.