House of Commons Privilege Ruling - April 23/2013

7/30/2019 House of Commons Privilege Ruling - April 23/2013

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RULING ON THE QUESTION OF PRIVILEGERAISED ON MARCH 26, 2013,

BY THE MEMBER FOR LANGLEY (MR. WARAWA)REGARDING THE PRESENTATION OF A MEMBERS STATEMENT

PURSUANT TOSTANDING ORDER 31

April 23, 2013


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I am now prepared to rule on the question of privilege raised onMarch 26 by the Member for Langley (Mr. Warawa) regarding thepresentation ofa Members Statement pursuant to Standing Order 31.

I would like to thank the hon. Member for Langley for having raisedthis matter, as well as the hon. Chief Government Whip (Mr. O'Connor),the hon. House Leader for the Official Opposition (Mr. Cullen), the hon.House Leader for the Liberal Party (Mr. LeBlanc), and the Members forVegrevilleWainwright (Mr. Benoit), SaanichGulf Islands (Ms. May),Lethbridge (Mr. Hillyer), Winnipeg South (Mr. Bruinooge), EdmontonSt. Albert (Mr. Rathgeber), Brampton West (Mr. Seeback), KitchenerCentre (Mr. Woodworth), New Brunswick Southwest (Mr. Williamson),WellingtonHalton Hills (Mr. Chong), GlengarryPrescottRussell(Mr. Lemieux), South SurreyWhite RockCloverdale (Mr. Hiebert),Medicine Hat (Mr. Payne), West VancouverSunshine CoastSea toSky Country (Mr. Weston), Halifax (Ms. Leslie), and Thunder BaySuperior North (Mr. Hyer) for their comments.

In raising his question of privilege, the Member for Langleyexplained that, shortly before he was to rise during Statements byMembers on March 20, he was notified by his party that he could nolonger make his statement because, as he put it, (quote) the topic wasnot approved(unquote). In making his case, he argued that the

privilege of freedom of speech is designed to allow Members todischarge their responsibility to ensure that their constituents arerepresented. While the Member accepted the practice of partiessubmitting lists of Members to the Speaker, he objected to this beingmanaged in such a way that the equal right to speak could be removed.He stated that (quote) If at any time that rightand privilege to make anS.O. 31 on an equal basis in this House is removed, I believe I have lostmy privilege of equal right that I have in this House.(unquote) Hefurther argued that, ultimately, it is only the Speaker who has the

authority to remove a Members opportunity to speak and that the equalopportunity of every Member to make statements pursuant to StandingOrder 31 must be guaranteed.

In his intervention, the Chief Government Whip reminded theHouse that all recognized parties resort to the use of speaking lists andthat (quote) the practice for many years in the House is for the Speakerto follow the guidance provided by the parties(unquote). He addedthat, since the preparation of lists is an internal affair of party caucuses,

it is not something the Speaker ought to get involved in.


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For his part, the Opposition House Leader suggested there existsa role for the Speaker in regulating the natural tension betweenMembers and their parties, and the right to speak in Parliament. Hewent further, saying, (quote) The issue is the need for members of

Parliament to speak freely on behalf of those whom we seek torepresent(unquote) and, in support of this view, he cited House ofCommons Procedure and Practice, Second Edition, which states atpage 89, (quote) by far, the most important right afforded to Members ofthe House is the exercise of freedom of speech in parliamentary

proceedings(unquote).

However, he also noted that, with the entrenchment of the practicewhereby Whips determine which of their Members will speak and theconcurrent absence of a Standing Order explicitly allowing the Speakerto intervene in that process, he questioned whether the will and supportof the House would be required before the Chair could do so.

Several other Members intervened in support of the Member forLangley, while another echoed the comments of the Chief GovernmentWhip. For his part, the Member for New Brunswick Southwestsuggested that I should expand my review of this matter to include notjust lists for Statements by Members, but also for Question Period.

I wish to begin by reminding the House of the role of the Chair indetermining matters of privilege. OBrien-Bosc, at page 141, states:

(quote) Great importance is attached to matters involvingprivilege. The function of the Speaker is limited to decidingwhether the matter is of such a character as to entitle the Memberwho has raised the question to move a motion which will have

priority over Orders of the Day; that is, in the Speakers opinion,there is a prima facie question of privilege. If there is, the House

must take the matter into immediate consideration. Ultimately, it isthe House which decides whether a breach of privilege ora contempt has been committed.(unquote)

I also wish to address what seems to be a widespreadmisconception about the role of the Speaker in matters of this kind.Several Members have used sports analogies to describe me as areferee or league convenor. Perhaps there are elements of a refereerole for the Speaker, but with one important difference: there is no

league that appoints the Speaker to enforce rules from on high, in avacuum. Instead, here in the House of Commons, the Members elect a


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Speaker from among the membership to apply rules they themselveshave devised and can amend. Thus it is only with the activeparticipation of the Members themselves that the Speaker, who requiresthe support and goodwill of the House in order to carry out the duties of

the office, can apply the rules. As is stated inOBrien and Boscat page307:

(quote) Despite the considerable authority of the office, theSpeaker may exercise only those powers conferred upon him orher by the House, within the limits established by the House itself.(unquote).

In making their arguments in this case, several Members havecorrectly pointed out the fundamental importance of freedom of speechfor Members as they carry out their duties. House of CommonsProcedure and Practice, Second Edition, at page 89 refers to thefreedom of speech of Members as:

(quote) [] a fundamental right without which they would behampered in the performance of their duties. It permits them tospeak in the House without inhibition, to refer to any matter orexpress any opinion as they see fit, to say what they feel needs tobe said in the furtherance of the national interest and the

aspirations of their constituents.(unquote)

The Speakers role in safeguarding this very privilege is set out inOBrien and Bosc, at page 308:

(quote) The duty of the Speaker is to ensure that the right ofMembers to free speech is protected and exercised to the fullest

possible extent. (unquote)

This last citation is particularly important, since it highlights a key reality,namely that there are inherent limits to the privilege of freedom ofspeech. Aside from the well-known prohibitions on unparliamentarylanguage, the need to refer to other Members by title, the rules onrepetition and relevance, the sub judice constraints and other limitationsdesigned to ensure that discourse is conducted in a civil and courteousmanner, the biggest limitation of all is the availability of time.

I need not remind the House that each and every sitting day, a

vast majority of Members are not able to make a statement pursuant toStanding Order 31 as there simply is not enough time available. It is


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likely for this reason that the Standing Order states that Members may not shall be recognized to make statements. Hence, while manyMembers in this instance have spoken of the right to speak, the Memberfor Langley acknowledged this inherent limitation and spoke more

precisely of the equal right to speak. It is this qualifier of rights equitythat carries great significance and to which the Chair must pay closeattention.

Put another way, the Chair is being asked by the Member forLangley whether the practice of Whips providing the Speaker with thenames of Members who are to be recognised to speak duringStatements by Members represents an unjust limitation on his freedomto speak, to the extent that such opportunities are not afforded to him onan equitable basis.

There is no denying that close collaboration has developed overtime between the Chair and party Whips to find ways to use the time ofthe House as efficiently as possible, and to ensure that all parties aretreated equitably in apportioning speaking time. In some cases thetiming of recorded divisions comes to mind the Standing Ordersenshrine a specific role for the Whips. In other cases, there is noStanding Order, but rather a body of practice that the House follows andthat evolves over time. A reading of the history of Members Statements

at pages 420 to 422 in OBrien and Bosctells us that our practice in thatregard has had to adjust and respond to changing circumstances onmore than one occasion, with each practice enduring only so long as itmatched its era and the will of the House. By 1982, it had settled intowhat we know it to be today; that is, the order and number of slots to beallotted to Members of different political affiliations are agreed upon bythe parties at the beginning of a Parliament and adjusted from time totime, as necessary. Then, at each sitting, the names of Members whoare to fill the designated speaking slots are provided to the Speaker by

the Whips of the different recognized parties and by the independentMembers. Even if not enshrined in the Standing Orders, generally theHouse has been well served by this collaboration and the lists havehelped the Chair to preside over this portion of each sitting day in anorderly fashion.

But does this mean that the Chair has ceded its authority to decidewhich Members are to be recognized? To answer this question, it isperhaps useful to review the history of the lists, which were first used for

Question Period in the 1970s. At page 61 in his memoirMr. Speaker, inwhich he describes his time in the Chair, Speaker Jerome explains that


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he was comfortable using a partys suggested lists (quote) so long as itdidnt unfairly squeeze out their backbench.(unquote)

In a June 19, 1991, ruling found at page 2072 of the Debates,

Speaker Fraser was even more categorical about the authority of theChair. In response to a Member who asked if the Chair was bound tofollow a set list in recognizing Members, he said:

(quote) I appreciate the honourable Members intervention and myanswer is yes, there is a list. I am not bound by it. I can ignorethat list and intervene to allow private Members, wherever theyare, not only to ask questions but also to ask supplementals. Thatis a right which remains with the Chair and I do not think it hasever been seriously challenged. I would remind all honourableMembers that it is a right which the Chair has had almost since:The memory of man runneth not to the contrary.(unquote)

The authority the Speaker has in this regard is likewise described inHouse of Commons Procedure and Practice, Second Edition, at page318, which states:

(quote) No Member may speak in the House until called upon orrecognized by the Speaker; any Member so recognized may speak

during debate, questions and comments periods, Question Period,and other proceedings of the House. Various conventions andinformal arrangements exist to encourage the participation of all

parties in debate; nevertheless, the decision as to who may speakis ultimately the Speakers.(unquote)

It further states on page 595 that:

(quote) Although the Whips of the various parties each provide

the Chair with a list of Members wishing to speak, the Chair is notbound by these.(unquote)

Similarly, Beauchesnes Parliamentary Rules and Forms, SixthEdition, on page 137, states that (quote) the Speaker is the finalauthority on the order of speaking.(unquote)

I myself have seen fit from time to time to deviate from the lists,usually in an effort to preserve order and decorum during Statements by

Members and Question Period.


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Accordingly, the Chair has to conclude, based on this review of ourprocedural authorities and other references, that its authority to decidewho is recognized to speak is indisputable and has not been trumped bythe use of lists, as some Members seemed to suggest.

I might add as an aside that the use of lists in general hasinadvertently created an ongoing problem for the Chair: in some cases,Members do not stand to be recognized because they are on a list andthus think they will automatically be recognized when theirturn comesaround. As Acting Speaker Bob Kilger put it in a statement found atpage 3925 of the Debates on May 5, 1994:

(quote) We speak about or refer to these unofficial lists that wehave, which are somewhat helpful at times, but in the endmembers seeking the floor of course are those who will berecognized by the Chair.(unquote)

Thus, the need to catch the Speakers eye, as it is called, continues tounderpin the Chairs authority in this respect.

Members are free, for instance, to seek the floor underquestionsand comments at any time to make their views known. They are alsofree at any time to seek the floor to intervene in debate itself on a bill or

motion before the House. Ultimately, it is up to each individual Memberto decide how frequently he or she wishes to seek the floor, knowing thatbeing recognized by the Speaker is not always a guaranteedproposition.

The right to seek the floor at any time is the right of each individualMember of Parliament and is not dependent on any other Member ofParliament.

Now, on the narrow question of whether the removal of theMember for Langley from his partys lineup for Statements by Memberson March 20th constitutes aprima facie matter of privilege, the Chaircannot conclude that there is aprima facie finding of privilege. Noevidence has been presented to me that the Member has beensystematically prevented from seeking the floor. The Chair has foundthat the Member for Langley has been active under several rubrics sincethe beginning of this Parliament. He has made statements underStatements by Members on a variety of subjects; he has presented

petitions; he has made speeches and has risen on questions andcomments under Government Orders; he has made speeches under


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Private Members Business and he has risen in Question Period.As I said earlier, he has remained free to seek the floor at any time, likeall other Members.

However, on the broader question of the equitable distribution ofStatements by Members, a review of the statistics reveals that theMember may well have a legitimate concern. This goes to theunquestionable duty of the Speaker to act as the guardian of the rightsand privileges of Members and of the House as an institution. Thisincludes ensuring that, over time, no Member wishing to speak is unfairlyprevented from doing so.

Even so, as Speaker I cannot exercise my discretion as to whichMember to recognize during Statements by Members or at any othertime of the sitting day if only one Member is rising to be recognized.As previously mentioned, due to an over-reliance on lists, more oftenthan should be the case, even those Members on the list do not alwaysrise to be recognized.

Were the Chair to be faced with choices of which Member torecognize at any given time, then of course the Chair would exercise itsdiscretion. But that has not happened thus far during Statements byMembers, nor for that matter, during Question Period. Until it does, the

Chair is not in a position to unilaterally announce or dictate a change inour practices. If Members want to be recognized, they will have toactively demonstrate that they wish to participate. They have to rise intheir places and seek the floor.

In the meantime, I will continue to be guided by the lists that areprovided to me and, when and if Members are competing for the floor,will exercise my authority to recognize Members, not in a cavalier oruninformed manner but, rather, in a balanced way that respects both the

will of the House and the rights of individual Members.

I would like to thank all honourable Members for their attentionduring this rather lengthy ruling.

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House of Commons Privilege Ruling - April 23/2013