Parliamentary Privilege: Could/Should, Shouldn’t/Can’t

Parliamentary privilege has now become a point of contention in the SNC Lavalin controversy.

Over at Maclean’s, I’ve argued that Jody Wilson-Raybould and Jane Philpott could use parliamentary privilege to speak about matters that still remain under cabinet confidentiality, but that the issues would have to rise to the level of unconstitutional behaviour on the part of the executive to justify a violation of their privy councillors’ oath and of the deference Parliament should almost always show cabinet confidences.

James Kelly has noted that, while the privilege of free speech exists, it wouldn’t be easy for the two members to find a way to exercise their privilege without the consent of their party or flexibility from the Speaker. Over on Twitter, a few of us have argued that points of privilege, points of order, and other creative mechanisms would almost certainly allow them to speak. The counter-counterargument is that none of these mechanisms would afford Wilson-Raybould and Philpott enough time to say what needs to be said, and that the onus should still be on the Prime Minister to issue a wider waiver.

This is a healthy and important debate, but it needs a bit more clarity, since many of the contentions hinge on nuances and possibilities, rather than concrete and actual happenings.

Above all, I think it’s worth spelling out the institutional question, then outlining what it means for the various positions.

Wilson-Raybould and Philpott could use parliamentary privilege to expose cabinet confidentialities. That does not mean they should. Privilege is absolute and has to be exercised with careful consideration of other principles.

If they shouldn’t violate cabinet confidentiality, that doesn’t mean we want the parties and Speaker finding reasons to ensure they couldn’t. The privilege of free parliamentary speech is an essential constitutional safeguard that merits protection and promotion.

The best course of action would be for Wilson-Raybould to testify before a parliamentary committee with a wider waiver from the Prime Minister. That doesn’t negate the fact that privilege and procedure offer other ways of expressing herself if the wider waiver never comes and she has something absolutely essential to say.

Liberals who argue that Wilson-Raybould and Philpott can simply speak should recognize that the wider waiver and committee testimony are far, far preferable ways to for them to do so. If there’s a way for them to speak without violating their privy councillor oaths, then that’s the way to go.

Conservatives and New Democrats who argue that Wilson-Raybould and Philpott should be given the opportunity to speak under a wider waiver can nonetheless acknowledge that privilege and procedure offer a means for them to do so if the wider waiver and additional testimony aren’t on offer. In fact, the Conservatives and New Democrats could do a lot to help the two members exercise their privilege of free speech if it came to that.

Parliamentarians from all sides should acknowledge and promote the principle that they have free speech and mechanisms to use it when necessary. They do no service to themselves as parliamentarians, or to Parliament as an institution, by suggesting that members can or should be easily silenced by their parties or the Speaker.

We should acknowledge the importance of cabinet confidentiality as a core constitutional principle that should be respected in almost all cases, while noting that parliamentary privilege must be paramount over confidence in very exceptional circumstances if Parliament is to function as a self-governing body equipped to hold the government to account. The fundamental constitutional point here is that the executive does not get to decide what’s said in Parliament.

We can stress that individual oaths should almost always be respected, but that people may be faced with an equally, if not more compelling, ethical principle or obligation that pushes them to act contrary to their oath.

Finally, there should be no question that the correct course of action is to allow Wilson-Raybould and Philpott to speak without violating cabinet confidentiality. Our system works best when constitutional functions and principles are reconciled, not in conflict. As Speaker Milliken ruled in the case of the Afghan detainee documents:

The Chair must conclude that it is within the powers of the House of Commons to ask for the documents sought in the December  10 Order it adopted. Now it seems to me that the issue before us is this: Is it possible to put in place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interests of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for.

Surely it is not too much to hope for here either.

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