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Edited
Hansard • Number 085
Monday, April 7, 2003
Mr. Garry Breitkreuz (Yorkton—Melville, Canadian Alliance): Mr. Speaker, I believe before we can move forward there should be some kind of a ruling on that, but I have another completely separate point of order that I would like to raise in regard to this.
If we go to today's Notice Paper, there is some wording in the motion that we are debating today that is causing me concern. The motion from today's Order Paper reads, and I would like to quote:
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That this House, while disapproving of any infraction of its privileges or rights by the other House, in this case waives its claim to insist upon such rights and privileges, but the waiver of said rights and privileges is not to be drawn into a precedent;-- |
That motion raises two questions that I believe have to be answered before we proceed. Number one, is it possible to waive privileges? Second, if it is, should not the privileges we are waiving be clearly stated in the motion?
I was not able to find any Canadian parliamentary references to this point, but there were two in the Australian parliament that I would like to refer to because they had to deal with this particular issue, and, as you know, Mr. Speaker, they share a common heritage in regard to parliamentary tradition.
Odgers' Australian Senate Practice, Tenth Edition, under a section titled “Waiver of Privilege”, on page 69 states, and I will quote:
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From time to time suggestions are made of a House or its members “waiving their privilege”, for example, by allowing the examination of particular parliamentary procedures by a court in a particular case. Such suggestions are misconceived. It is not possible-- |
And I emphasize this:
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It is not possible for either a House or a member to waive, in whole or in part, any parliamentary immunity. The immunities of the Houses are established by law and a House or a member cannot change that law any more than they can change any other law. This was clearly indicated by a case in the Senate in 1985. A petition by solicitors requesting that the Senate “waive its privilege” in relation to evidence given before a Senate committee was not acceded to, principally on the ground that the Senate does not have the power to waive an immunity established by law. |
Odgers' Australian Senate Practice, Sixth Edition, under a section titled “Waiving of Privilege”, on page 1037 states, and I quote again:
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On 24 September 1952, a member of the House of Representatives asked the Speaker (Hon. A.G. Cameron) if it was possible for a Member of the House to waive Parliamentary privilege. The following day the Speaker replied as follows: |
And I will continue with the quotation:
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Each member enjoys an individual privilege which guarantees him certain powers and immunities needful to perform his functions as one of that collective body which is this House. But the privilege becomes a collective privilege in relation to anything said or done in this House in the discharge of his duties and functions. One of the oldest privileges of Parliament and the one most obvious to us all is the privilege of free speech within the chamber. Once something has been said in this House it becomes the collective property of the House, although the responsibility for saying it rests on the member. A member is always at liberty to retract or qualify something said here, but he cannot divest his statement, once having uttered it, of the privileges of the House. Nor can he, by a subsequent statement made under the same privilege, waive, cancel, impair, or destroy the privilege protecting his original statement. |
I understand that similar wording has been used in the House, in 1997, but the motion also said and I quote:
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--but the waiver of said rights and privileges is not to be drawn into a precedent;-- |
Mr. Speaker, you can read my lips: I do not believe that the government can waive the privileges of any member of this House at any time. The government cannot violate the privileges of any member, not even once.
I would like clarification on the two points I have raised. Is it possible to waive privileges? And if it is, should not the privileges we are waiving be clearly stated in the motion?
I look forward to your ruling on this, Mr. Speaker.
Mr. Geoff Regan (Parliamentary Secretary to the Leader of the Government in the House of Commons, Lib.): Mr. Speaker, on this point of order, first I think that my hon. colleague, in raising this point of order, as he talks about the waiver of immunities, he talks about two things in a sense. One is the waiver of privilege and the other is a waiver of immunities, which is a kind of privilege. It seems to me that in his comments the member is really focusing on the immunities of members and their privileges as members and the privileges of the House in relation to the privileges we all hold, which is a different thing than what we are dealing with here.
What we are dealing with here is a bill that has gone to the Senate and has come back to us. We have the choice as masters of our own House as to how we deal with that. We have the choice to say that we are going to accept this proposal, as you have ruled in the past that we can do, Mr. Speaker, and we can accept the proposal to decide whether or not we accept its amendments, and then that is the end of the bill. But clearly that is within our power.
This is an attempt, really, to go over the same ground that has already been covered in previous points of order and on which you have already ruled, Mr. Speaker.
I think the key point, though, when my hon. friend talks about privileges in the terms that he has in relation to Australia, I submit that it is not the same kind of privilege we are talking about here in terms of the waiver of our rights in relation to the other House; it is a different type of matter entirely in which we are the masters of our own House. We can determine ourselves what we are to do.
The Speaker: I am prepared to rule on the matter and deal with it at once.
The hon. member for Yorkton--Melville has raised a point about the motion. I stress that I have already ruled this motion to be one that is properly before the House. There were points of order raised when it was brought to the House originally and I ruled the motion in order then, so I am surprised to hear further argument on this point at this moment, but I will seek to answer his questions.
First, with respect to Australian practice, the hon. member will know that the Australian parliament has chosen to codify its law in relation to privilege. Accordingly, precedents that come from that jurisdiction are ones that would be possibly at variance with our own practice since we have never codified our rules in respect of privilege. It is a matter of the common law and the constitutional law of our country and has not been codified into an act of Parliament. That act of parliament in Australia colours any rulings that might be made in respect of privilege in that country, and particularly in that parliamentary jurisdiction, since any Speaker making a ruling on the issue would have to follow the statute and comply in every respect with the law, as would all hon. members of the legislature. So I do not regard the precedent that he has quoted as particularly helpful in this case.
Second, I would say that it is not the government that is determining whether or not our privilege is waived. It is the House that will make that determination. If this motion is defeated, then there will be no waiver of privilege. If the motion is accepted, it is accepted by the House and becomes then binding on the House, because the House has accepted it and has chosen to waive its privileges.
Third, with respect to any description of the privileges that are being waived, if the hon. member has concerns about those, he is free to move amendments to this motion and clarify the matter, but it is not for the Chair to specify what the House message to the Senate will be. This will become, if it is adopted, a message to the Senate waiving privilege. What privileges are waived or how they are waived and in what respect they are waived is a matter that is determined by the House when it adopts the motion.
If the hon. member has concerns, he is free to move amendments to the motion at the appropriate time. Perhaps those amendments will be adopted by the House before the message is sent to the Senate and would allay any fears he has that this waiver may be too broad or too wide or allow something to happen that might somehow not be in accordance with the House's wishes.
Accordingly, I think I am safe in leaving this matter in the hands of the hon. member for Yorkton--Melville, stating that if he wishes to move amendments to the motion limiting the privileges being waived or describing them in some particular way, such an amendment might well be admissible, and I would invite him to consult with the officers of the House seated at the table in respect of the drafting of any such amendments.