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.

Dealing with Delegation

Thoughts on a proposal for a judicial crackdown on the delegation of law-making powers to the executive

The explosive growth of legislation made by various government departments, boards, and other entities ― rather than enacted by Parliament, as legislation ought to be on the orthodox understanding of separation of powers ― is quite likely the most understudied aspect of contemporary constitutions, in Canada and elsewhere. In “Reassessing the Constitutional Foundation of Delegated Legislation in Canada“, an article that will be published in the Dalhousie Law Journal and is now available on SSRN, Lorne Neudorf sets out to shed light on and proposes means of reining in delegated legislation ― that is, rules made by the executive branch of government pursuant to a legislative authorization, often a very vague one. It is a worthwhile endeavour from which we have much to learn, even though Professor Neudorf’s arguments, and some of his recommendations, strike me as just as problematic, in their own way, as the phenomenon he criticizes.

* * *

This phenomenon’s importance is out of all proportion to the attention it receives. Professor Neudorf notes that “[b]y volume, delegated legislation is made at a rate of nearly 5-to-1 as compared to primary legislation”. (3) Yet the text of the constitution seems to say nothing at all about the executive being able to make law. On the contrary, the Constitution Act, 1867, endows Parliament and provincial legislatures with “exclusive” law-making powers. Still, the courts have recognized that the legislative bodies are able to mandate the executive to make rules having the force of law, and indeed even rules that override the provisions of laws enacted by legislatures. This, Professor Neudorf argues, is a mistake that needs to be reversed.

Professor Neudorf traces the mistake to a misguided introduction into Canadian constitutional law of orthodox, Diceyan, notions of Parliamentary sovereignty. The notion that “Parliament can make or unmake any law whatever” has always been out of place in a federation, where the Dominion Parliament and provincial legislatures were always subject to limits on their powers. In any event, the enactment of “[t]he Charter” in 1982 “cemented the location of Canadian sovereignty in the Constitution as opposed to a single lawmaking institution”. (9) Judicial decisions emphasizing the plenitude of legislative powers (subject to the constraints imposed by the Constitution Act, 1867)

should be understood as less about transplanting a robust vision of parliamentary sovereignty into Canada and more about the courts prodding along and encouraging the development of new country with a distinct identity. (9)

Yet the leading precedents on the scope of Canadian legislatures’ ability to delegate its legislative powers to the executive, notably In Re Gray, (1918) 57 SCR 150, recognize no obvious limits on delegation. In Gray, Chief Justice Fitzpatrick held that, since no limitation on delegation was expressed in the Constitution Act, 1867, “within reasonable limits at any rate [Parliament] can delegate its powers to the executive government” (157) ― provided that it be able to terminate and resume the powers it temporarily cedes. Professor Neudorf argues that sweeping delegation of the kind at issue in Gray “might not be viewed as reasonable outside the context of an exceptional national security threat”, (16) but the subsequent cases did not elaborate on the constraints that this reasonableness requirement might impose.

Professor Neudorf insists that Gray rests on a “narrow and technical interpretation of the Constitution”, an “outmoded interpretive approach”, (18) long superseded by “living tree” constitutional interpretation. Applying this approach, the courts ought to

engage with how the Constitution sees Parliament: as a key part of the basic constitutional architecture: possessing democratic, representative and accountable qualities, and the key player in bringing together different constituencies to formulate national policy and resolve pressing questions facing the country as a whole. (23)

Delegation imperils Parliament’s position, envisioned by John A. Macdonald, as the constitutional cornerstone. It hands law-making over to persons and bodies that are not representative and often operate behind the thick veil of cabinet secrecy. Delegation also undermines the Rule of Law (which provides additional reasons to favour transparent lawmaking) and the separation of powers.

Therefore, Professor Neudorf proposes a number of ways of curtailing the use of delegation. To begin with,

courts should adopt a stricter interpretation of statutory provisions that delegate lawmaking power and strengthen the rigour of the vires review of regulations to overcome the current weaknesses that allow for the delegation of broad powers through generic words and exceptionally wide latitude for the exercise of delegated power. (30)

If Parliament wants to delegate broad legislative powers, courts ought to make it say so very clearly ― especially if these powers are meant to be exercised retroactively, punitively, or in a manner that is at odds with the Charter. Courts should also drop their deference to the executive’s interpretation of its authority to enact delegated legislation. Nothing less than constitutional principle compels this change of approach, which “will better safeguard Parliament’s constitutional role and give effect to the principle of legality and the rule of law”. (32) But sometimes, the courts should go further still:

when generic words are used in enabling legislation, which are incapable of intelligent qualification by the text, context or purpose of the statute, the court should hold the grant of authority invalid on the basis that it is impermissibly vague. (33)

Indeed, the grant of authority ought to be “narrower than the general purposes of the legislation, with some specificity for the kinds of regulations contemplated”. (33)

Professor Neudorf’s other set of proposals concerns the process by which regulations are reviewed in Parliament. He calls on Parliament to take its inspiration from the review systems that exist in the United Kingdom (which Professor Neudorf describes in some detail), and look into both the delegation provisions of bills as they are enacted, and the already existing regulations that may be flawed or ineffective. But here too, Professor Neudorf envisions a role for the judiciary:

If needed, a court may issue a declaration of the constitutional obligation as the impetus for Parliament to take the necessary action. In an extreme case where the scrutiny system is totally ineffective, the court may seek to enforce this constitutional obligation by holding inadequately scrutinized regulations as legally ineffective. (40)

Professor Neudorf concludes that, while the delegation of some legislative powers is desirable and necessary, and particular bodies (such as the legislatures of territories) can be quite different from the ordinary executive delegates, reform ― and judicial intervention to implement it ― is constitutionally justified and necessary.

* * *

I have mixed feelings about Professor Neudorf’s article. It addresses a real problem that deserves much more attention than it usually receives. I agree to a large extent both with the values underlying Professor Neudorf argument (notably, the empowerment of legislative institutions and the limitation of the power of the unaccountable executive) and with his specific proposals, as I shall explain. But, as noted at the outset, I think that the way in which Professor Neudorf makes his case, and indeed some aspects of his proposals, which follow from his approach to constitutional law, are deeply problematic.

Let me begin with the bad, to finish on a more positive note. Professor Neudorf’s general approach is an excellent illustration of what I recently described as “constitutionalism from the cave“:

On this view, the Canadian constitution … is not so much a law that courts must apply as a sort of shadow in Plato’s cave, a vague reflection of true constitutional ideals that the judges must discover and explain to us cavemen. The constitution’s text is not in any meaningful way binding on the courts; it is only an inadequate approximation, one whose imperfections judges can and ought to circumvent in an unceasing quest to get a clearer view of the ideal constitution.

Professor Neudorf refuses to attach any real consequence to the constitutional text’s apparent silence on the question of delegation; on the contrary, he chides the Gray court for having done so, declaring this an “outmoded” way of doing constitutional law. Professor Neudorf argues that, regardless of what the text says or doesn’t say, the courts should implement the ideal conception of Parliament and of its place in a democratically accountable system of government. As I explained, this amounts to a license for the courts to re-write the constitution, in defiance of its own provisions, which quite clearly do not contemplate its amendment by the judiciary.

The fact that I am sympathetic to the policy objectives that this re-writing would be designed to achieve is irrelevant; it’s illegitimate all the same. Professor Neudorf’s appeal to the so-called “Persons Case”, Edwards v. Attorney-General for Canada, [1930] AC 124, [1930] 1 DLR 98 (PC), to prove otherwise ― to show that good courts re-write constitutions to suit their policy preferences ― fails resoundingly. He faults the Supreme Court in that case for having been uninterested “in the question of the desirability of women Senators” (18) and believing that “giving meaning to the Constitution was a simple and neutral exercise in statutory interpretation”. (19) Yet Lord Sankey, whose opinion for the Judicial Committee of the Privy Council Professor Neudorf extols, similarly insisted the case did not involve “any question as to the rights of women”. (DLR 107) Lord Sankey’s opinion, as, for example, I have argued here, is a master class in statutory interpretation techniques ― not a policy judgment about the desirability of women Senators. And Professor Neudorf’s invocation of the wishes of John A. Macdonald ― odd in an article otherwise extolling living constitutionalism, but of a piece with the strategic (mis)use of original intent originalism by Canadian legal academics that co-blogger Mark Mancini described here ― is no more convincing. Macdonald was interested in the federal division of powers, not the question of delegation.

In short, I don’t think that Professor Neudorf succeeds in justifying the role he sees for the judiciary in implementing his more far-reaching proposals. A more robust judicial review of the vires of delegated legislation, including by the application of the principle of legality (which prevents the executive from trespassing on constitutional and common law rights without clear authorization by the legislature) only requires the courts to abandon their absurdly deferential, pro-regulatory posture. But it is much more difficult to make the case for the courts’ power to nullify vague delegations. (I don’t know whether this is impossible, but that’s a discussion for another time.) Professor Neudorf appeals to the doctrine developed under the Charter for determining whether a limitation of a constitutional right is “prescribed by law”. This is not satisfactory, because the courts have tended to treat even vague laws as sufficiently clear, and even more so because the Charter‘s requirements simply do not apply unless one of the rights it protects is at stake. And as for the idea that courts can order Parliament how to structure its review of regulations ― suffice it to say that it creates much greater separation of powers problems than it is likely to solve, and undermines the very autonomy and authority of Parliament as a democratic decision-making body that Professor Neudorf seeks to restore.

Behind the embrace of constitutionalism from the cave is a belief, which I think is not only misguided but also counterproductive, that supreme constitutional law must have an answer to any and all constitutional concerns. Professor Neudorf is quite right to characterize the rise of delegated legislation as a constitutional issue. But it simply does not follow that it is an issue that the courts must be able to fully address. As the experience of polities such as the United Kingdom (which Professor Neudorf cites as a model!) and New Zealand reminds us, it is possible to think intelligently about the constitution that is not supreme law at all. Indeed, these polities often pay much closer attention to the governance aspects of their constitutions than does Canada. Instead of calling on the courts to twist and stretch our supreme constitutional law, undermining their own commitment to the Rule of Law and indeed their credibility as impartial constitutional arbiters in the process, we should emulate these polities’ commitment to getting the constitution right as a matter of ordinary law and political process.

Professor Neudorf’s recommendations will, mostly, be very helpful in this regard. Greater judicial vigilance in reviewing the legality of the executive’s exercise of its delegated legislative powers is essential ― and it need not rest on dubious appeals to living tree interpretation. The principle of the Rule of Law, as developed by Canadian courts at least as far back as in Roncarelli v Duplessis, [1959] SCR 121, means that the executive’s authority, even if delegated by the legislature in ostensibly, indeed ostentatiously, broad terms, cannot be unlimited, and that the courts are not only authorized, but required to ensure that the executive doesn’t overstep the bounds of this delegation. Professor Neudorf is right to be concerned that Canadian courts are in serious danger of abdicating this responsibility. Recent decisions which he does not mention, notably West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, and Law Society of British Columbia v Trinity Western University, 2018 SCC 32, provide further demonstration of this point, as I argued here and here. The Supreme Court appears to see no issue what it described in West Fraser as “broad and unrestricted delegation of power”. This needs to change.

Professor Neudorf is also right to call for the development of Parliamentary procedures for the review of regulations. I wonder if the smaller number of parliamentarians in Canada in comparison with the UK might be an obstacle to copying the British system of three Select Committees devoted to the study of subordinate legislation (and the problem would, of course, be even more pressing in much smaller and unicameral provincial legislatures), but even if the UK system cannot be perfectly emulated in Canada, it seems to offer a source of inspiration if not a model for imitation.

* * *

To repeat, it is a mistake to think that judicially enforceable supreme  law must have a solution to every constitutional problem. Yet the problem Professor Neudorf identifies is real. Precisely because supreme law may be unable to help us, it is important to get ordinary law and legislative process right. Judicial review and parliamentary procedure might be less glamorous than what Canadians usually think of as constitutional law. Yet Professor Neudorf’s article should be taken as a reminder that these are properly constitutional preoccupations, and that Canadian constitutional lawyers ought to devote more of their energies to them than to the development of exotic theories about what the ideal Canadian constitution would look like.

The Good, the Bad, and the Ugly

A bill to improve Parliament’s constitutional scrutiny of legislation is a step forward ― but not good enough

Earlier this week, the federal government introduced Bill C-51, which will make some noteworthy changes to the Criminal Code ― mostly cleaning up offenses now deemed obsolete, but also codifying some principles relative to sexual that have been developed by the courts, and some other changes too. There has been quite a bit of discussion about these changes (see, for instance, this tweetstorm by Peter Sankoff), and I am not really qualified to speak to their substance, beyond saying that, all other things being equal, cleaning up the statute and making sure it reflects the law as applied by the courts are pretty clearly good things form a Rule of Law standpoint.

I do, however, want to say something about another, less commented, innovation in the bill: its clause 73, which would oblige the Minister of Justice to provide, alongside to any government bill introduced in Parliament, “a statement that sets out potential effects of the Bill on the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms. This is a step forward, although not a sufficiently bold one, but also a troubling symptom of the constitutional favouritism that afflicts the government and seems to show no signs of letting up.

* * *

The idea that the Minister of Justice ought to provide advice to Parliament about the compliance of bills with rights protections actually pre-dates the Charter. It was first introduced in subs 3(1) of the Canadian Bill of Rights, which required the Minister to

examine … every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons at the first convenient opportunity.

Identical language, but referring to the Charter, now appears in subs 4.1(1) of the Department of Justice Act. Yet these provisions, which might have involved Parliament, or at least the House of Commons, in constitutional discussions, have largely proven ineffective. There was, as we can tell from judicial decisions declaring federal legislation  invalid because contrary to the Charter (or, admittedly rarely, inoperative because contrary to the Bill of Rights), no lack of opportunities for inconsistency reports. Yet in well over half a century, only one such report has ever been made.

The reason for this is that, as the Federal Court explained in Schmidt v. Canada (Attorney General), 2016 FC 269 successive Ministers of Justice interpreted the reporting requirements as only obliging them to notify the House of Commons if they, or rather the Department of Justice (DOJ) lawyers, couldn’t come up with “[a]n argument” that the bill is constitutional “that is credible, bona fide, and capable of being successfully argued before the courts”. [5] Because DOJ lawyers are clever and creative, and perhaps also a little optimistic about their ability to mount successful arguments, this interpretation allows the Minister to avoid making a report to the House of Commons even if the constitutionality of a bill is very much in doubt.

Contrast this situation with New Zealand. Section 7 of the New Zealand Bill of Rights Act 1990 is a direct descendant of the Canadian inconsistency reporting requirements. It provides that the Attorney-General must “bring to the attention of the House of Representatives any provision in [a] Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights”. Attorneys-General have interpreted this as a duty to form their own opinion about whether proposed legislation is consistent with the Bill of Rights Act, and not merely about whether they might make credible arguments for the proposition that it is. As a result they have made almost 40 “section 7 reports” on government bills, and over 70 in total, including on non-government bills, which are not covered under current Canadian legislation and still would not be under C-51, in just 25 years. (One reason why similarly worded provisions have been interpreted so differently in Canada and in New Zealand is that New Zealand, like the United Kingdom, separates the roles of Minister of Justice and Attorney-General, and the latter, although elected as an MP and a member of the Cabinet, by convention acts in a relatively non-partisan fashion. I would love to see Canada adopt this practice, but won’t hold my breath.) And New Zealand’s Attorneys-General have gone further than the Bill of Rights Act required them to. The have also made public the advice regarding the consistency with the Act of all bills since 2003 ― not only those that they found to be inconsistent.

If enacted, Bill C-51 wuld take Canada close to New Zealand in this regard ― and, to some extent, even further. It will go further both in that it will create a statutory requirement, as opposed to a mere policy (albeit on that has been consistently followed by governments of various partisan persuasions), and in that it will formally inform not only the public but Parliament itself. On the other hand, the requirement will not go as far as the New Zealand policy, because it will only apply to legislation proposed by the government ― and not by individual MPs or Senators.

* * *

Despite its limitations, of which more very shortly, this is a good change. Getting Parliament to engage more with constitutional issues that arise when it legislates would be a wonderful thing. To be sur, we should not be too optimistic about what ministerial explanations of Charter concerns will accomplish. In New Zealand, Parliament routinely ignores the Attorney-General’s warnings about the inconsistency of bills with the Bill of Rights Act. It may well be that if such warnings, or a fortiori statements to the effect that a bill gives rise to constitutional concerns but the government believes that it is nevertheless consistent with the Charter become more common in Canada, legislators will similarly ignore them. But even occasional engagement with such concerns is likely to be an improvement on the current situation, in which they are systematically ignored whether or not Parliament is the only place where they could be addressed.

One particular issue to think about here is the role of the Senate. It is at least arguable that it would be more justified in opposing the House of Commons (at least by insisting on amendments, but perhaps even by outright defeating legislation) because of constitutional concerns than for any other reason. Having such concerns outlined by the Justice Minister would make it easier for the Senate to do this, and might thus contribute to make it a more significant legislative actor. That said, the Senate did give way to the House of Commons on the assisted suicide legislation, despite constitutional concerns, so any such changes are, for now, a matter of speculation.

As the above comparison between Canada and New Zealand shows, a lot will depend on just how the Justice Ministers approach their new statutory duties. This is where we come to the less attractive features of clause 73. Its wording is very open-ended ― to repeat, it requires reports bills’ “potential effects … on [Charter] rights and freedoms” (emphasis mine). In a way, this is useful, in that it allows the Minister to offer a nuanced assessment, and perhaps candidly say that there is no clear relevant guidance from the courts. But if a Minister wants to fudge, or simply to say, consistently with currently practice, that plausible ― but not necessarily compelling ― arguments can be made that a bill’s effects can be justified under section 1 of the Charter, clause 73 would allow that too. As Lisa Silver has noted, ministerial “statements may be self[-]serving”. On the whole, then, I would count the clause’s vagueness as a bad thing.

The other bad thing about it is that, as I noted earlier, it only applies to legislation introduced by the government. Now, it is true that most significant legislation is, in Canada anyway. But there have apparently been concerns that the last Conservative government used private members’ bills to advance policies that had its private support but with which it was unwilling to be too publicly associated. Whether or not that was true, something like that might happen in the future. And of course any bills introduced in the Senate would be exempt from scrutiny, at least until the rather hypothetical for now day when there are cabinet ministers from the Senate. In short, the exclusion of legislation not introduced by the government from the current scope of clause 73 is potentially dangerous ― and I have a hard time seeing why it should be there.

It gets worse ― indeed, in my view, it gets outright ugly. Clause 73 confirms what I have denounced the government’s tendency to treat the Charter as a favoured part of the constitution, and ignore the others, notably the Constitution Act, 1867. The clause will, if enacted and approached in good faith by the Justice Ministers (the latter a big if, as I noted above), force the government to alert Parliament to the repercussions of proposed legislation on a part of the Constitution. But why only part? Why that part? Why shouldn’t Parliament be alerted to issues surrounding the division of powers, not to mention aboriginal rights and, arguably above all, the constitution’s amending procedures? And what about the (quasi-constitutional) Bill of Rights, while we’re at it? (Though it is often forgotten, the Bill of Rights does protect some rights that have been left out of the Charter, perhaps most significantly the right to a fair trial in civil cases, and so remains relevant despite the Charter’s enactment.) Of course, the current provisions requiring inconsistency reports only concern the Charter and the Bill of Rights, but since the point of Clause 73 is to expand them, why is this expansion so selective? As I have previously explained, the vision of the Constitution that it reflects is a defective and a pernicious one. To that extent, Clause 73 deserves condemnation ― and cries out for amendment.

* * *

Let me conclude, then, with a quick sketch of what an amended version of Clause 73 that addresses the criticisms outlined above might look like:

(1) The Minister shall, for every Bill introduced in or presented to either House of Parliament cause to be tabled, in the House in which the Bill originates, a statement that sets out potential effects of the Bill on

(a) the rights and freedoms that are guaranteed by the Canadian Charter of Rights and Freedoms or recognized, declared or otherwise protected by the Canadian Bill of Rights;

(b) the aboriginal and treaty rights of the aboriginal peoples of Canada recognized and affirmed by the Constitution Act, 1982; and

(c) the scope of and limitations on Parliament’s legislative powers under the Constitution of Canada.

(2) The statement shall, in addition to any other matter, note whether, in the Minister’s opinion, it is more likely than not that the Bill is inconsistent with the Constitution of Canada.

(3) The statement shall be tabled

(a) in the case of a bill introduced in or presented by a minister or other representative of the Crown, on the introduction of that Bill; or

(b) in any other case, as soon as practicable after the introduction of the Bill.

(4) The purpose of the statement is to inform members of the Senate and the House of Commons as well as the public of those potential effects and the constitutionality of proposed legislation.

This is, in all likelihood, an imperfect effort. In particular, it might be unnecessary to require Ministerial statements on private members’ bills that never make it past first reading. I’d be grateful for any input on this, and on the corrections that might be necessary to my proposal, from those more knowledgeable than I about Parliamentary procedure and legislative drafting. But I do think that my substantive concerns are serious. I would be very nice indeed if Parliament were made to address at least some of them.

A Bad Fit

I blogged about Michael Chong’s proposed “Reform Act” back when it was first tabled as Bill C-559, criticizing both the substance of the changes it sought to introduce into the Canadian democracy, and the choice of legislation as the vehicle for effecting these changes. The bill (now C-586) has been much amended, and passed by the House of Commons recently. It now heads to the Senate. The original C-559 would, among other things, have forced federal political parties to give their caucuses the power to expel members (taking it away from the party leader) and to dismiss the leader him- or herself upon a secret vote of more than 50% of the caucus members. C-586, as it now stands, requires the caucus of each recognized party in the House of Commons to choose, after each general election, whether to grant itself these powers.

This change does not really address my criticisms of the original project’s substance. Among other things, I didn’t like the fact that, by allowing causes to remove the party leader, the Reform Act would in effect allow them to veto the choice of a different, and much broader, constituency ― whether the delegates at a leadership convention, or a party’s entire membership, or even its members and “supporters.” To me, this seemed, and still “seems a decrease, rather than an increase, in democracy.” At a minimum, this shows that the Reform Act is not a well-thought out intervention in our political arrangements. It changes some elements of the system without touching other, directly related ones. From their diametrically opposed perspectives, two op-eds published by the National Post this week confirm this.

One is by John Pepall, who argues that the Reform Act will fail to address the problem of the concentration of power in the hands of party leaders, because

[t]he authority the leaders exercise comes from their having been elected by the party — that is, the extra-parliamentary party, rather than the caucus — by virtue of which they are invested with indefinite power for an indefinite term.

As Mr. Pepall notes,

[t]he idea that parties should choose their leaders has become so entrenched in our political culture that Chong didn’t dare propose that MPs choose their leader.

The other op-ed is by the Liberal MP (and former leader who might know a thing or two about occupying that position without much support from his caucus), Stéphane Dion. Mr. Dion was one of only 17 MPs who voted against C-586, and has taken to the Post’s op-ed page to explain his vote. He notes that, unlike in the countries from which Mr. Chong found his inspiration, “in Canadian democracy, it is a longstanding tradition that the leader is elected by the party membership,” whose will would thus be undermined by a vote of the caucus. He adds that a caucus can be “regionally unbalanced,” presumably making it even less representative of the party membership.

Messrs. Pepall and Dion thus point to the disconnect between the “entrenched” “tradition” of party membership choosing its leader, and the Reform Act giving caucuses the ability to grant themselves the power to kick out the leaders. However, they draw radically different conclusions from their observations. Mr. Pepall is hoping for a “Super Chong” who would have the courage to go against the tradition and “get people to understand what needs to be done to make party leaders MPs’ leaders instead of their parties’ chosen commanders.” In other words, go further in the direction of other commonwealth countries where the caucuses not only fire, but also choose their parties’ leaders. Mr. Dion, by contrast, wants the party memberships to remain in control.  “[I]n a sound democracy,” he writes, “MPs need to secure approval of their respective party memberships before giving themselves such a power [to fire their leaders].”

My own sympathies lie with Mr. Dion. There is something perverse in wanting to improve our democracy by severing the link between party leadership and membership. However much contempt Mr. Pepall can have for what he describes as

a mish-mash of political enthusiasts who enjoy working in elections, long-time loyalists who dutifully serve from election to election, birds of passage swept in by an issue or a fetching new leader and instant members bussed in for a nomination or leadership contest and never seen again,

they are a broader and more representative constituency than a few dozen, or even a couple hundred, members of a caucus (which can indeed be unbalanced in any number of ways, as Mr. Dion points out). Party memberships are declining, as Mr. Pepall points out, but some parties are responding by opening leadership selection to non-members as well. Even those that are not seem to be moving towards one-member-one-vote arrangements, which give more people a direct say in the choice of a leader than the delegated conventions of yore.

Be that as it may, it remains the case that the Reform Act is a bad fit with the Canadian political system. It’s not that that system is particularly good. There is indeed a good case to be made for the proposition that it is broken. But if that is so, then fiddling with one particular element of it, while ignoring the way in which that element interacts with others can hardly be the solution.

Intelligent Life on Parliament Hill

In an interesting recent blog post, Brent Rathgeber, an independent MP, discusses the Supreme Court’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, and Parliament’s eventual response to it. Mr. Rathgeber’s post deserves attention for a number of reasons. Beyond its immediate subject, which is of course interesting in itself, it is relevant to the debate about the role of MPs that has been rekindled by the proposed “Reform Act” (my posts on the topic are here). In addition, Mr. Rathgeber has an interesting, albeit in my view unpersuasive, theory of the proper role of courts and of judicial review, which I will address in a separate post.

Mr. Rathgeber agrees with the Supreme Court’s decision, writing that

Sadly, there is no shortage of evidence to support [the] proposition [that these three Criminal Code Prohibitions made practising a legal trade unsafe and that is in violation to the Canadian Charter’s protection of security of the person].  Serial killer Robert Picton and Edmonton’s Project KARE’s Task Force on nearly a dozen murdered or missing women from “at risk” lifestyles are only a couple of the examples of how streetwalking is a dangerous, sometimes lethal, vocation.

As for what Parliament should do now, he notes that the government, which in his view is “[n]ot the least bit interested in harm reduction,” will be tempted by the “Nordic model” of criminalizing the purchase (though not the sale) of sex. In his view, however, doing so would be a mistake. Most importantly, as the Bedford respondents say, this approach still drives prostitution underground and thus makes it dangerous in much the same way the Supreme Court found to be unconstitutional. For another,

the liberty of purchasers also attracts Charter protection; if one could be jailed for purchasing sex, the Nordic Model becomes constitutionally suspect. I am searching for a product that is legal to sell in Canada but illegal to purchase.  I cannot come up with an example.

Better to rely on “the approach Canada takes with respect to other morally challenging products such as tobacco, alcohol, and even exotic dancing”: licensing, regulation, and prohibition only where those involved are there as a result of coercion or are minors. This “approach is imperfect in all instances, but is likely preferable to an attempt to  prohibit prostitution or unregulated anarchy.”

We can agree or disagree, of course. But what is certain is that this is a well thought-out position. Furthermore, Mr. Rathgeber is the rare politician who acknowledges that the politicians’ ability to shape the world is not unlimited. But of course his ability to think and, especially, to speak, so freely is a consequence of his being an independent MP, not beholden to ― and also, therefore, unable to influence ― any party. Were he still a member of the Conservative caucus, it is more than doubtful that he would have been able to express the same views in the same public way.

Which is a shame.  Mr. Rathgeber is, one hopes, not the only thoughtful MP; one hopes that he was not the only one among his former party colleagues. It would surely be better if the intelligent and thinking MPs were able to speak their minds and deliberate about legislation which Parliament enacts. And it is important that such deliberation happen not only behind the closed doors of a party caucus, but also in public. 

Conservative MP Michael Chong’s  Bill C-559, the “Reform Act,” intended to increase the independence of individual members of Parliament from their resepctive parties’ leaders, might seem like a way to make this more likely. But there seems to be little reason to believe that it would have allowed Mr. Rathgeber to express himself publicly while remaining a member of the Conservative caucus. Bill C-559 would make an MP’s caucus membership subject to the will of his or her riding association, which would need to approve his nomination as the party’s candidate, and caucus colleagues, who would have the power to expel him or her, taking these powers away from party leadership. But party instances (whether leadership or riding association) did not force  Mr. Rathgeber to leave the Conservative caucus. He chose to leave, citing his “comfort level in caucus,” policy disagreements, and the fact that the legislative process is subject to control by “unelected staffers” within an “opaque” Prime Minister’s Office. With Bill C-559, a conflict with caucus colleagues could lead to an MP’s expulsion ― indeed, the will of a party leader who, for whatever reason, chose to tolerate an unpopular gadfly MP might be overridden. And Bill C-559 does nothing to address the MPs’ lack of control of, or even involvement in, the legislative process.

Mr. Rathgeber’s story certainly suggests that something is rotten in our Parliament ― but also that the “Reform Act” would not stop this rot. It would be better, it seems to me, to try to take advantage of the intelligence and intellectual curiosity which, though it often seems otherwise, still exist on Parliament Hill, by involving members in the legislative process ― which, after all, is what their job description calls for. No legislation is necessary to make this happen ― only a change of attitude of party leaders who would let their colleagues be more than cogs in an electoral machine, and arguably also of the media who would not make any attempt at thinking out loud and deliberation as an opportunity for creating “gotcha” scandals and questioning the strength of a party leader. The trouble is that minds are much harder to change than laws.

Where to Stand

I wrote last week about Bill C-559, the proposed “Reform Act” that would, if enacted by Parliament, shift some power from party leaders to parliamentary caucuses and maybe individual MPs. It would do so by making it impossible for a leader to deny a candidate chosen by a local party association the ability to run for the party at an election, by making expulsions from (and re-admissions to) a party caucus subject to the caucus’ members’ secret vote, and giving a caucus the ability to dismiss a party leader, also in a secret vote, which can be instigated by 15% of its members. These changes, I wrote, raise two sorts of questions. First, would our political system be better if they were implemented? And, second, is legislation the right way to implement such changes? In this post, I will address the first of these questions.

I need to emphasize, however, that my thinking here is quite tentative, and that I do not claim any particular expertise in political matters. Nonetheless, legislation that affects the workings of Parliament is obviously a matter if constitutional significance, in a substantive sense at least, and thus of interest to me. Another important caveat is that, in reality, nobody seems to have a clear idea of what the effects of Bill C-559’s coming into force would be. Both supporters and opponents of the bill seem to be suggesting that these effects would be at once very limited (and hence the bill is either innocuous or useless) and far-reaching (and hence it is either very important or very dangerous). I think that, as a matter of precaution, we should assess the bill on the assumption that it will have a real impact ― but that is only an assumption, not even an educated guess.

Bill C-559 is described and defended as a means to give powers to MPs, at the expense of party leaders. However, it is important to make a distinction, between the powers of individual MPs and those of MPs as members of party caucuses. Of the three changes reforms of Bill C-559, only that which would make local party associations rather than party leaders responsible for endorsing party candidates will really make individual MPs more independent. Preventing a leader from unilaterally expelling an MP from caucus will do nothing for a real gadfly who breaks with the party line and thereby angers not only the leader, but also his or her caucus colleagues (who, in any case, even with C-559, would remain under a considerable influence from the leadership). As Dan Arnold notes in an op-ed in the National Post, it is scandal or rejection by colleagues, not “excessive” independence from leadership that tend to bring about MPs’ expulsions.

What is more, the independence from the leadership which C-559 would grant an MP would have a flip side: dependence on the local party association. I am not sure that an MP so dependent would be in a better position than one beholden to the party leadership to exercise independent will and judgment. Perhaps ― but I would like the supporters of this change address this issue, which I have not seen done so far. A further problem, raised by Alison Loat in an op-ed in the Globe, is that, at present, riding associations often lack the transparency and organization necessary for them to handle even their current responsibilities, never mind the increased ones that Bill C-559 would grant them. In its present form, the bill would at best do little more than shift power from one set of actors of dubious legitimacy to another.

Legitimacy is also key to assessing the proposal of giving caucuses the power to remove party leaders. The supporters of Bill C-559 argue that this power already exists as a matter of “convention.” And as a practical matter, it would probably be most difficult for a leader who lost the support of his or her caucus to cling on to leadership. However, it remains the cases that ― unlike in other Commonwealth jurisdictions to which the supporters of C-559 compare its proposals ― the ultimate source of a party leader’s legitimacy in Canada is the support not of his or her caucus, but of a much larger constituency. At the very least, it is a fairly broad set of delegates at a leadership convention; but, increasingly, it is all the members of a party (if the party uses a one-member-one-vote system for leadership contests), or an even larger number of people (for the Liberal Party, which opened its most recent leadership contest to non-member “supporters”). It is at least conceivable that a leader would lose the support of the caucus while retaining the support of the party as a whole; perhaps more realistically, a party may elect a new leader who does not enjoy the support of the caucus (Stéphane Dion may have been in that situation in 2006, though I am not sure). In such cases, how would it be legitimate for the members of the caucus to dismiss the leader and, in effect, impose their views to the party members? Bill C-559 acknowledges something like this concern by providing that, upon dismissing a leader, the caucus only has the power to appoint an interim replacement, not a permanent one. But, given the practices of Canadian political parties, even giving a caucus veto power over the members’ choice (which is what C-559 amounts to) seems a decrease, rather than an increase, in democracy.

More generally, one must ask whether Bill C-559 makes sense in light of the reality of politics in the 21st century. Democracy today does not look the same as it did in the days of James Madison or Edmund Burke, or even those of John Diefenbaker. In other Commonwealth jurisdictions, which the supporters of C-559 cite as models, and even in continental Europe, where political parties are much more regulated than in the Commonwealth, the role of legislators and legislatures has been changing. As Bernard Manin’s excellent book on The Principles of Representative Government explains, politics throughout the Western world are more leader-centric than they used to be, largely because of the leaders’ ability to use the media to connect with the electorate, and because the the complexity and challenges of today’s world favour executive decision-making. Standing athwart history and yelling ‘stop’ might be noble and even necessary, but one needs to be intelligent in picking the place where to make one’s stand.

It seems to me that Bill C-559 does not make the best choice. As Dan Arnold points out,

all that is being transferred are punitive powers – the opportunity to boot a leader, or a caucus member. This act would do nothing to give them a greater say in passing laws or having their opinions heard.

If one really wants to challenge the seemingly inexorable course of the centralization of political power in the hands of party leaders and their coteries of spin-masters, one should find ways to actually involve legislators in debate and legislation. Having more free, or at least freer, votes, as Colin Horgan suggests, would be a good start. The difficulty with this approach is that it is probably not amenable to legislation. But, of course, it is not clear that legislation is an appropriate tool to implement even the changes that Bill C-559 would make.

To Be Something

Speaking of our lawmakers, Pierre Trudeau (in)famously remarked that “when they are 50 yards from Parliament Hill, they are no longer honourable members, they are just nobodies.” Not that the honourable members fared any better on Parliament Hill ― over there they were, as he apparently also said, just “trained seals,” performing whatever tricks their party leadership wanted them to perform. Things have not changed ― certainly not in the direction of MPs becoming human beings ― since Trudeau’s times. But they will now, if one of them, the Conservative Michael Chong has his way, and Bill C-559, grandly entitled the Reform Act, which he introduced this week, is enacted.

Although its name appeals to a long tradition of legislation making the British parliamentary system more democratic, expanding the franchise from a small fraction of men to, eventually, the entire adult population, Mr. Chong’s bill would, of course, do nothing of the sort. It would, rather, shift (some) power from party leaders to MPs ― for those political parties, that is, which have any. At present, as Lori Turnbull explains in an op-ed supporting the bill,

[p]arty leaders have many tools at their disposal through which to maintain this discipline within their caucuses … Leaders decide on cabinet positions when the party holds government and shadow cabinet posts when the party sits in opposition. If a leader were really ticked off, she could refuse to sign an MP’s nomination papers when the next election comes around, thereby preventing the MP from reoffering [sic; perhaps re-offending?]. It’s a simple carrot and stick approach: leaders can reward those who are loyal and punish those who are not.

Bill C-559 would limit the leaders’ power over their MPs, and give the MPs a countervailing power over their leaders. More specifically, it would do three things. First, it would give local party organizations control over candidate nominations, removing a party leader’s ability to reject a candidate by refusing to sign onto his or her nomination. Second, it would prevent a leader from expelling an MP from his party’s caucus. An expulsion (or a readmission ― though not, perhaps interestingly, the admission of a floor-crossing member) could only take place upon the written request of 15% of the members of the caucus, approved by a majority vote on a secret ballot. And third, a written request by 15% of the members of a caucus would trigger a “leadership review”; if a majority of the members of the caucus voted against their leader on a secret ballot, the leader would be dismissed, and the caucus would elect an interim leader, pending the election of a new permanent one by the party.

Supporters of Bill C-559 might be tempted to paraphrase the Abbé Siyès: “What are ordinary MPs? Everything. What have they been hitherto in the political order? Nothing. What do they desire to be? Something.” However, before we agree that this desire ought to be gratified, we must ask two questions. One is whether the changes proposed by Bill C-559 are, substantively, a good idea. In other words, would our democracy be better if party leaders could not prevent the nomination of a candidate or expel a member of their party’s caucus, and/or if they could be removed by a vote of their caucus? The other question is whether, even if these changes would be for the better, legislation is the right way to implement them. Why not, rather, leave the parties themselves to make changes which could be implemented through their own internal rules? I will address these questions in separate posts.