It was inevitable that Parliament would open this fall during the ongoing pandemic, and that there would be a percentage of those who are involved in the business of Parliament who would not be fully vaccinated. There was also a strong possibility that some of them would be Members of Parliament or Senators, not to mention the staff, the public and witnesses who are required to ensure that the constitutional business of Parliament can continue as normally as possible.
It may be tempting to effectively prevent unvaccinated MPs from participating in proceedings by insisting on in-person sittings only or suggesting that they resign. These views fail to recognize that they were, like all others, elected to be Members in this Parliament. It may be that a vast majority of Canadians do not agree with the position of these Members, but the fact that one does not agree with the views of any Member, regardless how dangerous, cannot be the basis for exclusion. Denying a Member participation in the business of the House, based on their beliefs, denies not only them, but also their constituents, from participation in the nation’s central democratic institution.
However, this does not mean that the House and the Senate cannot and should not take the necessary steps to protect themselves from the threat of illness presented by those who are not vaccinated. More importantly, the threat of an outbreak could also interfere with the business of Parliament, including legislating and holding the government to account. Members have the ability and the obligation to protect themselves from potential contagions, regardless of the source, including other Members.
A reasonable balance can be achieved.
The first question to address is whether the House can deny a Member access to the chamber, the facilities of the House including the Member’s office, or its proceedings. The short answer is yes. But only the House itself, and no-one else can. As a matter of parliamentary privilege, the House has absolute power over its constitution and proceedings. It also has the power to discipline and regulate the behavior of Members, including the ability to decide whether to allow a Member to sit and vote and under what circumstances. It is also the case that any decision of the House regarding the exercise of these privileges is not reviewable in any court.
I have heard it stated by commentators, and potential recalcitrant Members, that one of the privileges they enjoy is the right to attend the proceedings of the House, with the unstated corollary that they can assert this privilege even against the House. This formulation of the privilege is not consistent with the concepts of parliamentary privilege, nor with the privilege at issue.
Parliamentary privileges have as their purpose the protection of each House of Parliament so that it can carry out its business without threat from outside the House. In the same way that the House can protect itself from physical threat and interference it must be able to protect itself from health threats.
Like all privileges, the privilege relating to attendance belongs to the House not to the individual Member. It is for the House to exercise its privileges how it deems best for itself and its Members collectively. This principle was accepted by the House of Common, and Justice Gomery during the Inquiry into Sponsorship Spending, when the issue arose regarding whether a witness could waive privilege. It was asserted by the House, and accepted by Justice Gomery, that only the House itself could waive the privilege, not an individual.
The privilege relating to attendance is not correctly characterized by the Members and commentators. While it may seem that the privilege belongs to individual Members because it is often raised by a member who has had their access impeded, the privilege belongs to the House. The privilege is that that the House of Commons has the right of attendance of its Members and that its Members cannot be impeded, molested or obstructed from attendance. The privilege is against the world outside of the House and its proceedings. It precludes others from interfering in the business of the House and its Members. It is to be asserted by the House, not against it.
Although in slightly different circumstances, there are clear precedents where the UK House of Commons has denied Members the right to sit and vote. In 1868, a Mr. Bradlaugh was elected to the UK House of Commons, but because he was an avowed atheist, he refused to swear an oath of allegiance. When advised that he could not then take his seat he said he would take the oath, but it was clear that he really did not believe sufficiently to be able to swear. The UK House of Commons then voted to deny him the ability to swear the oath. As a result, he was denied the ability to take his seat. He sought review in the courts. The UK courts denied his request on the basis that it was up to the House to decide the conditions for sitting. This case was cited with approval by the Supreme Court of Canada in at least two privilege cases.
Again, in the 1970’s elected members of the Sien Fein were elected to the UK House of Commons and refused to take the oath. Like Bradlaugh before them, they and were denied the ability to sit. They then sought other benefits provided by the House and the Speaker denied these to them. Again, the Northern Ireland (UK) courts refused to intervene.
In Canada, legislative assemblies have been faced with not allowing members to sit and vote for failing to file election expenses on time and have allowed members to continue to sit even though the election laws say that they should be suspended until the issue is resolved. Finally, the Senate has suspended Senators while issues of propriety of expenses were being determined.
In addition, Members have historically taken steps to protect themselves from other Members. In October 1313, a law was passed by the English Parliament that forbade Members of Parliament and Lords, from bringing arms into either House. This law is still effect. It is not a stretch to argue that if Members can protect themselves from physical threats posed by other Members, that they can protect themselves from health threats as well.
Members only have rights and protections as part of a collective House. As such, they are wholly subject to the rules and decisions of the collective. Where the actions of a Member threaten the whole with the potential of denying it the ability to carry out their constitutional functions, the whole has the responsibility to protect itself and their constitutional role.
As noted above, there are consequences for both the Member and their constituents if they are denied the ability to participate in the business and proceedings of the House of Commons. Therefore, a means should be found to allow the fullest participation, while still protecting the House. Fortunately, the means to do so was demonstrated by allowing virtual attendance in the previous Parliament. This technology should be used to allow those who are not vaccinated to participate as much as the technology will allow. Otherwise, the House may be seen to be “punishing” Members for their beliefs, rather than protecting the health of Members, staff, and other participants in proceedings and the business of the House. Punishing Members for political or other beliefs is wrong. Protecting the institutions of democracy is not.