Hansard Society Guest Blogpost: Conflict over contempt of Parliament and National Security creates Constitutional Conundrum

The following is a Blogpost of mine that was posted by the Hansard Society in the UK.


The Courts Have No Place in Disputes Between the Government and the House of Commons

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:

  1. (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.

“WE” Don’t Need Lawyers at Parliamentary Committees

The Kielburger brothers, as leaders of the WE charity, were summoned to appear before the Ethics Standing Committee of the House of Commons to provide testimony on what has become known as the WE Charity Scandal. The matter involves a contract with the government to oversee a student volunteer grant program.  It is alleged that the Prime Minister’s family had close ties to the charity at the time that the contract was awarded.

Before the summons was issued, the brothers’ lawyers indicated that the brothers would not appear even if summoned.  The reason given was that the brothers were under investigation by the police and revenue agencies in Canada and the United States, possibly in response to a letter by a member of the committee to such agencies urging them to conduct the investigations.  The Committee was properly upset.  They condemned the response as contemptuous, and issued the summons indicating that failure to appear could result in a finding of contempt of Parliament, with the ultimate consequence being imprisonment.  It would now seem that the brothers’ lawyers are prepared to have their clients appear so long as they can appear with counsel.

The condition of allowing witnesses to appear with counsel is one, that if accepted by the Committee, could set a dangerous and unwarranted precedent.  Those who are insisting on the condition, and the parliamentarians who are tempted to allow it, all miss the point, purpose, and precedents of parliamentary committees.

Parliamentary committee proceedings are not legal proceedings. Nor should they become such. They are parliamentary proceedings.  The function of committees is to inquire into public business and concerns as part of advancing a public purpose including the holding of government to account.  Their purpose is not to judge individuals, but to examine the role played by government officials and Ministers, both in decision and policy making. Included in these inquiries can be an examination of the ethical behaviour of the government officials in the carrying out their functions.  There is no doubt that at times this may involve calling individuals as witnesses to understand their conduct in relationship to the government and the influence they may have had on the decisions of the government.  But the focus of the inquiry must always remain focused on the government and Ministers.  The focus should not be on the correctness of the behaviour of non-government actors.  The propriety or legality of behaviours of individuals is the proper domain of administrative systems, such as revenue agencies, and justice systems, being the police and the courts.  They, not Parliament, are constitutionally charged with deciding the consequences for non-governmental actors.

Although a difficult needle to thread, it is important that committees understand the limits of their inquiries and the relative responsibilities of the other actors within the Canadian constitutional structure.  This does not mean that Committees should in any way shirk their responsibilities.  It means that they should act responsibility and with respect for the constitutional roles of others. This is why there are various self-constraints on parliamentarians such as the sub judice convention that is applied to avoid discussion on matters before the courts, and why committees will sit in camera when they discuss information that could be used improperly by others, including business competitors and the police. If committees go too far, there may be political, public and legal consequences.  Parliamentarians can make the job of investigators and the courts quite challenging.  Investigators may have a difficult time tracking the same facts when they do not have access to parliamentary material, and public opinion can make judicial proceedings almost impossible where the public and parliamentarians seem to have pre-judged the matter.

There are undoubtedly times when the facts being discussed and considered by a parliamentary committee will overlap with the subject of other proper legal and administrative investigations. This is when the temptation for lawyers to become involved is the greatest.  They are attuned to think of concepts such as double jeopardy and their client’s right to remain silent.  They also are concerned that what their clients may say, or what is insinuated by committee members, might be used against them in investigations and legal proceedings.  They might point to various Charter provisions that give rights to individuals in such circumstances.  The lawyers will argue, that their clients need to have counsel present to protect their legal interests and to insure that the committee does not put them in such legal jeopardy.  What the lawyers fail to recognize is that parliamentary proceedings are not legal proceedings, so questions of jurisdiction and scope are not hard and fast, nor justiciable.  More importantly they fail to recognize the absolute constitutional — read legal with a capital “L”– protection their clients enjoy from any legal or administrative consequences for what they say or present before the committee.  Their clients, as participants in a parliamentary proceeding have the same privileges as Members.  What they say is fully protected by parliamentary privilege, a constitutional privilege that must be respected by the police, the courts and administrative agencies.

The main pillar on which Parliament stands is the Bill of Rights, 1689, in particular Article 9 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 section is not only a protection of the freedom of speech.  It is also a constitutional prohibition on the use of the debates and proceedings being used against an individual in any court or anywhere else outside of Parliament. This includes use of proceedings by the police or any agency as evidence or as the basis for any inquiry.  Witnesses do not need lawyers to protect them.  Witnesses have both the constitution and Parliament at their back.  If the lawyers are looking from whom they need to protect their clients, it is the courts, the police and government agencies.  And the tool they have is parliamentary privilege and the constitution.

For those who think that this is point is merely theoretical and political, they need only remember the dual track inquiries undertaken during the Sponsorship “scandal”.  The Public Accounts Committee was investigating the same facts as the Gomery Commission.  There were times when it appeared that the two inquiries were on a collision course, but because of the privileges afforded witnesses before the parliamentary committee the testimony before the committee could not be used before the Gomery Commission.  After seeking the permission of the House of Commons to waive privilege, which was denied, Justice Gomery ruled that contradictory testimony could not be introduced or used before the Commission.  This decision was upheld in the courts.   In the case of investigations, there was the case of Barbara George, who testified before a committee.  Based on her testimony and participation before a committee, the RCMP initiated disciplinary action against her.  On judicial review, the courts, relying on parliamentary privilege, quashed the disciplinary proceeding because the investigation that led it was based on the facts and evidence before a parliamentary committee.  In short, testimony before a committee cannot be used before a court. Nor can it be used as the basis for an inquiry that would lead to legal or administrative consequences.

It is this foundational principle that not only protects witnesses, but that compels them to answer all questions put to them by the committee.  Since there can be no legal consequences, there is no legal basis on which to refuse to answer questions.  Since there is no legal basis for not answering there is no need for lawyers.   Parliament is entitled to ask whatever questions it wants answered, and witnesses should have no fear of any consequences for their answers.  The constitution and Parliament will protect them.  That is the law.  Both Parliament and the legal system depend on it.

Parliaments and the Pandemic Reviewed

My review of Parliaments and the Pandemic, a major study by the UK Study of Parliament Group has been posted on the UK Constitutional Law B Blog S. Chaplin, ‘Review of Parliaments and the Pandemic’, U.K. Const. L. Blog (8th March 2021) (available at https://ukconstitutionallaw.org/ .  The study is a major undertaking on the effects of all aspect of the operation of Parliament and should be read as a guide for all who are working on how to address the pandemic’s effects on Parliament now and in the immediate future.

Supreme Court denies leave to Senator Duffy — Confirming Exclusive Jurisdiction of Senate to Discipline Members

On February 11, 2021 the Supreme Court of Canada refused Senator Duffy’s leave to appeal to the Supreme Court of Canada.  The court’s refusal leaves the strongly worded of the Ontario Court of Appeal decision as the leading authority in Canada on the exclusive jurisdiction of legislative assemblies to discipline members without review or interference by the courts. As is its practice, the Supreme Court gave no reasons for its refusal For my take on the case as it worked its way through the lower level courts see my blogposts in December 2018 https://lexparl.com/2018/12/21/no-cause-of-action-for-senator-against-the-senate-for-wrongful-suspension-and-financial-consequences/ and September 2020 https://lexparl.com/2020/09/01/parliamentary-privilege-a-question-of-jurisdiction/ 

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.

Judicial Salaries and Parliamentary Privilege

The final determination of compensation for judges by legislatures has created a constitutional threat to the independence of legislatures which has yet to be properly addressed.  All the litigation, and much of the academic focus, has been on the “rule of law” and the independence of the judiciary.  Little or no thought has been given to the constitutional functions of the legislature, the independence of the legislature or the basis for courts or others to interfere with decisions of the legislature.   Treating decisions of the legislature in the same manner as decisions of administrative tribunals, and against legal as opposed to constitutional standards, risks serious damage to the constitutional architecture and to the carrying out of constitutional functions by legislative bodies free from interference by the courts.

One would expect any case brought before the courts seeking “an order in the nature of certiorari quashing the motions of the Legislative Assembly”, “a declaration that the government response and the Legislative Assembly resolution did not conform to…the Act”, and “a direction to the Attorney General … as to the content of a new motion to be placed before the Legislative Assembly”, to raise serious parliamentary privilege concerns.  Such proceedings would usually be met by arguments that the court was being asked to question or impeach legislative proceedings and thereby interfere in them.  However, when the applications deal with judicial salaries there is no mention, let alone discussion or analysis, of these fundamental constitutional questions. The recent decision in Provincial Court Judges’ Association of British Columbia v British Columbia (A-G) 2020 BCSC 1264, from which the prayer for relief set out above is taken,  is just the latest example where the serious intrusion by the courts into the proceedings of a legislative assembly has taken place without any consideration of the constitutional privileges of the Assembly, its role and its independence from interference by the courts.  A review of all the jurisprudence cited and relied upon by the BC court reveals that in none of those cases was this issue raised or considered.  This is a serious omission which ought to concern all legislative and deliberative bodies, and those who elect them.  Without any reasoning or explanation for such intrusions into the functions of independent legislatures, the risk is that these cases will be used as precedents for further intrusions.

Before going further in my analysis, I am certain that some will point to the fact that the courts were considering and protecting the constitutional “principle” of judicial independence, so it was permissible them to effectively ignore “parliamentary privilege” and parliamentary sovereignty by directly questioning legislative proceedings, by way of judicial review.  But how can this be reconciled with the recent decision of the Supreme Court of Canada in Mikisew Cree,  where it was determined that even when constitutional “rights”, not mere “principles” , are at stake in parliamentary proceedings, the courts cannot question or impeach theses proceedings? There may be an analytical framework for justifications and exceptions to the constitutionally entrenched “absolute” privileges of legislative assemblies.  It is incumbent on courts to provide one. To date none has been given.

The Provincial Judges Salaries cases in the Supreme Court of Canada that determined that the establishment of judicial salaries could affect judicial independence. They therefore required a mechanism for determining salaries at arms length from government to be established.  The result in most provinces, including British Columbia, is a process involving a judicial salaries commission and a government response with the final determination made by the legislature.  The process starts with the establishment of a commission to determine salaries. The commissions usually are to examine relative judicial salaries in other jurisdictions, the salaries in the legal community from which judges are appointed, economic conditions such as inflation, and the ability of governments to pay.  The government is one of the main players in presenting evidence and analysis before the commission.  Based on evidence and argument, the commission issues a report indicating what it believes judges’ salary and benefits, including pensions, should be.   The government is then required to submit the report to the legislative assembly along with any government response to the report.  Often the government’s response is critical of the findings of the commission that did not accept the government’s position.  The legislative assembly then considers the report and the government’s response, finally determines what the salaries and benefits are to be and votes the necessary appropriations.

Those who are not satisfied with the decision of the legislature may then seek to have the courts review it.  The British Columbia case is indicative of the approach taken by lawyers and the courts to date.  The cases have all failed to recognize the constitutional role of the legislature and its members.  They treat the legislature as an administrative body making a legal decision.  They seek to have the courts apply standards of “reasonableness” and natural justice from the administrative law and judicial decision-making world to legislative decision-making.  But legislatures are not legal decision-making bodies in the judicial or administrative law sense.  As many Speakers have reminded legislative bodies, they may make laws but they neither interpret nor apply them.  They make legislative decisions through parliamentary processes.  They are bodies composed of both government and opposition members responsible for, among other matters, making decisions on proposed legislation, taxation and spending.  Their deliberations and processes are by nature political, partisan and unconstrained (except by internal rules).  The bases for making any particular decision cannot be and are not strictly constrained by statute law.  Even when a statute purports to apply to the internal workings of a legislative body, the courts have accepted that it is up to that legislature, and not the courts, to exclusively and without judicial interference determine if and how the law is to apply to its decision making (see Bradlaugh v Gosset (1884), 12 QBD 271, cited with approval in the Supreme Court in Canada (House of Commons) v Vaid 2005 SCC 30 paragraph 34).

To treat legislative bodies as if they were administrative tribunals, requiring them to follow particular procedures and to consider matters in a particular way, improperly invites the courts to make decisions on the procedures used by the legislature, contrary to the Supreme Court of Canada’s decision in Mikisew.  Judicially reviewing the legislative assembly’s reasoning on substantive legal grounds is contrary to the Bill of Rights, 1689 and the decisions and reasoning cited in Vaid. Such review would be a failure to recognize the constitutional role and independence of the assembly which is fundamental to the constitutional architecture of Canada.

This is not to suggest that a final decision of a legislative assembly, either through enacting statute or by resolution, cannot be subject to judicial review on constitutional grounds.  In Canada, legislative bodies are constrained by the Constitution.  Review for jurisdictional error based on the division of powers has been a limit on legislatures since confederation, and constraints based on the Charter have been present since 1982.  Legislation and decisions that do not meet these standards have been negated or modified by the courts.  In such cases the courts have been careful to weigh the constitutional doctrine of parliamentary supremacy with the consitutional provisions at issue.  This weighing has taken various forms, all distinct from mere statutory interpretation and application.   Often other constitutional principles, actors and interests shape the jurisprudence of consitutional review, each in its own particular way.

What is at issue in the case of judicial compensation is the consideration of the degree to which the constitutional principle of judicial independence, and its subsidiary condition of financial independence, is a constitutional constraint on the decision-making capacity of legislatures, which is only limited by the constitution.  To restrict or overturn the decision of a democratically elected legislative assembly that has its constitutional roots in the doctrine of parliamentary sovereignty and political accountability is no trifling matter.  There must be good and justifiable constitutional reasons.  The role of independent legislatures is no less constitutionally important than judicial independence.  And its pedigree in the Westminster system of government is longer and more entrenched.

Balancing these constitutional concerns is not a simple legal exercise.  Because of our constitutional arrangements, the courts are given the final word on constitutional questions, including their own constitutional independence.  In considering questions concerning their own remuneration they must be hyper-vigilant not to be seen as self-serving or unaware of the constitutional roles and responsibilities of other constitutional actors.  Courts must not only consider the outcome of their decision, but also the messages conveyed by the court process followed and the reasons given for reaching the decision. Their decisions can have a lasting impact on other institutions including to the internal proceedings of those institutions. Further, their decisions can affect future litigation and the way it shape the constitutional relationship between the courts and legislatures

Courts and lawyers cannot, and should not, merely apply traditional legal standards and analysis to questions involving the intersection of constitutional principles.  To do so could have considerable unintended consequences.  What is required is a unique analysis applicable to each unique constitutional problem.  In this context what is required is the weighing of judicial independence with the constitutional functions and independence required of legislatures when exercising their responsibilities for budgets and public policy, including the integration of judicial salaries within the body politic and the constitutional framework.  The decision-making scope and responsibility of the legislature is different from that of any commission or outside entity.  In examining the decision of the legislative assembly the courts must  not only consider the principle of judicial independence, but also the principles of parliamentary responsibility, democratic representation, parliamentary and democratic accountability, parliamentary privilege and the role of legislatures to reconcile the independence of the courts with the executive’s fiscal and policy responsibilities.

Such interference by the courts in the processes and determinations of a legislature, in light of the recognized constitutional constraints set out in the Bill of Rights, 1689 and the jurisprudence of the Supreme Court, requires both careful analysis and explanation.  Canadians and their elected parliamentary representatives should know why the situation of judicial salaries requires such a departure from the constitutional underpinnings of Westminster democracy.  When constitutional principles intersect, constitutional analysis is required.  Treating legislatures as administrative bodies belittles both the central role of legislatures within the constitution and the constitution itself.

It may be that the courts will find constitutional fault with the decisions of the legislative assembly, but how and why they do so matters.