Free Speech – But Be Careful

Thursday, May 30, 2019, should be circled on anniversary calendars, the day 38 members of the Legislative Assembly rose in succession on personal points of privilege to condemn the conduct of Speaker Darryl Plecas. And, failed in their mission.

One or two of the protesting MLAs altered portions of a prepared text, but the majority stayed with an unprecedented flood of identical criticism with most stating he or she had been personally offended. They intoned: “I have become aware of behaviour and conduct undertaken by the Speaker with respect to senior officers and employees of this Legislative Assembly that I believe to be improper and compromises the ability of those officers to independently do their duties.”

The actions referred to had been made public hours earlier with the revelation that Speaker Plecas had authorized the seizure of hard drives from senior staff computers. A seizure, Plecas claimed, he had the power to make anywhere in the Legislature precinct for “security reasons.” He had been reported as saying in interviews earlier that he had the authority to walk into offices and request hard drives from all over the Legislature.

The massed chorus of Liberal MLAs challenged that power with: “I believe that activities undertaken by the Speaker, including the seizure of records including electronic records … constitutes improper conduct with respect to my right as a member of this assembly and impedes my personal freedoms as a member of this House.”

In their final assault, they accused Plecas of the serious offence of breaching “the individual and collective privileges of this House and contempt for this House.”

And, that is just about the most serious charge any MLA can level against another member – or anyone in the public for that matter, including news reporters, pundits, editorial writers, and even lowly bloggers who may slip from fair comment to “bring into contempt” the democracy we all claim to cherish, but hardly understand.

Standing Order 26 in the rules governing conduct in the BC Legislature is brief when it first mentions “privilege.” It simply states: “Whenever any matter of privilege arises, it shall be taken into consideration immediately.” That’s it. No messing around.

Plecas brushed aside the 38 repeated charges and the House adjourned and MLAs began their summer barbecue break.How could he do that?

Immediacy is not the only requirement when dealing with “privilege.” In George MacMinn’s Parliamentary Practice in BC, Volume 3) there’s an advisory note following the actual order. It reads, with a note of despair: “To give a concise definition of privilege would be impossible … There are thousands of Speaker’s decisions on privilege throughout the Commonwealth and an abundance of decisions on the subject in British Columbia.”

He then provides several pages of advice on procedures to be followed “on raising a matter of privilege” and supports that advice with a special 46-page appendix detailing with debates and findings over the years when abuse of privilege has been charged.

Back in the early-90s, an unnamed newspaper ran a lead editorial accusing the Speaker of partisanship. The matter was raised in the Legislature and a motion put forward, mildly stating “this Legislature regrets the publication of the editorial in the newspaper.” A mild rebuke only, but with Speaker Norman Whittaker sounding a warning bell that harsher punishment could have been applied.

He said while no offence could be taken by a newspaper’s attack on government policy, the charges of partisanship against Speakers “of this Legislature … and what it is pleased to call ‘the progressive decadence of the membership’ is unacceptable.”

“The freedom of the press is a precious thing, but newspapers have a responsibility not to exercise that responsibility in such a manner as to bring into contempt our democratic institutions and systems of government.”(BC Journals,Nov 28,1938)

He echoed the warning note that while the House had held back from “calling the author of the article before the Bar of the House” it was an option – and remains an option today – if the Speaker, with support of the Legislature, ever decides to play hardball with “the press.”

Does this mean the Speaker has free reign; that any criticism of his actions could be construed as a breach of privilege in the form of a smear on the House? Speaker Whittaker seemed to think so. He said he was quoting “from a recognized authority on parliamentary practice’’ when he ruled “the Speaker is the representative of the House itself, in its powers, it’s proceedings and its dignity … And reflection, therefore, on the Speaker is a reflection on the House itself …”

Today’s Speaker remains in office until voting day in the next general election. He can only be challenged by “substantive motion” which some experts say could include a non-confidence vote.

But didn’t we witness 30 plus non-confidence votes on May 30? Not really. There may have been numerous attempts to do so, but the Speaker apparently decided they technically failed to meet the specific criteria demanded by the rules – and his ruling cannot be challenged.

And be warned, as you mutter or rage against the goings on under the Big Dome of the Legislature, do not use words that impinge on the dignity of the Speaker or a rank and file MLA. They are “privileged” and protected and the bar of the House is a fearful deterrent.

Stay tuned. Remember the day will come when you can tell them what you really think of their dignity and their decisions with a series of simple ticks on a ballot paper.

2 comments

  1. I suggest presenting Speak Plecas with a copy of our Charter of Rights and Freedoms. However, before offering this document it might be instructive to highlight a couple sections. The first is Section 8, which addresses freedom from unreasonable search and seizure; the second is Section 2: which covers “fundamental freedoms,” among them freedom of expression and freedom of the press.

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