Written evidence submitted by Steven Chaplin



The problem of witnesses not appearing to summons by parliamentary committees is a problem experienced by Parliaments and Legislatures throughout the Commonwealth. There is much in the First Report that is agreed with, including the power of Committee with the support of the House has the power to inquire as part of their constitutional functions in holding the government to account.  It is also an inherent power in Committees to summons witnesses (sending for persons and papers).   The issue is how such summons should be enforced if not complied with.

This is where I differ from the Committee.  I do not agree with the recommendation that the contempt of not appearing to a summons should be dealt with as a crime through the courts.  As the Committee notes, this would involve somewhat limiting the independence of the House and giving up some protections of Article 9 of the Bill of Rights, 1689.

Article 9 is the constitutional anchor for the independence of Parliament and the House of Commons. It should be  guarded jealously and only compromised when necessary to meet a more pressing constitutional imperative.

This is not necessary in the context of compelling the attendance of witnesses.  Parliament (the House) has the constitutional power, or privileges, to both summons and enforce its summons.  Historically enforcement was through imprisonment until the witness purged their contempt, or to the end of the session (prorogation).

The Committee identified its concerns with arrest and imprisonment by the House in the 21st century.

Imprisonment was not, and is not, a privilege.  It is only the exercise of the power and privilege to enforce a summons to protect the constitutional authority and dignity of the House.  As a result, the House can change the exercise of the privilege without changing the scope, effect and purpose of the privilege. 

Daily financial sanctions (coercive fines), following an opportunity to reconsider not appearing, would be an appropriate replacement for imprisonment. There is no legal or constitutional reason on which the House can be precluded from such sanctions.  There are various reasons including modernization, immediacy, and little risk of concern over restriction of liberty that make this approach reasonable and appropriate.  As an exercise of a privilege, the courts would be precluded from inquiring into the exercise of privilege in this manner.

There are two possible means for enforcing such sanctions.  The first would be to allow the House to file the order for the sanction with the court to be enforced through the court processes.  This is similar to enforcement of administrative tribunal orders and foreign judgements, where the court enforces but cannot revisit the underlying decision.  The second, and preferred option is to have the sanction considered a debt owing to the Crown and require the government to recover the debt through whatever means it has available to it to recover debts.  This would be simpler, would avoid direct involvement of the courts (solving the Article 9 concerns), and would leave accountability within the House through the accepted parliamentary “holding the government to account function.

A tailor remedy, such as a sanction until compliance, would focus on obtaining the testimony.  It would not be a punishment.  Focusing the remedy to meet constitutional and procedural needs, rather than punishing, also avoids the concerns that the Committee seems to have with the ECHR.  Such a sanctioning regime is more easily justified, and may not even fall within the parameters of Article 7 that excludes procedural and administrative remedies.  In any event, it would be reasonable, proportional and fall within the margin of appreciation established by the ECHR in A v United Kingdom

The submission also suggests the development of criteria for when and how to hold inquiries that might focus on third-party accountability, and a form of “parliamentary procedural fairness” for a witness facing sanctions.   The establishment of such internal processes would also assist in avoiding or limiting outside scrutiny.

The submission makes the following suggestions.

Suggestion 1

That the House consider the question of the scope of parliamentary inquiry.  Whether to establish criteria by Standing Order or as guidelines for committees is for the House to decide.  The anchor for any guidelines should be the constitutional function of the House to hold the government (broadly defined as anything for which a Minister could be responsible), not third parties to account. Any inquiry should indicate its connection to the government’s functions and responsibility.


Suggestion 2

The Committee assert that the enforcement of a summons is an exercise of the privileges of the House and form part of proceeding in Parliament. As such they are protected by Article 9 of the Bill of Rights, 1689 and cannot be questioned or impeached in the courts.


Suggestion 3

That the House develop a specific process, within its Standing Orders if necessary, outlining a specific process to be followed before the House directs that steps be taken to enforce a summons issued to a person, or entity, for whom a Minister in not accountable or responsible.  The process should provide for the ability for the person to attend in person, in writing or by counsel, to present any evidence or argument for their refusal for attending as a witness.  The Committee should consider any evidence or argument given and may adjust its proceedings to address the concerns raised (e.g., in camera proceedings, redacted documents etc.).  If the witness continues to refuse to attend, the Committee would then report the matter to the whole House, with any report to include the evidence and argument of the witness, along with any proposed accommodation by the committee, and any recommendation the Committee suggest the House take to compel attendance. As an extra buffering step, the rules could provide that the original committee report to the privileges committee to obtain its views. Any proposed enforcement process should be presented to the witness to make any argument, before the final report is sent to the House.  If the matter is not resolved, as a matter of privilege the report of the Committee (or privileges committee) would be given appropriate precedence.  The decision to take any enforcement steps, and what steps ought to be taken would be a decision of the entire House.


Suggestion 4

That the House change the means of exercising its privilege to discipline witnesses who fail to appear to a summons without acceptable reason.  Whereas the House previously arrested and imprisoned witnesses until they purged their contempt by testifying, the House will exercise its privilege by determining and imposing a daily financial penalty until the witness appears pursuant to the summons issued.


Suggestion 5

That a means be developed for any financial sanction imposed by the House to become a debt owing to the Crown.  It might be advisable to enact legislation that indicates that any amount determined to be payable by the House, as the result of a contempt proceeding in the House, becomes a debt owing to the Crown and may be enforced as any other debt owing to the Crown. 


Suggestion 6

Legislation be introduced that would contain provisions to the following effect:

  1. That imprisonment as an exercise of the privileges of the Houses of Parliament be replaced with financial sanctions, including daily sanctions, for witnesses who do not attend to a summons (warrant) of the House or who refuse to testify;
  2. That any amount resulting from a financial sanction be collectable and considered a debt owing to the Crown;
  3. That [either]
    1. The Crown can take any action to collect on the debt as it may for any debt, fine or financial penalty otherwise owing to the Crown;




    1. The Clerk of the House can file a certified copy of any order of the House with the [identify] court and any such order shall be enforced as an order of the court.
  1. Nothing in the Act derogates from, abrogates or limits any right, privilege or power of the House.  For greater certainty, no order made by the House shall be questioned or impeached in any court or place out of Parliament.


Submission to the House of Commons Committee of Privileges                           Reply to First Report of Session 2019-21

RE: Select committees and contempts: strengthening powers to call for persons, papers and records


  1. I am a Canadian lawyer and academic who specializes in providing advice and representation to parliamentary and legislative institutions and individuals who engage with them.  From 2002 to 2017 I was a Senior Parliamentary Legal Counsel working in the Office of the Law Clerk and Parliamentary Counsel of the House of Commons, the Canadian equivalent of the Office of the Speaker’s Counsel.  In that capacity I provided advice to the House of Commons, its Committees, Members and Administration.  I also represented the Speaker and the House before all levels of administrative tribunals and courts on matters related to parliamentary privilege and the constitutional independence of the House of Commons from the Executive and the courts (Article 9 of the Bill of Rights, 1689).


  1. Both during and since my employment at the House of Commons I have frequently written articles and blog posts on various parliamentary issues from a legal perspective, often in defence of the independence of Parliament and its ability to use its existing powers, rights, privileges, and immunities in a way to meet evolving challenges in society and legal climate.  I also teach Constitutional Law on a sessional basis in the Common Law Section of the Faculty of Law at the University of Ottawa, and I am a Fellow of the uOttawa Public Law Centre.


  1. I make this submission for your consideration recognizing that the legal and political climate in each country is somewhat unique and that solutions to issues are the responsibility of those within each jurisdiction.  I accept that the constitutional relationship between Parliament, including each House, to the government (executive and Crown) and the courts may differ.  What may be required or appropriate in a unitary state versus a federal one, or in a Westminster model versus a republican one may require a particular weighing of constitutional and legal principles depending on various constitutional configurations.


  1. What makes Canada a particularly good comparator for the United Kingdom?  Both share the Westminster system of parliamentary democracy.  In fact, in the context of Parliament’s relationship to the other branches of the State, the situation in Canada clearly mirrors that of the United Kingdom.  The preamble to the Constitution Act, 1867[1] provides that the various provinces in Canada were to be federally united “with a Constitution similar in Principle to that of the United Kingdom.”  The Act further provides for a bicameral Parliament consisting of the House of Commons, the Senate and the Queen (represented by the Governor General).  Most importantly for this submission, s. 18 provides that the two Houses and their Members are to enjoy the same privileges, immunities, and powers as the UK House of Commons.  The section further allows Parliament to legislate with respect to its privileges.  The only specific privileges legislation[2] is found in section 4 of the Parliament of Canada Act[3] that in turn repeats the language of s. 18, providing:


The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise

(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act; and

(b) such privileges, immunities and powers as are defined by Act of the Parliament of Canada, not exceeding those, at the time of the passing of the Act, held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof.


  1. The legal and constitutional result is that the privileges, immunities, and powers of the Canadian Parliament map onto those of the UK House.  Or to put it another way, the privileges are the same.  They have the same root and basis.  They are founded in the same unwritten constitutional principles.  The various Houses in each country also face similar challenges and operate within a similar legal system (common law courts with varying degrees of human rights constraints).  When examining a question of the application of a privilege and considering the constitutional consequences for the relationship between Parliament and the courts, the history and jurisprudence of each country is more than merely instructive.  In a world where courts and Parliaments can, and do, have access to the decisions of those sharing a legal and constitutional pedigree, how one country addresses a particular issue may influence future decisions and considerations of others.  Consideration of common problems and potential solutions could be beneficial to all, without having unintended consequences for either.  When I examine questions of privilege the starting point has always been an examination of the privileges of the UK House of Commons, and the decisions of the UK courts.  I would therefore recommend the position set out below for your respectful consideration.



A Canadian Experience: The Example of the Standing Committee on Agriculture and Agri-Food


  1. In late 2003 Canadian beef cattle farms were affected by “mad-cow” disease.  As a result, the demand for Canadian beef fell dramatically.  This caused a significant drop in the price paid to cattle farmers for their product.  However, there was no, or little, drop in the retail price of beef to consumers.   A study into the apparent disconnect between the dropping price paid to farmers and the consistent high prices for the product to consumers was undertaken by the House of Commons Standing Committee on Agriculture and Agri-foods.  This particular Standing Committee, pursuant to the Standing Orders, was chaired by a Member of the government caucus.


  1. As the committee study got underway it became apparent that difference in prices paid to farmers and by consumers resulted from the actions of large abattoirs (meatpackers).   The price paid to farmers was determined by auction. Auction prices paid by the meatpackers fell dramatically while the price at which meatpackers sold their product to retailers which remained static.  The committee therefore requested that the largest meatpackers appear before the committee to explain how the industry worked and why pricing was what it was.


  1. The meatpackers were reluctant to provide the information to the committee claiming, among other things, that to provide the information publicly would result in their individual auction pricing and strategies being made available to their competitors.  This position was considered and understood by the Committee.  In order to address the concern, and protect the business interests, the Committee developed a process that required the meatpackers to provide their information to the Clerk of the Committee (in camera), who would not share the specific information with the Committee members or the public.  Instead, the information was provided to an auditor, hired by the Committee, to assess the information and report to the Committee in aggregate, and without providing any information that would allow the committee or public to identify any individual meatpacker.  Once the report of the auditor was provided to the Committee, and the Committee was satisfied that it could use the information for its report, the information provided to the auditors was destroyed.  This provided the information to the Committee while protecting the business interests of the meatpackers.


  1. While some meatpackers provided the information requested, three of the major meatpackers refused.  The Committee took the necessary steps for summons to be issued to the three meatpackers to provide the information. They continued to refuse to provide the information.


  1. The Committee reported the refusal to the House with a recommendation that House find the meatpackers in contempt.  The Committee recommended[4]:


That the House of Commons find Cargill Foods, Lakeside Packers and Levinoff Meats Limited in contempt and order them to provide before Monday 10 May, 2004 at noon (EDT), to the Clerk of the Standing Committee on Agriculture and Agri-Food who will maintain the following documents in accordance to the April 21, 2004 motion (a) a copy of the financial statements detailing the added marginal costs attributable to the new BSE safety regulations along with their profit margins on a monthly basis for calendar year 2003; and (b) documents explaining why the prices they paid for fed steers, heifers, cows and bulls declined by approximately 50% in the three weeks following the announcement of the federal-provincial BSE Recovery Program on 18 June 2003.


  1. The House concurred in the report, finding the meatpackers in contempt and the necessary letters, including a certified copy of the Journal entries, were sent to the meatpackers.


  1. The meatpackers failed to comply.  The Committee met to consider its options on what to do to obtain compliance.  The Committee reported back to the House with a further recommendation seeking the House’s assistance in enforcing the summons, and to address the continuing contempt.  The Committee recommended[5]:


That the House of Commons find that Cargill Foods and Lakeside Packers remain in contempt of the House of Commons. If after a further delay to produce documents by May 20, 2004 at 3:00 p.m. (EDT), the said production of documents is not complied with, each of these companies shall pay a fine of $250,000.00 for each day, or part of a day, commencing at 12:01 AM May 21, 2004 (EDT) until they comply with the request stated in the Committee's letter of May 11, 2004. Such fines shall be payable to the Receiver General of Canada; and, they shall be considered a debt owing to Her Majesty in Right of Canada and may be enforced through any avenue of recourse available to Her Majesty in Right of Canada.


  1. Because of the failure of the Committee Chair to consult with the various other parties, the House did not provide immediate consent[6], and the matter was set down for future consideration.  As it turned out, this was the second last day of the 37th Parliament.  Parliament was dissolved before the House had a chance to consider and adopt the recommendation.



  1. When the 38th Parliament convened, the new committee decided to take up its Study where the previous committee left off.  The meatpackers were contacted.  They initially refused. They were then advised that the finding of contempt was still in effect since it had not been finally resolved and that if the documents were not forthcoming the same recommendation for enforcement would be made to the new Parliament.  The documents were then provided and there was no need to reintroduce the motion.




Analysis Supporting the approach of daily financial sanctions


  1. The issue and concern facing the Canadian House of Commons Standing Committee on Agriculture and Agri-food is identical to that which underlies the study and preliminary recommendations of this Committee.  What can be done to obtain the attendance and information from recalcitrant, non-government witnesses before parliamentary committees while safeguarding the privileges and independence of Parliament?




  1. To address this issue, it is necessary to unpack the seemingly muddled concept of parliamentary privileges and the respective constitutional roles of Parliament and the courts as they have evolved into the twenty-first century.  In doing so, consideration should be given to the purposes and principles behind the privileges at issue.  Only then can one consider how the privileges can and should evolve.  If the principles and purposes are still valid, the privileges should be jealously guarded by the House[7]; however, how they are exercised may need to be re-examined.  Whether to abandon or abrogate a privilege must be a last resort.  There must be a greater constitutionally grounded principle that leads to such an abandonment or abrogation. Before taking such a dramatic step that might upset centuries old constitutional relationships, one should first consider whether there are ways for the principles that underly parliamentary privileges and the resulting consitutional order to be respected yet modernized.


  1. It is my submission that the daily penalty approach, or an appropriately modified version to meet the constitutional context in the UK, should be considered in place of the criminal law approach proposed by the draft Bill suggested by the Committee.  This would allow the full scope of the exercise of privilege summoning witnesses and compelling their attendance including determining any need for witnesses; the exclusive determination by the House of any reason for any excuse; determining whether a witness has provided evidence to the satisfaction of the House; determining whether a refusal to appear and testify should be considered a contempt; and, how to obtain compliance.  These questions must be determinable by the House without any review by the courts or others.  However, like any decision of the House or Parliament, the decisions relating to third parties are not self-executing, and the assistance of others may be required in aid. 



  1. Considering the specific privileges at issue, I would also submit that the criminal law approach would not best aid the House in carrying out its functions.  If the goal is to secure attendance and evidence, an after the fact criminal charge, with smallish fines, that is tried some months after the parliamentary inquiry, will not aid the inquiry, and may be seen by some reluctant witnesses as merely the cost of doing business.  A more constructive approach and remedy to ensure compliance would be to focus on compliance and obtaining the evidence the parliamentary inquiry requires.  Compliance, not criminalization, is the goal.   


  1. If done carefully thorough parliamentary procedural reform and designing “remedies” that are tailored and focussed on the constitutional purposes underlying the request for testimony, the courts and the Crown would be more comfortable accepting their role as aiding in enforcement without the possibility of judicial review. Such parliamentary remedies, even absent judicial review, would also have a much better chance of surviving any ECHR challenge. Well constructed and tailored “limits” on rights, that are parliamentary (constitutionally) focussed, and more in the nature of compliance rather than criminal law driven, would meet the standards of reasonableness, proportionality, and margins of appreciation.    


Nature of Privileges


  1. Privileges are not abstract, nor are they disconnected, discrete legal principles. They are the constitutional protections and powers that enable Parliament to independently carry out its functions. Since privileges are the most important means whereby the independence of Parliament is capable of being asserted against the Courts and the executive, one must begin by assessing the existence and scope of any claimed privilege.  In Canadian jurisprudence, based on the reasoning of the UK courts, privileges are constitutional in nature, and are founded on “necessity”.  The formulation of necessity is defined as those powers, rights and immunities that are necessary for Parliament to carry out its constitutional functions.  Once found to fall within the category of what is necessary, the decisions of Parliament, or the House exercising the privilege, are immune from interference from the courts or the Crown.[8] 


  1. Courts and others carrying out their constitutional functions, can ascertain the existence and scope of a privilege, but not its exercise[9].  This is the constitutional divide that is set by Article 9 of the Bill of Rights, 1689. It is what sets the constitutional limits of the jurisdiction of the courts founded in common law from the constitutional powers and functions of Parliament, which flow not from the common law (administered by the courts) but from the constitution itself.


  1. Although it may be tempting to consider all privileges from a single perspective, they cannot be.  It is convenient to speak of all rights, powers, and immunities as “parliamentary privilege”, yet each of the aspects of “privilege” have different purposes, effects, scope, and requirements to for their assertion, protection, and promotion.


  1. The first step in any analysis is to determine the type, scope, and extent of the asserted privilege and how it is connected to the business and proceedings of the House.   This in turn is related to the constitutional functions of the House.  Proceedings are how the House carries out those functions. 


Parliamentary Function of Deliberating- Scope of House Inquiries


  1. The House of Commons has various constitutional functions. They have been found to include legislating and deliberating, including holding the government to account.[10] In its deliberating function the House has been referred to as the Grand Inquest of the Nation.  The vagueness of this concept has led to the sense that the House of Commons, and its Committees, can inquire into anything it believes is in the “public interest”.  While theoretically sound, there is a need for the House to consider how any inquiry functions as part of the governance of the State. 


  1. Before engaging in an inquiry, the House and its Committees ought to ask themselves how any inquiry furthers the functions of legislating or holding the government to account.  Is the purpose of the inquiry to ultimately suggest a legislative response to a matter, or to determine what the government is doing or proposing to do in the face of the matter?  Or is it a veiled attempt to hold individuals and corporations somehow accountable? Individual and corporate accountability is part the role and function of government and the courts through legislation and administrative policies, which provide for various legal fairness and substantive protections.  Third party accountability is not a constitutional function or role of the House. The House’s constitutional function is to hold governments to account for how they are managing the legislative and policy agenda, not to hold individuals to account.   The scope of inquiry is a matter for the House to determine. However, the degree to which the courts consider the House and Parliament straying from their functions as being part of the legislative process and providing government accountability, the greater the temptation for the courts to find that the House has strayed beyond the scope of its constitutional functions.  


  1. In the same way that the courts and Parliament itself have constrained Parliament from adopting Bills of Attainder and ad hominin legislation, attention may need to focus on whether some Committee activities are sliding in this direction.  If the House and Committees were clearer about the purpose of their inquiries and how they are related to the House’s functions, the less likely witnesses will feel that they are being singled out, or being personally attacked, needing to justify their actions to a body to which they are not accountable.  By focussing the inquiry on the relationship of witnesses to the government and government programs and legislation, witnesses may not be as reluctant to testify and provide evidence. 


  1. As noted, the decision on what should be inquired into and how is a decision for the House and its Committees to decide based on the political and societal context in the United Kingdom.  However, “Committee creep” is an issue that all Parliaments must face, particularly when there may be overlapping concerns such as where there are parallel proceedings or inquiries and there is a fear of conflicting findings and “liability” in the eyes of the public, if not the courts and Parliament.[11]   It is sometimes necessary that Parliaments self-restrain. This does not mean that the House should resile from its responsibility to hold the government to account, just that government accountability must remain the focus.


Suggestion 1


That the House consider the question of the scope of parliamentary inquiry.  Whether to establish criteria by Standing Order or as guidelines for committees is for the House to decide.  The anchor for any guidelines should be the constitutional function of the House to hold the government (broadly defined as anything for which a Minister could be responsible), not third parties to account. Any inquiry should indicate its connection to the government’s functions and responsibility.


Parliamentary Power to issue Summons


  1. Assuming that the inquiry of the committee is one that is authorized, or not constrained by the House, the inquiry constitutes a parliamentary proceeding.  In carrying out the inquiry, it is carrying out a constitutional function.  The powers and authority of the House, and therefore its committees, flows from the constitution, not the common law. It is inherent in the constitutional architecture of a Westminster parliamentary system of government. 


  1. Early in its evolution, the House of Commons as part of the “High Court of Parliament had combined legal and legislative authority[12].  This complete “legal” authority was also combined with the granting to the Crown taxation and spending powers, subject to a certain degree of scrutiny.  These powers were often mixed.  To carry out these functions, there was little doubt that Parliament had the unchallenged authority to summons witnesses, and enforce their attendance, to any of its proceeding, be they what we would see as legal (individual suits and appeals), legislating or as inquiries.   The powers and authority of Parliament were indifferent to the type of proceeding and consistent in its application and considered necessary for Parliament to carry out its varied constitutional functions. 


  1. When the courts were eventually recognized as being responsible for individual suits, the inherent constitutional powers for summons and enforcement in litigation and legal context shifted out of the House of Parliament to the now independent courts.   The establishment of independent courts did not affect the power of the Houses to summons or enforce summons for their remaining inquiry, accountability, and legislative functions. Notwithstanding the “split”, the inherent constitutional power to summons witnesses for other constitutionally based proceedings and purposes remained with Parliament. Equally important, as Parliament and the courts developed independence from each other, they did so with full knowledge of Article 9 of the Bill of Rights, 1689


  1. There appears to be little debate regarding the authority, i.e., power, of the House of Commons, often delegated to its committees, to send for persons, papers, and records.[13]  It is also apparent from various authorities that the usual means of enforcement, up to the beginning of the twentieth century was to have a recalcitrant witness arrested by the Sergeant-at-Arms and imprisoned, usually for a short period in the parliamentary precinct building, although sometimes in local gaol on the warrant of the Speaker of the House. The last time this occurred in Canada was in the case of Miller in 1913.[14]  The next major refusal of a witness was the incident set out above involving the Standing Committee on Agriculture and Agri-food.


  1. It would appear from the First Report of Session 2019-21 of this Committee, that the Committee accepts that there is power in the House of Commons, either directly, or through delegation to its committees, to summons a witness to appear, and provide evidence and documents.[15]


  1. The real question facing this Committee is not the existence of the power, nor by necessity, the corollary power of enforcement.   In considering this question, the issue becomes whether the House has its own capacity to enforce or whether it needs the assistance of another branch of the State in aid of enforcement.  This in turn implicates Article 9, Bill of Rights, 1689.


Article 9 Issue


  1. For ease of reference, Article 9 of the Bill of Rights, 1689 provides:

“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”.[16]

  1. The independence of Parliament to be able to carry out its constitutional functions, without interference and oversight from the courts is equally, if not more, important as a constitutional imperative than the power to summons for the purposes of inquiry.  Freedom of action, including inquiry, from any outside interference is essential to the functioning of Parliament.  Article 9, is not just a protection of free speech. It is a constitutional recognition of the independence of Parliament from the courts, that protects all proceedings from being questioned or impeached in the courts.  It is a constitutional, jurisdictional limit on the courts.  It may be that Parliament can, by legislation, amend or modify this fundamental constitutional relationship, but when and why should be based on serious constitutional amending grounds.  Before doing so, all possible means to address the triggering circumstances should be considered.  This is the major concern of this submission.  Even if legislation is considered necessary to deal with recalcitrant witnesses, the legislation must be clear and unequivocal that the courts must accept any findings and directions of the House.  They cannot question the basis for the summons, the facts behind the refusal to testify, why the House did or did not accept the excuses or reasons offered by the witness, or the sufficiency of any “evidence” offered by a witness, either at a hearing or in lieu of appearance. 


  1. Most forms of judicial involvement with decisions taken by others involve a review of the jurisdiction, the processes for decision making, and the reasonableness of the decision. Inevitably this involves “questioning” in the sense of examining with a critical eye.  The reason the court is asked to review, or become involved, is that one party to the dispute is seeking to not give effect to the decision, that is to have the court “impeach” the decision.  This is precisely the mischief that Article 9 constitutionally protects against. 


  1. The pivotal place of Article 9 in the constitutional architecture should not be as lightly set aside as the Committee’s proposed legislation and reasoning suggest. The conclusion of the Committee is to treat the failure to comply as a form of contempt to be punished by way of criminal law, i.e., to create a crime of failure to comply. This would not only involve an unnecessary compromise of the constitutional independence of the House, achieved by Article 9, but it may not even address the real problem at hand, which is to obtain the evidence of a witness.



  1. Various additional constitutional, legal and practical concerns are likely to arise from the proposed Committee recommendation and legislation that this form of contempt become a criminal matter for the courts.  Who will present the evidence as to the “thinking” of the House?  Who would be able to testify for the House as to why the inquiry was called? why a particular witness was called? what excuse was given to the House for non-attendance? And, why the House did not accept the excuse of the witness?   One need only consider the struggles of the courts and the House when analysing and applying the principles in Pepper v Hart, which are engaged when considering something which can be objectively ascertained (i.e., the meaning of a written provision), and applying them to decisions that may properly be motivated by political and partisan reasons[17].  How and why Committees proceed as they do is often the result of many factors, some political, and some practical, such as time available, and the number and perspective of witnesses.  Who can testify to these decisions?  Also, political, and partisan considerations are necessary aspects of parliamentary business.  How can, and should, the courts develop a standard for acceptable reasons for not attending or refusing to provide documents?  Given the different roles, functions and context between the courts and the House, how are courts to develop a standard that recognizes the parliamentary origins of the decisions being made?  Will the House have a role to play before the courts when they make these decisions?  Finally, to what degree will the courts consider the impact that their decisions on the sufficiency of evidence, on the processes of Committees on establishing an inquiry, and on the potential acceptable reasons for refusing a summons in the parliamentary context?  By questioning or impeaching one proceeding the courts may be directly or indirectly interfering in future proceedings.  This would create additional constitutional concerns.


Alternatives to Criminalizing the Contempt of Failing to Appear before a Committee  


  1. Once the House has determined that a witness is in contempt for refusing to attend or provide evidence to a Committee, it must determine the appropriate response.  As noted, a body with the ability to summons must have the ability to compel.  One way is to expose the contemnor to the risk of criminal penalty.  It is believed that the fear of the criminal penalty will “inspire” the witness to attend and testify.  But, as noted, the after the fact, one-off, penalty does not necessarily result in the witness appearing and giving the evidence, and principles such as double jeopardy for criminal charges mean that there may no revisiting the matter through the same criminal law process.


  1. Seen from the perspective of contempt-crime-punishment-end of story the real concern is not met.  For the House the information is never obtained, and for large corporations or powerful individuals, the non-appearance or non-provision of evidence which is the end result, weighed against a smallish fine handed out will be seen either as price for doing business, or the cost of keeping information from public disclosure.  



  1. If the problem is non-adherence to a summons, and the goal is to have the witness attend and provide evidence, one must ask whether criminalizing the contempt of not appearing to a summons before a committee is the best or only option.  The reasoning of the Committee seems to suggest that by making non-adherence a crime, individuals will comply with a summons from fear of prosecution.  And once there has been a prosecution, future witnesses may be deterred from thwarting a summons, knowing what may happen to them.   This approach only works where the crime is seen a true “moral” societal wrong, and the penalties are severe enough to enter the mind of the contemnor.  A second point is that criminal trial after a number of months followed by a punishment, most likely a fine, does not result in the evidence being obtained by the Committee, within the time frame in which Committees conduct their inquiries, or at all.


  1. A criminal law approach produces both constitutional and practical consequences without meeting the committee’s objective of securing testimony of a witness.  I submit that it is possible to avoid the use of criminal law and avoid compromising Article 9, while developing a regime for compelling witnesses to testify that fits within the existing constitutional architecture.


  1. In developing an enforcement regime, the House needs to consider two foundational “privileges”.  The power to summons and enforce, and the immunity from having decisions, including those to summons or enforce as part of the proceedings of Parliament, being reviewed or questioned in the courts.


The Contempt of Not Appearing when Summoned is a Unique Contempt requiring a tailored remedy


  1. The contempt of not appearing when summoned, or refusing to provide evidence, is a particular form of contempt.  It is not a singular afront to the House, such as a personal attack, revealing in camera proceedings, or commenting inappropriately about a particular proceeding.  These are all generally one-off, after the fact, specific incidents.  They are also easier to see as an “offence” that can be punished, and the episode can be considered closed.  The failure to appear to a summons is different.  It interferes with the capacity of the House or Committee to carry out, or fulfill, its constitutional functions.  Not only can the matter be seen as an affront to Parliament, it denies the House or Committee the information and testimony necessary to its work. Merely creating an offence, punishable by a fine does not address the real offence, nor does it further the House’s objective in seeking testimony and evidence.



  1. The contempt is not a single transaction, rather it is an ongoing offence or contempt that should be addressed with tools designed for ongoing contempt, and which are designed to obtain the information, which is the House’s concern.  The optimal and tailored remedy to consider is not one that is based on a criminal law offence-punishment spectrum. A better approach can be modelled on various civil remedies (such as a positive injunction), or remedies and sanctions for witness contempt in the face of the court, and those found in administrative law settings which are geared towards compliance.


  1. In designing and ordering a remedy, the purpose is to address a particular problem and to achieve an outcome that cures the problem and makes the person seeking the remedy whole.  Criminal punishments do not fix all problems.  In the same way that rhetoric has it that “punishment must fit the crime”, all remedies must fit the problem.  In the case of the House of Commons, the remedy must assist the House, be consistent with parliamentary privileges, and fit within the constitutional architecture.    



  1. Procedural remedies and sanctions in the civil context, and administrative law remedies designed for compliance, are more appropriate than criminal law remedies in the context of reluctant witnesses before parliamentary committees.  They meet the primary objective of the House obtaining the attendance of witnesses and documents.  If designed for this objective, they will rightly be seen as part of a parliamentary proceeding and the concept of necessity that underlies all privileges.  The purpose of the remedy would not be to punish, but to enforce adherence to a process that is constitutionally authorized and fundamental to constitutional government in a Westminster democracy.  If it is accepted that the House has the power to inquire and therefore summons, it would be difficult for a court to not find that there must necessarily be a means to ensure that the summons are respected, otherwise the body with the power cannot function.   Any remedy that is tailored to this goal is therefore more easily justified than criminalizing the contempt.  The response is not to punish but to further a parliamentary proceeding.  This is doubly so if the contemnor can purge their contempt (i.e., to appear or provide documents) before the consequences take effect. 


  1. A remedy of this type can clearly be defended as the House furthering its proceedings and its ability to carry out its constitutional functions.  Such a remedy meets the classic definition of privilege as “the sum of the peculiar rights enjoyed by each House…without which they could not discharge their functions...” Further, “the distinctive mark of a privilege is its ancillary character… .  They are enjoyed by the House for the protection of its Members and the vindication of its own authority and dignity.” Finally, “such powers are essential to the authority of every legislature.  The functions, privileges and disciplinary powers of a legislative body are thus closely connected.  The privileges are the necessary complement of the function, and the disciplinary powers of the privileges.”[18]  A remedy designed for a recognized power and privilege, is precisely what is contemplated.  The further a remedy is from the purpose, the greater the risk of a court or other body finding that the imposition of the remedy falls outside necessity and therefore beyond the scope of privilege.  


  1. The power to enforce by way of imprisonment does not seem to have been an issue until the twentieth century.  Up to the beginning of the century imprisonment was generally accepted, and until mid-century reputational fear of being found in contempt and publicly chastised at the bar of the House was sufficient.  Although the various treatises speak in terms of “penal” consequences, in fact the purpose was often compliance.  It was only the means that seemed “penal”.


  1. The remedy for the contempt of not attending a summons in the past was effectively one of self-help by the House.  A warrant was issued by the Speaker, on a vote of the House, to have the witness arrested by the Sergeant-at-Arms and physically brought to the House to testify.  If the person continued to refuse to testify, they were imprisoned until they purged their contempt by apologizing and/or testifying as required.  The length of imprisonment was until the witness purged their contempt, or the end of the session in which they were summons, since the Committee lost its jurisdiction when its proceedings were ended by prorogation.   Attempts to issue writs of habeas corpus were rejected by the courts based on Article 9.



  1. There are many today who are concerned that the action of having a witness arrested and imprisoned by the House would violate various human rights, or Bills of Rights and Charters, protecting individuals’ liberty from imprisonment without due process by a court.[19]  The focus of concern would appear to be that of imprisonment and loss of liberty without judicial intervention.


  1. To let this concern become the driving consideration causes the committee to fail to consider the underlying principles and could cause unintended damage to the constitutional architecture.


Daily financial sanctions (fines) in lieu of imprisonment is consistent with the powers and privileges of the House


  1. The alternative to imprisonment is to fine or impose some form of monetary penalty or sanction.  I am aware of the comments made in Erskine May and authorities that rely on that text to the effect that the House does not have the power to fine, or that the power, if it exists, has fallen into desuetude since it has not be used since 1666. These statements require careful consideration. 


  1. First, if it is only a question of desuetude, then the question becomes whether the power can be revived in appropriate circumstances.  Just because a power has not been used does not necessarily mean that the power no longer exists.  The law is replete with examples where old legal concepts, writs, and powers that have laid dormant for long periods are revived and repurposed as circumstances warrant.  Replacing the threat of imprisonment of individuals, with monetary penalties and consequences in an era where individual liberties are, for good reason protected by human rights, and many witnesses are corporations, or individuals acting in their capacity as agents for corporations, that cannot be imprisoned, might be a valid reason to resuscitate monetary penalties and use them to replace what some would see as the more serious consequence of the loss of liberty. 



  1. Second, a review of the jurisprudence form 1666 suggests that the reason for questioning the power to fine as punishment was that the House of Commons no longer seemed to have the capacity to try and punish as a court.  This power only continued to exist in the House of Lords, and only in that House, in the first instance, in limited circumstances.  This had to do with developments in the evolving role of the House away from court to a legislature, and the development of the courts as triers of legal responsibility.  In short, it was argued, the House was no longer able to impose fines as punishment for crimes since it no longer had the power to try crimes.   In the same way that the House could no longer impose fines for crimes, I am certain that the courts would have held the same for imposing a fixed term prison sentence for a crime, even if of a singular contempt.  I am not aware of any such basis for imprisonment post 1666.   The issue therefore was not about the power to fine as such, but rather the power to try and punish, regardless of the whether the punishment was a fine or imprisonment.[20]


  1. At the same time, and for a considerable period after, the courts had no difficulty in allowing the House to enforce its summons through arrest and imprisonment.[21]  This evident from the continued practice and the courts’ continued refusal to grant habeas corpus for those who claimed improper imprisonment.  It is apparent from these decisions that the courts were prepared to see the role of the House in enforcing its own process, as part of a parliamentary proceeding[22], and differently from punishing for a crime.


  1. As part of the procedures and powers of the House to deal with contempts as it considers appropriate, it could design its own sanctions for the contempt of failure to appear to a summons.  If the House considers that imprisonment may not be appropriate in the 21st century, then the House must be able to modernize the form of sanction. If it is accepted that the House has the power to imprison, without court review, then surely it must have the power to impose lesser penalties of fines and other appropriate remedies in lieu. There has been no difficulty in the House considering that it does have the power to fine, and that fines should be used in place of imprisonment.[23]  The present situation provides an opportunity to act in the direction of previous reports, and to fashion a monetary sanction regime for non-attending witness. 


  1. I also suggest that such a tailored remedy that avoids restriction of personal liberty is also likely to survive any challenge based on human rights treaties and conventions.  This is particularly the case if the House were to develop an internal process that allows contemnors to put forward their positions, and that allows for flexible procedures to protect privacy and business interests of non-government witnesses.[24]  The limited jurisdiction of the European Court of Human Rights (“ECHR”) to consider procedural and administrative sanctions is discussed below.


Daily Financial Sanctions for non-attendance are appropriate and best suited to purpose


  1. The problem of how to deal with witnesses who do not appear or testify is shared by the courts.  A similar distinction between penalty and enforcement is also evident in the response of the courts and administrative tribunals to recalcitrant witnesses.  The courts have developed various tools to ensure compliance with orders and court process.  These remedies are not seen by the courts as punishment, rather as means to have the jurisdiction and processes of the courts recognized and respected.  In some cases, this can involve orders to remain present and available, imprisonment if a flight risk, imprisonment of reluctant witnesses for an indefinite period (until contempt purged by testifying)[25], and daily fines until compliance.[26]. Although most of these powers are now found in statute, they were originally developed as inherent powers of the courts to ensure that their authority and process were respected by those subject to their jurisdiction.  Where there was a right, power, or process of the court, it was accepted that there needed to be a process of enforcement to avoid contempt and disrespect of the process and to protect the dignity and integrity of the courts.   In most cases the consequence or remedy is not a fixed penalty for a specific act. Rather, they tailored and were sometimes indefinite and either avoidable or terminable on compliance. 


  1. In the administrative law context, administrative penalties and sanctions imposed for compliance are relatively common, particularly where there is ongoing potential harm to people, property, or the environment.  Although this is not necessarily the case in the present matter being considered, the idea that daily financial sanctions for compliance,[27] as opposed to imprisonment is one that is growing and is particularly useful when dealing with corporations and other “legal” persons.


  1. The main advantage to coercive daily financial sanctions is that they are targeted at compliance.  They are flexible and can be tailored to each situation.  There is a means for the witness to avoid the sanction or to end the sanction at any given point by complying or otherwise satisfying the process. 


  1. There are various requirements and constraints for establishing a crime. One must determine the level of crime, indictable or summary, the level of court and the limits of penalties.  Where contempt has been criminalized in the legislative context, the fines have been set quite low and matters have been assigned to lower levels of court.  Presumably, this was done on the assumption that establishing the matter as a crime would be sufficient deterrence.  For the reasons outlined above, low level fines are more likely to be seen a price to pay rather than “real” criminal activity. 


  1. One of the advantages of daily sanctions for contempt is that they are also scalable to meet the circumstances of the witness.  The Committee or House can determine the level of sanction to meet the financial position of the witness.  Large corporate witness can be required to meet higher sanctions than individuals. 


  1. Daily sanctions are also immediate.  The purpose is not punishment but compliance. The sanction is imposed, and the contemnor must decide immediately whether to comply within the ongoing context or to face immediate sanction.  They may attempt to have the matter reviewed at a later date, but this does not detract from the necessity that contempts that interrupt proceedings or in the face of an inquiry be dealt with immediately, so that the proceeding is not delayed, and evidence is obtained.


Consideration of Impartiality and Fairness


  1. In matters of privilege and contempt the House, “with one voice, accuses, condemns and executes”.[28]   This may sit uncomfortably with the courts and those concerned with conflicts of interest, fairness and what appears to be unrestrained power.  Only courts, it is argued can ensure that the principles of fairness and avoidance of conflict can be policed.  But courts are not the only centre of authority, review and accountability in the State.  Parliament also plays a major role in the accountability of the government, and as a deliberative body responsible for examining matters of public interest. What is required is not referral to the courts, but considered restraint by Committees,[29] along with internally imposed processes to ensure transparency and fairness.


  1. The concerns of the Committee that the same body that defines the contempt, determines whether there has been contempt, and imposes the sanction, and determines whether the contempt has been purged and therefore lacks fairness and impartiality, could be said about the courts.[30] The same issues arise in the courts themselves, particularly when faced with the same issue.  A witness does not appear, although summoned.  The court, in the person of the judge conducting the proceeding, will obtain a reason from the person refusing (often appearing by warrant- issued by the court itself), consider the “excuse”, if the court is not satisfied, the court decides what to do, including imposing sanctions up to incarcerating the witness until they testify (or the trial is over).  To this point the same conflict inferred against the House exists within the court (with the decisions being made by an individual judge).  Any appeal is also within the courts.  The process of oversight within the same institution is paralleled in the House with the whole House considering the work, process and decisions of a Committee.


  1. In some ways determination and sanctioning of contempt internal to the House is subject to more oversight and scrutiny than in the courts.  Any decision taken by the House is one that is made within a multi-person, multi-partisan, public body, with the House of Commons democratically accountable to the electorate.  Errors and excesses of the House are judged by the public through elections, not the courts.  It is also worth pointing out that any finding of contempt and the imposition of a remedy would have to go through a number of steps beginning with the Committee seeking information, followed by the witness not agreeing, the committee summoning the witness (perhaps with the House being informed or needing to authorize the summons), the witness not appearing and engaging in some form of correspondence with the Committee (multi-party), the Committee reporting the matter to the entire House, the entire house determining whether the witness should be held in contempt (it may be possible for the witness to be supported in their position by various Members), the House voting contempt and the House imposing a remedy.  This is not an individual acting. It is a body of over 600 acting collectively.  How such a body, with multi-centric points of view, making a public decision, can be found to be in a conflict position or any less transparent and accountable than a court, is difficult to imagine.


  1. For those of the Committee concerned with fairness and the ability of the recalcitrant witness to present their case (fairness), be accompanied by a lawyer, and speak to any remedy, all of these concerns can, and should, be addressed by the House itself.  Like a court, the House has the capacity to build in any protections and processes it believes would be fair in the parliamentary context.  There is nothing that precludes the House creating a separate process for “trying” contempt that would meet any standards that the House believe the courts would impose or consider.  The House could build protections and fairness for witnesses in at multiple stages, including the Committee before which the witness was to appear, the Privileges Committee and the House itself.    House imposed fairness can be as effective as, or more than, that which is the case within the courts. It is the responsibility of the House to address these concerns.





  1. Historically when imprisonment has been used as the sanction, enforcement directly by the House was somewhat straight-forward.  The Sergeant-at-Arms, as a gift of the Crown with royal sanctioned authority, acting as a servant of the House could directly arrest and imprison at the will of the House.  More recently, the authority has been exercised by a warrant of the Speaker directed to the Sergeant and civil authorities, including gaoler, to assist.[31] As noted earlier, the decisions and actions of the House and its agents were not subject to judicial review, appeal or oversight based on Article 9 and other privileges.


  1. Collecting and enforcing fines is not so straightforward and it is necessary and some assistance from other State authorities in aid of the House will be required. 


  1. It is noted that the courts themselves do not have the ability to arrest, or collect fines, distrain property or otherwise enforce compliance. They rely on various court officers and state officials such as sheriffs, bailiffs, police, prison wardens, and revenue and other government agencies to enforce the court orders. For the House to enforce its orders and sanctions against third parties it would be necessary to tap into the same apparatus either through the courts or directly.


  1. Before considering the best avenue for enforcement, the distinction between the making of an order and enforcement should be made clear. The processes of enforcement and the decision-making process that ends with an order are separate and distinct.  The example of the courts provides a good illustration. Following a hearing, the court makes an order or imposes a fine. At that point, the proceeding is at an end.  If the order is not met or the fine not paid, a separate proceeding to enforce the order is commenced. At this point, the court only enforces. It has no capacity, to review the decision as part of the enforcement exercise. The person who fails to meet a civil judgement or pay a fine may be subject to a separate enforcement proceeding in which they are not able to question, challenge or retry the initial proceeding.  Any such challenge would have had to have been brought by way of appeal, judicial review or other means of review, with perhaps the penalty or judgement being stayed pending the review process.  But once the decision or remedy is final and no longer reviewable or subject to further appeal, the enforcing court must accept the determination and take the steps to enforce.


  1. A comparable process is used in the case of decisions of administrative tribunals. Often the courts, and court processes, are engaged to enforce the decisions of the tribunal as if they were an order of the Court.[32] The jurisdiction of the court in relation to enforcement is separate from that of judicial review or determination. Unless the person against the order has been made successfully judicially reviews the underlying decision, the sanction will be enforced.  In essence the processes of courts are used to enforce legitimate orders of those administrative bodies that made the order but lack independent means of enforcement.   


  1. Similarly domestic courts can be mandated to enforce foreign judgements through various treaties and Acts relating to the reciprocal enforcement of judgements. Again, courts, once satisfied of the authority of the court granting the final judgement, will enforce the judgment without any review of the reasons or basis for the judgement.


  1. These examples demonstrate that it is possible for the courts to be mandated with the authority to enforce an order of others without the ability (as enforcer) to review, question or impeach the decision of the body granting the order.  If it were determined that the courts were to be used by the House to enforce its sanctions, it would be consistent with existing processes whereby the courts enforce orders of others, and it would also be consistent with Article 9 of the Bill of Rights, 1689.  


  1. There is no reason that Parliament could not empower, or require, the courts to enforce any penalty or order properly made by Parliament, with a copy of the resolution, order or appropriate declaration by the Clerk (or Speaker) of the House being dispositive of the decision of the House.  Based on Article 9 of the Bill of Rights, 1689 the courts would not have the jurisdiction to question or impeach the decision of the House.  But they could be required to enforce the decision. 


Using the Government rather than Courts to Enforce House Sanctions


  1. Are the courts the most appropriate body to be given the responsibility for enforcement of orders and decisions of the House? 


  1. The benefits to using the courts to directly enforce the orders and remedies of the House is that the courts enjoy a high degree of respect by the public.  They are seen as apolitical and authoritative.  There is also a recognized enforcement process set out in statute and rules of court that any order of the House could be channelled through.  Sheriffs, bailiffs, and other officials are used to enforcing court sanctioned judgments and orders without questioning the basis for the order, or being accused of being motivated by anything other than the furtherance of judicial and legal rules.  The downside of direct involvement of the courts being required to exercise their authority in enforcing decisions of the House is that they may be perceived as being an instrument of politicians and politics. 


  1. The public is often unable to distinguish between individuals as parliamentarians and as politicians.  Direct enforcement could lead to a public discussion of the political merits of the underlying decision at the point of enforcement.  The courts could run the risk of being dragged into the political machinations that motivated the parliamentary proceeding and the contempt within the proceeding. 



  1. The potential for the questioning of judicial integrity is one of the main concerns with the draft Bill put forward by the Committee for study.   The criminalization of contempt, with the courts being able to consider, even partially, the reasoning of the House to accept an excuse of a witness, squarely brings the court into the parliamentary and political area.  Some may see the lessening of the protections afforded Parliament by Article 9, as the price that Parliament and the House of Commons may have to pay to have the courts’ involvement in protecting the privileges of the House and its contempt powers.  However, the other side of the coin is that Article 9 also provides the courts with constitutional protection from having to involve itself in matters of Parliament and politics.  It allows the courts to say that the matters, at least the substantive and procedural matters, are for Parliament and not the courts.  It gives the courts constitutional cover for deciding not to become involved in political questions.   Although lessened if only limited to enforcement and not decision making, the risk is always there if matters go directly from the House to the courts.


  1. The other possible means of enforcement is through the executive, i.e., government, which was the venue suggested by the Canadian House of Commons’ Standing Committee on Agriculture and Agri-foods.   Its recommendation to the House was that a daily fine be imposed with the amount of the fine being considered a debt owing to Her Majesty to be enforced by the government.  The benefits of this proposal includes the fact that the House often requires the government to act in certain ways.[33]  The role of the executive, in simplified Diceyan terms, is to execute the laws (decisions) of Parliament. Although not a statute, the decision and sanction of the House is a form of law made pursuant to the lex parliamenti.  The government has various mechanisms of enforcement granted to it to enforce debts owing to the Crown, including various administrative processes for collecting debts owing to the Crown. In Canada, the filing of the debt with Revenue Canada will allow it to offset debts against any amounts the Crown may owe the debtor (e.g., tax refunds, benefits, grants etc.).  The Crown would also be able to sue on the debt. If the government chooses to use the courts to collect the debt, the courts become one step removed from the parliamentary and political processes. 


  1. The other benefit to having the debt become a debt owing to the Crown is that the decision on whether and how to enforce the debt becomes a question for the government, which may choose to involve itself in discussions with the debtor, or to not enforce the debt if the government were convinced that the debtor was not fairly dealt with by the House.  Any decision taken by the government to collect or not collect would become part of the government’s accountability to the House.  In other words, the House, which has the constitutional function of holding the government to account, would also be the body to judge the actions of the government in carrying out the decisions of the House.  The enforcement would rest within the House through its accountability function. Government accountability to the House would frame the ultimate outcome, not the courts.


  1. Some might be concerned that such a process drags the government and executive, when enforcing, into the business of the House.  But the intertwining of government and the House is a natural consequence of the Westminster system of government.  I would suggest that any concern over the crossing of separation of powers is less with respect to the boundary between the House and the government, than between the House and the courts.


  1. Enforcement by the government of decisions of the House relating to sanctions for contempt is, I suggest, the best approach for enforcement.


Comments on Chaytor


  1. Although the Committee seem concerned that the courts may feel uncomfortable not being able to judicially review the decision of the House that led to the sanctions, this area of the law is settled in the UK and elsewhere in commonwealth, including Canada. 


  1. The Committee referenced Chaytor in its report as an example of the growing reluctance of the courts to leave matters that have an air of criminality or “legalness” to the House.  However, the decision makes a clear distinction between the determination of matters relating to established criminal offence which is the constitutional domain of the courts and matters of privilege and incidents relating to proceedings in the House.  The UK Supreme Court also confirmed the when a matter falls within a proceeding of parliament, or affects a proceeding in the House, the courts do not have the power to judicially review any decisions taken with respect to, during, or as a result of a proceeding[34].  These include the capacity to determine contempts and provide penalties or remedies related to the contempt, which have since at least 1620 been seen as non-reviewable by the courts.


  1. Chaytor made it clear that when a contempt also involved a crime, both the House and the courts had jurisdiction. The House was limited to punishing for the contempt but not the crime.  Similarly, the courts could examine the crime but not whether the crime also constituted contempt. 


  1. In light of his recognized separation of powers, one is tempted to ask what the effect of making a contempt a crime, as suggested in the proposed Bill, does to this separate and independent exercise of constitutional jurisdiction.  Once contempt becomes a crime, does this limit the House’s jurisdiction to deal with it?  What is left for the House?   Mixing contempt and criminal law not only involves Article 9, but it further muddles the constitutional jurisdictions and independence of the House from each other.  It also increases the potential for constitutional conflict that could result from Parliament and the courts taking differing views of the law and facts, which was the concern raised in Bradlaugh v Gosset.[35]


  1. So long as the determination of the facts, and the finding of and the sanctions for contempt are left to the House, and the House limits its sanctions to coercion, the reasoning of Chaytor would suggest that the courts should not intervene, nor be given the power to do so.


Concerns relating to the European Court of Human Rights



  1. If the question of enforcement is examined as a matter procedural enforcement, or more in the nature of a coercive sanction rather than as a matter of “crime” and “punishment” a serious argument could be made that Article 7 of the Convention would not apply. Various reports, studies and commentary in the EU[36] and elsewhere have been more accepting of procedural and administrative sanctions as not being subject to the same human rights scrutiny as crime and punishment regimes. If the contempt of non-attendance, with attendance and obtaining information as the uppermost objective, not punishment, the sanction could be seen as procedural, or similar to a coercive administrative sanction rather than a penal consequence, and outside the scope of Article 7.  By eliminating incarceration, and allowing compliance to avoid sanction, there is also a better argument to make that the regime is procedural and not punitive.  


  1. Also, many instances the consideration of violations of Human Rights laws, treaties and conventions are contextualized.  The courts and enforcement bodies accept that the rights are not absolute and abstract.  Potential violations or constraints can be justified, if reasonable, proportionate, and connected to a valid public or constitutional interest.   The continued ability of a democratically elected House to carry out valid constitutional functions, within the Westminster constitutional framework, will normally satisfy any justification, reasonableness, proportionality, or margin of appreciation test.[37]  Any remedy for wanton refusal to appear before a body carrying out constitutional functions with the power to summons, and a remedy tied directly to that function, would more than likely meet these standards. 


Summary and Suggestions

  1. It is possible, and therefore preferrable, to design and implement a process to compel the attendance of reluctant witnesses without abrogating the independence of the House of Commons enshrined by Article 9 of the Bill of Rights, 1689.


  1. It is undisputed that the House of Commons has the constitutional function to inquire into matters that it believes are in the public interest. In order to carry out this function it needs to have the power to send for persons, papers and records. Although this is normally accomplished by an invitation that is accepted, sometimes it is necessary to issue a summons. 


  1. It is also undisputed that witnesses sometimes do not attend and continue to refuse.



  1. When the reluctant witness is government official, or a person for whom a Minster is responsible, or can be held responsible, the matter can, and should, be dealt with through the usual means of the House holding Ministers and the Government to account. [38]  The House has the ability to order Ministers to produce documents or witnesses, find the Minister or government in contempt, censure the government, or to vote non-confidence in the government for the contemptuous behaviour of its Ministers or the government as a whole.[39]


  1. Since the House has the ability to summon a third party, there is an inherent power to enforce the summons, including the imposition of sanctions.  Otherwise, there would be no real power to summon and there would be a threat to the ability of the House to carry out its constitutional functions, with a resulting loss of its constitutional dignity.



  1. Historically the House had its will carried out through its own officers, with the aid of civil authorities by directing the Sergeant-at-Arms to arrest to enforce the summons by arresting the witness.  The witness would be brought to the House or Committee to testify and, if they refused, they would be imprisoned until they purged their contempt by testifying, or the session ended with prorogation.  These were similar to the inherent processes for enforcement of summons used by the courts. 


  1. The House enjoys these powers constitutionally and independent of the common law. They form part of the privileges of Parliament.  Also, since the actions are the result of a proceeding in Parliament, they are immune from being questioned or impeached in the courts based on Article 9 of the Bill of Rights, 1689.  The provisions of the Bill of Rights are constitutional in nature.  Article 9 not only protects freedom of speech and proceedings, it is also a constitutional limit on the jurisdiction of the courts.  As a result, the courts did not interfere in the enforcement of a summons by agents of Parliament and those assisting.  In the past the courts even refused the right of habeas corpus, since this would require the courts to look to the reasons for issuing the summons and warrants and to do so could result in the courts questioning or impeaching a proceeding in Parliament.


  1. Article 9 is, and should remain, a fundamental tenant of the British constitution and provides absolute protection of the business of Parliament from the courts.  It ensures Parliament’s independence.  To date the courts have accepted and therefore enhanced the independence of Parliament by clearly indicating that although they can examine the boundary (scope and extent) of any privilege, they will not allow any inquiry into the exercise of the privilege, including enforcement.  

Suggestion 2

The Committee assert that the enforcement of a summons is an exercise of the privileges of the House and form part of proceeding in Parliament. As such they are protected by Article 9 of the Bill of Rights, 1689 and cannot be questioned or impeached in the courts.


  1.                    This acceptance by the courts that the processes of Parliament in carrying out its constitutional functions is beyond the jurisdiction of the courts to review also has consequences for Parliament.  Since the House “with one voice, accuses, condemns and executes, there is a responsibility on the House to develop processes that are scrupulously fair. If this is a concern, then it is a concern that can only be taken up by the House.  For those who are concerned that there is no oversight, with respect, I suggest that they are wrong.  Judicial oversight is not the only form of oversight and accountability for the work of the House.  Nor is it appropriate or best.  The best form of accountability is through transparent proceedings and processes, witnessed and judged by the electorate holding parliamentarians to account both during parliamentary session and at elections.


  1.                    Fairness within the parliamentary context need not be the same as in the judicial context.  What parliamentarians seek from witnesses, and why, is often quite different from that in a judicial process.  As a result, considerations of relevance, standards of proof, and inferences drawn from testimony of witnesses and commentary of Members, will be different.  At the same time, fundamental fairness to a witness before the House imposes a sanction would suggest that the witness know why the House is considering such sanctions and the consequences of the sanction.  They should also be given the opportunity to address the issue before any sanction is imposed.  Judicial and administrative law principles in this regard could be useful in developing a process for contempt and sanctions.

Suggestion 3

That the House develop a specific process, within its Standing Orders if necessary, outlining a specific process to be followed before the House directs that steps be taken to enforce a summons issued to a person, or entity, for whom a Minister in not accountable or responsible.  The process should provide for the ability for the person to attend in person, in writing or by counsel, to present any evidence or argument for their refusal for attending as a witness.  The Committee should consider any evidence or argument given and may adjust its proceedings to address the concerns raised (e.g., in camera proceedings, redacted documents etc.).  If the witness continues to refuse to attend, the Committee would then report the matter to the whole House, with any report to include the evidence and argument of the witness, along with any proposed accommodation by the committee, and any recommendation the Committee suggest the House take to compel attendance. As an extra buffering step, the rules could provide that the original committee report to the privileges committee to obtain its views. Any proposed enforcement process should be presented to the witness to make any argument, before the final report is sent to the House.  If the matter is not resolved, as a matter of privilege the report of the Committee (or privileges committee) would be given appropriate precedence.  The decision to take any enforcement steps, and what steps ought to be taken would be a decision of the entire House.  

  1.                    The purpose of any proposed remedy should be clearly articulated.  Is the purpose to punish a witness for defying, disrespecting or undermining the dignity of Parliament? Or, is the remedy designed to obtain the attendance of the witness, documents or testimony?  Punishment is not the main purpose of the remedy for not responding to a summons, although the witness may see it as such.  A punishment is often focussed on a response to a particular incident or action and, as a response, the punishment once administered is considered the end of the matter.  This will not necessarily obtain compliance and may be taken as a price of doing business, or cost, for not ever having to testify, and as a political badge of honour.  If, on the other hand, the purpose is to obtain testimony or documents as part of an ongoing process of inquiry, then the remedy should reflect this purpose.


  1.                    An appropriate remedy in the twenty-first century is the imposition of a daily financial sanction until the contempt is purged, or prorogation.  Any sanction should have a starting date that allows the witness to make arrangements to testify before the sanction  takes effect, and should be of an appropriate amount based on the circumstances of the witness.



  1.                    There is no legal or constitutional reason that precludes a daily fine for the purposes of compelling a witness to testify following a contempt of not appearing to a summons.  The procedural references that have been read as prohibiting the House from imposing any fine under any circumstances are not accurate reflections of position that the courts have taken, and therefor do not apply as any sort of precedent in the circumstances of a reluctant witness.  The courts dealt with the power of the House to fine as a penalty for a crime, or as a one-off penalty following a finding of contempt.  This is quite different from the possibility of a daily fine, as opposed to imprisonment, for non-attendance of a witness.  It makes no legal, constitutional, or logical sense that the House would have the power, upheld by the courts, to imprison indefinitely but not to impose a lesser penalty of a daily financial sanction, to compel a witness to testify.


  1.                    Although it is accepted that the House may not have the capacity to expand its privileges, this does not mean that the House cannot take the steps to examine and exercise its privileges differently as society and circumstances change.  The question to be asked is not whether the consequences and sanctions need to change, but whether the privileges themselves are being expanded beyond what is necessary.  In the case of non-attendance and the appropriate response, there is no change in the privileges and the constitutional principles that underlie them. The privileges are the power to inquire, the power to send for persons, papers and records (i.e. summons), and the power to discipline (in the broad sense) to address the House’s needs for respect, authority and dignity.  The particular processes and form that these powers and privileges take is a question of the exercise of the privilege.  The processes and sanctions do not constitute privileges themselves.  The House does not enjoy the privilege of imprisonment.  It enjoys the privilege of discipline and protecting its processes and dignity. Imprisonment as just the means.  As a means of exercising a privilege, the House enjoys the privilege of changing how it exercises its privilege, so long as the new exercise of the privilege has the same purpose and is based on the same underlying principles that supported the earlier sanctions.  The exercise of privilege can change to meet modern circumstances. 


  1.                    Modernizing privilege is a watchword for all modern Parliaments. On close examination of the various reports,[40] there is rarely a movement to change or challenge the underlying assumptions, principles, or conventions that underly the constitution and the functions of Parliament.  Rather, the focus is whether, and how, to change the exercise of those privileges in a modern context. 


  1.                    The present study is a good example and opportunity.

Suggestion 4

That the House change the means of exercising its privilege to discipline witnesses who fail to appear to a summons without acceptable reason.  Whereas the House previously arrested and imprisoned witnesses until they purged their contempt by testifying, the House will exercise its privilege by determining and imposing a daily financial penalty until the witness appears pursuant to the summons issued.

  1.                    As the Committee considers the privileges of the House and how to modernize the exercise of those privileges, which is an internal matter for the House to decide, the Committee must also bear in mind the relationship of the House to the courts and the Crown (executive) in the constitutional architecture.


  1.                    Either of the two other branches of the State, the courts or the executive, can be enlisted by the House to assist it with having an order in the nature of financial sanction or payment enforced.  There are pluses and minuses for each.


  1.                    The enforcement of an order is considered separate from the order or judgement.  It is a separate proceeding.  It is generally not open to the person against whom an order is being executed to challenge the original proceeding or order in the enforcement process. As a result, it is possible to have others assist the House with enforcement of any order of the House while precluding those enforcing order from being able to question or impeach the order or the proceeding leading to the order.  Article 9 protections for the House can continue to be observed with enforcement being undertaken by another branch of the State.



  1.                    The courts could be used by allowing the order to be certified by the Clerk of the House and filed with the court with a provision in the Rules of the Court that any such order filed be enforced as if it were an order of the court.  The House would be tapping into the enforcement mechanisms of the court, and could ask for such orders as attachment, garnishment, and seizure of property to satisfy the amounts owing.


  1.                    However, direct access to the courts might encourage witnesses to seek some form of review or relief from the courts that would involve Article 9 issues. Any legislation using the courts to enforce must include a provision that reaffirms Article 9 and indicates there is no power in the court to review the order or proceedings giving rise to the order. 


  1.                    A secondary issue with the direct use of the courts to enforce financial sanctions of the House is the question of the entity to whom the amount is owed.  There may be some question regarding the question of whether the House, as a constitutional body, has the legal capacity to receive and hold funds.  This is because the House as such is not a legal entity.  Although it has a Board of management and administrative structures to support its functioning, it is does not have any capacity with respect to the business of the House.  If, the courts are given the direct power to enforce these remedies, provision will have to be made identifying the recipient of any funds.



  1.                    There is also the question of how the House would “police” the enforcement.  It would be necessary for the House to arrange for counsel to appear on its behalf, thus directly involving the House in the Courts.  This may or may not present some issues of optics for the House actively using the courts, thereby muddying the separation of powers.


  1.                    The second possibility for enforcement is have any sanctions imposed by order of the House be considered debts owing to the Crown.  As such, the Crown would become responsible for enforcing them.  There are various ways that the Crown can enforce debts.  In Canada, for example, by legislation, any debt owing to Her Majesty in right of Canada (the federal Crown) can be recovered by the Crown by off setting the debt against any monies payable by the Crown to the debtor (e.g., tax refunds, grants etc.).  The Crown would also be able to enforce debts in any other way available to it.  In addition, how debts payable to the Crown are dealt with in treaties, bankruptcies and other special circumstances are already known to the law.



  1.                    There are various constitutional advantages to having and fine or penalty becoming a debt owing to the Crown.  The Crown is the keeper of public accounts, responsible for managing all state funds, both expenditures and receipts. If there are concerns in the government regarding the basis and amount of any possible fine, it has the capacity, in the House, to raise concerns and have them debated and resolved within the House.  The debt would become immediate without any further proceeding. The processes for holding the government to account is already part of the usual constitutional functions of the House.


  1.                    Any proceeding on the enforcement that might end up in the courts would only focus on the actions of the government in the collection.  The Crown is a known and frequent participant in court proceedings. The House would have no direct interest in such a proceeding. 


Suggestion 5

That a means be developed for any financial sanction imposed by the House to become a debt owing to the Crown.  It might be advisable to enact legislation that indicates that any amount determined to be payable by the House, as the result of a contempt proceeding in the House, becomes a debt owing to the Crown and may be enforced as any other debt owing to the Crown. 

Suggestion 6

Legislation be introduced that would contain provisions to the following effect:

  1. That imprisonment as an exercise of the privileges of the Houses of Parliament be replaced with financial sanctions, including daily sanctions, for witnesses who do not attend to a summons (warrant) of the House or who refuse to testify;
  2. That any amount resulting from a financial sanction be collectable and considered a debt owing to the Crown;
  3. That [either]
    1. The Crown can take any action to collect on the debt as it may for any debt, fine or financial penalty otherwise owing to the Crown;




    1. The Clerk of the House can file a certified copy of any order of the House with the [identify] court and any such order shall be enforced as an order of the court.
  1. Nothing in the Act derogates from, abrogates or limits any right, privilege or power of the House.  For greater certainty, no order made by the House shall be questioned or impeached in any court or place out of Parliament.


7 June 2021                                                                                                       

[1] Initially enacted by the UK Parliament as the British North America Act, 30 & 31 Victoria, c.3 (U.K), renamed by the Schedules to the Canada Act 1982, 1982, c.11 (U.K.).

[2] Recently there was a singular provision contained in the National Security and Intelligence Committee of Parliamentarians Act, SC 2017, c 15, that established an extra-parliamentary committee (the Act specifically indicates that it is not a committee of either House (s.4(3))) composed of members of each House with a mandate that allows the government to share and discuss information that is considered sensitive for national security reasons.  The parliamentarians are not allowed to share the information in Parliament, and if they do so they can be prosecuted for what they say without the protection of parliamentary privilege. 

[3] RSC 1985, c P-1.

[4] Third Report of the Standing Committee on Agriculture and Agri-Foods, 37th Parliament, 3rd Session, (Canada, House of Commons) concurred in by the House of Commons May 6, 2004.

[5] Fourth Report of the Standing Committee on Agriculture and Agri-Foods, 37th Parliament, 3rd Session, (Canada, House of Commons) presented to the House of Commons, May 13, 2004. 

[6] See Hansard, May 13, 2004 (Canada, House of Commons). Following the failure to obtain unanimous consent, a Member of smaller party in the House stated “Mr. Speaker, I too rise on a point of order. I simply want the hon. member to know that there is a tacit agreement whereby the other parties are consulted when unanimous consent is sought, something the hon. member did not do this time.”  There was no debate on the content of the motion, nor was it in any way ruled out of order by the Speaker.

[7] Stockdale v Hansard (1839), 9 Ad. & E. 1, 112 E.R. 1112 at page 1192.

[8] Canada (House of Commons) v Vaid, 2005 SCC 30, [2005] 1 SCR 667, [“Vaid”]  para. 47 ff, applying Stockdale v Hansard, Note 7.

[9] Ibid.

[10] Vaid, para.40.

[11] This was the underlying concern in Bradlaugh v. Gossett (1884), 12 Q.B.D. 271.  This was also the concern when the Canadian government established a Commission of Inquiry into the Sponsorship Program and Advertising Activities at the same time as the House of Commons Standing Committee on Public Accounts was looking into the same issue.  Even though attempts were made to keep the inquiries separate, there were court cases and House motions dealing with constraints on the use of parliamentary committee evidence before the Commission, see Gagliano v. Canada (Attorney General), 2005 FC 576.

[12] The High Court of Parliament and its Supremacy: an Historical Essay on the Boundaries between Legislation and Adjudication in England, McIlwain, Charles Howard (New Haven, Yale University Press, 1910).

[13] Howard v Gossett (1845), 10 QB 359 at 379, Gosset v Howard (1847), 10 QB 411 at 451, cited and discussed in The Power of Parliamentary Houses to Send for Persons, Papers & Records, Derek Lee (MP Canada), University of Toronto Press, Toronto, 1997.

[14] Miller refused to testify for such a length of time that he was eventually remanded to the local gaol where he remained to the end of the session.

[15] The process may differ from jurisdiction to jurisdiction. In Canada, for example only the House can send a formal summons, usually at the request of a Committee. Only the Speaker may execute a warrant on motion of the House.

[16] Bill of Rights, 1689, 1 Will. & Mar. sess. 2, c. 2.

[17] [1992] UKHL 3 [1993] AC 593 [1992] 3 WLR 1032.  This case involves the limited use of parliamentary records, including Hansard, in interpreting legislation.  This case and numerous others, in Canada as recently as
References re Greenhouse Gas Pollution Pricing Act
, 2021 SCC 11 , illustrate the difficulties courts have in ascertaining the “will” of Parliament give that there are many and varied reasons for Members coming to a collective decision.

[18] Erskine May, Parliamentary Practice, 19th edition, Litterdale ed., pages 67 and 68.

[19] Although I am of a different view since it may be argued that a parliamentary body at Westminster, or with a Westminster pedigree, is constitutionally enabled to make such decisions, particularly to compel attendance, it is not necessary to answer this question.

[20] McIlwain, Note 12, pp 233-36.

[21] The Sergeant-at-Arms, as an official having the Crown’s approval and authority to act, to keep order and to enforce the orders of the House, was able to act with the authority of the Crown, but at the direction of the House.  The mace, embossed with the royal arms, provided the necessary physical and ultimate authority for the Sergeant to act, but as a gift from the Crown dating to 1415, he acts on the authority of the House.  Based on the authority of the mace (Sergeant-at-Arms) acting on the direction of the House, and as a result of a proceeding, the courts lacked authority to intervene.  In order to not require the Sergeant to have to present the mace at an arrest, the House developed the practice of having the Speaker issue a Speaker’s Warrant to provide the basis for arrest and detention (if necessary).  The warrant was directed not only the Sergeant but also constables and other civil officials to aid the Sergeant. The House, in essence, was able to use force to compel adherence to its orders. Several Canadian Provinces, in their respective Legislative Assembly Act[s] include provisions that set out the power to imprison to compel testimony (ie until end of session), the process for Speakers to issue warrants to imprison, and that the decision is that of an Assembly, final and not subject to review (e.g., Alberta Legislative Assembly Act, RSA 2000, c. L-9, s.11).

[22] McIlwain, Note 12 p 237.

[23] Joint Committee First Report on Parliamentary Privilege (UK), 1999, Para 273 citing a 1979 report to the same effect. See also: Standards and Privileges Committee- 14th Report- Hacking of Members’ mobile phones (2011) para 60 where fines as opposed to imprisonment were suggested as a remedy for non-attendance contempts.

[24] While these internal House rules and procedures and their application would not be reviewable in domestic courts due to Article 9, Bill of Rights, 1689, no such restriction on review would necessarily apply to international bodies which may make such examinations, although they may respect the constitutional arrangements as appropriate restrictions.

[25] For example, see Alberta Rules of Court, R.10.53(1); UK Criminal Procedure Rules 48.5 (b)(i); discussion in JSC BTA Bank [2011] EWCA Civ 1241 para 45 ff.

[26] These are often referred to as coercive sanctions and a matter of civil, not criminal contempt since they are not punitive.  They also have the characteristic that they can be avoided, purged or limited to the extent that compliance tacks place.  The use of these fines is relatively prevalent in the US.  See “Basic Issues in Civil Contempt”, (1978) New Mexico LR 58; MM Cordray, “Contempt Sanction and the Excessive Fine Clause”, (1998) North Car. LR 407 and Michigan Contempt of Court Benchbook, p.31.  In Canada daily fines have been used to address ongoing contempts;  see Professional Institute of the Public Service of Canada v Bremsk, 2013 FCA 214

[27] For Example, Accessibility for Ontarians with Disability Act, 2005 SO 2005, c11, s 37(3).  In Europe such administrative penalties for compliance are quite common.

[28] Vaid, Note 8, para 30, quoting Stockdale v. Hansard, at p. 1171.

[29] Vaid, Note 8, para 30.

[30] See Cordray, Note 24.

[31] In many provinces the nature of Speakers’ Warrants is found in the same legislation dealing with contempts, see Note 20.  At the federal level a Speaker’s Warrant was issued to a prison warden in Toronto to release an inmate to the custody of the Sergeant-at-Arms so that the inmate could testify in person at a Committee hearing in Ottawa. The Warrant including conditions to ensure that the inmate remained in custody throughout his “release”.

[32] For example, see Ontario Statutory Powers Procedure Act, RSO 1990, c.S.22, s.19.

[33] Governments can be required to answer questions and petitions. They can also be required to respond to proposals and recommendations of committees.

[34] R v Chaytor, [2010] UKSC 52, particularly at paras 76-79 and 92.

[35] Note 11.

[36] Guide of Article 7 of the European Convention on Human Rights (updated to 30 April 2021), ECHR, Part II.

[37] A v The United Kingdom, 2002 ECHR case 35373/79.

[38] This submission focuses on third parties, being persons, corporations, or bodies for which a Minister is not accountable to the House.  In those cases, the House has considerable power up to and including voting non-confidence in the government.

[39] This is also true for finding government and Ministers in contempt.  For example, in 2009, the Canadian House of Commons found the government in contempt for refusing to provide documents to the House relating to certain alleged abuses during the Afghanistan war.  When the government continued to refuse, the House voted non-confidence in the government and there followed a general election.

[40] Particularly 1999 and 2013.  It is also evident from the various responses of Parliaments throughout the Commonwealth to the COVID-19 pandemic.