Speaker of the Senate
Speaker's Ruling – Question of Privilege – Motion 302
Honourable senators, I am prepared to rule on the question of privilege raised by Senator Beyak on February 26, concerning Motion 302, which was moved by Senator Pate. If adopted, this motion would direct the Senate administration to temporarily cease to support Senator Beyak’s website. Many senators took part in the debate on the matter, and I thank all colleagues for their contributions.
During the debate, the terms “point of order” and “question of privilege” were sometimes used interchangeably. There are, however, important differences between the two. A question of privilege arises when there is an alleged breach of the powers, rights or immunities of the Senate, a committee or a senator – what we refer to as parliamentary privilege. A point of order, on the other hand, relates strictly to procedural issues – the internal proceedings of the Senate or a committee – and arises when there may have been a departure from the Rules of the Senate, established procedure or customary practice.
Although senators enjoy the protection of privilege to enable them to carry out their parliamentary functions, they are nonetheless subject to the Rules, procedures and practices, which are expressions of the Senate’s own parliamentary privileges, both to manage its internal affairs and to control its proceedings. As part of the exercise of this right, the Senate has established specific procedures that govern how to deal with questions of privilege, such as the one raised by Senator Beyak. As Speaker, my role at this stage is solely to evaluate an alleged breach in terms of those procedural requirements, and to determine whether there is a prima facie question of privilege. I do not deal with the substance of a complaint, which would be for the Senate itself to deal with after a ruling if a matter goes to the next stage.
Rule 13-2(1) requires that four criteria be met for a question of privilege to be accorded priority. All four criteria must be met, and it is always helpful if senators frame their remarks around these four criteria when debating a question of privilege. Doing so can help the Speaker in evaluating the issue.
The first criterion is that the issue must “be raised at the earliest opportunity”. When a question of privilege deals with a notice, which is the case here, rule 4-11(2)(a) must also be considered. This rule requires that the question of privilege be raised “only at the time the order is first called for consideration”. Notice of Motion 302 was given on February 14. It was called for consideration at the next sitting, on February 15, and moved for adoption. Senator Beyak’s question of privilege should, therefore, have been raised on that day, and not on February 26.
The second criterion is that the issue must “be a matter that directly concerns the privileges of the Senate, any of its committees or any Senator”. Before actually dealing with this criterion, let me be clear; I am not determining whether a senator’s website is protected by privilege or not. I am, instead, simply considering what the effects would be, in the current case, if one were to accept that a web site is protected.
The second criterion mentions the privileges of the entire Senate, of its committees and of individual senators. This can sometimes create situations in which consideration must be given to how the privileges of the institution and those of individuals relate to each other. Privilege allows each senator to contribute fully and freely to the work of the Senate. However, as noted in a ruling of February 24, 2016, to which Senator Pratte made reference:
Our privileges as individuals cannot trump those of the Senate itself. As stated in Erskine May, at page 203 of the 24th edition, “Fundamentally … it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members”.
A similar point was made in a ruling of May 23, 2013, which noted “… that the privileges and rights exercised by the Senate itself take precedence over those of individual senators”, and that the Senate can regulate its internal affairs.
The rights or benefits of individual senators may therefore be restricted by decisions of the Senate. As in the case of Motion 302, this means that the Senate has a preeminent right to decide how it will manage its internal affairs, including the use of resources by honourable senators.
This analysis also helps us when considering the third criterion, which requires that a question of privilege “be raised to correct a grave and serious breach”. In a situation where there is, potentially, a divergence between the Senate’s rights and those of an individual senator, the former must be given preeminence. To quote the ruling of February 24, 2016, “… privileges exist to serve the institution itself. The Senate’s decisions cannot breach the Senate’s privileges.”
The fourth criterion states that a question of privilege must “be raised to seek a genuine remedy that the Senate has the power to provide and for which no other parliamentary process is reasonably available”. In the case of Motion 302, there are alternate processes available. These include debate, amendments, referral to committee, and, eventually, defeat or adoption of the motion. If the Senate were either to adopt or reject the motion, this decision would be an expression of its right to manage its internal affairs and to decide how its resources can be used.
Before concluding, honourable senators, let me recognize that issues relating to privilege can be complicated. I therefore invite all colleagues to review the seventh report of the Standing Committee on Rules, Procedures and the Rights of Parliament, tabled in the Senate on June 2, 2015, which provided a comprehensive overview of the state of privilege in Canada.
Based on this analysis of the four criteria, the requirements of rule 13‑2(1) have not been met. I must, therefore, rule that there is no prima facie question of privilege. I do, however, encourage colleagues to take part in the debate on Motion 302. As many senators expressed concerns regarding the motion, it is obviously a matter of great interest to the Senate. I thank all honourable senators for their attention and their interest in this important matter.