We Have Put the Speaker in an Unenviable and Untenable Position

There is a paradox to being Speaker of the House of Commons or a provincial legislative assembly in Canada.

Speakers of the House of Commons and provincial assemblies are elected from the membership of the assembly and therefore were elected in a constituency under a political banner, often that of the majority party in the House.  They are politically partisan immediately before their election as Speaker.  However once elevated to the position of Speaker take on the mantle of impartiality as well as the responsibility to ensure that the rights and privileges of all members and parties in the House are protected.  Not only are Speakers expected to ensure fairness in debate, but they are also responsible for allowing the House to hold the government to account and to protect the independence of the House from interference from all outsiders, including the government.   While government Ministers sit as members in the House, in their capacity as minister, they act outside of the House.   The tensions between the House and the government are able to be resolved based on the neutrality of the Speaker.  Neither favouring the government nor the opposition allows the Speaker the necessary independence to be a servant of the House.

At the same time, Speakers are required to seek re-election to the House at the next election.  And in Canada, they do so under the political banner of one of the political parties, in a fully contested partisan election.   Like all Members who will seek re-election, during a Parliament the Speaker as member and future candidate must be able to attend to the needs of their constituents with issues they might have with the government; must engage with their political constituency association, fund-raise for themselves (an by extension their party); be able to communicate with constituents on parliamentary matters;  and, engage with constituency stakeholders  who may be seeking assistance with government programs and ministers.  They must also seek and win the party’s nomination, and support and defend their party’s platform and record at the election.   Except for during the election period, these activities will take place while the person holds the position of politically neutral Speaker.

Over the last decade, there have been various times when there has been a collision, or near miss, at the intersection of these “requirements”.   One Speaker did not see the role of Speaker as a position to aspire to as the pinnacle of a parliamentary career, rather he saw it as a stepping stone to a post as minister, and leader of their political party.   Another Speaker acknowledged a constituent, on behalf of the House, for their community service, who unbeknownst to him was a former Nazi, and as a consequence was forced to resign.   A Speaker faced a vote of confidence for video well-wishes for a former party leader (at another level of government), while wearing his robes.  The same Speaker had a summer picnic in his constituency that was advertised on his political party’s website.  The invitation included criticisms of the opposition leader and his policies. The party later apologized, but this did not satisfy the opposition which brought a second question of confidence in the House.  In Saskatchewan, on the last day of a Legislature before a fall election, the Speaker lambasted the government house leader for continued pressure and criticism based on decisions made by the Speaker that allegedly favoured the opposition and allowed for criticism of the government.  The Premier responded to the criticism by stating that it was sour grapes because the Speaker had lost his nomination.  The Speaker had been a member of the party and held the seat for more than twenty years and had lost the nomination to a government backed candidate.

Except in the Saskatchewan case, none of the incidents occurred during a parliamentary proceeding, nor was there a direct connection to a proceeding.   Mose of the issues are about optics, politics and perception.   Almost all of the incidents noted were are related to the continued requirement that the Speaker remain invisibly tethered to their constituency and party and the need to win a subsequent election.

To date the resolution of these issues has been ad hoc.   Often the issue arises by way of a political debate with the opposition arguing that a line has been crossed, and the Speaker or those supporting the Speaker arguing that the line was not known, or that there was a misunderstanding of the situation at the time.  With the growth of social media, tribal (gotcha) politics, and as elections near, the momentary scoring of political points often trumps consideration of deeper issues.   Any potential misstep of the Speaker can be exaggerated if it can be tied to the government.  Whether the line has been crossed seems to be more of a political than a parliamentary calculus.

Placing the Speaker in a straight-jacket of absolute neutrality both inside and outside of the House hobbles the Speaker as a Member and weakens their chances at the next election.   The inability to participate in the necessary and expected activities of a constituency member, including policy discussions over policies they will need to defend in the next election, fundraising for their re-election, and nomination activities potentially hobbles their ability to be Speaker since they may leave the impression of partiality.  Limiting the Speaker from these same activities, particularly at the constituency level, which are the bread and butter of members of Parliament seeking re-election, puts the Speaker at an electoral disadvantage in their bid for re-election.  In addition, the more vocal and partisan a Speaker (as candidate) is during their re-election campaign, the more difficult it may be for them to be seen as being able to be neutral as Speaker in the following Parliament.

To date, the approach to any issue has been reactive and focused on the particular circumstances and concern raised.  For example, following the incident relating to the recognition of the former Nazi, the House of Commons put in place guidelines for vetting and recognition of guests.  In Saskatchewan, the Speaker waited until the last sitting day of a Legislature to expose attempts by the government to bully Speakers.  And there have been debates on these matters as questions of privilege and confidence in the Speaker, with the votes on the parliamentary question being considered the end of the matter.  But little attempt has been made to address the underlying problem the paradox presents.   It is time to have a serious pro-active examination of the roles and expectations of the Speaker in the House of Commons and provincial legislative assemblies, and their relationship to partisan electoral politics.

In some countries, when selected as Speaker, the member resigns from their political party.  They then run in the next election as an independent candidate unopposed (at least by the major parties).  Whether  this is seen as a “reward” for service, or with the expectation of favoured preference in the subsequent election as Speaker, it at least allows for a greater sense of neutrality in the Parliament they where elected Speaker  since they do not need to keep one eye on the House and the other on their re-election.  In other countries, there is the possibility of choosing a Speaker who in not a member of the Assembly, therefore they do not necessarily have the same political baggage.   Or it may be that after proper reflection, a set of rules and guidelines can be established to set out the roles of the Speaker within the House, and the expectation of Members, caucuses, and government officials so that the neutrality of the Speaker is not compromised.  Consideration may also need to be given to a cooling-off period between Speakership and future roles in government or leadership roles in the House.   At the same time, guidelines and expectations of a Speaker can be set out to guide them when engaging with their constituent association, their constituents through communications on parliamentary matters (householders at the federal level), constituent advocacy, nomination meetings, fundraising, and partisan activities during the election period.

Leaving matters to convention and common sense in a world of hyper partisanship, “relative truth”, social media and sound bites is not an option.   Clearer guidelines and understanding from all parties, preferably not in response to a current “crisis” of confidence, is required.  The role of Speaker is one that is important and integral to the functioning of all parties within Parliament and the institution of Parliament itself.  Protecting the Speakership from becoming mired in politics is imperative.  It is time to have a serious discussion about the kind of Speakership Canadians want and nee, in the twenty-first century.

 

 

Parliament has the Capacity to Limit its Privileges without Constitutional Amendment

The Ontario Court of Appeal, in the case of Alford v Canada (Attorney General) 2024 ONCA 306 recently confirmed the ability of Parliament to limit its privileges by legislation without necessitating a constitutional amendment.  The decision overturned a lower court ruling that found that since privileges were constitutional in nature, any changes required Parliament to go through the amending formula of the Constitution Act 1982 (2022 ONSC 2911 and blogpost https://lexparl.com/2022/06/ ).

Like many western democracies, Canada was faced with developing a mechanism for Parliament to hold government to account for all matters, including national security, and also protecting against potential disclosure of serious national security information that could harm the security of the country or its citizens.  The solution settled on was the creation of a National Security and Intelligence Committee of Parliamentarians.   The Committee was not a committee of either House nor a joint committee.   It was established outside of Parliament as a way for the government to share sensitive information with parliamentarians, and to allow for reports to be prepared by the committee, vetted for potential damaging information, then tabled in Parliament.  One aspect of the Act that created the committee provided that parliamentarians were sworn to secrecy and that if they divulged certain information received as a member of the committee they could be prosecuted.  This included divulging the information in Parliament.  In short, members could not use the protection of parliamentary privilege as a defence.  By way of the provision, Parliament had limited an aspect of its privilege of freedom of speech, in a targeted way (only divulgation of specific information relating to names, intelligence sources, and “special operational information” could result in direct prosecution).

Mr. Alford argued that the freedom of speech in Parliament was a fundamental constitutional principle underlying the entire Westminster system of government and that Parliament could only restrict its application through a formal constitutional amendment.  Although he was successful at the trial level, the Court of Appeal rejected his argument.

There were two bases for the Court of Appeal’s decision.  The first, and most succinct was that the Constitution Act, 1867 specifically allows for such legislated limits on privilege.  Section 18 of the Constitution Act, 1867 provides:

18 The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

The court found that, “[t]he language of s.18 plainly and unequivocally gives to Parliament the plenary and continuing legislative power to define parliamentary privileges, immunities and powers by way of duly enacted legislation…s.18 places no limit on how Parliament can “define” its privileges.” [para 43] The court went on to state that “s.18 applies to all parliamentary privileges” including those inherent in the role of Parliament, such as the fundamental principle of free speech.

The second, related reason articulated by the court was that one of the “fundamental organizing principles of the Canadian Constitution” is the independence of Parliament from the government and the courts.  Within this context it is “fundamental that Parliament control its own procedures”. [para 47]  Section 18 of the Constitution Act, 1867  is recognition of the independence of Parliament and its sole constitutional ability to determine how, when and if to limit or exercise its privileges.

While not necessary to its reasoning, the court addresses the particular circumstances facing Parliament.  The court writes:

“It is important to bear in mind that this is not a case in which the executive or a third party seeks to limit the scope of an asserted parliamentary privilege…Rather this is a situation in which Parliament has chosen, through legislation, to limit its own privileges, powers and immunities to enhance Parliament’s ability to oversee certain government activities.  Interpreting s.18 so as to permit legislation like [the sections at issue] is consistent with the fundamental principles underlying Canadian democracy.” [para 48]

In reaching this conclusion, the court was not unaware of the limited nature of the Act, and that in most aspects the ability of either House of Parliament to carry out their constitutional function of holding the government to account, even for national security, is not impaired to any extent.  As noted, the legislation restricting disclosure only applies to those Members and Senators that are on the Committee of Parliamentarians (as a government not parliamentary body).  And it only applies to very particular information, the making public of which would affect specific individuals, information gathering or ongoing operations.   There are no other restrictions.

It is first worth noting that the legislation in no way limits the Houses themselves.  Given the limited nature of the specific information that cannot be disclosed, there is little restriction on the overall capacity of the Houses to hold the government to account.  Most of the “policy” aspects of national security as well as how the government manages security matters (internal government operations, spending etc.) would still be fully open to the House to discuss and debate.  The Committee process allows for consideration of reports (potentially redacted in some respects), based on fuller facts but in a manner that avoids national security “leaks”.   While the Committee members are parliamentarians, the process is not that different from the preparation and consideration of an Auditor General’s report.  These outline problems and issues, and outline fact patterns with some example, but without granular details of individual transactions.

In any event, the legislation does not indicate that the use of the Committee of Parliamentarians is the only way that the government can be held to account by the House for national security, in any of its manifestations.  It in no way limits the Houses’ ability to establish its own committee(s) to make such inquiries, and to request any information they want.  The Act does not limit the scope of any such parliamentary inquiry, nor does it allow the government to withhold any information from such a committee.  [para 56] The court indicates that the House could make any order it believes necessary in such circumstances, and that any such order would not only be enforceable through parliamentary means (and sanctions) but that compliance with such orders would likely provide a defence to any government official making the disclosure since, in addition to privilege protecting the official, the provision of the information to Parliament would be “required by …law”. [para 23]

If the government were to abuse the process set out in the legislation and not provide the information that would allow the Committee to its required access to all information necessary for it to report to Parliament in a manner that allows the House to hold the government to account, Parliament remains able to get what it needs through its long established processes and procedures set out above.  And if the government continues to stall, it is always open to Parliament to repeal the legislation, thus exposing the government’s desire to avoid parliamentary scrutiny.

As the court concludes, the legislated limitation on free speech “stops short of anything approaching a constitutional renovation, or an embargo on parliamentary oversight of matters pertaining to national security.”