1 week Ago By Colby Cosh
On Thursday morning, the Supreme Court announced that it will hear law professor Ryan Alford’s constitutional arguments against the National Security and Intelligence Committee of Parliamentarians Act (2017). I’d love to write “Good!” but at a minimum I ought to write “Good for the court, and good for Prof. Alford.
” The Liberals’ NSICOP system for allowing MPs to view sensitive national security information was, by any informed person’s standards, an unprecedented and dramatic change to a foundational principle of our constitution: the idea of parliamentary privilege. Under the NSICOP Act, members and senators can be tried and imprisoned solely for words uttered in Parliament — a reversal of centuries of tradition and practice that lowers Parliament’s constitutional priority and arguably endows the executive and the deep state with frightening new power. That’s not to say there’s not a case to be made for NSICOP — and, indeed, at the Ontario Court of Appeal earlier this year, three judges accepted the validity of that case .
The idea of the NSICOP system is that MPs choose whether or not to surrender some quantum of their parliamentary privilege for narrow, defined purposes. If they’re willing to do this, they can submit to background checks and (perhaps) join NSICOP, which is a list of approved citizens rather than an official committee of Parliament. The anointed are then given uncensored, unrestricted access to state secrets that some spy or bureaucrat would prefer to remain secret.
But under the statute, those members then become subject to prosecution under national security statutes by which the rest of us are bound, and to which even MPs were already answerable outside the previously sacred free-speech zone of the House and Senate. The paradox has must be resolved one way or another. Parliament is theoretically supreme; this implies, in the OCA’s view, that if Parliament limits and redefines its own privileges, thus abandoning some of that supremacy to a newly invented body, no judicial authority may object.
Alford’s legal position is that parliamentary privilege, often classically described as “absolute,” is so fundamental that any big change should require the use of the constitutional amending formula rather than the mere passing of a statute. This is the kind of argument, you’ll recall, that the Supreme Court was perfectly willing to accept when it came to the Harper Conservatives’ attempts at Senate reform. From Alford’s point of view, and from mine too, it would be a little puzzling if the way we happen to choose senators is too fundamental to the “architecture” of the Constitution to change by mere statute, but Parliament can carve up privilege all it likes.
Is there any limit to this? Could Parliament validly pass an act that simply abolished its own free-speech privileges outright? National Post.
