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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The Financial Privilege of the House of Commons

A controversial bill overhauling the UK’s social benefits system suffered a number of defeats in the House of Lords as the upper chamber rejected several provisions of the Government’s bill. When the bill was returned to the House of Commons, something happened. A committee of the House of Commons resolved that the bill “engages the financial privilege of the Commons”. In doing so, the Government was then able to declare the Lords amendments invalid, based on the financial privilege convention.

What is the financial privilege of the House of Commons? As Dr Jeff King, Senior Law Lecturer at University College London, explains:

Under such a privilege, the Commons is entitled to ‘disagree’ with any Lords amendment and ultimately reject it without feeling obliged to provide any reasons other than the existence of the privilege. By convention, the Lords will accept this determination (though increasingly with protest).

Dr. King further explains that it is for the Commons to decide on the scope of its own privilege, and the basic scope of said privilege  is set out in Erskine May’s Treatise on the Law, Privileges, Proceedings and Usages of Parliament (24th ed, p. 787):

… the Commons’ claim to sole rights in respect of financial legislation applies indivisibly to public expenditure and to the raising of revenue to meet that expenditure. (…) The Commons treat as a breach of privilege by the Lords not merely the imposition or increase of such a charge but also any alteration, whether by increase or reduction, of its amount or or its duration, mode of assessment, levy, collection, appropriation or management; and, in addition, any alteration in respect of the persons who pay, receive, manage, or control it, or in respect of the limits within which it is leviable.

The claim of financial privilege dates back to two resolutions, one from 1671, the other from 1678. The first states that “in all aids given to the King by the Commons, the rate of tax ought not to be altered by the Lords”, while the second asserted the “undoubted and sole right of the Commons” in respect of all bills of  ‘aids and supplies’ – that is, raising tax and spending it. The Commons’ right to define the scope of its privilege in such areas relies on Article 9 of the Bill of Rights, and has been reinforced by the courts (Stockdale v Hansard [1839] Ad & E 1, and  R v Chaytor [2010] UKSC 52).

A similar convention exists in Canada, however it is usually referred to as the Commons’ financial prerogative, or predominance in financial matters. As is explained in House of Commons Procedure and Practice (2nd ed.):

The Constitution and the Standing Orders of the House of Commons require that bills which appropriate (impose a charge on the public revenue) or levy any tax or duty (impose a charge upon the people) must first be introduced and passed in the House of Commons.

Section 53 of the Constitution Act, 1867 states that “Bills for appropriating any Part of the Public Revenue, or for Imposing any Tax or impost shall originate in the House of Commons”. The wording of this provision followed that of Section 57 of the Union Act, 1840, which had constitutionally united Upper and Lower Canada into the United Province of Canada. Section 57 of the Union Act removed any doubt as to where money bills were to originate:

57. All Bills for appropriating any Part of the Surplus of the said Consolidated Revenue Fund, or fort imposing any new Tax or Impost, shall originate in the Legislative Assembly of the Province of Canada.

What readers will note, however, is that the above refers only to where money bills originate – the Senate cannot introduce a money bill. There is no mention of whether the Senate can amend or alter a money bill brought before it. Standing Order 80. (1) reads:

80. (1)  All aids and supplies granted to the Sovereign by the Parliament of Canada are the sole gift of the House of Commons, and all bills for granting such aids and supplies ought to begin with the House, as it is the undoubted right of the House to direct, limit, and appoint in all such bills, the ends, purposes, considerations, conditions, limitations and qualifications of such grants, which are not alterable by the Senate.

Here we see that the “ends, purposes, considerations, conditions, limitations and qualifications” of all “aids and supplies” granted to the Sovereign “are not alterable by the Senate”.

However, since Confederation, the Senate has historically taken the position that it has the constitutional right to amend (but not increase) money bills sent to it by the House of Commons. In 1918, the Senate established a Special Committee to consider its rights with respect to money bills, under the chairmanship of Senator Ross. The Report of the Special Committee Appointed to Determine the Rights of the Senate in Matters of Financial Legislation (or Ross Report) made the following observations:

1. That the Senate of Canada has and always had since it was created, the power to amend Bills originating in the Commons appropriating any part of the revenue or imposing a tax by reducing the amount therein, but has not the right to increase the same without the consent of the Crown.

2. That this power was given as an essential part of the Confederation contract.

3. That the practice of the Imperial Houses of Parliament in respect of Money Bills is not part of the Constitution of the Dominion of Canada.

4. That the Senate in the past has repeatedly amended so-called Money Bills, in some cases without protest from the Commons, while in other cases the bills were allowed to pass, the Commons protesting or claiming that the Senate could not amend a Money Bill.

5. That Rule 78 of the House of Commons of Canada claiming for that body powers and privileges in connection with Money Bills identical with those of the Imperial House of Commons is unwarranted under the provisions of The British North America Act, 1867.

6. That the Senate as shown by the British North America Act as well as by the discussion in the Canadian Legislature on the Quebec Resolutions in addition to its general powers and duties is specially empowered to safeguard the rights of the provincial organizations.

7. That besides general legislation, there are questions such as provincial subsidies, public lands in the western provinces and the rights of the provinces in connection with pending railway legislation and the adjustment of the rights of the provinces thereunder likely to arise at any time and it is important that the powers of the Senate relating thereto be thoroughly understood.  (source)

What is particularly interesting here is that the Ross Report clearly rejects the provisions outlined in the Standing Orders (at the time, Standing Order 78), saying that the Canadian House of Commons’ attempt to claim the same body powers and privileges regarding Money bills as those of the British House of Commons is “unwarranted” under the Constitution Act of 1867, which it reinforces in point 3 by stating that the Westminster practices in relation to Money Bills are not part of the Canadian Constitution.

As noted in House of Commons Procedure and Practice, most of the disagreements between the House of Commons and the Senate arise over the extent of the Senate’s authority to amend financial legislation. Some argue that the Senate is restricted to passing or rejecting money bills because if the Senate amends a money bill, it becomes a different bill and is not the same one which originated in the House of Commons. The other school of thought is that the Senate has full powers o amend, as long as it does not increase appropriations or the amount of taxation (which is the position outlined in the Ross Report quoted above).

The issue in Canada, as in the UK, is really that of what is a money bill. Is it one that includes any financial provisions, in which case, almost every bill would fall into that category, or is a money bill one where the purpose of the bill must be mostly or completely financial? In either case, should restrictions on the upper chamber’s ability to amend extend to the entirety of the bill, or of simply to its financial aspects?

In his paper, Dr. King argues that the financial privilege of the Commons was “originally concerned chiefly with taxation and supply, and invoked more sparingly in respect of expenditure.” The breadth of the privilege asserted in relation to the Welfare Reform Bill in February 2012 was extremely wide: “any amendment with implications for public expenditure might involve privilege.” If such a standard was adopted across the board, it would “radically constrict the range of matters over which the second chamber could reliably exercise its revising and scrutinizing function” since there are few matters proposed in bills which doe not have “implications for public expenditures” – including “health care, education, university fees, pensions, social security, the court services, prisons, immigration,” etc.

Dr. King opines that “the Commons enjoy a clear power to invoke the privilege in respect of expenditure, but it would be an abuse of the privilege to use it to foreclose the revising role of the Lords on matters of social policy not relating to taxation or supply of money.” He also argues that the Lords would be in the right to fight back against such an expansion of the financial privilege.

In Canada, there is a history of the House of Commons waiving its financial privilege and accepting the Senate’s amendments to money bills (bill appropriating funds or imposing a tax). When it does so, it insists that the decision in that instance does not set a precedent. At times, the Commons has accepted (and rejected) amendments without making any reference to its privileges. It should be noted that the Speaker of the House of Commons will not rule on the right of the Senate to amend financial legislation on the grounds that this is a constitutional, rather than a procedural, issue.

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Keyword post: Some answers to search results

This post will provide answers to actual search engine queries that led people to this blog. None of these would really make a full blog post on their own, which is why I’ve decided to answer a few in one post.

1. How many people did/didn’t vote for David Cameron?

This one is very easy to answer. Exactly 23,796 people did not vote for David Cameron in the May 2010 general election. Cameron stood for election in the constituency of Witney, opposed by nine other candidates. Voter turnout in that riding was 57,769 (73.8%), and of that, 33,973, or 58.8% voted for Cameron, meaning 23,796 voters voted for other candidates.

It is important to remember that in parliamentary systems such as those we have in the UK, Canada, Australia, etc., people do not vote directly for the Prime Minister. The Prime Minister is simply whichever MP is also leader of the party which forms the government. Please see this post for more information.

2. Has the fixed term parliaments bill passed/been defeated?

The fixed term parliaments bill received Royal Assent on 15 September 2011. You can track the progress of any bill currently before Parliament on the Bills before Parliament page of the UK Parliament’s website.

3. What is the procedure to recall a Canadian Member of Parliament (MP)?

There is no procedure to recall MPs in Canada. There is only one jurisdiction in Canada (indeed, in the entire Commonwealth) which has recall legislation, and that is the province of British Columbia. The UK Coalition Government has introduced a draft bill on MP recall. You can read more about how recall works in British Columbia in this post.

4. How does one address the Lieutenant Governor in a speech?

“Your Honour” first, then “Sir” or “Madam” or “Mr./Mrs./Ms./Miss (name)”.

Everything you ever wanted to know about styles of address can be found here. You may want to consult this post for other useful political resources.

5. How many people voted for the NDP?

For any elections-related questions, your first stop should always be Elections Canada. In the 2 May 2011 general election, 4,508,474 voters across the country cast votes for an NDP candidate, or 30.63% of voters who bothered to turnout for the election (turnout was 61.4%).

6. Does the government know what questions will be coming forward in question period?

Yes and no. In Canada, the opposition does not usually provide the government with advance notice of what questions it intends to ask, however, there is nothing preventing it from doing so. Indeed, if there is a question that an opposition MP feels the government might not expect to have come up, he or she might inform the Minister concerned beforehand that they intend to raise the matter during oral questions. In general, the government will have a good sense of what questions to expect because the opposition will hone in on any topic that is currently in the news. As well, the government carefully scripts the questions asked by its own backbenchers, so those questions (and their answers) are quite carefully rehearsed.

In the UK, questions for departments must be submitted three days in advance, specifically to give the concerned minister the time to prepare answers. However, the last 10-15 minutes of each day’s questions are reserved for “topical questions”, which aren’t submitted ahead of time, so the minister will not know exactly what questions to expect (although he or she, like their Canadian counterparts, can assume they will be on more current matters). Prime Minister’s Questions (PMQs) aren’t submitted ahead of time, although loyal government MPs will often give Downing Street advance notice of their question, or try to ask something ‘helpful’ – possibly to try to impress the PM or those looking out for future ministerial talent. But the PM can be asked about anything at all for which the government is responsible, which means they have to be up to speed on all areas of policy.

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Important Political Resources

I admit to being somewhat surprised by some of the keyword searches that bring people to this blog. It seems that too many people have no idea where to get key information – somehow they end up on this blog rather than on the sites they should be visiting to get the information they want. Consequently, I thought I would provide links to key resources based on recent keyword search activity. I will add to this post over time, as needed. Also, if any readers know of sites that should be added to this list, please comment with the link or use the site’s contact form to let me know.

Topics: Election results Canada, Election results UK, general information regarding how elections, by-elections, referendums are carried out, election financing laws, voting procedures, etc.

Elections Canada: If you are looking for information pertaining to any aspect of elections in Canada, Elections Canada should be your first stop. It will most likely be the only site you need to visit. It provides detailed election results of current and past elections, you can even download the data in CVS format. There is extensive information explaining how the voting system works, information for voters, for candidates, for parties, information about political parties, financing regulations, research and discussion papers on all things electoral, and even back-issues of the no-longer-published Electoral Insight magazine, which provides a wealth of interesting articles on various aspects of voting and elections in Canada (some dated by this point, but nonetheless interesting). If you’re looking for information about voting procedures in a particular Canadian province or territory, Elections Canada also has links to the Elections body of each (under the heading Provincial and Territorial Election Officials).

Electoral Commission: Sadly, the UK’s Electoral Commission doesn’t have the same mandate Elections Canada does – it doesn’t oversee or administer national elections. However, it still provides statistics, analysis and reports on elections, as well as information on party financing, boundary reviews, information for voters, and much more. This should still be the first place people visit for information about elections in the UK.

Another useful elections-related site for those interested in Canadian elections is the Pundits’ Guide to Canadian Federal Elections. Any possible statistic you might want about Canadian elections (going back to 1997 only) can probably be found here.

Topics: Parliamentary privilege, parliamentary procedure

A lot of people regularly search for “parliamentary privilege” and end up on my blog. I have written a few posts dealing with some aspects of privilege, but it is a very complex subject matter, and I am hardly an expert. The usual sources for information about privilege are the procedure manuals published by various parliamentary bodies. The most famous – the “bible” so to speak, is Erskine May Parliamentary Practice, now in it’s 24th edition. Sadly, Erskine May is not available online, however, the procedure manuals of the Canadian, Australian and New Zealand Parliaments are. Each has detailed sections on parliamentary privilege, and all quote Erskine May extensively.

Readers might also want to consult the UK Joint Select Committee on Privilege’s 1999 report: Parliamentary Privilege – First Report. It is somewhat dated, but still provides a thorough overview of the topic.

Topics: How Goverment works, parliamentary seating charts, number of MPs by party, general information about MPs, Committee business and reports, status of legislation before the House, Hansard, etc.

The first stop for anyone interested in any of the above, or related topics should be the official website of the parliament of the country you’re interested in. They normally have all that information and more. Here are the parliamentary websites of the countries this blog focuses on the most: Parliament of Canada, UK Parliament, Parliament of Australia, Parliament of New Zealand.

Topic: Styles of Address

Wondering how to refer to an MP, Judge, foreign dignitary, member of the Royal Family or a parliamentary secretary? The site you want is Heritage Canada’s Styles of Address. Or you could try Australia’s equivalent. And we mustn’t forget Debrett’s, the authoritative guide to addressing people.

Topic: Politicians using social media (Twitter, Facebook, etc.)

Canada: PoliTwitter aggregates the Twitter, Facebook, blog and other feeds of any elected federal or provincial official in Canada who has any online social media presence. You can sort them by federal/provincial, by province, and by party. It allows you to see immediately what various politicians and parties are tweeting, blogging and generally discussing online. You might also want to check out TweetCommons, which does something similar.

UK: PoVoice UK does something similar, but only with Twitter activity from UK politicians. It doesn’t seem to be as extensive as PoliTwitter, for example, I can’t tell if politicians have to voluntarily add their feed to it, or how it works, exactly, but I don’t follow it and so can’t really comment that much on how useful it might be. There is also TweetMinster which follows much more than MPs.

Australia: TweetMP documents all Australian federal MPs on Twitter.

Again, if you know of a site that you think should be included on this list, please comment with the relevant information, or use the Contact form.

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Contempt of Parliament not a criminal offence

My attention was recently caught by a post on asking if contempt of Parliament is a federal crime that can bar Prime Minister Stephen Harper from re-election. The question seems to have come from this very unfortunately blog post arguing that indeed, Harper has committed a federal offence.

The short answer to the question is quite simply no. Contempt of Parliament is not a federal offence.

On February 7, 2011, a Member of the Canadian House of Commons, Scott Brison rose on a question of privilege on behalf of the Committee on Finance arguing that the failure of the Government to provide the committee with financial information on the estimated cost of the F-35 aircraft, the original estimates and final costs of hosting the G8 and G20 summits, the adjustments to the fiscal framework to incorporate the costs of several government Bills and the estimated cost to the federal treasury of the planned reduction of corporate tax rates as requested by the committee constituted a prima facie case of privilege. On March 9, the Speaker of the Canadian House of Commons ruled that the question raised by Mr. Brison constituted a prima facie question of privilege. The Speaker determined stated that it may well be that the government has valid reasons for not complying with the committee’s order, but that this judgement must be made by a committee empowered to investigate the matter, and not by the Chair. The matter was then referred to the Committee on Procedure and House Affairs, which reported back that the Government was in contempt of Parliament for failing to provide the committee with the documentation it had requested.

What the Government is in breach of is not a federal or other criminal law, but a Standing Order of the House of Commons, as well as centuries of parliamentary convention. The Standing Orders are the body of rules that govern how business is conducted in the House of Commons. These rules are made by the House itself, periodically reviewed and changed. Standing Order 108 in Chapter XIII of the Standing Orders outlines the powers of committees (emphasis added):

108. (1)(a)  Standing committees shall be severally empowered to examine and enquire into all such matters as may be referred to them by the House, to report from time to time and to print a brief appendix to any report, after the signature of the Chair, containing such opinions or recommendations, dissenting from the report or supplementary to it, as may be proposed by committee members, and except when the House otherwise orders, to send for persons, papers and records, to sit while the House is sitting, to sit during periods when the House stands adjourned, to sit jointly with other standing committees, to print from day to day such papers and evidence as may be ordered by them, and to delegate to subcommittees all or any of their powers except the power to report directly to the House.

Committees have the power to request documentation from the Government. If the Government fails to comply with the request, this can be a breach of privilege. Parliamentary privilege is the collection of rights, powers and immunities of the House and its Members. The classic definition of parliamentary privilege is found in Erskine May’s Treatise on the Law, Privilege and Usage of Parliament (23rd edition, p. 75):

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively … and by Members of each House individually, without which  they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extend an exemption from the general law.

The privileges of Members of the House of Commons provide the absolute immunity they require to perform their parliamentary work while the collective or corporate rights of the House are the necessary means by which the House effectively discharges its functions. The rights and immunities accorded to Members individually are generally categorized under the following headings:

  • freedom of speech;
  • freedom from arrest in civil actions;
  • exemption from jury duty;
  • exemption from being subpoenaed to attend court as a witness; and
  • freedom from obstruction, interference, intimidation and molestation.

The rights and powers of the House as a collectivity may be categorized as follows:

  • the exclusive right to regulate its own internal affairs (including its debates, proceedings and facilities);
  • the power to discipline, that is, the right to punish persons guilty of breaches of privilege or contempts, and the power to expel Members guilty of disgraceful conduct;
  • the right to provide for its proper constitution, including the authority to maintain the attendance and service of its Members;
  • the right to institute inquiries and to call witnesses and demand papers;
  • the right to administer oaths to witnesses appearing before it; and
  • the right to publish papers without recourse to the courts relating to the content.

Contempt, on the other hand, is generally defined as “any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a  Member of the House” and is punishable by the House. While privileges are defined, contempt of the House has no limits:

Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members or its officers. (O’Brien and Bosc, 2nd ed., pp. 82-83).

What the Government was found in contempt of is a Standing Order and the general parliamentary privilege of the right of the House and Members to demand papers and to not be obstructed in the discharge of carrying out their parliamentary duties.

That unfortunate blog post I linked to at the outset (and I was hesitant to provide the link because I really don’t want to give them more traffic than they’re already getting given how ill-informed the post is), also claims that “No federal government or cabinet minister has ever been found in contempt before.”

This is also false. Many governments and ministers (and individual members) have been found in contempt. However, of all the prima facie cases of contempt raised in the House of Commons since 1867, only five motions containing the word “contempt” have been adopted by the House. What is unique in this particular situation is that no government has ever been defeated by a non-confidence motion that arose from a finding of contempt of Parliament. Please note this distinction. It wasn’t the finding of contempt by the Speaker and committee that defeated the government, but rather, a non-confidence motion filed by the Opposition based on the finding of contempt. That this confidence motion was moved is also unusual because the Canadian House of Commons has traditionally been very reluctant to invoke its authority to reprimand or punish anyone found in contempt. Again from O’Brien and Bosc (p. 87):

The reluctance to invoke the House’s authority to reprimand or admonish anyone found to have trampled its dignity or authority and that of its Members appears to have become a near constant feature of the Canadian approach to privilege. For example, in 1976, the Standing Committee on Privileges and Elections chastised a former Member (Auguste Choquette (Lotbinière)) who claimed that many parliamentarians had obtained undue financial considerations, but did not recommend any further consideration be given to the matter after concluding that his attitude was intemperate and irresponsible. In the 1987 Parry case where the Member divulged the result of an in camera vote, the Standing Committee on Elections, Privilege and Procedure also did not recommend punishment and the Member’s apology to the House put an end to the matter. In the 1996 Jacob case, the Standing Committee on Procedure and House Affairs noted that while the Member’s actions were ill-advised, they did not amount to contempt or a breach of parliamentary privilege. In 2005, the Standing Committee on Procedure and House Affairs found “that the Ethics Commissioner was in contempt of the House of Commons” for his actions during the conduct of an inquiry, but did not recommend any sanctions or penalty because the actions were neither deliberate nor intended. In 2008, the House found the Deputy Royal Canadian Mounted Police (RCMP) Commissioner in contempt of the House but did not impose any punishment because “this finding of contempt is, in and of itself, a very serious sanction”.

There are a myriad of other problematic claims in that blog post, but I’m not going to address them. A quick overview of the site seems to indicate that it is one bordering on conspiracy-theory fringe territory. It is only because the notion that a contempt of parliament finding might be a criminal offence seemed to be spreading that I decided to address that particular issue.

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On misleading the House

On 9 March 2011, the Speaker of the Canadian House of Commons delivered two rulings on matters of privilege raised by the opposition against the Government. In both instances, the Speaker found that prima facie cases of privilege had been established, and that the government was in contempt of Parliament. It should be noted that this was the third such finding of contempt against the Government in less than a year. For a summary of both, I would direct you to this article.

I want to focus on the second ruling, that International Co-operation Minister Bev Oda breached parliamentary privilege by misleading MPs about the alteration of a document.

Accusations of deliberately misleading the House are fairly rare, and very difficult to prove. This particular contempt was given explicit recognition in 1963, following the infamous Profumo Affair in the United Kingdom. In that case, the House of Commons resolved that a former member (Profumo) who had made a personal statement to the House which he subsequently acknowledged to be untrue had committed a contempt of the House.

(What follows is based largely on information contained in various procedural manuals, in particular Parliamentary Practice in New Zealand by David McGee and House of Commons Procedure and Practice by O’Brien and Bosc.)

There exists an established constitutional convention that Ministers should always tell the truth to Parliament as far as this is possible without harming national security. The underlying assumption is that all Members are honourable, and therefore granted a certain benefit of the doubt in instances where statements might appear contradictory or in conflict with supporting documentation, for example. By benefit of the doubt, I mean that it is assumed that there was no deliberate attempt to mislead the House – deliberate being the very key word here. Consequently, there are three elements that have to be established when it is alleged that a member is in contempt for misleading the House:

  • the statement must, in fact have been misleading;
  • it must be established that the member making the statement knew at the time the statement was made that it was incorrect;
  • and, in making it, the member must have intended to mislead the House.

The standard of proof required is the civil standard of proof, but given the serious nature of the allegations, proof of a very high order. Consequently, reckless use of words in debate, for example, will fall short of the standard required to hold a member responsible for deliberately misleading the House. Also, the misleading of the House must be concerned with a matter of high importance to the House.

For a misleading of the House to be deliberate, there must be something in the nature of the incorrect statement that indicates an intention to mislead. Remarks made off the cuff in debate can rarely fall into this category, nor can matters about which the member can be aware only in an official capacity. But where the member can be assumed to have personal knowledge of the stated facts and made the statement in a situation of some formality, for example by way of personal explanation or in testimony before a committee, a presumption of an intention to mislead the House will more readily arise.

In the Oda case, what the House of Commons Procedures and House Affairs committee will have to determine is if Oda’s statements before the Committee on Foreign Affairs and International Development in December 2010, combined with her statement to the House in February 2011, meet the three elements described above. For anyone interested in more background information and a complete timeline of events in this matter, please see here.

There is one oddity in the Speaker’s ruling on the matter. Near the end, he states: “the Chair is of the view that sufficient doubt exists to warrant a finding of prima facie privilege in this case.” It is not up to the Speaker to determine if sufficient doubt exists, but rather, does sufficient proof exist to warrant a finding of prima facie privilege. Perhaps Speaker Milliken means that there is sufficient doubt about the Minister’s assertions that there was no deliberate attempt to mislead the House, but even if that is the case, it is an odd way to phrase his conclusion.

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Loose lips – Part 1

Business Secretary Vince Cable finds himself at the centre of a media storm today because of comments he made in a conversation with undercover newspaper reporters posing as constituents.

There are two separate issues I want to explore here, and will do so in two separate posts.

The first is the issue of parliamentary privilege. Privilege are the rights and immunities granted to MPs, both individually and collectively. These privileges were first claimed centuries ago when the English House of Commons was struggling to establish a distinct role for itself within Parliament. They were necessary to protect the House of Commons and its Members, not from the people, but from the power and interference of the King and the House of Lords.

The privileges enjoyed by the House and its Members continue to be vital to the proper functioning of Parliament.

Rights that are protected by privilege are those that are necessary in order to allow Members of the House of Commons to perform their parliamentary functions. These rights are enjoyed both by individual Members of Parliament—because the House cannot perform its functions without its Members—and by the House, as a whole, for the protection of its Members as well as its own authority and dignity.

There have been plenty of stories about growing tensions between the coalition partners – in particular among Liberal Democrats. The Daily Telegraph decided to send two undercover reporters posing as Lib Dem supporters to find out what MPs were saying privately in constituency surgeries. They began their series with comments made by Vince Cable. Mr. Cable was conducting a surgery in his constituency (for non-Brits out there, that simply means he was in his riding meeting with constituents, hearing their concerns, trying to assist them with problems they’re having, etc.).

For this post, the issue isn’t really what Mr. Cable said when he thought he was speaking in confidence to actual constituents. If you’re really interested, you can read the Telegraph’s coverage of that here. The question I want to look at is if Mr. Cable’s parliamentary privileges were violated, and if yes, could he sue the Telegraph?

The Guardian’s Michael White raises this issue in this column. As stated above, a case for a breach of privilege can be made when an MP is prevented from carrying out his or her parliamentary duties. In this instance, as White notes:

Cable gives interviews to whomever he pleases – or not. He is a pretty open chap, too open perhaps, too prone to wear his big heart on his sleeve.

In any case he is regularly accountable in public, in parliament and to his Twickenham constituents. That’s what he thought he was being when talking to the two wired reporters. As a local MP he has obligations of confidentiality to constituents – MPs take this very seriously and so they should. People can lose their jobs, homes (landlords can be nasty), even children if private conversations get leaked.

In other words, they – and he – are entitled to some privacy. (…)

My feeling is that there was no public interest justification for the Telegraph sting. It’s not as if the tape proved that Vince likes cocaine or underage rent boys, both illegal activities and thus legitimate targets of press inquiry – as was the News of the World’s Pakistani match-fixing probe, but not its hacking into royal or celeb gossip.

In my second post, I will address the fact that it turns out that there was indeed some public interest justification that came out of the sting operation – but not for the sting operation itself. The Telegraph did not immediately release everything that Mr. Cable had said to the undercover reporters. But White is entirely right to note that MPs do deal with a lot of very confidential information when trying to assist their constituents, and they need to be able to speak freely, with full obligations of confidentiality.

We now know that the Telegraph has conducted this sting operation with other Lib Dem MPs, and we can assume that other embarrassing (for the MPs) comments were made – otherwise the Telegraph wouldn’t bother announcing that this was the first in a series of such stories. I can only imagine that all MPs will suddenly be a lot less willing to speak freely when dealing with constituents for fear that a similar operation may be underway. In that sense, their ability to carry out their duties as MPs may well indeed be compromised.

I don’t know if Cable could sue the Telegraph for conducting such a sting operation. White says that politicians have been rather hesitant to do so in the past:

Vince will not walk the plank. He might well be within his rights to find a means to sue or report the paper for breach of parliamentary privilege – which the sting surely was in interfering with his duties as Twickenham’s MP. But politicians have long been cowed and rarely take such steps unless the case is watertight and then some.

Cowed by whom? By the media usually. Was it not the Telegraph that obtained (bought?) the discs containing all those details of MPs’ expenses and ran them for weeks? It was and there was a defendable public interest in doing so, though it was much exaggerated and exploited by us all. Most MPs were OK – are OK. All MPs are accountable.

Was the Telegraph sting operation justified? I don’t think so. Of course some (maybe all) Lib Dem MPs are bound to say less than positive things about the coalition and their Conservative partners when they think they are speaking in private. I’m fairly certain a good number of Conservative MPs would also have less than flattering things to say about the Lib Dems. And probably a fair number of MPs from each party have not-so-nice words for some in their own party. Politicians are humans too – we all have gripes with some of our work colleagues.

But if part of your job requires that you be able to speak in confidentiality with constituents, you need to feel confident that you can do that, that the person you are speaking to is indeed a constituent and not an undercover reporter hoping for a “gotcha!” moment they can splash about as the next day’s headline. In this sense, I think there is a good case certainly for breach of privilege. I don’t know enough about how the UK legal system works to comment on whether Cable would be successful taking the matter to court. It’s certainly an issue worth following – particularly since the Telegraph has let it be known that there is plenty more to come.

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The jurisdiction of privilege

(Note: Not the information you’re looking for? I do try to help people as much as I can and regularly monitor key word activity on this blog to see what is bringing people here. If this post doesn’t answer your questions, please consider contacting me with details regarding what information you’re looking for, including context (i.e. if it relates to something currently in the news). I might be able to answer your question(s), or at least direct you to a site that might provide more answers. I will reply to you by email, and if it’s a very interesting question, I may even write a proper blog post about it.)

In this introductory post, I provided a brief overview of parliamentary privilege. In this second post on privilege, I will look at one aspect of how far the jurisdiction of privilege extends.

In 2009, the UK Parliament was hit by what has become known as the MPs expenses scandal. To very briefly summarise, under Freedom of Information requests, it became public knowledge not only what MPs and Lords were allowed to claim as legitimate expenses, but that many had evidently abused the claims systems. For a detailed timeline of events, please click here.

I want to focus on one aspect of this event, and that is the attempt by the three MPs and one Lord who were charged with criminal offenses to use parliamentary privilege in order to have their cases dealt with by parliament rather than the criminal justice system.

When the four appeared in court in March of this year, their lawyer, Julian Knowles, argued that to prosecute them in the criminal courts for their parliamentary activities would infringe the principle of the separation of powers, which is one of the principles which underpins the UK’s constitutional structure, arguing that the workings of parliament should be dealt with by parliament. He pointed to article nice of the Bill of Rights 1689, which  provides that proceedings in parliament cannot be impeached or questioned in any court or place outside of parliament.

The argument wasn’t that the four politicians were above the law, but that parliamentary priviliege is part of the law, but Parliament’s, not the court’s, jurisdiction.

On 30 July 2010, the England and Wales Court of Appeal ruled that the four legislators weren’t immune from prosecution under parliamentary privilege laws. Lord Chief Justice Igor Judge dismissed their claim, insisting the law protected legislators from libel claims over comments they make in debates:

“The stark reality is that the defendants are alleged to have taken advantage of the allowances scheme designed to enable them to perform their important public duties as members of Parliament to commit crimes of dishonesty to which parliamentary immunity or privilege does not, has never, and, we believe, never would attach. If the allegations are proved, and we emphasise, if they are proved, then those against whom they are proved will have committed ordinary crimes. Even stretching language to its limits we are unable to envisage how dishonest claims by members of Parliament for their expenses or allowances begin to involve the legislative or core functions of the relevant House, or the proper performance of their important public duties. In our judgment no question of privilege arises, and the ordinary process of the criminal justice system should take its normal course, unaffected by any groundless anxiety that they might constitute an infringement of the principles of parliamentary privilege.”

What is interesting is that in their defense, the defendants referred to the case of Sir John Eliot, which dates back to 1629. It might surprise some that such a case would have any relevance today, but it must be remembered that parliamentary privilege evolved from a history of conflict between the Houses of Parliament, the Crown and the courts. In essence, it was a struggle for independence between the different branches of government. Prior to 1640, the Crown and the courts showed no hesitation to intrude into the sphere of the Houses of Parliament. Nor did the Houses of Parliament hesitate to intrude into the sphere of the courts.

Taking a complicated situation very briefly, in 1629 proceedings were taken against Eliot and other members of the House of Commons for making seditious speeches in Parliament and in effect, also, for contempt in resisting the Speaker’s proposed adjournment of the House and conspiracy to keep him in his chair by physical force. In February 1629, the King had ordered that Parliament be adjourned, but when the Speaker attempted to do so, he was held down in the chair by two members while Eliot’s resolutions against illegal taxation and innovations in religion were read to the House. In consequence, Eliot, with eight other members, was imprisoned on 4 March in the Tower. He refused to answer in his examination, relying on his parliamentary privilege.

A great point of principle was at stake. Eliot and the others objected to the jurisdiction of the King’s Bench, arguing that it did not extend to what they had said and done in Parliament. The plea nihil dicit meant that conviction would be inevitable, but if they defended themselves at all, their contention that Parliament was the only body with jurisdiction over these matters would be completely undermined. In a rapidly developing situation, Eliot and his colleagues would not compromise. An unfinished paper written by Eliot, which, because of illness, he was unable to present to the court, has survived. His self-acknowledged dilemma was that if he did not submit he would incur the censure of the Court, but if he did, his act would be considered “a prejudice to posterity” and “a danger to Parliament”. So he would be silent, just because his duty was to Parliament. Eliot died imprisoned in the Tower.

The reverberations from Eliot’s case lasted for the next 60 years. In July 1641 the Commons resolved that the “exhibiting of the information” against Eliot and the other members arrested with him, “being members of the Parliament for matter done in Parliament”, was breach of the privilege of Parliament. And in December 1641 the 15th article of the Grand Remonstrance (a list of grievances presented to King Charles I of England by the English Parliament and one of the chief events which precipitated the English Civil War) spoke directly of Eliot as one who “died by the cruelty and harshness of his imprisonment, which would admit of no relaxation, not withstanding the imminent danger of his life did sufficiently appear by the declaration of his position; and his release, or at least his refreshment, was sought by many humble petitions…”

In 1667, a Commons committee was nominated to review the issue of freedom of speech, and in particular the case of the arrests of Eliot and the others. The Commons declared that the Court of King’s Bench should not have accepted jurisdiction in the cases of Eliot and the others, and that the judgment was illegal and against the privileges of Parliament. The Lords then took up the cause, and the decision of the court of King’s Bench in the Eliot case was reversed  in 1668 on the basis that the judgment had dealt with the issues of the force used against the Speaker at the same time as it addressed the issue of seditious speech, when the two were distinct, and should have been dealt with separately. In other words, the charge of sedition – the attack on the King in the House, was answered by Eliot’s plea of privilege, but was mixed up with the charge of causing a riot in the House, which was a criminal offense and not protected by privilege. Given that the two charges were not treated separately, the judges should have overruled one of them (the sedition charge) since they had no jurisdiction in that matter. They did not do so, and that is why the decision was later reversed.

The judges in 2010 acknowledged as much in their ruling. Parliament, they noted, jealously guards against any infringement on or threat to its privileges. Consequently, it there was such a perceived infringement of privilege in the charges brought against the four legislators, steps would have been taken by the Speakers of both the  House of Commons and the Lords to raise the issue before the courts. This did not occur. The judges concluded:

In short, it is reasonable for us to anticipate that if the present proceedings were believed by Parliament itself to constitute a potential breach of privilege, that view would have been made known to the court. Although in our examination of the question whether parliamentary privilege arises we must make our own decision on the facts and the law, it is not without significance that on this issue of principle Parliament decided that it is not appropriate to intervene either in the context of the police investigation, or the decision of the Director of Public Prosecutions that there should be a prosecution, nor indeed in the context of the hearing before Saunders J and before us.

In other words, the courts have no jurisdiction over any words spoken in Parliament by a member of Parliament, but the jurisdiction to consider criminal offences committed in the House remains.

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