3. Privileges and Immunities

The collective privileges of the House of Commons and the individual privileges of its Members are subject to limitations. The courts have certain powers to delineate the rights claimed by Parliament, and statutory law has been used in some Parliaments to codify these rights, immunities and privileges. This section will examine the role of the courts in limiting privilege, the impact of codifying privilege into statutory law, and the relationship between privilege and the Constitution.

It is frequently stated that Parliament is the highest court in the land. This is true in that it is the high court of public opinion where the concerns of the electorate are voiced by their chosen representatives. It is also true that, in the medieval period, the English Parliament had a judicial role, where Parliament was seen primarily as a court of justice, the High Court of Parliament, a court of last resort consisting of the King and the lords temporal. ^[243]  This role has all but disappeared in the United Kingdom. ^[244]  The Canadian Parliament has never had a judicial role. ^[245] 

The privileges enjoyed by Parliament are a part of the general and public law of Canada. As such, the courts may judicially take notice of and interpret these privileges as they would any branch of law, as noted in the Parliament of Canada Act:

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. ^[246] 

A unique characteristic of privilege is that, although it may not appear to be the case, the rights and immunities claimed by elected representatives are controlled in large part by the courts. Though Parliament lays claim to sole control of its privileges, such claims have gone largely unchallenged because both courts and Parliaments are reluctant to deal definitively with such matters. However, in cases where privileges of Parliament have been challenged, the courts have on occasion more narrowly defined the privileges while on other occasions have supported the rights of Parliament. Thus, to some extent, the courts may determine or defend what are the privileges of Parliament. ^[247] 

A part of the justification for the privileges of the United Kingdom’s Parliament has rested upon the analogy with judicial practice. ^[248]  A court has privileges auxiliary to the due execution of its powers. Just as witnesses and judges must speak freely, be protected from molestation and be released from other conflicting tasks and obligations, so it might be thought necessary to make similar provisions for “the Court of Parliament, the first and the highest court in the kingdom”. ^[249] 

The extensive power to punish contempts has a judicial flavour and origin in the United Kingdom, yet in reality the English Parliament in the twentieth century is not a court. ^[250]  It has been British practice that where the House commits an individual to prison for contempt without stating the grounds, or commits generally, it appears that the courts will not inquire into the nature of the contempt. ^[251]  However, where facts are stated in the warrant, the courts would be free to inquire into the grounds and, in suitable cases, declare the committals to be defective as arbitrary or unrelated to any known privilege of the House. ^[252] 

In order to alleviate some of the uncertainty traditionally inherent in the exercise of their privileges, some Parliaments based on the Westminster model have opted to codify their privileges. ^[253]  In 1987, the Australian Parliament passed legislation declaring, clarifying and substantially changing its law of parliamentary privilege. ^[254]  Partly in consequence of the legislation, the Australian Senate passed a series of resolutions substantially codifying its practices in matters related to privilege. ^[255] 

The Australian Parliament, finding that the courts were severely restricting its freedom of speech, enacted statutory remedies to protect its proceedings. The Australian Parliamentary Privileges Act 1987 provides definitions for a number of concepts including contempt. By restricting the category of actions which may be treated as contempts, the Act could be seen as either limiting the right of action of either Australian House or of opening up the actions of both Houses to judicial interpretation. For example, a person punished for a contempt of Parliament could bring an action to attempt to establish that the conduct for which he or she was punished did not fall within the statutory definition. This could lead to a court overturning a punishment imposed by a House for contempt of Parliament. ^[256] 

A number of concerns have been expressed in relation to the Australian statutory definition of privilege: the right of a House to expel a Member or the protection of witnesses before committees might be challenged in court; ^[257]  the statute might unduly restrict the rights of litigants and defendants in using evidence given before parliamentary committees for the purposes of their court proceedings; the resulting statutory interpretation would further restrict the powers and immunities of Parliament; affirming privileges in statute would result in challenges to the right of the public and the media to comment on what happens in Parliament; ^[258]  and should serious problems arise, they may be corrected only by further codification of the law through legislative amendment. ^[259]  As the function of the courts is to consider and apply statutes, not to investigate the proceedings leading to the passage of laws, it has been seen that both the courts and Parliament have expressed the need to avoid conflict in interpreting the scope of privilege. ^[260] 

Where Australia has opted to legislate codification of privilege, the United Kingdom has not, though it continues to review its practice and has altered its way of dealing with matters of privilege. The whole scope and application of privilege was reviewed by the Select Committee on Parliamentary Privilege in 1967-68; re-examined again in the Third Report of the same Committee in 1976-77; and revisited by the Joint Committee on Parliamentary Privilege in 1998-99. Prior to the 1967-68 Committee’s appointment, some concern had been expressed about the number of occasions when criticisms had been raised in the House of breaches of privilege or contempt regarding relatively trivial matters. ^[261] 

Having examined all aspects of privilege in the House, the 1967-68 Committee came down against any major changes in the law of privilege, especially the suggestion that jurisdiction in privilege cases should be transferred to the courts through statute. ^[262]  The Committee did recommend that legislation be promoted to extend and clarify the scope of privilege. ^[263]  It also recommended a number of significant reforms in the way privilege complaints should be considered. ^[264]  It modified the procedure for their examination and, to a certain extent, codified procedures for dealing with matters of privilege. ^[265]  Other reforms served to bring the House’s formal rules into line with the practice of nearly 200 years. ^[266]  The 1976-77 Committee re-examined the findings of the earlier committee and recommended the adoption of many of its recommendations. ^[267] 

In his memorandum to the British Select Committee in 1976-77, the Clerk of the House cautioned against too rigidly codifying the House’s options in dealing with matters of privilege. He wrote:

It would be a mistake first and foremost because it would introduce an element of inflexibility into the manner in which the House upholds its privileges and punishes contempts. It is true that the House would be in no danger of abridging its privileges or powers by a mere resolution setting out the sort of cases upon which it normally proposed to act. But formulas which may appear precise and faultless at the time at which they are drafted, may be found to be defective at a later stage owing to some undiscovered loophole or developments which could not be envisaged at an earlier stage. It would certainly seem undesirable to have to ask the House to amend its resolutions on privileges with any frequency. ^[268] 

Following the 1976-77 Report, the focus of the House in such matters appeared to shift to the conduct of Members. Allegations of misconduct by Members of the British House were dealt with as matters of conduct or standards and not as privilege. The development of the Register of Members’ Interests institutionalized this approach, and this continued into the 1990s with the first report of the Committee of Privileges in 1994-95 and the Nolan Committee on Standards in Public Life which led to the establishment of the Select Committee on Standards in Public Life. This Committee made a number of recommendations pertaining to Members’ conduct which resulted in the adoption of a Code of Conduct for Members, the remodelling of the Committee of Privileges as the Committee on Standards and Privileges, and the appointment of a Parliamentary Commissioner for Standards. ^[269] 

In the 1997-98 session, the British Parliament created a Joint Committee on Parliamentary Privilege with the broad mandate to review parliamentary privilege and make recommendations. Reappointed with the same terms of reference and membership in the 1998-99 session, the Committee presented its report to both Houses on March 30, 1999, and made a number of recommendations calling for the codification of various matters of privilege in statutory law. ^[270]  The Committee recommended that “place out of Parliament” and “proceedings in Parliament” be defined in statute and that Members of both Houses be included within the scope of forthcoming legislation on corruption. It called for the codification in statute of contempt of Parliament, for the abolition of Parliament’s power to imprison for contempt and for the transfer of Parliament’s penal powers over non-Members to the courts. It recommended the termination of Members’ exemption from attendance in court as witnesses and the abolition of Members’ freedom from arrest in civil cases. It also recommended the replacement of the Parliamentary Papers Act 1840 by a modern statute and suggested that a Parliamentary Privileges Act be passed bringing together all the changes in the law it recommended and codifying parliamentary privilege as a whole.

Section 18 of the Constitution Act, 1867 provides that Parliament may not confer on itself any greater privileges than those enjoyed at the time by the House of Commons of the United Kingdom. “Clearly the courts could not review the manner in which Parliament exercised its privileges, for example, in punishing a person for contempt of Parliament. But it has long been held that the courts can ascertain whether the privilege asserted by Parliament is one recognized by the law. Therefore, the courts could in a proper case test any statute pursuant to Section 18 [of the Constitution Act, 1867] to determine whether the privilege it created was one which the Canadian Parliament was entitled to claim for itself. Such an issue might be raised by means of a reference or by proceedings such as habeas corpus, or by damage actions on behalf of individuals who had suffered at the hand of Parliament in the exercise of its alleged privileges.” ^[272] 

The adoption of the Canadian Charter of Rights and Freedoms in 1982, “ushered in a flood of constitutional litigation, gave Canadian courts a greater degree of superintendence over government, and dramatically changed the form and forum of politics. It was thus inevitable that the Canadian legislative assemblies and Houses of Parliament would become implicated in the Charter.” ^[273] 

As part of the general and public law of Canada, ^[274]  parliamentary privilege, like any law, is now subject to the provisions of the Charter. ^[275]  In 1993, the Supreme Court of Canada in New Brunswick Broadcasting Co v. Nova Scotia (Speaker of the House of Assembly) addressed the issue of whether and how the Charter applies to the provincial legislative assemblies and their proceedings, which had a direct impact on the powers, privileges and immunities of the House of Commons. ^[276]  Maingot summarizes the decision as follows:

The majority held that the act of the House of assembly in excluding television cameras from the public galleries was an exercise of a constitutionally inherent privilege to exclude strangers from the House and its precinct. The basis of this inherent privilege is the preamble to the Constitution Act, 1867 in context of historical tradition and the pragmatic principle of necessity: the legislature must be presumed to possess such constitutional powers as are necessary for its proper functioning.

The majority affirmed the existence of two categories of privilege: (1) constitutionally inherent privilege; (2) privilege that is not constitutionally inherent. Both the Charter and the first category of privilege are part of the Constitution. The first category of privilege is therefore not subject to judicial review under the Charter, because one part of the Constitution may not abrogate another part of the Constitution. Therefore, once it is established that the privilege is constitutionally inherent, as in this case, the exercise of that privilege is not subject to judicial scrutiny. If, however, it is not so established, the privilege is subject to such scrutiny. ^[277] 

The situation is far from clear as to when the courts can and should review questions, which have primarily been assigned by the Constitution or the law for decision by other instruments of government. “It is, of course, clear that actions of both the executive and the legislative branches can be reviewed on jurisdictional grounds. It is also clear that administrative law permits review of executive decisions on a wide range of procedural grounds, but that substantive decisions may not be reviewed where the matter is one clearly left in the discretion of the executive to decide. It is more dbatable to what extent Parliament’s internal processes, and the exercise of its historic privileges with respect to determining its own composition and the conduct of its members, can be reviewed.” ^[278]