If the Williams administration decided to act on the Premier's comments, it would be remarkably easy to achieve the goal. In this, the first of two articles, Bond Papers will briefly discuss the notion of privileges and immunities and how they apply in the House of Assembly. In the second article, we will examine the implications of removing parliamentary privilege and immunity as it relates to free speech.
It is important to note that Premier Williams made the comments in response to a reporter's question during a scrum:
Let's change it. From my perspective, I think the legislature should have the exact same accountability [ i.e. being sued for defamation]. That's a democratic practice that goes way, way beyond me. But from my perspective, I'd be prepared to be held accountable...those laws get changed [sic]...or anybody else in the House has to be held accountable for what they say. I have no problem with that.Like all Westminster style parliaments, the House of Assembly and its members enjoy certain privileges and immunities. Privilege exists for several reasons, one of which is the constitutional separation of powers. The notion is embodied in Article 9 of the Bill of Rights, 1689, "that the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament."
This notion has been reaffirmed by courts in Canada. In New Brunswick Broadcasting v. Nova Scotia (Speaker of the House of Assembly), a case heard on appeal to the Supreme Court of Canada in 1993, the majority held that:
Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincial counterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.Freedom of speech is also widely held to be an important right of legislators for the wider public interest it serves. Members of the legislature are entitled to make whatever statements they wish in dealing with a public issue. The same privilege extends to those called before the legislature or its committees as witnesses. All may speak freely and openly without fear and without concern that comments out to be proven true before they are made.
As in all Westminster parliaments, the House of Assembly is master of its own privileges and immunities. Term 7 of the Terms of Union revived the Newfoundland constitution as it existed in February 1934. That constitution included several aspects, including the fundamental power of the legislature to decide its own internal business.
The Terms of Union also provide that the Canadian constitution applies to Newfoundland and Labrador except as varied in the Terms. This general provision not only reinforces the inherent privileges and immunities of the legislature but also provides that the provincial legislatures can establish their own procedures free of interference of the courts. This notion is affirmed in New Brunswick Broadcasting (1993).
The House of Assembly established in section 19 of the House of Assembly Act that the legislature and its members enjoy the privileges, immunities and powers of the federal House of Commons.
The privilege - including free speech - is established easily.
It can also be removed as easily.
If the Williams administration wished to remove privilege and immunity related to free speech for the House of Assembly, it need only introduce an amendment to section 19 of the House of Assembly Act. Given that the administration enjoys the support of a majority of members, it is likely the measure would pass and receive Royal Assent. Only a majority of 50% plus one of members in the legislature at the time would be needed for the measure to proceed through each of the three stages a bill goes through.
Privilege may be a part of the constitution, but it is a portion which applies only to the legislature. As such a simple majority of members may remove a constitutional provision dating back at least to the 16th century.
