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House of Commons Procedure and Practice

Second Edition, 2009

 
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3. Privileges and Immunities

Photo of high relief entitled “Freedom of Speech” from the British North America Act series of the Heritage Collection in the Chamber of the House of  Commons.

 

 

*    Privilege in the United Kingdom

*    Privilege in Canada

Privilege in the Pre‑Confederation British North American Colonies

Privilege Since Confederation

Reviews of Rights, Immunities and Privileges

 

 

*    Privilege Challenged in the Courts

 

 

 

 

*    Freedom of Speech

Proceedings in Parliament

Importance of Freedom of Speech

Limitations on Freedom of Speech

*     Remarks Made Outside of Debate

*     Misuse of Freedom of Speech

*     Sub judice Convention

*     Authority of the Speaker

Waiving the Privilege of Freedom of Speech

*    Freedom from Arrest in Civil Actions

*    Exemption from Jury Duty

*    Exemption from Being Subpoenaed to Attend Court as a Witness

*    Freedom from Obstruction, Interference, Intimidation and Molestation

Physical Obstruction, Assault and Molestation

Other Examples of Obstruction, Interference and Intimidation

Intimidation of the Speaker and Other Chair Occupants

Constituency- or Politically-Related Instances

 

 

*    Regulation of Internal Affairs

Right to Regulate and Administer Its Precinct

*     The Execution of Search Warrants in the Precinct of Parliament

*    The Authority to Maintain the Attendance and Service of Its Members

*    Power to Discipline

Censure, Reprimand and the Summoning of Individuals to the Bar of the House

Taking Individuals into Custody and Imprisonment

Expulsion

*    The Rights to Institute Inquiries, to Require the Attendance of Witnesses and to Order the Production of Documents

*    The Right to Administer Oaths to Witnesses

*    The Right to Publish Papers

 

 

*    Manner of Raising Matters of Privilege

In the House

*     Time of Raising and Notice Requirements

*     Raising at the First Opportunity

*     Multiple Notices

*     Initial Discussion of Matter Raised

*     Decision of the Speaker

*     Debate on a Privilege Motion

In Standing, Special, Legislative and Joint Committees

In a Committee of the Whole

By Way of Written Notice on the Notice Paper

*    Committee Consideration of Privilege Matter

Committee Report

*    Matters of Personal Privilege

Figure 3.1        The Path of a Question of Privilege

 

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Privilege is that which sets hon. members apart from other citizens giving them rights which the public do not possess …. In my view, parliamentary privilege does not go much beyond the right of free speech in the House of Commons and the right of a member to discharge his duties in the House as a member of the House of Commons.

Speaker Lucien Lamoureux

(Debates, April 29, 1971, p. 5338)

 

The rights accorded to the House and its Members to allow them to perform their parliamentary functions unimpeded are referred to as privileges or immunities. In modern parlance, the term “privilege” usually conveys the idea of a “privileged class”, with a person or group granted special rights or immunities beyond the common advantages of others. Parliamentary privilege refers, however, to the rights and immunities that are deemed necessary for the House of Commons, as an institution, and its Members, as representatives of the electorate, to fulfil their functions. It also refers to the powers possessed by the House to protect itself, its Members, and its procedures from undue interference, so that it can effectively carry out its principal functions which are to legislate, deliberate and hold the government to account.[1] In that sense, parliamentary privilege can be viewed as the independence Parliament and its Members need to function unimpeded.

Privilege has long been an important element of our tradition of government. The practices and precedents of the House of Commons of Canada regarding parliamentary privilege stretch far back into colonial times. At an early stage, the young assemblies of the colonies, modelling themselves on Westminster, claimed the privileges of the British House, though without statutory authority. At Confederation, the privileges of the British House were made applicable to the Canadian Parliament in the Constitution Act, 1867[2], and for many years the Canadian House continued to look to the experience of the British House for guidance in matters of parliamentary privilege.[3]

The origins of the privileges enjoyed by the House of Commons in the United Kingdom (U.K.) were a product of a direct and real threat from the Crown and the House of Lords. As the threat subsided, the thrust of the history of privilege has been towards defining those rights and immunities more narrowly, reflecting the reality that all privileges enjoyed by the House and its Members ultimately derive from the electorate. The privileges of the Canadian House of Commons were inherited from the United Kingdom without the need to overcome physical threats and challenges. They enable the institution of Parliament to flourish and individual Members to fulfil the functions for which they were elected.

This chapter will briefly summarize the evolution of privilege in the United Kingdom and in Canada, discuss the rights and immunities of the House and its Members, and describe the procedures by which matters of privilege are raised and dealt with in the House.[4]



[1] Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, par. 21 and 41.

[2] R.S. 1985, Appendix II, No. 5, s. 18.

[3] In fact, this was reflected in the wording of Standing Order 1, which until 1986 stated with minor variations over time: “In all cases not provided for hereafter or by sessional or other orders, the usages and customs of the House of Commons of the United Kingdom of Great Britain and Northern Ireland as in force at the time shall be followed so far as they may be applicable to this House”.

[4] For an in‑depth treatment of the subject, the reader is referred to two principal sources. The first is Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, which lays out the practice and precedents of the British House of Commons (May, T.E., 23rd ed., edited by Sir W. McKay, London: LexisNexis UK, 2004). The second is Parliamentary Privilege in Canada by Joseph Maingot, which focuses on the history and workings of privilege in Canada (Maingot, J.P.J., 2nd ed., Montreal: House of Commons and McGill‑Queen’s University Press, 1997).

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