Speaker’s Ruling – Question of Privilege – Access to a Senator’s Emails
Honourable senators,
I am prepared to rule on the question of privilege raised by Senator Marshall on June 17, 2019. The matter was the object of further consideration on June 19, 2019.
The question of privilege concerned the alleged release of certain emails from Senator Marshall’s Senate account following a request for information by the Senate Ethics Officer. If access was provided, this occurred without Senator Marshall’s consent, and without her being formally advised. Senator Marshall indicated that she had been cooperating with the Office of the Senate Ethics Officer as part of an inquiry, but learned through informal communications that her emails had been accessed. She found this fact deeply concerning, and emphasized that senators must be aware of this risk.
When the Senate considered this point on June 19, both Senators Housakos and Downe were disturbed by the fact that a senator’s emails can be accessed without any type of warning or chance to cooperate. At the very least, they indicated, colleagues must be aware of this fact when considering how they use this tool. Senator Marwah also urged senators to reflect on this event, and, if appropriate, to work to amend the governance instruments that may have led to this situation.
Senator Andreychuk, the chair of the Standing Committee on Ethics and Conflict of Interest for Senators, also intervened on June 19. She provided an explanation of the operation of the Ethics and Conflict of Interest Code for Senators and its interaction with the Senate Administrative Rules in this case. The Senate Ethics Officer is under an obligation to conduct an inquiry promptly and in confidence. This helps to protect all those involved. Senators and all other persons involved in an inquiry are obliged to cooperate with the Senate Ethics Officer, and are also bound to respect confidentiality. Senator McPhedran then noted the importance of such confidentiality provisions to ensure a fair and unimpeded investigation.
Honourable senators will know that the Ethics and Conflict of Interest Code for Senators gives the Senate Ethics Officer broad powers to seek information needed to conduct confidential inquiries. In accordance with the provisions of the Code, the Senate Ethics Officer only receives access to emails in the context of an inquiry. Confidentiality is necessary to maintain the integrity of the process and to protect those involved in the inquiry.
This case suggests that all senators may not be sufficiently aware of the ethics regime created by the Senate. The broad nature of the Senate Ethics Officer’s powers to access information without warning is an issue upon which senators may want to reflect. We have an obligation to better understand the regime that we have established and how it operates. The Standing Committee on Ethics and Conflict of Interest for Senators will no doubt take this matter into consideration when recommending future changes to the Code. This regime is, however, the framework within which we currently operate.
Under rule 2-1(2) the Speaker’s authority in relation to the Code is limited to matters incorporated into the Rules. So, while I must be cautious, I do feel that I can emphasize that the obligations of both cooperation and confidentiality flow from decisions made by the Senate itself. They are, therefore, the result of the Senate exercising its control over internal affairs.
As noted in the ruling of March 22, 2018, the rights of individual senators are “subject to the Rules, procedures and practices [of the Senate], which are expressions of the Senate’s own parliamentary privileges, both to manage its internal affairs and to control its proceedings”. I should also remind colleagues that parliamentary privilege does not protect all electronic communications by a senator. Each communication must be assessed to determine if it is directly linked to a parliamentary proceeding. In this case, it is not currently possible to determine whether access was actually given to emails that might be subject to privilege.
Rule 13-2(1) sets out four criteria that a question of privilege must meet. The fourth criterion is that a matter “be raised to seek a genuine remedy that the Senate has the power to provide and for which no other parliamentary process is reasonably available”. When a request for access to emails is received from the Senate Ethics Officer, it is, under the Senate Administrative Rules, referred to the Subcommittee on Agenda and Procedure of the Standing Committee on Internal Economy, Budgets and Administration, which will then deal with releasing the information. It therefore seems that there is another reasonable parliamentary avenue through which concerns about these events can be raised and additional details sought, that is by raising the issue with the Internal Economy Committee and its steering committee. I do, of course, note the obligation of all senators, including those on the Internal Economy Committee, to respect the blanket confidentiality of inquiries under the Code.
As such, the requirements for a case of privilege have not, at this time, been met, and a case of privilege cannot be established. Let me be clear, given the unusual combination of circumstances in this situation, if it does later become clear that privileged information was improperly released, Senator Marshall would not be prevented from raising the issue as a new question of privilege.
Before concluding, there are a number of related issues that I must address. In raising her concerns, Senator Marshall has brought to light how the interaction of various core governance and ethics instruments may lead to access to information that colleagues might normally expect to be private. We should reflect on whether this is desirable, and what, if any, adjustments to our governance and ethics regime may be appropriate.
This said, however, I must note that I am deeply troubled about how these events came to Senator Marshall’s attention. She told the Senate that she learned of them “through the grapevine”. The Code imposes a strict obligation of blanket confidentiality, which was obviously not respected. I must also note again for senators that any matters considered in camera must respect the obligations of confidentiality that flow from this process. Senators, their staff and employees of the administration must take these obligations seriously. They reflect decisions of the Senate and should always guide us in our actions.
Finally, without evidence to the contrary, we should never call into question the integrity and diligence of those who assist us with our work. This restraint is particularly important in the case of the Senate Ethics Officer. It is unhelpful to criticize him for fulfilling his duties under the Code, which we as senators have adopted to govern his work. If, as a Senate, we have concerns with the operation of the Code, which we ourselves have established, then these issues should be openly debated and resolved here, in the Senate Chamber.