Parliamentary Privilege / Rights of the House

The right to regulate its internal affairs: access to information requests concerning the appearance of a witness in committee

September 17, 2012

Debates, pp. 10004–6.

On September 17, 2012, the House of Commons adopted a motion stating that, having considered the nature of a request of the Auditor General under the Access to Information Act, it agreed not to insist on its privileges relating to all emails pertaining to the Auditor General appearing before a parliamentary committee from January 17 to April 17, 2012.^[1] The information in question consisted of email exchanges between the clerks or officials of five standing committees and officials of the Office of Auditor General.

Following the adoption of the motion, the Speaker made a statement to explain the situation that gave rise to it. He explained that in June, the House of Commons was advised by the Office of the Auditor General of Canada that they had received a request under the Access to Information Act. The House was given third party notice of the request and provided twenty days to make any written representations to provide sufficient reasons as to why the information should not be disclosed. Since the House was adjourned when these discussions took place, House Counsel requested that the Office of the Auditor General delay the decision to release the documents until the House was scheduled to resume sitting. Notwithstanding this request, the Office of the Auditor General proceeded with its decision to release the documents. The Speaker, as guardian of the rights and privileges of the House, filed an application within the deadline for a judicial review of the Auditor General’s decision in order to prevent the release of the documents and to reserve for the House the final decision in the matter.

Resolution

The Speaker explained that the House’s rights and privileges had not been jeopardized by the House’s resolution, nor had the House ceded any of its traditional rights or privileges, particularly as they relate to parliamentary committees. He also reminded Members that this matter was not precedent-setting noting that similar situations may arise in the future. The Speaker encouraged the Standing Committee on Procedure and House Affairs to complete a thorough review of the matter.

Statement of the Chair

The Speaker: The House has just adopted an important motion in reference to the rights, privileges and immunities upon which the proceedings of the House and its committees are founded and I would like to make a statement at this time to clarify the situation that has given rise to this decision, particularly in view of some comments that have appeared in recent days.

In June of this year, the House of Commons was advised by the Office of the Auditor General of Canada that they had received a request under the Access to Information Act for all emails pertaining to the appearances of the Auditor General before parliamentary committees between January 17 and April 17, 2012. The information in question consisted of email exchanges between the clerks or officials of five standing committees and officials of the Office of Auditor General.

The House was given third party notice of the request under section 27 of the Access to Information Act and provided 20 days to make any written representations to provide sufficient reasons as to why the information should be disclosed.

There followed several exchanges of correspondence between the Office of the Law Clerk and Parliamentary Counsel and the Office of the Auditor General in which House officials questioned the release of the documents, given their concern that these documents related to committee hearings, which are protected by parliamentary privilege. This view was consistent with past practice which considered material that forms part of a parliamentary proceeding, whether that proceeding is in the Chamber or in committee, to be protected by parliamentary privilege.

In the case at hand, the documents requested were directly linked to a parliamentary proceeding and the actions taken were fully in keeping with a long-established practice.

The privileges, powers and immunities of the House of Commons, as provided by section 18 of the Constitution Act, 1867 and section 4 of the Parliament of Canada Act, include freedom of speech and debate as set out, among other places, in article 9 of the Bill of Rights, 1689, which provides:

...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.

As Erskine May’s 24th Edition, at page 227, states:

...underlying the Bill of Rights is the privilege of both Houses to the exclusive cognizance of their own proceedings. Both Houses retain the right to be sole judge of the lawfulness of their own proceedings and to settle—or depart from—their own codes of procedure.

House of Commons Procedure and Practice, [Second Edition], at pages 91 and 92, explains that proceedings in Parliament include the giving of evidence before the House of Commons or its committees; the presentation of a document to either the House of Commons or its committees; the preparation of a document for purposes of or incidental to the transacting of any such business; and the formulation, making or publication of a document, including a report, by or pursuant to an order of the House. This has been seen to extend to all evidence, submissions and preparation for the participation by all persons participating in the proceedings of the House of Commons or its committees, all of which are protected by all the privileges and immunities of the House.

Since the House was adjourned when these discussions took place, House Counsel requested that the Office of the Auditor General delay the decision to release the documents until September when the House was scheduled to resume sitting.

Notwithstanding this request, the Office of the Auditor General proceeded with its decision to release the documents in question, arguing that it had not identified parliamentary privilege among the exemptions or exclusions in the Act that would allow a refusal to do so. This decision started the clock on the timetable provided by the Act. Specifically, this meant that the House had the right to apply for a review of this decision pursuant to section 44 of the Act, which imposes a strict deadline of 20 days from the day notice is given to file a notice of application in the Federal Court. In short, because attempts to have the Office of the Auditor General postpone this decision were unsuccessful, the House of Commons faced a deadline that had to be respected and so filed not an injunction but an application for a judicial review of the Auditor General’s decision to release the documents. Had this filing not been made on or before September 10, 2012, the documents would have been released without the express consent of the House. This would clearly have been unacceptable so we acted to reserve for the House its long-standing primacy in decisions of this nature.

I want to stress that the steps taken in this case were undertaken for the sole purpose of safeguarding the rights and privileges of this House and to reserve for the House the final decision in the matter.

As noted at page 307 of House of Commons Procedure and Practice, Second Edition:

It is the responsibility of the Speaker to act as the guardian of the rights and privileges of Members and of the House as an institution.

Whatever the circumstances, as your Speaker, I believe that my primary responsibility is to safeguard the rights and privileges of the House and its committees and to ensure that they are not inadvertently eroded.

Of course, while I am duty-bound to protect all of the House’s privileges, I am also the servant of the House and thus entirely at its service in putting into effect its decisions.

As noted on page 307 of O’Brien and Bosc:

The Speaker is the servant, neither of any part of the House nor of any majority in the House, but of the entire institution and serves the best interests of the House as distilled over many generations in its practices.

The Speaker must ensure that the best interests of the House are upheld and that the House remains the master of its own proceedings.

This is the principle that informed the decision to file an application for judicial review, respecting the strict deadline imposed by the Act and allowing the House the opportunity to make its own determination in this matter.

The House has now made its decision on this matter. We are all aware that this decision applies only to this case at hand and it is not precedent-setting. The House’s rights and privileges have not been jeopardized by the House’s resolution, nor has the House ceded any of its traditional rights or privileges, particularly as they relate to parliamentary committees.

However, it is likely that today’s issue will not be the last of its kind. The Chair would therefore welcome a prompt and thorough review of the question by the Standing Committee on Procedure and House Affairs, as House committees and their officials will most likely continue to be confronted with more requests of a similar nature. It would not be the first time the Standing Committee on Procedure and House Affairs considered and reported to the House on a matter related to the nature and extent of parliamentary privilege, indeed it did so in November 2004 in presenting its Fourteenth Report. There are also other instances, notably in 2007 and 2009, where committees have seen fit to report to the House on aspects of parliamentary privilege in relation to issues with which they were confronted.

I trust this clarifies the context of the situation for the House. I would like to thank all honourable Members for their attention in this important matter.

Postscript

On December 2, 2013, the House concurred in the Forty-Second Report of the Standing Committee on Procedure and House Affairs, originally presented to the House in the First Session of the Forty-First Parliament. The House agreed to the Committee’s guidelines for the House to follow in order to determine its response to access to information requests in which the House is a third party. In its Report, the Committee emphasized that, by agreeing to disclose or not to disclose documents, the House would in no way be surrendering its privileges, and that the usual protections afforded to its Members, its staff and its witnesses would remain.^[2]