The Supreme Court of Canada upheld a law on Friday that limits the privilege of parliamentarians in relation to their duties on a statutory committee that oversees the country’s national security and intelligence apparatus.

By an 8-1 majority, the court held that Parliament has the authority to define the privileges its members enjoy insofar as it does not undermine the Westminster-style system and the Constitution. Referring to section 18 of the Constitution Act, 1867, the majority found that it only restrains Parliament from defining the privileges in a manner that exceeds what the UK House of Commons enjoyed at the time the privileges were granted to Parliament. This rejected the contention put forward by law professor Ryan Alford that redefining parliamentary privileges requires a constitutional amendment.

The National Security and Intelligence Committee of Parliamentarians Act establishes a statutory committee that oversees all matters relating to national security and intelligence. At issue is section 12, which prohibits any current and former members from claiming any parliamentary privileges when they face a criminal proceeding following a disclosure of any state secret obtained from the work of the committee.

The majority found that section 12 is a narrow limitation on the parliamentary privilege to free speech. It only covers protected information within the committee, and the parliamentarians would not have been aware of the protected information had they not chosen to sit on the committee.

Justice Suzanne Côté disagreed. She described potential imprisonment as an “unprecedented” jeopardy to the privilege to free speech in Parliament. Under the act, the executive government has sole authority to determine what information comes within the scope of the legislation. Côté is concerned that the executive government may limit disclosure simply because the information is politically embarrassing. She found that section 12 limits Parliament’s oversight role unconstitutionally and undermines the principle of responsible government. Accordingly, she would have held that Parliament exceeded its authority to enact the provision.

Côté’s position is similar to those of the British Columbia Civil Liberties Association, the Canadian Civil Liberties Association and the Canadian Constitutional Foundation (CCF). They all argued that the court should also prevent Parliament from delegating its privileges to the executive branch. According to them, this delegation violates the principles of transparency and accountability. CCF Interim Litigation Director Josh Dehaas added:

It is unfortunate that the Supreme Court has decided Parliamentarians can no longer speak out when they see fit. The result of this decision is that it is even more difficult for MPs to do what we elect them to do: hold the ministers and prime minister to account.

On the other hand, national security expert Wesley Wark maintained that the government must ensure that state secrets are protected. Section 12 represents the government’s effort to strike a balance between allowing Parliament to oversee national security agencies and protecting state secrets, according to Wark.