Andrew Younger misused parliamentary privilege, law expert says

Parliamentary privilege has existed for centuries, but it's not meant to be used the way ousted environment minister Andrew Younger did this week, says a professor at Dalhousie's Schulich School of Law.

"Technically, it's within his rights," Wayne MacKay told CBC Radio's Information Morning. "But I think it was an unfortunate use of it." 

MacKay says the right goes back to the late 1600s, and was created to protect legislators from undue interference from the executive and judicial branches of government.

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It was about separation of powers, he says, "at a time when the legislature had a lot less authority and was somewhat under attack both by the Crown and the courts."

Younger did not appear in court this week to testify against former Liberal staffer Tara Gault. She was accused of assaulting him more than two years ago.

The presiding judge dismissed the case, explaining that parliamentary privilege allows MLAs to decline appearing in court when the legislature is in session, even if it's not sitting.

Younger's lawyer has said his client would have just as soon avoided being a distraction to the legislature. Younger, who is married, has said he and Gault had been in a "personal relationship."

Rule could be updated

MacKay said one might sympathize with Younger for wanting to avoid the case, but he went about it the wrong way.

"It was in one sense a very clever legal strategy but not so clever at the end of the day, I guess," he said.

Late Thursday, Premier Stephen McNeil fired Younger as environment minister and booted him from Liberal caucus over inconsistencies in his story about not testifying at the assault trial.

Parliamentary privilege is used mostly for free speech, MacKay said, noting that politicians can't be charged with defamation in the House.

"It makes sense to me that there be some protections for speech in the House," MacKay said. "That's a double standard, too, but that's acceptable. Here there doesn't appear to me to be any real legislative or democratic purpose served by this use."

MacKay said the province may want to consider updating the legislation, as has happened in other jurisdictions. He says that in New Zealand, for example, parliamentary privilege has to go through the Speaker of the House, and can't be exercised individually. 

"What was appropriate in 1600s is not necessarily appropriate in 2000s," he said.