A Question of Privilege: The Response from Mr. Speaker

Oct 21, 2021 | 42-2, Bills, Blog, Governance, Legislature, Video | 0 comments

I raised a Question of Privilege regarding the introduction of Bill 22 – Freedom of Information and Protection of Privacy Amendment Act, 2021 and the Special Committee to Review the same Act that was appointed last summer and that I am a member of.

The summary of my argument is that the Special Committee’s work is time-limited (one year) and during our public consultation process the Hon. Lisa Beare, Minister of Citizens Services, tabled substantive amendments to the Act we are reviewing.

I am wary of how the decision to amend legislation currently under review undermines the legitimacy and public confidence in the Parliamentary Committees.

Mr. Speaker ruled on my Question of Privilege and found that I did not meet the criteria that a Question of Privilege needs to be “raised at the first opportunity.”

However, Mr. Speaker could have left his ruling at that, but he did not. He continued in order to provide advice to the House on the matter that I raised.

He found that while the government does need to have the right to move legislation, there is also a need for the government to respect the work of the Parliamentary Committees and that a Committee could find themselves in a difficult situation if a government moved to amend legislation prior to a Committee reporting back to the House.

While this is a nuanced argument and decision, it is important for me to be more speedy in reserving my right to raise a Question of Privilege, and the government needs to be more respectful of the important work that Parliamentary Committees do on behalf of the House and our democracy.

While I may have not got the result I wanted, it does leave a lasting legacy and more advice for future Speakers and Members on what government needs to consider when tabling an amending Act at the same time as a Committee is reviewing that Act.

[Transcript]

Honourable Members:

On Wednesday, October 20, the Member for Saanich North and the Islands raised a question of privilege regarding Bill (No. 22), Freedom of Information and Protection of Privacy Amendment Act, 2021, and the work of the Special Committee to Review the Freedom of Information and Protection of Privacy Act.

In his submission, the Member stated that the introduction of Bill (No. 22) while a special committee has been tasked by the House to carry out a time-constrained statutory review of the Act that Bill (No. 22) proposes to amend breached his privileges as a Member of the Special Committee to Review the Freedom of Information and Protection of Privacy Act.

The Chair thanks the Government House Leader for his submission with respect to the provision under the provincial Constitution Act that enables the Lieutenant Governor, acting on the advice of the Executive Council, to transmit bills for consideration by this House. The Chair also thanks the Official Opposition House Leader for his submission with respect to section 80 of the Freedom of Information and Protection of Privacy Act that requires that a review of that Act be undertaken every six years by a special committee appointed by this House.

In considering a question of privilege, the Chair must first assess whether the initial criterion has been met. That criterion is whether the question was raised at the earliest opportunity. This strict requirement and the inability of the Chair to relax it is canvassed in detail in Parliamentary Practice in British Columbia, 5th edition, at pages 401 to 403.

The Member for Saanich North and the Islands reserved his right to raise a question of privilege on this matter during the afternoon sitting on Tuesday, October 19. Bill (No. 22) was introduced by the Minister of Citizens’ Services and was read a first time at the outset of the afternoon sitting on Monday, October 18. In my view, the Member for Saanich North and the Islands had a reasonable opportunity to reserve his right to raise a question of privilege prior to the conclusion of the afternoon sitting on Monday, October 18.

On this basis, I conclude that the initial criterion that the Chair must use in determining whether a prima facie breach of privilege has occurred, that being the requirement that the matter be raised at the first opportunity, has not been met. It is therefore not necessary for the Chair to evaluate the arguments put forward by the Member for Saanich North and the Islands as it relates to his question of privilege.

However, the Chair does wish to take this opportunity to provide advice for the record of this House as it relates some of the matters at hand. The crux of this matter is complex and nuanced, and little guidance exists on how such a situation ought to be addressed.

In his submission, the Member for Saanich North and the Islands noted a ruling of one of my predecessors, Speaker Sawicki, of June 1, 1993, which notes that “…it is the acknowledged practice of this House to preclude any reference in detail to specific issues before a committee, prior to the report of the committee, or discussion of evidence being presented to a committee, but to allow general references to a subject matter even although that matter may have been previous referred to a select standing or other committee. The rationale of this practice is to avoid any direct intrusion into the functioning of committees which might pre-empt the committee’s activities. The House itself, at the same time, does not totally preclude itself from alluding to a particular subject matter which it has referred to one of its committees.” The Chair acknowledges that the findings of Speaker Sawicki continue to represent the practices of this House as they stand today.

Once the House has tasked a select standing committee or a special committee with a line of inquiry through a terms of reference, the House has no knowledge of what transpires in such a committee or what conclusions or recommendations the committee intends to make in respect of those terms of reference until such time that the committee reports to the House.

Respecting this principle and reality, the Chair can appreciate the difficult situation that a parliamentary committee would find itself in if, while it is nearing the completion of a public consultation resulting from a statutory review of an Act, substantial amendments to that same Act were brought forward for the consideration of this House. It may have a significant impact on the work of such a committee, especially if that committee is required to report to the House within a time-constrained period.

Parliamentary committees fulfill a very important function within our democratic process. They allow small subsets of Members to engage directly with British Columbians on matters that they are tasked with by this House. Committees often do this by undertaking extensive public consultations, which require a great deal of resourcing. The Chair appreciates that, in certain circumstances, the effectiveness of the work of such a committee could be undermined by the introduction of a bill that relates directly and substantively to the work of that committee.

That is not to say that committee proceedings may preclude the introduction of legislation – there may be unique, urgent, or otherwise necessary circumstances that may require the House to act swiftly through the consideration of legislation.

Finally, let there be no doubt about the right of the government and of all Members to introduce legislation for the consideration of this House. But there are instances when the timing of the introduction of a bill could be discourteous to the House or one of its committees.

Timing of the introduction of legislation should be carefully considered, so as not to diminish or be perceived to diminish the important work that this House and its committees undertake outside of core legislative functions.

I trust that this guidance will be given due consideration going forward. Thank you.

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