Parliamentary Privilege and Prayers in the House

Recently, in response to legal action brought by the National Secular Society, Britain’s High Court ruled that Bideford Town Council had acted unlawfully by allowing prayers to be said during meetings. This decision prompted quite a backlash in the UK media, and the Government announced that it would bring in early part of the Localism Act that aims to give councils greater powers and freedom, in essence reversing the High Court’s ruling.

Partly in response to this incident, the Globe and Mail’s Doug Saunders wrote an interesting column on the place of religion in public life. I don’t intend to enter into a discussion of the rightness or desirability of prayers at the start of public meetings, or the role of religion in public life. Instead, I would like to address this part of Mr. Saunders’ column:

(…) Britain’s High Court ruled that the practice of holding prayers during municipal council meetings is unconstitutional (as, by extension, may be those held during sittings of the House of Commons). Prayer, the judge ruled, is a private matter that has no place in the formal proceedings of a legal assembly.

Saunders is implying that the Court could just as easily strike down the UK House of Commons’ tradition of beginning each sitting day with a prayer. However, before any individual or group decide to take the Commons or Lords to court over this, they might well want to look at what happened in the Canadian province of Ontario between 1999 and 2001.

In 1999, Henry Freitag, a local resident of the small Ontario town of Penetanguishene who frequently attended council meetings, successfully challenged the town council’s practice of starting each council meeting with the recitation of the Lord’s Prayer. He did so on the basis that it infringed his freedom of religion under s. 2(a) of the Charter of Rights and Freedoms.

Buoyed by his success, Freitag brought a similar complaint against the Legislative Assembly of Ontario through the Ontario Human Rights Commission. The Legislative Assembly’s Standing Orders require the Speaker to begin the day’s legislative session by reading prescribed prayers. At the time, the Standing Orders specified that either of two prayers could be used: the Lord’s Prayer (which is associated with Christianity), or a general, non-sectarian prayer. In practice, it was the Lord’s Prayer that was normally used. Freitag, who was not a member of the Legislative Assembly and did not attend the legislative sessions, brought a complaint to the Ontario Human Rights Commission alleging that the use of the Lord’s Prayer was discriminatory against him as a “person of non-Christian faith”. The Ontario Human Rights Commission was requested by the Speaker to exercise its discretion not to deal with the complaint on the basis that the Commission did not have jurisdiction over the internal procedures of the Legislature. The Commission, however, argued that it did have jurisdiction, before proceeding to consider (and ultimately reject) Freitag’s complaint. On judicial review of the Commission’s judgment that it had jurisdiction, the Divisional Court ruled in favour of Ontario.

What is important here is that what was appealed was not whether or not the Assembly’s use of the Lord’s Prayer was discriminatory, but whether the Ontario Human Rights Commission even had the jurisdiction to rule on the matter. The Appeal Court ruled that it did not because the practice of federal and provincial legislatures is immune from review by the Courts due to parliamentary privilege.

It is a constitutional principle that the provincial legislatures (as well as the Parliament of Canada) are independent of the executive and judicial branches of the government. The Speaker of the Ontario Legislature therefore had the authority, on behalf of the Legislature, to establish and regulate the House’s own internal affairs without interference from the other two branches of government. Once it is determined that the Standing Orders are necessary for governing the House’s internal affairs, then parliamentary privilege holds that no court or tribunal has the jurisdiction to question the content of those orders.

The Court of Appeal distinguished the Legislative Assembly case from its earlier judgment in Penetanguishene, the Town Council case. Unlike provincial legislatures, the proceedings of town councils are not protected by parliamentary privilege, and were thus open to judicial review under the Charter.

What is key to note here is that as part of the judgement, the Court quoted a 19th century English case to the effect that an appeal against the House’s internal procedures lies to the constituents, that is, the elected Members of that body, and not to the courts:

[36]          The author’s authority for this proposition, Bradlaugh v. Gossett (1884), 12 Q.B.D. 271 (Q.B.), is instructive.  In that case, Charles Bradlaugh was elected to serve in the English House of Commons and was entitled to take the oath prescribed by law to be taken by members of the House of Commons, and to sit and vote as one of its representatives.  Bradlaugh required the Speaker to call him to the table for the purpose of taking the oath, but the Speaker refused.  The Speaker was supported by the House of Commons, which passed a resolution directing the Sergeant-at-Arms to exclude Bradlaugh from the House. Bradlaugh brought an action against the Sergeant-at-Arms seeking an injunction restraining him from carrying out the resolution.

[37]          The report of the Queen’s Bench proceedings does not attribute to the Speaker any reasons for his refusal to allow Bradlaugh to take the oath, but counsel for the respondent told this court that it was because Bradlaugh was an acknowledged atheist.  However, what is important is that the panel of the court of Queen’s Bench, comprised of Lord Coleridge C.J., Mathew J. and Stephen J., who heard the matter on a demurrer, was prepared to proceed on the assumption that the House of Commons had passed a resolution inconsistent with the Parliamentary Oaths Act, 1866 (29 Vict. c.19) (see p. 280).  Stephen J. summarized the matter this way at p. 278:

The legal question which this statement of the case appears to me to raise for our decision is this: – Suppose that the House of Commons forbids one of its members to do that which an Act of Parliament requires him to do, and, in order to enforce its prohibition, directs its executive officer to exclude him from the House by force if necessary, is such an order one which we can declare to be void and restrain the executive officer of the House from carrying out?  In my opinion, we have no such power.  I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute-law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable. [Emphasis added.]

[38]          And at pp. 280-281:

… It seems to follow that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings is concerned; and that, even if the interpretation should be erroneous, this Court has no power to interfere directly or indirectly. …

[39]          It is evident that the court of Queen’s Bench regarded the internal workings of Parliament as protected by privilege and it was not prepared to scrutinize conduct that fell within that category, even if such conduct violated a statutory right.  As stated by Lord Coleridge C.J. at p. 277:

… The history of England, and the resolutions of the House of Commons itself, shew that now and then injustice has been done by the House to individual members of it.  But the remedy, if remedy it be, lies, not in actions in the courts of law…, but by an appeal to the constituencies whom the House of Common represents.

Unlike Ontario, the UK House of Commons Standing Orders do not state that the Speaker shall read the prayers at the start of each sitting day, but as stated above, this is a long-standing practice, believed to have originated in 1558. It is also worth noting that the prayers are not public. Members of the public are not allowed into the public galleries during prayers, nor are they shown in the broadcast proceedings of the House. Regardless, any attempt by the courts to rule this practice unconstitutional would fail because parliamentary privilege guarantees that Parliament has the collective right to regulate its own proceedings. It would be up to the Members themselves to decide to change current practice. Certainly, there is a debate to be had regarding what purpose is believed to be served by the practice of beginning legislative sessions with prayer, but this won’t be a matter decided by the courts.

Update: In a recent interview, UK House of Commons Speaker John Bercow addressed the issue of prayers in the House of Commons and among his comments, said this:

You could ask, and you rightly say, we’re not bound by the courts on this, and the National Secular Society won’t have any impact as far as I can see on what we in the house do and nor should it, is it in anyway discriminatory to go back to this point about whether prayers are before or after the start of official business, you can argue the toss on this, the prayers that we have in the house are before the start of our main business, no significant item of, no item of business takes place before prayers at all, they are not compulsory, nobody has to come along if they don’t want to do so.”

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