Month: March 2019

Following the vote of the UK House of Commons on March 25 enabling it to give direction on how Brexit ought to be managed, there have been assertions by the Government members who claim that Parliament was attempting to usurp the constitutional authority of the government. Others argued that such a wresting of power from the government was unprecedented and constituted the basis of a constitutional crisis.

What has occurred may be unprecedented, but only because it is the first time a parliamentary impasse has arisen in the era of fixed election dates.

The Fixed-term Parliaments Act changed the constitutional relationship between Parliament and the government. The Act is a constitutional statute, being one that affects an aspect of the constitution or how certain parts of the constitution are to operate. Its adoption should have anticipated greater parliamentary pushback and greater involvement by Parliament in the affairs of government without the government considering such involvement as a demonstration of no confidence resulting in the dissolution of Parliament. What was not anticipated was how parliamentary impasses of a significant impact were to be resolved.

Prior to the enactment of the Fixed-term Parliaments Act, an impasse in Parliament on a matter of great national import, often between the House of Commons and the House of Lords, was resolved through the government attempting to control the House of Commons by considering such matters as matters of confidence thus demonstrating parliamentary cohesion (see my earlier post www.lexparl.com/2019/01/13/brexit-and-the-true-face-of-fixed-election-dates/). If this was not sufficient to resolve the issue the government would have request the Queen dissolve Parliament with the result being an election on the issue. In such circumstances those who lost the resulting election would accept the matter at an end and that the election provided a definitive and binding result akin to a referendum.  This was even the case when those who “lost” the election still had the ability to block the policy that led to the impasse and the election.

Issues that were significant and addressed at elections often lead to constitutional changes. For example, a budget impasse led to the convention in the House of Lords that it will not impede legislation that was specifically the subject of the election campaign. And more strikingly, there were significant changes to the relationship between the House of Commons and the House of Lords following a decisive election on Irish Home Rule. In both these instances, an election was seen not only as a vote for the establishment of a government, but specifically as a referendum on the issues.

Now, with the Fixed-term Parliaments Act, the option of an election to end an impasse is not a ready option. Governing with the confidence of the House of Commons is somewhat divorced from any particular issue. The nature of an election as a “referendum” on a policy, no matter how major, is not easily put in place. However, a referendum is now an option. And, I would suggest, in the present circumstances is the only option that is left to both the government and Parliament. As a result of the Fixed-term Parliaments Act it would appear that a referendum has replaced elections as the safety valve for addressing parliamentary impasses on significant issues.

The extraordinariness and unprecedentedness of Parliament attempting to control the government does not flow from the issue of Brexit. It primarily flows from the effects of the Fixed-term Parliaments Act, a constitutional change. The “unprecedented” nature of the situation of Parliament taking control and attempting to address a “failed” government policy cannot be measured against the past where elections provided that the way forward; but rather, it must be examined in light of the new constitutional reality envisioned by Act.

The new constitutional reality also includes the added constitutional tool of a referendum (something that was previously rare in Westminster system of government). Its use must now be considered in light of the changed constitutional reality of fixed election dates. A referendum is also a particularly useful tool for resolving major constitutional changes such as Brexit, that cut across party lines. In the present circumstances it is, I suggest, the only way for the parliamentary impasse to be resolved.

As to the form of the referendum, this is a question that may bedevil Parliament since it seems there are three, rather than two, realistic outcomes. Framing the question so as to obtain a definitive answer in such circumstances may seem impossible. I would suggest, however, that there is a way to conduct a referendum that respects constitutional history and would provide a definitive results.

As a first step, the government’s proposal should be put to the population as a means to gauge public support. This would be consistent with the prior practice that saw elections as referenda. The issue of the remaining two possibilities only arises if the government proposal was defeated. A second referendum to address these two options would be difficult and quite divisive. I would suggest therefore that they be added as a second question and that the ballots only be counted (or results disclosed) if the first question is defeated. As a result, the ballot questions could be structured as follows:

1. The government proposes that the United Kingdom leave the European Union in accordance with the withdrawal agreement reached with the European Union. Do you agree that United Kingdom leave the European Union in accordance with this agreement? (Yes/No) 

2. If the result of the vote on question 1 is that the United Kingdom not leave the European Union in accordance with the agreement should the United Kingdom,

a) leave the European Union without an agreement, or

b) revoke the notice under Article 50 and remain in the European Union?

Such a referendum would provide all three options in a structured fashion and provide a definitive result.

The Brexit situation illustrates the unintended consequences of enactments of a constitutional nature that are not fully thought through. In this case the Fixed-term Parliaments Act clearly gave the House of Commons greater ability to hold the government to account both for policy decisions and legislation by allowing it to criticize the government, and from time to find time defeat it without triggering an election. It also allowed Parliament rather than the government to have control over the timing of a premature dissolution of Parliament. However, the Act provided no mechanism for the government or Parliament to resolve a major constitutional impasse between them. Unless they could work out the disagreement the problem was left to fester within a deadlocked institution. There was also little thought given to the relationship between referenda and elections and the likelihood that there may be more referenda if elections were not plausible. If there are to be fixed term elections and little possibility of elections to resolve parliamentary impasses, then serious consideration must be given to whether and when to use referenda or to develop other appropriate means for resolution.

In the meantime, a referendum seems the only means available to address the Brexit impasse.

In a televised address on Wednesday evening, UK Prime Minister Teresa May blamed Members of Parliament for the apparent failure to obtain an agreement on withdrawal from the European Union. In the course of her address she made two remarkable statements. First, she indicated that members of Parliament, all of whom had been elected in 2017, were acting against democracy and the democratic will of the people and that she alone was acting in their interests. Secondly, in a thinly veiled attack on the Speaker of the House of Commons, she blamed her inability to move forward on “arcane procedural rows”.

 

The reference to arcane procedures is clearly directed at the decision of Speaker John Bercow who had determined that the government could not introduce, a third time, the same proposal to the House of Commons that had been rejected by the House on two previous occasions. In making his ruling the Speaker relied on 400 years of precedent. These precedents are firmly rooted in concepts of parliamentary sovereignty, responsible government, and checks on attempted abuses of authority by the Crown. Parliament is a check on government power not a checkbox for its exercise. It is not permissible for the Crown (the government) to browbeat elected representatives into submission.

 

In addition to the difficulties in moving the Brexit file forward, the Prime Minister has attempted to diminish the significance of Parliament, which is the anchor for the British Constitution. The concept of parliamentary sovereignty whereby Parliament makes the laws as well as holds the government to account is considered by many as the foundational guiding principle for the British constitution. For the Prime Minister to attack that institution as being undemocratic and unrepresentative of the people of United Kingdom is to attack the British Constitution itself.

 

The attacks by Prime Minister May on Parliament and its ability to thwart the will of the government, or at least to support the government’s agenda or position on a particular issue or policy is not unique to the United Kingdom. The government of former Canadian Prime Minister Stephen Harper was found in contempt by the House of Commons and lost a vote of confidence on that finding. In the early days of the subsequent election campaign the position of the House of Commons was dismissed by him as a mere procedural speed bump. The dismissal of elected representatives and the institutions that they are elected to as mere obstacles to government and that are only interested in procedural game-playing is to attack democracy and the people themselves. It undermines the Constitution and the confidence that the population needs to have in their representative institutions as both legislators and checks on overreaching authority of governments.

 

It may be argued that this is now somewhat less significant in Canada since individuals have the ability to curb the abuses of government by challenging government decisions in the courts on the basis that such abuses constitute an infringement of individual constitutional rights. The Canadian Charter of Rights and Freedoms, enacted in 1982, provides some judicial backstop for the protection of individual rights and freedoms as against certain acts by the government. Since then there has been a marked shift in public perception and approach to major constitutional issues from Parliament to the courts. This, along with the centralization of authority in the Prime Minister’s office and social media with its perceived democratization, has strained relationships between prime ministers and the House of Commons. It also seems to have diminished respect for the House of Commons as an institution. But at least, some will argue, the courts have been brought into the constitutional equation to fill the gap left by a perceived lessening of parliamentary accountability.

 

With Brexit, the same cannot be said the United Kingdom. It is only because of United Kingdom’s membership in the EU and the European Commission that the rights of individuals in United Kingdom are legally protected from government abuse through the Human Rights Act, 1988. Assuming that Brexit occurs, the intention or consequence will be that recourse to such rights protection may be lost or altered significantly. As a matter of constitutional law in United Kingdom will primarily revert to a constitutional system in which parliamentary sovereignty, in some shape or form, will become once again the cornerstone of the British Constitution. The same institution that the Prime Minister denigrated and attacked will become the institution responsible for the protection of rights freedoms and liberty of the people of the UK and its “arcane procedures” will be the bulwark of protection of those rights freedoms and liberty. To attack the institution and its centuries old procedures designed to protect against the abuses of authority when it will be the primary institution responsible for establishing the way forward for the protection of rights and the accountability of government as a result of Brexit espoused by the government seems somewhat perverse.

 

It is important that the UK Parliament continue to take its role seriously and to ensure that its rules, practices, and procedures are respected now. If Parliament cannot use its “arcane procedures” to protect itself and the people its Members collectively represent from the abuses of government then there is no telling how future bullying by government will be met. If Parliament fails to adhere to its own practices and procedures and allows the government to belittle and undermine its authority and sovereignty now, one must ask how it will maintain or recapture its authority once Brexit has occurred. Nothing but how the rights freedoms and liberties of the UK population will be protected, and by whom, is at stake.

An allegation of potential wrongdoing has been made against the government.  The government denies the allegation and attempts to frustrate inquiry into the allegations.  The opposition immediately demands a public inquiry.  How often have we heard such demands?  Does anyone stop to consider when and why such demands, and a resulting inquiry, are not appropriate;  when such an inquiry threatens, rather than aids, accountability?

A recent story in the Globe and Mail alleges that there may have been interference by the Prime Minister, or individuals in the Prime Minister’s Office, in the prosecution of the large Quebec engineering company SNC-Lavalin.  It is alleged that they attempted to influence the then Attorney General Jody Wilson-Raybould to direct the Public Prosecutor’s Office to use a recently enacted diversion program to allow SNC-Lavalin to avoid criminal prosecution.  Whether or not such interference took place, no such direction was issued.  Both the Clerk of the Privy Council and the former Attorney have testified before the House of Commons Standing Committee on Justice.   The Prime Minister and the former Attorney General take different positions on whether the interactions between the various public officials and the then Attorney General were “inappropriate”. The allegations, if true, and considered inappropriate, could have serious political consequences for those who exerted the influence.

As one would expect, the Opposition, fulfilling its role, has sought a full examination of the allegations.  In addition to the avenue of Question Period, they have brought a complaint to the Ethics Commissioner (which has been accepted for investigation) and have convinced the Standing Committee on Justice of the House of Commons to review the matter.  In order to allow the former Attorney General to testify the government has substantially waived both solicitor-client privilege and cabinet confidence restrictions.  However, the Committee, a majority of whom are government members, has not accepted the entire list of witnesses proposed by the opposition members, nor are they prepared to ask the government to extend the waivers to cover the period after the former Attorney General was moved to a different cabinet position and her resignation from cabinet.  Frustrated by the decisions of the Committee, at least one party in the opposition is seeking a public inquiry.  There is also a movement by opposition party Senators for a Senate committee to investigate.

The demands for alternate investigations, particularly the demand for a public inquiry is not appropriate and would distort the constitutional accountability framework for addressing alleged political misconduct.  The Supreme Court of Canada in Vaid v Canada (House of Commons) 2005 SCC 30 undergirded the centuries old democratic principles of responsible government by recognizing the constitutional functions of Parliament (particularly the House of Commons) as “legislating and deliberating, including holding the government to account.”   For Members of Parliament to immediately jump to a position that a public inquiry is the only way to “get to the bottom” of an issue of political accountability and alleged misbehaviour by a Prime Minister or those acting on his behalf is to suggest that Parliament abdicate its constitutional functions.

Despite the attempted comparison with the Sponsorship Inquiry (Gomery), this situation is in no way equivalent.  In that instance, the matter involved not only the examination of a government program, from a government perspective, but alleged political party connections and business dealings, as well as witnesses from outside the government.  In the present case, all of those involved are inside the government, or under the direction of, or accountable to, a Minister (including the Prime Minister) and through a Minister to the House of Commons.  This is a clear and contained question of ministerial and prime ministerial accountability for decisions that they or those responsible to them made. The decision in question was within the mandate of the Minister of Justice, and Attorney-General, pursuant to at least two statutes—the Department of Justice Act and the Criminal Code.  The situation further involves alleged pressure by cabinet colleagues, including the Prime Minister, on the person responsible for making those decisions.  This is the stuff of Parliament, not an administrative decision maker, which a Commissioner under the Inquiries Act is, or the courts.

When considering a public inquiry, one must also be aware that there are huge constraints and problems that come with the establishment of a public inquiry, particularly for addressing accountability.  First is the fact that an inquiry is established by the government.  The Governor in Council establishes the inquiry and sets its mandate.  Indeed, the function of an inquiry is to provide a report with findings to the Governor-in-Council (i.e., the very cabinet ministers whose actions are under examination). Second, there is considerable cost and delay in the establishment of an inquiry since not only must the mandate be established, a commissioner must be found and the entire supporting administrative apparatus put in place and financed.   The process itself will often take significant time to set up and where interests of individuals may be at stake, everyone “lawyers up”.   From that point forward the entire process becomes legal in nature, involving stricter rules of evidence, and relevance.  Document production, standing determinations and witness lists can all take a long time to complete.  The proceedings will become quite complex if there is going to be any finding of wrongdoing or responsibility.  An inquiry cannot establish, nor suggest, criminal culpability (neither can a parliamentary committee). As regards privileges, in addition to solicitor client privilege and cabinet confidentiality, there is likely to be added the issue of parliamentary privilege since a Member of Parliament, including a Minister, can assert the privilege of not being required to answer a summons for forty days before and after a session of Parliament.  Although this can be waived, it must be done by the entire House.   And the entire process is subject to judicial review.  Finally, from an accountability perspective, a parliamentary inquiry keeps the issue alive and in parliament on a daily basis.  The government cannot hide behind the time-honoured practice of kicking the can down the road and over the fence to a public inquiry then argue that they cannot comment since doing so would interfere with an external process.

“But”, those who insist on a public inquiry cry, “it is not possible for a parliamentary committee to get to the bottom of these issues.”  This is not true.  They cite as “facts” that a parliamentary committee cannot delve into these matters because of the composition of the committee (government controlled by numbers), the committee processes (short rounds of questioning and partisan posturing), and the apparent lack of powers and resources (no way to compel answers or make decisions stick, and little administrative support).  However, none of these constraints are imposed or fixed by any external legal or constitutional imperative.  They are all concerns that arise within Parliament and can be remedied by Parliament.  Parliament has all the tools and powers it needs to address its own concerns.   Parliament has full authority over its own constitution, including its committees.  It can establish whatever committee it chooses. It can mandate the committee to inquire into whatever Parliament wants with respect to the government that is accountable to it, or it can allow the committee to establish its own agenda.  It can set the committee’s composition which does not have to be based on proportions of seats in the House, nor chaired by a government member (see for example the Public Accounts Committee).  Each committee can set its own process for questioning and tailor that process to the matter at hand.  It may be that chopped-up rounds of questioning are not appropriate.  The House of Commons has its own lawyers and clerks to assist it in putting its proceeding together and preparing requests for witnesses and documents.  A committee could engage counsel to assist it in preparing organizing and preparing questions.   Questions are not limited by legal constraints and rules of evidence and can stray into tangential political considerations.  Committees have full powers to send for people and papers, and if necessary, can have the papers subpoenaed, or warrants issued for a witness’ attendance (for example, when examining Airbus pay-back scheme, a warrant was issued to have an incarcerated witness, Mr. Schrieber, brought before a Committee).  It can compel any documents within the government even in the face of claimed statutory protections (for example the House order that government documents relating to Afghanistan detainees be produced over the objections of the government that they were protected from protection because of a national security exemption found in statute).  It can compel otherwise privileged information, albeit while courting considerable pushback (see recent UK Parliament decisions to compel Attorney General’s advice to UK Cabinet concerning Brexit).  It can compel attendance of internal government witnesses by holding Ministers in whose department they work accountable for non-attendance.  They can protect witnesses by parliamentary privilege, again holding ministers accountable for any reprisals.  Most importantly, they can quickly establish a process and have public hearings within days using existing tools, resources and powers.  Finally, their proceedings or findings are not reviewable in the courts.

The issues, concerns and questions raised about committees are internal to Parliament and can be fixed by Parliament if it so decides.  The way to address these concerns is, I suggest, to consider such “reforms” to allow the House and its committees to perform their role in holding the government to account, rather than abdicating these functions to others.  There will always be a tension between the government, that enjoys the confidence of the House, often with a majority of seats, and the opposition that generally exercises the lion’s share of the responsibility to hold the government to account.  And the middle of a “crisis” or parliamentary proceeding may not provide the best timing to introduce changes.  But when the dust settles, it may be time to consider the best way to approach how any government can better be held accountable to the House.   If everyone stops for a moment and considers that those in government will likely find themselves in opposition some day and vice versa, it is in everyone’s interest to put a better framework in place to allow for Parliament to carry out this role.

When doing so, the House may consider the fact that the holding of government to account for its actions or inactions, is different from legislating and holding the government to account for its legislative agenda.  There is some logic to the way committees are structured and function at present in light of the perceived need for efficiency and expediency of the government fulfilling its mandate though legislation.  Many of the rules of the House and its committees were put in place to assist in the legislating process and it can be argued it is the government’s prerogative to use its majority to fulfill its legislative agenda.  The same cannot, and should not, be said for the processes required to hold the government accountable.  This is already, to an extent, recognized by those committees that have an oversight role— the Standing Committees on Public Accounts, on Access to Information, Privacy and Ethics, and on Government Operations and Estimates. In those Committees, for example, the Chair of the Committee is a member of the opposition.  Perhaps a change to the Standing Orders should at least provide that when dealing with non-legislation matters and the conduct of a Minister, the Chair should be a member of the opposition.  Consideration could be given to also ensuring that there is an equality of seats on the committee between the opposition and the government (plus the chair).   In addition, the processes within the committee could be quite different so that continuity of questioning is not lost.  Although modest, these changes might at least be a start.

It is worth noting that the Committee and the opposition members have already been able to push the agenda and obtain considerable progress in a public way on this file despite the perceived constraints.  Within a couple of weeks, the committee has established public hearings, heard testimony from the Clerk of the Privy Council, pressured the government to substantially waive both solicitor-client privilege and cabinet confidence (an historic concession) and established significant concern within the body politic over the propriety of the actions of a Prime Minister, senior public servants and the former Attorney General.   Although some might suggest that it is, or would have been, better for someone else to inquire and decide, I respectfully disagree.  This is a matter of appropriateness and political decision making and pressure.   It is up to Parliament, and ultimately the public through the election process to determine whether lines have been crossed to the point that a government should be replaced.  In our system of government this is how it is supposed to work.

All of this is not to suggest that the question of potential interference in prosecutorial discretion is not serious or important.  There are many reasons for the principle against political interference in such decisions.   In addition to the political backstop outlined above there are cases where the courts have stayed charges in the underlying case, and where there has been consideration of criminal charges, in the right circumstances, of obstructing justice and breach of trust.  But these are matters for the police and the courts.  As for the political issues, these are a matter for parliamentary and political oversight, conclusions and consequences.  It is the responsibility of parliamentarians through their processes, and the public through elections, to judge and decide the fate of those involved.