Parliamentary Privilege

• Author: Rob Walsh
• Pages: 47-57

Page 47

cHaPter sIx

Parliamentary Privilege

And then there is parliamentary privilege, which gives the House (and Senate), its committees, and Members of Parliament exemption in respect of their parliamentary functions from the application of laws that would otherwise apply. his means that the courts cannot enforce laws against the House, a House committee, or a member where one of these privileges applies. his is an important feature of the parliamentary system of government.

Privilege has an unfavourable ring to it these days. Current public comments include frequent references to “White privilege,” which complains that White people are treated better than persons of colour just because they are White. When we are told that someone is privileged it usually means that the person is blessed with some favour or advantage, some special status, for example, the privileges of wealth, rank, position, or job. When privilege is used against us to our disadvantage, we want to object. Either we don’t understand the reason for the privilege or, if we do understand the privilege, we just don’t like it.
he law, however, allows for privileges that are usually described as exceptions or exemptions. In any system of rules of general application there are often some exceptions or exemptions. And when a legal privilege is claimed, we want to know the basis for the privilege.

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THE HOUSE OF COMMONS OF CANADA

After all, everyone is supposed to be equal before the law; no one should have special legal status unless it is allowed in the law or can be justiied for a larger public purpose.

For example, the Criminal Code¹ applies equally to everyone except persons under the age of seventeen who are not subject to the criminal law in the same manner as adults. We all must respect posted speed limits when we drive, except persons driving emergency vehicles, particularly the police, who must attend to urgent matters. We all can be sued or arrested for our illegal actions, except foreign diplomats who cannot be sued or arrested for their illegal actions. We are all subject to being called to serve on a jury, but not lawyers, who are exempt from jury duty (you surely wouldn’t want a lawyer sitting on a jury). Legal privileges serve a larger public purpose and are not meant to enable persons to avoid their legal obligations for personal reasons unrelated to a larger public purpose.

As mentioned earlier, upon Confederation in 1867, Canada was given a system of government “similar in principle” to the British parliamentary system of government, including its collection of parliamentary rules and practices, many of which were unwritten and known only through parliamentary tradition. Nonetheless, these rules and practices are recognized as part of our constitutional framework, that is, they form part of our constitutional law. Parliamentary privilege is one of the rules we inherited from the British parliamentary system.

Parliamentary privilege is designed to ensure that Parliament, particularly the House of Commons, is able to carry out its constitutional functions without any outside interference of a legal nature. Section 18 of the Constitution Act, 1867 provides that the Parliament of Canada may give itself such privileges, immunities, and powers as it may need (but none that are greater than those enjoyed by the British House). Soon after Confederation, Parliament gave itself the privileges, immunities, and powers of the British House of Commons and declared that these are part of the general and public law of Canada. hese privileges, immunities, and powers are commonly referred to as the law of parliamentary privilege.

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Parliamentary Privilege

he locus classicus on the meaning of parliamentary privilege is found in the 1844 British parliamentary text, Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament:

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. . . .
hus, privilege, though part of the law of the land, is to a certain extent an exemption from the general law.²

As the Erskine May text indicates, the privileges of individual members are derived from those of the House, that is, members have privileges in support of their parliamentary functions as members and not for other purposes.

Parliamentary Privilege as an Exemption

Parliament with its two legislative chambers, the Senate and the House of Commons, is not treated under the law as any other institution or corporation is treated. It’s a special case due to its unique constitutional functions.

Parliamentary privileges were won through political conlicts between the House of Commons and the Crown, as we discussed earlier. hey are not simply the product of some friendly agreement. hey began as political assertions by the parliamentarians of the day, were resisted...