Morris had no authority to suspend senator

Below is a letter to Floyd Morris, president of the Senate, from Tom Tavares-Finson, leader of opposition business in the Senate.

Dear Mr President,

I refer to your letter, attached to your email to me, which was received Thursday morning.

The opposition members of the Senate are extremely disappointed at the manner in which you have dealt with this matter, your unjustified treatment of Senator Marlene Malahoo Forte, and the extent to which you have abused your authority as president.

The conduct of the proceedings of the Senate is governed by its Standing Orders, and if matters arise on which these Orders are silent, it is expressly provided that "resort shall be had to the usage and practice of the Commons House of Parliament of Great Britain ...". May's Parliamentary Practice, now in its 24th edition, has remained the authoritative reference source of the Commons since it was first published in 1844.

There is no provision in the Standing Orders, nor can any authority be found in May's, that gives the president the power to require a member to hand over a document that is in his or her possession.

This was an egregious error on your part that was compounded by naming her and having her suspended for not having done so.

What restriction?

If the president had any such power, what would restrict him from demanding that a member hand over his speaking notes or any document, for that matter, including one provided to him, the source of which he is not at liberty to divulge?

May's only reference of even vague relevance is found in Chapter 22 under the caption 'Citing documents not before the House', which states: "A minister of the Crown may not read or quote from a dispatch or other state paper not before the House unless he is prepared to lay it upon the table. Similarly, it has been accepted that a document which has been cited by a minister ought to be laid upon the table of the House if it can be done without injury to the public interest."

With regard to ordinary members, it says, "There is no rule to prevent members not connected with the Government from citing documents in their possession, both public and private, which are not before the House, even though the House will not be able to form a correct judgment from partial extracts."

It matters not whether Senator Malahoo Forte had previously given an undertaking to provide the document. Indeed, she was in the process of doing so, but even if she did not, you would be at liberty to express your displeasure or even rebuke her for failing or refusing to do so, but you have absolutely no power either under the Standing Orders or the practice of the British Commons to compel her to do so.

Senator Malahoo Forte has, therefore, been unjustifiably suspended for refusing to obey an order from you that you have no authority to issue in the first place.

You also stepped far outside of your authority in dispatching the marshal to secure the senator's return to the chamber, whether from the lunchroom, ladies' room or any other place, under Standing Order 43(2), and only if a member's conduct is "grossly disorderly", you have the power to order that member to withdraw for the remainder of the day's sitting, and any member so ordered is obliged to comply and can be forcefully removed, if necessary.

However, if a member has left or is outside of the chamber, you may invite, but you have no authority to compel or coerce the member to enter the chamber, and if that member even refuses to do so, while it may arguably be discourteous, it does not amount to disobedience, since you have no authority to make such an order.

This brings us to the issue of contempt, a word that has been thrown around quite loosely in your comments on this matter and is particularly relevant because in the previous day, an attempt was made to have Senator Malahoo Forte suspended for saying that the Senate was "making a mockery of the Constitution". You considered that she should then have been held in contempt and proceeded to name her.

The Standing Orders contain no provision dealing with contempt and, therefore, resort has to be had to the practices of the House of Commons and insights that can be gained from May's. May's defines contempt as "actions which ... obstruct or impede (the House) in the performance of its functions or are offences against its authority or dignity such as disobedience to its legitimate commands or libels upon itself, its members or its officers." Nothing that Senator Malahoo Forte has done or failed to do falls within those parameters.

What is contempt?

In the distant past, the House of Commons applied the definition of contempt very broadly, to include, for example, "reflections on the House by means of words spoken or written reflecting on the character of proceedings of the House" and "reflections on the character or impartiality of the speaker or deputy speaker". The Commons was also very aggressive in prosecuting acts of contempt and, indeed, there is a room in the lower third of the Clock Tower in London in which unruly members were confined when committed to the custody of the sergeant-at-arms. It was last so used in 1880.

The Commons has moved light years away from that approach to the management of parliamentary proceedings. The report of the Joint Committee on Parliamentary Privilege (2013) at paragraphs 268-270 defines "abusive contempt" as "words or actions by any person which either House considers disrespectful, insulting or defamatory", but it goes on to say:

"Times have changed. The Commons is now less sensitive. In practice, the lords have long ceased to take any notice of an abusive contempt and the Commons decision in 1978 to require evidence of substantial interference before treating a matter as contempt has considerably reduced its scope".

The Australian Parliament went even further by inserting in the Parliamentary Privileges Act of 1987 the following:

"Section 4: Conduct (including the use of words) does not constitute an offence against the House unless it amounts or is intended or likely to amount to an improper interference with the exercise by a House or committee of its authority or functions or with the free performance by a member of the member's duties as a member.

Section 6(1) Words or acts shall not be taken to be an offence against the House by reason only that those words or acts are defamatory or critical of the Parliament, the House, a committee or a member."

The Joint Committee Report quotes succinctly from the submission made by the clerks of both the Commons and the Lords:

"In the past, Parliament interpreted the obstructive element in contempt fairly liberally and proceeded sternly against abusive comment and behaviour calculated to subject them to public ridicule and thereby, as they saw it, to obstruct them. More recently, however, both Houses have passed over in silence much that would have attracted an energetic response in previous years. The dignity which contempt offends against was tacitly seen as better preserved by ignoring abuse than by punishing it."

We note that you have signified your ultimate reliance on Standing Order 43(13) which states that "Nothing in this Order shall be taken to prevent the Senate from proceeding against any member for any breach of order not specified herein or from proceeding in any other way that it thinks fit in dealing with the breaches of order herein mentioned". In the instant case, there is no Order that Senator Malahoo Forte can justifiably be claimed to have breached. We submit, further, that this provision cannot be taken as a licence to be arbitrary or to disregard the provisions of the Standing Orders and the vast corpus of Commonwealth parliamentary practices that have evolved over centuries.