Parliamentary Privilege / Rights of the House

Contempt of the House: disclosure of information regarding a bill prior to its introduction in the House; prima facie

April 19, 2016

Debates, pp. 2442–3

On April 14, 2016, Andrew Scheer (Regina—Qu’Appelle) rose on a question of privilege regarding the premature disclosure of Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). Mr. Scheer alleged that, prior to its introduction in the House, specific details of the proposed legislation were reported in the media, thus constituting a clear breach of members’ privileges. In response, Andrew Leslie (Chief Government Whip) stated that no one had been authorized to disclose the details of the bill prior to its introduction and apologized on behalf of the government. The Deputy Speaker (Bruce Stanton) took the matter under advisement.^[1]

On April 18, 2016, Mr. Scheer rose again to state that, given the Chief Government Whip’s apology, the matter should be reviewed by a parliamentary committee in order to determine how the breach had occurred. The Speaker took the matter under advisement.^[2]

Resolution

On April 19, 2016, the Speaker delivered his ruling. The Speaker confirmed the right of the House to first access to the text of bills that it will consider. He concluded that, as the House’s indisputable right of first access to legislative information had not been respected, members had been impeded in performing their parliamentary functions. Accordingly, he ruled that the incident constituted a prima facie question of privilege and invited Mr. Scheer to move the appropriate motion.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on April 14, 2016, and again yesterday, by the House Leader of the official opposition concerning the premature disclosure of the contents of Bill C-14, an act to amend the Criminal Code and to make related amendments to other acts (medical assistance in dying).

I would like to thank the House Leader of the Official Opposition for having raised this matter, as well as the chief government whip and the hon. member for New Westminster—Burnaby for their submissions.

In presenting his case, the House leader of the official opposition pointed out that specific and detailed information contained in Bill C-14 was reported in a newspaper article and elsewhere in the media before the bill had been introduced in the House. In describing the seriousness of this matter, which he considered to be a breach of members’ privileges, he stressed the need for members to access information in order to fulfill their parliamentary duties, as well as the respect required for the essential role of the House in legislative matters.

In response, the chief government whip, acknowledging the problem, stated, “…our government takes any breach of the privilege of members and of the House very seriously”. He then noted that such a premature divulgation of the bill’s contents had not been authorized and apologized unreservedly, committing to ensure that it would not happen again.

This being the first question of privilege to be raised in this Parliament, I want to take this opportunity to inform members of the role of the Speaker in this regard, particularly as it is a narrowly defined role.

As House of Commons Procedure and Practice, second edition, states at page 141:

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. Ultimately, it is the House which decides whether a breach of privilege or a contempt has been committed.

In adjudicating questions of privilege, the Speaker carefully considers the effect that the alleged breach has on members’ ability to function. At page 145 of O’Brien and Bosc, it states:

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.

As honourable members know, one of my most important responsibilities as Speaker is to safeguard the rights and privileges of members, individually and collectively. Central to the matter before us today is the fact that, due to its pre-eminent role in the legislative process, the House cannot allow precise legislative information to be distributed to others before it has been made accessible to all members. Previous Speakers have regularly upheld not only this fundamental right, but also expectation, of the House.

On October 4, 2010, on page 4711 of the House of Commons Debates, Speaker Milliken noted:

It is indisputable that it is a well-established practice and accepted convention that this House has the right of first access to the text of bills that it will consider.

This important convention exists so that members can properly exercise their functions as legislators. Speaker Milliken saw fit to reiterate it in that particular case, even though in those unique circumstances—the member admitted to having herself prematurely released the contents of her own private member’s bill, so no doubt existed as to the provenance of the leak—he chose not to rule that the incident constituted a prima facie case of privilege.

It is within this context that I, as Speaker, must review each case on its own merits. Having done so, the facts are clear and undisputed in this instance: detailed information regarding the content of Bill C-14 was indeed made available through the media before the bill itself had been introduced in the House. There were no arguments raised to the contrary. Therefore, there was a direct contravention of the House’s right to first access.

The chief government whip has unequivocally apologized for any breaches of confidentiality in this instance, recognizing the seriousness of the matter; this should be reassuring to all members. That being said, it would appear to the Chair, at first glance, that the leaking of the bill’s contents and, thus, the pre-empting of members’ access to legislative information, has impeded the ability of members to perform their parliamentary functions. In a strikingly similar case, quoted by the honourable opposition House Leader, Speaker Milliken stated, at page 1840 of the House of Commons Debates of March 19, 2001:

The convention of the confidentiality of bills on notice is necessary, not only so that members themselves may be well informed, but also because of the pre-eminent [role] which the House plays and must play in the legislative affairs of the nation.

He concluded by affirming that it was “a situation that the Chair cannot condone”.

In this instance, the chair must conclude that the House’s right of first access to legislative information was not respected. The chair appreciates the chief government whip’s assertion that no one in the government was authorized to publicly release the specific details of the bill before its introduction. Still, it did happen, and these kinds of incidents cause grave concern among hon. members. I believe it is a good reason why extra care should be taken to ensure that matters that ought properly to be brought to the House first do not in any way get out in the public domain prematurely.

Thus, the available precedents lead me to conclude that this incident constitutes a prima facie question of privilege, and I now invite the House leader of the official opposition to move the appropriate motion.

Postscript

Mr. Scheer moved that the matter be referred to the Standing Committee on Procedure and House Affairs, and the motion was agreed to by unanimous consent.^[3] The standing committee held a meeting on the matter on September 29, 2016,^[4] but did not report back to the House before the dissolution of the 42nd Parliament three years later.