Parliamentary Privilege / Rights of the House

Contempt of the House: alleged premature disclosure of a bill before its presentation to the House

May 7, 2018

Debates, pp. 19179–80

On April 17, 2018, Rob Nicholson (Niagara Falls) rose on a question of privilege regarding the alleged premature disclosure of the contents of Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts. Mr. Nicholson explained that, eight minutes after Bill C-75 was introduced in the House, a detailed article was published on the CBC website, suggesting that journalists were given advance access to its contents. In his opinion, this constituted a contempt of the House and a breach of privilege, because the House has the right of first access to the text of bills. The Speaker took the matter under advisement.^[1] On April 23, 2018, Kevin Lamoureux (Parliamentary Secretary to the Leader of the Government in the House of Commons) rose to assert that the bill had not been disclosed prematurely, that all rules had been followed and that members had not been prevented from carrying out their parliamentary duties. The Assistant Deputy Speaker (Carol Hughes) once again took the matter under advisement.^[2]

Resolution

On May 7, 2018, the Speaker delivered his ruling. He reminded the House that the right of members to be informed first as to the contents of bills on notice must be balanced with other considerations, such as the complex policy development process that accompanies the drafting of legislation. He pointed out that, in this case, there was no irrefutable proof that legislative details about the bill had been disclosed prematurely, particularly since some details from the article could have been taken from the summary of the bill or from information obtained during consultations. With the government’s assurance that it had not released details about the bill, the Speaker could not find a prima facie question of privilege, although he found the situation troubling. Lastly, despite technological advances that make sharing information easier, he reminded the House that it was incumbent upon those responsible for legislative information to respect the primacy of the House’s right of first access to the text of bills.

Decision of the Chair

The Speaker: I am now prepared to rule on the question of privilege raised on April 17, 2018 by the hon. member for Niagara Falls concerning the alleged premature disclosure of the contents of Bill C-75, an act to amend the Criminal Code, the Youth Criminal Justice Act and other acts and to make consequential amendments to other acts.

I would like to thank the hon. member for Niagara Falls for having raised this matter, as well as the Parliamentary Secretary to the Leader of the Government in the House of Commons and the member for Berthier—Maskinongé for their submissions.

The member for Niagara Falls explained that an article by the CBC was published online eight minutes after Bill C-75 was introduced, suggesting that the only way this timeline was feasible was if the news organization was given advanced access to the contents of the bill.

Underscoring the importance of the House’s right of first access to bills, the member contended that it is unacceptable that members have to “play catch-up” on a public debate on government legislation that is occurring between a well-briefed media and the Minister of Justice.

The Parliamentary Secretary to the Leader of the Government in the House of Commons told the House that no advance disclosure of the bill had occurred and the government had complied with all the rules. As a result, he believed that members were not impeded in their functions, nor was there any offence against the authority of the House.

Let me begin by noting that in this case, the right of members to be informed first as to the content of bills which are on notice is not in question. Rather, what is at issue is whether this customary privilege has been properly observed.

On June 8, 2017, I explained that the right of first access has to be balanced with other considerations, such as the complex policy development process that accompanies the drafting of a piece of legislation. I stated at page 12320 of the Debates:

The right of the House to first access to legislation is one of our oldest conventions. It does and must, however, coexist with the need of governments to consult widely, with the public and stakeholders alike, on issues and policies in the preparation of legislation.

This, then, must be measured against other evidence that is provided to the Chair; in other words, is there irrefutable evidence that specific legislative details about Bill C-75, beyond what could be considered as consultative information, were purposely and prematurely divulged to the media? Weighing the evidence provided in this case, as troubling as it is, it is difficult for the Chair to draw that conclusion, particularly since some details of the article in question could have come from the summary of the bill or from background information from discussions during the consultation process.

For that same reason, I can only agree with my predecessor when he noted on April 18, 2013, at page 15610 of the Debates, when referring to a question of privilege raised in relation to the premature disclosure of government legislation:

… it is a well-established practice that the contents of a bill are kept confidential until introduced in Parliament, thus making their premature disclosure a serious matter. However, in this case, a careful reading of the arguments presented to the Chair about what transpired reveals that the concerns expressed appear to be based more on conjecture and supposition than on actual evidence.

In addition, the parliamentary secretary assured the House that the government had not, in any way, divulged the contents of the bill nor its details before its introduction in the House. Therefore, although, as I said, this is very troubling, I cannot find that there is a prima facie question of privilege in this matter.

While the evidence presented may not be irrefutable in this instance, the Chair remains concerned that some members, of course, were left with the impression that they were put at a disadvantage in their ability to fulfill their duties.

When new ways, through technology or otherwise, are found to share information, it remains incumbent upon those who are responsible for legislative information to respect the primacy of Parliament by respecting the right of the House to first access. Members should never have to even so much as wonder if they were not the first to receive legislative information.

I thank all members for their attention.