Contempt of Parliament
In countries with a parliamentary system of government, contempt of Parliament is the offence of obstructing the legislature in the carrying out of its functions, or of hindering any legislator in the performance of their duties.
The concept is common in countries with a parliamentary system in the Westminster model, or which are derived from or influenced by the Westminster model. The offence is known by various other names in jurisdictions in which the legislature is not called "Parliament", most notably contempt of Congress in the United States. Actions that may constitute contempt of Parliament include:
- deliberately misleading a house of the legislature, or a legislative committee;
- refusing to testify before, or to produce documents to, a house or committee; and
- attempting to influence a member of the legislature by bribery or threats.
In some jurisdictions, a house of the legislature may declare any act to constitute contempt, and this is not subject to judicial review. In others, contempt of Parliament is defined by statute; while the legislature makes the initial decision of whether to punish for contempt, the person or organisation in contempt may appeal to the courts. Some jurisdictions consider contempt of Parliament to be a criminal offence.
In the Commonwealth of Australia, the Parliamentary Privileges Act 1987 defines contempt of Parliament as:
Conduct (including the use of words)... [which] amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member.
Contempt decisions by the House of Representatives or the Senate are subject to review by federal courts. This follows after the Browne–Fitzpatrick privilege case, in which Morgan, Fitzpatrick and Frank Browne were denied legal representation, subsequently convicted, and served 90 days each in jail for publishing an allegedly defamatory article against a member of Parliament.
Punishments are limited under the Act to (for individuals) a fine of $5,000 and/or six months' imprisonment, or (for corporations) a fine of $25,000.
In the Senate, allegations of contempt are heard by the Privileges Committee, which decides whether or not contempt was committed, and if so, what punishment is to be imposed. In practice, there have been very few times when a hearing determined that anyone was in contempt, and on no occasions has anyone been punished beyond a warning, with an apology and/or other appropriate remedial action.
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The power to find a person in contempt of Parliament stemmed from Section 18 of the Constitution Act, 1867 in which "The privileges, immunities, and powers to be held, enjoyed ... shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof."
Regarding the above-mentioned "privileges" there is an important difference between the "individual parliamentary privileges" and "collective parliamentary privileges". This difference is also important in any case of "breach of privilege" as it applies to parliamentary privilege in Canada.
Contempt citation cases for individualsEdit
The April 10, 2008 case involved Royal Canadian Mounted Police deputy commissioner Barbara George who was cited for contempt for deliberately misleading a parliamentary committee over an income trust scandal. She was ultimately found in contempt but was not punished further than the motion itself.
The March 2011 contempt citation case involved Conservative MP Bev Oda. While she was found to be prima facie in contempt by the Speaker, Oda was not formally held in contempt because Parliament was dissolved before a vote could be held on the matter.
Contempt citation cases for governmentsEdit
On March 9, 2011, Speaker of the House of Commons of Canada Peter Milliken made two contempt of Parliament rulings: The first found that a Conservative Party cabinet minister, Bev Oda, could possibly be in contempt of Parliament. The second ruling found the Cabinet could possibly be in contempt of Parliament for not meeting Opposition members' requests for details of proposed bills and their cost estimates, an issue which had "been dragging on since the fall of 2010". Milliken ruled that both matters must go to their responsible parliamentary committees and that the committee was required to report its findings to the Speaker by March 21, 2011 – one day before the proposal of the budget.
Concerning the Speaker's first ruling, on March 18, 2011, Opposition members of the committee (who outnumbered the government members) said they still judged Oda to be in contempt of Parliament, despite her testimony that day, but the committee process never proceeded far enough to make a finding as to whether Oda was in contempt.
Concerning the Speaker's second ruling, on March 21, 2011, the committee tabled a report that found the Government of Canada in contempt of Parliament. As such, a motion of no confidence was introduced in the House. On March 25, 2011, Members of Parliament voted on this motion, declaring a lack of confidence by a vote of 156 to 145 and forcing an election. The contempt finding is unique in Canadian history. In a wider context, it is the first time that any government in the 54-member Commonwealth of Nations, either Commonwealth Realm or parliamentary republic, has been found in contempt of Parliament.
Earlier that week, all three opposition parties had indicated that they would oppose the government's budget, with the NDP saying that the Conservatives' concessions did not go far enough, and the Bloc's earlier demands for $5 billion to their home province (including compensation for the 1998 ice storm and a new arena for the Quebec Nordiques) being rejected outright. Though the vote on the budget was never scheduled, a budget is a confidence matter in its own right, so Prime Minister Stephen Harper asked the Governor General to dissolve Parliament.
During the campaign the Conservatives portrayed the "Liberal motion of non-confidence over the contempt-of-Parliament finding" as mischief, instead of focusing on the economy and making constructive proposals for the budget. The Conservatives framed the election as a choice between a stable Conservative majority government or a Liberal coalition backed by the NDP and/or Bloc Québécois. The resulting election devastated two of the opposition parties who supported the contempt motion, with the Liberals losing more than half their seats to drop to third place in the Commons for the first time, while the Bloc Québécois was nearly wiped out, with both their leaders also personally losing their ridings. The Conservatives gained enough seats to form a majority government, while the New Democratic Party won a record number of seats to form the Official Opposition.
At the provincial level, contempt operates in the legislative assemblies in much the same way that it does in the Senate or the House of Commons.
While Section 18 of the Constitution Act, 1867 only grants parliamentary privilege (and therefore contempt powers) to the Senate and the House of Commons, court cases have since clarified that the provinces do have parliamentary privileges. The Supreme Court of Canada, in New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), ruled that parliamentary privilege in both the provincial and the federal context is an unwritten convention of the Canadian constitution.
More recent case law more clearly defined what parliamentary privileged means in the Canadian context, with the Supreme Court in Canada (House of Commons) v. Vaid defining parliamentary privilege in part as "the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislative assemblies." With case law establishing that provincial legislatures maintain parliamentary privileges, the door is open for a provincial legislature to use contempt of parliament powers.
Most provinces have codified parliamentary privilege, at least in part, such as in British Columbia's Legislative Assembly Privilege Act, or Manitoba's The Legislative Assembly Act, both of which touch on the powers of the legislatures to find people in contempt. Quebec, the only civil law province in Canada, has maintained its "tradition of codification" and has fully set out the privileges of their legislature, The National Assembly, in Division 1 of Chapter 3 of An Act Respecting the National Assembly, and maintains the "power to protect its proceedings against all interference."
In the United Kingdom, it has been alleged that arresting a member of Parliament in the course of carrying out his duties may constitute contempt of Parliament, although immunity from criminal arrest was removed by the Parliamentary Privilege Acts of the 18th century.
It is further contempt to bribe or attempt to bribe any member (and for any member to accept or solicit a bribe), to disrupt the sittings of the House or a committee—wherever it is sitting, to refuse to appear before a committee to testify, to refuse to answer any question put by a committee, to lie to a committee or to refuse to swear an oath (or make a solemn affirmation) when testifying, or to otherwise obstruct the business of the House.
MPs accused of contempt of Parliament may be suspended or expelled. They may also be committed to the clock tower of the Palace of Westminster, although this practice has not been used since Charles Bradlaugh was detained in 1880. Strangers (those who are not members of the House) may be committed to prison during the life of the Parliament. The House of Lords has the power to fine as well as to order imprisonment for a term of years.
On 4 December 2018, the UK Government was found in contempt of Parliament for the first time in history on a motion passed by MPs by 311 to 293 votes. The vote was triggered by the government failing to lay before Parliament any legal advice on the proposed withdrawal agreement on the terms of the UK's departure from the European Union, after a humble address for a return was unanimously agreed to by the House of Commons on 13 November. The government then agreed to publish the full legal advice for Brexit that was given to the Prime Minister by the Attorney General during negotiations with the European Union. However, this advice was never published in full.
- West, E. Garrett, Revisiting Contempt of Congress, Wisconsin Law Review, Vol. 2019, Issue 6 (2019), pp. 1419-1488.
- "Contempt of Parliament".
- "Constitution Acts, 1867". Laws.justice.gc.ca. Retrieved December 3, 2018.
- Canwest News Service (April 10, 2008). "Examples of 'rare' contempt of Parliament cases". CanWest MediaWorks Publications Inc. Archived from the original on April 11, 2008. Retrieved March 21, 2011.
- Laura Payton (March 9, 2011). "PM on rulings: 'win some, lose some'". CBC News. Retrieved March 26, 2011.
- "RCMP deputy commissioner found in contempt of Parliament". Cbc.ca. Retrieved December 3, 2018.
- Mike De Souza (March 26, 2011). "Oda off the hook". Montreal Gazette. Retrieved March 26, 2011.
- "MPs' report finds government in contempt". CBC News. March 21, 2011. Retrieved March 24, 2011.
- Laura Payton (March 18, 2011). "MPs to return Monday on contempt debate". CBC News. Retrieved March 21, 2011.
- "Question of Privilege Relating to the Failure of the Government To Fully Provide the Documents as Ordered by the House: Report of the Standing Committee on Procedure and House Affairs" (PDF). March 2011. Retrieved April 26, 2011.
- "Global News | Latest & Current News - Weather, Sports & Health News". Globaltvcalgary.com. Retrieved August 31, 2013.
- CBC News (March 25, 2011). "MPs gather for historic vote". CBC. Retrieved March 25, 2011.
- Bruce Cheadle (March 25, 2011). "Harper government topples on contempt motion, triggering May election". The Canadian Press; CTV news. Retrieved March 25, 2011.
- Thomas Walkom (March 25, 2011). "Walkom: Yes, contempt of Parliament does matter". Toronto Star. Retrieved March 25, 2011.
- Wells, Paul (May 5, 2011). "The untold story of the 2011 election: Chapter 2". Macleans.ca. Archived from the original on July 7, 2011. Retrieved March 19, 2012.
- New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), 1 SCR 319 (SCC 1993).
- Canada (House of Commons) v. Vaid, 1 SCR 667, 29 (SCC 2005).
- A Matter of Privilege: Discussion Paper on Canadian Parliamentary Privilege in the 21st century (PDF) (Report). Senate of Canada. 2015. p. 32.
- "Legislative Assembly Privilege Act, RSBC 1996, c 259, s 8". CanLII. 1996.[dead link]
- "The Legislative Assembly Act, CCSM c L110, ss, 40, 42". CanLII. 2019.[dead link]
- "An Act Respecting the National Assembly, Chapter 3, Devision 1, Section 42". CanLII. 2019.[dead link]
- "Cap 382 s 17 Contempts (LEGISLATIVE COUNCIL (POWERS AND PRIVILEGES) ORDINANCE)". Legislation.gov.hk. June 30, 1997. Retrieved August 31, 2013.
- Parliamentary privilege consists of freedom of speech on the floor of the House and in committee, freedom from arrest, regulating its membership and exclusive cognisance of internal affairs. Privilege extends to the publication of papers and reports by order of the House, including the official record Hansard. Freedom from arrest originally prevented the arrest (on criminal as well as civil grounds) of members, their goods and their staff. The freedom from arrest of servants and goods were removed in the 18th century as the privilege was open to abuse, as was immunity from arrest for criminal acts. MPs today are only protected from arrest on civil grounds, for contempt of court. Regulation of composition extends to determining who is elected and whether they may take their seat. The result of elections is now de facto a matter for an Election Court composed of High Court judges, who issue a certificate to the Speaker in the case of elections where the result is disputed. The House also has exclusive right to determine whether members may take up their seat, including whether a member is eligible to take the relevant oath. Exclusive cognisance of internal affairs extends to the right to determine the oaths to be taken by members and who may take them (Bradlaugh v Gossett), the right to determine who may use House of Commons facilities and the exclusion of the jurisdiction of the courts as to alcohol sale offences within the Palace of Westminster.
- Walker, Peter (December 3, 2018). "Brexit legal advice and threat of contempt of Parliament – explainer". The Guardian. Retrieved December 3, 2018.
- Watt, Nicholas; Sparrow, Andrew (November 28, 2008). "Allegation made by Michael Howard, a lawyer and former Home Secretary". The Guardian. London.
- Peter Lyne (March 26, 1964). "Contempt Drama Grips Parliament". The Christian Science Monitor. p. 13.
- "Govt found in contempt of Parliament for first time in history over Brexit legal advice". Sky News. Retrieved December 4, 2018.
- "Division 273, Privilege (Withdrawal Agreement: Legal Advice) - Hansard". hansard.parliament.uk. Retrieved May 4, 2019.
- Commons, UK House of (December 4, 2018). "House of Commons votes 311 to 293 to approve the privilege motion, finding Ministers in contempt and ordering the immediate publication of the full legal advice on the #Brexit deal.pic.twitter.com/haXVmbH36s". @HouseofCommons. Retrieved December 4, 2018.