A “Vaxing” Question—Prohibiting Unvaccinated MPs from Physically attending Parliamentary Proceedings

It was inevitable that Parliament would open this fall during the ongoing pandemic, and that there would be a percentage of those who are involved in the business of Parliament who would not be fully vaccinated.  There was also a strong possibility that some of them would be Members of Parliament or Senators, not to mention the staff, the public and witnesses who are required to ensure that the constitutional business of Parliament can continue as normally as possible.

It may be tempting to effectively prevent unvaccinated MPs from participating in proceedings by insisting on in-person sittings only or suggesting that they resign.  These views fail to recognize that they were, like all others, elected to be Members in this Parliament.  It may be that a vast majority of Canadians do not agree with the position of these Members, but the fact that one does not agree with the views of any Member, regardless how dangerous, cannot be the basis for exclusion.  Denying a Member participation in the business of the House, based on their beliefs, denies not only them, but also their constituents, from participation in the nation’s central democratic institution.

However, this does not mean that the House and the Senate cannot and should not take the necessary steps to protect themselves from the threat of illness presented by those who are not vaccinated.  More importantly, the threat of an outbreak could also interfere with the business of Parliament, including legislating and holding the government to account.  Members have the ability and the obligation to protect themselves from potential contagions, regardless of the source, including other Members.

A reasonable balance can be achieved.

The first question to address is whether the House can deny a Member access to the chamber, the facilities of the House including the Member’s office, or its proceedings.  The short answer is yes.  But only the House itself, and no-one else can.  As a matter of parliamentary privilege, the House has absolute power over its constitution and proceedings.  It also has the power to discipline and regulate the behavior of Members, including the ability to decide whether to allow a Member to sit and vote and under what circumstances.  It is also the case that any decision of the House regarding the exercise of these privileges is not reviewable in any court.

I have heard it stated by commentators, and potential recalcitrant Members, that one of the privileges they enjoy is the right to attend the proceedings of the House, with the unstated corollary that they can assert this privilege even against the House.  This formulation of the privilege is not consistent with the concepts of parliamentary privilege, nor with the privilege at issue.

Parliamentary privileges have as their purpose the protection of each House of Parliament so that it can carry out its business without threat from outside the House.  In the same way that the House can protect itself from physical threat and interference it must be able to protect itself from health threats.

Like all privileges, the privilege relating to attendance belongs to the House not to the individual Member.  It is for the House to exercise its privileges how it deems best for itself and its Members collectively.  This principle was accepted by the House of Common, and Justice Gomery during the Inquiry into Sponsorship Spending, when the issue arose regarding whether a witness could waive privilege.  It was asserted by the House, and accepted by Justice Gomery, that only the House itself could waive the privilege, not an individual.

The privilege relating to attendance is not correctly characterized by the Members and commentators.  While it may seem that the privilege belongs to individual Members because it is often raised by a member who has had their access impeded, the privilege belongs to the House.  The privilege is that that the House of Commons has the right of attendance of its Members and that its Members cannot be impeded, molested or obstructed from attendance.  The privilege is against the world outside of the House and its proceedings.  It precludes others from interfering in the business of the House and its Members.  It is to be asserted by the House, not against it.

Although in slightly different circumstances, there are clear precedents where the UK House of Commons has denied Members the right to sit and vote.  In 1868, a Mr. Bradlaugh was elected to the UK House of Commons, but because he was an avowed atheist, he refused to swear an oath of allegiance.  When advised that he could not then take his seat he said he would take the oath, but it was clear that he really did not believe sufficiently to be able to swear.  The UK House of Commons then voted to deny him the ability to swear the oath.  As a result, he was denied the ability to take his seat.  He sought review in the courts.  The UK courts denied his request on the basis that it was up to the House to decide the conditions for sitting.  This case was cited with approval by the Supreme Court of Canada in at least two privilege cases.

Again, in the 1970’s elected members of the Sien Fein were elected  to the UK House of Commons and refused to take the oath.  Like Bradlaugh before them, they and were denied the ability to sit.  They then sought other benefits provided by the House and the Speaker denied these to them.  Again, the Northern Ireland (UK) courts refused to intervene.

In Canada, legislative assemblies have been faced with not allowing members to sit and vote for failing to file election expenses on time and have allowed members to continue to sit even though the election laws say that they should be suspended until the issue is resolved.  Finally, the Senate has suspended Senators while issues of propriety of expenses were being determined.

In addition, Members have historically taken steps to protect themselves from other Members.  In October 1313, a law was passed by the English Parliament that forbade Members of Parliament and Lords, from bringing arms into either House.  This law is still effect. It is not a stretch to argue that if Members can protect themselves from physical threats posed by other Members, that they can protect themselves from health threats as well.

Members only have rights and protections as part of a collective House.  As such, they are wholly subject to the rules and decisions of the collective.  Where the actions of a Member threaten the whole with the potential of denying it the ability to carry out their constitutional functions, the whole has the responsibility to protect itself and their constitutional role.

As noted above, there are consequences for both the Member and their constituents if they are denied the ability to participate in the business and proceedings of the House of Commons.  Therefore, a means should be found to allow the fullest participation, while still protecting the House.  Fortunately, the means to do so was demonstrated by allowing virtual attendance in the previous Parliament.  This technology should be used to allow those who are not vaccinated to participate as much as the technology will allow.  Otherwise, the House may be seen to be “punishing” Members for their beliefs, rather than protecting the health of Members, staff, and other participants in proceedings and the business of the House.   Punishing Members for political or other beliefs is wrong. Protecting the institutions of democracy is not.

Parliament Should Not Use the Courts to Enforce Summons of to do so Allows Review

In May 2021 the UK House of Commons issued a draft report with a recommendation that would make it an offence to not respond to a parliamentary summons.  The courts would be able to look at the reason for the refusal in determining guilt.  I provided written evidence to the committee which was published July 15 (and can be accessed at the link below).  In my evidence I indicate the following problems.  First this would be an invitation to the courts to intervene in the business of the House contrary to Article 9 of the Bill of Rights, 1689.  This is a major constitutional change for which there is little or no benefit to the House.  A small fine months late my be seen as a mere cost of doing business.  This is far from a deterrence that will cause others to think twice.  It also does not enforce the summons.  It does not get the witness to testify, nor compel the documents or evidence to be be produced.   I suggest that the example of the Agriculture and Agri-foods Committee in Canada be used as a guide.  In that case various abattoirs refused to provide information to a committee.  The House threatened to have daily financial penalties imposed until the summons were complied with.  The government would be required to collect the fines as debts owing to the Crown.  The abattoirs complied before the penalties were imposed.

My written evidence can be found here

https://committees.parliament.uk/writtenevidence/36726/pdf/

Canadian Justice Interview Government v House of Commons

I  participated in the following interview and panel discussion on the topic of the Canadian government’s application to the Federal Court of Canada to determine that the government does not have to provide documents containing alleged national security information to the House of Commons even when ordered by the House to do so.

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.

https://www.hansardsociety.org.uk/blog/canadian-conflict-over-contempt-of-parliament-and-national-security-creates

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/