Speaker of the Senate
Speaker's Ruling – Question of Privilege – Communication with the Media
Honourable senators, I am prepared to rule on the question of privilege raised by the Honourable Senator McPhedran on February 13, 2018. The senator argued that a communication to the media of information contained in confidential correspondence from the Subcommittee on Agenda and Procedure of the Standing Committee on Internal Economy, Budgets and Administration constituted a breach of her parliamentary privileges. In particular, she suggested that this breach affected her ability to perform her parliamentary functions without obstruction or interference.
Senator McPhedran explained that the information communicated to the media related to a letter from the subcommittee asking for additional information about a request for a service contract she had submitted. The correspondence from the subcommittee was marked “confidential”. Senator McPhedran was of the view that the communication to the media included material contained in that letter and that its contents should not have been shared. The senator suggested that her privilege was breached, since this release of information had the effect of obstructing her aim of providing what she has referred to as a “safe and confidential setting to survivors of harassment within the Senate environment”.
Senator Campbell, the chair of the subcommittee, argued that the information provided to the media followed requests for comment regarding Senator McPhedran’s publicly expressed intentions to pay for these types of services from her office budget. He explained that the information shared was not confidential; it was a simple explanation of policy. He indicated that the label “confidential” was “administrative in nature”, and that it was meant to “ensure that it would be dealt with privately within her office”. Senator Campbell stated that the label “was not an indication that the letter contained any confidential in camera proceedings”. It was his view that Senator McPhedran’s privileges had not been breached. The subcommittee was simply being transparent regarding Senate rules and decisions concerning expenditures.
Other senators who intervened in the debate focused on the essence of the question of privilege and noted the seriousness and importance of the complaint. I thank all colleagues for their contributions.
I have taken the facts surrounding this question of privilege into consideration in evaluating the complaint in terms of the four criteria listed in rule 13-2(1). A question of privilege must meet all four criteria to advance to the next stage.
It is clear that the first criterion – that the matter be raised at the earliest opportunity – was indeed met.
The second criterion is whether the matter “directly concerns the privileges of the Senate, any of its committees or any Senator”. As noted in Senate Procedure in Practice at page 224, “The term ‘privilege,’ in this context, does not refer to a special benefit, advantage or arrangement given to Parliament or its members. Rather, parliamentary privilege is ‘an immunity from the ordinary law which is recognized … as a right of the Houses and their members.’” The purpose of privilege is to enable Parliament and its members to fulfill their legislative and deliberative functions, without undue interference. Not all activities undertaken by senators in the course of their work, no matter how valuable or commendable, are always covered by privilege.
In this case, and taking into account the information that was already publicly known, it does not seem that the material sent to the media directly concerned privilege. The second criterion of rule 13-2(1) has, therefore, not been met.
This is not to say that the communication does not raise concerns. Senators should expect that sensitive matters will be treated in confidence, at the very least until a final resolution is reached. Publicly revealing information about exchanges on the use of resources harms the bonds of respect and trust that must exist both between senators, and between senators and the administration that supports our work.
I also wish to raise a note of caution here. The Senate has been through a difficult period these past few years. Lessons were learned regarding the importance of conducting our business in a transparent and accountable manner, including being responsive to requests for information from the media and the public. We cannot, however, allow our eagerness to respond to such requests to override our obligation to respect our administrative processes. I am confident, however, that we can find an appropriate balance so that the interests of both the public and senators are well served.
Before concluding, let me also take a moment to address the issue of confidentiality. The term “confidential” is one that must be understood by senators and everyone working at the Senate, and it may not always be clear how certain confidential documents should be handled. This is a matter of which the Internal Economy Committee is already seized, and I am sure that the results of their work will be useful to the Senate as a whole.
Honourable senators, a question of privilege must meet all the criteria of rule 13-2(1) to be dealt with under the special procedures in Chapter 13 of the Rules. Since this question of privilege has not met the second criterion, there is no need to explore the other criteria, and the ruling must be here that there is no prima facie question of privilege.