It Seemed Like a Good Idea at the Time: The Challenge of How to Determine Whether a Statutory Process for Exercising a Privilege was Followed

Two former Canadian Cabinet Ministers recently resigned following a public disagreement with the Prime Minister.  They were subsequently expelled from the caucus by the Prime Minister.  The Prime Minister indicated that he made the decision to expel the former Ministers from caucus following consultation with members of the caucus.

One of the expelled members has now raised a question of privilege in the House of Commons arguing that the expulsions constituted a breach of privilege on the basis that the expulsions did not respect the provisions of the Parliament of Canada Act relating to expulsions from caucus.  Sections 49.1 to 49.8 of the Act set out processes for the expulsion and re-admittance of members to caucus among other rules for caucus votes.  Section 49.8 requires each caucus, at its first meeting of a new Parliament to vote on whether to have the rules apply to their caucus during the Parliament.  There is no default one way or the other in the event that such a vote does not occur.  It is alleged that the Liberal caucus did not hold such a vote, although the chair of caucus wrote to the Speaker, as required by the Act, indicating that there was a consensus to not apply the rules unless and until the party convention decided on the matter.  No-one objected to this decision at the time (some 3 years ago).

The question of privilege, based on a statutory provision, raises questions relating to how such issues are to be resolved.  The fundamental question is how are questions of interpretation and enforcement of a statute that deals with the internal affairs of a caucus of a legislative assembly to be determined.  There are some who would suggest that since the matter is one found in statute the matter passes to the courts.  Others suggest that the matter is to be decided by the Speaker. While others suggest that neither the Speaker nor the House can determine questions of law, without considering who would make such determinations.  In light of these facts and issues, this situation also raises the legal and constitutional question of when, if ever, it is advisable to include matters internal to a legislative assembly in a statute as opposed to the internal rules of the assembly.

Although there may be a few steps along the way, the way forward is relatively clear in this case.  The first step is to ask is whether the subject matter, absent the statute or any rule of the House, is a matter that is covered by parliamentary privilege?  If the answer is no, then the default is that the determination of the relative rights falls to be determined by the courts.  If yes, there is a second question.   Has the statute waived or altered the privilege in such a way as to give the courts jurisdiction, directly or by necessary implication?   If this has not occurred, then the matter, as any matter of privilege would, remains with the House of Commons to decide.

The mere fact that a matter is covered by a statute does not give the courts jurisdiction to interpret and apply the statute’s provisions.  It may raise some questions as to why the usual constitutional position that legislatures legislate, and courts adjudicate on the legislation should not apply; but mere inclusion of a matter in in a statute is not determinative.  One exception is when the matter is one of parliamentary privilege.  The first articulation of the law on this was the case of Bradlaugh v Gossett (1884) 12 QBD 271 in which the House of Commons refused to admit a member who would not swear an oath, but rather wanted to affirm as provided for in the Oaths Act. The member sought intervention by the courts.  The courts refused stating “I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute law which has relation to its own proceedings.” (Stephen J).  This statement of the law was accepted by the Supreme Court of Canada in Canada (House of Commons) v Vaid 2005.  In the same case the Supreme Court reiterated that codifying privilege in statute did not change the nature of privilege, or the respective roles of the courts and the House of Commons in dealing with matters found to be privileged.  At the same time, the court noted that a statute could not enlarge privilege, but it could limit it.

Are the internal workings of a caucus protected by parliamentary privilege?  Until 2012 this question was not settled.  There was some doubt as to whether caucus meetings were proceedings in Parliament, or so closely related to proceedings that it was necessary that they be protected by privilege.  In 2010, a federal cabinet minister was dismissed from her cabinet post and expelled from the caucus.  She brought an action in the courts to consider the circumstances surrounding these decisions.  The decision relating to the dismissal from cabinet was found to unassailable as an exercise of the Crown prerogative, and the decision to expel the member from caucus was found to be covered by parliamentary privilege. The court concluded “that it is settled law that the doctrine of parliamentary privilege precludes judicial review of expulsion, disqualification from caucus and other disciplinary matters pertaining to Members of Parliament”. (Guergis v Novak et al. 2012 ONSC 118, affirmed 2013 ONCA 449).   It is this case which provided the immediate background to the changes to the Parliament of Canada Act which enacted ss.49.1 to 49.8 in 2015 (SC 2015 c.37, s.4).

If this law was not certain enough, s. 49.7 was included in the amendments to the Parliament of Canada Act to preclude any interference by the courts in the internal affairs of a caucus.  This also answers any question relating to whether Parliament has statutorily limited parliamentary privilege.  Section 49.7 provides:

49.7 Any determination of a matter relating to the internal operations of a party by the caucus, a committee of the caucus or the caucus chair is final and not subject to judicial review.

 

All decisions, including the possible decision to not decide, relating to the expulsion of the two members from caucus, notwithstanding the statute, fall within and are covered by parliamentary privilege.  It is therefore up to the House of Commons to decide if and how it will apply sections 49.1 to 49.8 of the Parliament of Canada Act to the situation raised by the expelled members.

How is this to be done?  While as a general proposition the Speaker of the House of Commons will not determine questions of law, nor invite a committee to provide a determination of a legal matter (i.e., one found in statute), the proposition cannot hold when the statute itself is codification of a process relating to a matter falling within privilege.  As was made clear in Bradlaugh v Gossett, the House is the body responsible for the interpretation and application of laws relating to its internal affairs.  Therefore, the House, and the Speaker on behalf of the House, will need to figure out how they will proceed.  The best way forward is to accept the statutory provisions as a statement of the process that Parliament intended the House and its constituent parts, including caucuses, to follow when exercising the privilege over the internal affairs of caucuses.   If the House were to follow the normal process for addressing questions of privilege, the Speaker is only to be asked whether a Member has raised a prima facie case such that the matter should be referred to the Standing Committee on Procedure and House Affairs. If so referred, it will then be up to that committee to inquire into the matter and report back to the House of Commons, with the House making the final decision based on the report.  It is important to bear in mind that the Speaker’s prima facie ruling is not a finding that anyone has done anything “illegal” or wrong.  That is a decision that only the entire House can make following the usual committee and House procedures.  The Speaker’s decision is limited to whether the matter ought to be inquired into.

Since the question flows from a partial codification of a privilege in a statute, the usual “rule” that the Speaker, the committee, and the House  do not investigate questions of law or provide opinions or finding on questions of law would not apply.  In this case that is what is constitutionally and legally required of them.    There is no-one else who has the authority to determine how a privilege is to work or exercised in the face of a statutory provision.  For anyone else to do so would infringe the independence of the House f which parliamentary privilege itself is intended to protect.

The inclusion of the particular privilege in ss.49.1 to 49.8 does not make its application any easier.  If the matter is referred the committee it will need to inquire into a number of issues, including the meaning and effect of there being no default process in the Act.   It also needs to consider what the House requires of caucuses to meet the intent of the statute?  What is the position of the House where a caucus chooses to not take a formal vote, but rather “comes to a consensus” and reports that to the Speaker?  Can, or should, the Committee look behind the statement provided to the Speaker by the Chair of a caucus, as occurred in this case?  Does it matter that the decision being challenged occurred over three years ago (the decision not to decide, or to proceed by way of consensus) and that those looking to challenge the decision were members of caucus at the time?  Assuming there is a finding that the statute, and therefore the privilege, has been breached, what is the remedy?  Force a rule and process on the caucus (i.e., establish a default)? Require the caucus in question to vote now?  Whatever they determine will, as a result of privilege, be final.

It will be interesting to see the Speaker, committee, and House handle the matter.  Will there be greater public scrutiny and pressure because the privilege is found in statute rather than in practice and precedent.   If this is the case the committee and all parliamentarians should ask themselves if greater scrutiny and diligence was intended by elevating this particular process and privilege to inclusion in a statute (even though it can be opted out of by a caucus).   Do parliamentarians and the public see a privilege found in a statute as more important than one found in a mere standing order, rule, practice or precedent?   If this is the case, then was it intended that this particular privilege be more important than those which rest only on practice and precedent?  Did anyone anticipate that by including the process in a statute that issues of compliance would be argued to be “illegal” actions, or “contrary to the rule of law” as opposed to breaches of privilege or matters merely related to the internal affairs of the House?  Is this the way of the future or a cautionary tale?

3 thoughts on “It Seemed Like a Good Idea at the Time: The Challenge of How to Determine Whether a Statutory Process for Exercising a Privilege was Followed”

  1. This is a fascinating laboratory case of the intersection of statute law administered by the courts and Parliamentary privilege determined within the House of Commons. The fact that the issue also involves the internal functioning of a party caucus adds yet another layer of difficulty, and even more so, of interest. Such a situation deserves to be unravelled, as the question of who ultimately determines caucus membership, and how, has become a recurring one. Perhaps regrettably for the evolution of political law, the Philpott file is unlikely to provide the opportunity to resolve the matter. The House is likely to rise around June 24th at the latest. It will be dissolved sometime over the summer, in anticipation of the election. Between now and late June, a resolution of this part of the SCN-Lavalin fallout is rather unlikely, especially as other consequences of it (such as the Trudeau-Scheer litigation) keep arising. Keep this matter in mind for the next Parliament!

  2. I don’t agree that the “the best way forward” for the House, at least not the only way forward, is to accept the statutory provisions as a statement by Parliament of how it should handle its privileges. The House could choose to ignore the provisions and the Speaker rule against the p/p on two grounds: (a) it requires an interpretation of the law which the Speaker does not do and (b) it relates to internal caucus business which is beyond the powers of the Speaker.

  3. While I agree that the House could ignore the statutory provisions, but that then begs the question of why the provision was enacted in the first place. If, as you suggest that the Speaker cannot, or should not interpret the statute, then who should? The Speaker, as the guardian of the privileges of the House has a role to play in applying the law of privilege, regardless of the source of that law. I would note that in Canada, the Speaker is constantly applying such law, some of which is found in the Parliament of Canada Act. There are various provisions that put obligations on the Speaker. There are others, such as section 4 that relate directly to privileges. I would also add that there are a number of jurisdictions throughout the Commonwealth, most notably Australia, where Privileges are set out in statute. This has had little effect on the Speaker there “interpreting” the statute. The logical extension of your position would be that if Canada were to codify privileges in a statute the Speaker would not be able to rule on them. This can not be the case. As I note in the blog post, putting the Speaker in this position was always a risk in partially codifying privilege in a statute. I also note that the Speaker only makes decisions on a prima facie basis. It is the House that will ultimately have to interpret the law as it relates to their privileges.

    On the question of involving the Speaker, and therefore the House, in the business of caucus. It may by unfortunate, or unwise, but this is exactly the role Parliament gave to the Speaker and the House when it enacted the provisions in question. As I point out, ultimately the question of whether the House wants the provisions to be applied in a broad fashion, at all, and how, can only be determined by the House, first through it privileges committee. I do not see any other constitutional way to so. Other than ignoring a statute, or allowing the courts into the business of the House and caucuses, how would you suggest the law be given effect or enforced?

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