Author: adminSC

Today I addressed the issue of why Proportional Representation will not fix the real problem facing Parliament in an Opinion piece published in the Ottawa Citizen.

Chaplin: Focus on the MPs we elected, not on how they got there

Boris Johnson tried three times to obtain the necessary two-thirds vote under the Fixed-date Parliaments Act to dissolve Parliament. Three times he failed. Then, for a fourth try, he determined that all that was required was a simple Act of Parliament, passed by a simple majority of those voting, to achieve dissolution and election. With this manoeuvre, the Fixed-date Parliaments Act essentially died.

 

Although a Bill would take a somewhat longer process (about a week) involving the House of Lords, a mere majority in both Houses will suffice. In the present hung (i.e., minority) Parliament some support from the opposition in the House of Commons will be required, but not the degree of support required under the Fixed-date Parliaments Act.  And in any future majority Parliament, the same result can be achieved without any support from the opposition.

 

It is somewhat odd that such a step would be required in a minority Parliament, when only a simple majority of a motion of non-confidence, and a delay of fifteen days, is needed for a dissolution. But the Brexit deadlock could not (or would not) be broken using this route, despite the House of Commons defeating the government on its major Brexit initiative numerous times. The Early Parliamentary Election Bill, 2019, was not only a means to get around the two-thirds vote requirement but also dispensed with the requirement for a successful non-confidence motion.

 

The effect of the Early Parliamentary Election Act, 2019, is to gut the Fixed-date Parliaments Act.  The 2019 Act eliminates, or by-passes, the two mechanisms that the Fixed-date Parliaments Act included, and which were believed to address both the circumstances of a minority Parliament, the non-confidence requirement, and that of a majority, the two-thirds vote requirement.  The 2019 Act once again allows a simple majority to determine when elections will be held, handing a Prime Minister with a majority in the House the weapon that the Fixed-date Parliaments Act was intended to remove from his arsenal. This was the precise mischief that the Fixed-date Parliaments Act was intended to avoid.

 

While one may be tempted to say that there were extraordinary circumstances, which is arguable, there is no reason to suggest that a future majority government will not use the 2019 process to obtain an election if they consider the time ripe for one.  Those who believe that there will be public political retribution visited on the government for calling a an early election need only look to the Canadian examples of the federal and two provincial governments that called early elections in the face of fixed date election acts, and subsequently won renewed parliamentary majorities.

 

In the present Brexit deadlock circumstances, it is not clear that the UK election will definitively resolve the Brexit issue.  There remains the possibility of another hung Parliament that will leave the issue unresolved, with much needed time lost.

What some will argue is an attempt to resolve the Brexit issue might better be seen as a mere attempt to avoid, or get around, the benefits argued for by the promoters of the Fixed-date Parliaments Act; an Act that would require the government to work with the opposition to achieve its goals.  Instead of manoeuvring for an election [and a majority government] the government would otherwise have been required to compromise with a Parliament that had been elected for a five-year period.   This is what was intended by the Fixed-date Parliaments Act with its “super-majority” requirement, and which has been easily undone by a two section Bill.  The manoeuvre will be such a temptation for future governments that it may well become a settled practice.   Partisan politics has triumphed, and potentially triumph, over the parliamentary interests that the Fixed-date Parliaments Act  was designed to protect  .

 

I am not a fan of Fixed-date Parliaments Act-type Acts within a Westminster system, unless accompanied by a commitment to change political attitudes so that compromise is not seen as a weakness and parliamentary co-operation not seen as capitulation (or victory by the opposition pointing to a “weak” or “wrong-headed” government).  Otherwise, every time there is an impasse or deadlock each side blames the other—or worse the government blames a democratically elected parliament in which they do not hold a majority. Brexit is merely a case in point.

 

The Fixed-date Parliaments Act is now effectively dead. Its death is not only the result of failed co-operation, although that is the symptom. It is primarily the result of an attempt to change an essential part of the way we govern ourselves, through a parliamentary system of opposition and confidence.  This has resulted in confrontational partisan parliamentary politics with entrenched party discipline.  Introducing a fundamental change, such as the Fixed-date Parliaments Act, to the system without the necessary changes in attitude or thought of the possible consequences, intended or unintended, that would accompany such an “innovation”.  It is not that the Fixed-date Parliaments Act may not be beneficial, or required for stability, if there is a move to some form of proportional representation, it is just that such changes must be accompanied by the necessary attitude and procedural changes and a commitment to stick with it to make it work. It is clear that Westminster systems of government might not yet be ready this change.

 

A similar debate can and should be had about the place of referenda and proportional representation, but that discussion will have to await another day.

As I sit to write this blogpost the CBC Poll Tracker, that aggregates polls, shows that there is a seventy-five percent chance that there will be a minority Parliament following the Canadian federal election on October 21.  Such a possibility necessitates that we once again remind ourselves what this means for the formation of government—before the election night “calls” erroneously state the outcome, and the spin-doctors muddy the waters.

In inevitably one or more of the news media will declare that the party with the most seats, even if not a majority, has won the election and that that party will form a government—even a minority one. This is not necessarily true, and may make the formation of a government with the required political and democratic legitimacy more difficult than necessary or appropriate.

When we go to the polls, contrary to popular belief and media commentary, we are not electing a government or a Prime Minister.  We are electing a Parliament (more precisely, members to form the House of Commons in the next Parliament).  From those members elected, a government will be formed, and the head of that government will be the Prime Minister.   This takes place by the Governor-General inviting the person who she believes can command the confidence (i.e., support) of the House of Commons to form a government.  She does this normally on the advice of the person who was Prime Minister at the time of the election.

When one party obtains a majority of seats at the election the answer as to who will enjoy the confidence of the House is clear.  The leader of the party with the most seats will be called on to form the government.  However, when no party wins a majority of seats, the answer is less obvious.

In the case where no party has won a majority of the seats, the person who will be called upon to form a government should be able to demonstrate that they have, or are likely to have, the confidence of the House of Commons to govern.  This may be the leader of the party with the most (but not a majority) of seats.  Or it may not be.  It could be that the party with the second-most number of seats is more likely to have the support within the House, whereby the combined vote of these “allied” parties is greater than the vote of the leading party and its possible allies.   In such a case the leader of the second party has the legitimate right, by convention, to be asked to form a government.

Following the election of a minority Parliament, it is usually the person who was Prime Minister at the election who is required to do the political math by assessing the results of the election and having discussions with the various leaders of the parties with seats in the House of Commons, in order to assess who has the most likely chance to enjoy the confidence of the House.   He will then advise the Governor-General of his assessment and she will invariably accept his assessment. If there is uncertainty, it is up to the Prime Minister to decide whether he wishes to continue, that is, to test whether he and his government has the confidence of the House, or to suggest that someone else form a government and try to seek confidence.

In this way it is effectively the House of Commons that chooses the government.  It may be the party with the second-most seats, with the support formally or informally of other parties or members to secure confidence.  It is this support that gives the government democratic legitimacy , each member giving support having been duly elected.  The second-place party will not have stolen the election result from the party with the most seats.  They will not be acting undemocratically nor will they be thwarting the will of the electorate.  They will be fulfilling it.  It will have been the representatives, each of whom is elected separately and legitimately, that will have chosen who to support as government; bearing in mind that they can always withdraw their support, thereby requiring the government to resign and face the electorate in a new election.

Let us hope that on election night, and the days following the election that we all remember this.  If there is a minority Parliament, so be it.  Let the result speak for itself and let our democratic system work as it is intended.  It is for the members of the House of Commons to come to terms with the result and work to put together a government that the House will support.  It is not up to the “election callers”, political pundits nor the spin doctors to decide who will govern.  Such pushing of opinion can only lead to doubts concerning legitimacy.  Allow the House of Commons and its Members to do their job.  They will have been elected legitimately and the decision that they will be required to make is both constitutional and legitimate—don’t let the media or the politicians tell you anything different.

It is evident from my blogpost last week that I could be expected to be somewhat surprised by the decision of the Supreme Court of the United Kingdom in Miller v The Prime Minister [2019] UKSC 41 (“Miller (2)”) delivered September 24.   One of my main concerns was that the Court ruling would undermine the independence of Parliament, by removing decisions that should be made by Parliament to the courts.  On considering the decision, there is much that legislatures, but not so much governments, can take comfort in. It may also put the Queen, and her representatives in a tight spot.

Unlike some previous judgements relating to prerogatives that sought to put them into categories (on which I based my earlier blog) the court here focussed on the effects that decisions made under the prerogative may have on the working of the constitution.  It is for others to comment on the appropriate scope of judicial review of prerogative decisions by examining whether a test of “effect”, rather than category, is one that should be capable of grounding a court challenge. I will focus on the parliamentary issues and the exercise of prerogatives in the parliamentary context.

In Miller (2)  it was necessary for the court to highlight the scope of parliamentary functions within the Westminster system of government, since it was the effect on these functions that concerned the courts.  To do this the court examined and gave considerable constitutional weight to two related underlying constitutional principles; parliamentary sovereignty and ministerial accountability to Parliament.

On the first principle, the court sets out a somewhat expanded but traditional view of parliamentary sovereignty.  It indicates that “Parliamentary sovereignty is not confined to recognising the status of the legislation enacted by the Crown in Parliament” .  It also includes the ability of Parliament to sit and legislate—“The sovereignty of Parliament would…be undermined as the foundational principle of our constitution if the executive could,  through the use of the prerogative, prevent Parliament from exercising its legislative authority…. An unlimited power of prorogation would therefore be incompatible with the legal principle of Parliamentary sovereignty.”

More importantly for the position of Parliament, the court raises parliamentary accountability of the government to the level of constitutional status, equivalent to, or forming part of, parliamentary sovereignty.  Attempts to thwart such accountability is constitutionally suspect.  The court expands on the principle as follows:

The same question arises in relation to a second constitutional principle, that of Parliamentary accountability, …[It is] no less fundamental to our constitution than Parliamentary sovereignty …Ministers are accountable to Parliament through such mechanisms as their duty to answer Parliamentary questions and to appear before Parliamentary committees, and through Parliamentary scrutiny of the delegated legislation which ministers make. By these means, the policies of the executive are subjected to consideration by the representatives of the electorate, the executive is required to report, explain and defend its actions, and citizens are protected from the arbitrary exercise of executive power.

…

Let us remind ourselves of the foundations of our constitution. We live in a representative democracy. The House of Commons exists because the people have elected its members. The Government is not directly elected by the people (unlike the position in some other democracies). The Government exists because it has the confidence of the House of Commons. It has no democratic legitimacy other than that. This means that it is accountable to the House of Commons – and indeed to the House of Lords – for its actions, remembering always that the actual task of governing is for the executive and not for Parliament or the courts. The first question, therefore, is whether the Prime Minister’s action had the effect of frustrating or preventing the constitutional role of Parliament in holding the Government to account.

The court then finds that the timing and the length of this prorogation was such as to put a constraint on Parliament’s ability to legislate and hold the government to account at a crucial point for the country, without a reasonable explanation.  Although the court claims to be neutral on the issue of Brexit, it does recognize Brexit as part of the context that demands an explanation from the government relating to the timing and effects on the ability of Parliament to carry out its functions before October 31.  Referring to the memorandum to the Prime Minister outlining the reasons for the prorogation, the court points to the failure to explain why other equally fundamental activities of Parliament needed to be fully suspended for five crucial weeks.

[The memo] does not explain why it was necessary to curtail what time there would otherwise have been for Brexit related business. It does not discuss what Parliamentary time would be needed to approve any new withdrawal agreement under section 13 of the European Union (Withdrawal) Act 2018 and enact the necessary primary and delegated legislation. It does not discuss the impact of prorogation on the special procedures for scrutinising the delegated legislation necessary to make UK law ready for exit day and achieve an orderly withdrawal with or without a withdrawal agreement, which are laid down in the European Union (Withdrawal) Act 2018. Scrutiny committees in both the House of Commons and the House of Lords play a vital role in this. There is also consultation with the Scottish Parliament and the Welsh Assembly.

My fears that the courts might become entangled in the business of Parliament were somewhat put at rest when the courts placed the problem at issue here squarely at the feet of the executive. As to the argument that the prerogative was part of the parliamentary cycle or processes, the court points out that the prerogative of prorogation is not exercised for or by Parliament.  It is a government (executive) act, outside of Parliament, that affects Parliament and, in this case profoundly, against Parliament’s will.

This is a firm judgement in favour of parliamentary democracy.  The court recognizes that Parliament remains at the heart of the UK Constitution, and that its functions are myriad.  They include both legislating and the holding of the government to account.  Both are fundamental and constitutional. Any attempt by the executive to shut down these functions at critical times, when Parliament is challenging the government, will require believable explanations by the government for it not facing Parliament.

This decision is a welcome check on those who are of the view that Parliament is an irritant or a speed bump on the road to implementing government programs, and that the role of Parliament is limited to legislating.  The court reminds us that our democratic institutions are not mere legislators, but they are a valuable part of the accountability framework.  Attempts by government to use their authority to stifle such accountability is illegitimate, and in the extreme, unconstitutional and illegal.

Although the decision supports parliamentary institutions and reminds us of the constitutional balance between the government and Parliament, it does leave some questions to be resolved.  Most importantly– what is the Queen, (or her representative) to do when faced with a request of the sort that was made in this case?  Have the courts empowered, and does it expect, the Queen (or the Governor General), to make the necessary “reasonableness” determination when faced with a prorogation request? Other prerogative requests? Or, does the regal actor just follow the advice and let the courts sort it out?  Should they push back and test the advice?  Whose decision would the courts then be reviewing?

These questions may need to be answered sooner rather than later.  One only has to remember the questions raised in Canada when former Prime Minister Harper sought and received prorogation to avoid a vote of confidence and a potential change of government.

As Canada faces an election in which the polls show the possibility of a minority Parliament, we should all be mindful of the fact that we are electing members of Parliament.  We are not electing a Prime Minister.  That is a confidence matter for the House of Commons.  Elections do not merely elect those who will govern, but those who will hold any resulting government to account.  Those charged with calling on and forming a government may need to take particular care to remember the entire constitutional framework and that attempts to thwart the will of Parliament through prorogation or other uses of “prerogative” powers, such a dissolution (which is not legislated in Canada) may not only face political consequences, but legal ones as well.

As one commentator on the BBC noted this morning; what was until now a issue to be resolved between two constitutional entities (the government and Parliament) may now have two new partners—the courts and the Queen.

 

This past week, courts from across the UK weighed in on whether they should weigh in on the purported “illegality” of the recent prorogation of the UK Parliament. The English Court said no (Miller et al v The Prime Minister [2019] EWHC 2381); the Scottish Court said yes (Cherry et al v The Advocate General [2019] CSIH 49); and the court in Northern Ireland ducked the question, but a close read suggests they would likely support the position of the English court (McCord et al v The Prime Minister et al [2019 NIQB 78).   And, the Supreme Court of the United Kingdom is set to resolve the question following hearings scheduled to begin September 17, 2019.

 

The facts and speculation surrounding the prorogation are generally well known.  The UK is on the verge of leaving the European Union (Brexit) on October 31, regardless of whether they have an Agreement with the EU on the terms of leaving.  The government claims it would like a deal but is prepared to leave on October 31 without one.  It is not prepared to extend the deadline.  Parliament is concerned about leaving without a deal and has passed legislation, over the objection of the government, requiring the Prime Minister to ask for an extension of the deadline until January 31, 2020 if a deal is not reached and brought to Parliament for its consideration by October 19.  One of the major issues is the “Irish back-stop” contained in the previous agreement that would leave the UK within a customs union with the EU while permanent arrangements for dealing with the border between the Republic of Ireland and Northern Ireland are worked out.

 

The Prime Minister is not happy with the degree to which his position is seemingly being undermined by Parliament.  On August 28, 2019 the Prime Minister, through the Privy Council, asked the Queen to prorogue Parliament from sometime in the week of September 9 until October 14.   Parliament sat the week of September 2, during which it passed the extension legislation mentioned above. It then sat on September 9 (into the early hours of September 10), when the prorogation took place.  During these few sitting days the Prime Minister tried, through votes, to have Parliament dissolved pursuant to the Fixed-term Parliaments Act but was not successful.

 

The publicly avowed reason for the prorogation request was to allow a new Prime Minister a new fresh start with a new session of Parliament and a Queen’s speech on October 14.   The Opposition and a number of others believed that the real reason for the prorogation, and the length (five weeks as opposed to the average ten days) was to thwart Parliament’s attempts to delay Brexit or to hold the government to account for its negotiations and preparations for the effects of a no-deal Brexit.

 

For the English court, although the background is useful for understanding the case, the reasons for requesting and granting prorogation were not relevant to its decision.  Courts lack jurisdiction to consider the request since the matter falls within the sphere of Parliament to determine.  Conflicts between the government and Parliament are essentially political and within the UK Constitutional framework are to be resolved within Parliament.  For them, the courts must examine and consider the question of jurisdiction, and whether as a category a particular prerogative power can be judicially reviewed, first and separately from the particular facts and exercise of prerogative.  They accept that just because a matter is an exercise of a prerogative does not exclude it from judicial review; however, not all prerogative decisions are reviewable.  In this case, the judges found that the exercise of this prerogative does not directly affect any individual ( as for example, in the case of a pardon) nor is it one that has been affected by legislation that sets out conditions for its exercise (such as dissolution under the Fixed-term Parliaments Act).

 

In this case, the consideration of this prerogative would involve the courts offending the separation of powers and becoming involved in the political machinations of Parliament (being a political struggle between the government and the Opposition within Parliament (para 60-64)) for which there are no measurable standards to determine the scope of reasons permissible for a request for prorogation (para 54).  As a result, the entire exercise of the prerogative to prorogue Parliament is not justiciable.  They consider the arguments made in this case as illustrative of these points.  They ask how a court could measure and consider the appropriate length of time for a government to prepare for a new session (para 56), or how much time Parliament needs to hold the government to account in any given circumstance (para 57).

 

The Scottish court does not concern itself with the type of prerogative at issue but rather the reasons behind its exercise (para 102).   Rather than giving the court pause, the fact that the dispute was between the government (executive) and Parliament, even within Parliament, was seen as a constitutional question and all constitutional questions, the judges assert, have to be answered by the courts.

 

Although the court purports to accept that decisions that are political in nature are not justiciable, they qualify this proposition by saying that it is only decisions that are made on “legitimate political considerations” that are immune from judicial review (para 50).  Those that are seen as an “abuse of power”, “improper” or “irrational” can be struck down by the courts for those reasons (para 74 and 102). “The power can only be exercised for a proper purpose” (para 75).   The court then turns its mind directly to the reason for the prorogation.

 

For the Scottish court it was clear that the stated reason of setting a new government agenda was misleading at best.  The real reason, according to the court, was to impede Parliament from being able to carry out its constitutional functions of legislating and holding the government to account, both of which are particularly necessary at this crucial time for the UK in the context of the potential complexities of Brexit.  The decision precluded Parliament being able to carry out its functions and therefore undermined an essential aspect of the British Constitution that rests upon parliamentary sovereignty.   To use the prerogative to limit parliament’s constitutional role was improper, if not unconstitutional.  The role of the court in this case was, in essence, to protect Parliament from the government.

 

In my opinion the position of the English court is the only result that preserves and promotes the interests of the UK constitution, including, on the basis set out below, the sovereignty of Parliament.

 

To fully understand the findings of the English court one must consider the nature of prerogative power and its exercise.  Prerogative powers are those that are exercised by the Crown that have not been removed from it by statute, through Parliament.  Generally, courts will not interfere with the exercise of a prerogative unless it has been modified by statute, or the rights of an individual are at stake.

 

Some prerogatives relate to the relationship between the country and other nations.  These include the conduct of foreign affairs, the accreditation of ambassadors and the prosecution of war.  Some relate to the relationship between the Crown and individuals, such as the issuance of passports, pardons and the exercise of mercy.  Still others relate to the Queen and her relationship to Parliament.  These include the formation of government (calling on a person to become Prime Minister and form a government), the dismissal of Ministries, the granting of Royal Assent or Royal Consent and the summonsing, proroguing and dissolution of Parliament.   Although most prerogatives are exercised on the advice of the Prime Minister or Privy Council, they are not all the same, nor are all of them reviewable by the courts. This case only involves the last group and illustrates the effect that judicial review could have on the parliamentary system if the courts were to become involved in these matters.

 

Within this last group, the prerogatives that concern the matter at hand are those of prorogation and dissolution.  These prerogatives are closely related.  A Parliament is not just a place, it has a temporal existence.  A Parliament exists from the date it is first assembled until the date it is dissolved.  Once dissolved, elections occur for the next separate and distinct Parliament.  Given that Parliaments can be long, and the legislative focus can be spent or lost (or for various political reasons), they can be broken into sessions.  Although sessions occur within a Parliament, and are somewhat separated, a means was needed to “suspend” Parliament without requiring new elections.  This gave rise to the prerogative of the Crown known as “prorogation”.    When there was no longer a perceived need for Parliament to sit, but the Crown did not want to cause a new election and a new Parliament, Parliament would be prorogued.  Subject to the rules of each House, the effect of prorogation is the same as that of dissolution.  Prorogation commences on the direction of the Queen and all work of Parliament comes to an end.

 

One can see the concerns that abuse of the power to dissolve and call Parliaments could have on the ability of Parliament to petition the Crown or make laws.  Eventually, Parliament wrested some degree of control over the prerogative over the calling and holding Parliaments by withholding requests for taxes, and ultimately through legislation that set the length of Parliaments and the need for Parliament to sit at least once a year.   The prerogatives relating to dissolution and prorogation were left intact, and ultimately, as a result of responsible government and the confidence convention, the practice of the Crown only acting on the advice of the Prime Minister developed.

 

Later, as political parties grew in strength, it was Parliament, not the courts, who curbed the growing power and potential abuse of the Prime Minister to determine the timing and date of elections, through restricting the basis on which the Prime Minister could advise the Queen to exercise her prerogative to dissolve Parliament.  The Fixed-term Elections Act restricted the power of the Prime Minister to seek the exercise of the prerogative to dissolve Parliament until a specific date, or under limited conditions, based on specific decisions of the House of Commons.  Again, a prerogative that affected Parliament was to be restricted or managed by Parliament (or as a result of its legislation).  What is significant in that legislation is that subsection 6 provides that “this Act does not affect Her Majesty’s power to prorogue Parliament.”   The prerogative to prorogue remains a “pure” prerogative relating to Parliament alone and unrestricted by statute.  The meaning for the present case is clear.  Parliament can control through legislation the exercise of the prerogative of prorogation, in the same way that it chose to control the exercise of the prerogative of dissolution.  But it overtly chose not to.  Both prerogatives deal with similar subject matter, the duration of “sittings” or shutting down of sittings of Parliament, but Parliament only sought to curb the prerogative in one case but not the other.  These are prerogatives that only relate to Parliament and have been historically solely within the purview of Parliament to regulate.   The exercise of the prerogative in this context is intrinsically connected to the privilege of parliament to control its own proceedings, which would not be reviewable by the courts.  As a matter involving the internal management of Parliament, and which Parliament can clearly control and manage as it chooses, the matter is one that is beyond the jurisdiction of the courts to consider.

 

The Scottish decision purports to be founded on the principle of parliamentary sovereignty and the decision was taken to protect the rights of Parliament as against the executive.  But what the judges may have accomplished, if their position is upheld, is to weaken the sovereignty and constitutional independence of Parliament and its Houses.

 

There are several factors in this case that are troubling from perspective of Parliament and its legal and constitutional position.  The case in Scotland was not brought by the party whose rights might have been at stake—the House of Commons, or the Speaker on House’s behalf.  The case in Scotland was brought by some 67 individual Members of Parliament, plus a private individual.  These were Members who were concerned with the actions of the Prime Minister as against the House as part of Parliament.

 

The first concern is that of standing.  As a constitutional entity, and as a collective body consisting of its Members, it is questionable as to whether the House of Commons has any “rights” that would be affected by the Crown, as part of the constitutional order, when the Crown exercises its prerogative.  How does the House of Commons have “rights” in this context?  Also, how do Members, who only have the status of Members within and as part of the House have rights that are separate and distinct from the House which they can assert outside of the House?  This is essentially what the Scottish court has allowed.  It has allowed individual Members of Parliament, who may or may not have asserted their rights and powers within the House, and not succeeded in having their view adopted, to bring the issue to the courts.  They have essentially invited the courts into Parliament; that is, to choose sides within the legislative branch of the State apparatus.  This involvement in relationship between the Opposition members in the House and the government as it relates to the business, timing and sittings of the House, is not only an unwarranted intrusion but a dangerous precedent that could be used and expanded to deal with all manner of disputes and disagreements between the House and the government.

 

The independence of Parliament is threatened by the decision of the Scottish courts. The decision could deny the Houses of Parliament not only the ability to conduct their business independently of the courts, but also the ability to protect themselves from any perceived, anticipated, or actual threats (past, present or future) from the government and its members within the House itself.  The Houses of Parliament’s ability to act is not merely political, it is constitutional and legal.   And their actions and decisions in this regard are not reviewable in the courts. Such a review would be a violation of Article 9 of the Bill of Rights¸1689 which precludes the courts from questioning or impeaching proceedings in Parliament. The Houses of Parliament do not need, nor should they seek, any aid from the courts in this regard.  As noted earlier, independence gives Parliament the ability to regulate the exercise of the prerogative of prorogation in the same way that it set terms on the related prerogative of dissolution.  This it did not do, even though Parliament sat for at least a week after the prorogation decision was made but while prorogation was yet to take place.  If there was a concern that the House of Commons lacked time, it could have decided to sit during any period of adjournment.  There were infinite possible forms of legislation that Parliament could have used to deal with Brexit.  Either House could have considered a motion of contempt and punished (including by way of imprisonment) those in contempt until the contempt was purged. More fundamentally, the House of Commons could have tried to wrest control of the government from the Prime Minister by voting non-confidence in the government and using the 14-day period in the Fixed-date Parliaments Act to try to establish an alternative government, failing which there would be a general election.  That some or all of these may not have been able to be accomplished because of parliamentary arithmetic, because of political considerations the make-up of the House, or because of electoral concerns does not affect the constitutional role and power of the House to protect itself. That some of these options cannot be used for parliamentary political reasons does not permit members who are frustrated or concerned to turn to the courts to stop even the most abusive behaviour of a government that still enjoys the confidence of the House, as is assumed where the House of Commons has chosen to leave the government in place.  Members of Parliament must use the tools that the constitution gives them, and them alone, without interference (invited or otherwise) from the courts.

 

For the courts to pronounce on the matters at hand is to allow for them to second guess the whys and wherefores of all decisions taken or not taken by the House in relation to the use of these constitutional powers.    The significance of the issue, Brexit, or the limited time frame at issue here cannot be the bases on which the courts decide to become involved.  There will always be issues of major importance and there will always be time pressures.  Focussing on the issues or “facts” at any given moment in time cannot form the basis for court involvement in the business of the House thus upsetting the constitutional order.

 

The functions and powers of the House of Commons are not just political they are constitutional and real.  The fact that there is a political dimension does not detract from these fundamental constitutional underpinnings.  Nor does it allow a court to categorically state that Parliament only holds the government to account “politically”, but the courts hold the government to account “legally”, and since the matter at hand is the constitutional (read legal) relationship between the government and Parliament, the courts are the arbiters. This totally misses the constitutional role that the House has in determining that relationship without interference from anyone, including the courts.  Parliament does not need nor should it any way welcome the courts’ involvement in any of this.  The “crisis” was created through political (referendum), electoral, and parliamentary politics.  Constitutionally it is for Parliament and not the courts to resolve it.

As the Bill to delay Brexit in the event of no deal works its way through the second House of Parliament, can or will the Prime Minister look to the third branch of Parliament, the Queen, to kill the Bill at Royal Assent?

On September 3 the House of Commons took over the legislative agenda from the UK government in order to introduce a Bill to stop the UK from “crashing out” of the European Union on October 31 without an Agreement with the EU.  The Bill would require the UK government to seek an extension of the leave date until January 31, 2020 if an Agreement with the EU is not reached by October 19.  The Bill passed the House of Commons over the objection of the government.  The government was so incensed that the Prime Minister withdrew the conservative whip from over twenty members who broke government ranks and voted for the Bill, effectively expelling them from the party. The Prime Minister then attempted to engineer a vote to dissolve Parliament and have an immediate election.  This failed. The Bill now moves to the House of Lords where many Conservative Lords are attempting to delay passage until prorogation (which can be as early as next Monday) by introducing numerous amendments and causing a series of votes.  If the Bill does not receive Royal Assent before prorogation, it will not become law.

Given the almost virulent opposition to the Bill and the looming prorogation, the question arises as to whether the government will attempt to take steps to delay Royal Assent before prorogation, or even advise the Queen to not grant Royal Assent.   If either course is taken, there would no doubt be a parliamentary uproar that would result in some form of confidence motion triggering an election, but the Bill will still have died on the order paper without becoming law.

There is no doubt that such a manoeuvre would be unprecedented and create what many might see as yet another constitutional crisis; so, the question posed above may become more than academic.

It is seldom that one is required to consider that Parliament is composed of three distinct actors: the House of Commons, the House of Lords (the Senate in Canada) and the Queen.  Each has an independent role to play in the legislative process and all three must agree on any enactment.  Usually there is no need to even think about the third player, the Queen, who grants royal assent to any Bill presented to her for Royal Assent.  This is because the overwhelming majority of Bills originate with the government (formally Her Majesty’s government) and there is little question that the government will present its Bills to the Queen for Assent with the implicit “advice” that she grant assent.  The last time that any monarch tried to exercise independent judgment and refuse royal assent was in the reign of Queen Anne.

What is to occur when Parliament passes a Bill and the government does not want the Bill to become law?  Can the government delay or block its presentation to the Queen? Can the Bill find its way to the Queen by other means than by government initiative and if the Bill does get to the Queen, can the government advise the Queen not to grant Royal Assent? Does the Queen have to follow the Prime Minister’s advice?

The problem presents itself because the Queen has two sources of advice that she is usually obliged to follow.  On the one hand convention requires that the Queen only act on the advice of the Prime Minister (or Privy Council) and she must, unless precluded by law, follow that advice.   This would suggest that the Prime Minister could advise the Queen to not grant Royal Assent. Or, if not wanting to put the Queen in such an unenviable position, take steps to delay having the Bill presented to her before prorogation.  On the other hand, when acting in her legislative capacity, Bills come to her, not on the advice of the government on the advice of the two Houses.  For example, in the present case, like all Bills, the opening salutation of the Bill states:  ” Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same …”

Before presenting Her Majesty with this dilemma, the question arises as to how Her Majesty would be advised that a Bill has been passed through the two Houses.  Usually one would expect that arrangements would be made through the Privy Council Office.  But what if this process were somehow delayed?  Could the Speakers jointly advise the Queen of the proceedings and seek her Assent without the involvement of the Privy Council?

Even assuming the Bill finds its way to the Queen in the usual course, or through some other formal means, could the Prime Minister still advise the Queen not to grant assent?  Would the Queen be obliged to accept that advice, or would She be required to accept and follow the advice of the two Houses assembled in Her Parliament?

The opinion of academics seems to be divided. On one side are those who hold fast to the notion that the Queen only acts on advice of Prime Minister, and that in such a case the Queen should refuse Royal Assent and allow the political process of a subsequent motion of non-confidence to follow the giving of such advice (i.e. a motion holding the government or Prime Minister in contempt of Parliament), ultimately leading to a decision by the electorate on the question.

Others, like me, are of the view that the Queen, when granting Royal Assent, is not carrying out an executive function, but a legislative one.  Her role and “loyalty” in the legislative process is to Parliament.  The two Houses are her advisors on law-making.  The making of law is quite different from making executive decisions pursuant to law or prerogative on which the Queen takes advice from the Prime Minister.

One hopes that the Prime Minister will accept the decision of Parliament and, if the Bill is passed by the House of Lords, will take the necessary steps to ensure that the will of Parliament is respected by having the Bill presented to the Queen to received Royal Assent before prorogation.  This will avoid creating yet another “constitutional crisis” or putting the Queen in the unenviable constitutional position of having to choose between the advice of Her Prime Minister, or that of the Parliament of which she forms a crucial third part.

As I write this Boris Johnson is on his way to Balmoral Castle to request that the Queen prorogue Parliament from September 10 to October 14. This raises the question of what options the Queen may have.

Under usual circumstances the Queen will follow the advice of her Prime Minister. In fact, some argue that the Queen only acts on the advice of the Prime Minister and must follow the advice of the Prime Minister. Is this the case? What options does the Queen have?

The question of whether to prorogue Parliament is considered one of the “reserved” powers of the Queen. This means that the Queen does not necessarily have to accept the advice of the Prime Minister. This is evidenced by the fact that various Governors-General throughout the Commonwealth have denied prorogation for various reasons, primarily where prorogation would avoid a vote of confidence in which the likely result is that the government would be defeated. In Canada, in 2006, when the government was facing such a vote, the Governor-General delayed her decision for a number of hours to consider what to do, before granting the prorogation.

Anne Twomey, a Australian academic who is considered an expert in the area wrote, “There is more than a suggestion that there is a reserve power to refuse advice to prorogue, but the extent of that reserve power may be confined so that it is only exercisable in order to support, rather than undermine, fundamental constitutional principles such as responsible government and the rule of law.” (Prorogation -Can it Ever be Regarded as a Reserve Power?; Legal Research Paper No.17/13). Some, including the Speaker of the House of Commons, and the Leader of the Opposition would argue that this is such a case. But against this is the convention that the Queen ought not to be brought into political debates and as a result will follow the advice of her Prime Minister and let the ultimate determination of the matter be determined through the political processes.
If it is the case that the Queen can refuse the advice, it must also be the case that she can respond and discuss the advice, seeking to have the Prime Minister revise his advice to compromised position that to meet any concerns that the Queen may have.
It is therefore likely that the Queen will grant a prorogation; but, I would argue that the Queen may have a way to “square the circle” by granting the prorogation for a shorter period. If the Prime Minister is basing his request on the usual grounds that there is a new government that desires a new Queen’s Speech (Speech from the Throne), then the Queen’s response could be that she will grant it on the usual terms, being between seven and fourteen days. Prorogation could be granted immediately for the usual period, say until September 10, with the Speech taking place then, and providing Parliament a clear run , on the timetable it agrees on, until October 31. This way the government will get its prorogation on the basis it argues that it is asking for and Parliament gets a maximum of sitting time.

I do not expect this scenario to play out since the Queen will not want to be seen to be involving Herself in such a debate; but it may be the compromise necessary to move the debate forward.

Today, July 18, 2019, the Supreme Court of Canada (file 38586) denied leave to appeal in Boulerice et al. v Board of Internal Economy 2019 FCA 33.  The Federal Court of Appeal had determined that courts do not have jurisdiction to judicially review decisions on internal parliamentary bodies that make decisions relating to the availability of, and proper use of, allowances provided to Members to carry out their parliamentary functions.  For an outline and analysis of the Federal Court of Appeal decision see my earlier blog post dated February 21.

Courts Lack Jurisdiction to Review Decisions Relating to Members’ Misuse of Allowances

Two former Canadian Cabinet Ministers recently resigned following a public disagreement with the Prime Minister.  They were subsequently expelled from the caucus by the Prime Minister.  The Prime Minister indicated that he made the decision to expel the former Ministers from caucus following consultation with members of the caucus.

One of the expelled members has now raised a question of privilege in the House of Commons arguing that the expulsions constituted a breach of privilege on the basis that the expulsions did not respect the provisions of the Parliament of Canada Act relating to expulsions from caucus.  Sections 49.1 to 49.8 of the Act set out processes for the expulsion and re-admittance of members to caucus among other rules for caucus votes.  Section 49.8 requires each caucus, at its first meeting of a new Parliament to vote on whether to have the rules apply to their caucus during the Parliament.  There is no default one way or the other in the event that such a vote does not occur.  It is alleged that the Liberal caucus did not hold such a vote, although the chair of caucus wrote to the Speaker, as required by the Act, indicating that there was a consensus to not apply the rules unless and until the party convention decided on the matter.  No-one objected to this decision at the time (some 3 years ago).

The question of privilege, based on a statutory provision, raises questions relating to how such issues are to be resolved.  The fundamental question is how are questions of interpretation and enforcement of a statute that deals with the internal affairs of a caucus of a legislative assembly to be determined.  There are some who would suggest that since the matter is one found in statute the matter passes to the courts.  Others suggest that the matter is to be decided by the Speaker. While others suggest that neither the Speaker nor the House can determine questions of law, without considering who would make such determinations.  In light of these facts and issues, this situation also raises the legal and constitutional question of when, if ever, it is advisable to include matters internal to a legislative assembly in a statute as opposed to the internal rules of the assembly.

Although there may be a few steps along the way, the way forward is relatively clear in this case.  The first step is to ask is whether the subject matter, absent the statute or any rule of the House, is a matter that is covered by parliamentary privilege?  If the answer is no, then the default is that the determination of the relative rights falls to be determined by the courts.  If yes, there is a second question.   Has the statute waived or altered the privilege in such a way as to give the courts jurisdiction, directly or by necessary implication?   If this has not occurred, then the matter, as any matter of privilege would, remains with the House of Commons to decide.

The mere fact that a matter is covered by a statute does not give the courts jurisdiction to interpret and apply the statute’s provisions.  It may raise some questions as to why the usual constitutional position that legislatures legislate, and courts adjudicate on the legislation should not apply; but mere inclusion of a matter in in a statute is not determinative.  One exception is when the matter is one of parliamentary privilege.  The first articulation of the law on this was the case of Bradlaugh v Gossett (1884) 12 QBD 271 in which the House of Commons refused to admit a member who would not swear an oath, but rather wanted to affirm as provided for in the Oaths Act. The member sought intervention by the courts.  The courts refused stating “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 proceedings.” (Stephen J).  This statement of the law was accepted by the Supreme Court of Canada in Canada (House of Commons) v Vaid 2005.  In the same case the Supreme Court reiterated that codifying privilege in statute did not change the nature of privilege, or the respective roles of the courts and the House of Commons in dealing with matters found to be privileged.  At the same time, the court noted that a statute could not enlarge privilege, but it could limit it.

Are the internal workings of a caucus protected by parliamentary privilege?  Until 2012 this question was not settled.  There was some doubt as to whether caucus meetings were proceedings in Parliament, or so closely related to proceedings that it was necessary that they be protected by privilege.  In 2010, a federal cabinet minister was dismissed from her cabinet post and expelled from the caucus.  She brought an action in the courts to consider the circumstances surrounding these decisions.  The decision relating to the dismissal from cabinet was found to unassailable as an exercise of the Crown prerogative, and the decision to expel the member from caucus was found to be covered by parliamentary privilege. The court concluded “that it is settled law that the doctrine of parliamentary privilege precludes judicial review of expulsion, disqualification from caucus and other disciplinary matters pertaining to Members of Parliament”. (Guergis v Novak et al. 2012 ONSC 118, affirmed 2013 ONCA 449).   It is this case which provided the immediate background to the changes to the Parliament of Canada Act which enacted ss.49.1 to 49.8 in 2015 (SC 2015 c.37, s.4).

If this law was not certain enough, s. 49.7 was included in the amendments to the Parliament of Canada Act to preclude any interference by the courts in the internal affairs of a caucus.  This also answers any question relating to whether Parliament has statutorily limited parliamentary privilege.  Section 49.7 provides:

49.7 Any determination of a matter relating to the internal operations of a party by the caucus, a committee of the caucus or the caucus chair is final and not subject to judicial review.

 

All decisions, including the possible decision to not decide, relating to the expulsion of the two members from caucus, notwithstanding the statute, fall within and are covered by parliamentary privilege.  It is therefore up to the House of Commons to decide if and how it will apply sections 49.1 to 49.8 of the Parliament of Canada Act to the situation raised by the expelled members.

How is this to be done?  While as a general proposition the Speaker of the House of Commons will not determine questions of law, nor invite a committee to provide a determination of a legal matter (i.e., one found in statute), the proposition cannot hold when the statute itself is codification of a process relating to a matter falling within privilege.  As was made clear in Bradlaugh v Gossett, the House is the body responsible for the interpretation and application of laws relating to its internal affairs.  Therefore, the House, and the Speaker on behalf of the House, will need to figure out how they will proceed.  The best way forward is to accept the statutory provisions as a statement of the process that Parliament intended the House and its constituent parts, including caucuses, to follow when exercising the privilege over the internal affairs of caucuses.   If the House were to follow the normal process for addressing questions of privilege, the Speaker is only to be asked whether a Member has raised a prima facie case such that the matter should be referred to the Standing Committee on Procedure and House Affairs. If so referred, it will then be up to that committee to inquire into the matter and report back to the House of Commons, with the House making the final decision based on the report.  It is important to bear in mind that the Speaker’s prima facie ruling is not a finding that anyone has done anything “illegal” or wrong.  That is a decision that only the entire House can make following the usual committee and House procedures.  The Speaker’s decision is limited to whether the matter ought to be inquired into.

Since the question flows from a partial codification of a privilege in a statute, the usual “rule” that the Speaker, the committee, and the House  do not investigate questions of law or provide opinions or finding on questions of law would not apply.  In this case that is what is constitutionally and legally required of them.    There is no-one else who has the authority to determine how a privilege is to work or exercised in the face of a statutory provision.  For anyone else to do so would infringe the independence of the House f which parliamentary privilege itself is intended to protect.

The inclusion of the particular privilege in ss.49.1 to 49.8 does not make its application any easier.  If the matter is referred the committee it will need to inquire into a number of issues, including the meaning and effect of there being no default process in the Act.   It also needs to consider what the House requires of caucuses to meet the intent of the statute?  What is the position of the House where a caucus chooses to not take a formal vote, but rather “comes to a consensus” and reports that to the Speaker?  Can, or should, the Committee look behind the statement provided to the Speaker by the Chair of a caucus, as occurred in this case?  Does it matter that the decision being challenged occurred over three years ago (the decision not to decide, or to proceed by way of consensus) and that those looking to challenge the decision were members of caucus at the time?  Assuming there is a finding that the statute, and therefore the privilege, has been breached, what is the remedy?  Force a rule and process on the caucus (i.e., establish a default)? Require the caucus in question to vote now?  Whatever they determine will, as a result of privilege, be final.

It will be interesting to see the Speaker, committee, and House handle the matter.  Will there be greater public scrutiny and pressure because the privilege is found in statute rather than in practice and precedent.   If this is the case the committee and all parliamentarians should ask themselves if greater scrutiny and diligence was intended by elevating this particular process and privilege to inclusion in a statute (even though it can be opted out of by a caucus).   Do parliamentarians and the public see a privilege found in a statute as more important than one found in a mere standing order, rule, practice or precedent?   If this is the case, then was it intended that this particular privilege be more important than those which rest only on practice and precedent?  Did anyone anticipate that by including the process in a statute that issues of compliance would be argued to be “illegal” actions, or “contrary to the rule of law” as opposed to breaches of privilege or matters merely related to the internal affairs of the House?  Is this the way of the future or a cautionary tale?

Following the vote of the UK House of Commons on March 25 enabling it to give direction on how Brexit ought to be managed, there have been assertions by the Government members who claim that Parliament was attempting to usurp the constitutional authority of the government. Others argued that such a wresting of power from the government was unprecedented and constituted the basis of a constitutional crisis.

What has occurred may be unprecedented, but only because it is the first time a parliamentary impasse has arisen in the era of fixed election dates.

The Fixed-term Parliaments Act changed the constitutional relationship between Parliament and the government. The Act is a constitutional statute, being one that affects an aspect of the constitution or how certain parts of the constitution are to operate. Its adoption should have anticipated greater parliamentary pushback and greater involvement by Parliament in the affairs of government without the government considering such involvement as a demonstration of no confidence resulting in the dissolution of Parliament. What was not anticipated was how parliamentary impasses of a significant impact were to be resolved.

Prior to the enactment of the Fixed-term Parliaments Act, an impasse in Parliament on a matter of great national import, often between the House of Commons and the House of Lords, was resolved through the government attempting to control the House of Commons by considering such matters as matters of confidence thus demonstrating parliamentary cohesion (see my earlier post www.lexparl.com/2019/01/13/brexit-and-the-true-face-of-fixed-election-dates/). If this was not sufficient to resolve the issue the government would have request the Queen dissolve Parliament with the result being an election on the issue. In such circumstances those who lost the resulting election would accept the matter at an end and that the election provided a definitive and binding result akin to a referendum.  This was even the case when those who “lost” the election still had the ability to block the policy that led to the impasse and the election.

Issues that were significant and addressed at elections often lead to constitutional changes. For example, a budget impasse led to the convention in the House of Lords that it will not impede legislation that was specifically the subject of the election campaign. And more strikingly, there were significant changes to the relationship between the House of Commons and the House of Lords following a decisive election on Irish Home Rule. In both these instances, an election was seen not only as a vote for the establishment of a government, but specifically as a referendum on the issues.

Now, with the Fixed-term Parliaments Act, the option of an election to end an impasse is not a ready option. Governing with the confidence of the House of Commons is somewhat divorced from any particular issue. The nature of an election as a “referendum” on a policy, no matter how major, is not easily put in place. However, a referendum is now an option. And, I would suggest, in the present circumstances is the only option that is left to both the government and Parliament. As a result of the Fixed-term Parliaments Act it would appear that a referendum has replaced elections as the safety valve for addressing parliamentary impasses on significant issues.

The extraordinariness and unprecedentedness of Parliament attempting to control the government does not flow from the issue of Brexit. It primarily flows from the effects of the Fixed-term Parliaments Act, a constitutional change. The “unprecedented” nature of the situation of Parliament taking control and attempting to address a “failed” government policy cannot be measured against the past where elections provided that the way forward; but rather, it must be examined in light of the new constitutional reality envisioned by Act.

The new constitutional reality also includes the added constitutional tool of a referendum (something that was previously rare in Westminster system of government). Its use must now be considered in light of the changed constitutional reality of fixed election dates. A referendum is also a particularly useful tool for resolving major constitutional changes such as Brexit, that cut across party lines. In the present circumstances it is, I suggest, the only way for the parliamentary impasse to be resolved.

As to the form of the referendum, this is a question that may bedevil Parliament since it seems there are three, rather than two, realistic outcomes. Framing the question so as to obtain a definitive answer in such circumstances may seem impossible. I would suggest, however, that there is a way to conduct a referendum that respects constitutional history and would provide a definitive results.

As a first step, the government’s proposal should be put to the population as a means to gauge public support. This would be consistent with the prior practice that saw elections as referenda. The issue of the remaining two possibilities only arises if the government proposal was defeated. A second referendum to address these two options would be difficult and quite divisive. I would suggest therefore that they be added as a second question and that the ballots only be counted (or results disclosed) if the first question is defeated. As a result, the ballot questions could be structured as follows:

1. The government proposes that the United Kingdom leave the European Union in accordance with the withdrawal agreement reached with the European Union. Do you agree that United Kingdom leave the European Union in accordance with this agreement? (Yes/No) 

2. If the result of the vote on question 1 is that the United Kingdom not leave the European Union in accordance with the agreement should the United Kingdom,

a) leave the European Union without an agreement, or

b) revoke the notice under Article 50 and remain in the European Union?

Such a referendum would provide all three options in a structured fashion and provide a definitive result.

The Brexit situation illustrates the unintended consequences of enactments of a constitutional nature that are not fully thought through. In this case the Fixed-term Parliaments Act clearly gave the House of Commons greater ability to hold the government to account both for policy decisions and legislation by allowing it to criticize the government, and from time to find time defeat it without triggering an election. It also allowed Parliament rather than the government to have control over the timing of a premature dissolution of Parliament. However, the Act provided no mechanism for the government or Parliament to resolve a major constitutional impasse between them. Unless they could work out the disagreement the problem was left to fester within a deadlocked institution. There was also little thought given to the relationship between referenda and elections and the likelihood that there may be more referenda if elections were not plausible. If there are to be fixed term elections and little possibility of elections to resolve parliamentary impasses, then serious consideration must be given to whether and when to use referenda or to develop other appropriate means for resolution.

In the meantime, a referendum seems the only means available to address the Brexit impasse.