In what can only be described as an ill-advised, political and some would suggest cynical move, the Federal government has filed an application in the Federal Court of Canada to obtain a ruling from the court that the government does not have to provide documents ordered by the House of Commons to be produced to a Committee. The government argues that the basis that the documents contain information the release of which would be injurious to national security. While there is a real and serious issue of constitutional law and parliamentary practice that must be worked out between the government and the House, there is no role for the courts to play in that relationship.
By attempting to drag the courts into the fray, the government fails to accept the fundamental premise on which it holds constitutional authority and legitimacy in the Westminster system of democracy.
The government gets its authority from obtaining the confidence of the House of Commons. It only has legitimacy so long as it retains that confidence. As the body responsible for confidence, the House must have the capacity to review all actions and decisions of the government. By its refusal to produce the documents, and by bringing its application to the Court, the government does not accept that there must always, and for all things, be democratic oversight and accountability to the House of Commons. This includes matters for which the government, on its own initiative and for its own reasons, claims “national security”. Without the necessary and constitutional oversight by the House, there is no check on the how and why the government places any matter within the amorphous basket of “national security”. The government could thus put almost any matter beyond the scope of review. This is antithetical to the entire concept of confidence and responsible government. As the Speaker in this case, and Speaker Milliken in the Afghanistan detainees document case, made clear, there is no area of activity, including matters of national security, for which the government is not accountable and responsible to the House of Commons. To allow any gap would provide a seed for tyranny.
This does not mean that all such documents provided must become public or be further disclosed. Parliament and parliamentarians have no interest in divulging information that would harm national security. In fact, Members take an oath of allegiance that requires them to act in the best interests of the country. In order to protect matters of national security, privacy and other similar interests, the House has developed various tools and processes to ensure their protection. Using the Afghan documents as an example, a process was worked out whereby the documents were reviewed and used without injurious disclosure. In short, as anticipated by Speaker Milliken, and as hinted at by Speaker Rota, there is a way for both the interests of the House and those of the government to be reconciled, but that reconciliation must take place within the “walls of Parliament.”
The application of the government seeks the intervention of the courts to determine that the government is correct in its assessment of national security, and that as a result the government does not have to produce the documents. But this is not the role of the courts. And, even if for some reason the courts were to intervene and find that the documents fall within the confines of nation security, this determination would not preclude the House asking for them. It might have an impact on how they are handled, but it cannot have the effect of limiting the constitutional authority of the House to see, review and use the information to carry out its constitutional functions. These include, holding the government to account and determining whether the House continues to maintain confidence in the government. The courts have no role in deciding how and on what basis the House holds the government to account. To allow the courts to determine what the House can ask of the government or protecting the government from having to provide information to the House would interfere with the foundations of our system of government. This is not the role of the courts. It is a matter that is constitutionally left to the House and the government to work out.
This brings me back to the application before the courts. The principles of the constitution for our system of government have not only been accepted by the courts, government and Parliament in practice, there are some fundamental legal and constitutional texts that provide a constant reminder to all constitutional actors of the limits of the courts in policing the relationship between the government and the House.
The Constitution Act, 1867 provides that the Canadian system of government is firmly rooted in the Westminster system of government in the UK, and that the House of Commons enjoys the same powers, rights, and privileges of the UK Parliament. At the time of Confederation all participants knew the constitutional rules and framework in place. The knew and accepted that, the fundamental bargain that established the supremacy of Parliament within the Westminster system of government, and laid the groundwork for responsible government, was the Bill of Rights, 1689. This Act effectively made Parliament the ultimate authority for the making of laws and for ensuring that Parliament sat on a regular basis. Most importantly, Parliament was to be able to carry out its business without restraint by the government (Crown) or the courts. The most significant provision for the purposes of the present attempt of the government to use the courts is Article 9 of the Bill of Rights that provides:
“That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
This provision, which has stood the test of time and has been recognized as forming part of Canada’s constitutional architecture by the Supreme Court of Canada, not only protects free speech in the House. It is also a clear constitutional, jurisdictional limit on the powers of the courts. It prohibits the courts from “impeaching or questioning” a proceeding in the House. For a court to make any determination on what documents the House has asked for, why the House asked for them, or how it proposes to deal with them, would clearly involve the courts in “questioning” or “impeaching” a proceeding in Parliament. Similarly, any decision by the court that frames the government’s response to the House or protects and shields the government from parliamentary accountability would also be to question or impeach House proceedings. Constitutionally the courts are precluded from doing what the government asks.
The prohibition in Article 9 also finds its way into the statutory jurisdiction of the Federal Court, the court to which the government has applied. The Federal Courts in Canada are limited in their jurisdiction to determine lawsuits brought against the Federal Crown (the federal government) and to hearing applications for judicial review of decisions made by federal boards, tribunals and commissions (including statutory decisions made by Ministers). On several occasions the Court has held that the House and Parliament are not the Crown and therefore the court has no jurisdiction over the them. These decisions were followed by the inclusion in the Federal Courts Act of a statement of jurisdiction that specifically excludes decisions of the House and its Committees from judicial review:
- (2)For greater certainty, the expression federal board, commission or other tribunal, as defined in subsection (1), does not include the Senate, the House of Commons, any committee or member of either House, ….
It is difficult to see the application of the government as anything other than an attempt to review, impede or otherwise legally interfere with a decision, or series of decisions, by the House of Commons and one of its Committees.
The government is attempting to rely on statutes that are designed to restrain individuals within the government who have sensitive information from disclosing that information without ministerial approval. These laws allow ministers to declare information to be of such a sensitive nature that its disclosure could be injurious to national security, privacy or other identified interests. The purpose of these provisions is to stop or limit public disclosure. They are not designed, nor can they have the purpose of stopping a constitutional body from carrying out a constitutional function. The House is not the “public” generally, nor is it a person or tribunal. It is a constitutional body carrying out constitutional functions. That the House has the constitutional function of holding the government to account is not in dispute. The question is whether the government can rely on statutes, and the courts as interpreters of statutes, to allow the government to withhold information. The problem, as noted, is that the constitution precludes the courts from impeding Parliament in its functions.
The question of the application of statutes within the parliamentary context has been unequivocally answered by the courts. They accept that in the case of Parliament, it is Parliament and not the courts that is responsible for applying the statute. In 1884 the Court of Queens Bench in the UK clearly stated that
It seems to follow that the House of Commons has the exclusive power of interpreting the statute so far as the regulation of its own proceedings within its own walls is concerned, and that even if that interpretation should be erroneous this court has no power to interfere with it, directly or indirectly.
This statement of law has been cited with approval by a number of courts in Canada. The Supreme Court, as recently as 2005, relied on the 1884 decision wrote (with the emphasis underlined by the Supreme Court in the original):
“Historically, the legislative source of some privileges (e.g., art. 9 of the Bill of Rights of 1689) did not diminish the jurisdictional immunity they attracted. In Bradlaugh v. Gossett (1884), 12 Q.B.D. 271, Stephen J. stated, at p. 278:
“I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute-law which has relation to its own internal proceedings . . . .””
What these cases make clear is not that the statutes and the principles in the statutes do not apply. It is just that the House of Commons, and not the courts, are responsible for interpreting and applying them in such a manner as to allow the House to carry out its business. The way the constitutional circle is closed is to place the responsibility on the House to ensure that the principles that underpin the statutes are respected as much as is possible when the House undertakes its work. And the courts cannot second guess (or “pre-guess”) how the House makes those decisions and exercises its responsibilities in light of the statutes. The cases also make it clear that the House is not a law-free, or statute-free zone. It has a responsibility to consider and apply the statutes, but in its own way so as to allow the House to do its business and still protect the interests protected in the statutes. It may not be the same way that the courts or others would do so, since the courts and others look at statutes from their perspectives and their purposes, but that does not mean that they will not be considered and applied within the parliamentary context. As noted above, parliamentarians have no interest in divulging information that has national security implications, or that will invade proper privacy interests. They do, however, have an interest in making sure that government has carried out its functions while respecting its obligations.
The resolution to the dispute between the government and the House does not, and cannot, involve the courts. The resolution lies within the House, of which government Members form part, and to which the government remains accountable. The government must understand that it has to allow full scrutiny and accept that the House and its Members have no interest in compromising national security. The House, in turn, must accept that the government has legitimate concerns for national security and also has the expertise and capacity to assist the House in reviewing and understanding the consequences of disclosure. The House must also accept that once its Members have the documents and review them, it is responsible for any potential release of information. Any resulting compromise of national security is the House’s and not the government’s responsibility. The House and not the government, would be responsible for the consequences.
A process must therefore be implemented to protect all interests. In the same way that the government has been able to develop a process with the courts to allow the courts to carry out their functions when legal disputes involve potential national security issues, they should work with the House to develop comparable processes that allow the House to carry out its functions when national security may be involved.
It may be that the government does not trust the House, and the House may not trust the government. But the mere lack of “political” trust is not a reason for upsetting the constitutional balance and architecture. Parliaments have operated through wars, scandals, economic and political crisis. At the end of the day, all parliamentarians have come to a workable understanding when the national interest is at stake. In a democracy this is how it is supposed to work. In our system of government, it is for the House of Commons along with the government, and not the courts, to build the trust and find the solutions. And if they don’t, that is why we have elections.
It is difficult to see any basis for the government’s application to the Court, or its possible success. There is no basis for the actions of the government other than as a cynical, political stalling tactic. One can hear it now, “Mr. Speaker we don’t know if we can give the House the documents. The matter is before the courts, and we must all as a country subject to the ‘rule of law’ wait for the courts.” Not even raising an eyebrow to the suggestion that the constitution and the constitutional form of government that we have is the supreme law of the country, and that the constitutional accountability function of the House of Commons and the constraint on the courts is the basis for the law of which they speak.
The government should reconsider its application immediately and take the necessary steps with the House to allow the constitution to function the way it is intended. Pursuing the matter through the courts is not only wrong and unnecessary, it is likely to distort the public’s already shaky understanding of Parliament, and further erode trust in Parliament, the courts, and the government.