Posts in Category ‘Procedure’

Privilege, the press, the law and the Internet

A recent Guardian editorial on the matter of balancing parliamentary privilege and responsible behaviour concluded thusly:

When parliament last examined the question of privilege, the internet was still in its infancy. Social media were embryonic. And the ink on the Human Rights Act was barely dry. The possibility that parliamentary privilege might intersect with the online world and the role of the press in all its complexity was not even imagined. At the very least, a new select committee examination is now required. And so, inescapably, are some clearer new responsibilities to go with MPs’ ancient rights.

This was in response to the recent naming in Parliament of a prominent footballer by MP John Hemmings in defiance of a super-injunction that is still in force. Hemmings used parliamentary privilege to name the footballer and argued that he had a right to do so because the footballer’s name had already been revealed by a Scottish newspaper (which argued it wasn’t bound by the restrictions of an injunction issued by an English court) as well as in papers from other countries and, more importantly, by 75,000 users on Twitter. It wasn’t the first time Hemmings had revealed the names of persons covered by a super injunction.

Parliamentary privilege grants MPs virtually unlimited freedom of speech. As explained in Erskine May:

Subject to the rules of order in debate, a Member may state whatever he thinks fit in debate, however offensive it may be to the feelings, or injurious to the character, of individuals; and he is protected by his privilege from any action for libel, as well as from any other question or molestation. (23rd ed., p. 96)

The problem is that while the press won the right back in the 18th century to report on what is said in Parliament, it is protected by qualified privilege only. Media reporting of Parliamentary proceedings is protected by the Parliamentary Papers Act 1840. This Act provides absolute immunity from civil or criminal proceedings for Hansard and any other publication of Parliament. It also provides qualified privilege in civil and criminal proceedings for individuals who publish a summary of material published in Hansard, as long as this is done in good faith and without malice.

Thus, when Hemmings named the footballer in question, this raised an important dilemma for English newspapers: the terms of the injunction barred them from naming the footballer, yet they had the right to report on what was said in Parliament. There is no judicial decision as to whether a summary of material published in Hansard which intentionally had the effect of frustrating a court order would be considered by the courts to be in good faith and without malice.

The traditional press are also confronted with the reality of information subject to a court injunction becoming public knowledge via social media sites such as Facebook and Twitter, while the press must respect the terms set forth in these various super injunctions.

This is just one example of the growing conflict between the law and the realities of social media and the Internet. I recently blogged about a section of Canada’s Elections Act which makes it illegal to publish election results from one part of the country before polls have closed in other parts of the country. This was easily enforceable back in the days of only radio and newspapers, and even with the advent of television, but it becomes much more difficult – if not impossible – to enforce online.

Similarly, Canadian judges grant publication bans on evidence presented at bail hearings and preliminary inquiries if the accused asks for one. During the trial, anything that is said or presented in court while the jury is away cannot be reported. Only after the trial can the press reveal “what the jury didn’t see.” However, here again, social media and the Internet are presenting a challenge to such measures, such as this recent case involving Facebook, and this case involving the Internet in general.

Few people will dispute the fact that the Internet and social media present major challenges to enforcing certain laws, or sections of laws, that predate the advent of instantaneous global communication.The footballer named by MP Hemmings is trying to sue Twitter, a move described as futile by Mark Stephens, a senior media lawyer at British law firm Finers Stephens Innocent:

“This is not only scraping the bottom of the barrel, this is beneath the barrel. This [injunction] information is already available on servers outside of this jurisdiction and on website outside this jurisdiction,” he said.

“You would have to be a moron in a hurry to suggest to this footballer that he throw good money and publicly excoriate himself yet further.”

In an op ed piece in the Guardian, Richard Hillgrove, a business and political public relations consultant, argues that Twitter and other social media cannot be allowed to operate outside the law. However, what he proposes strikes me to be as futile as the attempt to sue Twitter:

Clearly, they are going to have to introduce a delay mechanism so that content can be checked before it goes up. There will have to be a completely different structure, which will be difficult when the whole thing about Twitter is its spontaneity.

The ancient tradition of parliamentary privilege is not immune to scrutiny and reconsideration either. A report published recently by a committee headed by Lord Neuberger, master of the rolls (the second most senior judge in England and Wales), Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice, concluded that while injunctions cannot bind members of Parliament during debates in the House of Commons or House of Lords, those who report on those debates are in a less certain position:

Where media reporting of Parliamentary proceedings does not attract qualified privilege, it is unclear whether it would be protected at common law from contempt proceedings if it breached a court order. There is such protection in defamation proceedings for honest, fair and accurate reporting of Parliamentary proceedings. There is no reported case which decides whether the common law protection from contempt applies. There is an argument that the common law should adopt the same position in respect of reports of Parliamentary proceedings as it does in respect of reports of court proceedings.

While parliamentary privilege grants MPs and Lords almost absolute freedom of speech, there are some restrictions on this freedom, such as the sub judice rule. Simply put, matters awaiting the adjudication of a court of law should not be brought forward in debate. You can read the current resolution governing matters sub judice here. While parliamentary committees have revisited the matter of sub judice in 2005 and 2006, they’ve not examined the issue of the impact of social media and the Internet on matters before the courts, and the obvious conflicts this would present for both parliamentarians and the media alike.

As the Joint Select Committee on Parliamentary Privilege concluded back in 1999:

The privilege of freedom of speech in Parliament places a corresponding duty on every member to use the freedom responsibly. The duty is all the greater now that the debates of the two Houses may be broadcast live anywhere in the world. (…)

Free speech is the most important parliamentary privilege and members should be careful not to abuse it. Ultimately the responsibility lies with the individual member. We cannot improve on the words of the Commons procedure committee of session 1988-89:

‘We reiterate that the privilege of freedom of speech is an essential protection for members in carrying out their duties. There is no point in this privilege unless it provides guarantees against attempts from outside to control what members choose to say in the House. However, privilege carries with it responsibilities as well as rights; and those responsibilities have to be exercised within the rules laid down by the House and in conformity with the standards it expects of its members. Irresponsible or reckless use of privilege can cause great harm to outside individuals who enjoy no legal redress and, in some circumstances, could be prejudicial to the national interest. The strongest safeguard against so-called abuses is the self-discipline of individual members. This means, for instance, that a member should take steps, before making a potentially damaging accusation against a named individual, to ensure not only that evidence exists but that it comes from a normally reliable source. This does not imply that a member needs to have evidence that would satisfy a court, but that he should act on the basis of something firmer than mere rumour or supposition.’

Needless to say, these are all very complex issues, and the UK and Canada are far from being alone in confronting them. Balancing privacy rights with freedom of the press, parliamentary privilege and the free-for-all that is the Internet and social media will undoubtedly remain one of the biggest challenges facing governments for some time to come.

 

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The honourable member

One of the more curious aspects of debate in the House of Commons is that Members do not refer to each other by name, but by title, position or constituency name. This is done to guard against the tendency to personalize debate. Any Member who offends this tradition – either accidentally or on purpose – is quickly brought to order, often by other Members, as we can see in this exchange:

Mr. Ken Boshcoff (Thunder Bay—Rainy River, Lib.): Mr. Speaker, I am pleased to rise today to speak to the motion. My comments today will focus on the heart of the issue, ensuring that the government uses our taxpayer dollars to support Canadian industry.
(…)
All these cuts are hurting our regions and costing jobs for our citizens when there is no need to make the cuts. The money jar is full and overflowing, yet the Harper government continues in the heartless and shameful penny pinching.

An hon. member: You can’t say “Harper”.

Mr. Ken Boshcoff: Did I say that? I apologize immediately.

The Acting Speaker (Mr. Andrew Scheer): Order, please. The member should refer to colleagues by their riding names or by their titles.

Mr. Ken Boshcoff: When I do something wrong, I appreciate the chastisement. Thank you, Mr. Speaker.

While the Speaker of the Canadian House of Commons refers to Members or calls on them to speak by their constituency, in the UK House of Commons, the Speaker refers to members by name when he or she calls on them to speak.

In general, in the UK House of Commons, the description used is “the Honourable Member for [constituency]“. However, Privy Council members (senior Ministers, past or present, and other senior Members) are “the Right Honourable Member for … “. In Canada, only the Prime Minister and the Leader of the Opposition are generally referred to as “the Right Honourable”. However, if a former Prime Minister was still sitting in the House, he or she would also be referred to as “Right Honourable”, as would any other Member with this designation.

Often in debate in the UK, the constituency is omitted and a Member will be described as “the Honourable Member who spoke last”, “the Right Honourable Lady (or Gentleman) opposite”, etc. Ministers are usually described by their titles (e.g. “the Secretary of State”, or “the Minister” or as “the Right Honourable Gentleman, the Prime Minister” etc).

Members of the same party are most often called “my Honourable (or Right Honourable) friend“:

Nicky Morgan (Loughborough) (Con): Last Friday I visited Rawlins community college in my constituency and spoke to a very bright group of economics students. We discussed the fact that Governments cannot spend money they do not have. The students understood that; why does my right hon. Friend think the Opposition do not?

The Prime Minister: My hon. Friend makes a very good point. I know the Opposition do not like to hear about the mess they left, but let me give them some new published information about the mess they left. This is what we inherited: we are 72nd on wastefulness of Government spending, behind Kazakhstan and Cambodia; 108th on Government debt, behind Malawi, Lesotho and, yes, you’ve guessed it, Libya; and-this is the best one-on the soundness of banks, we are 133rd. Our banks, under Labour, were less sound than those in Serbia, Estonia, Madagascar and Chad. That is the record we inherited from the Opposition, and we will not tire of reminding them.

The reality of coalition government posed a bit of a dilemma at first for Liberal Democrats and Conservatives, since they were now both, arguably, on the same side, as was demonstrated during the debate on the Queen’s Speech at the opening of the new Parliament in May 2010:

Mr Peter Lilley (Hitchin and Harpenden) (Con): (…) This coalition throws up difficult problems of parliamentary etiquette, and I am the first to have to tackle them. Should I refer to my Liberal Democrat colleague as “my hon. Friend,” but that is a term reserved for members of our own parties? How about “my honourable partner”? The word “partner”, however, nowadays implies an even greater degree of intimacy than friendship, which is clearly what the Daily Mail fears, so I will stick to “my honourable ally.”

Mr. Lilley’s use of “honourable ally” didn’t catch on, and Conservative and Lib Dem MPs usually refer to each other simply as “the honourable Member” (or honourable Gentleman/Lady). However, I have noted that at times, they will also use “my honourable Friend.” The Deputy Prime Minister, Liberal Democrat Nick Clegg, fairly frequently refers to Conservative MPs that way when he is at the dispatch box. Other ministers have done the same.

This use of “honourable friend” isn’t common in the Canadian House of Commons. Members will occasionally refer to another member as “my friend”, but unlike in the UK, that usage isn’t reserved solely for members of the same party, as we can see in this exchange between an MP from the Bloc Québécois and a Conservative minister:

Ms. Louise Thibault (Rimouski-Neigette—Témiscouata—Les Basques, BQ): Mr. Speaker, does the member for Beauport—Limoilou admit—and this is my first question—that the aerospace industry in Quebec represents about 60% of this economic market? I say 60% to avoid any quibbling about whether it is 57.5% or 60%. Since she began her speech by talking about fairness—she used the words “fair spinoffs”—, why is it, talking about fair spinoffs, that her government is unable to target, in the case of a contract awarded without any call for tenders, spinoffs across Canada using known figures, such as that of 60% in Quebec? Finally, since she used those words, will she vote in favour of this motion?

Mrs. Sylvie Boucher (Parliamentary Secretary to the Prime Minister and Minister for la Francophonie and Official Languages, CPC): Mr. Speaker, I thank my friend from the Bloc. Contrary to the Bloc, the Conservatives recognize the existence of a wide aerospace market. It always makes me smile when members from the Bloc hold forth and get all worked up, when they are the first to protest against any military spending. You do not want any. Maybe you should read your own party stand on military spending before criticizing a government which Quebeckers are proud to be part of. We are in power to make decisions, something that you will never be able to do.

The Acting Speaker (Mr. Andrew Scheer): I would just remind the hon. parliamentary secretary to address her comments to the Chair and not directly to colleagues.

Here we see another important rule of address: a Member persistently offending against the tradition by using “you” is likely to be corrected by the Speaker. “You” refers to the occupant of the Chair alone.

Canadian MPs will also refer to other MPs as their “colleague”, or simply “the member”, but they are far less likely to refer to another MP as “honourable”. It isn’t unheard of, but it certainly isn’t commonplace as it is in the UK. A quick search through the Debates from various random days found at most maybe one or two instances of one member using the term “honourable” when referring to another member. Most days had no examples of this phrasing being used. It is even rarer for Canadian MPs to refer to fellow MPs as gentlemen or ladies – honourable or otherwise. I found a few examples from Committee hearings (dating back over ten years), but only one from recent debates:

Mr. Joe Preston (Elgin—Middlesex—London, CPC): Madam Speaker, I guess I should just point out right at the outset that this is what I dealt with all last week: a member who just would not stay within the boundaries of what he is supposed to talk about; a member who just would not stay within the boundaries of his time; and, I am sorry to say, a side of the table that just would not stay in the bounds of politeness. It was about as discouraging as it might get.

I have made plenty of mistakes in my life and I am happy to admit them. Long before politics I knew the member for Kings—Hants and found him to be a very honourable gentleman. This week he has tried my patience on that one, as to whether I really truly believe it at all any more.

While these rules and conventions might strike many as quaint, they do affect the tone of debate in the House. I have to say that I do find the UK House of Commons, even at its most raucous, which would be during PMQs, more respectful in tone than the Canadian House of Commons. This is certainly the case if we are comparing Question Period with PMQs. Debates on Bills in both Houses are much more sedate affairs (most of the time), and this is when Canadian MPs are most likely to use terms such as “friend” and “colleague”.

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Important Political Resources

I admit to being somewhat surprised by some of the keyword searches that bring people to this blog. It seems that too many people have no idea where to get key information – somehow they end up on this blog rather than on the sites they should be visiting to get the information they want. Consequently, I thought I would provide links to key resources based on recent keyword search activity. I will add to this post over time, as needed. Also, if any readers know of sites that should be added to this list, please comment with the link or use the site’s contact form to let me know.

Topics: Election results Canada, Election results UK, general information regarding how elections, by-elections, referendums are carried out, election financing laws, voting procedures, etc.

Elections Canada: If you are looking for information pertaining to any aspect of elections in Canada, Elections Canada should be your first stop. It will most likely be the only site you need to visit. It provides detailed election results of current and past elections, you can even download the data in CVS format. There is extensive information explaining how the voting system works, information for voters, for candidates, for parties, information about political parties, financing regulations, research and discussion papers on all things electoral, and even back-issues of the no-longer-published Electoral Insight magazine, which provides a wealth of interesting articles on various aspects of voting and elections in Canada (some dated by this point, but nonetheless interesting). If you’re looking for information about voting procedures in a particular Canadian province or territory, Elections Canada also has links to the Elections body of each (under the heading Provincial and Territorial Election Officials).

Electoral Commission: Sadly, the UK’s Electoral Commission doesn’t have the same mandate Elections Canada does – it doesn’t oversee or administer national elections. However, it still provides statistics, analysis and reports on elections, as well as information on party financing, boundary reviews, information for voters, and much more. This should still be the first place people visit for information about elections in the UK.

Another useful elections-related site for those interested in Canadian elections is the Pundits’ Guide to Canadian Federal Elections. Any possible statistic you might want about Canadian elections (going back to 1997 only) can probably be found here.

Topics: Parliamentary privilege, parliamentary procedure

A lot of people regularly search for “parliamentary privilege” and end up on my blog. I have written a few posts dealing with some aspects of privilege, but it is a very complex subject matter, and I am hardly an expert. The usual sources for information about privilege are the procedure manuals published by various parliamentary bodies. The most famous – the “bible” so to speak, is Erskine May Parliamentary Practice, now in it’s 24th edition. Sadly, Erskine May is not available online, however, the procedure manuals of the Canadian, Australian and New Zealand Parliaments are. Each has detailed sections on parliamentary privilege, and all quote Erskine May extensively.

Readers might also want to consult the UK Joint Select Committee on Privilege’s 1999 report: Parliamentary Privilege – First Report. It is somewhat dated, but still provides a thorough overview of the topic.

Topics: How Goverment works, parliamentary seating charts, number of MPs by party, general information about MPs, Committee business and reports, status of legislation before the House, Hansard, etc.

The first stop for anyone interested in any of the above, or related topics should be the official website of the parliament of the country you’re interested in. They normally have all that information and more. Here are the parliamentary websites of the countries this blog focuses on the most: Parliament of Canada, UK Parliament, Parliament of Australia, Parliament of New Zealand.

Topic: Styles of Address

Wondering how to refer to an MP, Judge, foreign dignitary, member of the Royal Family or a parliamentary secretary? The site you want is Heritage Canada’s Styles of Address. Or you could try Australia’s equivalent. And we mustn’t forget Debrett’s, the authoritative guide to addressing people.

Topic: Politicians using social media (Twitter, Facebook, etc.)

Canada: PoliTwitter aggregates the Twitter, Facebook, blog and other feeds of any elected federal or provincial official in Canada who has any online social media presence. You can sort them by federal/provincial, by province, and by party. It allows you to see immediately what various politicians and parties are tweeting, blogging and generally discussing online. You might also want to check out TweetCommons, which does something similar.

UK: PoVoice UK does something similar, but only with Twitter activity from UK politicians. It doesn’t seem to be as extensive as PoliTwitter, for example, I can’t tell if politicians have to voluntarily add their feed to it, or how it works, exactly, but I don’t follow it and so can’t really comment that much on how useful it might be. There is also TweetMinster which follows much more than MPs.

Australia: TweetMP documents all Australian federal MPs on Twitter.

Again, if you know of a site that you think should be included on this list, please comment with the relevant information, or use the Contact form.

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A few thoughts on David Laws

(For non-UK readers, David Laws is a Liberal Democrat MP who was briefly Chief Secretary to the Treasury in the Coalition government, resigning after 17 days when the Telegraph exposed that he had made false claims on his MP’s expenses. Laws repaid the money and turned himself over to the Commissioner investigating these matters. The Commissioner took almost a year to report on Laws’ case, submitting a report to the House of Commons Standards and Privileges Committee last week. The Committee reviewed the report, and in its own report, recommended that Laws be suspended from the House of Commons for seven days starting June 7 and that he apologize to the House of Commons. Laws did so last week. You can read more about this issue on Wikipedia.)

I admit to mix feelings on the David Laws case. Perhaps because I am not in the UK, I am able to view the whole MPs expenses scandal with a certain detachment. While it is good that the matter came to light, and that attempts have been made, and are still being made, to rectify the situation, I have a sense that it has become a witch hunt of sorts.

Like many, I was quite impressed with Laws when he made his debut at Treasury. I agree with the general assessment that he is probably the most able of the Lib Dem ministers, and would probably have emerged as one of the ablest members of the entire Cabinet. Because of that, I would like to see him return to Cabinet because I think he would serve the country well. It would be a tragedy to keep such a talented individual on the sidelines.

While a fair number of political commentators share that view as well, I know the overall sentiment among the general public is that Laws should most certainly not return to Cabinet, that his punishment is far too lenient and that he should be, at the very least, in jail. I’ve seen more than a few readers calling for an even more severe punishment.

Laws is regularly called a “thief” by readers who denounce him for “stealing” from taxpayers. They point to the four parliamentarians who have ended up in jail (with two more charged) and wonder why Laws isn’t there with them. Most have certainly not read the report, nor are they interested in the finer points that distinguish Laws’ wrongdoings from the actual criminal offenses committed by four MPs and two peers.

Laws didn’t “steal” inasmuch as he under claimed. His deception was administrative rather than criminal. To protect his privacy, he claimed living expenses under one rule when, had he been open about his relationship status, he should have claimed under a different rule, which would have allowed him to claim much more from taxpayers. This does not justify what he did, but it’s not exactly the same thing as “stealing”. He was entitled to claim living expenses – all MPs are. And he was actually entitled to claim more than he actually did. The Commissioner and the Committee both agreed that Laws was not trying to deceive for financial gain. Compare that to MP David Chaytor, who claimed £13,000 in mortgage expenses on a home on which the mortgage had already been paid, or MP Elliot Morley, who claimed £800 a month for a property in Scunthorpe for 18 months after the mortgage ended, and allegedly received an overpayment of £16,800 in total, and who rented out a London flat designated as his main residence to another MP, Ian Cawsey. Cawsey named the property as his second home, allowing him to claim £1,000 a month to cover the rent which he was charged by Mr Morley. In November 2007, Morley ‘flipped’ his designated second home from his Scunthorpe property to his London flat, and for four months the two men claimed expenses on the same property. Or MP Jim Devine, convicted for dishonestly claiming £3,240 for cleaning services and £5,505 for stationery using false invoices. These were deliberate attempts to defraud.

That is why Devine, Eric Illsley, Chaytor and Lord Taylor are in jail (the case of Lord Hanningfield is still before the courts and Morley is awaiting sentencing after pleading guilty) and why Laws has not been charged. There was no deliberate attempt to defraud taxpayers, and he claimed less than he could have if he’d been open about the nature of his relationship. Many readers don’t “buy” his excuse, but both the Commissioner of Standards and the Standards and Privileges Committee did believe him on that count. Many disagree with the punishment, but the Committee explained:

We have also considered whether there needs to be a stronger sanction than repayments. Not only has Mr Laws already resigned from the Cabinet, his behaviour since May 2010 has been exemplary. He quickly referred himself to the Commissioner, has already repaid allowances from July 2006 in full, and has cooperated fully with the Commissioner’s investigation. This behaviour has influenced our recommendation.

One of the rights of the House of Commons is the power to discipline its own Members. Article 9 of the Bill of Rights gives both Members and strangers protection from outside interference when engaged in the business of the House; it also subjects them to the disciplinary power of the House for their conduct during proceedings. This power affords the House a wide range of penalties for dealing with misconduct: Members may be called to order, directed to cease speaking because of persistent repetition and irrelevance in debate, “named” for disregarding the authority of the Chair, suspended from the service of the House, incarcerated or even expelled. Suspension may not seem to be much of a penalty to most, but it is one of the most serious punishments the House can impose.

I do think Laws has been sufficiently punished, since there was no deliberate attempt on his part to benefit financially. That he is financially very well off and perhaps should not make any claims at all, as some readers have commented in various media, is not the point. All MPs are entitled to claim certain expenses – this is not based on their personal financial circumstances. Laws is a very talented individual who has much to contribute both to the government and to the nation. I do hope he is allowed back into cabinet.

Ultimately, of course, it will be the voters of the Yeovil constituency who will have the last word on whether he has been punished sufficiently, should he seek to run again in 2015.

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Fixed-term Parliaments – Addendum

A comment on my earlier post suggesting that the reason why the Lords defeated the Fixed-Term Parliaments Bill was because fixed-term parliaments was not a promise made by either the Liberal Democrats or the Conservatives in their 2010 manifestos.

This, however, is incorrect. Both parties promised fixed-term parliaments. The Lib Dems did not indicate how long the term would be, but the Conservatives do specify a five-year term. Click here for the relevant section of the Lib Dem manifesto (p. 2) and and here for the Conservative promise – it’s the first item listed in the Cleaning Up Politics section.

Given that both parties campaigned on this promise, and that it was carried over to the Coalition Programme for Government, I would argue that the Salisbury Convention should have applied in this instance. For those not familiar with this convention, it is a practice adopted by the House of Lords which has evolved so that:

In the House of Lords:

A manifesto Bill is accorded a Second Reading;

A manifesto Bill is not subject to “wrecking amendments” which change the Government’s manifesto intention as proposed in the Bill; and

A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose.

There was some debate following the 2010 election if the Salisbury Convention would apply since the government was a Coalition and neither party had campaigned on the Coalition programme. The Political and Constitutional Reform Committee briefly looked at this issue in its report on Lessons from the process of Government formation after the 2010 General Election, but concluded only:

It is for individual Members of the House of Lords to decide whether to apply this convention to Bills which originate from the coalition Government’s programme for government. We have sought the views on this matter of the Leaders of the main political parties in the House of Lords, as well as the Convenor of the Independent Crossbench Peers. However, we received a range of opinions from a number of witnesses and no definitive consensus has emerged. Baroness Royall, Leader of Her Majesty’s Official Opposition in the House of Lords, has argued that these cannot rightly be called manifesto Bills. Robert Hazell argued in oral evidence that the convention actually applies to all government Bills.

However, earlier in that same report, the Committee notes (italics added):

A policy contained in a coalition agreement does not have the same mandate as a manifesto pledge, except where the policy was reflected in the manifestos of both parties to the coalition. In the case of a pledge which was contained in one coalition party’s manifesto, the popular mandate in support of it was not enough to give that party a majority. Where policies are included in a coalition agreement that were not included in the manifesto of any party to a coalition government, these carry the same authority as a non-manifesto policy adopted after an election by a single-party government.

Fixed-term parliaments were promised by both parties, therefore I would argue that this Bill should be treated the same as a Bill originating from a manifesto pledge from a government made up of a single party.

Edit: Apparently the Conservatives added fixed-term parliaments to their manifesto retroactively.

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Laws leak a contempt of parliament

David Laws, Liberal Democrat MP for Yeovil and former Chief Secretary to the Treasury, had been found been found guilty of breaking six MPs expenses rules and will be suspended from Parliament for seven days and forced to apologise to the House, according to news from both yesterday and today.

A quick backgrounder for non-UK readers. The UK Parliament was hit by a massive scandal triggered by the leak and subsequent publication by the Telegraph Group in 2009 of expense claims made by members of Parliament over several years. The scandal aroused widespread anger among the UK public against MPs and a loss of confidence in politics. It resulted in a large number of resignations, sackings, de-selections and retirement announcements, together with public apologies and the repayment of expenses. Several members or former members of the House of Commons, and members of the House of Lords, were prosecuted and sentenced to terms of imprisonment.  The Independent has a very helpful timeline of the entire matter here, for anyone interested.

When the Coalition government came to power a year ago, David Laws was named Chief Secretary to the Treasury. Seventeen days later, he resigned, after the Telegraph revealed that he too had claimed expenses he wasn’t entitled to claim. Laws turned himself in to the Parliamentary commissioner for standards, who has been investigating the matter for the past year. The commissioner submitted his report to the House of Commons Standards and Privileges committee a few days ago. The Committee has been reviewing the report, making recommendations, and is to report to Parliament tomorrow.

My point here is not to debate whether Laws is guilty or whether the punishment fits the alleged crime. There is an even larger issue at stake here.

If the reports floating around in the media today that the Committee will recommend Laws be suspended for seven days and forced to apologise to the House are true, this means that the findings of the Committee have been leaked before they can be presented to the House of Commons. Leaking the contents of a parliamentary committee report is a breach of parliamentary privilege and usually amounts to a finding of contempt of parliament.

According to Erskine May, the “bible” of parliamentary procedure, this practice goes back to the mid-17th century. While it is not always possible to identify who is responsible for the leak, when the source or sources of the leak can be identified, they are punished. In 1999, for example, two Members were identified as the sources of disclosure of committee papers and they were suspended by the House:

Standing Order No. 136 adds that the House will not entertain any complaint of contempt or breach of privilege in respect of publication of evidence given at public sittings of select committees before such evidence has been reported to the House. The publication or disclosure of debates or proceedings of committees conducted with closed doors or in private, or when publication is expressly forbidden by the House, or of draft reports of committees before they have been reported to the House will, however, constitute a breach of privilege or a contempt. (Erskine May, 23rd edition, p. 142)

The Standards and Privileges Committee was meeting behind closed doors to consider the commissioner’s report on David Laws. This leak clearly would constitute a breach of privilege or a contempt.

A point of order was raised yesterday in the House of Commons concerning the leak. The Speaker stated:

I strongly deprecate any leaks that take place that constitute a discourtesy to this House. However, I have to say to him that at this stage I have no detailed or authoritative knowledge of the matter and that it is not, at this juncture, a matter specifically for me. However, the very real concern that the right hon. and learned Gentleman feels, for his own part and that of others, has been registered, and if there has been any unauthorised disclosure it is, in the first instance, a matter for the Committee concerned to consider.

The fact that this leak came from the very committee charged with investigating matters of privilege and which decides on sanctions for MPs found guilty of breaches, is ironic on so many levels. It will be interesting to see if any further action is taken in regards to this matter once the Committee has tabled its report before the House.

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It’s not about the most seats

Recently, I’ve seen a few comments and blog posts wherein the writer states that the party that wins the most seats in the next election (but not a majority of the seats) gets to form the next government.

As I’m certain I’ve written many times before, this simply isn’t the case.

The incumbent governing party (we’ll call them Party A) is the party that gets the first chance to see if it can form a government that would command the confidence of the House. In a situation where another party (Party B) wins an outright majority of the seats, this becomes a moot point – Party A could not command the confidence of the House no matter what machinations it attempted, and so it resigns, usually immediately.

However, if an election results in a hung parliament, then Party A is still given the first shot at forming the government, even if another party has more seats (but not a majority of the seats). If the leader of Party A determines that it is unlikely to be able to command the confidence of the House, he or she resigns, and then the party that did end up with more seats will be asked to try to form a government that will command the confidence of the House.

For example, let’s pretend that the May 2 Canadian federal election results in the following seat count:

Conservatives – 120
Liberals – 129
BQ – 33
NDP – 26

As the incumbent governing party, it would be the Conservatives’ right to try to form a government first, even though the Liberals won more seats. Of course, it isn’t very likely that the Conservatives could command the confidence of the House; it is doubtful that any of the other parties would agree to support them on confidence matters (and we all know how the Conservatives feel about coalitions). Thus, one would expect that the Conservatives would resign. Only then would the Liberals be asked to try to form a government. Of course, in such a scenario, it is very doubtful that the Liberals could command the confidence of the House for very long either unless they reached some sort of agreement with at least one of  the other parties.

In the 2006 general election, even though the Liberals won fewer seats than the Conservatives (103 to 124) Martin could have waited a few days to see if some agreement or arrangement could be worked out with one or more of the other parties that would have allowed the Liberals to continue to govern. He opted not to do that, conceded defeat, and informed the Governor General the next day that he would not form a government and resigned as Prime Minister. It was only then that Stephen Harper was called on to form a government (notwithstanding media declarations of a “Conservative minority government” before all the polls had even closed).

Similarly, the 2010 UK general election saw the Conservatives end up with the most seats (306 on election day) and Labour second with 258. However, because Labour was the incumbent party, it was Gordon Brown’s prerogative to try to form a government. Brown did not resign until five days after the election, once it became clear that no workable arrangement could be found that would allow Labour to form the government. However, if the numbers had been a bit different – if the Liberal Democrats had elected 15 more members, for example, that would have potentially allowed Labour to continue as the government with the support of the Liberal Democrats – as a coalition or some other arrangement.

My point here is simply that in the UK last year, the Conservatives were not immediately declared the “winner” by the media or pundits. It was recognized that it was still Labour’s right to try to form a government first. Our system works exactly the same way. If we end up with another hung parliament, it will be the Conservatives’ right to try to form a government first, even if another party ends up with more seats.

I strongly recommend this report from the UK House of Commons Committee on Political and Constitutional Reform to everyone, and in particular this chapter. Not all of it applies to Canada because our system isn’t completely identical to that of the UK’s, but there is enough in there that does apply.

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Contempt of Parliament not a criminal offence

My attention was recently caught by a post on ProgressiveBloggers.ca asking if contempt of Parliament is a federal crime that can bar Prime Minister Stephen Harper from re-election. The question seems to have come from this very unfortunately blog post arguing that indeed, Harper has committed a federal offence.

The short answer to the question is quite simply no. Contempt of Parliament is not a federal offence.

On February 7, 2011, a Member of the Canadian House of Commons, Scott Brison rose on a question of privilege on behalf of the Committee on Finance arguing that the failure of the Government to provide the committee with financial information on the estimated cost of the F-35 aircraft, the original estimates and final costs of hosting the G8 and G20 summits, the adjustments to the fiscal framework to incorporate the costs of several government Bills and the estimated cost to the federal treasury of the planned reduction of corporate tax rates as requested by the committee constituted a prima facie case of privilege. On March 9, the Speaker of the Canadian House of Commons ruled that the question raised by Mr. Brison constituted a prima facie question of privilege. The Speaker determined stated that it may well be that the government has valid reasons for not complying with the committee’s order, but that this judgement must be made by a committee empowered to investigate the matter, and not by the Chair. The matter was then referred to the Committee on Procedure and House Affairs, which reported back that the Government was in contempt of Parliament for failing to provide the committee with the documentation it had requested.

What the Government is in breach of is not a federal or other criminal law, but a Standing Order of the House of Commons, as well as centuries of parliamentary convention. The Standing Orders are the body of rules that govern how business is conducted in the House of Commons. These rules are made by the House itself, periodically reviewed and changed. Standing Order 108 in Chapter XIII of the Standing Orders outlines the powers of committees (emphasis added):

108. (1)(a)  Standing committees shall be severally empowered to examine and enquire into all such matters as may be referred to them by the House, to report from time to time and to print a brief appendix to any report, after the signature of the Chair, containing such opinions or recommendations, dissenting from the report or supplementary to it, as may be proposed by committee members, and except when the House otherwise orders, to send for persons, papers and records, to sit while the House is sitting, to sit during periods when the House stands adjourned, to sit jointly with other standing committees, to print from day to day such papers and evidence as may be ordered by them, and to delegate to subcommittees all or any of their powers except the power to report directly to the House.

Committees have the power to request documentation from the Government. If the Government fails to comply with the request, this can be a breach of privilege. Parliamentary privilege is the collection of rights, powers and immunities of the House and its Members. The classic definition of parliamentary privilege is found in Erskine May’s Treatise on the Law, Privilege and Usage of Parliament (23rd edition, p. 75):

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively … and by Members of each House individually, without which  they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extend an exemption from the general law.

The privileges of Members of the House of Commons provide the absolute immunity they require to perform their parliamentary work while the collective or corporate rights of the House are the necessary means by which the House effectively discharges its functions. The rights and immunities accorded to Members individually are generally categorized under the following headings:

  • freedom of speech;
  • freedom from arrest in civil actions;
  • exemption from jury duty;
  • exemption from being subpoenaed to attend court as a witness; and
  • freedom from obstruction, interference, intimidation and molestation.

The rights and powers of the House as a collectivity may be categorized as follows:

  • the exclusive right to regulate its own internal affairs (including its debates, proceedings and facilities);
  • the power to discipline, that is, the right to punish persons guilty of breaches of privilege or contempts, and the power to expel Members guilty of disgraceful conduct;
  • the right to provide for its proper constitution, including the authority to maintain the attendance and service of its Members;
  • the right to institute inquiries and to call witnesses and demand papers;
  • the right to administer oaths to witnesses appearing before it; and
  • the right to publish papers without recourse to the courts relating to the content.

Contempt, on the other hand, is generally defined as “any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a  Member of the House” and is punishable by the House. While privileges are defined, contempt of the House has no limits:

Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members or its officers. (O’Brien and Bosc, 2nd ed., pp. 82-83).

What the Government was found in contempt of is a Standing Order and the general parliamentary privilege of the right of the House and Members to demand papers and to not be obstructed in the discharge of carrying out their parliamentary duties.

That unfortunate blog post I linked to at the outset (and I was hesitant to provide the link because I really don’t want to give them more traffic than they’re already getting given how ill-informed the post is), also claims that “No federal government or cabinet minister has ever been found in contempt before.”

This is also false. Many governments and ministers (and individual members) have been found in contempt. However, of all the prima facie cases of contempt raised in the House of Commons since 1867, only five motions containing the word “contempt” have been adopted by the House. What is unique in this particular situation is that no government has ever been defeated by a non-confidence motion that arose from a finding of contempt of Parliament. Please note this distinction. It wasn’t the finding of contempt by the Speaker and committee that defeated the government, but rather, a non-confidence motion filed by the Opposition based on the finding of contempt. That this confidence motion was moved is also unusual because the Canadian House of Commons has traditionally been very reluctant to invoke its authority to reprimand or punish anyone found in contempt. Again from O’Brien and Bosc (p. 87):

The reluctance to invoke the House’s authority to reprimand or admonish anyone found to have trampled its dignity or authority and that of its Members appears to have become a near constant feature of the Canadian approach to privilege. For example, in 1976, the Standing Committee on Privileges and Elections chastised a former Member (Auguste Choquette (Lotbinière)) who claimed that many parliamentarians had obtained undue financial considerations, but did not recommend any further consideration be given to the matter after concluding that his attitude was intemperate and irresponsible. In the 1987 Parry case where the Member divulged the result of an in camera vote, the Standing Committee on Elections, Privilege and Procedure also did not recommend punishment and the Member’s apology to the House put an end to the matter. In the 1996 Jacob case, the Standing Committee on Procedure and House Affairs noted that while the Member’s actions were ill-advised, they did not amount to contempt or a breach of parliamentary privilege. In 2005, the Standing Committee on Procedure and House Affairs found “that the Ethics Commissioner was in contempt of the House of Commons” for his actions during the conduct of an inquiry, but did not recommend any sanctions or penalty because the actions were neither deliberate nor intended. In 2008, the House found the Deputy Royal Canadian Mounted Police (RCMP) Commissioner in contempt of the House but did not impose any punishment because “this finding of contempt is, in and of itself, a very serious sanction”.

There are a myriad of other problematic claims in that blog post, but I’m not going to address them. A quick overview of the site seems to indicate that it is one bordering on conspiracy-theory fringe territory. It is only because the notion that a contempt of parliament finding might be a criminal offence seemed to be spreading that I decided to address that particular issue.

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It’s not about who wins the most seats

(Note: Not the information you’re looking for? I do try to help people as much as I can and regularly monitor key word activity on this blog to see what is bringing people here. If this post doesn’t answer your questions, please consider contacting me with details regarding what information you’re looking for, including context (i.e. if it relates to something currently in the news). I might be able to answer your question(s), or at least direct you to a site that might provide more answers. I will reply to you by email, and if it’s a very interesting question, I may even write a proper blog post about it.)

Canadian Liberal Party leader Michael Ignatieff issued a statement on the weekend addressing the issue of whether he would form a coalition with any other party or parties should the Liberals end up with the most seats, but not a majority, in the 2 May election.

Ignatieff categorically rejected the idea of coalition. This post is not about that.

Ignatieff’s statement contained the following claim:

Whoever leads the party that wins the most seast on election day should be called on to form the government.

If that is the Liberal Party, then I will be required to rapidly seek the confidence of the newly-elected Parliament. If our government cannot win the support of the House, then Mr. Harper will be called on to form a government and face the same challenges. That is our Constitution. It is the law of the land.

Unfortunately for Mr. Ignatieff, this is not how our parliamentary system works. Parliamentary custom and convention dictate that, in the event of a hung Parliament, the incumbent Prime Minister has the right to remain in office and attempt to form a government that will command the confidence of the House of Commons, even if his or her party won fewer seats than another party.

In the event that another party win a clear majority of seats, then the incumbent party very obviously would not be able to command the confidence of the House and usually resigns immediately.

There are other scenarios, however, where the issue is more complex. In the May 2010 UK General election, the incumbent Labour government finished second in seats to the Conservatives, but neither party won a majority. However, it was Labour’s prerogative to attempt to see if it could arrive at any agreement with other parties that would allow it to  command the confidence of the House. When it became clear that no workable agreement was possible, Brown resigned as PM, five days after the election. He did not wait, nor did he need to wait, to see if the coalition talks between the Conservatives and the Liberal Democrats would come to fruition, since it was clear to him that one way or another, the Conservatives would form a government – either a minority Conservative government, or else a coalition with the Lib Dems.

In the event that the Liberal Party wins more seats than the Conservative Party in the 2 May election, but falls short of a majority, it will still be incumbent PM Stephen Harper’s right to attempt to form a government that would command the confidence of the House. If he determines that this is not possible, then he will resign, and only then will the Liberals be asked to form the government. However, if Mr. Harper is able to work out some sort of agreement with another party, or parties, that would allow him to command the confidence of the House, it would be his right to continue to govern, even if the Liberals had more seats.

Such a scenario is highly unlikely, however. Mr. Harper has framed the concept of coalition as something very negative, and has also stated that a coalition is only legitimate if it includes the party that won the most seats.

It is unfortunate that some in the media repeated Ignatieff’s claim that the party that wins the most seats should form the government – see this column by Andrew Coyne. Coyne later admitted that he was wrong on this point.

This situation is similar to when, during the UK general election campaign last year, Lib Dem leader Nick Clegg was asked under which circumstances his party would support an attempt to form a government. Clegg stated that in his opinion, “whichever party gets the most votes and the most seats, if not an absolute majority, has the first right to govern, either on its own or by reaching out to other parties.”

Clegg’s comment was initially included in the draft version of the 2010 Cabinet Manual as a footnote. The Cabinet Manual is an account of the workings of Cabinet Government that consolidates the existing unwritten, piecemeal conventions that govern much of the way central government operates under the existing constitution. It was authorized by Gordon Brown in February 2010, and in December 2010, a full draft was released for consultation. However, the House of Commons Political and Constitutional Reform committee raised some concern that while the December 2010 Manual “provided greater clarity on the extent to which an incumbent government has a right to stay in office to see whether it can command the confidence of the House of Commons”, the “inclusion of the comments made in May 2010 by the Leader of the Liberal Democrat party may suggest that this view will carry weight in future.” Upon its recommendation, that footnote of Clegg’s comment has been removed.

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Summoning Parliament

(Note: Not the information you’re looking for? I do try to help people as much as I can and regularly monitor key word activity on this blog to see what is bringing people here. If this post doesn’t answer your questions, please consider contacting me with details regarding what information you’re looking for, including context (i.e. if it relates to something currently in the news). I might be able to answer your question(s), or at least direct you to a site that might provide more answers. I will reply to you by email, and if it’s a very interesting question, I may even write a proper blog post about it.)

Following the May 2010 UK general election, I remember being somewhat puzzled when so many political commentators grew concerned that no government might emerge in time for the opening of Parliament. What puzzled me wasn’t so much that a date for the opening of Parliament was already scheduled, but 1) that the date set was so soon after the election and 2) that there didn’t seem to be any option for changing it in the event that no government had emerged by that date.

In the UK, the proclamation to summon a new Parliament specifies the date on which the new Parliament will meet. The appointed day is chosen on the advice of the Prime Minister when he (or she) goes to see the Queen to ask that Parliament be dissolved. Recent custom had been for Parliament to meet on the Wednesday following the election. In the 2010 election, the Prime Minister indicated that Parliament would first meet on 18 May, 12 days after the election. This followed a recommendation of the Commons Modernisation Committee that the interval between polling day and the first meeting of Parliament should be 12 days to allow more time for the induction of new MPs. Still Gordon Brown was criticised for following this recommendation because he was seen by some Conservatives as allowing himself more time in which to negotiate to continue in government.

In retrospect, the decision to have a longer 12 day period between polling day and the first meeting of Parliament was sensible, and proved successful. It allowed for the possibility of a protracted period of government formation, which was entirely appropriate given concerns about a hung parliament. It also gave the incoming MPs and ministers more time for induction and adaptation to working in Parliament and in government.

However, Parliament meeting 12 days after an election is in sharp contrast with what happens in Canada and its provinces. In Canada, Section 38 of the Constitution Act, 1867 provides for the summoning of Parliament: “The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon and call together the House of Commons”.

The “Instrument” consists of a series of proclamations issued by the Governor General on the advice of the Prime Minister and published in the Canada Gazette. As in the UK, on the day that Parliament is dissolved or prorogued, a proclamation is issued summoning Parliament to meet on a given day. It is issued at the end of the preceding session, in keeping with the principle of the continuity of Parliament, whereby a session ends with provision made for its next meeting. A second proclamation confirms or changes the date and may set the time for Parliament to meet for the “Dispatch of Business” (the date can later be advanced or put back). A third proclamation is issued if the time for Parliament to meet was not announced in the second proclamation. (From House of Commons Procedure and Practice, 2nd edition)

The big difference in Canada is that the new Parliament usually won’t meet for several weeks (or longer) following an election.

For example, at the dissolution of the 38th Parliament in November 2005, along with the proclamation dissolving Parliament and the issuance of the Writs for a January 23, 2006 election date, a proclamation was initially issued on December 1, 2005, summoning Parliament to meet on February 20, 2006. A second proclamation was later issued on February 9, 2006, changing the Feb. 20 date and summoning Parliament to meet on April 3, 2006, and finally a third was issued on March 17, 2006, summoning Parliament for the “Dispatch of Business” on April 3, 2006 at 11:00 a.m. In other words, the original summons would have seen the new Parliament meet 28 days after the election, but it was modified and the new Parliament met 70 days after election day. The January 23 election did result in a change of government, from a Liberal minority government to a Conservative minority government, which probably explains why the new government wanted more time before summoning Parliament.

The most recent general election in Canada was held on October 14 2008. On September 8, 2008, the three proclamations were issued: one dissolving Parliament, one issuing Election Writs and the other Summoning Parliament to meet on November 12, 2008 (29 days after the election). On November 10, 2008, however, a second proclamation was issued summoning Parliament to meet on November 18, 2008, 35 days after the election. There was no change of government this time – the Conservatives were re-elected with another minority. So while an initial date for Parliament to meet is set when Parliament is dissolved, as is is in the UK, this date can, and usually is, changed after the election to better suit incoming government.

Consequently, it isn’t that unusual for several weeks, or even a few months to pass, between the date of the election and the date the new Parliament meets. Custom in some provinces is for a fall election, but with the legislature sitting only the following spring. This is especially true if there is a change of government. The new party taking over government often likes to give its new ministers ample time to familiarise themselves with their portfolios and departments, as well as to hire its own advisors and communications staff. At the provincial level, there have been a few instances of a new government wanting to order an independent audit of the province’s finances before it starts to plan for its own first budget – especially if it suspected that the former government might have been less than forthcoming regarding the province’s books, and so it delays the start of the new Parliament until the audit is complete.

The UK, however, has a long history of virtually immediate transitions between administrations, with one PM leaving 10 Downing Street to offer his or her resignation to the Queen and hours later, the new PM moving in. This simply does not happen in Canada. Even when the same party is re-elected, there can be a significant gap between election day and the opening of the new Parliament.

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