Protecting Democracy

The images and events of January 6, 2021 when thousands of protestors, insurgents, insurrectionists, or patriots (depending on your point of view) physically assaulted the US Capitol Building require reflection, investigation, and response.  What is equally troubling is that at the time, both the US House of Representatives and the US Senate were in session to certify the votes of the electoral college that would formally make Joe Biden President of the United States. More significantly the vote would confirm that Donald Trump had lost the election.  This was something that the insurgents would not accept and were bent on physically stopping.  And if it took physical violence, including assassination, so be it. 

All that seemed to immediately stand between the insurrectionists and their objectives was the United States Capitol Police.  This small, specialized police force has as its mandate to “Protect the Congress—its Members, employees, visitors, and facilities—so it can fulfill its constitutional and legislative responsibilities in a safe, secure and open environment.”  It was created shortly after the Capital was moved to Washington.  Its members operate independently of other police and are under the direction of the two presiding officers.  Their physical jurisdiction includes the Capitol Building, offices of the Legislative Branch and the Capitol Grounds (126 acres). 

As a result of the events of January 6, a review of security and the systems in place, including the efficacy of the US Capitol Police, is underway. 

Unfortunately, the pattern of events and follow-up are not unknown in other democratic countries.  For example, on the morning of October 22, 2014 I had business in the Security Office of the Canadian House of Commons.  Just as I arrived, I was met by a “scrambling” of security personnel to respond to an armed intruder entering the Parliament Buildings.   The parliamentary security personnel managed to secure the rooms in which Members were holding their caucuses and, backed up by the RCMP, they were able to isolate, shoot and kill the intruder.  The incident was followed by an investigation, which included the inevitable questions of how an armed intruder who had shot a military guard at the National War memorial (policed by the RCMP and local police), was able to cross a major street (policed by local police), cross the lawns of the precinct (policed by the RCMP) and enter the Parliament Buildings (protected by House of Commons and Senate Protective Services) before being confronted.  Not only was the specific incident the focus of the inquiry, so were the questions of the multiplicity of policing and security personnel, interoperability, communications, authority and accountability.  The result was the statutory creation of the Parliamentary Protective Service with authority shared between the two Speakers and the RCMP.  Although the Canadian experience was on a smaller scale than that of January 6, both incidents (and similar incidents around the world) raise questions and concerns relating to the security of democratic institutions. 

The initial reaction to such incidents seems to cast a critical eye on the internal security and policing personnel within the legislature, and their alleged failure to do their job. This shallow analysis results in a first response, often by a number of parliamentarians, that the answer to the security question is to do away with specialized security and to allow established national policing organizations to provide the necessary policing and security.  Their members are fully trained and resourced. They can provide seamless security both inside and outside of the physical buildings and grounds, with a greater geographical perimeter. There will be no communication or operational gaps or delays. And, they have significant personnel reinforcement and co-ordination capacity. However, on reflection the use of “regular” police services may present more difficult problems than the one sought to be remedied.

One only need consider that in most countries the “regular” police serve and are accountable to the executive.  They report to a Minister, Attorney General or Secretary of State who form part of the Executive branch of the State.  These officials, in turn may be accountable to the Lower (or only) House or Assembly or be subject to the various “checks and balances” inherent in states with constitutions that depend on varying degrees of separation of powers between the executive and the legislative branches.  Depending on the nature of the relationship between the executive and the Legislature, there are times when the executive is the greatest threat that the legislature may face. In some countries, the use of police to harass and interfere with assembly members and proceedings is not unheard of. 

And, although, virtually unthinkable a year ago, the President of one of the world’s “great democracies” has been impeached for inciting an insurrection aimed at Congress.  Had the internal protection and security of Congress been under the “control” of the military (whose commander in chief is the President) or federal police (whose Director could fall under political pressure from the President) the divided loyalties and constitutional concerns could have been considerably more distressing than those exposed by the impeachment proceedings.

In the Westminster system, the independent security for Parliament has roots more than 600 years old.  In 1415, the King gave one of his Sergeants-at-Arms to Parliament, in essence to provide security.  The Sergeant, once appointed, took direction from the House and not the King.  The appointment was part of the King’s responsibility to “provide ease and tranquility of those that come to His Parliament”.   In the run up to the English Civil War, the King, for the last time in history, entered the House of Commons.  He came with men at arms (police equivalent) to arrest certain members for treason.  His actions exacerbated the tensions between the Crown and Parliament, resulting in a Civil War, the execution of the King, and ultimately the Bill of Rights¸1689 that cemented the independence of Parliament from the Crown.  Throughout this time, and to date, the independence of the House of Commons has been assured through a system of security and policing that is ultimately managed by the Speakers and the Sergeant-at-Arms.

It is proper for there to be an investigation following any major breach in security.  It is also inevitable that the call may be made to abolish internal policing and security as not up to the job and that it ought to be replaced with “normal” or “regular” police.  But policing goes far beyond security, and creates a real risk that the executive might use is responsibility to police to carry out or support physical and other threats to the legislative branch. 

Policing is more that addressing threats to physical integrity.  There are other potential police and state intrusions into the legislative branch that would be more corrosive of democracy.  The powers of investigation, search, and arrest (the lifeblood of policing activities) pose equal, if not greater, dangers.  Use of the capacity to gather information from legislative and political opponents for use against them would be the end of independent legislatures.  It is protection from these threatened activities that is the basis for many of the parliamentary privileges enjoyed by legislative bodies and their members throughout the Commonwealth and around the world.  The freedom of speech, the protection from molestation and obstruction, and freedom from arrest, among others, are manifestations of the protection of Parliament and its members from interference, including investigation, by state actors from outside the legislative branch. As noted above, the constitutional entrenchment of the independence of Parliament and its assertion of rights effectively flows from a botched arrest.

More recently, investigations into police raids on members’ offices in both Washington ( Rep. Jefferson) and London (Green MP) sparked understandable outrage from members of the House of Representatives and the House of Commons.  In the United States the search of the office was found to be unconstitutional based on the speech and debate clause (loose equivalent to Article 9 of the Bill of Rights 1689). In the UK the Sergeant-at-Arms lost her job and the House resolved a protocol that controlled the execution of warrants within the precincts and MP’s offices.

Allowing police into a legislature without significant Assembly (or House) oversight, direction and accountability is both wrong and dangerous in a democracy.

This does not mean that legislatures are lawless and that legislators are above the law.  What it does mean is that the provision of security for, and administration of law as against, legislatures and legislators is complex and requires careful thought and calibration.

Members and their legislative institutions must be safe and secure.  They must also be independent from any potential interference from outside influences.  In both cases the greatest threat is domestic and there is always a risk that “attacks” (both physical and otherwise) on the legislature may be supported or encouraged by the executive, which fears democratic oversight, accountability, and potential loss of power.  As a result, the ultimate decisions relating to the security of, and policing within, the assembly buildings, or precincts, must rest with the assembly itself.  It may be that the answer is to have a dedicated security and/ or police service under the direct supervision and control of the presiding officers.  Other models include arrangements with local or national police to provide such services but under strict rules based on constitutional authority.  Such contracts must recognize that when carrying out any functions pursuant to the arrangement the “police” are acting under the authority of the presiding offers, from whom they must take orders and seek authority, both in the exercise of their duties and in the sharing of information with their “usual” superiors.  This way, both the security and the constitutional independence and privileges of the assembly are protected.

This conclusion is not to suggest that there ought not to be an inquiry into what occurred. Since it involves security and policing of the legislature, the legislature must take the lead and ultimately decide on any recommendations made.  No doubt some concerns raised will focus on weaknesses with the Capital Police (or parliamentary security forces and arrangements) and problems with communication and co-ordination with those responsible for security beyond their jurisdiction. These will need to be addressed, and some organizational and operational structures may need to change.  But that cannot be the end of the inquiry.

On both January 6 in Washington and October 22, 2014 in Ottawa, the “incident” began outside the jurisdiction of the internal legislative security force.  The perpetrators came from beyond the precincts. And that area is the responsibility of public officials (i.e. the executive).  The failure to understand and protect against the threat to, not within, the precincts is a more significant question.  What steps did the outside forces take to protect the democratic institutions in their midst?  Were the decision makers complicit in leaving the boundaries of the precincts liable to being overwhelmed and breached? 

This in turn raises even more serious questions relating to policing authority and operational independence from executive decision makers.  The concerns identified at the beginning of this post that suggest the need for independent security for legislative assemblies are heightened by every degree to which there is concern that the police, and those responsible for the perimeter security, are subject to executive direction.  One of the more constitutionally chilling comments of protesters on January 6 was their yelling at Capitol Police that the President was their boss.   Even if this is impressionistic, it is troubling for democracy and more troubling for democratic institutions. 

An examination of physical violence against a legislative assembly and its members must not be allowed to be cover for an attack on and “reform” of internal legislative security, particularly if the potential is to replace it with “regular” policing.    Such security personnel carry out a specific and limited, but constitutionally significant, role of ensuring security for, and independence of, another branch of the state.  Legislators must be able to rely on the greater apparatus of the executive state to literally keep the barbarians from the gates, and to allow internal security personnel to keep order within.  Independent legislatures must be allowed their independent constitutional and physical space to carry out their functions that are at the heart of democracy.  Legislators must be secure in the knowledge that they can rely unconditionally on the loyalty and capacity of those who provide security within that space.  The rest of us must also make sure that the government takes the necessary steps on our behalf to protect the legislative perimeter and reliance on a properly trained, and supported, independent legislative security service is a last resort.