Procedure for Dealing with Matters of Privilege
Any claim that privilege has been infringed or a contempt committed is raised in the House by means of a “question of privilege”. Maingot explains:
The purpose of raising matters of “privilege” in either House of Parliament is to maintain the respect and credibility due to and required of each House in respect of these privileges, to uphold its powers, and to enforce the enjoyment of the privileges of its Members. A genuine question of privilege is therefore a serious matter not to be reckoned with lightly and accordingly ought to be rare, and thus rarely raised in the House of Commons.356
The procedure with respect to raising a question of privilege is governed by both the Standing Orders and practice. A question of privilege is a matter for the House to determine. The decision of the House on a question of privilege, like every other matter which the House has to decide, can be elicited only by a question put by the Speaker and resolved either in the affirmative or in the negative, and this question is necessarily founded on a motion made by a Member.
This section will describe the manner in which such matters are dealt with by the House (see Figure 3.1, “The Path of a Question of Privilege”).
Manner of Raising Matters of Privilege
Great importance is attached to matters involving privilege. A Member wishing to raise a question of privilege in the House must first convince the Speaker that his or her concern is prima facie (on the first impression or at first glance) a question of privilege. The function of the Speaker is limited to deciding whether the matter is of such a character as to entitle the Member who has raised the question to move a motion which will have priority over Orders of the Day; that is, in the Speaker’s opinion, there is a prima facie question of privilege. If there is, the House must take the matter into immediate consideration.357 Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.
Matters relating to privilege may also arise in standing, special, legislative and joint committees, and in a Committee of the Whole House. However, the procedures for dealing with such situations in committee differ from the general procedure followed in the House.
If a Member believes that a breach of privilege or a contempt has occurred, but does not feel that the matter should have priority in debate, the Member may follow an alternate route for bringing the matter before the House. He or she may place a written notice of a motion on the Notice Paper.
In the House
A complaint on a matter of privilege must satisfy two conditions before it can be accorded precedence over the Orders of the Day. First, the Speaker must be convinced that a prima facie case of breach of privilege has been made and, second, the matter must be raised at the earliest opportunity. If the Speaker feels that these two conditions have been met, the Speaker informs the House that, in his or her opinion, the matter is entitled to take precedence over the notices of motions and Orders of the Day standing on the Order Paper. The Speaker’s ruling does not extend to deciding whether a breach of privilege has in fact been committed. This is a matter which can be decided only by the House itself.
Time of Raising and Notice Requirements
A question of privilege arising out of the proceedings during the course of a sitting may be raised immediately without notice. However, Speakers have disallowed questions of privilege during Statements by Members, Question Period,358 the process of Royal Assent,359 the Adjournment Proceedings,360 and the taking of recorded divisions.361 In such circumstances, with the exception of the Adjournment Proceedings, the question of privilege may be raised at the end of the time provided for such business on that day.362 A matter of privilege related to the Adjournment Proceedings may be raised at the next sitting, following the proper notification to the Speaker.
A Member wishing to raise a question of privilege which does not arise out of the proceedings during the course of a sitting must give notice before bringing the question to the attention of the House. The Member must provide a written statement to the Speaker at least one hour before raising the question of privilege in the House.363 If such notice is not given, the Speaker will not allow the Member to proceed.364 Speakers have also ruled that oral notice is neither necessary nor sufficient.365 Questions of privilege for which written notice has been given are raised at specific times, namely on the opening of the sitting, following Routine Proceedings but before Orders of the Day, and immediately after Question Period. They are occasionally raised during a debate.
The notice submitted to the Speaker should contain four elements:
- It should indicate that the Member is writing to give notice of his or her intention to raise a question of privilege.
- It should state that the matter is being raised at the earliest opportunity.
- It should indicate the substance of the matter that the Member proposes to raise by way of a question of privilege.366
- It should include the text of the motion which the Member must be ready to propose to the House should the Speaker rule that the matter is a prima facie case of privilege.
By providing the Chair with a context for the question of privilege and a proposed remedy for the problem, the Member assists the Speaker in dealing with the issue in an informed and expeditious manner.367 The inclusion of the text of the proposed motion allows the Speaker the opportunity to suggest changes to avoid any procedural difficulties in the wording; otherwise, the Member might be prevented or delayed from moving the motion should the Speaker rule the matter a prima facie question of privilege.368
Raising at the First Opportunity
The matter of privilege to be raised in the House must have recently occurred and must call for the immediate action of the House. Therefore, the Member must satisfy the Speaker that he or she is bringing the matter to the attention of the House as soon as practicable after becoming aware of the situation.369 When a Member has not fulfilled this important requirement, the Speaker has ruled that the matter is not a prima facie question of privilege.370
Should the Speaker receive more than one notice of a question of privilege, or should more than one Member seek the floor on a specific question of privilege, the Speaker will determine the order in which the Members will be recognized.371 Generally, the Speaker will recognize Members in the order in which the notices were received, or recognize the first Member who catches the Speaker’s eye. If more than one matter is being raised, the Speaker will hear Members on one question of privilege at a time.
Initial Discussion of Matter Raised
A Member recognized on a question of privilege is expected to be brief and concise in explaining the event which has given rise to the question of privilege and the reasons that consideration of the event complained of should be given precedence over other House business.372 If the question of privilege casts doubts on a Member’s conduct, election or right to sit, the Member raising the matter must make a specific complaint against that Member.373 Generally, the Member tries to provide the Chair with relevant references to the Standing Orders, precedents and citations from procedural authorities and may seek the consent of the House to table related documents.374 In addition, the Member should demonstrate that the matter is being brought to the House’s attention at the first opportunity. Finally, the Member should state what corrective House action is being sought by way of remedy and indicate that, should the Speaker rule the matter a prima facie question of privilege, he or she would be prepared to move the appropriate motion.
The Speaker will hear the Member and may permit others who are directly implicated in the matter to intervene. In instances where more than one Member is involved in a question of privilege, the Speaker may postpone discussion until all concerned Members can be present in the House.375 The Speaker also has the discretion to seek the advice of other Members to help him or her in determining whether there is prima facie a matter of privilege involved which would warrant giving the matter priority of consideration over other House business. When satisfied, the Speaker will terminate the discussion.376
Decision of the Speaker
The decision as to the existence of a prima facie question of privilege belongs exclusively to the Speaker, who may take the matter under advisement to permit a considered judgement in all but the clearest of cases. In his appearance before the Standing Committee on Procedure and House Affairs in 2002, the Clerk of the House described the role of the Speaker in the consideration of a question of privilege as follows:
The Speaker’s role ought to be explained, and it is that the issue put before the Speaker is not a finding of fact, it is simply whether on first impression the issue that is before the House warrants priority consideration over all other matters, all other orders of the day that are before the House.377
When a question of privilege has required an immediate decision of the Chair, the Speaker has, without objection, suspended the sitting for a short time to deliberate on the matter, and has then returned to the House with a ruling.378
In deliberating upon a question of privilege, the Chair will take into account the extent to which the matter complained of infringed upon any Member’s ability to perform his or her parliamentary functions or appears to be a contempt against the dignity of Parliament. If the question of privilege involves a disagreement between two (or more) Members as to facts, the Speaker typically rules that such a dispute does not prevent Members from fulfilling their parliamentary functions, nor does such a disagreement breach the collective privileges of the House.379 If the Speaker is satisfied that the necessary conditions have been met and finds a prima facie breach of privilege or contempt, the decision is announced to the House. As soon as the Chair has apprised the House that a prima facie case of privilege has been found, the Member raising the matter is immediately allowed to move a motion.
In the vast majority of cases, the Chair decides that a prima facie case of privilege has not been made. In informing the House of such a decision, the Chair customarily explains (often in some detail) the factors which resulted in this finding. However, in such cases, the Chair will often acknowledge the existence of a genuine grievance and may recommend avenues of redress.380 If the Speaker rules that there is not a prima facie question of privilege, the matter ends there. However, if in the future additional information comes to light, the Member who raised the question of privilege or any other Member may raise the matter again.381
Debate on a Privilege Motion
After the Speaker has decided that a matter is a prima facie question of privilege, it is left to the Member raising the matter to move the appropriate motion;382 like all motions, it must be seconded. Occasionally, the Member will propose a motion at the end of his or her arguments when initially raising the question of privilege. Under these circumstances, the Speaker may advise the Member on the proper form of the motion.383 In cases where the motion is not known in advance, the Speaker may provide assistance to the Member if the terms of the proposed motion are substantially different from the matter originally raised.384 The Speaker would be reluctant to allow a matter as important as a privilege motion to fail on the ground of improper form.385 The terms of the motion have generally provided that the matter be referred to committee for study or have been amended to that effect.386
Once the motion is properly moved, seconded, and proposed to the House, it is subject to all the procedures and practices relating to debate on a substantive motion. The speeches are limited to 20 minutes, followed by a 10-minute questions and comments period.387 Only the Prime Minister and the Leader of the Opposition are permitted unlimited speaking time (followed by a 10-minute questions and comments period). Members are subject to the rules of relevance and repetition and the Speaker must ensure that the debate is focused on the terms of the motion.
When the motion being considered touches on the conduct of a Member, he or she may make a statement in explanation and then should withdraw from the Chamber.388 The Chair has interpreted “conduct” to refer to actions which, if proven, could result in the expulsion of a Member from the House on the grounds that he or she is unfit for membership, as opposed to actions which could lead to a Member being “named” by the Speaker.389 However, it is not always clear that Members whose conduct was under consideration actually withdrew from the Chamber.390 In some circumstances, a Member may be allowed to return to the Chamber in order to clarify or explain particular matters.
A privilege motion once under debate has priority over all Orders of the Day including Government Orders and Private Members’ Business. However, the debate does not interfere with Routine Proceedings, Statements by Members, Question Period, Royal Assent, deferred recorded divisions or the adjournment of the House.391 If a privilege motion is still before the House when the House is scheduled to consider Private Members’ Business, Private Members’ Hour is cancelled.392 Should debate on a privilege motion not be completed by the ordinary hour of daily adjournment, this item will take priority over all other Orders of the Day at the next sitting. It will appear on the Order Paper under Orders of the Day before all other orders.393
Once seized of the privilege motion, the House may amend it, even if the amendment results in the text of the motion differing from the one originally accepted by the Speaker and proposed to the House.394
During the proceedings on a privilege motion, motions to adjourn the debate,395 to adjourn the House, or to proceed to Orders of the Day are in order, as are motions for the previous question (“that this question be now put”), for the extension of the sitting, or “that a Member be now heard”. If a motion to adjourn the debate or the House is adopted, debate on the privilege motion resumes the following sitting day.396 However, should the previous question be negatived, or a motion to proceed to Orders of the Day be adopted, then the privilege motion is superseded and dropped from the Order Paper.397 If a motion to proceed to the Orders of the Day is adopted, the initial question of privilege may be raised again. The Speaker ruled that the initial question could again be found a prima facie question of privilege.398 Closure may also be moved by a Minister on the privilege motion.399
When debate has concluded on the motion, the Speaker will put the question to the House.400 If the motion is adopted, then the terms of the motion are implemented. If the motion is defeated, the proceedings are ended.401
In Standing, Special, Legislative and Joint Committees
Since the House has not given its committees the power to punish any misconduct, breach of privilege, or contempt directly, committees cannot decide such matters; they can only report them to the House. Only the House can decide if an offence has been committed.402 Speakers have consistently ruled that, except in the most extreme situations, they will hear questions of privilege arising from committee proceedings only upon presentation of a report from the committee which deals directly with the matter and not as a question of privilege raised by an individual Member.403 As Speaker Milliken indicated in response to a question of privilege raised in 2003 concerning the disclosure of a confidential draft committee report: “In the absence of a report from the committee on such an issue, it is virtually impossible for the Chair to make any judgement as to the prima facie occurrence of a breach of privilege with regard to such charges”.404
Most matters which have been reported by committees have concerned the behaviour of Members, witnesses or the public, or the disregard of a committee order. Committees have reported to the House on the refusal of witnesses to appear when summoned;405 the refusal of witnesses to answer questions;406 the refusal of witnesses to provide papers or records;407 the refusal of individuals to obey orders of a committee;408 the divulging of events during an in camera meeting;409 the disclosure of draft reports;410 and witnesses lying to a committee.411 Committees could report on instances of contempt, such as behaviour showing disrespect for the authority or activities of a committee, the intimidation of members or witnesses, or witnesses refusing to be sworn in.
Unlike the Speaker, the Chair of a committee does not have the power to censure disorder or decide questions of privilege. Should a Member wish to raise a question of privilege in committee, or should some event occur in committee which appears to be a breach of privilege or contempt, the Chair of the committee will recognize the Member and hear the question of privilege, or, in the case of some incident, suggest that the committee deal with the matter. The Chair, however, has no authority to rule that a breach of privilege or contempt has occurred.412 The role of the Chair in such instances is to determine whether the matter raised does in fact touch on privilege and is not a point of order, a grievance or a matter of debate. If the Chair is of the opinion that the Member’s interjection deals with a point of order, a grievance or a matter of debate, or that the incident is within the powers of the committee to deal with, the Chair will rule accordingly giving reasons. The committee cannot then consider the matter further as a question of privilege. Should a Member disagree with the Chair’s decision, the Member can appeal the decision to the committee (i.e., move a motion “Shall the decision of the Chair be sustained?”). The committee may sustain or overturn the Chair’s decision.
If, in the opinion of the Chair, the issue raised relates to privilege (or if an appeal should overturn a Chair’s decision that it does not touch on privilege), the committee can proceed to the consideration of a report on the matter to the House. The Chair will entertain a motion which will form the text of the report. It should clearly describe the situation, summarize the events, name any individuals involved, indicate that privilege may be involved or that a contempt may have occurred, and request the House to take some action. The motion is debatable and amendable, and will have priority of consideration in the committee.413 If the committee decides that the matter should be reported to the House, it will adopt the report which will be presented to the House at the appropriate time under the rubric “Presenting Reports from Committees” during Routine Proceedings.
Once the report has been presented, the House is formally seized of the matter.414 After having given the appropriate notice,415 any Member may then raise the matter as a question of privilege.416 The Speaker will hear the question of privilege and may hear other Members on the matter, before ruling on the prima facie nature of the question of privilege. As Speaker Fraser noted in a ruling, “… the Chair is not judging the issue. Only the House itself can do that. The Chair simply decides on the basis of the evidence presented whether the matter is one which should take priority over other business”.417 Should the Speaker rule the matter to be a prima facie breach of privilege, the next step would be for the Member who raised the question of privilege to propose a motion asking the House to take some action.418 Should the Speaker rule that there is no prima facie question of privilege, no priority would be given to the matter, and no motion would be moved.
If a committee presents a report advising the House of a potential breach of privilege but no Member raises a question of privilege following the presentation of the report, the Speaker cannot deal with the matter.419 As with any committee report, any Member may still seek concurrence in the report by following the normal procedures during Routine Proceedings.420
In a Committee of the Whole
Given that the House infrequently sits as a Committee of the Whole, and that when it does the proceedings are typically completed in a matter of minutes, questions of privilege are not often raised today in a Committee of the Whole.421 The practice regarding the raising of questions of privilege in a Committee of the Whole is virtually identical to that for standing, special, or legislative committees.
When the House sits as a Committee of the Whole, a Member may raise a question of privilege only on matters which have occurred in the Committee and which are relevant to its proceedings. A Member may not raise as a question of privilege matters affecting the privileges of the House in general or something which has occurred outside the Chamber. If a Member wishes to raise a question of privilege about something that does not concern the Committee, he or she may move a motion that the Committee rise and report progress in order that the Speaker may hear the question of privilege.422 If the motion is adopted, the Chair will rise and report to the Speaker, who will then hear the Member.423
If a Member rises on a question of privilege which is relevant to the proceedings in a Committee of the Whole, the Chair will hear the question of privilege. As in a standing, special, or legislative committee, the role of the Chair is to decide whether the matter raised does in fact relate to privilege.424 Again, that decision may be appealed. However, such an appeal is not to the Committee of the Whole, but rather to the Speaker.425 If the matter raised by the Member touches on privilege and relates to events in the Committee of the Whole, the Chair will entertain a motion that the events be reported to the House. The motion is debatable and amendable, and has priority of consideration in the Committee. If the Committee agrees to report the matter, the Chair rises, the Speaker takes the chair and receives the report.426 The text of the report to the House should summarize the events, indicate that privilege may be involved, and include a request for the Committee to sit again to consider its business.
Only after the Chair has reported to the House may the matter be brought properly before the House for the Speaker to deal with it. A Member should rise on a question of privilege and put the matter before the Speaker, who may allow interventions on the matter. When satisfied, the Speaker will rule whether or not it is a prima facie question of privilege. If a prima facie case of privilege is found, the Member may move a motion in the usual manner dealing with the matter. If the Speaker finds that there is no prima facie question of privilege, then the House will resume its regular business. Under Orders of the Day, the House may sit again as a Committee of the Whole to resume consideration of the matter originally before it, or the House may proceed to another order.
The Speaker will entertain a question of privilege in regard to a matter that occurred in a Committee of the Whole only if the matter has been dealt with first in the Committee of the Whole and reported accordingly to the House.427
By Way of Written Notice on the Notice Paper
If a Member believes that a breach of privilege or a contempt has occurred, but does not feel that the matter should have priority in debate, in a procedure very rarely resorted to, the Member may place a written notice of motion on the Notice Paper. In this instance, at the conclusion of the 48 hours’ notice period, the motion is placed under the appropriate heading on the Order Paper. When sponsored by a Minister, the motion may be considered by the House, at the expiry of the 48 hours’ notice period, when called under Government Orders.428 When sponsored by a private Member, following the 48 hours’ notice period, the motion will be placed on the Order Paper under the list of Private Members’ Business items outside the Order of Precedence.429
However, following the 48 hours’ notice period, the Member in whose name the item stands may decide to seek priority in debate for the motion (e.g., if new information were to come to light). The Member must then seek to convince the Speaker that the matter raised in the motion should be considered a prima facie question of privilege. In such a case, the Member would be required to notify the Speaker in writing at least one hour before raising the matter in the House.430
Historically, there have been a number of occasions when Members have chosen to give written notice of their motions of privilege, particularly in cases where the matter stemmed from events occurring outside the House. In 1874, for instance, a motion for which written notice had been given, and which was not likely to arise on a particular day, was taken up before its turn, displacing scheduled business.431 A similar case in 1886 saw a motion taken up before its turn at the request of the Member attacked in the motion.432 Yet, it was not always so easy and, in two rare cases in 1892, motions for which written notice had been given were refused precedence as the Speaker judged them not to contain true matters of privilege.433 Furthermore, in cases involving a motion amounting to a charge against a Member, etiquette required that the sponsor of such a motion privately advise the Member concerned when the motion would be moved.434
These practices endured into the 20th century, and oral and written notices, although not required, were both common when questions of privilege were raised. In 1911, for example, a matter of privilege was raised following oral notice,435 while in 1932, a motion regarding charges which had been made against the Prime Minister was taken up after written notice had been given.436 There were other cases where matters were raised without any notice.437
Eventually, an attempt was made to convince the Speaker to take a notice of motion out of sequence because it appeared to involve privilege. In June 1959, the Leader of the Opposition gave notice of a motion in which he questioned the conduct of a government Member. The Speaker, who had not ruled on whether or not it should be given precedence, sought the advice of the House.438 After a lengthy discussion on this point, the Speaker was able to arrive at the conclusion, in keeping with the recently established criteria guiding Speakers on questions of privilege that, prima facie, no matter of privilege appeared to exist and that, therefore, he would not allow other business to be set aside to debate the motion.439 As a result, the motion stayed on the Order Paper and was never reached.
A written notice of motion, dealing with an alleged contempt of the House, was placed on the Notice Paper on February 27, 1996. The text of the motion, sponsored by Don Boudria (Glengarry–Prescott–Russell), accused Ray Speaker (Lethbridge) of attempting to put pressure on the Speaker to recognize the Reform Party as the Official Opposition. The motion further declared that this constituted a contempt of Parliament and ordered that the Member for Lethbridge be admonished at the Bar of the House by the Chair. After the required notice period, the motion was placed on the Order Paper under Private Members’ Business440 and was subsequently chosen for debate after a random draw on March 4, 1996. In accordance with the Standing Orders governing Private Members’ Business in place at that time, the motion was designated non-votable.
The Member for Lethbridge subsequently raised a point of order in the House to question whether a motion which was not votable could be used to make a charge against another Member.441 On June 18, 1996, Speaker Parent ruled that the motion was procedurally acceptable under the rules for Private Members’ Business. He stated:
The hon. Member is quite correct in his assertion that the conduct of a member can be brought before the House only by way of a specific charge contained in a substantive motion. Often, in such cases, members will choose to raise the matter on the floor of the House without giving the required 48-hour or two-week notice and ask the Speaker to give it priority or right of way for immediate consideration by the House, thus putting all other regular House business aside … In the current circumstances, I find that the rules for Private Members’ Business have been followed and that there is therefore no point of order.442
The Member for Lethbridge immediately raised a question of privilege, which would have provided a way of resolving the charge made against him by permitting the matter to come to a vote. He argued that allowing the charge to remain unresolved would seriously affect his reputation.443 In ruling that the matter was not a prima facie breach of privilege, the Speaker reminded the House that motions regarding the conduct of Members had in the past been placed on the Order Paper under Private Members’ Business without ever being voted on by the House.444
On March 25, 2011, the House debated a supply motion sponsored by Michael Ignatieff (Leader of the Opposition) which declared that the government was in contempt of Parliament due to its failure to produce documents ordered by the Standing Committee on Finance, and that, consequently, the House had lost confidence in the government. After the motion was agreed to, the House adjourned.445 The following day, Parliament was dissolved, and an election was called.
Committee Consideration of Privilege Matter
If the terms of the privilege motion stipulate that the matter be referred to the Standing Committee on Procedure and House Affairs, then the adoption of the motion by the House constitutes an order of reference to the Committee. The Standing Orders empower the Committee to enquire into all such matters referred to it and to send for persons, papers and records. While the Committee is free to determine its own agenda, both the Committee and the House take such enquiries very seriously. The Committee does not have the power to punish. This power rests with the House. The Committee may only study the matter and report to the House. The conduct of the Committee in investigating a privilege matter is the same as for other business considered by any committee of the House, though the nature of the order of reference would encourage the Committee to proceed cautiously.446
The form of a report of the Standing Committee on Procedure and House Affairs on a matter of privilege is no different from a report of any other committee of the House on a substantive matter. It may or may not contain recommendations for action or punishment447 and, if the Committee so orders, it may also have appended to it dissenting or supplementary opinions or recommendations.448 Frequently, the report itself may be sufficient to put an end to the matter and no further action is required by the House.449 A report, on the other hand, may recommend that the Speaker take some action or that some administrative action be taken.450 Just as with most committee reports, following appropriate notice, a Member may move a motion for concurrence which the House may debate.451 If the report is concurred in, the Committee’s recommendations may be considered an order of the House to take a specific action or to implement a measure.
Matters of Personal Privilege
The Chair may occasionally grant leave to a Member to explain a matter of a personal nature although there is no question before the House.452 This is commonly referred to by Members as “a point of personal privilege” and is an indulgence granted by the Chair. There is no connection to a question of privilege and, as Speaker Fraser once noted, “[t]here is no legal authority, procedural or otherwise, historic or precedential, that allows this”.453 Before rising to speak in the House, the Member must first give the Speaker written notice of the matter; oral notice may also be given privately to the Speaker.
Such occasions are not meant to be used for general debate, and Members have been cautioned to confine their remarks to the point they wish to make.454 The Speaker has also stated that, as these are generally personal statements and not questions of privilege, no other Members will be recognized to speak on the matter.455 Members have used this procedure to make personal explanations,456 to correct errors made in debate,457 to apologize to the House,458 to thank the House or acknowledge something done for the Member by the House,459 to announce a change in party affiliation,460 to announce a resignation,461 or for some other reason.462