Tag: executive power

A Tale of Two Scandals

Partisanship is undermining political accountability and constitutional checks and balances

This post is co-written with Mark Mancini

Here some harsh—yet entirely justified—words about unconstitutional actions of the executive branch of government:

[N]ot only were there no clear means of constitutional restraint, there was obvious intent to accomplish the scheme well outside the public eye. The scheme was blocked by the unlikely combination of whistleblowing and informal political pressure. Even worse, a defiant [executive] refuses to admit to any wrongdoing at all—even calling the key piece of evidence … a “perfect” call. It was essentially our good fortune (through the courage of the whistleblower) that the [voters] have access to partial information about the scandal so they can factor it into their electoral calculus. What’s the constitutional check for misconduct of that kind? Citizens can’t run to court to block this particular abuse of … power. We can’t even count on public knowledge for public accountability. The [executive] is still actively holding back material evidence. (Paragraph break omitted)

And here’s a trick question: what scandal is being described here? Is it Donald Trump’s attempt to use aid granted by Congress to suborn a Ukrainian announcement of an investigation into a political rival? Or is it Justin Trudeau’s attempt to have a prosecution of a corrupt engineering company stopped from going to trial to avoid financial difficulties for that company―and political embarrassment in Québec? The answer is, technically, that it’s former. The quotation is from the January 22 instalment of “French Press”, the thoughtful newsletter written by David French for The Dispatch. (While we’re at it, may we recommend Advisory Opinions, an equally thoughtful podcast Mr. French co-hosts with Sarah Isgur?) But, by our lights, Mr. French might as well have been writing about l’Affaire SNC Lavalin.

There too the effective head of the executive branch and his political henchmen sought to pervert the course of the execution of the law in their partisan interest. There too, they were discomfited by the unlikely decision of an official to blow the whistle instead of doing their bidding, and the resulting political pressure. There too, this political pressure was enough to arrest the illicit scheme itself, but not to bring about any real acknowledgement of wrongdoing; on the contrary, the master of the executive branch made a great show of having acted in the public interest. There too only partial information was allowed to filter out into the public domain through the medium of legislative hearings, and claims of executive privilege were raised to prevent key witnesses from speaking, or at least speaking fully. There too the courts would have been of no avail in any attempt to get to the bottom of what happened. The similarities between the two scandals are striking.

There are also some meaningful differences, to be sure. For one thing, the person who stood of in the way of the Trudeau government’s scheme to save SNC Lavalin was none other than the Attorney-General. No such high-ranking official has stood up to the Trump administration’s plans. For another, some heads have rolled as a consequence of l’Affaire SNC Lavalin: those of the Prime Minister’s principal secretary (albeit that he made a comeback only months later) and of the head of the civil service. Whether even such imperfect accountability is visited on the Trump administration is, at present, very doubtful. Another difference: obstructive as they have been, the members of Mr. Trudeau’s party in Parliament didn’t stonewall the investigation into his government’s misbehaviour to anything like the same degree as the members of Mr. Trump’s in Congress.

Still, this would be thin gruel for customary Canadian self-congratulation. In response to arguments to the effect that, since the executive’s shady plans were not allowed to come to pass, our constitutional system is working more or less as it should, we expressed here the

worry is that our constitutional set-up fails to adequately establish this connection; that it does not guarantee that ambition will counteract instead of abetting ambition; and it relies too much on human character being, if not angelic, then unusually virtuous.

Our constitutional system, we suggested, lacks the checks and balances that would ensure, or at least make it sufficiently likely, that a lawless executive could not get away with it. In particular, we were skeptical about the ability of the rules and conventions surrounding the accountability of the executive to Parliament to do this work.

Although we did not say much about this in that post, an important reason for this is partisanship, particularly the strong form of party discipline that characterizes the Canadian system. A majority party lines up behind the government formed by its leader, and has every incentive to close ranks, even at the cost of public-serving accountability. This is the inherent flaw of responsible government, which means that the ministry must have the support of a parliamentary majority (or at least an unchallenged plurality). In theory, this subordinates the executive to Parliament. In practice, the power dynamic is more often than not precisely the opposite. Of course, the obverse of this flaw is the executive’s ability to govern effectively and to implement its legislative agenda. All constitutional arrangements come with trade-offs. The question is not whether we can avoid trade-offs altogether, but whether we have made the right ones.

What is disheartening is that in the United States, whose constitutional framers made different trade-offs from ours, and where a different ― and seemingly more robust ― set of checks and balances was put in place to contain the executive, the same problem seems to have nullified those checks and balances. Mr. French writes that “[w]hen presidents work in secret to substitute their personal priorities for the public good … impeachment is the difference between punishment and permission when a president abuses his power while conducting affairs of state”. Yet if the president’s partisan allies refuse to even recognize the legitimacy of this procedure, they make him (or eventually her) just as unaccountable as a Canadian Prime Minister able to command a Parliamentary majority.   

This is not necessarily to disparage anything and everything about political partisanship. A case can be made for the proposition that Mr. Trump’s election to the presidency is the consequence of weak parties as much as of strong partisanship. But it should be clear by now that adjusting our constitutional systems to strong, and perhaps hypertrophied, partisanship is a challenge that a variety of democratic polities must face, and quickly. Our political scandals sound similar because our constitutional weaknesses are.

Why Governments Are Not Angels

The SNC-Lavalin affair reveals serious challenges to the functioning of all three branches of the Canadian government

This post is co-written with Mark Mancini

Law Matters has approached us suggesting that we write a short piece on the lessons of the SNC-Lavalin affair ― and kindly accepted to let us post it here without waiting for their publishing process to take its course. So, with our gratitude to their Editor-in-Chief Joshua Sealy-Harrington, here it is.

Attorney General Jody Wilson-Raybould was shuffled out of her office, and then resigned from cabinet; fellow minister Jane Philpott resigned too, and so have Gerald Butts, the principal secretary to Prime Minister, and Michael Wernick, the Clerk of the Privy Council. Ms. Wilson-Raybound and Dr. Philpott have now been expelled from the Liberal caucus. Indeed, the Trudeau government’s future is seemingly imperiled by the SNC-Lavalin scandal. In the unflattering light of these events, Canadians may rightly wonder about the way our government works.

It appears that many of the key decisions in the affair were made by the Prime Minister’s surrogates, who had no regard for the legality of the situation, but were only too happy to advance a political agenda. While the situation is still unfolding, one can already say that it has revealed significant challenges faced by all three branches of our government, and the defects in the ways in which they relate to one another.

Most fundamentally, the SNC-Lavalin affair requires us to take a grittier view of the way government works in Canada. As one of us wrote previously, government in the 20th century was widely perceived as a means to achieve certain substantive ends associated with the social welfare state.  The basic mythology held that, to break the “individualistic” mould of a judicially-developed law focused on upholding property rights and private contractual arrangements, Parliament and legislatures enacted complex legislation, to be administered by expert and efficient tribunals and agencies nested within the executive branch but more or less independent from the supervision of its political masters. This delegation was meant to remove from courts issues of collective justice deemed ill-suited for judicial resolution. The courts, meanwhile, were given a different but even more prestigious role: that of upholding a confined but elastic range of (mostly) non-economic individual rights and liberties.  

This rather Pollyannaish view of government persists today. The executive and agencies are seen as trustworthy technocrats, entitled to judicial deference (regardless of the absence of any real empirical evidence to support this view). Parliament, as the high-minded centre of political representation (at least so long as it is controlled by parties sympathetic to the redistributive project) and accountability. The courts, as the protectors of the rights of minorities. The SNC-Lavalin affair provides strong evidence that this picture is naïve.

The executive branch of government, it turns out, is not only populated by neutral, technocratic arbiters of policy. Rather, politically-minded actors, people like the Prime Minister’s former Principal Secretary, lurk in the shadows―and consider themselves entitled to really call the shots. These are the people who, in the face of an Attorney General’s refusal to cede to the Prime Minister’s pressure, said that they did not want to talk about legalities. They were ready to line up op-eds in newspapers to provide cover fire for their dismissive attitude toward law and discredited legislation adopted by a previous Parliament in which their party did not control the seats.

Instead of being guided by the law, or even (their own conception of) justice, these unelected, unaccountable apparatchiks are only motivated by the prospects of electoral success. Their empowerment means that even those decisions of the executive branch that are ostensibly protected by constitutional principles and conventions mandating their independence (like the prosecutorial function), are perceived as always up for grabs, according to the demands of political expediency.

Meanwhile, some civil servants are a quite prepared to act as the political hacks’ supporting cast, instead of standing up for rules and procedures. Mr. Wernick, the former head of the civil service, certainly was, having apparently had no compunctions about relaying the Prime Minister’s unconstitutional threats to the former Attorney-General and persisting when she warned him of the inappropriateness of his behavior.

But what of Parliament’s role in fostering accountability? Here again, one should not be too optimistic. A government that has the support of a majority of members in the House of Commons will also command a majority on, and thus control the work of, Select Committees, which are key to ensuring that the government is held to account beyond the limited opportunities afforded by the spectacle of question time. Admittedly, the committee supposedly looking into the SNC-Lavalin affair has let the former Attorney General present her version of the events, and it has made public the further documents she supplied, including the damning recording of one of her conversations with Mr. Wernick. Yet the committee is still resisting the calls to allow Ms. Wilson-Raybould to appear again to respond to Messrs. Butts and Wernick’s subsequent attempts to discredit her.

Parliament’s role as a locus of accountability is further compromised by the restrictions on what Ms. Wilson-Raybould is able―as a matter of ethics, at least―to say, even under cover of Parliamentary privilege. The problem is twofold. First, there is some debate about whether Parliamentary procedure would provide the former Attorney General an opportunity to speak despite the opposition of her former party colleagues. Second, even if such an opportunity is available, there is the matter of cabinet privilege, which in principle binds former (as well as current) ministers, even when they speak in Parliament. The Prime Minister could waive privilege in this case, to allow Ms. Wilson-Raybould to speak freely, but he is refusing to do so. 

Finally, the judiciary is unlikely to come out well of the SNC-Lavalin affair―even though it is not directly involved. For one thing, someone―and it is not unreasonable to suppose that that someone is not very far removed from the Prime Minister’s entourage or office―has seen it fit to drag a respected sitting judge, Chief Justice Joyal of the Manitoba Court of Queen’s Bench, through the mud in an attempt to cast aspersions on the former Attorney General. (One of us, we should perhaps note, has been more critical than the other of that judge’s views. In any case, the insinuations that Chief Justice Joyal would not follow the constitution are based on, at best, a fundamental misreading of his extra-judicial statements.)

But beyond that deplorable incident of which a sitting judge has been an innocent victim, it is the former members of the judiciary whose standing has been called into question. In particular, it is worth noting that Mr. Wernick, in his conversations with Ms. Wilson-Raybould, seemed to have no doubt that the former Chief Justice would be able to provide support for the Prime Minister’s position―despite his repeated acknowledgements that he was no lawyer. There is no question that the former Chief Justice, and other former judges involved in or mentioned in connection with the SNC-Lavalin affair, were independent while they were on the bench. Yet their willingness to become hired guns once retired, and perhaps to take aim in accordance with the government’s commands, is still disturbing.

One view of the matter is that―despite the gory appearances it projects and creaky sounds it makes― “the system works”. As Philippe Lagassé wrote in Maclean’s, referring to James Madison’s well-known remark in Federalist No. 51 that “[i]f men were angels, no government would be necessary”, the test of a government is not whether its non-angelic members turn out to be fallible, and sometimes unethical, human beings, but whether “our constitutional constructs include checks and balances to deal with their naturally occurring slip-ups”.

And perhaps the SNC-Lavalin affair ought to give new life to the idea that responsible government—and its attendant norms of political accountability and control of the executive by Parliament—provide adequate checks and balances for government in the 21st century. Despite the limitations on Parliament’s ability to hold the government to account, the opposition party has been able to whip up sufficient public scrutiny to force the hand of the incumbent ministry. Notably, the exposure of the roles played by Messrs. Butts and Wernick is a consequence of the opposition’s pressure―as well as, arguably, of the ability of the media, old and new, to involve experts capable of explaining complex constitutional issues in the discussion of political events. Perhaps, if public attention to aspects of our system that we typically do not consider can be sustained once the interest in the scandal at hand subsides, the system will even come out of it stronger than it was, especially if Parliament can, henceforth, put its mind to holding the executive accountable for its exercise of the powers Parliament has delegated to it.

But this view may well be too optimistic. Just a couple of sentences before his “if men were angels” quip, Madison issued a no less famous exhortation: “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.” The worry is that our constitutional set-up fails to adequately establish this connection; that it does not guarantee that ambition will counteract instead of abetting ambition; and it relies too much on human character being, if not angelic, then unusually virtuous.

As Dr. Philpott observed in a statement following her expulsion from the Liberal caucus, “[i]t is frankly absurd to suggest that I would leave one of the most senior portfolios in government for personal advancement”. Similarly, it seems most unlikely that Ms. Wilson-Raybould would have taken the principled stand she took, rather than doing the bidding of Messrs. Butts and Wernick and the Prime Minister himself, had she been the ordinarily self-interested politician. The ambitious thing to do for someone in her position would have been to take a hint, and to do as she was told.

And what would have happened then? Sure, her decision to overrule the Public Prosecution Service and to make a deal with SNC-Lavalin would have had to be published, and would have generated some negative publicity. But friendly journalists marshaled by Mr. Butts, and perhaps the former Chief Justice too, would have provided cover. It seems reasonable to suppose that the SNC-Lavalin affair, if we would even have been calling it that, would have been over already, and almost a certainty that it not have become the major political event that Ms. Wilson-Raybould has made it.

In other words, it is at least arguable that whether fundamental constitutional principles are upheld by our government turns rather too much on individuals doing the right thing under great political pressure, and despite their self-interest. It is to Ms. Wilson-Raybould credit that she has acted in this way. But it seems unwise, to say the least, to rely on her successors always following her example, or to suppose that her predecessors always have set a similar one.

A more realistic view of government, and of its more or less visible denizens, may thus lead us to conclude that all is not well with our constitutional system. In one respect, Madison (in Federalist No. 48) turned out to be wrong. It is not the legislative branch but the executive that “is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex”. Law enforcement, Parliament, and perhaps even the judiciary, are endangered by its obstruction, threats, and promises of favours. We must recognize the difficulty to have the slightest chance of doing anything about it.

Powerless Law

Timothy Endicott’s challenging views on law and the constraint of public power

Last week, I had the good fortune of attending the 2016 Robin Cooke lecture, delivered by Timothy Endicott. Professor Endicott’s talk, entitled “Lawful Power” was very thought-provoking, so I’ll try to summarize it here, based on the notes I took, and offer some thoughts of my own. Fittingly for a lecture named after a judge who mused about the existence of “common law rights [that] lie so deep that even Parliament cannot override them”, and a past edition of which saw Chief Justice McLachlin assert that courts can and sometimes should invoke unwritten constitutional principles, which she described as a form “modern natural law”, to invalidate legislation, prof. Endicott’s lecture explored the limits of law and government power. It too asserted the existence of “lawful powers” which many others would deny. However, it attributed such powers not only, indeed not so much, to the judiciary, but also, especially, to the Crown.

 * * *

Prof. Endicott’s headline claim that is public bodies can exercise power for the purposes for which it exists, regardless of whether the law specifically authorizes them to exercise this particular power. They all ― not only the Crown, but especially the Crown ― enjoy a form of prerogative, which prof. Endicott insists, following Locke, is not a “right to do wrong”, as many in the United Kingdom (and, I would add, elsewhere) believe, but rather a right to do good without a rule to justify the good deed. Focusing on the exercise of Crown prerogative to trigger the procedures leading to the United Kingdom’s exit from the European Union, prof. Endicott argues that it is within the purpose for which the foreign affairs prerogative exists, and thus lawful. The enactment of legislation, which those challenging to the use of the prerogative claim is necessary to grant the Crown these powers, would not add to the UK’s being ruled by law.

The trouble, prof. Endicott says, is that very few people in the United Kingdom’s history ― other than John Locke, perhaps Blackstone, and, less auspiciously, Charles I ― have much “thought about what the executive power was for”. Indeed, people’s thinking about what the executive branch is is distorted. In prof. Endicott’s view, the executive in Westminster systems it is very much a democratic and accountable one ― as least as much as, if not more than, Parliament itself. “The United Kingdom is not actually a kingdom”, he says, and the prerogative is not in a real sense a royal one. It is, by convention, exercised by the Cabinet, which is more concerned about the next election than individual members of Parliament. It is thus dangerous not to think of the Prime Minister as the people’s representative ― only if we recall that this is what she is can we think clearly about the scope of the powers she ought to be able to wield. Ultimately, in prof. Endicott’s view, it is impossible to exhaustively define the powers that public bodies will need to exercise in advance. If the executive’s prerogative power were abolished, it would need to be replaced by a very wide-ranging delegation. From a Rule of Law perspective, would that improve matters? As things stand though, the executive’s prerogative powers simply have no identifiable source ― they certainly do not arise from the common law: it is not judges that made the prerogative, but the prerogative that first made the judges.

Shifting from the executive to the legislative power, prof. Endicott argues that  Parliament’s powers too are effectively a form of prerogative ― an ability to act for the public good within bounds that are undefined and cannot be defined except by reference to the purpose of this power. Parliamentary sovereignty doesn’t mean that Parliament is entitled to enact any law (as the orthodox view has it). Parliament could not, for instance, repeal the Canada Act 1982 (which renounced legislative authority over Canada); and judges, such as (the future) Lord Cooke, have suggested the existence of substantive limits on legislative power. The better way to understand Parliament’s legislative power is that it is not “an absolute power, but an unspecific one”. Parliament itself determines its scope, and neither the courts nor anyone else can interfere with these determinations. Importantly, this rule is not (contrary to what some of the judges in R (Jackson) v Attorney-General, a.k.a. the Fox-Hunting Case, have suggested) of the judges’ making, nor is it for judges’ to do with as they please ― as a matter of law, at any rate.

Turning to the judiciary, prof. Endicott notes that courts have the power to change the law ― they can overrule precedent for instance ― but not in just any way. For example, a court could not abolish mens rea requirements in criminal law. Until the 16th, maybe even the 17th century, courts did not claim the power to interpret legislation. They have asserted this power, and it is generally accepted now, but it has no source that we could be point to. Nor is it clear what is the source of the judicial power to resolve cases when the law is not clear. Like those of the executive and of Parliament, the courts’ powers are unspecific, and prof. Endicott says, nothing would be gained by attempting to specify and circumscribe these powers in advance.

Prof. Endicott concludes from this that we should acknowledge as lawful powers of public bodies those that the law should recognize them as having, instead of obsessing about defining these powers in advance. To be sure, we should be skeptical of government power; but in order to be healthy, our skepticism of the executive branch cannot overtake that of Parliament, the courts, and indeed the voters. Trusting the latter but not the former does not make for a balanced constitution. In the end, it is not the constitution that will save us from “nightmare scenarios”, but “a political culture” such that these scenarios are “genuinely not on the table”.

 * * *

There is a lot to think about here. In an understated manner, prof. Endicott points to some very inconvenient truths for those who care about the Rule of Law. At the same time, his own framework is arguably too optimistic, and one would like to think that an alternative is possible.

Prof. Endicott is right, I am afraid, that a meaningful comprehensive prospective definition of the legal powers of all public authorities is impossible. This is perhaps most obviously so with the courts, for the reasons prof. Endicott outlines. His argument on this point is reminiscent of HLA Hart’s insistence, in The Concept of Law, that

when courts settle previously unenvisaged questions concerning the most fundamental constitutional rules, they get their authority to decide them accepted after the questions have arisen and the decision has been given. Here all that succeeds is success. (2nd ed; 153)

With legislatures, it is tempting to think that the matter is different. To be sure, the constitutions of the United Kingdom and New Zealand do not seek to set out the scope of the “lawful powers” of their Parliaments in advance in any meaningful way. (New Zealand’s Constitution Act 1986 provides, in s 15(1), that “[t]he Parliament of New Zealand continues to have full power to make laws”, which rather proves prof. Endicott’s point about the futility of vague delegations of power.) But other constitutions, like those of Canada and the United States ― especially the latter ― seek to define the legitimate scope of legislative power, by specifying both the ends to which it can be used in the provisions relative to the federal division of power, and substantive limits on rights-protecting constitutional provisions. Yet any attempt to define legislative power in advance must allow for legislative responses to currently unforeseen circumstances; hence the vague residual powers such as the states’ police power in the United States, or Parliament’s “peace, order, and good government” power in Canada. As for substantive rights-protecting limits, they are necessarily incomplete. They might prevent legislatures from killing all blue-eyed babies, to give a classic example from discussions of Parliamentary sovereignty, but usually have nothing to say about, say, the imposition of confiscatory tax rates, and any number of other forms of iniquity or stupidity. To some substantial extent, Canadian and American legislatures too are entitled to define the scope of their own law-making powers.

The notion that “government in all its actions is bound by rules fixed and announced beforehand” ― FA Hayek’s definition of the Rule of Law itself ― might thus be naïve. Yet might not it be applicable to “government” in a narrow sense ― that is to say, to the executive? Here, I would desperately like to part ways with prof. Endicott. He is right to insist that we should not trust Parliament, the courts, and the voters even as we distrust the executive. I do not trust them either. But the executive is, arguably, somewhat different from the other powers of the state, to say nothing of the electorate: it can interfere with citizens much more readily than Parliament or the courts.

Enactments and judicial decisions (and for that matter at least some administrative ones, suggesting that we perhaps should not speak and think of “the executive” as a whole, but of its multitudinous components) are only made following certain procedures. Legislation must be implemented, and its implementation can often be challenged in court. Judicial process (and, again, often administrative process too) allows directly affected parties to participate, and sometimes to appeal. Even the constitutionality of legislation can sometimes be challenged. In short, there is a certain distance, a certain buffer zone, between the exercise of the government’s legislative or judicial power and the citizen.

By contrast, there is no such buffer zone between a citizen and a policeman pointing a gun on him; or a citizen and government agent reading tapping her phone, or reading her intercepted emails. Sure, there might be after-the-fact remedies against abuses of executive power ― often better remedies than those against abuse of judicial and especially legislative power. But the abuse, in many cases, has already occurred, and can at best be compensated, not undone. This, it seems to me, is a good reason for wanting to treat executive power differently, and confine it ― or at least some of its manifestations ― within limits set out in advance , so as, to come back to Hayek, “make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge”.

 * * *

Prof. Endicott struck a rather optimistic tone, arguing that we can embrace, and need not fear, public powers acting for the greater good, without rules. Yet for me, his thesis is a pessimistic if not an altogether dystopian one ― it is a thesis not so much about “lawful power” as about the law’s powerlessness to constrain public authority. But however much we might dislike this vision, I think prof. Endicott’s argument is a very challenging one. It may well mean that we have to re-think our views of the Rule of Law to at least some extent. It encourages us to reflect on the nature and purpose of public powers, and especially of the executive power, and on the strength of the latter’s claims to legitimacy independent of that of Parliament. (On this last point, I wonder if prof. Endicott’s argument is affected by the Fixed-Term Parliaments Act in the United Kingdom.) The best, and certainly the most interesting, thinkers are not ones one agrees with all the time; they those disagreeing with whom forces us to re-examine our views and to sharpen them, because complacency in the face of their challenge is not an option. Prof. Endicott is one of them.