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Limitations of Privilege

Limitations on Freedom of Speech

The extent of the parliamentary privilege of freedom of speech is unclear. There is no doubt that statements made in the Chamber and in committees, and subsequently published under the authority of the House in Debates or in a committee’s evidence, are privileged. However, it is not at all certain that parliamentary privilege applies to versions of such statements published elsewhere, or to notes, letters, and communications by telephone and other electronic means. Statements made to the press are not privileged and even verbatim repetition or reproduction by the Member of statements made in the House can expose the Member and the publisher of the statement to allegations of slander or libel.

The publication of libellous material has been considered by most courts to be beyond the privileges of Parliament in cases where the publication has not been part of the parliamentary process. Courts have traditionally taken the approach of relating any situation in which a Member may become involved back to the original intent of parliamentary privilege, which was to protect the right of Members of Parliament to freely debate in Parliament. Thus, even correspondence between one Member and another on a matter of public policy might not be considered to be privileged.

The House is, by tradition, intolerant of any apparent misuse by its Members of the privilege of freedom of speech. It is a powerful immunity, and Speakers have dealt decisively with Members who have appeared to be taking advantage of this privilege. Speakers have often cautioned Members that in expressing their opinions, they should not unfairly or needlessly attack the reputation of citizens or groups.

Members are also expected to refrain from discussion of matters that are sub judice (under consideration by the courts). It is accepted practice that restrictions should be placed on references by Members in the course of debate to matters awaiting judicial decision and that such matters should not be the subject of motions or questions in the House of Commons. However, no “rule” exists to prevent Parliament from discussing a matter that is sub judice. The acceptance of a restriction is a voluntary restraint on the part of the House to protect an accused person or other party to a court action or judicial inquiry from suffering any prejudicial effect from public discussion of the issue.

The rules instituted by the House, as well as the conventions that it observes in the regulation of its own affairs, also impose certain limits on the freedom of speech of its Members. Numerous terms and expressions, for example, have been recognized by Speakers as “unparliamentary”; any Member using these terms and expressions risks censure and other disciplinary measures.

Privilege and the Law

Members of Parliament are not above the law. The right to freedom from interference in the discharge of parliamentary duties does not apply to actions taken by Members outside parliamentary proceedings that could lead to criminal charges. No Member may claim immunity from arrest or imprisonment on such charges.

It is generally accepted that Members can be arrested on criminal charges even within the parliamentary precinct. However, outside police forces must first obtain permission from the Speaker before entering the parliamentary precinct in order to conduct an interrogation or to execute a warrant.

Any search authorized by warrant must be carried out in the presence of a representative of the Speaker, who also ensures that any Member who is the subject of the warrant receives a copy. The Speaker must also be notified whenever a Member will be unable to attend the sittings of the House because of his or her detention or conviction on criminal charges. The person accompanying the peace officer must insure that no documents or papers covered by parliamentary privilege are seized under the warrant.

The House of Commons enjoys the right to control its own precinct (buildings and grounds); this control applies to security and policing activities inside buildings located within the precinct. The House of Commons has delegated these tasks to the Parliamentary Protective Service. This Service falls under the responsibility of the Speakers of the House of Commons and the Senate, and it is responsible for physical security throughout the Parliamentary Precinct and the grounds of Parliament Hill.

The Speaker must always ensure that the privileges of the House and its Members are respected, while at the same time avoiding allegations that Parliament is obstructing justice. As is the case in all matters of privilege, when the Speaker decides that a prima facie case of privilege exists, the final decision in the matter is made by the House itself.

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