Month: April 2020

The Hill Times has published my Opinion piece in its paper today.  To read it, click on the link.

Parliamentary Accountability Hill Times

The Covid-19 Pandemic is not only putting extraordinary pressures on medical care workers, governments and economies, but on democratic institutions—Parliaments, Legislatures and Houses of Representatives.  These bodies that are required in democracies to pass necessary legislation, provide funding and most importantly to hold governments to account have been sidelined at best or ignored, by-passed or stripped of power at worst.

No doubt the circumstances require expediency, efficiency and flexibility.  But these goals need not be achieved at the expense of democracy, transparency and accountability.  As governments are required to spend trillions of dollars, expand and create social programs, and make decisions over life and death of millions of people, democratic representatives of those people need to have the right and ability to hold governments to account for how they are managing the crisis and the funds and resources allocated to it.  The fact that it may be necessary to grant governments emergency powers requires a parliamentary grant, recognition or endorsement of such powers (and expenditures) as well as the ability to hold the government to account for their use.

At the same time the parliamentary systems, rules, practices and in some cases constitutional constraints were established and continue to use methodologies that are hundreds of years old.  They require in person meetings, in a particular place, following particular procedures.  All of which can be easily be deemed or argued to be impossible when there are restrictions on the size of gatherings, travel restrictions and individuals who require to quarantine themselves.  But these can be seen as mere excuses.  In most of the world, millions of people are able to work from home, and businesses, particularly those based on information, are able to continue to function.  More importantly, governments, at least at the highest levels, seem to have no problem continuing to meet, make decisions and communicate their messages.  They do so without legislatures, often without opposition or democratic accountability.  The same technologies should be considered and leveraged to ensure that parliaments do not become casualties of the pandemic.

Parliamentary institutions may be old, but they are not inflexible.  As centuries-old institutions they have evolved and developed different ways to do what they do.  There is no reasons for not considering how parliaments and their members can at least carry out their core functions.  There may be technological challenges that will have to be overcome, particularly when up to 650 individuals (UK House of Commons) located in up to 650 locations have the right to participate.  But these are different from the somewhat spurious or at least unimaginative legal, procedural and constitutional arguments currently being raised.

Merely recalling the House when adjourned on an urgent basis, with a limited number of members to protect social distancing, in order to pass legislation and then having it adjourn again is not sufficient (Canada).  Less so is indicating that the House will only be called when constitutionally necessary, (reportedly the position in Australia).  The best hope so far is the UK, where the Speaker of the House of Commons, heeding the pleas of the opposition to design a process that allows ongoing accountability, has written to the Government House Leader encouraging him to propose rule changes to allow remote sittings of the House (such remote proceedings have been used by at least one Committee). Although it is not perfect to invite the government to propose rule changes, at least the Speaker has recognized the importance of the House of Commons continuing to function as an accountability body, not just as a legislator acting at the behest of the government.

Parliaments are independent constitutional entities that have the capacity to establish their own rules and practices to carry out their constitutional functions.  There are, few real legal limits on this constitutional foundation.  Other than for constitutional limits, which are few in Commonwealth Westminster systems based on parliamentary sovereignty, courts are precluded from inquiring into and judicially reviewing parliamentary proceedings and processes.  This has a long pedigree stretching back to the Bill of Rights, 1689 and was recently confirmed in the Supreme Court of Canada decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40.  This is the case both for process (Mikisew) and legislation (Pickin v. British Railways Board, [1974] A.C. 765).    The question really becomes what rules need to be modified and how will any new process be implemented.

There are a couple of points that will have to be borne in mind when considering how to go about a revision of rules.

The first is that all Members must be taken into account.  All Members are equally elected, although some have specific additional roles as Speaker, Ministers, Opposition Leader, Party Leaders and House Leaders.  While we focus on the “main players” we cannot lose sight that a means must be found for all to be present (or accounted for) and participate.

We also need to recognize that however Members and others participate, they are participating in a proceeding so that their work remains constitutionally protected by parliamentary privilege.  There is no particular physical limit on what constitutes a proceeding.  A parliamentary proceeding is a properly constituted meeting to carry out the collective constitutional business of the House.  So long as the House is in session (i.e. not prorogued or dissolved) it can meet when, where and how it chooses.  If a meeting is conducted under the authority of the Speaker in a manner agreed to by the House (usually through its rules which are self-policed) the meeting is a proceeding.

Certain constitutional provisions relating to royal recommendations, three votes per Bill, and quorum requirements need to be met.  Occasion must also be allowed for statutory tabling of required reports, answers, and petitions.

Finally, the processes must be agreed to by all Members.  They cannot be established by the government and imposed using its majority in such a way as to limit the rights of each Member or limit accountability.   It may be tempting for example for the government to note that a quorum is twenty (Constitution Act, 1867 s.48) and therefore only a majority of Cabinet and the Speaker need be assembled as House of Commons.

The process of establishing rules must be as inclusive of all Members as possible so that even these rule changes do not become yet a further way for party leaders and House Leaders to impose even greater discipline on who from a caucus gets to “sit”. This may be a real temptation where quorum may be met but real or cyber space is limited.  Consideration must also be given to the participation of independent members and small parliamentary groups and caucuses. New rules and procedures may need to be developed in the face of such limitations, but that is for the whole House and not a small few to decide.

Technology is available that allows for group meetings, normally for smaller numbers, but there should be a means to scale them to allow for all necessary to observe who is speaking and to indicate their desire to participate and be called upon.  There may also be a means to have some Members in the chamber and some attending remotely.

Where there needs to be smaller proceedings, then the decision of who participates should be left up to the various party caucuses (meeting remotely) to decide, not merely the leaders.  More could possibly be accomplished in writing with Members receiving information, such as draft legislation in advance.  Tabling of Bills, even electronically could be deemed acceptance on First Reading, then immediately referred to Committee for immediate all-party consideration.  The Committee could then consider the Bill remotely and report back to the House for subsequent second and third readings.  Such an approach could provide greater chance for agreement before any meeting of the whole House.

There is no legal or constitutional reason that voting take place in person at the same place.  What is important is that the integrity of the vote is maintained, and it is clear which Member voted and how they voted.  In the US there has been great concern that the system could be hacked or otherwise manipulated when there is remote voting (a technical not a constitutional or legal constraint- see March 25 Majority Staff Report to the Rules Committee) ; however, if the vote is reported in such a way that each Member sees how their vote has been recorded, with an opportunity to correct any “error”, this should not be insurmountable.  Proxy votes (if necessary) and pairing can also limit the number of votes required.

Of course, there may need to be a number of consequential amendments to the Rules and Standing Orders to flesh out the procedures. But once the basic framework is worked out, they necessarily follow.

One last point, a decision may have to be made about when these new or extraordinary rules and practices will come to an end. Again, this would be a decision for the House, not the government, to make.

In order to protect the role of their institutions in these extraordinary times and to protect against government abuse, it is necessary that each national and sub-national legislative assembly establish or direct a rules committee to convene (remotely) to consider the changes required to allow them to carry out not only their legislative functions at the whim of the government, but their function to hold government to account for the exercise of its extraordinary powers over health care, restrictions on civil liberties, and spending.

Who knows, maybe some of these changes can be taken as an opportunity to modernize the procedures and practices of the House while leaving the constitutional purposes and functions of Parliament intact. Some changes may allow for more family-friendly flexibility, health-related absences and fewer in-person meetings (particularly Committees) which require travel with its environmental costs. Such rule changes would also provide flexibility to deal appropriately with future extraordinary recalls of Parliament in emergency situations.