Parliamentary Privilege

Introduction

Members of Parliament individually and the House as a collectivity enjoy certain rights and immunities without which Members could not carry out their duties and the House could not fulfil its functions. These various rights and immunities, while not admitting of ready classification, are subsumed under the rubric parliamentary privilege. Whenever Members feel that their rights as Members have been infringed upon or that a contempt against the House has been committed, they rise on a Question of Privilege to voice their complaints. In presenting their case Members are claiming that the breach they are complaining of is of such importance that it demands priority over all other House business. It is the role of the Speaker to judge if that claim is well founded; that is, if on a prima facie basis, or as far as can be judged by first disclosure, it deserves privileged consideration.

In order to assess the claim, the Speaker first hears a sufficient expose of the problem from the Member raising the complaint. Then, although he is not obliged to, the Speaker may hear comments from other Members. Speaker Fraser frequently did so and would often intervene during the course of these discussions to direct Members to focus on addressing the precise issue to be decided. While in theory, debate on a question of privilege only properly begins after the Speaker has decided that a prima facie question of privilege exists, in practice, there may be extensive discussion beforehand and most often, the Speaker’s decision determines the issue. For example, of the eight prima facie cases during the Fraser Speakership, there was debate on only two of the motions permitted to be moved after the Speaker’s decision—the question was put on the remaining six without debate. This trend, together with the fact that Speakers’ rulings are not subject to appeal, posits great authority and concomitant responsibility in the Chair. Accordingly, after the initial airing of the issue, except in the clearest of cases, Speaker Fraser usually took the matter under advisement in order to permit him to return to the House with a considered and reasoned decision.

In reaching such a decision, the Speaker reviews the facts and the arguments advanced in the House on the issue and customarily revisits the relevant rules, authorities and precedents. In addition, at times, Speaker Fraser, in the course of his deliberations, held discussions “in chambers” with Members concerned. It should also be noted that the Speaker’s decision can turn on other factors in addition to the merits of the case itself; these include the terms of the motion the Member seeks to move, evidence that the issue was raised at the first opportunity, that notice was given when required and that the question was raised at the proper point during the proceedings.

In preparing this collection, a decision was made first, to allow the issues raised to govern the organization of the chapter; and second, to integrate procedural and subject-matter classifications in an attempt to underscore the necessary connection between the two. To facilitate this type of integration, some decisions respecting matters raised as questions of privilege are not included in the parliamentary privilege chapter but rather are captured under a chapter with which they have a direct connection. For example, several decisions responding to questions of privilege relating to committees are reported in that chapter and likewise, rulings in respect of Budget or Supply proceedings are included in the chapter on financial procedures and those respecting matters Sub Judice are in the chapter dealing with rules of debate. As a result of the first aspect of our resolution, the chapter is divided into two sections. The first—Rights of the House—deals with matters respecting the collectivity of Members, while the second—Rights of Members—pertains to issues affecting individual Members of Parliament. Within these two broad sections, individual decisions are grouped under subject-matter headings.