Mr. Speaker, I understand it is as important to establish what it is not about as it is to establish what it is about, so I will take the point and move on. I think I have made clear what it is not about. Certainly, it is not about the efficacy or the importance of vaccines. I will make that clear.
What I am rising about today is this. I believe the Board of Internal Economy's decision represents a major breach of the ancient privileges of the House and in fact could set a very troublesome precedent.
Following the Prime Minister's lead, some pundits have been quick to claim that this issue is about some politicians looking out for their own self interest, but as pages 59 and 60 of the House of Commons Procedure and Practice, third edition, remind us:
The privileges of the Commons are designed to safeguard the rights of each and every elector.
That is critically important, because barely two months ago the electors it refers to chose the 338 people who sit in the House of Commons to represent them here.
Page 60 of Bosc and Gagnon quotes from the 20th edition of Erskine May's parliamentary procedure that:
The privileges of Parliament are rights, which are “absolutely necessary for the due execution of its powers”. They are enjoyed by individual Members because the House cannot perform its functions without unimpeded use of the services of its Members.
A similar point is made by Joseph Maingot on page 12 of his second edition of Parliamentary Privilege in Canada. The privileges that are implicated by the Board's decision are in fact to be found among the House's collective rights.
In particular, I point the Speaker to page 59 of Bosc and Gagnon, which explains:
The rights and powers of the House as a collectivity may be categorized as follows:
[The] exclusive right to regulate its own internal affairs (including its debates, proceedings and facilities);
[The] right to provide for its proper constitution, including the authority to maintain the attendance and service of its Members.
This right of the House to maintain the attendance and to have the service of its members finds expression in Standing Order 15, which states:
Every member, being cognizant of the provisions of the Parliament of Canada Act, is bound to attend the sittings of the House, unless otherwise occupied with parliamentary activities and functions or on public or official business.
I underscore that every member is bound to attend the sittings of the House. Some exceptions are indeed noted, but none of them suggests this expectation can be waved off by the Board of Internal Economy.
Bosc and Gagnon, at page 107, state:
In order to fulfill their parliamentary duties members should be able to go about their parliamentary business undisturbed....
Speakers have consistently upheld the right of the House to the services of its members free from intimidation, obstruction and interference.
The Standing Committee on Procedure and House Affairs, in its 66th report, presented in April of 1999, elaborated at paragraph 15:
One of the privileges of Members of the House of Commons is a right of unimpeded access to Parliament and the parliamentary precincts. Members are entitled to go about their parliamentary business undisturbed, and cannot be prevented from entering the chamber or a committee room for a parliamentary proceeding. This privilege...can be...traced back to at least the early eighteenth century, and is part of the heritage of all legislative bodies that trace their origins to the British parliamentary tradition. It is based on the pre-eminent right of the House to the attendance and service of its Members. Any obstruction of Members constitutes a breach of privilege and a contempt of the House of Commons.
There can be no doubt that the board's decision constitutes or purports to be an obstruction to members of the House and their ability to come here for its sittings, and, once our committees are struck, potentially for their meetings as well.
That leads me to the comments of Bosc and Gagnon at page 110, which state:
In circumstances where members claim to be physically obstructed, impeded, interfered with or intimidated in the performance of their parliamentary functions, the Speaker is apt to find that a prima facie breach of privilege had occurred. Incidents involving physical obstruction...either impeding Members' access to the parliamentary precinct or blocking their free movement within the precinct...have been found to be prima facie cases of privilege.
Indeed, Bosc and Gagnon, at page 86, remind us that:
The denial of access of members to the parliamentary precinct has been found to constitute contempt of the House on several occasions.
While those instances typically relate to security activities or maybe organized protests, for example, the occasions afforded the procedure and House affairs committee offer several different opportunities to shed light on how critical these rights of the House actually are.
For example, the committee wrote in its 21st report tabled in January 2005 that:
The denial of access to Members of the House—even if temporary—is unacceptable, and constitutes a contempt of the House. Members must not be impeded or interfered with while on their way to the chamber or when going about their parliamentary business. To permit this would interfere with the operation of the House of Commons and undermine the preeminent right of the House to the services of its members.
That report was subsequently concurred in by the House on May 17, 2005.
The procedure and House affairs committee later wrote, this time in its 26th report, tabled in May of 2012 that:
As part of the parliamentary privilege, Members of the House of Commons have the right of unimpeded and unfettered access to the parliamentary precincts, and are entitled to go about their parliamentary duties and functions undisturbed and without any form of interference.
The same point was made almost word for word by the committee in its 34th report presented in March 2015 and in another 34th report, this time presented in June 2017. In fact, I pause to observe that I was actually a member of the committee for both of those reports. It was clear to me, from my participation during those committee deliberations, that there was a growing impatience in the parliamentary community with members being thwarted in their efforts to come to the House. That is why I was so surprised to see, only a few years later, the Board of Internal Economy take such a casual approach to imposing barriers without sufficient accommodations for MPs being able to come to the chamber.
The earlier attitudes that I have spoken of can be found, for example, in the 2012 report of the procedure and House affairs committee, which restated the obligations and expectations of those regulating access to Parliament, including this observation:
First, Members of the House of Commons should not, in any case, be denied or delayed access to the Hill and the precinct when they are known to be Members.
Speaker Regan, in an April 6, 2017, ruling, which would eventually lead to the 2017 report that I cited earlier, commented at page 10246 of the Debates. He said:
The importance of the matter of members' access to the precinct, particularly when there are votes for members to attend, cannot be overstated. It bears repeating that even a temporary denial of access, whether there is a vote or not, cannot be tolerated.
The 2017 report, meanwhile, noted that:
In line with past precedents, the Committee strongly believes that the right of unimpeded access for parliamentarians to the parliamentary precinct is of the upmost importance and that obstruction or interference with Members engaged in parliamentary business cannot be condoned.
We are left with a trail of precedents, which goes directly to the right of this House to have the attendance and service of its members. Now, some may say that the board's decision should be upheld because it is about safety. I agree that in pandemic times it is right that we should take appropriate precautions. However, that does not mean the rights of Parliament should just be tossed out, but rather it is incumbent upon us to find an appropriate balance. Even for physical security operations, which I am sure we can all agree are very important activities around here, it does not mean that Parliament's rights are expected to yield.
Mr. Speaker, one of your predecessors, the hon. member for Regina—Qu'Appelle, in a March 15, 2012, ruling at page 6333 of the Debates, indeed made the point that “...the implementation of security measures cannot override the right of members to unfettered access to the parliamentary precinct, free from obstruction or interference.”
Earlier, I mentioned that the House itself also has rights to control its own internal affairs. Bosc and Gagnon, for example, comment on page 122 that:
It is well established that, by extension, the House has complete and sole authority to regulate and administer its precinct, without outside interference, including controlling access to the buildings.
The authorities are also clear that these rights may be reconciled when they conflict with members' rights to come here to represent their constituents. Indeed, that is where the balancing act that I am suggesting comes into play.
For their part, Bosc and Gagnon, at pages 87 and 88, note:
...the individual Member’s rights are subordinate to those of the House as a whole...is extremely rare, however, that the rights of the House collectively will be used to override those of an individual.
Maingot adds, at pages 13 and 14:
While it will be seen that the Member enjoys all the immunity necessary to perform his parliamentary work, this privilege or right...is nevertheless subject to the practices and procedures of the House.
The real crux of the question before us, then, is who has the proper and lawful authority to impose limits or controls on those individual rights. Perhaps I could offer an analogy.
I am standing here today in a suit and tie, partly because, according to the customs and usual practices of the House, I must do so in order to be recognized to speak. If I were to take my tie off, Mr. Speaker, you would not recognize me and I could not speak, yet I would not suggest that my rights were breached.
The difference between the tie requirement in my analogy and the vaccine requirement of the board is that one is the established practice of the House and the other was decided by some outside body and imposed on all MPs. Yes, that outside body might be composed of MPs, but it does not constitute all MPs and therefore cannot be the House.
Parliament and even judicial authorities recognize that the control of the precinct vests in the House and, on its behalf, the Speaker.
Madam Justice Charron, for a unanimous Ontario Court of Appeal in the 1999 Zündel v. Boudria decision, held, at paragraph 18:
In my view, it should be self-evident that control over the premises occupied by the House of Commons for the purpose of performing the Members' parliamentary work is a necessary adjunct to the proper functioning of Parliament. Surely, someone must be in control of the premises. Who better than the Speaker, who historically has exercised this control for the House? In my view, the courts would be overstepping legitimate constitutional bounds if they sought to interfere with the power of the House to control access to its own premises.
Notice that Madam Justice Charron referred to the House and the Speaker, and not to the Board of Internal Economy and the chair of the board.
I will be as brief as I can, Mr. Speaker, but there are a number of things that I have to address to ensure that you can properly make the ruling based on what is and is not.
Mr. Speaker Milliken, May 10, 2006, at page 1189 of the Debates, remarked:
...it is my role as Speaker to protect the House's control over its premises and to protect the access of members to these premises...
Mr. Speaker Regan, in his April 6, 2017 ruling, noted at page 10245 of the Debates:
As Speaker, it is my role to ensure that the privileges of the House and the individual privileges of members are protected, including that of freedom from obstruction; for it is that privilege of unfettered access to the parliamentary precinct which ensures that members are able to discharge their responsibilities as elected representatives.
It is worth bearing in mind, of course, the words also of Bosc and Gagnon, at page 317, that the Speaker is the chief servant of the House, and that it is your responsibility, Mr. Speaker, “to act as the guardian of the rights and privileges of Members and of the House as an institution.”
The Speaker of the House also, of course, serves as the ex officio chair of the Board of Internal Economy, but that is, I would suggest to you, a different legal and constitutional capacity that you have as Speaker.
Indeed, the November 2 Globe and Mail article describes a distinction between these two roles, with particular regard to the board decision I am speaking about today, based on an interview with you, Mr. Speaker. It states:
In his defence, [the Speaker] said he only chairs the board and decisions, including that one, are made by MPs who sit on the board.
That is to say that the Speaker, when acting as chair of the Board of Internal Economy, is not acting directly in his or her constitutional capacity as the guardian of the House's rights and privileges or as the House's delegate for managing the precinct. In any event, on the basis of that Globe and Mail interview, it is fair to say that the chair of the board's October 19 meeting certainly did not see it otherwise. Since you, Mr. Speaker, distanced yourself from ownership of the board's decision, the question becomes whether the board itself has the authority.
In my respectful opinion, the Board of Internal Economy simply does not have the statutory authority or the delegated authority from the House to make a decision like this one with such sweeping implications. If members will allow me, I would like to talk about what some of those implications are. I will do it as briefly as I can.
Section 52.3 of the Parliament of Canada Act prescribes the board's authority: “The Board shall act on all financial and administrative matters respecting (a) the House of Commons, its premises, its services and its staff; and (b) the members of the House of Commons.”
This is an important part of the argument. In my respectful view, those administrative matters concern items like staffing policies, office use guidelines, IT regulations and things like that. They do not touch upon the procedural concerns of the chamber. The former senior legal counsel of the House, Steve Chaplin, shared that view in a recent interview with the National Post, when he commented, “There is no business or jurisdiction for the Board to interfere with the proceedings in the House, including members’ attendance and participation.... Privileges are constitutional and, at the end of the day, the independence of the House to carry out its functions and how this is done is for the House to decide.”
Indeed, I would submit to members the background to the adoption of section 52.3 bears out that interpretation, and I just want to share that background. It originated from the recommendation in the fourth report of the Special Committee on the Review of the Parliament of Canada Act, often known as the Danis committee. That report was presented to and concurred in by the House on June 1, 1990. The context of paragraph (b) concerning members of the House is explained by the Danis committee at page—