Parliamentary privilege refers to the rights and immunities that are deemed necessary for the House of Commons, as an institution, and its members, as representatives of the electorate, to fulfill their functions. It also refers to the powers possessed by the House to protect itself, its members and its procedures from undue interference so that they can carry out effectively their principal functions which are to legislate, deliberate and hold the government to account.
Parliamentary privileges were first claimed centuries ago when the English House of Commons was struggling to establish a distinct role for itself within Parliament. These privileges were necessary to protect the House of Commons and its members from the power and interference of the King and the House of Lords.
The privileges enjoyed by the House and its members are part of the Constitution and are vital to the proper functioning of Parliament. This is as true today as it was centuries ago when the English House of Commons first fought to secure these privileges and rights.
The Structure of Privilege
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. 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.
Rights and Immunities of Individual Members
The rights and immunities related to members individually can be categorized as follows:
The privilege of freedom of speech in parliamentary proceedings is generally regarded as the most important of the privileges enjoyed by members of Parliament. This right is protected by the Constitution Act, 1867, and the Parliament of Canada Act.
Freedom of speech permits members to speak freely in the conduct of a proceeding of Parliament, such as in the Chamber during a sitting or in committees during meetings, while enjoying complete immunity from prosecution or civil liability for any comment they make. In order to encourage truthful and complete disclosure without fear of reprisal or other adverse actions as a result of their testimony, this right is also extended to individuals who appear before the House or its committees. The House of Commons could not work effectively unless its members, and witnesses appearing before House committees, were able to speak and criticize without being held to account by any outside body.
The privilege of freedom from arrest in civil actions stems from the requirement by the House of Commons that the attendance and service of its members be treated as an absolute priority. The paramount importance of Parliament makes these the first priorities for its members.
The privilege of freedom from arrest extends only to civil matters; it has never applied to members of the House of Commons in respect of criminal charges or to any matter that includes an element of criminality, such as criminal contempt of court. If members are charged with infractions of the law, they must abide by the due process of law just as any other citizen must.
The House of Commons is not a sanctuary and the criminal law applies as elsewhere in Canada. There is no immunity with respect to criminal acts committed within the parliamentary precinct, except within the very narrow limit of parliamentary privilege. However, outside police forces on official business shall not enter the precinct without first obtaining permission from the Speaker, whether the House is sitting or not.
The exemption of members of Parliament from compelled attendance at court is based on the principle that attendance of a member in the House of Commons takes precedence over other obligations, and that the House has the paramount right and prior claim to the attendance and service of its members. Individuals appearing before the House or its committees also enjoy the privilege of not being summoned to appear in court at the same time.
The exemption from attending court as a witness applies in civil, criminal and military matters before the courts. However, it is regularly waived, particularly for criminal cases.
The duties of members of Parliament and senior House officials—like the Clerk of the House—are also understood as superseding any obligation on their part to serve as jurors. Since the courts have available to them a large body of potential jurors, it is generally agreed that the interests of the nation are best served by exempting parliamentarians from this civic duty.
Members must be able to fulfill their parliamentary duties without undue obstruction, interference or intimidation.
Incidents involving physical assault or physical obstruction (such as traffic barriers, security cordons and demonstrations) have been interpreted as impeding members’ access to the parliamentary precinct or blocking their free movement within the precinct.
A member may also be obstructed or interfered with in the performance of his or her parliamentary functions by non-physical means.
It is impossible to codify all incidents which might be interpreted as matters of obstruction, interference or intimidation, by either physical or non-physical means. However, some matters that have been found to be prima facie include the use of physical violence to prevent a member from accessing their office, the damaging of a member’s reputation, the usurpation of the title of member of Parliament, the intimidation of members and their staff and of witnesses before committees, and the provision of misleading information.
Collective Rights of the House
The two most important collective privileges or powers of the House of Commons can be categorized as its disciplinary powers and its exclusive right to regulate its own internal affairs.
The House of Commons may discipline anyone, including members, staff or “strangers”, whose conduct it considers to be in breach of parliamentary privilege or in contempt of Parliament. A wide range of penalties is available for dealing with such misconduct.
The disciplinary and penal powers of the House of Commons are part of the control exercised by Parliament over its affairs.
A member may be called to order, directed to cease speaking, "named" (suspended for the remainder of the day) for disregarding the authority of the Chair, suspended from the service of the House of Commons for a period of time, or expelled. They may also be summoned to appear before the bar of the House (the railing at the rear of the Chamber), where they may be admonished, censured, declared guilty of a breach of privilege or a contempt of the House, or ordered to apologize.
“Strangers” (individuals who are neither members nor officials of the House) may be removed from the visitors’ gallery or the parliamentary precinct. If found to be in contempt of the House of Commons, they may also be formally summoned to appear before the bar of the House, if the House adopts a motion to that effect.
Powers and limits continue to be defined and adapted as procedural precedents and Speakers’ rulings accumulate in response to new situations.
The House of Commons enjoys the exclusive right to control its debates and proceedings. Only the House can make and change its rules; it manages its internal affairs without outside interference, it determines its own agenda and makes its decisions free from interference. While members are ordinarily encouraged to refrain from discussing matters currently under consideration by the courts (sub judice), this restriction is self-imposed and there is no rule enforceable outside of the House itself to prohibit such comments.
Parliament has the right to ensure the attendance of its members. Unless otherwise occupied with other parliamentary business (e.g., committee meetings), members are expected to be in the Chamber whenever the House of Commons is sitting. In practice, however, considerable leniency is exercised in this regard and it is considered unacceptable to mention the presence or absence of a particular member in the Chamber. As each party (through its whip) ensures the attendance of its members, it is rarely necessary for the House as a whole to take action in this regard.
The House of Commons, as a collectivity, has the right to initiate inquiries. It can summon witnesses and compel their attendance. It can administer oaths to witnesses, take evidence and treat any misrepresentation of information as a contempt of Parliament. It can order and compel the production of documents, and it has the right to publish papers containing defamatory (or potentially defamatory) material. The rules of the House and its orders of reference empower its committees to exercise most of these collective rights.
Procedure in Matters of Privilege
Any claim that a privilege has been breached or a contempt committed must be brought to the attention of the House at the earliest opportunity. Once the one-hour written notice requirement is met and the Speaker recognizes a member on a matter of privilege, the member must briefly outline the complaint, following which the Speaker may choose to hear from other members prior to deciding if there is a prima facie case of privilege; in other words, that, at first glance, the matter appears to be a breach of privilege and warrants immediate consideration by the House. In ruling on such matters, the Speaker examines the effect the incident or event had on the Member’s ability to fulfill his or her parliamentary responsibilities.
If the Speaker finds there is a prima facie breach of privilege, the member raising the question of privilege is asked to move a motion, which is debatable, usually requesting that the matter be examined by the Standing Committee on Procedure and House Affairs. If the House agrees to the motion, the matter is referred to the committee, which may choose to call witnesses. The committee’s report of findings and recommendations is presented to the House, and a motion to concur in the report may then be moved.
Limitations of Privilege
Parliament does not possess the authority to determine the limits of its own privileges; these are part of the Constitution of Canada, and therefore the courts have the jurisdiction to determine the existence and scope of any claimed privilege. In doing so, the courts have traditionally followed the guiding principle of protecting parliamentary autonomy from the courts and the executive. The primary question asked by the courts is whether the claimed privilege is necessary for the House of Commons and its members to carry out their parliamentary functions of deliberating, legislating and holding the government to account without interference from those outside of Parliament.
Once a category of privilege is determined to exist and its scope is ascertained, the exercise of parliamentary privilege, including any decision made or action taken within the privileged category, cannot be reviewed by the courts.
Privilege Versus Contempt
An individual, whether a member or non-member, whose conduct improperly interferes with the House’s performance of its functions or with the individual performance of members in carrying out their functions can be, by definition, in contempt of Parliament. Contempt of Parliament refers to 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. While all breaches of privilege are a contempt of the House, not all instances of contempt are necessarily breaches of privilege.