The Canadian Federal Court of Appeal, in Board of Internal Economy of the House of Commons v Boulerice et al. 2019 FCA 33 has recognized, as a matter of parliamentary privilege, the right and ability of the Board of Internal Economy of the House of Commons to establish the regime of allowances and resources for Members of Parliament, to determine whether the use of such resources was proper, and to demand repayment for misspending. As a result, the Federal Court, or any other court, lacks jurisdiction to judicially review decisions of the Board.
In 2014, in a series of decisions, the Board of Internal Economy of the House of Commons (“the Board”) found that certain Members had improperly used their allowances for mailing political rather than parliamentary material, renting space and employing staff for political purposes, and improperly claiming a per diem allowance. The Board also decided that the misspent funds were to be reimbursed. The Members sought to judicially review the decisions in the Federal Court claiming they were denied natural justice and that the decisions were not reasonable in that they were politically motivated. The House of Commons responded with a motion to dismiss the applications on the basis that the decisions of the Board were proceedings in parliament and were a matter of internal affairs protected by parliamentary privilege. As a result, the courts lacked jurisdiction to judicially review the decisions of the Board.
At first instance, the Federal Court dismissed the motion and found that the Board was like any other Board and its decisions were subject to judicial review (2017 FC 942). The Federal Court of Appeal, unanimously disagreed and concluded that the decisions of the Board are protected by parliamentary privilege and that the courts do not have jurisdiction to review decisions of Board relating to Members and how they use the allowances provided to them to carry out their parliamentary functions.
As a matter of constitutional law, parliamentary privileges are constitutional in nature and protect the independence of the House of Commons, the Senate, and Legislative Assemblies to carry out their parliamentary functions without interference by the Crown or the courts. In other words, if a matter is covered by parliamentary privilege it is solely for the House itself to fully determine the matter and any decision made in the exercise of the privilege is not reviewable by the courts. In the 2005 Supreme Court of Canada decision in Vaid (2005 SCC 30) the Court determined that courts could determine the existence and extent of any claimed parliamentary privilege but not review the exercise of it. As a result, once it is established that a claimed privilege exists and covers the subject matter at issue, that is the end of the courts’ jurisdiction.
In the present case, the House of Commons asserted three privileges: the proceedings of the Board were a proceeding in Parliament and pursuant to Article 9 of the Bill of Rights, 1689 they could not be questioned or impeached in a court; the determination of allowances and resources available to Members to carry out their parliamentary functions was a matter of internal affairs and directly related to the carrying out of the constitutional functions of the House; and, the House has the exclusive authority to discipline its Members. The Federal Court of Appeal agreed on all three bases.
The essence of the lower level court’s decision was that the Board’s proceedings were not proceedings in Parliament, and that privilege was effectively restricted to protecting speech in the House and its committees. The Federal Court of Appeal found this definition far too restrictive. The Federal Court had not only erred on the question of the extent of proceedings. It had also failed to appreciate the independence of Parliament from the courts and what the implications of that independence were. The Federal Court of Appeal then proceeded to analyse the the three claimed privileges.
The Court of Appeal reaches its conclusion that proceedings of the Board should be considered proceedings in Parliament on three inter-related premises. At its simplest the court states “In many respects, the Board is an extension of the House. It performs functions which would otherwise be performed by the House itself. The actions taken when acting in that capacity are in a very real sense taken by the House itself. The decisions in issue, insofar as they delineate the means and resources which must be made available to Parliamentarians in order to allow them to perform their core parliamentary functions, can properly be viewed as proceedings in Parliament.”[Para 117]
The second line of analysis is somewhat similar. The court finds that the matters considered by the Board are so intrinsically related to proceedings in the House that they enjoy the same protection. They note that Article 9 of the Bill of rights 1689 “encompasses the right to legislate, deliberate and generally hold the government to account …[and}..[t]he category can extend to matters which take place outside the House if they are ‘so closely and directly connected with proceedings in Parliament that intervention by the courts would be inconsistent with Parliament’s sovereignty as a legislative and deliberative assembly’” [Para 104] For the court the connection between the work of the Board relating to allowances and resources for Members to carry out their parliamentary functions, and those functions was “obvious”, and pre-dated confederation [Para 105]. To state the “obvious” the court finds:
[H]ow could Members of Parliament vote responsibly on proposed legislation or ask relevant questions in holding the government accountable without having the staff and the resources allowing them to be properly informed or represent their constituents in the House without having access to the means by which they can communicate and report? In short, proceedings in Parliament cannot take place without Parliamentarians having the means by which they can discharge their parliamentary functions.
I do not believe that one needs to go any further to show that when deciding matters of the type in issue here, proceedings before the Board are so directly and closely connected to proceedings in Parliament as to warrant being treated the same way. [Paras 110-111]
Finally, the court notes the recent amendment to the Parliament of Canada Act that recognizes proceedings of the Board are proceedings in Parliament and concludes that, at least insofar as they relate to Parliamentarians, this is a correct statement of the law.
On the question of whether the ability to establish and determine the appropriateness of allowance falls within the privilege over internal affairs the court notes that
We are dealing with the right of the House of oversee rules governing the use of public funds made available to its Members in order to allow them to discharge their parliamentary functions, and to impose compliance. These activities involve Parliamentarians acting as Parliamentarians concerning parliamentary functions and obligations. [Para 75]
Following earlier jurisprudence in Villenueve v Northwest Territories 2008 NWTSC 41 and Filion c Chagnon 2016 QCCS 6146 dealing with internal management of parliamentary resources, the Federal Court of Appeal concludes that:
The unanimous case law on point and this historical acquiescence lead to the conclusion that the privilege claimed here– i.e., the House’s exclusive right to oversee and debate matters pursuant to internal rules governing the use made of funds and resources provided to Members of the House for the purposes of allowing them to perform their parliamentary functions—comes within the established category relating to internal affairs. [Para 94]
The third privilege identified, closely related to management of internal affairs, is that of “discipline” in the sense of the House of Commons’ authority to control its own Members by establishing and enforcing internal rules. Being a Member of Parliament requires the Member to adhere to the rules and requirements of the House, including the financial rules set by the House itself. These rules, and the enforcement of them are necessary to ensure the integrity of the House and its processes. [Para 102]
It is also worth noting the comments of the court on the question of necessity since necessity is the basis of all privileges and the primary focus of any analysis for provincial legislative assemblies which must rely on inherent privileges. The reasoning of the court on necessity also form the overarching summary of the reasoning of the court on the relationship between the courts and legislatures. The court writes:
It appears to me that allowing courts to oversee decisions regarding the allocation and use made of parliamentary resources in the context of judicial reviews would seriously challenge the dignity and efficiency of the House.
First, looking at the matter from the angle of discipline, we need only refer to the opinion of McLachlin J. in Harvey according to which the dignity and efficiency of the House would be imperiled if courts were allowed to oversee the limits and qualifications which Parliamentarians impose on themselves in the exercise of parliamentary functions.
Considering the matter from the perspective of internal affairs, it belongs to Parliamentarians to decide for themselves what they need and how to allocate funds and resources in order to carry out their parliamentary functions. In my view, allowing courts to have the last word over the handling of these affairs would intrude on the autonomy of the House and demean its constitutional role.
[A]llowing the courts to opine on what Parliamentarians need in order to perform their core parliamentary functions would also impact on the dignity and efficiency of the House by demeaning the role of Parliamentarians. [Para 123 to 126]
This decision of the Federal Court of Appeal once again highlights two things. Legislatures and their Members are independent of the courts and that Members are responsible for their own internal governance. But being responsible also means that one must act responsibly. There is no judicial backstop, as it should be, so it is incumbent for Members to take matters of internal affairs seriously and to treat each other fairly. There is however a political backstop, and political judgments by the electorate can be considerably more severe than those of the courts.