House of Commons Procedure and Practice
Edited by Robert Marleau and Camille Montpetit

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3. Privileges and Immunities

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[1]

R.S.C. 1985, Appendix II, No. 5, s. 18.

[2]

In fact, this was reflected in the wording of Standing Order 1, which until 1986 stated with minor variations over time: “In all cases not provided for hereafter or by sessional or other orders, the usages and customs of the House of Commons of the United Kingdom of Great Britain and Northern Ireland as in force at the time shall be followed so far as they may be applicable to this House.”

[3]

Black’s Law Dictionary, 6^th ed., 1990, p. 1197, defines privilege as, “A particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantages of other citizens. An exceptional or extraordinary power or exemption. A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others.”

[4]

Odgers, 8^th ed., pp. 27-8.

[5]

May, 22^nd ed., edited by Sir Donald Limon and W.R. McKay, London: Butterworths, 1997.

[6]

Maingot, 2^nd ed., Ottawa: House of Commons and McGill-Queen’s University Press, 1997.

[7]

May, 22^nd ed., p. 65. For other definitions of privilege, see Maingot, 2^nd ed., pp. 12-3.

[8]

This point was forcefully made by Sir Barnett Cocks, Clerk of the House of Commons of the United Kingdom, in a memorandum to the Select Committee on Parliamentary Privilege. United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, Minutes of Evidence, November 23, 1966, p. 1.

[9]

United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, Minutes of Evidence, November 23, 1966, p. 1.

[10]

May, 20^th ed., pp. 70-1.

[11]

See Griffith and Ryle, pp. 85-6.

[12]

With the possible exception of the relinquishment of its power to try controverted elections, the Canadian House of Commons has never formally renounced any of the basic rights and immunities it claims for itself and its Members. See Bourinot, 4^th ed., pp. 122-7; Maingot, 2^nd ed., pp. 187-90; Dominion Controverted Elections Act, 1874, S.C. 1874, c. 10. See also Chapter 4, “The House of Commons and Its Members”. In British practice, the authors of May note that since the eighteenth century a number of privileges have been surrendered or modified (May, 22^nd ed., pp. 81-2).

[13]

Maingot, 2^nd ed., p. 20. An example of the extension of privilege was the adoption by the British Parliament of the Parliamentary Papers Act, 1840 and the enactment by the Canadian Parliament of virtually the same provisions in 1868. The British legislation followed the famous Stockdale v. Hansard case of 1837. The Act of 1840 provided that the publication of reports, papers, votes or proceedings of either House of Parliament by order was essential to the functions and duties of Parliament and thus privileged. The same provisions were adopted in Canada in 1868 as An Act to define the privileges, immunities and powers of the Senate and House of Commons, and to give summary protection to persons employed in the publication of Parliamentary Papers (S.C. 1868, c. 23). This Act is now sections 7, 8 and 9 of the Parliament of Canada Act (R.S.C., 1985, c. P-1) and corresponds exactly to sections 1, 2 and 3 of the Parliamentary Papers Act, 1840. For a full discussion of the case and its consequences, see Maingot, 2^nd ed., pp. 63-75, and May, 22^nd ed., pp. 86-8.

[14]

The advent of the broadcasting of the proceedings of the House illustrates such an application. In the Donahoe case referred to below, the Supreme Court affirmed that the Nova Scotia House of Assembly, in exercising its rights to control its internal proceedings and to exclude strangers from the House and its precinct, could exclude cameras from its galleries.

[15]

Charles H. McIlwain, The High Court of Parliament and its Supremacy, New Haven: Yale University Press, 1910, reprinted 1962; and Carl Wittke, The History of English Parliamentary Privilege, Ohio State University, 1921.

[16]

Constitution Act, 1867, R.S.C. 1985, Appendix II, No. 5, s. 18; Parliament of Canada Act, R.S.C. 1985, c. P-1, ss. 4-5.

[17]

See F.W. Maitland, The Constitutional History of England, Cambridge: Cambridge University Press, 1908; and A.F. Pollard, The Evolution of Parliament, 2^nd ed., London: Longmans Green, 1926.

[18]

It has been argued that Sir Thomas More did not consider his petition a petition of right, as free speech was not yet a formal privilege. “Parliament is the king’s court; he may be displeased with what members say, and as discipline is his to maintain, he may punish the too bold or too rash for their speeches… More wants liberty of speech, whereas his predecessors wished to avoid punishment, thereby tacitly renouncing the liberty which More claims.” John Neale, “The Commons Privilege of Free Speech in Parliament”, Historical Studies of the English Parliament, Cambridge: Cambridge University Press, 1970, Vol. 2, pp. 157-8.

[19]

This ceremony is also part of Canadian practice. When the newly elected Speaker is presented to the Governor General prior to the Speech from the Throne, the Speaker claims on behalf of the House “ … alltheir undoubted rights and privileges, especially that they may have freedom of speech in their debates, access to Your Excellency’s person at all reasonable times, and that their proceedings may receive from Your Excellency the most favourable construction”. See, for example, Senate Debates, September 23, 1997, p. 3. See also Chapter 8, “The Parliamentary Cycle”.

[20]

May, 22^nd ed., p. 70.

[21]

Godfrey Davies, The Early Stuarts 1603-1660, Oxford: Clarendon Press, 1938, pp. 26-7.

[22]

May, 22^nd ed., pp. 70-1.

[23]

May, 22^nd ed., p. 72.

[24]

Maitland, pp. 322-3; May, 22^nd ed., p. 75.

[25]

May, 22^nd ed., p. 81.

[26]

May, 22^nd ed., p. 81.

[27]

May, 22^nd ed., pp. 160-2.

[28]

May, 22^nd ed., pp. 161-3. For the importance of this case in Canada, see Maingot, 2^nd ed., pp. 63-74.

[29]

May, 22^nd ed., p. 162.

[30]

The results of this case have been applied to Canada through the Parliament of Canada Act. The right of the courts to take notice of the privilege of Parliament is declared in section 5: “The privileges, immunities and powers held, enjoyed and exercised in accordance with section 4 are part of the general and public law of Canada and it is not necessary to plead them but they shall, in all courts in Canada, and by and before all judges, be taken notice of judicially” (Parliament of Canada Act, R.S.C. 1985, c. P-1, s. 5). At the same time, sections 7 through 9 grant statutory protection to any person who has printed a publication by or under the authority of the Senate or the House of Commons.

[31]

See John Hatsell, Precedents of Proceedings in the House of Commons, 4 vols., London, 1776-96, reprinted 1971; S.A. Ferrall, An Exposition of the Law of Parliament, as It Relates to the Power and Privileges of the Commons’ House, London: Sweet, 1837; and Thomas Erskine May, A Treatise upon the Law, Privileges, Proceedings and Usage of Parliament, 1^st ed., London: 1844, reprinted 1971, now in its 22^nd edition.

[32]

This edition concluded that any “act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results may be treated as a contempt even though there is no precedent of the offence” (May, 14^th ed., p. 108).

[33]

United Kingdom, House of Commons, Select Committee on Parliamentary Privilege, 1967, Report, (reprinted 1971), p. vi, para. 9. The report laid down six major criticisms from the public of the way privilege was used. These were:

(i): Members are too sensitive to criticism and invoke too readily the penal jurisdiction of the House; they do so not merely in respect of matters which are too trivial to be worthy of that jurisdiction, but also on occasions when other remedies (e.g., in the courts or by way of complaint to the Press Council) are available to them as citizens;
(ii): the procedure for invoking the penal jurisdiction encourages its use of the purposes of publicity, is inequitable to persons whose conduct is under scrutiny and fails to accord with the ordinary principles of natural justice;
(iii): the scope of Parliament’s penal jurisdiction is too wide, too uncertain and too dependent upon precedent; the Press and the public are wrongly inhibited from legitimate criticism of Parliamentary institutions and of Members’ conduct by fear that the penal jurisdiction may be invoked against them;
(iv): there is too great uncertainty about the defences which may legitimately be raised by those who are subjected to the penal jurisdiction; in particular it is a matter of doubt whether a person who has made truthful criticisms should be allowed to testify to their truth; this should be an undoubted right;
(v): it is contrary to principle that Parliament should be "both prosecutor and judge"; its penal powers should be transferred to some other tribunal;
(vi): the rules which govern the reporting of debates in the House and Standing Committee are obsolete and disregarded; those which govern the reporting of proceedings in Select Committee are obsolete, anomalous, uncertain and contrary to the public interest. (Report, pp. vi-vii, para.10.)

[34]

Report, p. vii, para. 12. It is interesting to note that the use of the term “privilege” remains an issue in the British Parliament. In the parliamentary session of 1997-98, a Joint Committee on Parliamentary Privilege was struck to review parliamentary privilege. One of the matters being investigated was whether or not there existed a more modern and better phrase to replace “parliamentary privilege”. See United Kingdom, House of Commons, Debates, July 30, 1997, col. 423.

[35]

Report, pp. xiii-xiv, para. 38.

[36]

Report, p. viii, para. 15.

[37]

May, 14^th ed., pp. 356-7. This practice has become the method by which the Canadian House of Commons treats claims to breaches of privilege following the incorporation of this procedure into the fourth edition of Beauchesne’s Parliamentary Rules and Forms in 1958 (pp. 94-6).

[38]

United Kingdom, House of Commons, Select Committee of Privileges, 1977, Third Report, pp. vi-vii, para. 9. For details on the way privilege complaints are raised and dealt with in the British House, see May, 22^nd ed., pp. 144-52, and Griffith and Ryle, pp. 95-8.

[39]