Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 13 - Evidence - May 1, 2018
OTTAWA, Tuesday, May 1, 2018
The Standing Committee on Rules, Procedures and the Rights of Parliament met this day at 9:30 a.m., pursuant to rule 12-7(2)(c), to consider the orders and practices of the Senate and the privileges of Parliament.
Senator Leo Housakos (Chair) in the chair.
[Translation]
The Chair: Good morning and welcome colleagues and members of the general public who are following today’s proceedings of the Standing Committee on Rules, Procedures and the Rights of Parliament either here in the room or listening via the web. I would ask the honourable senators to introduce themselves.
[English]
Senator Joyal: I am Senator Serge Joyal from Quebec. Good morning, sir.
Senator Marwah: Good morning. Sabi Marwah, Ontario.
Senator Greene: Steve Greene from Nova Scotia.
Senator Gold: Good morning. Marc Gold, Quebec.
Senator Griffin: Diane Griffin, Prince Edward Island.
Senator Wells: Good morning. Senator David Wells from Newfoundland and Labrador.
[Translation]
Senator Maltais: Hello. Senator Ghislain Maltais from Quebec.
[English]
Senator Seidman: Good morning. Judith Seidman from Montreal, Quebec.
Senator Batters: Denise Batters from Saskatchewan and also a Q.C., as I see you are.
The Chair: We are here, colleagues, to continue our committee’s work on parliamentary privilege. In June 2015, in the last session of parliament, this committee tabled a report entitled, A Matter of Privilege: A Discussion Paper on Canadian Parliamentary Privilege in the 21st Century. Our committee has agreed to continue this work, and this is our second meeting on this study. Parliamentary privilege, as we all know, is an essential component of parliamentary democracy. It exists to enable Parliament to function effectively and efficiently without undue impediment.
Today I wish to welcome our witness, who is with us from London via video conference to address a number of issues around parliamentary privilege. Mr. Richard Gordon, Q.C., as Senator Batters pointed out, is a barrister at Brick Court Chambers, in London, United Kingdom. He is a leading jurist in the fields of administrative and public law, constitutional law, human rights and civil liberties. With respect to parliamentary privilege, Mr. Gordon has appeared as a witness before the U.K.’s Joint Committee on Parliamentary Privilege, on a study leading to its 2013 report on parliamentary privilege. He also co-authored an in-depth analysis of the coercive powers of parliamentary committees.
Thank you, Mr. Gordon, for accepting our invitation. I will ask you to make your opening remarks, if you wish. Of course our committee members will have, I’m sure, a number of questions. Thank you for being with us here today. Can you hear us clearly?
Richard Gordon, Barrister, Brick Court Chambers, as an individual: Thank you very much, senator. Yes, I can hear you. In return, I hope that everybody can hear me and that I’m speaking at the right level.
The Chair: Loud and clear.
Mr. Gordon: So that you can all hear. Excellent, all right.
You ought to have some notes. I’m going to speak to those notes to begin with and I won’t deviate from them. Hopefully it will give you a chance to assimilate what my general views are. As I say in the beginning of this note, I’m greatly honoured by this invitation, and I hope that I can assist the committee in its important, continuing work on the issues surrounding the modernization of parliamentary privilege in Canada.
Like your earlier witness, I think Maxime St-Hilaire, my observations in this opening presentation are intended to be general in nature. I want to make three opening points.
First, many of the questions that you are raising in relation to the desirability of modernizing parliamentary privilege in Canada are similar to those now being asked in the United Kingdom. This is perhaps unsurprising, given the historic parallels between the doctrine in the two jurisdictions and the concomitant fact that the basic framework is the same in both territories.
Second, however, there is a fundamental difference, I think, between Canada and the United Kingdom. In Canada, you have an entrenched constitution with specific provisions that fall to be interpreted and applied by the courts. In the United Kingdom, we do not have an entrenched constitution because of the principle of parliamentary sovereignty, as adumbrated by the great Victorian jurist, A.V. Dicey. That principle has the effect that Parliament may make and unmake any law whatsoever. The consequence is that, because nothing is permanent and can be repealed at any time, nothing can be entrenched. This fundamental difference between the United Kingdom and Canada has, I suggest, material repercussions on the scope for modernizing parliamentary privilege.
Third, the rationale for parliamentary privilege is no longer what it was. That’s a point you make in your paper. In its origin, parliamentary privilege was a safeguard against royal incursion. One may call it a protective need for privilege at that time. It should be remembered that, for many years, Parliament and the Crown were at odds with one another. They were mutual antagonists rather than co-partners. Today, all that has changed. Today, Parliament has no adversary. The Crown’s power is almost exclusively symbolic. Indeed, it has handed over almost all of its ancient prerogatives to the executive. It is, I believe, a distortion of language to suggest that either the courts or the executive are adversaries of Parliament, in the common understanding of that term. Any tensions that may surface, from time to time, between the institutions of state are not struggles in the original sense of an absolute bid for supremacy. They are, rather, the tensions that can surface when members of a family, disagreeing with one another, may express their views in often trenchant terms. That is the very opposite of a threat to freedom of expression.
These three points, when aggregated, raise the following essential questions. One: What is the rationale for any remaining doctrine of parliamentary privilege? Two: Is the current regime compatible with that rationale? If, as I suggest, not, what reforms are desirable? Three — possibly the most important question — how is reform best effected, and what are the impediments to necessary reform taking place?
I will approach these questions in turn. First, therefore what is the rationale for any remaining doctrine of parliamentary privilege?
Your 2015 report on parliamentary privilege contains, if I may say so, an excellent outline on the origins of the doctrine in both the United Kingdom and in Canada. What emerges from that, with startling clarity, is that in the 17th century, free speech in Parliament was at the centre of the political demands being asserted by Parliament against the monarch. At its most simplistic level, one can view the civil war of the mid-17th century as an assertion of parliamentary privilege against encroachment by the monarchy. Eventually, statutory expression was given to freedom of speech in Parliament by article 9 of the Bill of Rights.
As already foreshadowed, the position is no longer the same. If the position is no longer the same, it is surely incumbent on those claiming the privilege to justify its continuation in any form. As it happens, the continuation of some set of privileges or immunities for those undertaking the work of government is not hard to justify. True it is that Parliament no longer faces an adversary claiming superior or even co-extensive power, but in the complex societies of today there remain conflicts of interest in which the freedom of expression of parliamentarians is of fundamental importance.
The context in which modern freedom of expression in Parliament is needed is, though, rather different to that in which it was needed in the 17th century. Freedom of expression is no longer a bulwark against attempted tyranny. It is, rather, a necessary adjunct to much of the functions undertaken in Parliament.
No doubt numerous examples could be given. The work of select committees in the United Kingdom is one with which I’m most familiar. I will give one anonymous but, nonetheless, not wholly imaginary situation. Take a statute that prevents taxpayer information from being disclosed. Indeed, I should add that it criminalizes such disclosure. Can the Inland Revenue use that statue before a select committee to refuse to divulge the information in circumstances where the committee in question is undertaking an investigation into whether the revenue is entering into soft deals with corporate taxpayers? If the committee may receive such information, may it not need to publish that information in a public report when publishing its findings in the public interest?
This is a different use of the concept of freedom of expression from that in which it originally arose. There is, of course, a similarity in that in both the 17th and 21st centuries Parliament’s work would be obstructed if parliamentary privilege did not exist. But the contexts are existentially different.
So my answer to the first question is that the rationale for a continuing use of parliamentary privilege as a constitutional doctrine can be justified only on the footing that it should exist where it is needed to enable Parliament to undertake governmental functions in the public interest. I will call that a functional test of privilege.
The second question, is the current regime compatible with that rationale and if — as I suggest — not, what reforms are desirable, is more difficult. It seems to me, and I detect this in some of the analysis in your paper, that the content of parliamentary privilege and, in particular, that of freedom of expression within Parliament should, in modern times, be adjusted so as to accommodate third party interests more than it currently does if one is applying a functional as opposed to a protective test of privilege.
It should be borne in mind that at its inception, the notion of independent third party interests coming up against the interests of Parliament simply did not exist. The development of fundamental rights has emerged only gradually. Very little thought has thus far been focused on the potential for conflict between the rights and obligations of third party individuals and other bodies, on the one hand, and on the other the duties of Parliament going about its daily work.
The guiding principles, in my view, for approaching the task of reforming parliamentary privilege to take account of modern conditions, specifically third party interests, are: one, the scope of the privilege should be clear; two, terms should be clearly defined; and three, different situations may need to be approached differently. These factors strongly suggest that parliamentary privilege ought to be codified as it is in many other jurisdictions, most notably Australia and recently New Zealand.
In the United Kingdom at least, terms are not clearly defined and the scope of privilege is not always clear, nor are different situations treated differently. Privilege is usually treated as a monolithic construct deriving from the exhortation in article 9 of the Bill of Rights:
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.
None of the terms in article 9 are defined, so it has fallen to the courts and learned commentators to seek to elicit meaning from the statutory text. In particular, the phrase “proceedings in Parliament” has no clear definitional content. If the definitional content is unclear, so too are the ambit and consequences of privilege. When, if ever, may a witness appearing before a certain committee refuse to appear or to answer questions? When, by not appearing or answering questions, does a witness commit a contempt of Parliament? Perhaps most fundamentally, what is a select committee’s powers in the face of what that committee perceives to be a contempt?
These and other questions bedevil not merely efforts to understand the scope and application of privilege, they also mean that the relationship between parliamentary privilege and fundamental rights, as well as, at least for the moment EU law, in the United Kingdom, has never been settled or subjected to consistent principle. Quite apart from the fundamental rights of persons appearing before Parliament, whether members or non-members, there are parties outside Parliament whose rights may well be affected by statements made in committee and relayed to the public via video link and or in published reports. I understand that similar problems arise in Canada, although you have made a start by codifying privilege in most of your provinces.
So my answer to the second question I have raised is that, in my view, parliamentary privilege requires considerable modification in order to accommodate the completely different circumstances in which it now falls to be applied. Its potential for damage is considerable in the modern world. As to what reforms there should be, I think that these should be approached in the light of the three principles I have suggested.
Particular care should be taken in any codification of privilege that allows fundamental rights or other provisions of law to be otherwise unlawfully interfered with. I can, at least in theory, see that there may be circumstances in which the task of Parliament would be rendered more difficult by not permitting it to override such rights in the public interest. However, I would argue that where it is necessary to override a right in the public interest, that is usually itself factored into the concept of lawful interference with the right in question.
Most appositely, perhaps, in order to accommodate fundamental rights, Parliament may itself, either by internal rules or discrete legislation, have to introduce additional procedural protections to those currently existing, so as to ensure that those whose rights may be detrimentally affected are afforded maximum protection.
The last question I have suggested is how may reform be best effected, and what are the impediments to necessary reform taking place? There are, it seems to me, only two ways: Reform through the courts and reform through legislation, whether statutory and/or through the internal mechanisms of Parliament.
In my view, it is something of an oxymoron to point to the common law as a source for reform. The common law is reactive to cases being brought. The common law is piecemeal. The common is fact-specific and largely retrospective in its practical operation to the case in question.
To say this is not to imply the courts do not have a significant role to play in how parliamentary privilege is applied. Plainly they do. Not least because where there is a collision between asserted parliamentary privilege and fundamental rights, it will, in the absence of clear statutory prescription, fall to the courts to say whether privilege should trump rights or vice versa. However, it cannot logically fall to the courts to undertake the detailed work of comprehensively reforming parliamentary privilege. That is and can only be the task of the legislator.
Ideally, therefore, I would like to see a major codification of parliamentary privilege that accommodated within its sweep both the role of Parliament, by conferring a remit for the scope of internal rules, and the courts by laying down the statutory template for how fundamental rights should be addressed and factored into the application of parliamentary privilege.
There is, though, a real challenge here. Legislating to reform parliamentary privilege may be strongly resisted by parliamentarians. We are enjoined to render unto Caesar the things that are Caesar’s, and unto God the things that are God’s. In that vein, it would seem to follow that, where legal issues arise in respect of the lawful application of parliamentary privilege, it must be for the judges to decide whether parliamentary privilege has been applied correctly.
At present, the application, as opposed to the formulation of parliamentary privilege is a matter within the exclusive cognizance of Parliament. Were that not the case, the courts would be contravening article 9 of the Bill of Rights by questioning proceedings in Parliament. Yet if privilege is to be successfully reformed, it will have to accommodate fair procedures and respect fundamental rights. Due process and other fundamental rights are legal rather than constitutional issues. Following reform, if effective reform is to take place, they cannot, as has been the case, simply be shrugged off as forming a different part of the Constitution, or consigned to the dustbin of the non-justiciability.
The respective remits of the courts and Parliament and their relationship with each other will have to change fundamentally if there is to be effective reform of parliamentary privilege. That will be no easy matter. I wish the committee well in the difficult tasks that lie ahead of it.
The Chair: Thank you, Mr. Gordon.
Senator Gold: Thank you very much for a very interesting presentation. Would you have any recommendations for how we might, in Parliament, implement internal mechanisms to control the exercise of the privileges such as we may refine or modify? That is, in addition to codifying as you recommend, what, if any, internal mechanisms within Parliament might be helpful to oversee and structure the application of these privileges when issues arise?
Mr. Gordon: It seems to me that if you are going to reform parliamentary privilege, you need to legislate for the boundaries that lie between that which is going to form part of the court’s remit, and that which is going to form part of the internal mechanisms of Parliament’s remit; the exclusive cognizance, if you like.
What are the principles which dictate how internal rules should be devised is a matter, in my opinion, for legislation. I imagine in Canada you have the same thing as we have in England: you have numerous committees. If you look at the standing orders for the committees in the U.K. at least, you will find that they are not consistent. One area that I would like to see a very simple reform, in terms of the internal mechanisms of Parliament, is complete consistency between the rules governing the various committees.
The second thing is that it would help enormously, just looking specifically at select committee procedures, to have a consistent procedure followed. At the moment, if you are a witness appearing in front of a select committee, that experience can veer from being a polite question-and-answer session to a torrid experience in the glare of the public headlights. So it would help enormously for witnesses to know what is expected of them in advance.
The third area that occurs a lot in my own practice is the scope of contempt of Parliament. Nobody knows. In the U.K. at least, certainly nobody has laid down what the species of contempt of Parliament are. There have been attempts at doing this, but in reality I consistently have to advise clients that Parliament lays down its own laws, and there is simply no legal definition of what a contempt of Parliament is.
I always go back to the 1999 report of the House of Lords, I think it was Lord Nicholls, Chair of the Joint Select Committee. Somewhere in their report they said it ought not to be a contempt of Parliament if a witness has a reasonable excuse for not answering a question. That’s the question that almost always comes up.
These are the kinds of practical areas that certainly I would, if I was legislating for a comprehensive reform of parliamentary privilege, want to have clarified very early on.
Senator Wells: Thank you, Mr. Gordon, for your insight and presentation.
I would like you to give us some advice or guidance on the difference between the House of Commons and the Senate, or the House of Lords, with respect to privilege. You talked about privilege with respect to Parliament, which encompasses both, but is there, in fact, a difference in conventions and rules with an unelected body as compared to the elected body?
Mr. Gordon: There isn’t a major fundamental difference. The rules have developed differently, but in essence you will get more of, if you like, the areas in which a witness is likely to be cross-examined in the Commons than you will in the House of Lords. But in essence, the rules, although they have developed differently, are very similar. The scope, if you like, for third-party interests being affected in committees is much more likely to be a Commons problem than a Senate or House of Lords problem.
Senator Wells: Thank you. I did note in the introduction that you co-authored an in-depth analysis of the coercive powers of parliamentary committees. I’m keenly interested in that now that I have seen that you’re an expert.
Could you comment on some of the coercive powers that committees might have? We often find in our committees that we ask questions and receive answers, and we generate reports. They do have the weight of the Senate, but we can’t always compel anyone to do anything. Could you talk a little bit about that?
Mr. Gordon: Absolutely. There is no doubt at all that there is considerable doubt about the powers of select committees, whether those select committees are in the Commons or the House of Lords. A fine has not been imposed by the house since, I think, 1666.
In terms of censure, there is quite a lot of feeling that naming and shaming, or even the more formal sanction of being reprimanded at the bar of the House of Commons or before the House of Lords, is insufficient in some cases to really ensure that a committee’s questions are answered properly.
Now, there is nothing in the rules of any select committee in the United Kingdom that specifically gives any coercive power to the committee. Nor, I should say, is a committee empowered to find a contempt. In order for there to be a contempt of Parliament through an appearance before a committee, there has to be a reference by the committee in question to something called the Standards and Privileges Committee, which then, if it considers there has been a contempt, makes a recommendation to the full house, and then the full house will debate and reach a decision.
Now, there has never been any occasion which I’m aware where the process has gone beyond reference to the Standards and Privileges Committee. I have had a lot of clients who ask me, “What happens if I don’t turn up?” I tell them what will happen is there will be a subpoena issued, or, if you like, a witness summons.
That has happened on occasion. It happened, I think, with the Murdochs, for example. A summons was served. They came before the committee. In the end, they came. I have never had a client, in the end, who hasn’t come.
You will look in vain, I think, in all the committee rules for even the power to issue a witness summons. You will certainly look in vain for any power to administer an oath, and you will look in vain for any specific sanctions that can be imposed.
In practice, I have to say, my experience has been that even the most recalcitrant client has always turned up in front of a committee in the end, and there have been quite a lot of recalcitrant witnesses who, for one reason or another, don’t want to turn up.
It is an unsatisfactory position for a committee to be in, not to know what its powers are. I have spoken to quite a few select committee chairmen who share my view that there is no clear answer to this.
I have written a paper with Sir Malcolm Jack, and I’ve talked to him about this subject. He was formerly clerk to the House of Commons. He has given a lecture on exactly the same topic.
We have real problems. I do think that when that it comes to any comprehensive reform, real attention has to be given to the problems of select committees. Of course select committees were not an issue in 1688. They probably weren’t really an issue even in the first 70 years or so of the 20th century. But from about 1970, they have grown in power and influence and, in my opinion, in constitutional importance.
Senator Wells: Thank you very much.
Senator Joyal: Welcome, Mr. Gordon. I am happy you have referred to the paper you published with Sir Malcolm Jack in 2013. I’m sure you will remember the paper. You don’t seem to have it in front of you, but I would like to refer to two specific sections in that paper.
I see that you have it. Page 38, paragraph 77, at the bottom of the page you state:
. . . there is a potential clash between any modern system of human rights and the current absolute freedom of Parliamentary privilege.
This is the first issue I would like to address to you.
You are a strong advocate of a written constitution for Britain. As you know, we have a written Constitution in Canada. In fact, we are a parliamentary democracy. The supremacy of Parliament is constrained by the Constitution. Not only do we have a Constitution, but we have a Charter of Rights, which is also entrenched in the Constitution.
The Supreme Court of Canada has ruled that no part of the Constitution can be opposed to the other to claim the implementation of it. The Charter of Rights cannot trump the section of the Constitution that recognizes parliamentary privilege, which, of course, stems back to 1867. It’s section 18 of our Constitution.
The question we are wrestling with is how we can approach that issue for Parliament to respect the Charter of Rights and Freedoms without abandoning its claim to privileges? That’s why my approach would be to favour internal rules of Parliament to address that reconciliation between the rights of a third party protected by the Charter and the rights of Parliament to conduct its affairs in a deliberative and legislative freedom, which, of course, is a fundamental constitutional principle. That’s my first question.
My second question is in relation to paragraph 94 of your text. It’s on page 44. You state in paragraph 94:
. . . the Government Green Paper trod carefully in the respective ways in which they addressed the constitutional relationship between the courts and Parliament.
This is the essential question. How should we maintain the prerogative of Parliament versus the role of the court to oversee the way that the rights of third parties are protected when Parliament exercises its privileges?
If we adopt codification — that’s my second question — we will then open, of course, court revision of any decision we might adopt, because once you have legislated, it’s for the courts to interpret the statutes. So unless we adopt a saving clause in which we exclude the court from its role to review that statute, we would have to reconcile that aspect of the court’s role and the supremacy of Parliament.
Those are the two issues that I would like you to address. I know they are complex. That’s essentially what we are wrestling with at this stage.
Mr. Gordon: First of all, I’ve thought about this for quite a long time. In my opinion, you have to go to the root of the problem. What is the root of the problem? The root of the problem is — I hope this doesn’t sound too dramatic to say, but there is a power tension between the judges and Parliament. Each wants to retain their own sphere of influence. The judges will call this sphere of influence the rule of law and Parliament will call their respective sphere of influence parliamentary privilege, and sometimes it veers into parliamentary sovereignty.
But the point is this, really: The only way in which you are going to have your two questions answered properly and you are going to be able to grapple comprehensively with the problem is to bring the judges and Parliament together.
As I said in the beginning of this paper, there is no longer, really — or there should no many longer be — an adversary to Parliament.
So my solutions have not been legal drafting solutions; they have been an attempt to get dialogue going between the judges and parliamentarians. That is what I’ve been trying to do for a very long time. There is no real system for dialogue, partly because the judges say, “We don’t want to talk to parliamentarians because that’s an assault on our judicial independence,” and parliamentarians, for their part, many of them think the judges want to take control of parliamentary proceedings.
So, for example, the former clerk to the Commons — not Sir Malcolm Jack, but Robert Rogers — said to me, “The spectre of judges looking at our proceedings through a video link is abhorrent. We don’t want that to happen.”
So I think the answer to this is twofold. First of all, systematically there should be much more dialogue between judges and parliamentarians to graft a better system, one that is not in tension one with the other.
The second thing is that it must be possible to devise mechanisms which provide a link between the courts and Parliament.
Let me give you an example. Let us assume it to be correct, because I think it is correct, that the courts are the arbiters of the scope of parliamentary privilege. And although this is not always understood in the U.K., I actually think the judges ultimately are the arbiters of exclusive cognizance, which is a common law form of parliamentary privilege which antedated article 9.
So let’s assume there is in front of the court an issue about whether or not a particular act or omission is a contempt of Parliament. In the past, Parliament would say, “That’s for us to decide.” But is it really for Parliament to decide? Because if in fact to declare something a contempt is to breach a fundamental right, does that not veer or merge into a question of law?
So the solution I would be looking for is not simply the internal mechanisms of Parliament — your first question — or an insoluble problem, really — your second question — but rather a mechanism that enabled, for example, the judges to refer a question before them to a special parliamentary committee.
Let us say the question is: Is this particular action a contempt? A court would make the decision, but it would only make it after giving the greatest weight to a committee of Parliament.
You may say that is not a satisfactory solution. Okay. Maybe there’s a different solution. But the solutions I’m looking towards do not put court versus Parliament in separate boxes. They try to bring the two together.
I hope that’s the beginnings of an answer to your question.
[Translation]
Senator Maltais: Since the United Nations adopted the Universal Declaration of Human Rights in 1948, we have seen an evolution of parliamentary privilege. Certain countries in the British parliamentary tradition have adopted a charter protecting individual rights and freedoms. Canada is the only country in the British tradition that has entrenched that charter in our Constitution. Parliamentary prerogative always takes precedence over the Canadian Charter of Rights and Freedoms, and I think this has been confirmed by the Supreme Court.
Can this privilege extend outside legislative chambers to include committee testimony? Does parliamentary privilege apply exclusively within Parliament and its committees or can it extend outside Parliament?
[English]
Mr. Gordon: I’m sorry. That question was put in French, but I don’t speak French. Could somebody put it in very simple form for me?
The Chair: Mr. Gordon, you don’t have access to translation over there?
Mr. Gordon: I don’t have any translation.
The Chair: We’re going to check with translation, because you should be receiving the translation as well. Give us a couple of minutes to straighten this out.
Mr. Gordon: Of course.
The Chair: We might solve the parliamentary privilege question before we solve the technological glitches.
It appears we have solved the translation process.
[Translation]
Senator Maltais: Since the UN adopted the Universal Declaration of Human Rights in 1948, all countries in the British parliamentary tradition have adopted charters of rights and freedoms, including your country.
Canada, however, is the only country with a British parliamentary system that has made the charter part of our Constitution. The Canadian Charter of Rights and Freedoms does not take precedence over Parliament, but it has given rise to a number of court cases, as this issue is regularly brought before the Supreme Court of Canada.
In your country, does parliamentary privilege also apply outside Parliament? In Canada, parliamentary privilege customarily applies to parliamentarians within Parliament and its committees, but not beyond that.
In your country, does this privilege apply at all times or is it limited to Parliament and its committees?
[English]
Mr. Gordon: I’ve heard the question and I’m now going to attempt to answer it.
Parliamentary privilege applies to proceedings in Parliament. Proceedings in Parliament cover anything that is directly connected to debates in Parliament, but it’s then much more loosely defined. As I think I said earlier, there is no clear definition of what the phrase means. It certainly covers select committees.
What it doesn’t do, however, is address — it has no relationship to fundamental rights of the kind that you have enshrined in your Charter. In the U.K. we’re still looking at an act of Parliament, a statute, which was passed in the 17th century. If you like, it’s our only constitutional statute, but it could be amended or repealed by Parliament tomorrow. It is not entrenched. We do not have that kind of constitutional document that you have.
It’s why I said earlier that from the perspective of reformers in Canada looking at parliamentary privilege, they have the opportunity. Because they have a constitutional document, a Charter, they have the opportunity, I think, to make long-lasting reforms to the doctrine of parliamentary privilege because you have created a constitutional relationship between fundamental rights and parliamentary privilege.
Now, I know that there are cases in Canada which have said that they are just two different parts of a constitution. I think that kind of reasoning actually almost undermines the relationship that I think must exist between fundamental rights and what happens in Parliament, and indeed must exist precisely because of the functionality test of Parliament that I have suggested applies.
Do I think, therefore, that there are differences between Canada and England in terms of the scope of parliamentary privilege? I suspect the doctrines are very similar. But where I think you have an advantage over us is in having your Charter and, as you say, uniquely a Charter which is a constitutional document.
We have the greatest difficulty in the United Kingdom of defining what a constitutional document is. I won’t dwell on this for long, but it is an important point because you know what a constitutional document is. In England and in the United Kingdom, the courts have had to fashion out what they say are constitutional acts of Parliament. That is not something Parliament has ever really done. When Parliament talks about a constitutional act of major importance, it’s referring to parliamentary procedure. It’s referring to debating a bill on the floor of the house rather than sending it through committee.
So because we lack that relationship, I think you do have a very important base start for reforming parliamentary privilege in ways that we can’t.
[Translation]
Senator Maltais: In your extensive experience, are there many parliaments in the British tradition that link the judiciary with parliamentarians?
[English]
Mr. Gordon: Do you mean the linkage that I have been suggesting? I’m not aware of any jurisdiction in which the courts and Parliament have tried to come together in an attempt to modernize the relationship between the two.
You can take a country like Australia, which I think has very carefully crafted an act of Parliament dealing with parliamentary privilege. The trouble is with Australia, if you look at the Australian constitution, you won’t find any reference to human rights at all. In Australia, you have to go to the different states to find some references to fundamental rights. In Australia, you have part of the solution, but unfortunately no real, coherent body of doctrine dealing with fundamental rights.
My own feeling is that New Zealand comes closest to having a really good pre-legislative scrutiny of bills. They were the first, really, to get a cabinet manual going setting out constitutional rules and, of course, recently they have got their own parliamentary privileges act.
I would look closely at the New Zealand model. I don’t have the details of it to my fingertips, but I would look to New Zealand for getting towards a solution which brings both the courts and Parliament together.
The Chair: Mr. Gordon, does it make sense to say the fact that in the U.K. right now there isn’t a codification, as you’re proposing, on parliamentary privilege, that it actually makes it more difficult for the courts to infringe on parliamentary privilege? The fact that you would codify a set of rules for parliamentary privilege, wouldn’t that open the door more for encroachment from the courts on what historically and traditionally has been the freedom of Parliament?
Mr. Gordon: It is, of course, true that if you put anything into writing it will need to be interpreted. It’s very hard to think of putting anything into writing that doesn’t need interpretation, but that is the fear of anything going into writing.
When we, in England, started to think of having a cabinet manual, like the New Zealanders have done, I was giving talks about this in the House of Lords, and peers were saying to me, “But isn’t that very dangerous to write anything down?” There is a different way of looking at this, which is that the clearer a law is, the less it needs to be interpreted.
If you have a set of procedures and a set of laws that are very clearly expressed and even potential saving clauses, what we call in England “ouster clauses,” limiting the court’s jurisdiction in certain areas but providing, nonetheless, for this dialogue that I’ve spoken of, that is a far preferable solution than just hoping that, if you keep things in a state of vagueness for long enough, the problems will somehow sort themselves. They won’t forever.
We have written constitutions for dominions and republics all over the world but don’t have one ourselves, where most countries in the world now have constitutions. It’s not the be-all and end-all. It’s not the solution to everything, and I recognize that there are arguments on both sides. But I do think that a state of affairs whereby you have clearly demarcated procedures, no doubt through some internal mechanisms of Parliament itself but also much more clearly defined terms and laws, following the three principles I’ve suggested in the text, is a far preferable solution. Yes, you’d have some cases going to court, but you do anyway.
After all, if you accept, as I think everyone does in Canada, that the courts ultimately determine the scope of privilege, that’s going to be a battle that always has the potential to end up in court.
Senator Gold: In a previous life, I was a constitutional law professor. Now I’m a parliamentarian. So I am intrigued and attracted to the notion of dialogue between courts and parliamentarians that would address some existential dilemmas and conflicts. But, more seriously, I am very much intrigued by your recommendation to consider ways in which to structure some kind of dialogue. I just want to make sure I understand your point correctly and perhaps invite you to say a bit more.
One can imagine it on a case-by-case basis, and I think you addressed that in some of your remarks, but it’s still to be reactive to the cases that come before the courts. You had mentioned a reference by the courts and reliance upon some committee of parliamentarians to advise in a particular case. Could that also be accomplished by granting intervenor status to some constituted group of parliamentarians in a court case?
Beyond that, if that’s on a case-by-case basis, would you comment on the following: If parliamentarians and/or judges balk at the idea of getting together for reasons of rule of law and parliamentary privilege concerns, would one option be for the constitution of a joint committee or a committee mandated by both the representatives of the judiciary and of parliamentarians — perhaps made up of lawyers, academics, former judges — who could draft appropriate legislation for consideration by Parliament, thereby being informed by both the judicial, legal and parliamentary perspectives? In other words, how could we actually put flesh on this idea?
Could you comment on any of those or, undoubtedly, better ideas for structuring this kind of dialogue?
Mr. Gordon: Yes. Thank you. In the U.K., the courts have always shied away from something called the advisory declaration, which is legal advice that can be given by a court before it even has a case in front of it. The courts have always been very reluctant to get into this area, but I think there is scope for advisory processes that enable mechanisms to be devised that are effective and not purely reactive.
We’re very used to judges just deciding cases put in front of them. The late Lord Bingham was the archetypal judge who said that we’re not very imaginative; we just do what we’re told. We get the case and we decide it.
To some extent, just as parliamentarians have to become aware of what is actually happening in the law a bit more than they do, so I think judges have to become aware of how their decisions actually have the potential to obstruct parliamentary processes. So I do think there is scope for devising mechanisms — I don’t pretend to have the answer — that enable very difficult and currently quite perceptibly intractable problems to actually be debated, discussed, advised upon and then put into a process.
I can see that not every case is going to throw up the answer to every constitutional problem, but if you can find a role for the judges that brings them more into Parliament and if Parliament can then respond in a way that gives the judges a role in that process, I see that as the path one should take rather than to look at the judges’ role as fixed. They just react to things, so we’re really stuck with this piecemeal basis.
I think the relationship between the judiciary and Parliament could be a much more creative one and, indeed, will have to be. Let’s think of what will happen if there isn’t that kind of relationship. Just taking the select committee problems that I referred to, let’s assume that the Standards and Privileges Committee refers what it perceives as a contempt to the full house, and the lawyers come in and say, “Hang on a minute. We want to put our case forward. We have a fundamental right,” whatever it might be. Parliament is going to have to devise processes that allow that right to be ventilated. The more that Parliament ignores the law, the more that the law ignores Parliament, the more these conflicts will continue.
Senator Gold: If I may follow up, I think your latter point, in a sense, connects with my colleague Senator Joyal’s first question, if my memory is correct, and my question to you earlier, which was the desirability of some internal procedures within Parliament to deal precisely with this, due process or fundamental justice or fairness being the operating concern.
To your point about advisory reports, in Canada we do have an institution called the reference device, whereby governments can refer, whether to their courts of appeal provincially or, for the federal government, to the Supreme Court of Canada, questions upon which they ask the court’s advice without the need for, as the Americans would say, “a case or controversy,” without an actual lis between any parties. Strictly speaking it’s not binding, although, in fact, the decisions of the Supreme Court on reference cases have been treated with the same precedential weight as actual cases have, stare decisis being somewhat of an old-fashioned idea, increasingly.
That’s perhaps a device that could be used at least to get the court’s advice as to what internal procedures might satisfy Charter of Rights concerns when we’re dealing, for example, with third parties appearing before Senate committees.
Mr. Gordon: Yes. One device that was used in the U.K., I think it was at the time when we created our Supreme Court, and the judges felt power was slipping from them and entered into various concordats. I wonder whether there is scope for developing your procedure in a way that could be accompanied by a concordat between government and judiciary, providing for the way in which this process might be developed and fashioned into a constitutional safeguard, protecting one organ of state, Parliament, but also protecting the very people that the constitution is designed to protect, namely, the people themselves.
I would have thought that, once you start thinking along the lines of advice being given, concordats, meetings, it’s a much more profitable line, I think — and I wish we would follow it in the U.K. — to the line of, “Well, we can’t really reform; we shouldn’t have anything codified because we’ll just get more judges coming in.” That currently is the level of debate in the U.K.
It needs to be modernized, because parliamentary privilege is a creature from the 17th century. It must be brought into the 21st century. The same is true with the way justice is administered — it has to be a modern system of justice. We are beginning now with IT to get electronic documents in courts. Perhaps you have had that in Canada for a long time, but we’re still using A4 files, single-sided, and it’s a fairly slow process. I think that’s where the future lies.
Senator Joyal: I would like to come back, Mr. Gordon, to a point that you made which I think has some value. You say that, in reference to the Canadian Constitution, in the decision of the Supreme Court that one part of the Constitution should not trump the other. That is that the Charter of Rights should not trump parliamentary privilege, and parliamentary privilege should not trump the Charter. When you mentioned that the two are foundational in the structure of Parliament, that one way to reconcile the respect by Parliament of third party rights would not be to clearly establish a procedure that would be reflective of the principle of fundamental justice. This would mean an aggrieved party could call upon that procedure to be heard to make his or her case, and for an adjudication on the basis of the respect of principle of law that is included in the Charter of Rights. That seems to be a way to not put the third party totally under the whim of parliamentarians without any capacity to have his or her day in court, if I could use that expression.
It seems to me that insofar as the Canadian Constitution is structured, with privileges on one side and the Charter of Rights on the other side, they are not watertight, as you say. They are part of the same structure. They are part of the same constitutional approach. Since we have a written Constitution, that seems to be a fruitful way to explore, to make sure that we answer that question or challenge of how Parliament acts in sync with the principles of the Charter of Rights and Freedoms.
Mr. Gordon: Yes, I agree with that. If you look at the paper I co-authored with Sir Malcolm Jack, we threw in one idea, which is allowing someone who has been aggrieved, say as a result of a parliamentary debate, to put their case to Parliament so that you can hopefully go some way towards reconciling the need for free speech in Parliament with respect for fundamental rights. The ideal finishing point here would be, to use your phrase, that the fundamental rights charter, parliamentary processes, and judiciary and parliamentarians were in sync so that the potential for real constitutional conflict is minimized.
In that way, not only will there be fewer conflicts, but also people will not feel aggrieved as they currently do by the way in which, for example, some select committees operate in the U.K., where you can be named and shamed in public with no real chance to put your case forward.
Senator Joyal: We have had a similar case in the Quebec legislative assembly whereby there was a unanimous motion adopted that condemned a citizen, not appearing during procedure in front of a committee or a select committee, who happened to make a comment totally outside parliamentary work. There was a unanimous motion adopted that shamed that person without that person having the right to come in front of the legislature to say that they feel aggrieved and seek redress. Since it was a motion adopted within the assembly, that person was deprived of any recourse in the court to have his case made.
We had three cases in the last 15 years in relation to a third party aggrieved: two of them were the object of a Supreme Court decision or hearing; one is it still pending in the Court of Appeal in Quebec in relation to a Sikh person wanting to testify wearing his kirpan, according to his own religious beliefs. The assembly denied his right to appear, because they said you can’t bear or have an element that could be seen as endangering the security of the legislature.
Personally, I thought it was outrageous, and I don’t want to comment more on that. This is an issue that, in my opinion, quite clearly involved the rights of a citizen, and the privileges of Parliament to decide how they want to admit people in the deliberation of Parliament.
Our major challenge is really to reconcile the rights of citizens — freedom of speech, freedom to affirm your religious beliefs, freedom from racism — so they have the capacity to go somewhere to have their rights adjudicated. If not, they will have to go to court, and then we have a clash of the rights between the Charter and parliamentary privilege. It seems to me that we should find a way to reconcile that, especially when a third party’s rights are alleged to be in breach of parliamentary privilege, with respect to the principles of the Charter.
Parliament is not above the Charter, in my opinion. Parliament is bound to respect the principles of the Charter, but it’s for Parliament to determine the right procedure to implement the Charter of Rights. This is really an issue with which we wrestle. They are real because they are in front of the Canadian courts.
Mr. Gordon: I agree with everything you say. It should be the most obvious thing in the world, shouldn’t it, that fundamental rights have a relationship to what happens in Parliament? It may have a slightly different relationship, but that there is a relationship cannot be denied.
However, it is denied in the U.K. There is simply no legislation or internal process which recognizes a relationship between fundamental rights and parliamentary privilege. In Canada, you have a head start on us because, as you say, you have your Charter and you have parliamentary privilege, and they are both parts of the Constitution. So at least you have that relationship. What you don’t have yet is any form of putting something on the bones of that relationship. That’s what you need to do. A good example is internal processes of Parliament which recognize that relationship. That is an excellent start.
I actually am not as afraid of legislation which gives a space for that mechanism to operate as I think some other people may be. I think legislation which gives Parliament a complete role in terms of its own respect it pays for fundamental rights, and at the same time reserves the matters that are plainly reserved in a fundamental rights scenario to the courts seems to me an obvious solution. The detail of it is difficult, but the principle ought to be very clear.
The Chair: If there are no other questions, colleague, I would like to thank Mr. Gordon for his participation in our meeting today, and thank him very much for his insightful comments. We will continue our study as we go forward on this important issue.
Thank you, Mr. Gordon, for being with us today.
Mr. Gordon: Thank you very much.
The Chair: On May 8 we will continue our study on privilege. We will have with us former Speaker Dan Hays, who will be addressing the committee. Senator Kinsella is also on the list of the month of June. And, of course, steering will be meeting this week to continue our deliberations on bringing forward witnesses regarding the audit and oversight committee.
Thank you.
(The committee adjourned.)