Memorandum by the National Assembly of
We have three comments under this heading:
1. We wonder whether the evolution in the
conception of the democratic protections of freedom of speech,
etc, for the citizenry in general is not in practice eroding the
scope within which Parliament can exercise its traditional privilege
to punish contempts. (Please see the first part of our reply below
under the heading "What uncertainties are there . . . in
the application of parliamentary privilege?")
2. We have become aware of growing pressures
in some Assemblies, including our own, to shelter under the broad
umbrella of parliamentary immunity the ever-increasing role that
elected Members are coming to play as intermediaries between their
electorate and the public administration. It seems perfectly clear
to us that this aspect of Member's work, important though it may
be, cannot properly be viewed as forming part of the proceedings
of Parliament and thus ought not to enjoy any of the essential
protections accorded by privilege to such proceedings.
Nonetheless, a bill that is in the drafting
stage here in Quebec, if passed, would grant Members of the National
Assembly liability insurance, at public expense, for any act accomplished
in the course of their intermediary role. That, of course, is
not parliamentary privilege; but it is clearly inspired by the
immunities that traditionally accrue to proceedings in Parliament,
and it seeks unequivocally to extend those immunities via the
domain of civil liability.
We would be interested in knowing to what extent
such pressures are being felt elsewhere and what the Joint Committee
think might be the appropriate response to them.
3. We take this opportunity to draw to your
attention a landmark decision rendered in 1993 by the Supreme
Court of Canada. Known formally as New Brunswick Broadcasting
Co versus Nova Scotia, it is familiarly called the "Donahoe
case", after the then Speaker of the Nova Scotia House of
Assembly. We presume that either the Nova Scotia Assembly or the
federal Parliament will likely provide you detailed information
on this matter. In brief, it brings Canadian jurisprudence on
parliamentary privilege up to date in the light of the Canadian
Charter of Rights and Freedoms, adopted in 1982, and makes important
observations, among other things, on the criterion of necessity
in defining privileges as well as on the distinctions between
inherent and legislated privileges.
Contempts involving reflections on a Member's
conduct [treated in May 21 edition, on pages 126-128]
Two questions arise under this general heading:
1. Reflections on Members or on the
House by persons other than elected Members:
(a) Given the wide latitude accorded to freedom
of the press in our day, has the concept of contempt of Parliament
in respect of reflections on Members by persons who are not Members,
in practical terms, retained any real meaning outside the statutory
protections against libel and defamation that are accorded to
(b) To the extent that the scope of utterances
contemptuous of Parliament is synonymous with that covered by
statutory libel and defamation, to what extent ought the process
of adjudicating and punishing such offences be left to the courts?
In other words, can a modern Parliament still truly exercise its
historical powers to repress contempts of this kind, or must it
now invariably defer to the courts in such matters?
These questions are inspired by an incident
that occurred in Quebec in March 1997 in which a popular television
program invited its viewers to phone in their nominations for
the most untruthful politician in Quebec. The Leader of the Opposition
subsequently moved a motion in the Assemblythough not on
a matter of privilegeinviting the Assembly to "deplore"
the actions of the broadcaster and the discredit they would unjustifiably
bring upon all persons in elected public service.
Although the contents of the broadcast in question
likely approached, and possibly exceeded, the outer limits of
fair critical commentary short of contempt of Parliament, it was
this relatively mild response by the Assembly itself that provoked
controversy. In fact, although the motion was carried by the Assembly,
it did not even receive universal support from the Members of
the Assembly themselves.
2. Reflections on Members or on the
House made by Members speaking in the House or a parliamentary
Is it conceivable for a Member of Parliament,
speaking in the House, to make comments that are so injurious
to another Member or to the House itself as to surpass a simple
breach of order and constitute a contempt or a breach of privilege?
Or can elected Members speaking in the House be found only to
have been disorderly in such circumstances, the sanctions regarding
breaches of privilege or contempt being reserved only for someone
(whether a Member or not) who is speaking without parliamentary
If such behaviour on the part of a Member could
potentially be considered to be in contempt, how ought one to
distinguish reflections of an insulting or injurious nature that
merely constitute a breach of order from those that may constitute
We raise this question because, in Quebec, Standing
Order 35(7) forbids language in the Assembly that is violent,
or insulting, while the Act respecting the National Assembly,
which sets forth the essential rights and immunities of the
Assembly and its Members, makes it a breach of the rights of the
Assembly to defame one of its Members or to use abuse language
towards him but leaves unclear the scope of its application (subsection
55(8)). Faced with allegations in the House that they considered
particularly abusive, Members have on rare occasions invoked this
provision of the Act to elevate such allegations to breaches of
privilege rather than questions of mere order, but the rulings
of our Speaker have not yet established any clear course of interpretation
in these cases.
Accusations of having deliberately misled the
Members in Quebec have from time to time raised
questions of privilegeor, more properly, contempt of Parliamentin
which they allege that another Member has deliberately misled
the House. The standard ruling by our Speaker, often citing the
"Profumo case" (referred to by May, 21st edition, p.
119), has been that a Member can be found in contempt for deliberately
misleading the House only if he himself has admitted to having
done so; in the absence of such an admission, the very allegation
is itself disorderly.
Granted that it is important to maintaining
a civilised climate for debate to presume that all Members are
honourable at all times, some parliamentarians, and even a few
specialists in procedure, remain troubled by the paradox that
one can knowingly mislead the House with (parliamentary) impunity
so long as one does not admit to having done so and that by so
admitting, and only then, one can open oneself to a finding of
contempt of Parliament, with all the consequences attendant thereupon.
On this subject Joseph Maingot, the recognised
authority on parliamentary privilege in Canada, asserts that deliberately
misleading statements may in fact be considered contempts (Le
privile"ge parlementaire au Canada [Parliamentary Privilege
in Canada], deuxie"me edition, Chambre des communes et Les
presses universitaires McGill-Queen's, 1997, p 251-252). He further
states that such an accusation cannot properly be made by way
of a question of privilegesince an allegation of deliberately
misleading the House remains unparliamentary until provedbut
must rather be done by way of a substantive motion. Unfortunately,
among the cases he cites of Members whose conduct has been formally
impugned, none concern the wilful misleading of the House. So
far as we know, the prevailing modern tendency is to reject such
allegations out of hand as unparliamentary.
Bearing in mind the cynicism towards parliamentarians
that is prevalent among the general public today in most democracies,
we wonder whether some way ought not to be found to allow Parliaments
to proceedwhether as a matter of contempt or otherwise,
and always within carefully circumscribed limitsagainst
Members about whom there is irrefutable, or at least very stong,
evidence that they have deliberately misled the House regarding
Please see below, "Scope of Proceedings
In Canada parliamentary privilege is grounded
both in the Constitution and in federal and provincial statutes.
In Quebec the pertinent provisions appear in sections 42 to 56
and 133, 134 and 137 of the Act respecting the National Assembly
(please see copy attached).
We note that while in principle parliamentary
privilege ought to gain in transparency by being codified, our
experience in Quebec is that persistent uncertainty continues
to cloud some elements of this subject. Some of these difficulties
are of course unavoidable, because, in the case of contempt of
Parliament at least, an exhaustive codification of all potential
offences is scarcely possible. (Please also see our response below
under the heading "What, in modern circumstances, should
constitute contempt of the House. . . ")
We regret that we are unable to offer a compelling
alternative to the expression "parliamentary privilege,"
but we heartily applaud the willingness to look for one.
While the handful of specialists in Canada who
understand parliamentary privilege have little difficulty with
the term, for most North Americans, largely ignorant of the long
struggle that gave birth to the rights and privileges of the British
Parliament, the popular notion of "privilege" has distinctly
negative connotations. Thomas Jefferson's celebrated phrase "equal
rights for all, special privileges for none" sums up admirably
the inevitable knee-jerk reaction to the very use of this word.
That being the case, to the extent that this
subject may ever come to the attention of the Canadian public,
the prevailing social climate can be counted on to be highly unsympathetic
to any form of privilege accruing to a group of personsnamely,
elected Members of Parliamentwho are widely viewed as already
enjoying broad, even unwarranted powers and privileges (in the
ordinary sense of the word).
Thus, any new term that may be chosen ought
probably to emphasise the idea of the rights, or, better, the
protection of Parliament, perhaps underscoring that of necessity,
rather than ideas such as "privilege" or "immunity."
Please note, too, that the use of the term "immunity"
or "immunities" would risk confusion with the concept
of diplomatic immunity, which, apart from being completely unrelated,
is most often associated in the public mind with periodic reports
of scandalous behaviour by irresponsible foreign diplomats.
9 OF THE
An aspect of this theme is touched on above
in our reply concerning reflections on Members or on the Assembly
by persons other than Members.
While we can cite no recent instances in Quebec
of citizens who felt they had been seriously wronged by words
or actions in our Assembly, we know that this issue has been raised
Any remedy proposed must be respectful of the
inherent right of Parliament to regulate its own internal affairs.
Two possibilities come to mind:
Permit persons who believe themselves
to have been unduly aggrieved by what they consider to be slanderous
references in parliamentary debates, or otherwise, to apply to
the Speaker. If satisfied that the matter had some substance,
the Speaker could then refer it, or bring it personally, to the
appropriate committee, which would then be instructed to investigate
and to recommend to the Assembly a suitable response. (In Quebec,
for example, the Committee on the National Assembly is already
mandated, among other things to investigate formal allegations
by Members of misconduct by other Members or by persons other
than Members of the Assembly).
Establish a special committee of
elected Membersperhaps with strictly equal representation
from all parliamentary partiesto act as a parliamentary
"ombudsman". The committee would have full investigative
powers, and its recommendations, if not binding on the House,
would nonetheless be recognised as carrying considerable moral
Documents prepared for Members, the Assembly,
or a parliamentary committee: Please see our comments below
under the heading "Any other relevant issues: Reconciling
the subjudice principle with the right of Parliament to protect
Adjustments for new technologies: New
communications technologies that are finding applications in the
work of Parliament inevitably raise questions, although they need
not always be difficult to answer or necessitate substantial modifications
in the concept of parliamentary privilege.
For example, do the immunities extended to witnesses
testifying before committees (in Quebec, under section 53 of the
Act respecting the National Assembly) automatically include
testimony given through video-conferencing?
Should electronic mail communications sent and
received in the course of a Member's parliamentary duties be considered
analagous to his other parliamentary documents?
In both of the examples cited above, we think
the traditional parliamentary immunities should continue to apply.
Nevertheless, we believe that an assessment must be made of the
implications of each new technological development for parliamentary
proceedings and that in each case a conscious decision must be
taken on the scope of its application.
Authenticity of electronic documents: The
ramifications of this problem go far beyond the question of parliamentary
privilege, which may be only marginally touched by it.
The "virtual Parliament": Continuing
advances in interactive communications technology permit us to
speculate that we may one day see the birth of the "virtual
Parliament", in which Members will, at least occasionally,
deliberate as a legislative body from widely dispersed locations,
free of the obligation to be physically assembled in what are
normally defined as the parliamentary precincts. Such a development
would probably not change the fundamental nature of their work,
but it would likely cloud the distinctions between what may properly
be called "proceedings in Parliament" and other communications
of a less formal nature, and it would have undeniable implications
for the delineation of the parliamentary precincts.
Please see our answer regarding remedies for
citizens wronged by words or actions in Parliament, above.
Contempts are, by their nature, difficult to
codify in an exhaustive fashion. What constitutes a contempt can
often be appreciated only in the light of the circumstances of
the moment; and even the more or less subjective predispositions
of the Speaker who must rule, prima facie, whether a contempt
exists, can be said to play a role. In truth, to the degree that
the notion of contempt of Parliament must continue to existand,
for the record, we believe it mustit would probably
be counterproductive to try to circumscribe it too narrowly.
That said, prevailing ethic of modern society
encourages ordinary citizens and the mass media to exercise far
greater latitude in their expression of critical comment regarding
Parliament and its Members than was heretofore the case. What
is more, the evolving communications technologies available to
those who wish to express opinions on parliamentary matters are
so varied and pervasive as to complicae considerably the very
proces of evaluating potential contempts and to render virtually
uselessor, worse, counterproductiveany serious attempt
to repress them. For example, the Internet seems to imply profound
future changes to power relations. If a publication ban is declared
in one country, the material in question will often be made available
within a matter of hours on two dozen or more foreign-based web
sitesagainst whom there will be no recourse whatever!
It may well be that future parliamentarians
will be increasingly obliged to respond to some of the behaviours
traditionally regarded as contempts less through their traditional
powers to punish contempt than through educational efforts, "playing
the media game", etc.
(i) the incorporation of the European Convention
on Human Rights into UK law.
(ii) a Freedom of Information Act
The civil chamber of the Court of Quebec recently
handed down a decision that clarifies the scope of parliamentary
privilege with respect to Quebec's own Act respecting Access to
documents held by public bodies and the Protection of personal
information. In brief, this Act applies expressly to the National
Assembly as a public body but exempts documents produced by or
for elected Members.
To summarise, a citizen of Quebec had requested
a document produced by a parliamentary standing committee that
related to the organisation of certain public hearings and contained
nominal information about him. Having been refused access to this
document by the Assembly on the grounds that it was a privileged
matter and therefore exempted from the Act, the applicant appealed
to the access to information commission, the administrative body
established under the Act to review decisions regarding access
to information. Although the commission recognised the existence
and general necessity of parliamentary privileges for the proper
functioning of the Assembly and acknowledged that the Act in question
could not abrogate them, the commission nonetheless took the view
that the said document did not concern the actual deliberations
of any committee and was not of such nature as to compromise parliamentary
privilege. It therefore ordered the Assembly to provide the document.
The Assembly appealed the commission's decision
to the Court of Quebec. In overturning the commission's ruling,
and with ample reference to the landmark decision in New Brunswick
Broadcasting Co versus Nova Scotia (cited above under the
heading "What is the purpose and scope of parliamentary privilege?"),
the court ruled that the access to information commission had
only to satisfy itself of the existence and the necessity of the
parliamentary privilege invoked by the Assembly, which in this
case was the right to govern its internal proceedings free of
outside interference. That determination having been made, the
commission was not competent to review any judgement made by the
Assembly in the actual exercise of that privilege.
(iii) the Official Secrets Act?
Reconciling the sub-judice principle with the
right of Parliament to protect its privileges:
In December 1993 two Members of the Assembly
were physically assaulted by demonstrators in their riding (ie
constituency) offices. Each Member raised a question of privilege
about the incident in the Assembly and, pursuant to Standing Orders,
gave notice of his intention to move that the Assembly take action
thereon. In both cases, however, criminal charges were also laid.
Asked to rule on the propriety of debating these
matters in the Assembly while they were still sub-judice, the
Speaker determined that the strict application of the sub-judice
principle to criminal proceedings obliged the Assembly to
await the outcome of such proceedings before undertaking its own
deliberations on these matters of privilege, even though they
concerned very serious allegations that two elected Members had
been physically assaulted and intimidated. (It should be noted
that the Assembly was dissolved and a general election held before
the criminal proceedings were concluded. No action was ever taken
on these incidents as a matter of privilege.)
Section 133 of the Act respecting the National
Assembly (please see text, attached) does clearly assign to
the courts jurisdiction over infractions of this kind perpetrated
against elected Members by persons other than Members. Nonetheless,
some have wondered whether, the sub-judice principle notwithstanding,
the Assembly ought not to have had the right to consider these
questions of privilege even before the criminal proceedings were
concludedif necessary behind closed doors.
We hope the Joint Committee's inquiry might
include an examination of the exercise of parliamentary privilege
involving matters that are also before the courts. In what circumstances
and to what extent must Parliament defer to the courts in order
to protect the rights of the individual to a fair trial? Can Parliament
ever be justified in disregarding this principle and proceedings
separately on a matter of privilege that is before the courts?
Must Parliament feel bound by a court decision that exonerates
the accused when it nonetheless feels its privileges have been
breached? Is this a further example of the judiciarisation of
matters of privilege or contempt heretofore regarded as belonging
exclusively to Parliament, and should this evolution be encouraged
Decisions of the House regarding breaches of privilege:
Can the "tyranny of the majority" be circumvented?
It is well established that the Speaker can
determine only whether a prima facie case of breach of
privilege exists; the ultimate decision on alleged breaches of
privilege or contempts of Parliament rests with the House. That
means, of course, the majority, and in modern Parliaments, majorities
tend to form along partisan lines.
While alleged breaches by persons who are not
Members of Parliament, or which attack Parliament as an institution
or all Members as a class, may encourage manifestations of nonpartisan
solidarity by Members, one would need to be quite naive not to
acknowledge that alleged breaches involving Members themselves
rarely escape the stranglehold of partisan politics. One can imagine
only with difficulty, for example, a government majority voting
with the opposition to censure the conduct of a member of cabinet,
however flagrantly contemptuous that conduct may have been of
The raison d'etre of the hard-won rights
and immunities of Parliament that constitute the sum of its privilege
is serious and legitimate; and yet it would appear that both the
practical delineation and the day-to-day defence of these rights
are inextricably intertwined with partisan considerations.
Can anything be done about this problem?
30 January 1998