Parliamentary Privilege: A Question of Jurisdiction

The Ontario Court of Appeal has confirmed that Senator Mike Duffy cannot bring an action against the Senate for its decisions to reject certain expense claims and suspend him from sitting and receiving his sessional allowances , even if he could prove that the decision was politically motivated or the processes were unfair (Duffy v The Senate of Canada , 2020 ONCA 536).  The Court of Appeal upheld the decision of the Superior Court (see Blog December 21, 2018) that the various decisions of the Senate were protected by the parliamentary privileges relating to the Senate’s power to discipline senators, the power to control its own proceedings and not have those proceedings questioned in  the courts, the Senate’s control over spending and allowances of senators, and the freedom of speech.  Although the decision is an important confirmation of these privileges, what is more significant are the court’s findings on the effect of parliamentary privileges as a matter of constitutional jurisdiction.

 

Until this case, the relationship between parliamentary privilege and jurisdiction had not been addressed head on by a Canadian court.  Previous cases had arisen in two contexts. One was attempts to judicially review decisions of legislative bodies. In those cases, courts found that they were precluded by Article 9 of the Bill of Rights, 1689, from directly questioning or impeaching parliamentary proceedings, among other factors. The second type of case concerned defenses to lawsuits based on freedom of speech or, as a matter of evidence, attempts to preclude the use of Hansard to impeach a witness or ground a claim.   The Duffy case was framed differently.  This was a civil case, in damages, brought against the Senate and others, based on the actions of the Senate.  Although somewhat similar in substance to a judicial review application, the framing of the case required the courts to consider their jurisdiction directly.    The argument presented by Senator Duffy was that, if the Senate acted “illegally” or by violating his Charter rights, the courts had separate or concurrent jurisdiction to grant damages.  But for the privileges, the court would otherwise be able to hear the case as one of “wrongful discipline” or misfeasance of office, depriving the senator of his pay, and possibly for related damages based on Charter violations.  The Senate, for its part, argued that the court did not have jurisdiction to hear the case.

 

The court had two options available to it, both of which would have achieved the same result.   The court could have dismissed the action on the basis that there was no way for the case to be proven since all the evidence supporting the allegations was protected by privilege.  By striking out all the allegations that would involve the court in questioning the proceedings, there would be no remaining factual allegations capable of proof.   The second option, taken by the court, was to deny that the courts had jurisdiction, and to further indicate that jurisdiction to determine all issues related to privileges rested with the Senate.  By looking at the question as one of jurisdiction, the court saw privilege as more than a question of evidence.

 

The Ontario Court of Appeal unequivocally stated: “Parliamentary privilege is a rule of curial jurisdiction.” (para 35)   In matters covered by privilege, the Senate has the exclusive jurisdiction to decide the entire question before it and to grant whatever remedy it deems appropriate.  The court further noted that this does not “leave Senator Duffy without remedies.  Instead, he must pursue his remedies before the Senate, which has its own power of judicature according to its own rules.” (para 91)  Although articulated for the first time in Canada, the court relies on the ancient concept of a separate judicature in areas of privilege rooted in the expression and concept of the High Court of Parliament which “has a certain power of judicature—as do the two Houses in their separate capacities.  In exercising this jurisdiction, the Houses apply the law and custom of Parliament (lex et consurtuo parliamenti).” (ONCA quoting the UK Supreme Court in R v Chaytor  [2010 UKSC 52].  In the UK, this distinct jurisdiction is termed “exclusive cognizance”.

 

From a practical and practice perspective, the court has determined that not only do courts not have jurisdiction to hear cases that fall within the parameters of parliamentary privilege, but that each House does.  The concept of exclusive cognizance articulated in the UK Supreme Court has now clearly been accepted and adopted in Canada.  Parliamentary privilege not only protects the independence of Parliament, but also provides the scope and extent of its exclusive jurisdiction to determine matters that fall within that jurisdiction.  Parliamentary privilege is a legal and constitutional jurisdictional boundary between the courts and Parliament.  Only Parliament can hear and determine matters internal to Parliament and its members.  As a rule of constitutional jurisdiction based on categories of privilege, all types of proceedings in the courts, not only judicial review, are precluded.

 

The jurisdiction of Parliament, however, is specific and limited.  Parliament’s jurisdiction only runs to matters that fall within the scope of parliamentary privilege.  In this way the scope of parliamentary privilege defines the boundary of Parliament’s jurisdiction.  A matter that would normally be determined by the court, even if involves parliamentary members or officials, will continue to be a matter for the courts unless it is shown that the matter falls within a privileged category that could require a decision of Parliament on the privilege (although privilege may still affect some evidentiary aspects of the case).  One example is Chaytor in the UK, where a member of the House of Commons, alleged to have defrauded the House (an “ordinary crime”), was tried in the criminal courts.  In this case, Senator Duffy was tried and acquitted of the criminal charges that formed part of the basis for his suspension (R v Duffy, 2016 ONCJ 220).  Although related to parliamentary activity, the alleged crimes were not an aspect of privilege, nor was the determination of whether a crime was committed a matter which involved the exercise of a parliamentary privilege.  But the suspension of a member, and the determination of allowances and whether they are used properly, are.  An analogy can be drawn with ordinary employment.  An employee alleged to have stolen from her employer can be tried and acquitted in the criminal courts and still lose her job. She can bring a civil suit that will be tried and determined in a different court, on a different standard.  In the parliamentary context, the complimentary determining body is not a civil court applying civil law. It is a parliamentary body exercising its parliamentary privileges and applying the law of parliament.

 

It has long been established that Parliament has the jurisdiction to determine the application of laws within its walls and how those laws apply to its proceedings (Bradlaugh v Gossett (1884) 12 QBD 271).   What continued to remain somewhat uncertain in Canada was whether this rule applied to the Charter of Rights and Freedoms.   The decision of the Court of Appeal, based on jurisdiction, also settles this issue.  While earlier cases such as New Brunswick Broadcasting  [1993] 1 SCR 391 had decided that the Charter did not prevail over parliamentary privilege since both were constitutional in nature, the Court of Appeal decision in Duffy provides guidance on where any balancing between Charter rights and privilege is to take place—in Parliament.  This is not inconsistent with jurisprudence that holds that the Charter does not grant, or change, jurisdiction.  For a court or any body to apply the Charter, it must otherwise have jurisdiction over the subject matter, the person (or body) against whom the case is brought and the remedy.  Only once jurisdiction is established can the court, or decision maker, determine whether and how the Charter applies.  This same reasoning is now clearly applicable in the parliamentary context.  In case there is any remaining doubt, the court indicates that it is not up to the courts to reconcile privilege and the Charter, rather “where parliamentary privilege applies, the legislative body holding the privilege has the exclusive competence to adjudicate an alleged breach of the Charter.” (para 110)  It is now up to Parliament to determine how to consider the potential application of the Charter in the exercise of its privileges.

 

By framing the decision in jurisdictional terms, the Court of Appeal reminds parliamentarians that in matters of privilege may be responsible for making juridical determinations that affect the rights and/or livelihood of individuals.  With jurisdiction comes responsibility. Parliamentary institutions are by their nature partisan and political, however, there are times when they are carrying out functions that require them to set aside (or at least temper) partisanship.  This is particularly the case when individual rights are at stake. Since the courts cannot be involved, and do not provide a backstop, parliamentarians must be vigilant in their proceedings to ensure fairness of both process and outcome.  A failure to do so will not only be damaging to the individuals concerned but to the parliamentary institutions themselves.

 

Trump v Congress: Holding Leaders to Account in Congress compared to Parliamentary Oversight

The US Supreme Court decision July 9 in Trump v. Mazars USA, LLP et al (2020) 591 US ___ once again demonstrates the difference between the powers of the US Congress and the Canadian Parliament and Legislatures.  At issue was the scope of the subpoena powers of the US House of Representatives.  Various Committees of the House had subpoenaed the personal tax records of the President.  The President argued that the records were personal and therefore were beyond the scope of the subpoena power of the Committees.  On the other side, the House argued that it had broad subpoena powers that included the records in question.  The Court rejected both arguments in their extreme forms. Instead the Court set out a relatively high test for the Committees, quashing the subpoenas as they were issued.  In doing so they provided an analysis that clearly demonstrates the difference between the powers and foundations of the US Congress and Westminster Parliaments.

The Court indicated that there was no inherent stated constitutional power of Congress to issue subpoenas.  The subpoena power is a derivative one and can only be used in aid of its legislating (or impeachment) role.  In short, a subpoena must be focused on, and have the purpose of, assisting Congress in in some form of legislative initiative.  Any “oversight” role is tied to an assessment of government operations that could lead to legislative amendments.  It was difficult for the Court to find that the President’s personal tax records, like any other individual’s tax records, would be able to assist in the legislating function. However, the Court did leave the door open for such a subpoena if Congress could demonstrate that (Syllabus page 4, decision pages 19-20):

  1. There are no other sources of information that could reasonably assist Congress in its inquiry related to legislative change;
  2. The request is no broader than reasonably necessary to support Congress’ legislative objective;
  3. Congress can provide evidence to show that a subpoena advances a valid legislative purpose. The more detailed and substantial the better, particularly when the proposed legislation affects another branch of government and the office of President; and,
  4. The subpoena is not being used for institutional advantage between the branches such that a subpoena puts an undue burden on the President.

Presumably, if Congress can meet these conditions, they can re-issue the subpoenas.

The decision of the Court is firmly rooted in the American Constitution’s strict separation of powers in which each branch of the State is relatively equal to the others; the rights of individuals (here the President’s records were personal) are paramount to the power of all institutions; there is are few unwritten constitutional principles; and that Congress is purely a legislative body, with a few enumerated additional powers such as impeachment.  Finally, the Constitution is seen as a clean break from the British system of government and its Parliament.  Therefore, there are few, if any, inherent powers in any branch of the state.

The Canadian Parliament and Legislatures are founded on a completely different footing.  Whereas the US constitution is seen as a clean break from Britain, the preamble to the Canadian Constitution Act  (1867) provides that the Canadian constitution is to be similar in principle to that of the United Kingdom.  Further, section 18 provides that the two Houses of Parliament have the same privileges, immunities and powers enjoyed by the UK House of Commons.   For provincial Legislative Assemblies, the privileges, immunities, and powers flow from the Preamble (see Vaid decision in the Supreme Court of Canada 2005 SCC 30).

As a result, Parliament is sovereign and “supreme” in the sense that it has the complete upper hand in any potential “political” dispute with the government.  One of the main constitutional functions of Parliament is as a deliberative assembly that includes a primary role of holding the government to account.  The government is not co-equal with Parliament.  Continued parliamentary confidence and the resulting accountability of the government to Parliament is the focus of the constitution as it relates to the relationship between the legislative and executive branches of the State.

As for the power to summons, that power is inherent in both Houses.  Parliament in the UK, and therefore in Canada, based on the constitutional provisions noted above, was considered the “High Court of Parliament” with all the powers afforded to courts.  Although many of the functions of adjudication have passed to the courts, the inherent powers of Parliament, including the summonsing power, remains intact.

Even if the scope of the power to summons is now limited to Parliament’s functions, those functions are very broad.  There is still an underlying constitutional principle of parliamentary sovereignty and supremacy in Canada, albeit limited by the Constitution. However, the Constitution does not grant power to Parliament in the same way as in the United States.  In Canada, the constitutional assumption is that the powers of Parliament are virtually limitless, except as limited by the Constitution.  In short, unless the Constitution limits its powers, Parliament can exercise them subject only to political, not judicial, consequences.

To demonstrate the difference between Canada and the United States, one need only consider the broad scope of the parliamentary inquiry into the sponsorship program of the federal government in the early 2000’s, where numerous individuals were called to testify about their personal involvement and required to provide information.  They could not claim any constitutional right to not attend or answer questions.  Their appearances and testimony was protected by parliamentary privilege that precluded any information being used in any subsequent court or inquiry proceedings (see Gagliano v Canada (Attorney General) 2005 FC 576).  The privilege is based on the Bill of Rights, 1689, which in turn was based on the notion that Parliament was the highest court in the land and that no lower court could question anything that took there.

A second example was the 2008 inquiry into the Airbus purchases to be made in Canada, where it was alleged (although not proven) that the former Prime Minister, who was acting as a private citizen consultant on the purchases,  had taken a kick-back for certain contracts.  A parliamentary committee investigated.  During the inquiry the House of Commons used two powers of summons that were of note.  First, a major witness required by the Committee was in jail awaiting deportation for various fraud and bribery charges in Europe relating to the same subject.  In order for him to testify it was necessary for the House of Commons to authorize the Speaker to issue a warrant to the prison authorities to release the witness into the custody of the House of Commons to allow him to testify before the Committee.  The Attorney General of the province and the goaler accepted the warrant to temporarily release the witness into the custody of the House of Commons, even where the witness had been incarcerated by the equivalent of a High Court Justice.  They accepted the higher authority of Parliament without even seeking the permission of the court that issued the incarceration order.

The second was a threat to summons the tax records of the former Prime Minister. In the end this power was not tested.  As a result of the testimony of various witnesses the former Prime Minister was called as a witness to discuss the various transactions and the amounts of money that he received.  Ultimately the former Prime Minister entered into an agreement with the Canada Revenue Agency to ensure that all appropriate taxes were paid on the money received, amounts that were disclosed during the Committee proceedings.

Throughout the various proceedings the lawyers for the former Prime Minister and others had attempted to argue that their client’s rights were being infringed. However, in the end, all of the questions posed were answered under the protection of privilege.

Had the former Prime Minister been in office at the time of the Committee hearings there is every chance that he would have been compelled to produce his tax returns, and any failure to do so could have been seen as a contempt, with the possible consequence of his defeat in a vote of confidence and the collapse of his government.

This experience, when compared to the recent US Supreme Court decision clearly demonstrates the differences between the US system of separation of powers and the Westminster system of Parliament constituting the “grand inquest of the nation” with a focus on holding the government to account, in addition to legislating.  To hold a government to account and to inquire into those matters that need to be publicly examined requires the broader power to summons, and when necessary compel testimony, regardless of the position held by the witness.

Although some may see the Westminster system as antiquated and “unstable”, the requirement for continued confidence and accountability, and the ability to summons and demand answers, does provide for the ability for the people’s representatives to review in real time all concerns of public importance, politically motivated or not.  No-one in the country can avoid such necessary scrutiny.  In the end Parliament can have the government dismissed, and the government’s actions judged immediately thereafter in an election.

The decision of the US Supreme Court puts in stark contrast the distinction between a parliamentary democracy and a congressional one.  From where I sit, it is clear in my mind that a system that allows for “political” disputes are best resolved in the “political” institution whose judgements can result in its own dissolution and an immediate election.  This, in the end, is the check on the exercise of any powers used, and it is the correct one.

If nothing else, this contrast should be at the front of mind of those who may not be happy with the system that Canada has inherited from the United Kingdom and look to certain aspects of the American constitutional experience for answers: fully written constitutions, fixed election dates and proportional representation (not American, but almost necessarily tied to fixed date elections).

What we have may be far from perfect but, for the sake of democracy and transparency, political accountability of government should rest with the elected and not with the courts.

Protecting Parliamentary Democracy in “Plague” Times: Accountability and Democratic Institutions During the Pandemic Seminar

For those interested, I am presenting my recent paper published in the Commonwealth Law Bulletin as a lunch time teleconference seminar for the Canadian Bar Association (Public Sector Lawyers section) on Thursday May 28 at 11:30 am EST.  For information on registration see:

Protecting Parliamentary Democracy in “Plague” Times: Accountability and Democratic Institutions During the Pandemic

Parliaments in Times of Crisis

The Covid-19 Pandemic is not only putting extraordinary pressures on medical care workers, governments and economies, but on democratic institutions—Parliaments, Legislatures and Houses of Representatives.  These bodies that are required in democracies to pass necessary legislation, provide funding and most importantly to hold governments to account have been sidelined at best or ignored, by-passed or stripped of power at worst.

No doubt the circumstances require expediency, efficiency and flexibility.  But these goals need not be achieved at the expense of democracy, transparency and accountability.  As governments are required to spend trillions of dollars, expand and create social programs, and make decisions over life and death of millions of people, democratic representatives of those people need to have the right and ability to hold governments to account for how they are managing the crisis and the funds and resources allocated to it.  The fact that it may be necessary to grant governments emergency powers requires a parliamentary grant, recognition or endorsement of such powers (and expenditures) as well as the ability to hold the government to account for their use.

At the same time the parliamentary systems, rules, practices and in some cases constitutional constraints were established and continue to use methodologies that are hundreds of years old.  They require in person meetings, in a particular place, following particular procedures.  All of which can be easily be deemed or argued to be impossible when there are restrictions on the size of gatherings, travel restrictions and individuals who require to quarantine themselves.  But these can be seen as mere excuses.  In most of the world, millions of people are able to work from home, and businesses, particularly those based on information, are able to continue to function.  More importantly, governments, at least at the highest levels, seem to have no problem continuing to meet, make decisions and communicate their messages.  They do so without legislatures, often without opposition or democratic accountability.  The same technologies should be considered and leveraged to ensure that parliaments do not become casualties of the pandemic.

Parliamentary institutions may be old, but they are not inflexible.  As centuries-old institutions they have evolved and developed different ways to do what they do.  There is no reasons for not considering how parliaments and their members can at least carry out their core functions.  There may be technological challenges that will have to be overcome, particularly when up to 650 individuals (UK House of Commons) located in up to 650 locations have the right to participate.  But these are different from the somewhat spurious or at least unimaginative legal, procedural and constitutional arguments currently being raised.

Merely recalling the House when adjourned on an urgent basis, with a limited number of members to protect social distancing, in order to pass legislation and then having it adjourn again is not sufficient (Canada).  Less so is indicating that the House will only be called when constitutionally necessary, (reportedly the position in Australia).  The best hope so far is the UK, where the Speaker of the House of Commons, heeding the pleas of the opposition to design a process that allows ongoing accountability, has written to the Government House Leader encouraging him to propose rule changes to allow remote sittings of the House (such remote proceedings have been used by at least one Committee). Although it is not perfect to invite the government to propose rule changes, at least the Speaker has recognized the importance of the House of Commons continuing to function as an accountability body, not just as a legislator acting at the behest of the government.

Parliaments are independent constitutional entities that have the capacity to establish their own rules and practices to carry out their constitutional functions.  There are, few real legal limits on this constitutional foundation.  Other than for constitutional limits, which are few in Commonwealth Westminster systems based on parliamentary sovereignty, courts are precluded from inquiring into and judicially reviewing parliamentary proceedings and processes.  This has a long pedigree stretching back to the Bill of Rights, 1689 and was recently confirmed in the Supreme Court of Canada decision in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40.  This is the case both for process (Mikisew) and legislation (Pickin v. British Railways Board, [1974] A.C. 765).    The question really becomes what rules need to be modified and how will any new process be implemented.

There are a couple of points that will have to be borne in mind when considering how to go about a revision of rules.

The first is that all Members must be taken into account.  All Members are equally elected, although some have specific additional roles as Speaker, Ministers, Opposition Leader, Party Leaders and House Leaders.  While we focus on the “main players” we cannot lose sight that a means must be found for all to be present (or accounted for) and participate.

We also need to recognize that however Members and others participate, they are participating in a proceeding so that their work remains constitutionally protected by parliamentary privilege.  There is no particular physical limit on what constitutes a proceeding.  A parliamentary proceeding is a properly constituted meeting to carry out the collective constitutional business of the House.  So long as the House is in session (i.e. not prorogued or dissolved) it can meet when, where and how it chooses.  If a meeting is conducted under the authority of the Speaker in a manner agreed to by the House (usually through its rules which are self-policed) the meeting is a proceeding.

Certain constitutional provisions relating to royal recommendations, three votes per Bill, and quorum requirements need to be met.  Occasion must also be allowed for statutory tabling of required reports, answers, and petitions.

Finally, the processes must be agreed to by all Members.  They cannot be established by the government and imposed using its majority in such a way as to limit the rights of each Member or limit accountability.   It may be tempting for example for the government to note that a quorum is twenty (Constitution Act, 1867 s.48) and therefore only a majority of Cabinet and the Speaker need be assembled as House of Commons.

The process of establishing rules must be as inclusive of all Members as possible so that even these rule changes do not become yet a further way for party leaders and House Leaders to impose even greater discipline on who from a caucus gets to “sit”. This may be a real temptation where quorum may be met but real or cyber space is limited.  Consideration must also be given to the participation of independent members and small parliamentary groups and caucuses. New rules and procedures may need to be developed in the face of such limitations, but that is for the whole House and not a small few to decide.

Technology is available that allows for group meetings, normally for smaller numbers, but there should be a means to scale them to allow for all necessary to observe who is speaking and to indicate their desire to participate and be called upon.  There may also be a means to have some Members in the chamber and some attending remotely.

Where there needs to be smaller proceedings, then the decision of who participates should be left up to the various party caucuses (meeting remotely) to decide, not merely the leaders.  More could possibly be accomplished in writing with Members receiving information, such as draft legislation in advance.  Tabling of Bills, even electronically could be deemed acceptance on First Reading, then immediately referred to Committee for immediate all-party consideration.  The Committee could then consider the Bill remotely and report back to the House for subsequent second and third readings.  Such an approach could provide greater chance for agreement before any meeting of the whole House.

There is no legal or constitutional reason that voting take place in person at the same place.  What is important is that the integrity of the vote is maintained, and it is clear which Member voted and how they voted.  In the US there has been great concern that the system could be hacked or otherwise manipulated when there is remote voting (a technical not a constitutional or legal constraint- see March 25 Majority Staff Report to the Rules Committee) ; however, if the vote is reported in such a way that each Member sees how their vote has been recorded, with an opportunity to correct any “error”, this should not be insurmountable.  Proxy votes (if necessary) and pairing can also limit the number of votes required.

Of course, there may need to be a number of consequential amendments to the Rules and Standing Orders to flesh out the procedures. But once the basic framework is worked out, they necessarily follow.

One last point, a decision may have to be made about when these new or extraordinary rules and practices will come to an end. Again, this would be a decision for the House, not the government, to make.

In order to protect the role of their institutions in these extraordinary times and to protect against government abuse, it is necessary that each national and sub-national legislative assembly establish or direct a rules committee to convene (remotely) to consider the changes required to allow them to carry out not only their legislative functions at the whim of the government, but their function to hold government to account for the exercise of its extraordinary powers over health care, restrictions on civil liberties, and spending.

Who knows, maybe some of these changes can be taken as an opportunity to modernize the procedures and practices of the House while leaving the constitutional purposes and functions of Parliament intact. Some changes may allow for more family-friendly flexibility, health-related absences and fewer in-person meetings (particularly Committees) which require travel with its environmental costs. Such rule changes would also provide flexibility to deal appropriately with future extraordinary recalls of Parliament in emergency situations.

Witnesses Have Better Protection Before Parliament than Before Congress

Although I was not surprised that President Trump punished and effectively fired Lt. Col. Vindman and Ambassador Sondland for testifying before Committees of the US House of Representatives in the impeachment hearings, I was somewhat surprised that there is little or no constitutional protection for them against such retribution.  Had such action been taken by government officials in Canada or the UK the witnesses would be able to rely on parliamentary privilege to protect them from such consequences.  But apparently not in the land of the free and the self-proclaimed greatest democracy on earth.

The reason for the distinction appears lost to the mists of time and some not particularly well thought out drafting clean-up in the final version of the US Constitution.

The root of the parliamentary, or congressional, privilege is the same.  Prior to the English Civil War there were numerous attempts by the King or Queen to interfere in the business of the House of Commons, resulting in arrests and imprisonments for what was said or done there.  In 1642 Charles I personally entered the House of Commons to arrest a number of Members for the positions they were taking.  The resulting Civil War ended with Charles being tried by “Parliament” and executed.  Following the period of the Commonwealth under Oliver Cromwell, and a flawed and acrimonious restoration, William and Mary of Orange were requested to ascend to the throne on the basis eventually set out in the Bill of Rights, 1689.  This Bill established the relationship between the Crown and Parliament with the independence of Parliament assured.  Key to the Bill of Rights was 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

As a result, both the freedom of speech and the proceedings of the House of Commons and the House of Lords were protected from interference by the courts or the Crown.

As Michael Shenkman notes in a 2014 article in Yale Law & Policy Review, it was the sentiment and purpose of this history and the Article 9 privilege that “traveled to the American colonies by adoption in the colonial assemblies.”  In fact, wording identical to that of Article 9 of the Bill of Rights, 1689 was included in the American Articles of Confederation, 1781.  Article 5, paragraph 5 provided, “Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress”.  The Constitutional Convention in 1787 agreed to a slightly reworded provision, that replaced the word ‘Congress’ with ‘Legislature’. This was done “without recorded debate or dissent.”   The clause, along with the others, was then sent on to the Committee on Style for the final wording in the Constitution.  The result was Section 6(1) of the US Constitution- the “Speech and Debate Clause” :

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

There appears to be no rationale for the changed language, but the changes make it clear that the provision became personal to Senators and Representatives, not the institution.   And therein lies the peril to Vindeman and Sondland that manifested itself in the decision of the President.

Within 30 years following the ratification of the US Constitution in June 1788 the UK House of Commons unanimously declared (in May 1818) that the protections of Article 9 applied to witnesses before committees since they were full participants in the proceedings of Parliament.  Since that date, courts in the UK and Canada have accepted that position and confirmed that the protections in Article 9 fully extend to witnesses.  In addition, the courts have recognized that these, and all privileges, are designed to protect, and have as their purpose the protection of, the institution, not individuals.   In the United States it would appear that, while the courts claim that the privilege protects the independence of the institution of Congress and the separation of powers, it only has such effect indirectly, by giving protection to members of the institution, not to the work and functions of the institution itself.  This leaves  a gap in the protection for the participation of others in the proceedings, particularly witnesses.

In contrast, as recently as 2007, Canadian courts have confirmed the constitutional nature of the privilege set out in Article 9 of the Bill of Rights, 1689, the institutional basis of the privilege, and that witnesses can rely on the privilege to protect them from reprisal, even if the reprisal is statute based.

Two Canadian cases in the mid 2000’s considered and confirmed the Canadian position, based on British jurisprudence.  The first case involved the proposed use of testimony given by a witness before a parliamentary committee, , Charles Guité, to impeach his credibility as a witness before a public inquiry into the same subject (the Inquiry into Government Sponsorship; the “Gomery Inquiry”).   The House of Commons retained counsel to argue that the testimony before the committee was privileged and could not be used before the Inquiry for the purpose indicated.  Counsel also argued that the privilege belonged to the House and not the Committee or witness.  Commissioner Gomery agreed and requested that the House of Commons consider waiving the privilege.  The House ultimately decided not to give such a waiver, and instead confirmed the privilege.  The decision of the House was based partially on the fact that the committee and the Law Clerk of the House of Commons had given assurances to all witnesses that their testimony was privileged and that the House would protect the witnesses.

The decision to not permit the use of the testimony was judicially reviewed by the Federal Court, which upheld the privilege. In Gagliano v Canada (Attorney-General) , [2005] 3 FCR 55 the court summarized its findings:

[72] …[T]he power to preclude cross-examination of witnesses using evidence obtained in previous proceedings of Parliament falls within the scope of parliamentary privilege because it is necessary to the functioning of Parliament. It is necessary at three levels: to encourage witnesses to speak openly before the parliamentary committee, to allow the committee to exercise its investigative function and, in a more secondary way, to avoid contradictory findings of fact.

[74] The longstanding justification for the privilege of free speech is this: it protects the capacity of both parliamentarians and witnesses to speak freely without fear of being questioned later. As we saw earlier, this justification goes back to the court decisions preceding even the Bill of Rights, 1688 itself and the courts have subscribed to it for centuries.

[108] Parliamentary privilege helps to demarcate the legitimate spheres of jurisdiction, and is therefore a fundamental aspect of our constitutional democracy. It makes those powers, privileges and immunities which are necessary to Parliament’s functioning in the present Canadian context subject to the exclusive jurisdiction of Parliament. It is my opinion that precluding cross-examination based on evidence presented to a parliamentary committee is necessary for that committee, primarily because it encourages witnesses to speak openly.

[109] It is also essential to the proper functioning of the committee in its investigative or inquisitorial role. And it forecloses the possibility that a finding of fact by a court or a commission of inquiry will contradict a finding of fact by a parliamentary committee or parliament as a whole.

In 2007, Deputy Commissioner of the RCMP Barbara George testified as a witness before the House of Commons Standing Committee on Public Accounts.  The Committee was studying a report of the Auditor General on Pension and Insurance Administration of the RCMP.  Ms. George was the Deputy Commissioner responsible within the RCMP for this program.  Other witnesses before the Committee contradicted the testimony of Ms. and made certain allegations against her.

Based on the testimony of Ms. George and the various other witnesses, the Commissioner of the RCMP removed her from her position and initiated an internal disciplinary investigation under the Royal Canadian Mounted Police Act and its regulations.  The gist of the investigation was that Ms. George misled the Committee, and therefore violated a provision of the RCMP regulations that “a member shall not engage in any disgraceful or disorderly conduct that could bring discredit to the Force.”  The entire allegation and basis for the investigation was the appearance and testimony of Ms. George before the Committee.

Ms George brought an application before the Federal Court to quash the investigation on the basis that her appearance and testimony were protected by parliamentary privilege. Therefore the RCMP lacked any basis for its decision to investigate her actions.  The Federal court agreed [Canada (Deputy Commissioner of the RCMP) v Canada (Commissioner of the RCMP), [2008] 1 FC 752] and quashed the disciplinary investigation.  In doing so the court made the following observations:

[63]  [I]t is worth emphasizing several key justifications for providing immunity to a parliamentary witness’ testimony. First, although witnesses before a parliamentary committee are not Members of Parliament, they are not strangers to the House either. Rather they are guests who are afforded parliamentary privilege because, as with members, the privilege is necessary to ensure that they are able to speak openly, free from the fear that their words will be used against them in subsequent proceeding… . Given the overriding importance of the House of Commons as “the grand inquest of the nation”, it is fundamental that members and witnesses alike are not inhibited from stating fully and freely what they have to say: Prebble v. Television New Zealand, [1995] 1 A.C. 321 (P.C.).

[64] Second, without the power to protect witnesses, Parliament’s investigative function would be seriously compromised because witnesses would be less forthcoming [cite omitted\

[65] Finally, if Parliament has reason to believe that a witness has deliberately misled the House, it is up to Parliament, and Parliament alone, to initiate proceedings and discipline such conduct. Misleading the House is contempt of the House punishable by the House: if a court or another entity was allowed to inquire into whether a member or a witness had misled the House, this could lead to exactly the type of conflict between two spheres of government that the wider principle of parliamentary privilege is designed to avoid…

And, to the same effect:

[76] As stated above, one of the primary justifications for providing immunity to witnesses, as well as to Members of Parliament, is to ensure that they can speak openly and freely before a Committee without fear that what they say will later be held against them. In other words, for Parliament to fulfil its deliberative and investigative functions with dignity and efficiency it is necessary that witnesses before House committees can be confident that their testimony is immune from subsequent challenges from outside the House.

After considering the facts, the court concludes:

[95] [T]he RCMP is free to investigate allegations that the applicant breached the RCMP’s Code of Conduct in the discharge of her duties, but may not investigate the specific allegation that the applicant provided false testimony to the House. Parliamentary privilege protects what is said in the House and, if the House believes it was misled, it is for the House alone to investigate and punish this offence.

In other words, any investigation based on, or derived from, the testimony or proceedings is not permissible.

In all of this it is important to note the institutional basis and benefit of the privilege. It is this and not the individual benefit that is the focus.

When compared to the American focus that is limited to Members and focused on them, rather than the institution, it is easy to see why many see parliamentary privilege generally as a protection of politicians, or some form of individual immunity.  But it is not and should not be.  The institution and all who participate in its work, including witnesses, are critically important to the separation of powers and the holding of government to account without reprisal.  I am certain that Lt. Col. Vindeman, Ambassador Sondland, and the American public would agree.

It should also be reassuring for witnesses before parliamentary committees in Canada that their testimony will be protected by privilege and that their testimony cannot be used against them either in the courts or by the government in any form of retribution.  Parliament and the constitution have their back.

End of an Experiment: The Death of the Fixed-date Parliaments Act

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.

A Short Reminder about Long Election Nights—of Minority Parliaments and the creation of government

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.

In Support of Parliamentary Democracy– Courts intervene to ensure Parliamentary Scrutiny but may have put the Queen in a tight spot

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.