The current adherence of our House of Commons and all other Canadian parliamentary
assemblies to the body of law known as Privilege is neither convention
nor happenstance. Privilege is an essential component of our parliamentary
Since it is buried in the foundations of our complex modern government
one could also say that it is only the plumbers and engineers who ever
see it in operation or have to work with it.
Nevertheless, privilege is certainly alive, since we could not operate
a Parliament of the type we have now without it. Arguably it is just as
important to Parliament as the Ten Commandments are to the Judeo-Christian
faiths. However, privilege has not had the benefit of being written down
on tablets as the Commandments were. The absence of a comprehensive codification
of this legal construct has allowed for flexibility and adaptation to changing
times. But, I would also argue that this circumstance has produced new
challenges, including such effects as being misunderstood (perhaps the
least worrisome), public ignorance, conflict with other laws and conflict
with other institutions. By far the most troublesome, for a political institution
in a democracy, is minimal awareness and uncertainty that it has support
of the citizenry.
In further exploring the current status of privilege, which remains firmly
based on principles of institutional necessity and free speech, I would
like to examine three areas in more detail:
The lack of knowledge or understanding of privilege, not just on the part
of the public, and not only among lawyers, but among legislators themselves.
The term privilege itself which is an unfortunate brand name in modern
times and is needlessly suggestive of elitism and special status for elected
The need for codification.
The practice of parliamentary law and privilege might be commonplace for
Speakers, Clerks and a few Parliamentarians, however it clearly suffers
from a lack of public understanding. Public knowledge, lawyerly knowledge
and even judicial knowledge of the law and application of privilege are
abysmally low. The level of awareness and knowledge of parliamentary privilege
across the country is probably in about the same range as knowledge of
Canon Law. The average lawyer probably knows more about meteorology.
I am not aware of any law school in Canada which teaches parliamentary
law. If I am wrong, my lack of awareness is just as telling. Surely there
is a law school in this country capable of undertaking an attempt to modernize,
codify or reform this area of privilege law. Such a project would be helpful
to legislative houses across Canada.
I attended law school in Ontario in 1970 and practiced law for about 15
years before being elected to the House of Commons. I do not remember ever
hearing of privilege until I came to the House. Most Members of Parliament
and MLAs would say something similar. So we have now, as we did at Confederation,
parliamentarians entering legislatures and subject to a distinct legal
construct of which they know almost nothing.
This means a person can become a judge, go through half a career and then
have to learn about it, sometimes from counsel who just learned about it
two days before from a legal brief prepared by a law student four days
earlier. This general ignorance of the law of privilege also means we lack
a critical mass of citizens who accept and support it. Privilege is constitutional
in nature and cannot change on a whim, but even constitutions can change
if the people take a mind to do so.
When there are instances of conflict or competition between laws, the absence
of knowledge and of general support for a law could lead to difficulty
in any of our courts or tribunals. Our goal should be to pre-empt conflicts
where possible, ensure clarity and good legal decisions which respect the
place and role of parliamentary assemblies.
The very term parliamentary privilege I find unhelpful, and I believe inhibits
public understanding. Firstly, the word privilege has a different meaning
in modern language than it had centuries ago and no longer describes to
the layman a body of law. Rather the public equates it with a bundle of
special arrangements for an elite. This is perhaps ironic, given that it
was originally created as a body of protections for the Commons, to protect
those Members from the elites of that time.
Secondly, the roots of privilege can be traced back to the beginnings of
parliamentary government. It is an ancient concept, with freedom of speech
for parliamentarians being codified in the United Kingdom Bill of Rights,
1689. In fact, there are roots going back to the Magna Carta of 1215. But
for most of our legislatures there does not exist a codification in current
or colloquial language.
As a result, there are real barriers to public understanding. Even a simple
newspaper editorial on the subject using this kind of language, runs the
risk of putting the reader to sleep or making him angry.
We need to change the term privilege. Perhaps call it Parliamentary Law.
The laws governing parliamentary free speech could be broken down into
bite size components and re-styled as confidentiality, immunity, compellability,
subpoena, and so forth.
One of the oddest characteristics of modern day privilege in this and perhaps
other countries, is that even those who work it, seem to have fallen into
a pattern of describing privilege by reference to quotes not from parliamentarians,
but from judges even though Parliaments have historically prohibited Courts
from tinkering with privilege.
So modern benchmarks in this area of law are now found in Court judgments
and not rulings of the Speakers. Shame on us. Parliamentarians should never
allow this body of law to be turned over to Judges and the Courts. It seems
to me that was the whole point of creating parliamentary law in the first
place. This is a dangerous road to be traveling. The only way I see out
of this is to attempt a modern codification.
Other Parliamentary democracies have moved to modernize privilege. Australia
has taken the step of legislating privilege, with the Parliamentary Privilege
Act of 1987. In my opinion, legislation is neither required nor desired.
The United Kingdom on the other hand has taken steps to modernize and move
toward codification as seen in the First Report of the Joint Committee
on Parliamentary Privilege in 1999. We could take a similar approach here
in Canada, but it would be a big project.
I would propose we take steps towards a codification of the law of privilege
(preferably under another name). This move could benefit all Houses in
Canada and provide better understanding of the separate and individual
elements of privilege law for the public, media and Members of Parliament
Such an undertaking would have to be comprehensive and rigorous. Parliament
would have to review the entire body of privilege, codifying in modern
language the rights and immunities that allow parliament to work effectively,
while possibly eliminating outdated terms or practices that are not applicable
to current legal infrastructure, and are out of step with modern law, modern
language and current concepts of citizen rights in Canada. Since the workings
of Parliament are dependent on this body of law being comprehensive and
firm, the boundaries of the applications of this law should also be clear
and defined. Clear definition will allow privilege to function in a healthy
robust way, while providing the public understanding necessary in these
times of transparent and open democracy.