the time this article was written David Hamilton was Clerk of the Northwest
Territories Legislative Assembly. This is a revised version of a paper
presented to the 15th Canadian Presiding Officers’ Conference in Victoria,
British Columbia, January 15-18, 1998.
of the most important ways a member represents his or her constituents is by
raising issues in the legislature. Presiding Officers face a dilemma in this
regard. As elected members they are expected to represent their constituents.
Yet by tradition they are precluding from speaking in debate or participating
in question period except as an impartial referee. This paper will examine the
inter-relationship between freedom of speech as it relates to the role of the
Speaker and the political convention that the Speaker raise issues in a forum
other than on the floor of the House.
We all know the hallmark of the
Speaker’s role is neutrality and impartiality. It is critical to the democratic
functioning of our parliamentary institutions that debate and law-making be
presided over by an impartial Speaker. Yet, it is also an essential democratic
principle that every citizen is entitled to representation in the political
process. In order to effectively represent constituents, a Speaker must have
the ability to raise the concerns of their constituents in an effective manner.
“A Speaker is not a political eunuch, he is a Member of Parliament. So it is
absolutely essential that he be allowed to fulfil his role as a Member of
Parliament because that is what his constituents expect of him”1.
Obviously, there are many
aspects to performing the dual role of Member and Speaker. The Speaker must
consider how to balance the need for perceived neutrality with the need to
adequately represent the interest of constituents. In most Canadian
jurisdictions, the issue of whether the Speaker takes an active role in party
politics is relevant. It is important that a Speaker be visible in his or her
constituency. It is equally important that a Speaker’s constituents understand
the limitations, and strengths, of their Member in the role of Speaker.
Beauchesne states, “The
privilege of freedom of speech is both the least questioned and the most
fundamental right of the Member of Parliament on the floor of the House and in
committee”2. Maingot, in
his classic text on Parliamentary Privilege in Canada, states, in
speaking to the essential nature of freedom of speech, “No one in the free
world will argue to the contrary”.3
Freedom of speech is expressly guaranteed by article 9 of the English Bill
of Rights of 1689, which states that: “... the freedom of speech, and
debates or proceedings in Parliament, ought not to be impeached or questioned
in any court or place outside of Parliament4.”
While the Bill of Rights does
not expressly apply to Canada, the principles enunciated therein form part of
our law by virtue of the preamble to the Constitution Act, 1867 which
provides that we shall have a “Constitution similar in Principle to that of the
Erskine May defines the
privilege of freedom of speech as follows: “Subject to the rules of order in
debate ..., a Member may state whatever he thinks fit in debate, however,
offensive it might be to the feelings, or injurious to the character, of
individuals; and he is protected by his privilege from any action for libel, as
well as from any other question or molestation.”5
Implicit in the concept of
freedom of speech is the immunity of Members from civil or criminal
prosecutions for words spoken within the legislature. There is lengthy
judicial precedent supporting this ancient privilege and reinforcing the
deference of the Courts to the legislature, at least in regards to matters
spoken in the legislature.
There is lengthy judicial
precedent for the proposition that the absolute immunity afforded members
applies only to statements made within the legislature. As stated by Maingot,
“Parliament protects him when he speaks in Parliament, but when he speaks
outside, or publishes outside what he says inside Parliament, Parliament offers
no protection; only the common law does, if it is offered at all”.6 In explaining this principle,
the Ontario High Court, in a decision affirmed by the Supreme Court of Canada,
stated as follows:
The purpose of the privilege is
to protect freedom of speech and debate in Parliament but not, surely, to allow
individual members to say what they will outside the walls of the House, to
persons who are not members or even spectators of the proceedings inside.7
The central importance of the
requirement that the Speaker not only be impartial but also be seen to be
impartial is well documented and indisputable. However, the issue of the
Speaker’s ability to effectively represent his constituents is not so well
documented. Official parliamentary guidebooks are to a large degree silent on
the topic. Comments that are published tend to come largely from the writings
of those who have served in the capacity of Speaker.
Impartiality of the Speaker
It is evident that our
constitutional foundation found in the Bill of Rights, 1689 as adopted
by the Constitution Act, 1867, protects and supports parliamentarians in
the furtherance of their responsibilities as Members. Yet, pity the poor
Speaker. We have a strongly entrenched principle that the Speaker does
not speak or participate in debate in the House. His or her non-participation
is deemed to be essential to the very foundation of the parliamentary
institution. There are many conventions in place that are designed to ensure
the impartiality of the Speaker and to ensure that there is a general
recognition of the Speaker’s impartiality. For example:
- The Speaker takes no part in debate in the House;
- The Speaker votes only when there is a tie and, even
then, there are rules that preclude an expression of opinion on the merits
of the question.
- In some jurisdictions, the Speaker relinquishes all
affiliation with any parliamentary party.
It has been suggested that the
acceptance of the role of Speaker usually involves a radical change in life
style. The individual must deliberately isolate themselves from much of the
camaraderie of the House.
At Westminster he leads a
somewhat cut-off life; for example, he does not use the dining rooms or the
Members smoking room, or other bars or the library. However, he has his own
accommodation where he does most of his work away from the Chamber. Here he is
able to meet any Members individually to discuss problems they wish to raise
How, then does the Speaker
represent his constituents? Over the years, a principle of priority access to
Cabinet is normally extended to Speakers in all jurisdictions. This
provides an important forum to air constituency concerns with the loss of any
politician’s most important and effective tool, his voice, his ability to speak
out freely, his ability to take sides and to express his opinions and his right
to participate in Question Period and to take part in debates in the House.
Former Speaker John A. Fraser
suggests that traditions have developed which alleviate the difficulties faced
by Speakers in attempting to satisfactorily fulfil all aspects of their unique
Although a Speaker must be
non-partisan and cannot debate, there is a long-standing tradition that is very
much alive. It is simply this: the Speaker accepts limitations in the interests
of all Members. In view of this, Cabinet Ministers, Private Members and, to a
remarkable degree, senior civil servants, go out of their way to assist the
Speaker in resolving his constituents’ problems. It is an unusual, but very
effective, relationship which affords the Speaker full access to those in
positions of influence and power.9
This leads to a further
consideration, and that is, the role of the Speaker at election time. Speaker
Fraser says, “notwithstanding all the duties of the office, a Speaker must
still serve his constituents, his community and be re-elected.”10 He indicated, as well, that
the lack of any involvement in political life for an extended period of time
may put the Speaker at a disadvantage with respect to other candidates when it
comes election time.
The British Select Committee of
1938 did not feel that the Speaker’s constituents were inadequately
represented. On the contrary, the Committee felt that the Speaker’s
constituents may, in fact, have an advantage over others. The Committee made
the following comments:
…In matters of individual
interest or grievance the Speaker’s constituents are in fact in a peculiarly
favoured position. Though the Speaker himself can put down no questions, any
matter affecting them which he feels justified in raising privately with a
Department of State will, in the nature of human reactions, coming from such a
source receive the most careful consideration. Again, if the circumstances of a
particular case require that a question should receive public expression it
would be, and in fact is, willingly sponsored by other members. Apart from
these considerations, it cannot be disputed that a great honour is conferred on
the constituency whose member is chosen from among all others for those rare
qualities which will enable him to fill the high office of presiding over the
deliberations of the House of Commons and representing it as the first commoner
in the land.11
So much for altering convention
to address the problem. The Select Committee suggested that the only remedy may
lie in the fuller education of the electorate. Such education would be aimed at
increasing the public recognition and understanding of the vital democratic
safeguards that it is the duty of the Speaker to defend. But how do you go
about educating the electorate and increasing their understanding of the role
of the Speaker? Has this been attempted in other jurisdictions? How and with
what degree of success?
As a final note on the issue of
Speakers representing their constituents effectively, some people believe that
the Speaker has an advantage over Cabinet Ministers when it comes to the
interests of constituents. Speaker Selwyn Lloyd of Britain believed that:
“...the Speaker could represent a constituency more effectively than a Minister
since the former is not bound by collective responsibility. He is therefore not
inhibited in raising constituency problems even though he is obliged to raise
Extending Freedom of Speech
to Speaker’s Communications?
The parliamentary principle that
the Speaker be afforded access to Government Ministers by raising issues
informally outside of the legislature, when viewed in relation to the absolute
freedom of ordinary members to raise issues within the confines of the
legislature, has recently raised an interesting issue in the Northwest
Territories and for anyone interested in defining the extent of parliamentary
On May 13, 1997, the Speaker,
acting in his capacity as Member for Deh Cho, sent a letter to the Premier
outlining his concerns with respect to the practices of a collection agency in
the NWT, expressing particular concern over their conduct in relation to
dealing with aboriginal people. The letter asked the Premier to investigate this
matter as the collection agency had a contract with the Government of the
Northwest Territories. The raising of these issues in this manner was
completely in accordance with protocol and parliamentary tradition. The
letter was copied to the Fair Practices Officer (our equivalent of provincial
human rights commissions), the local Dene (Indian) Band and the collection
agency. The Speaker, in his capacity as a Member, was subsequently sued for
defamation. Additionally, the Speaker as the chief representative of the
Legislative Assembly and the Commissioner of the Northwest Territories as the
CEO of the Government, were also sued alleging they are vicariously liable for
the comments of individual members, in this case of the Member for Deh Cho.
Some confusion was caused in the
media by the fact that an individual was sued both in his capacity as a Member
and as the Speaker of the Assembly. The media did not appear, at first blush,
to understand that he was being sued for comments made in performing his constituency
duties, not for comments made in his role as Speaker,13
The Speaker Sam Gargan, as
Member for Deh Cho, (with independent – outside – legal counsel) in his
Statement of Defence, has responded by asserting an extension of the
parliamentary privilege that members are immune from lawsuit for statements
made in the House, regardless of how offensive or defamatory. There is ample
case authority that ordinary Members are not immune from lawsuits for statements
made outside of the legislature. In this case, the Speaker argues that this
case law should not apply to him. He has asserted that he was exercising his
parliamentary privilege - his responsibility to represent his constituents - in
the only way possible given the existence of the parliamentary protocol that he
not raise issues in the house. Hence, he argues that as Speaker, the
immunity that the House affords to Member’s communications should be extended
to include any communication directed to the Government in furtherance of
constituency interests. To argue otherwise is to give the Speaker lesser
protection for statements made in furtherance of constituency issues than for
ordinary Members. We believe that this is the first time that such an argument
has been made in Canadian courts. Indeed, we are not aware of any precedent in
any Commonwealth jurisdiction. Of course, the Speaker (as Member) has
also defended the comments with other “standard” defences of qualified
privilege and other forms of absolute privilege. For parliamentarians, however,
the defence of an extended parliamentary privilege is the most intriguing.
This case raises a number of
interesting issues. What is the role of the courts in defining the privileges
of legislatures? Inherent in the concept of parliamentary privilege is the
right of the legislatures to regulate its internal affairs without outside
interference. In the leading Canadian case on parliamentary privilege,
N.B. Broadcasting Company v. Nova Scotia (more commonly known as the
Donohoe decision), the Supreme Court of Canada held that the tradition of
judicial deference should be applied to the privileges exercised by a
legislature [and presumably Members] on the grounds that these privileges have
constitutional status and that to do otherwise would go against the basic rule
“...that one part of the Constitution cannot be abrogated or diminished by
another part of the Constitution...”.14
“The privileges of
Parliament are the privileges of the People, and the rights of Parliament are
the rights of the People.”
Edward Blake, MP August 28, 1879
Should the Courts have a role in
defining the expansion of the privilege of freedom of speech? If so, Donohoe
suggests that the courts will apply a criterion of necessity. Can it be said
that it is absolutely necessary to the functioning of a legislature that the
absolute privilege afforded Members in their debates on the floor of the House
be extended to cover written communications by Speakers who do not have the
ability to speak in the legislature?
Other, more practical, issues
are raised. Most people would agree with the proposition that we are becoming
an increasingly litigious society. Certainly, the experience of our American
neighbours would tend to support this proposition. It also appears that we as
Canadians are focused more on legal issues than ever before. The practical
effect of libel lawsuits on politicians is to potentially inhibit their ability
to fearlessly advocate the views and concerns of their constituents.
Certainly, this is the potential impact on Speakers who have no “immune” forum
in which to raise this issues. Do lawsuits of this nature make it more
difficult to attract, recruit and keep qualified Speakers who are already
attempting to keep a balance between their dual and sometimes conflicting
roles? In the Northwest Territories, we have had a long history of
Speakers resigning in order to speak freely in the House on issues that they
feel strongly about. The effect of this lawsuit may well be to reinforce that
Perhaps the dilemma concerning
the role of the Speaker to be impartial and effectively represent his or her
constituents is best expressed by a former Canadian Speaker, Mr. James Jerome
in his book, Mr. Speaker.
I remember a conversation with
Speaker Larnoureux during the summer of 1974, after my nomination was widely
rumoured in Ottawa. The first thing he said to me was that if I became Speaker,
I would begin explaining the role the day I was elected and I would never stop.
No truer words were ever spoken! Like so many unwritten Parliamentary or
constitutional conventions, there is every theoretical reason why our concept
of the Speakership cannot work. How can a Speaker serve his constituents when
he can’t speak on their behalf? How can a Speaker reconcile needed constituency
assistance, which of course must come from Cabinet, with the essential
principle of objectivity and impartiality and the solemn responsibility to
preserve the Opposition’s rights to attack the Government? How can a Speaker
seek a party nomination and go through an election campaign without criticizing
any of the parties in Parliament? How can there by any genuine impartiality
when every Speaker since Confederation (until 1979) was the nominee of the
party in power? The fact is, again like so many unwritten conventions, that it
shouldn’t work – but it does.15
1. Pierre Duchesne, Debates 13th Annual
Canadian Presiding Officers’ Conference.
2. Arthur Beauchesne,
Parliamentary Rules & Forms, 6th edition, p. 22.
3. Joseph Maingot, Parliamentary
Privileges in Canada, McGill-Queen’s University Press, 1997.
4. Bill of Rights, 1689.
5. Erskine May, Parliamentary
Practice, 21st ed., p. 84.
6. Maingot op.cit., p. 38.
7. Roman Corp. Ltd. V.
Hudson’s Bay Oil & Gas Co. Ltd., 18 D.L.R. (3d) 134 (Ont. H.C.) at 139.
8. J.A. Griffith & Michael
Ryle, Parliament; Function, Practice & Procedure, London: Sweet
& Maxwell, 1989, pp. 144-145.
9. John A. Fraser, The House
of Commons at Work, Montreal: Édition de la Chenelière, 1993, pp. 56, 57.
10. Ibid., p. 56, 57.
11. Philip Laundy, The Office
of Speaker in the Parliaments of the Commonwealth, p. 71-72.
12. Ibid., p. 72.
13. Yellowknifer, October
14. N.B. Broadcasting Company v.
Nova Scota,  1 S.C.R. 319 at 373.
15. James Jerome, Mr. Speaker,
Toronto: Mclellan and Stewart, 1985.