No Way to Make Law

The legislative process is being disgracefully abused in Ontario. Constitutional lawyers need to pay attention.

I wanted to write a post about those anti-carbon tax stickers the Ontario government wants to require gas stations to post. I will, eventually, get around to writing that post, I hope. Spoiler alert: I don’t like the idea of the Ontario government telling people what to say. Anyway, before I get around to a post detailing my objections to the substance of this policy, I need to write this one, which is about process by which the anti-carbon tax sticker requirement is being made into law. This process is disgusting, and I think we (by which I mean Canadian lawyers, especially Canadian lawyers interested in the constitution, and other members of the public interested in law and governance) need to be much more upset about it than I think we are.

The anti-carbon tax sticker requirement is set out in sub-clause 2(1) of the Federal Carbon Tax Transparency Act, 2019, Schedule 23 to Bill 100, Protecting What Matters Most Act (Budget Measures), 2019. Yes gentle reader, Schedule 23. Schedule 23 out of 61, that is. A great many things matter in the province of Ontario, one must surmise, and need protecting. The “Explanatory Note”, which provides anyone who can be bothered to read it an overview of the 61 statutes being amended or introduced by Bill 100, alone runs to more than 9000 words, or 13 dense pages of small print. And this is not because it is unduly detailed; on the contrary, in some cases, it contents itself with setting out “some highlights” of the amendments or new legislation being implemented. The actual legislation runs to about 81,000 words ― the length of a PhD dissertation. I think it is a safe bet that no one will ever bother reading that.

Among the threescore statutes concerned, a solid majority have little to do with the budget, as one would, I think, understand this word. There is the Bees Act, for instance, amended “to expand the method of delivering inspectors’ orders” made pursuant to some of its provisions; there is a new Combative Sports Act, 2019, which regulates ― so far as I can tell from its (perhaps inevitably, though I’m not sure) convoluted definitions provisions ― boxing, wrestling, and the like; there is the Courts of Justice Act, amended in relation to the publication of the Ontario Judicial Council’s reports and also to limit some civil jury trial rights; there is new legislation on Crown liability (which has received some harsh criticism); there are important changes to the Juries Act (which have actually come in for some praise); there is, of course, the gas station sticker legislation; and much, much, more, right up to some not doubt vitally important amendments to the Vital Statistics Act.

There is, so far as I can tell, no reason having anything to do with good government why these statutes need to be amended or enacted as a block, as part of a package of budget matters. Stephen Harper once had his “five priorities”, and though these were inevitably much derided, one could claim with a modicum of plausibility that a new government might focus on, say, those five things. Anyone who actually thinks that “combative sports”, carbon tax stickers, vital statistics, and 58 other things are all “what matters most” would be well advised to run, not walk, to the nearest psychiatrist’s office. (I say so without worrying for Ontario psychiatrists; they are unlikely to be burdened with many such visitors.) But of course, the reasons enact this legislative blob likely have nothing to do with good governance.

And this is where it’s time to drop the snark, and get serious ― and constitutional. In abstract separation of powers theory, the legislature is supposed to make law (except in those areas where it has delegated this power to the government, or left it to the courts; these are, of course, significant exceptions). In all the constitutional practice of all Westminster-type systems, so far as I know, the government dominates the legislative agenda. It mostly decides which statutes get in enacted and when. Still, the legislature has a distinctive role to play. For one thing, it is where legislation is debated, and debate might have some symbolic democratic value even if votes are ultimately whipped and their outcome is not in question. And for another, the process of committee study is what allows a detailed consideration of the proposed legislation, and also public submissions on it, and perhaps amendments to improve the proposal.

A government that cared about good governance would value this process. It might ultimately force its bills through, but it would at least be open to the idea that they might be improved, at the level of detail if not of principle, by input from backbenchers, members of the opposition, and members of the civil society. By contrast, a government that doesn’t care about good governance, and is only interested in getting its way as expeditiously as possible will see the legislative process, even one whose outcomes it is ultimately able to control, as a nuisance or, at best, as a needless formality. In either case, it will endeavour to deny the legislature the ability to play any other role than that of an extension of the government itself.

A government of the latter sort has a variety of means at its disposal. The amalgamation of multiple unrelated bills in a giant package, which drastically limits, perhaps to nothing, the extent to which each of them can be separately debated and studied is one of these means. Both Mr. Harper’s government and Justin Trudeau’s have been criticized for using and abusing this technique. Bill 100 is not exactly new in embodying it. But it should not be regarded as any less shocking despite this. By amalgamating 61 mostly disparate pieces of legislation, it prevents the legislature from properly considering them ― including those among them, like the Crown Liability and Proceedings Act, 2019 for example, that will become really substantial and very important statutes in their own right, as well as those, like the carbon tax sticker legislation, that have obvious, and ominous, implications for constitutional rights and freedoms. Bill 100 thus demonstrates nothing short of contempt for both good governance and the distinct constitutional role of the legislature. It is, as I have already said, disgusting and outrageous.

We have become inured to violations of what is sometimes described as legislative due process. As lawyers, we tend inevitably to focus our attention and energy where our expertise can make an obvious difference, in coming up with and then pursuing through the courts arguments about why the legislative end-product might be unconstitutional and therefore not law at all. I think this is understandable, inevitable to some extent, and perhaps even not always a bad thing. Still, by not thinking about the way laws are made, we let those who make them get away with the procedural equivalent of bloody murder.

This cannot go on. Those who take a benign view of legislatures and want to celebrate legislative engagement with constitutional issues need to get to grips with the reality of broken legislatures that act as rubber-stamps for executives that despise them. Those who, like me, are wary of legislatures and insist on the courts having a robust role in enforcing constitutional rights and other restrictions against them must nevertheless pay attention to what the legislatures are up to ― all the more so since we are more likely than our friends to take an appropriately skeptical view of the matter. But skepticism may not become indifference. We, along with the legislatures’ fans, with whom we can make peace for this purpose, need to get serious about making sure that our laws are made in a decent way ― and not in the way Ontario is making its laws right now.

Such a Person

A recent biography highlights (some of) Thomas Cromwell’s influence on the constitution

I have just finished reading Sir Diarmaid MacCulloch’s very interesting Thomas Cromwell: A Life, and thought I’d share some of its constitutional history highlights. Inevitably, I suppose, for a book written by a religious historian, Sir Diarmaid’s telling of Cromwell’s life and times focuses more on religious issues than on legal or, say, economic ones. No doubt this serves to emphasize aspects of the story to which others (including Hilary Mantel, the source of prior knowledge about Cromwell for me and, I suspect, for many others) devote less attention.

At the same time, I was at times wishing for a little less theological detail, and a bit more about the other aspects of Cromwell’s story. For example, one Cromwellian innovation of whose origins constitutional lawyers today should be at least approximatively aware since it bears the name of Cromwell’s royal master are Henry VIII clauses, which allow the Crown to make rules that will override and have the force of statutes enacted by Parliament. Yet Sir Diarmaid refers to the legislation in which such power was granted to Henry VIII, the Statute of Proclamations, only in passing in the conclusion of the book. From a lawyer’s perspective, this is disappointing – though of course Sir Diarmaid doesn’t set out to speak to lawyers in particular. In any case, here are some of the legally-relevant nuggets.

Probably the most significant constitutional legacy that Sir Diarmaid attributes (in part) to Cromwell has to do with Parliament’s role. The great changes of Henry VIII’s reign ― above all the break with Rome and the manifold interventions in the affairs of the English Church were ratified by Parliament. Other reforms, in the law and in social policy, were implemented or at least attempted to be implemented through acts of Parliament too. As Sir Diarmaid points out,

[t]his intensive use of Parliament in the 1530s, a crucial moment in its consolidation and growth when many other such assemblies in Europe were atrophying, had implications not merely for the religious future of Tudor England, but for the shape of national history thereafter. When, over the next 400 years, other European commonwealths evolved into something like nations, it was usually through an exercise of will by monarchs who felt little need of their medieval representative assemblies. Cromwell the Parliamentary veteran is the most likely candidate for having promoted Parliament in the kingdom of England at this moment. (236)

The consequence of Cromwell’s involvement of Parliament into the great matters of state was that

[t]he King’s leading men were far more frequently Parliament men from the 1530s – more precisely, they became Commons men, if a peerage did not bar them and provide a seat in the other place. … From Thomas Cromwell’s time onwards, royal advisers mostly knew what it was to sit through the squabbles, the excitement and the tedium of a Tudor Parliamentary session. (547)

Related to this transformation of Parliament from occasional forum in which consent to taxation might be generated (in return for the airing and, perhaps, redress of grievance) to a central policy-making instrument, is another Cromwellian innovation that is still with us today: by-elections. These aren’t particularly necessary when a Parliament only sits for a brief period and then is dissolved. But “in a Parliament which eventually sat over an extraordinary and unprecedented seven years”, (215) they were a most useful device. It is Cromwell who came up with it, in 1532-33.

Cromwell’s influence is also still felt in the legislative process. He hadn’t come up with the idea, but embraced and regular the use of

what was then a very recent innovation in Parliamentary procedure. It has become known as a ‘division’, and is the method by which Lords and Commons vote at Westminster right up to the present day: separating out ayes and noes into their respective groups. Until the 1520s, decisions in Parliament were customarily taken by the same ancient procedure which elected knights and burgesses to the Commons: acclamation, or, to put it another way, shouting very loudly. The louder shout won. This procedure worked best when (as in well-regulated committees throughout history) there was already general agreement and the heat had been taken out of the issue in question. In circumstances of bitter disagreement, it became clumsy and contestable. The first recorded instance of a division was in contention over a royal tax demand in the 1523 Parliament … It is possible that the King’s advisers had used the division as a way of flushing out and making visible the core of the opposition. (159)

Cromwell had been one of the opposition in 1523; as a royal advisor, and the king’s agent in the House of Commons a decade later, he made use of the division himself. As Sir Diarmaid later explains

Unity was a prized good in medieval and Tudor England: division was an aberration from the norm, hence the government’s use of voting by division in Parliamentary proceedings as a way to shame people into conformity. (240)

Cromwell helped shaped not only the legislative, but also the executive branch of government. The Privy Council appears, officially, during his time as (in effect) Henry VIII’s chief minister. Sir Diarmaid notes that while the term “Privy Council” had been used earlier, “from 1537” it acquires a new meaning and refers to

a set number of people specifically named to that position, no more than twenty or so. The phrase continued into the early Stuart age to describe the main body for executive government, and still remains fossilized in the British governmental system. … [T]his newly formalized body sat not as a vehicle for [Cromwell’s] power, but to check it. The Privy Council’s further formalization, with its own clerk and minute-book, occurred immediately on his fall in 1540: a move designed to prevent any fresh Thomas Cromwell from emerging to usurp the power now distributed among Henry VIII’s closest advisers. (398)

Recent events have reminded us, of course that this Cromwellian, or rather anti-Cromwellian, innovation is “fossilized” in the Canadian governmental system too, as provided by section 11 of the Constitution Act, 1867clerk and all.

In addition to Parliament and the executive, left a mark on the judiciary too. Indeed he held a judicial office himself (while also occupying various positions in the other two branches): that of Master of the Rolls. As with Parliament, if perhaps even less predictably, Cromwell’s tenure proved a turning point since it had the effect of “as it turned out permanently transferring the Mastership of the Rolls from the domain of Chancery-trained clerics to lay common lawyers”. (271)

Another, and more sinister, long-lasting though thankfully expunged Cromwellian legacy was the first statute criminalizing “buggery”. Its causes, in fact, were partly related to the competition between the lay and the ecclesiastical jurisdiction. Sir Diarmaid explains that

After the Papacy had created a body of canon law and church courts to administer it in the eleventh and twelfth centuries, such matters of morality as this had been the concern of church lawyers in the Western Church, and not of the King’s courts. The Act was the first major encroachment in England on that general principle, a phenomenon which occurred right across sixteenth-century Europe, Catholic and Protestant alike. (241)

But the conflict wasn’t just jurisdictional. The statute appears to have been “directly linked” to the perception, among English protestants, of “the unnaturalness of clerical celibacy generally [and] monastic corruption in particular, and so … looks like a new try-out in Cromwell’s programme of intervention in the affairs of monasteries and friaries”. (241) But of course the criminalization was not limited to wayward monks and friars. Innocent men were collateral damage in this fight – though it is perhaps naïve to think that, but for it, homosexuality would not have been criminalized.

Of course, Cromwell was on the side, or rather the chief instrument, of repression in other ways too. Disagreement with the policies he steered through Parliament at his royal master’s behest was not welcome:

If the official theory of the 1530s ran that the realm was united with one voice as expressed in Parliament, once this expression had been made anyone dissenting was not a true subject, or churchman, lord, knight or burgess. The fate of such individuals could be dire. If Cromwell crafted the rhetoric, he was also put in charge of enforcing the consequences. (236)

And, still on the subject of repression of dissenters, it is impossible to speak of Cromwell without also speaking of Thomas More. In Sir Diarmaid’s telling, neither man comes out well. Before he became the great symbol of freedom of conscience, More was in his capacity as Lord Chancellor a devotee of persecution. As he

felt himself increasingly boxed in and at odds with the King’s plans, he turned to waging implacable war on enemies of the Church whom he could crush without inhibition. Gone were the days of Cardinal Wolsey, when no one was burned at the stake for heresy: More had a positive relish for burning heretics. Since 1529, he had been saying so at savage length in print, in flat rejection of Wolsey’s conciliatory line, and although claims by angry Protestants of the next generation that he personally tortured heretics have no evidence to back them up, his words now became Church policy. (160)

Indeed, More had a “strong sense of being caught up in a cosmic battle for the soul of Europe between the Papacy and the forces of Antichrist”. (161) He has, of course, been fortunate in his biographers―but the real, historical More seems to have been closer to the sour and stern character depicted by Dame Hilary than to the hero whom so many, myself included, have long admired.

For all that, there is little doubt that More’s execution was nothing more than judicial murder. Sir Diarmaid writes that Cromwell

choreographed the judicial procedures which briskly led to More’s execution. The court’s decision was based on evidence from Richard Rich, Solicitor-General and already firmly within Cromwell’s circle of patronage, in front of jurors carefully picked by Master Secretary [one of Cromwell’s titles]. Few historical accounts have managed to make the tale of Rich’s career anything better than despicable in its opportunism and chameleon-like profession of religious belief; he is likely to have distorted what he had heard in interviews with More. (279; reference omitted)

Sir Diarmaid notes that Cromwell seems to have felt rather terrible about the whole thing:

in Cromwell’s jottings of remembrances for action … he could not bring himself to name More in relation to the business of execution … [T]he note read “When Master Fisher shall go to execution, and also the other”. (280)

Perhaps it would be unfair to say “crocodile tears”. Yet even if Cromwell’s conflicted feelings were genuine, that hardly reduces his responsibility for putting a man to death for his beliefs (however fanatical and they may otherwise have been), and in a perversion of the legal process.

Cromwell was, then, a paradoxical figure in constitutional history. He was a man who abetted royal authoritarianism, including in its murderous tendencies, of which he would himself become a victim. But he was also a man who ultimately could claim the credit for aggrandizing Parliament and setting it on the trajectory that would lead, first, to a confrontation with the Crown in which, under the leadership of a Cromwell’s nephew’s great-grandson, Parliament would judicially murder Henry VIII’s nephew’s grandson, Charles I, and then to finally securing dominance over the Crown a century and a half after Cromwell’s downfall. Not that Cromwell would necessarily have been pleased with any of that. It is perhaps for the best that we do not know the consequences of our actions.