Vaccinations and Members of the Assembly – new wine in old bottles
Since the Government announced that Government employees will have to be vaccinated, there have been reports that Members of the Legislative Assembly will also have to be vaccinated. News reports indicate that Speaker Nathan Cooper has said that there would have to be a motion in the Assembly to restrict Members from attending. Another report indicated that the Premier said it would be unconstitutional to prevent Members from taking their places. And another report indicates that Government House Leader, Hon. Jason Nixon has said that MLA’s must be vaccinated. There is some truth in these statements to varying degrees.
Before analyzing the statements, some background is necessary. Yes, Members do enjoy rights and immunities by virtue of their office. These have developed literally over centuries to protect our Westminster style democratic institutions so that they may function. What may seem boring or dusty history still applies to something as current as the requirement for vaccinations against COVID.
Parliamentary Privilege consists of the rights and immunities enjoyed by Members of the provincial and territorial Assemblies of Canada and the House of Commons and Senate. They have been found by the Supreme Court of Canada to enjoy constitutional status. Parliamentary Privilege is enjoyed by the House of Commons and Senate by virtue of section 18 of the Constitution Act,1867 Act which gives those Members the rights, and privileges enjoyed by Members of the House of Commons of the United Kingdom. There is not a specific provision in the Constitution dealing with privileges of Members of a Legislature much less one on vaccinations. Parliamentary privilege is part of the unwritten constitution as they were brought into our legal and legislative landscape by way of the Preamble to the Constitution Act, 1867 that Canada is to have a Constitution “Similar in principle to that of the United Kingdom”. This includes the ancient privileges, rights, and immunities that Members enjoy.
In 1993, the Supreme Court of Canada found not only that parliamentary privilege enjoyed constitutional protection but that one part of the constitution could not be used to “trump” another part. So, in that case, the Court held that the freedom of the press under section 2(b) of the Canadian Charter of Rights and Freedoms, could not be used to oust the Nova Scotia Assembly’s privilege to control “strangers”. Accordingly, a camera person did not have a “right” to broadcast the proceedings.
In Alberta, section 9 of the Legislative Assembly Act, states that members have all the same privileges held by members of the House of Commons in the United Kingdom at the time of Confederation in 1867.
The most cherished right of Members of the Assembly is freedom of speech. Members can say what they want in the Assembly without fear of legal action or threats. The only limitation is that it must conform to the rules of the Assembly. Section 13 of the Legislative Assembly Act provides that Members cannot be the subject of legal actions for anything they say in the Assembly or in a committee of the Assembly.
Another one of the fundamental inherent privileges of the Assembly and which is relevant to the vaccination issue, is the exclusive control over its own proceedings. This includes restrictions on attendance and even membership. Only the Assembly can set its rules and discipline Members. The British use the elaborate term “exclusive cognizance” to categorize this privilege.
Applying this category of parliamentary privilege to vaccines means that the Assembly could pass a motion either on its own or as an amendment to the Standing Orders requiring Members to be vaccinated against COVID or offer proof of an exemption or have a negative test result or any combination of these measures. One Member tweeted that if the Assembly can require her to wear panty hose, it can require someone to be vaccinated. The panty hose reference isn’t contained in any rules of the Assembly or Speaker’s rulings although Members must dress appropriately.
Anything short of a resolution of the Assembly would not, in my view, be sufficient to restrict MLA’s from attending the Legislature. In fact, to restrict someone from attending a proceeding of the Assembly might be a contempt of the Assembly (in other words, a breach of privilege). It is well established that no one can interfere with, molest, or intimidate Members in the performance of their parliamentary duties. So, a general guideline restricting Members from participating in the Assembly and made by someone other than the Assembly would be a violation of their privileges. This would include a directive from the Government House Leader to all Members requiring them to be vaccinated. Certainly, the UCP caucus can set its own rules. If Members chose not to follow the caucus rules, then their privileges are not interfered with as they can still attend the Assembly, only not as a Member of the UCP caucus.
Such a directive, without a motion of the Assembly would be exactly what Premier Kenney meant when he referred to constitutional reasons for not preventing Members from attending. To follow this trail, parliamentary privilege enjoys constitutional status. A Member has a right and duty to attend the Assembly subject only to the rules of the Assembly. If someone prevented Members from attending the action would violate their privileges. Accordingly, one could say that there were “constitutional reasons” for not preventing Members from attending. Of course, you won’t find this in any constitutional documents.
One other thing: once something is found to be a category of parliamentary privilege, such as setting rules about the attendance of Members, the courts cannot interfere. They do not have “jurisdiction”.
So, an ancient set of rights for Members that was developed in the United Kingdom over centuries applies to the COVID situation in Alberta today. New wine in old bottles or more appropriately, new vaccine in those old bottles!
