Independence of Legislatures Requires Them to Take Responsibility for Their Administration

As one who follows the work of Parliament and Legislatures, I read with interest the Report of Speaker Plecas to the Legislative Assembly Management Committee Concerning Allegations of Misconduct by Senior Officials of the British Columbia Legislative Assembly.  The Report outlines numerous allegations of misspending of funds by the Clerk and Sergeant-at-Arms relating to travel, benefits and personal expenses made using funds of the Legislative Assembly.   On reading the report one can easily focus on the particulars and whether the expenditures were appropriate, and if inappropriate what should happen to the individuals in question.  It would be easy to end there.  But what struck me was the question of how the Legislative Assembly got to this point. It finally struck me at page 64 of the 73 page report –“Moreover, it appears historically to have been the case that LAMC [Legislative Management Committee] rarely met; as early as then-Auditor General John Doyle’s report in 2012, strengthening LAMC oversight was identified as an area of urgent requirement in the interests of good governance.”


This single line is quite revealing.  It would appear that the Legislative Assembly let slide its responsibility to oversee the management of the administration of the Assembly.  There is little indication that the Assembly had established and maintained the necessary oversight required of the Administration.  This lead those who were at the apex of the management structure to be able to operate without accountability.  Such a failure by the Assembly allowed those responsible for the administration to either put in place deficient policies, policies that benefited certain higher-level officials or to deviate from the policies without repercussion since they were not held accountable for their personal failure to adhere to the policies.


It is not difficult to understand how this could have occurred.  Members of the Assembly are focused on other matters.  They see themselves as having been elected to legislate, govern or hold the government to account, and represent their constituents’ interests.  They have little or no understanding of, nor have they likely given any thought to, their collective responsibility for oversight of the management of the Administration that supports them in their legislative functions.  They trust others to take care of the management of the “behind the scenes” support that the Administration plays.  And, if the situation has gone on for a number of years, because of changed membership and inertia, it just becomes the way things are and “out of sight, out of mind”.  Clearly, it is assumed, the issue is someone else’s business.


But it is not.


One of the hallmarks of the Canadian constitutional system of government is that the legislature is independent of the Crown (government) and the courts.  For the purpose of administration, the independence from the Crown is most important.  Legislative Assemblies and their Administrations are not government departments.  Administration employees are not government employees, nor do government policies and accountability frameworks apply.  The administration is not, and cannot be, accountable or answerable to a Minister of the Crown, since the administration must be absolutely loyal to the Legislature which has a constitutional responsibility to hold the government to account.  Nor is the government responsible for the failure or shortcomings of the Legislature’s Administration.  Legislative Assemblies must establish their own Administration, including an administrative framework, accountability framework, along with their own financial, information, security and human resources policies.   They may incorporate some government policies, but in doing so the policy becomes a policy of the legislature, not the legislature becoming part of the government. In doing so, the Assembly will recognize that the role of the legislature is different from that of the government and business, and that there may be unique needs and some unique policies.  But this is not an excuse for lax accountability.   In the end, the Legislative Assembly is responsible and accountable for the administration.  Members cannot distance themselves from the failures of a system they are responsible for.


The carrying out of the responsibility for its administration by the Legislative Assembly takes some care and attention.  It requires a fair degree of trust accompanied by appropriate accountability.  A Legislative Assembly is composed of its members and can only act collectively.  Its Members are elected, and each election results in a new and distinct Assembly.   As a body composed of a large number of members and which changes each election, there is a need for a stable, continuing supporting structure.  This is usually found in the permanent officers and the Administration that supports the Assembly.  In order to function and provide for the necessary continuity, the legislature has two options.  It can rely on the Speaker as a servant of the Legislative Assembly to single-handedly carry out management responsibility in addition to all of his or her constitutional functions, or it can assume its collective responsibility by establishing a committee to act on its behalf.  In Canada all jurisdictions, usually by statute, or through its Standing Orders, Legislative assemblies create an administrative framework with a body (often styled as a Committee or Board) composed of Members of the Assembly, to be responsible for the administration.  This body will have the authority of the Assembly to put in place the necessary internal governance and accountability structures for the Administration to function and to be accountable to the Assembly as a whole (again usually through this body).  In most jurisdictions the Committee is composed of members representing all parties and is chaired by the Speaker.  The Committee thereby manifests the authority and responsibility of the entire Assembly.  It also provides for continuity if the government changes since the members of the Committee represent their caucus regardless of whether formerly in the government or the opposition.  It can also provide a degree of non-partisanship in its operations.


Because of the complexity of the Administration, and to avoid the Committee becoming entangled in the minutiae of the day to day decision making, Committees will normally authorize the Clerk, as chief administrator, or a Management group with the Clerk as the Chair, to carry out the necessary day-to-day operations of the Administration, including the establishment of the necessary financial, contracting, expenses and procurement policies.  In most cases the Committee will either approve the policies, or at least the policy principles to establish appropriate good governance practices.  They will also retain the ability to give direction or modify the policies as they deem appropriate.  They often retain the sole discretion to allow for exceptions to policies, particularly when the exception involves members or those who report to it.  The policy framework will allow the Committee the standards against which to hold those responsible for implementing the policies accountable.  In addition, the Committee should expect to have a meaningful reporting relationship with the Clerk (or Chief Administrative Officer) on a regular basis.  Finally, the legislation, or the Committee, will need to establish an independent audit process that reports to the Committee, and through the Committee the House.   Timely reporting and auditing insure probity and accountability.


The failure of a Legislature to establish and maintain the operations of such a Committee results in the Assembly failing to carry out its “management” function.  It does not result in the ability to claim that they are not responsible since they did nothing.  The responsibility is inherent in the constitution.  What they may be able to take some solace in is the fact that all members, regardless of party or status are equally responsible.  Both the responsibility and any fault is collective.


The recent events in British Columbia demonstrate the potential consequences of neglect.  At the same time, it allows the British Columbia Legislative Assembly the ability to conduct a review and to put in place the necessary governance framework that will allow it to fulfill its responsibilities.  It should also act as a wake-up call to all legislative assemblies, that now have a reason to review, reflect and renew their own relationships to their Administrations.


Brexit and the True Face of Fixed Election Dates

Recent and on-going events in the United Kingdom provide insights into the effects of true fixed election legislation on the Westminster system of government.  Those familiar with the Westminster systems of government must be looking on in wonder as the government of Teresa May suffers defeat after defeat as it attempts to steer Brexit legislation and agreements (the raison d’être of Prime Minister May’s government) through the UK Parliament.  First the House of Commons denied the government the ability to negotiate and sign an agreement with the EU without first presenting any agreement to the House for its approval.  More recently, the House voted to receive the full legal opinion of the Attorney General, over the objections of the government.  When the government continued to withhold the opinion, the House of Commons found various senior Minister in contempt of Parliament.  On the same day the government lost two further motions on how the future Brexit process will be subject to greater Parliamentary scrutiny and oversight.  On December 10, 2018 the Prime Minister delayed a planned vote on the Brexit Agreement, with the Prime Minster admitting that the government would lose the vote. And on January 9 a majority on the House of Commons, expecting the vote on the Brexit agreement to be lost voted to allow the government only three days following a negative vote to return to the House with a plan B  By any traditional view of this series of events, it is clear that the government does not enjoy the confidence of the House of Commons.  Yet the government, the House and the Parliament continue, as a result of the fixed date election law in place in the UK.


This post examines how the fixed-date election law in the UK has affected how the House of Commons operates and behaves and suggests that in some ways the law provides a good counter-balance to the evolved state of centralized authority in party leader’s offices, particularly the Prime Ministers’ office, and excessive party discipline.   The fixed date election law has enhanced the independence of the House of Commons and Members, both within the House, and within caucus. At the same time, the rule can make it difficult for the government to govern and constrict the use of the safety valve of elections to resolve political impasses.


The United Kingdom has more stringent fixed date election laws than Canada.  Whereas Canadian fixed date election laws retain the prerogative of the Governor-General or Lieutenant-Governors to dissolve Parliament, on the advice of the Prime Minister or Premier, the UK legislation constrains this prerogative so that Parliament itself must take positive action to trigger an early election.  As was demonstrated in 2008, Canadian Prime Ministers can still consider any matter one of confidence and if defeated in the House, request that Governor-General dissolve Parliament triggering a general election.  By contrast the UK fixed date election law requires either a specifically worded non-confidence vote, followed by a 14-day period for the House of Commons to determine whether another government is possible; or, a two-thirds vote of the House of Commons to have an early election (as was the case in 2017).  Absent one of these two specific motions and votes, the UK Parliament will continue, regardless of the number of defeats a government may suffer in the House of Commons.


The result of the UK legislation has been to strengthen the role of Parliament in determining its continued existence.  No longer does the government control the timing of elections, nor can it dangle the non-confidence sword of Damocles over Members to force support at the risk of triggering an election.


The most evident consequence is that the government will lose more votes in the House of Commons, both on matters of procedure and on matters of substance.  In the case of Brexit, which is the signature initiative of the Conservative government, the House of Commons has dictated the process for endorsing any agreement with the EU, and is, at the writing of this post, likely to defeat the currently proposed agreement.  There have also been several significant defeats on the legislation intended to implement Brexit, resulting in the government making significant amendments to legislation.  Faced with possible defeats and amendments to legislation, without the ability to threaten dissolution and election the government is forced to work with the opposition to implement the government’s agenda.  This is even the case when the opposition parties may be down in the polls and the government would gain in the election.  The government is required to work with the Parliament that resulted from the last election, not orchestrating the next one.   Poison Pill provisions aimed at forcing the opposition to choose between supporting such provisions or defeating the government are no longer an available option , as the government only risks defeat of the legislation, not the government.  In minority situations the opposition is strengthened, and the government is forced to co-operate with the opposition for the entire Parliament, or be defeated at a time of choosing of the opposition (presumably when the opposition parties believe they have greater electoral support).


There is also more room under a fixed date regime for Members that support the government to voice their concerns openly and from time to time vote against the government without the risk of triggering an election.   While the Prime Minister may still wield considerable power over some Members of the government caucus in terms of potential cabinet and parliamentary jobs, and concerning their candidacy at elections, these tools are of little or no effect against Members who will not be seeking re-election, or who represent safe seats with strong constituency associations and ties.


The result is that the government must be more willing to work more closely with Parliament and Members of all parties, in order to achieve its legislative agenda.  And, as Brexit demonstrates this is particularly the case when the issues to be resolved are of major public concern and Members of each caucus are divided on the issue.  This is evident in the Brexit scenario where remainers and leavers populate the benches on both sides of the House.  In Canada these issues are sometimes resolved by allowing free votes (as was the case for same sex marriage) but more often are resolved by whipped votes, with the confidence card fixed up the Whip’s sleeve.   Without the constant threat of a defeat constituting a real or deemed loss of confidence resulting in an election, all issues are treated as free-votes.


This does not mean that the House of Commons will dissolve into a free for all.   Since caucuses are composed of Members elected from the same political party who were elected on the same platform reflecting common objectives, they are likely to vote on party lines on the majority of issues.  In addition, constant defeat of the government, or defeat on a major issue, will make the government look weak and ineffective, thus diminishing chances of future electoral success.  Members will still want to demonstrate that their “party” is strong and effective.


However, what it does do is empower Parliament.  It requires the government to be more cognizant of risk that its legislation may be amended or defeated.  Members of all parties, including Members of the government caucus, may be encouraged to work to better legislation by proposing and considering amendments without the risk of the result being seen as a matter of confidence.


On the positive side, Parliament is strengthened and remains at the centre of the British constitution.  Governments no longer can dictate legislative results using the threat of elections.  On the other hand, governments are deprived of the traditional means to address parliamentary impasses.  The ability to seek a mandate by allowing the electorate to be involved in determining the issue has been severely limited.  Political impasse is left to fester within Parliament so long as the opposition sees the government, and not itself or Parliament generally, as the target of public discontent.


The movement to limit the power of the Prime Minister to request the dissolution of Parliament based on the politically opportune time for the government, and the shifting of power and the timing of “early” elections to the Parliament elected in the previous election is a welcome change, as is the increased ability of Parliament to  amend and defeat government proposed legislation without the fear of such defeats being seen as a trigger or excuse for elections.  But a law that is so strict as to result in a stagnant, ineffective government and Parliament is not the answer.  A workable middle ground that allows for the resolution of a true parliamentary and political impasse, such as that evidenced by the Brexit “debate”, should be developed.