Over the last decade many legislative assemblies have worked to address “workplace” issues by examining what constitutes ethical behavior in a modern parliamentary institution. Beyond the traditional ethical issues regarding conflicts of interest, bribery and lobbying, assemblies have sought to address issues related to personal behaviours including harassment, bullying, human rights violations, misogyny and non-inclusive practices and procedures. At the same time, it was necessary to recognize that a legislative assembly is made up of elected members, the selection of which is beyond the control of the assembly, that the body is inherently political and therefore adversarial, and that legislative assemblies must be free to operate independently of the government and the courts. The result, in most cases, has been to develop a code of ethics and conduct substantively seeking to address unwarranted behaviour and policed through a complaint process.
The processes developed were necessarily internal. The work of an assembly is unique and is carried out by elected members who collectively constitute the assembly itself. Inevitably concerns would be raised regarding the “fairness” of the process to resolve any complaints raised, particularly when the behaviours, attitudes and effects are between and among members. The inherent partisan, political and adversarial nature of the assembly also presented the problem of developing processes that would be as free from political motivation and interference as possible. Some form of objective investigation that would be able to separate out political and partisan activities from unethical or harassing behaviours needed to be developed if there was to be any semblance of integrity from the perspective of both members and the public.
Like most legislative assemblies, the Newfoundland and Labrador House of Assembly adopted codes and legislation aimed at ensuring the integrity and ethical behaviour of members. The processes developed under the legislation created an officer of the assembly, the Commissioner for Legislative Standards, who would investigate complaints and report to the Assembly, which could impose the appropriate discipline on any member who ran afoul of the standards. In 2019 complaints were raised by certain members against other members, who were also were members of the provincial cabinet. The complainants claimed that they had been harassed and bullied. While the Commissioner rejected the majority of the allegations, there were findings of inappropriate behaviour on at least one allegation. The reports were subsequently debated in the Assembly and the offending members sanctioned, removed from caucus and forced to resign from cabinet. Given the “political” aspects of the complaints and sanctions, there was considerable press coverage, including media interviews with the complainants, that resulted in reputational and political consequences.
The affected members decided to take legal action against various actors in the complaint process. Unlike other cases which have been based on judicial review of decisions of management committees or legislative assemblies, which have been rejected since the decision-making bodies were found to be legislative in nature and the decisions protected as “proceedings in parliament”, the members brought civil suits against various individuals. Actions were brought against the Commissioner and the Speaker for abuse of process and misfeasance in office for the handling of the complaints and failure to protect the” rights” of the members complained against. These two officials, along with the complainants, were also alleged to have abused their offices. The basis of the claim was that the investigation was conducted pursuant to a statute and by an individual investigator with the result that the process was not a proceeding in parliament, rather decisions were taken pursuant to powers granted by statute. In addition, actions were brought against the complainants for defamation for the content of the complaint, statements made in the investigation and statements made to the press. The respondents brought motions to have the claims dismissed as disclosing no triable cause of action since the proceeding would contravene the privileges of the assembly and its members.
In two decisions released on the same day, Joyce v Gambin-Walsh, 2022 NLSC 179 and Kirby v Chaulk, 2022 NLSC 180, Justice Chaytor of the Supreme Court of Newfoundland and Labrador dismissed all aspects of the claims with exception of defamation claims based on comments made to the press. The decision rested on the foundation of the assembly’s privileges over its internal processes, its exclusive right to discipline its members without interference from the courts, and the freedom of speech for those participating in matters before an assembly.
Since the claims were made within the context of a provincial legislative assembly the defendants were first required to demonstrate that the privileges at issue were necessary for the assembly to carry out its functions. It was evident from the facts and the jurisprudence that the expected standards of behaviour as between members, both inside the chamber and outside of it, are matters that are required for the assembly to carry out its functions with dignity. The enforcement of those standards as an incident of the power to discipline members was also found to be necessary for the Assembly to carry out its functions. The court held that, although the process of the filing of complaint and investigation of those complaints was not itself a proceeding, the purpose of the process was to allow the assembly to consider whether the actions of a member warranted discipline. The Commissioner, in entertaining and investigating the complaints, was acting as a delegate to assist the Assembly in making a decision. In the words of the court, the entire process was “connected to the proceedings and the House fulfilling its consitutional roles.”
Although the court found that it was without jurisdiction to consider the actions of the various participants in the process, it made it clear that the assembly itself had jurisdiction to do so. The assembly had the jurisdiction, and therefore the responsibility, even if not articulated in any statute or code, to determine whether the standards applied should be a basis for discipline and whether the process followed met the necessary standards of fairness. Finally, only the assembly could impose any sanctions. Even if a court might have found that the Commissioner had exceeded the language of the codes, or had acted unfairly, none of these considerations changed the fact that the entire matter fell within a decision-making framework focussed on the disciplining of a member of the assembly, a matter that falls within the ambit of parliamentary privilege, regardless of any errors, omissions, or findings. As members of the assembly, the plaintiffs (respondents to the complaints) were able to raise any issues they might have had regarding any issues, be they legal, factual, procedural, or political.
This left the issue of defamation claims against the complainant who had discussed the complaints and alleged harassment and bullying with the press. It has generally been settled law that comments made outside of proceedings, particularly comments to the press, are not covered by parliamentary privilege. This is why it is not uncommon for one member to dare another member to repeat what they have said in the chamber, where speech is protected absolutely, outside the chamber where the laws of defamation apply. To avoid such a finding, the complainants, who were members, argued for a broader application based on the changing role of members and the way that they were expected to carry out their parliamentary functions. They submitted “that the scope of parliamentary privilege of freedom of speech should include public statements made by members…if those statements were made in the course of advocating and performing their functions as members.” (Kirby para 83). It was further argued that “traditionally advocacy by members…was limited to the House of Assembly. That was their performance venue where they advocated, questioned colleagues, and represented their constituents. However, in contemporary times, much of that advocacy occurs in other forums such as through the media and social media. Therefore, …such public statements and should be considered a necessary part of members…performing of their legislative function.” (Kirby para 85)
The court refused to extend the privilege as argued for. Holding that the purpose of privileges was to protect the constitutional separation of institutions within the constitutional architecture, the court noted that privileges are not individual. They belong to the legislature, or legislative assembly, as a whole. Privileges are designed to protect the assembly and the legislature in the carrying out of their consitutional role. Members, witnesses and others only enjoy the protection of privilege in the furtherance of the assembly’s functions, not in their individual capacity or as an incident of their status. Institutional and collective functions and one’s role within them is what is protected.
There may be other protections that develop for speech with constituents. However, the basis for any such protection would need to be found in the the law of qualified privilege and the public discourse based defences against defamation. Protection of parliamentary privilege does not stretch beyond the confines of proceedings and matters directly related to them.
In many ways there is nothing surprising about the outcome of these decisions. They confirm the necessity to protect the constitutional space occupied by the legislature to carry out its business without interference from the courts and the executive. But the limits of that space must also be respected and accepted by the members as well as by the courts.
These decisions confirm that legislative assemblies, as independent constitutional bodies, remain responsible for defining and policing the acceptable behaviours of their members. But exclusive jurisdiction (exclusive cognizance) over internal matters also means that those within the institution must act responsibly. As attitudes and technologies change, there is scope for assemblies and their members to adapt new practices to meet those changes. Members can and should be required to adhere to different moral, ethical and behavioral standards as they engage with each other. Processes which protect the rights of all members (complainants and respondents) need to be developed. The press and social media provide near instant communication and public accountability that can be both helpful and hurtful, so care must be taken to protect the reputation of the institution and all involved. At the same time, any internal process must allow for fairness, since all discussion among and between members takes place within the consitutional space provided. Once a different playing field, such as public engagement through the media, is chosen it is the rules of that forum and not those of the assembly will apply.
There is a lesson to be learned here by all members in all legislative assemblies. To rely on the protection provided by constitutionally privileged space, members must accept the need to act responsibly within that space. This is highlighted by the fact that reliance on a privileged space means that there can be no legal review of how they have acted. The rules of behaviour and ethics, along with the process to address alleged breaches, are developed with the acquiescence of all those who could become involved in their enforcement, both potential complainants or respondents. Members also must recognize that, in the end, the body of which they are all members will have the final say on the meaning and consequences of any actions. They could be required to debate, discuss, consider, resolve and justify all decisions taken by the collective body of which they are a part and to which the rules apply. As part of the collective body in which these cases took place, the members involved were responsible for the rules and the process. They were also responsible to the institution and collectively to each other. Since the body to which they belonged was constitutionally independent, the matter rested solely with them. In these cases, both the complainants and the respondent failed to fully understand what that meant and required. By seeking to use the courts to attack those responsible for the internal process they had agreed to, the members against whom the complaints were brought did not accept the authority of the assembly of which they were part. In short, they not only did not take personal responsibility, but they also did not accept that the assembly acted responsibly or could do so. The complainant members similarly did not respect the process, the decision or the outcome, and sought to contest the issues in the media. Both sides in the dispute, while content to argue for their privileges, failed to understand or accept the constitutional responsibilities that came with them.
What the court did was to remind all involved that both courses of action were inconsistent with the responsibility that all members have to assembly and to each other. They and all members were reminded that they are actors in a constitutionally privileged environment which they bear the responsibility to respect.
It may be that the entire process demonstrates that the assembly, or some of its members, did not act on their best behaviour. But, as with all such matters determined by the assembly, the final judges of whether the assembly adopted an appropriate standard of expected behaviour, whether its delegate, the Commissioner, acted appropriately, and whether the assembly acted fairly, is the electorate, not the courts.