Democracy in the 21st Century: The Need for Codification of Parliamentary Privilege

By Lee, Derek | Canadian Parliamentary Review, Spring 2005 | Go to article overview

Democracy in the 21st Century: The Need for Codification of Parliamentary Privilege


Lee, Derek, Canadian Parliamentary Review


The current adherence of our House of Commons and all other Canadian parliamentary assemblies to the body of law known as "Privilege" is neither convention nor happenstance. Privilege is an essential component of our parliamentary democracy.

Since it is buried in the foundations of our complex modern government one could also say that it is only the "plumbers and engineers" who ever see it in operation or have to work with it.

Nevertheless, privilege is certainly alive, since we could not operate a Parliament of the type we have now without it. Arguably it is just as important to Parliament as the Ten Commandments are to the Judeo-Christian faiths. However, privilege has not had the benefit of being written down on tablets as the Commandments were. The absence of a comprehensive codification of this legal construct has allowed for flexibility and adaptation to changing times. But, I would also argue that this circumstance has produced new challenges, including such effects as being misunderstood (perhaps the least worrisome), public ignorance, conflict with other laws and conflict with other institutions. By far the most troublesome, for a political institution in a democracy, is minimal awareness and uncertainty that it has support of the citizenry.

In further exploring the current status of privilege, which remains firmly based on principles of institutional necessity and free speech, I would like to examine three areas in more detail:

* The lack of knowledge or understanding of privilege, not just on the part of the public, and not only among lawyers, but among legislators themselves.

* The term "privilege" itself which is an unfortunate "brand name" in modern times and is needlessly suggestive of elitism and special status for elected persons.

* The need for codification.

The practice of parliamentary law and privilege might be commonplace for Speakers, Clerks and a few Parliamentarians, however it clearly suffers from a lack of public understanding. Public knowledge, lawyerly knowledge and even judicial knowledge of the law and application of privilege are abysmally low. The level of awareness and knowledge of parliamentary privilege across the country is probably in about the same range as knowledge of Canon Law. The average lawyer probably knows more about meteorology.

I am not aware of any law school in Canada which teaches parliamentary law. If I am wrong, my lack of awareness is just as telling. Surely there is a law school in this country capable of undertaking an attempt to modernize, codify or reform this area of privilege law. Such a project would be helpful to legislative houses across Canada.

I attended law school in Ontario in 1970 and practiced law for about 15 years before being elected to the House of Commons. I do not remember ever hearing of privilege until I came to the House. Most Members of Parliament and MLAs would say something similar. So we have now as we did at Confederation, parliamentarians entering legislatures and subject to a distinct legal construct which they know almost nothing.

This means a person can become a judge, go through half a career and then have to learn about it, sometimes from counsel who just learned about it two days from a legal brief prepared by a law student four days earlier. This general ignorance of the law of privilege also means we lack a critical mass of citizens who accept and support it. Privilege is constitutional in nature cannot change on a whim, but even constitutions can change if the people take a mind to do so.

When there are instances of conflict or competition between laws, the absence of knowledge and of general support for a law could lead to difficulty in any of our courts or tribunals. Our goal should be to pre-empt conflicts where possible, ensure clarity and good legal decisions respect the place and role of parliamentary assemblies.

The very term parliamentary privilege I find unhelpful, and I believe inhibits public understanding. …

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