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Procedure in Matters of Privilege

In the House of Commons

Any claim that privilege has been infringed or that contempt has been committed is raised in the House of Commons by means of a “question of privilege”. The procedure for raising a question of privilege is governed by both the Standing Orders and practice.

Any Member wishing to raise a question of privilege must seek the attention of the Speaker at the earliest opportunity after the alleged breach of privilege or contempt occurs while respecting the fact that there are some restrictions on when a Member may rise on a question of privilege. If events outside the House of Commons give rise to the allegation, the Member raising the question must first give the Speaker one hour’s written notice.

Key Elements Required for a Question of Privilege

There are four key elements for Members to include when they are raising a question of privilege in the House of Commons:

Speaker’s Role

After hearing from a Member rising on a question of privilege, the Speaker may permit input from other Members, particularly those who have some involvement in the matter. The duty of the Speaker is to determine whether the matter raised is a prima facie case of privilege (i.e., whether it appears at first glance to merit serious consideration). He or she may rule immediately or may take the matter under advisement in order to study it further and come back to the House with a decision or ruling.

When considering his or her decision, the Speaker will look for clear indications that the Member raising the question was hindered, obstructed or otherwise interfered with in performing his or her parliamentary duties, or that contempt was shown for the authority and dignity of Parliament. While the Speaker plays this key screening role in the process, only the House can take action in a matter of privilege through the adoption of a motion (or motions).

House of Commons Consideration of a Privilege Motion

Once the Speaker rules that there is indeed a prima facie case of privilege, the House of Commons immediately considers a motion from the Member who raised the matter. This motion (which may be debated and amended) usually seeks to refer the matter to the Standing Committee on Procedure and House Affairs for further study. It is given precedence over all Orders of the Day (but it does not displace Routine Proceedings, Statements by Members, Question Period, Royal Assent, or the adjournment of the House), and debate on it concludes with a vote on the motion. If the motion is defeated, no further action is taken.

If the motion is adopted, its terms are implemented—usually the matter is referred to the Standing Committee on Procedure and House Affairs, which is entitled to study it in detail. The Committee prepares and adopts a report of its findings and recommendations. This report is then presented to the House. A motion to concur in the report may subsequently be adopted by the House of Commons, thereby endorsing the Committee’s conclusions and recommendations. This process may result in an order of the House that a specific action be taken or measure implemented.

In Committees

Committees do not have the authority to decide that a breach of privilege or a contempt of the House of Commons has occurred, nor do they have the power to punish such misconduct. They may only report it to the House.

If a Member raises a question of privilege in committee, the Chair must first decide whether the matter raised is a point of order, a grievance, or a matter of debate since the committee cannot consider it as a question of privilege. If the Chair decides that the issue relates to privilege, the committee may then consider reporting to the House of Commons on the matter.

If the committee presents a report on the issue, doing so will formally bring it before the House and allow any Member, after giving appropriate notice, to raise the matter as a question of privilege.

The Speaker will then rule on whether the matter is a prima facie case of privilege and, if so, the matter is accorded priority over most other business of the House. The Member who raised the question of privilege may move that the House order some specific action. If the Speaker finds that there is no prima facie question of privilege, concurrence in the committee report may still be moved during Routine Proceedings.

A similar procedure exists for a Committee of the Whole (when the House of Commons is sitting as a committee in the Chamber), which may decide to report a question of privilege to the House as soon as the Committee rises and the Speaker returns to the Chair.

Personal Privilege

A point of personal privilege has to do with a Member’s rights as an individual. It is not a matter of parliamentary privilege, but rather an opportunity, granted by the Speaker, for the Member to speak in the House of Commons, and no motion is brought before the House. It is up to the Speaker whether or not to recognize a Member on a point of personal privilege.

Members wishing to offer an explanation or an apology, or to announce a change in party affiliation or a resignation, will often do so by rising on a point of personal privilege.

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