NSICOP OP-ED FAQ

I have an op-ed in the Globe and Mail today calling for a security-cleared national security Committee of Parliament.

Here are a few responses to questions and counterarguments I anticipate.

1) How will we deal with members’ privilege of free speech?

We can keep the current provisions of the NSICOP Act that limit the privilege.

Parliament can legislate specific criminal provisions for the committee, as Australia does.

We can ensure that the houses sanction members who abuse their privilege.

This isn’t the problem it’s made out to be, sorry.

2) Won’t the committee be partisan theatre?

When dealing with classified information, the committee will not be meeting in public. This will reduce the partisan theater, since there will be nobody watching.

There may be open sessions, sure. Will that be taken over by theatrics? Maybe. But it likely won’t be the same behind closed doors when the committee is doing its classified work. This happens in Belgium, where parliamentarians will be more partisan when in a public committee, but less so in a closed committee.

Oh and take a look at the NSICOP members from the last Parliament. You may notice that some of the opposition members engaged in partisan theatre when in the legislature and in public. Did they do the same as part of NSICOP? Probably a lot less. Maybe that’s because theatrics are put on and reserved for public places where they’ll get attention. Just a thought.

Not all committees are partisan theatres. The Public Accounts Committee does serious work, for instance. Evidence from other countries suggests this would happen with a parliamentary national security committee, too.

Perhaps more importantly, are we saying that we shouldn’t bother with any legislative committees because of their theatrics? Should be delegate all accountability functions to officers of Parliament and executive bodies? Why not?

3) We’ll end up with terrible members because the executive won’t control their appointment.

The UK Intelligence and Security Committee members are appointed for the life of a Parliament by the houses on the recommendation of the PM and the leader of the opposition. This is effectively the process we have now for NSICOP, but in a legislative setting. We could mimic this without difficultly.

Again, this isn’t the problem it’s made out to be.

4) Members would be irresponsible yahoos if they were part of a parliamentary committee.

Why? Why would having NSICOP as a legislative committee change the behaviour of the members, particularly if it does most of its work in camera and there are clear penalties for leaking or mishandling information? What’s the theory here? How does putting the committee in the legislature fundamentally alter its dynamics?

More to the point, someone needs to explain how being appointed to an executive office magically changes someone’s suitability to have a clearance or do serious work. What miraculous transformation occurs when a parliamentarian is appointed to a Governor-in-Council position, or better yet, becomes a minister?

Put differently, why do we think parliamentarians are necessarily untrustworthy if they don’t also hold an executive office? What is it about holding an executive office that makes a parliamentarian more trustworthy than when they only hold a legislative one?

5) The current controversy over the National Microbiology Lab demonstrates that Parliament isn’t ready for a national security committee.

How are we making this connection? The opposition is using the powers it has to put the government in a tough spot. That’s usually what opposition parties do in a minority parliament.

We actually have no evidence that the partisan fervor over the documents would be replicated in a national security committee. In fact, we can easily make the opposite case. Right now, demanding the documents is attractive because it’s putting the government in an impossible position. If there were a parliamentary committee and processes to handle these documents, the government would be in a far less difficult position, which would lead the opposition parties to focus on something else.

Arguably, it is precisely because Parliament can demand the documents but that the legislature can’t safely handle them that the opposition is doing everything it can to make the government suffer here.

6) Why can’t we rely on ad hoc committees?

The ad hoc committee established to deal with the Afghan detainee documents was also executive-based. Presumably, the proposal to create another ad hoc committee would be the same. In that sense, an executive ad hoc committee faces the same challenge as NSICOP.

Above all, though, both ad hoc committees and NSICOP still don’t leave Parliament with a capacity to deal with classified information. That’s where we need to it to avoid future clashes between privilege and protecting secrets.

7) Parliamentarians won’t want access to classified information or to sit on a security cleared committee

This one is courtesy of Steve.

Here’s the problem, though. Parliamentarians have been sitting on NSICOP, with access to classified information.

So, this thing that won’t happen is already happening.

Why are parliamentarians already doing this? Because the law says that there will be this committee.

A law creating a legislative committee would do the same.

Parliamentarians would do what they supposedly won’t do but are already doing because they would have to.

Can Canada go without a Queen? Probably.

With Barbados becoming a republic, this blog turns once again to the question of “Why can’t Canada ditch the monarchy?”

As any good reporting on the subject will note, the answer is that it would be too hard Canada to become a republic. To do so, we would need to use to unanimous amending formula set forth in section 41 of the Constitution Act, 1982. Even if we could agree to end the monarchy in principle, opening up the constitution would inevitably lead to negotiations about other issues that won’t go anywhere.

Given the amending formula, dedicated Canadian republicans should focus their efforts on the United Kingdom. Were the United Kingdom to become a republic, we would be forced to deal with the monarchy in our own constitution.

Or would we?

In a new article in Review of Constitutional Studies, Marie-France Fortin outlines a novel argument as to why the 2013 changes to the rules of royal succession did not trigger an amendment to the “office of the Queen” under section 41(a). As I read her article, she argues, in part, that the rules of succession apply to the Sovereign’s natural capacity only, rather than the Queen’s official capacity. Since the Constitution Act 1982 deals only with the office of the Queen, it follows that a matter pertaining to the Sovereign’s natural body would not trigger the unanimous amending formula.

Extrapolating from this argument, we might ask if Canada actually has a natural bodied Sovereign in a constitutional sense? Specifically, if the office of the Queen and other references to the Queen in the constitution refer to the Sovereign in an official capacity alone, we can ask if the Queen is merely an office in a Canadian context. And if it is, could this office be left without a natural occupant?

The answer to the first question is that, no, the office of the Queen is occupied by a natural person in Canada. That person is Queen Elizabeth II. She occupies the office of the Queen of Canada because British law identifies her as the Queen of the United Kingdom and there is (apparently) a principle of symmetry in the Canada constitution that the office of the Queen of Canada is occupied by whoever occupies the office of the Queen in the United Kingdom.

But what would happen if there was no Queen of the United Kingdom or natural person identified as holding that office in British law? What would happen if the was no foreign monarch to take as our own? Perhaps nothing.

There’s clearly no requirement to fill the office of the Queen in Canadian law, since Canadian law doesn’t include any rules about who fills that office. The only thing we have is a principle that we take the United Kingdom’s monarch as our own. So, we could technically just leave the office empty or perhaps try to fill it with a unilateral section 44 constitutional amendment by Parliament.  

What would be the practical effect of leaving the office of the Queen vacant? Arguably nothing, thanks to the Letter Patent 1947. The Letters Patent 1947 (apparently) allow the Governor General to exercise all of the Queen’s powers, including those that we’ve decided to leave with the Queen, such as the power to appoint and dismiss the Governor General and name additional senators under section 26 of the Constitution Act 1867. Under this reading, which is supported by the absence of a Canadian regency act, the Governor General would simply exercise the Queen’s powers in the absence of a natural bodied Sovereign. Interestingly, of course, this also means that Canada could exclude the Queen or a future King from exercising any powers for or in Canada right now.

Those who wish to avoid reopening the Canadian constitution can therefore take solace. We might not have to discuss the office of the Queen or become a republic if the United Kingdom did.

A whole host of other problems might arise if this happened though, notably around whether the executive could exercise the Crown’s powers of a person under common law if the Queen has no natural capacity, but we’ll leave that for another day.

Form, Substance, and Prerogative Power

I have a new article out in Canadian Public Administration about defence intelligence and the Crown prerogative. The article is a response to two reports on defence intelligence produced by the National Security and Intelligence Committee of Parliamentarians (NSICOP), and a wider reflection on how prerogative power fits within Canadian modern government.

One issue that’s operating in the background of my analysis, but which I didn’t have room to explore in detail, is how debates about the Crown prerogative are caught up with form over substance.

What do I mean here? Essentially, critiques of the prerogative often focus on the legal form that an executive authority has (common law or statute), rather than what that authority substantially empowers the executive to do.

I’m skeptical there is an inherent benefit to replacing the form of an authority while leaving the substance of that authority unchanged. To my mind, it’s not evident why the form of the authority should change if we aren’t planning on altering the capabilities or activities that are authorized. In the case of defence intelligence and the prerogative, there doesn’t seem to be any substantive concerns with the fact that DND/CAF have intelligence capabilities or that the intelligence activities they’re currently undertaking. Instead, the worry is simply that some of these capabilities and activities are sourced in prerogative rather than statute.

As a rejoinder, my colleague Craig Forcese has argued that form and substance are intimately connected when it comes to prerogative. Specifically, Craig has posited that prerogative is an “uncertainty engine”; because the authority granted by prerogative isn’t codified, we aren’t sure what it does and doesn’t authorize. Replacing prerogative authority with statute would address this uncertainty.

As I allude to in the article, though, this gives legislation too much credit. Statutory authority is often broad and unclear about what it might and might not allow. Indeed, the courts would have a lot more time on their hands if statute had a significant effect on legal uncertainty. As discussed in the article with respect to intelligence matters, for example, there have been important interpretative disagreements about the CSIS Act. Statute doesn’t necessarily remove uncertainty, unless you’re trying to explicitly forbid certain things. And even then, the language used to forbid can be contested and subject to varying interpretations.

Are the interpretive questions that surround prerogative worse, though? I don’t see any real evidence of that. Most of the landmark cases we have about the prerogative have been about whether something the Crown/executive did fell under the authority provided by the prerogative. But it’s hard to see how this is any different than other interpretative disputes related to statutes or the common law generally.

So, when the argument is made that all defence intelligence activities should be placed on a statutory basis, this leads me to ask: what will this change, substantively?

Will it protect defence intelligence from infringing on the rights of Canadians? The Charter, Privacy Act, and Criminal Code already prevent that, since prerogative is limited by the wider statutory environment. Will it provide greater certainty about what defence intelligence can and can’t do? If the statute is crafted in a way that limits defence intelligence to specific types of activities it might, though given the significant risks this would pose to the CAF’s ability to quickly adapt to new threats and operational circumstances, I suspect the statute would be broadly worded to allow for a wide degree of flexibility.

Statute could, of course, provide DND/CAF with more authority than prerogative currently provides, as NSICOP recommended with respect to empowering the military to gather intelligence about Canadian foreign fighters, but that’s not really a certainty question. As NSICOP argued in its second defence intelligence report, statute would be needed to grant DND/CAF this authority precisely because the military’s lawyers don’t think that prerogative allows them to gather intelligence that violates the rights of Canadians, even if they are foreign fighters.

Interestingly, though, looking at the United Kingdom, we see that additional authorities can be granted to defence intelligence (in the British case, the Chief of Defence Intelligence under the Investigatory Power Act 2016) without displacing the prerogative as the underlying authority to conduct defence intelligence. This suggests that we could fulfill NSICOP’s recommendations with respect to foreign fighters without displacing the prerogative. We could simply layer a statutory authority on top of the prerogative. In fact, this wouldn’t be all that different from how we handle pardons, although in that case the relevant statute doesn’t further empower the executive, but adds a process alongside the Governor General’s prerogative authority.

Anyhow, you can now see why I couldn’t include this line of argumentation in the journal article itself (word limits and such). As much as I get why prerogative rubs people the wrong way because it’s tied to the historical powers of the monarch and the great confrontations between the Crown and Parliament, the form-focused argument that prerogative is bad simply because it’s a power recognized at common law rather than one granted by Parliament isn’t very persuasive. As I concluded in the article, the real issue here is the substantive things we want or don’t want defence intelligence to do.

A Critical Juncture for Excommunication Culture

Last month I wrote a piece for The Line on the difference between ‘cancel culture’ and ‘excommunication culture’.

Part of my motivation for writing the article was to highlight that the excesses of excommunication culture couldn’t last. Unwarranted debasements of one’s peers can only go on for so long. At some point, people get fed up and stop playing along with the purity arms race that drives excommunication culture.

I’d argue that we’re reaching that critical juncture with the excesses of excommunication culture, the inflection point where the average person says enough is enough. We’re headed toward a more stable environment where greater care will be taken to differentiate between those who deserve to be punished and excluded, and those who’ve made a forgiveable mistake or who were simply the victim of a hyped up narrative of wrongdoing.

Why do I think we’re at this critical juncture?

First, there’s the wider culture. Check out the new Netflix show, The Chair. It’s in part about a prof who gets excommunicated for making a bad joke in class. Those who drive the excommunication effort in the show, undergraduate students and administrators focused on institutional reputation, don’t come across very well. The undergrads are portrayed as one-dimensional, incapable of understanding nuance and context, and of one mind. I’ve never come across a student body that looks like that and I suspect that a growing number of students are getting tired of being seen as a bunch of ideological lemmings. Administrators, on the other hand, do tend to be squarely focused on reputation. But they’re also incredibly sensitive to changes in public perceptions and mood. As universities increasingly become objects of derision and mockery for allowing excessive excommunications, administrators will shift to defending the importance of free expression and a liberal education. The Chair suggests we’re headed there in the way it portrays the sheer cravenness of the dean.

Second, there’s the growing professional class pushback. Today’s Anne Applebaum column in The Atlantic can be read as a cry that all is already lost, that excommunication culture is taking over and that it can’t be stopped. I’d argue that the column shows the opposite. Once columns like this start getting published more and more, which they have and will, it means the pivot has already happened. When mainstream outlets and the professional class start panicking about something (especially something they fuelled), it’s on the way out already.

Am I saying that there won’t be anymore unjustified excommunications? Nope. The pivot only means the slope is now headed downward, not that the trend will cease altogether. Indeed, those who rely on excessive excommunication to get their way or jockey for ingroup status will probably get more zealous as they see their power and influence diminishing. Twitter mobs will still gather and make demands, but institutions will eventually figure out that they aren’t a proxy for what most people think.

Importantly, though, those who have done actual harm will still be punished and shunned, and legitimately so; for all their excesses, progressive excommunications were initially motivated by a need for much needed change, as Applebaum notes. The aim will now be to restore proportionality and due process to the righting of wrongs. As those who actually care about progress and social justice already know, moreover, movements that instill fear and alienation among those they’re trying to persuade ultimately undermine themselves. While the past few years of amped up excommunications surely made many feel that they were taking down those who deserved it, the adrenaline rush is ending and the time to build lasting coalitions has returned.

Dissolution and the ‘Spirit’ of Responsible Government

What’s at the core of the debate about the Governor General’s discretion over the dissolution of Parliament?

Commentators such as Andrew Coyne and Thomas Mulcair think that the Governor General could refuse the Prime Minister’s request to dissolve Parliament at this stage. I disagree for the reasons I outline here and here.

How are we arriving at these differing conclusions? It ultimately comes down to one issue, which is the same matter that was at the crux of the 2008 prorogation controversy: what happens if the Governor General refuses to act on the Prime Minister’s advice or recommendation?

According to one school of thought, the Governor General can simply refuse the Prime Minister’s advice or request with no consequence or ramifications. So, were Trudeau to request that Simon dissolve Parliament, she could just say “no” and the Prime Minister would sit there dumbfounded and annoyed.

There are international precedents for this view, as laid out in Twomey’s book on reserve powers. It also has intuitive appeal. If the Governor General has discretion over dissolution, that should mean that they have the power to refuse a request, full stop. In this view, the Governor General is like a gatekeeper. The Prime Minister’s requests are only granted if the Governor General is satisfied that they’re above board.

For the other school of thought, to which I subscribe, there’s a consequence tied to the refusal of a Prime Minister’s advice or recommendation. Specifically, if the Governor General refuses a Prime Minister’s advice or request, the Prime Minister should either resign or be dismissed. Why’s that? Put simply, it’s because of the foundational convention of what we call ‘responsible government’.

When people think about responsible government, they tend to associate it with the Prime Minister and Cabinet having to maintain the confidence of the House of Commons. And that is indeed one of the core conventions of responsible government. But it’s not the foundational convention. A lot happened before we got there, constitutionally.

The foundational convention of responsible government is that the Crown acts on the advice of ministers. This convention emerged to deal with a sticky problem: how do you deal with the Crown acting incorrectly or illegally if the Crown can do no wrong. The answer was that, if the Crown screwed up, it was because the Crown has acted on bad advice from its servants, notably ministers. As time went on, this convention morphed into the idea that ministers were ultimately responsible for everything the Crown did, particularly in constitutional matters. Indeed, this was critical to the development of our constitutional monarchy and parliamentary democracy. The Crown remained the formal governing power, but its authorities were exercised by responsible ministers who were accountable to Parliament, and later held the confidence of the elected house.

These conventions remain in place today. The Crown as the executive power acts in all sorts of ways all day, every day. Although we can argue that ministers no longer consider themselves responsible for everything that happens in government, they’re still the ones who answerable before Parliament for what the executive does.

The Prime Minister has a special responsibility in this arrangement. Since they advise the Crown directly, they are responsible and accountable for the exercise of nearly all the Queen and Governor General’s constitutional functions and powers. If the Prime Minister advises the Queen to appoint a lacklustre Governor General, then the Prime Minister has to answer for the situation and find a remedy. If the Prime Minister decides to prorogue Parliament for crass partisan reasons, they’re the ones who are held to account for it. Asking the Queen or the Governor General to answer for these decisions wouldn’t make much sense, since the whole point is that they aren’t the ones making the call.

Does this mean that the Crown always has to accept the Prime Minister’s advice or requests? No. As with all conventions there are exceptions and flexibility. One of these exceptions is a prime ministerial request to dissolve Parliament shortly after an election. However, to keep this exception from being completely at odds with other conventions, notably the Crown acting on ministerial advice and the confidence convention, the Governor General should only refuse this request if she is prepared to name another prime minister.

What’s the logic here? If the prime minister is trying to end a parliament because they can’t hold confidence, then it only makes sense to refuse that request if another leader is able to secure confidence. Otherwise, the Governor General would be propping up a zombie government that the House of Commons is unwilling to accept. (Incidentally, this is not unlike what we saw in the United Kingdom in 2019, owing to their Fixed-Term Parliaments Act, which removed the Queen’s power to dissolve Parliament.)

What if the Prime Minister still has confidence? In that case, the need to name another Prime Minister is as important, if not more so. Simply put, if the Governor General is prepared to reject the request of a Prime Minister who holds the confidence of the democratically elected Commons, she should only be doing so knowing that she can name another Prime Minister who can also hold confidence. Otherwise, the Governor General would be acting contrary to the one indicator that the Crown has of the government’s democratic legitimacy: confidence. And if there’s any doubt about that democratic legitimacy, or of an alternative prime minister to demonstrate it, then the Governor General’s best course of action is to accept the dissolution and let voters decide.

In fact, if the Governor General refuses to act on a dissolution request of a Prime Minister who holds confidence, but the Governor General is unwilling or unable to name a replacement, then the Prime Minister would be within their right to ask the Queen for a new Governor General.

One counterargument is this: the Governor General would be preserving democracy by preventing a Prime Minister from dissolving Parliament, absent a vote of no confidence. The problem here is that this argument privileges the parliament over the democracy in parliamentary democracy. It’s hard to see how keeping a parliament going is more democratic than allowing another election, especially if enough time has passed since the last dissolution, which is exactly what the custom around the refusal of a request to dissolve gets at (6-12 months since the last election, tops.) And it’s equally hard to see how allowing the appointed representative of the Queen to prevent a Prime Minister from dissolving Parliament when there’s no viable alternative government waiting serves the democratic principle.

What about the fixed date election law? Shouldn’t the Governor General enforce the spirit of that law? Well, first off, the statute has to be read in light of the constitution; indeed, good luck making sense of most of our core laws, including the Constitution Act 1867, without reference to constitutional convention. With that in mind, why should this statute, which explicitly recognizes the Governor General’s power to dissolve Parliament (always upon the Prime Minister’s request, by the way), be used to disregard so many other constitutional rules listed here above?

The spirit of the law, moreover, is a difficult thing to divine. The courts have already told us that the fixed date election law doesn’t prevent an early dissolution. We have a number of precedents, federally and provincially, which show that early dissolutions are not contingent on votes of no confidence. We can point to what the justice minister said about the bill when it was making its way through Parliament, but we can also point to his Prime Minister asking and getting the Governor General to dissolve Parliament without a vote of no confidence soon thereafter. I, for one, am also a bit hesitant of taking what ministers say at face value when they explain their decisions and motivations before Parliament, but maybe that’s just me.

Finally, what other legislative spirits should the Governor General be enforcing? Should the Queen’s representative be dismissing governments who fail to live up to climate change treaties? Should the Prime Minister be summoned to Rideau Hall for failing to allow enough Canadians to join the middle class? What’s are the cut-offs and criteria here?  

In sum, if Parliament is dissolved in the coming weeks or months, one person is responsible and accountable for the decision, the Prime Minister. If Canadians are unhappy with this move, they can punish his party at the polls. If we do head for an election, the Governor General will have done no wrong.

Dissolution is the Prime Minister’s Call Right Now

As per usual, we’re debating whether the Governor General can refuse the Prime Minister’s request to dissolve Parliament.

Also as per usual, we need to clarify a few fundamentals:

Yes, the Governor General retains the discretion to refuse a Prime Minister’s request to dissolve in certain limited circumstances.

No, those circumstances are not present at the moment.

What are the circumstances?

A dissolution can be refused if an election has recently taken place, say within the past 9-12 months, and there’s another viable government among the parties in the House of Commons.

There may also be some very exceptional circumstances where the Governor General would discourage a dissolution if it is being requested for nakedly partisan reasons, with no obvious connection to the right of voters to express themselves.

For instance, imagine a Prime Minister’s party was elected with only a plurality of seats, not a majority, but no other party or coalition can form a viable alternative government. Would the Prime Minister be able to go back to Governor General and ask for dissolution within a couple of months of the election, in hopes of securing a majority? Technically, the Governor General wouldn’t have much room to manoeuvre. The Governor General could pressure the Prime Minister to rethink the request. If the Prime Minister insists, though, the best course of action is to let voters decide the Prime Minister’s fate. Political sanctions are almost always the preferred way to deal with a Prime Minister who is abusing their authority. The Governor General is a constitutional fire extinguisher, not a referee.

Most political leaders know these rules. If they’re saying otherwise, they’re posturing, nothing more.

If you want to know more about how this all works, here’s an article of mine you can download.

And while we’re on the subject, a few more fundamentals:

We are not in a caretaker period because there might be an election soon. The caretaker period only starts once the request to dissolve Parliament has been accepted by the Governor General.

The current government remains in place during the election period. The caretaker period doesn’t prevent them from governing. In fact, given the pandemic, the government has every right, and indeed the responsibility, to take actions with respect to the pandemic.

Canada’s fixed-date election legislation preserves the Governor General’s power to dissolve Parliament on the Prime Minister’s request. Whatever you think about the spirit of the law, the letter of law is quite clear here.

The Commissioner vs the Constitution

The Commissioner of Official Languages, Raymond Théberge, is launching an investigation into the appointment of Mary Simon as Canada’s new Governor General.

After receiving over 400 complaints about Simon’s lack of fluency in French (see my views on the matter here), Théberge will be investigating the Privy Council Office (PCO). On the surface, it’s not hard to see why he is focusing on PCO. It’s the only federal institution he might hope to claim jurisdiction over in this matter. If he honestly believes PCO decided on Simon’s appointment or that they violated any Act of Parliament, though, he needs to bone up on the Canadian constitution.

The Governor General is appointed by the Queen under her prerogative authority. The exercise of this power is the most important function the Queen plays in the Canadian constitution today. It’s unlikely that the courts would consider exercises of this power justiciable, and it’s almost certainly protected by the unanimous constitutional amending procedure under paragraph 41(a) of the Constitution Act, 1982.

Théberge evidently realized that he couldn’t investigate the Queen under the Official Languages Act. The Queen doesn’t constitute a federal institution under that law and there’s no Act of Parliament that touches on the appointment of the Governor General by the Queen. The Governor General’s Act doesn’t deal with the Queen’s power to appoint the Governor General and the Letters Patent 1947 that define the Governor General’s functions and powers are not an Act of Parliament.

The Office of the Governor General headed by the Secretary to the Governor General is a federal institution under the Official Languages Act, but nobody is claiming that it doesn’t run in both official languages. Nor is there any suggestion that Rideau Hall won’t work in both official languages once Simon takes up her office. So, that’s another dead end for an investigation.  

Let’s look at the bilingualism requirement itself. Did the Prime Minister break any laws by recommending Simon to the Queen? Nope. The rules that surround the appointment of the Governor General are constitutional conventions, not laws. We keep certain core constitutional rules as conventions to ensure that that courts (and overreaching officers of Parliament, it seems) don’t try to enforce them. The consequences of skirting convention are political, not legal. As importantly, even if convention demands that the Governor General be bilingual, conventions are meant to be flexible. They’re also meant to evolve, which runs counter to attempts to cast them in stone.

With nowhere else to turn, Théberge has decided to focus on the one federal body where an investigation might have traction: the Prime Minister’s department, aka PCO. What’s PCO’s role here? PCO coordinates the appointments process and assists the Prime Minister in his official communications with the Queen, including in matters related to the Governor General. As part of this particular vice-regal appointment, PCO also supported the committee of notables that advised the Prime Minister on potential candidates for the office. As far I can surmise, it seems like Théberge is going to check if PCO officials and the advisory committee paid enough attention to bilingualism when looking at potential candidates. Or maybe that they failed in some way by offering up the name of someone who isn’t bilingual? Who knows.

The problem, though, is that PCO and the committee were offering non-binding advice. That’s it. The Prime Minister was free to ignore them and demand only bilingual candidates if he wanted. He didn’t. He decided that convention could be bent a bit, or perhaps allowed to evolve, to allow him to recommend Simon to the Queen. And the Queen, in keeping with constitutional convention, duly appointed who her Prime Minister recommended.

In essence, then, Théberge will be investigating bureaucrats and an advisory committee for providing non-binding advice, on a non-justiciable decision that was the Prime Minister’s to make, under a constitutionally-protected power that the Queen exercises.

Ok, then.

NSICOP 2.0

It’s time to start thinking about making the National Security and Intelligence Committee of Parliamentarians a National Security and Intelligence Committee of Parliament

With the official opposition boycotting the Committee and its vulnerability to the realities of a minority parliament now evident, we need to think about a reboot. 

My friends and colleagues are wont to blame the current kerfuffle on politicians. From this perspective, the Committee has been undermined by politics and the inability of parliamentarians to behave responsibly. The boycott is also seen as a blow to parliamentary oversight of national security affairs. 

As I argued yesterday, the underlying problem with NSICOP is its structure (an executive body), not the agents (parliamentarians). As an executive body, NSICOP was going to run into trouble when the opposition parties controlled the Commons. Portraying NSICOP as a de facto parliamentary committee wasn’t going to cut it when we faced a stand-off between the legislature and the executive. NSICOP wasn’t going to be an acceptable stand-in for parliamentary scrutiny of national security affairs when the opposition has the power to demand actual parliamentary accountability. Instead of blaming parliamentarians for being parliamentarians, we should ask why we thought it was wise to set up an executive review body and pretend that it was a viable substitute for a proper legislative committee. 

If the underlying issue here is that NSICOP is an executive body, rather than a legislative one, then the solution is arguably to transform it into an actual parliamentary committee. 

What problems would making NSICOP a parliamentary committee solve?

First, it would mean that when a house of Parliament demands national security documents from the executive, there would be a parliamentary committee to review them. This would avoid the legitimate concern that the Commons’ privileges and powers are being diluted by referring these matters to an executive body. 

Second, if NSICOP were a parliamentary committee, the opposition couldn’t claim the government is skirting parliamentary scrutiny if the matter was referred to the committee. It would no longer be necessary to pretend that NSICOP is involved in parliamentary oversight because its members are parliamentarians. The opposition could no longer use the Committee’s status as an executive body to decry that Parliament and its powers are being undermined. 

Third, it would empower Parliament. There’s something pretty sad about the fact that we thought creating an executive body was a victory for parliamentary accountability. Indeed, it says a lot about the sorry state of the legislative power in Canada that we thought the way to strengthen parliamentary accountability was to create an agency within the executive. I mean, come on, people.

I expect the response to these structural points will be that parliamentarians can’t be trusted with national security issues or security clearances. The Conservative’s boycott of NSICOP will be presented as evidence that parliamentarians can’t be serious about these issues and that a parliamentary committee will be even more politicized. 

Although I get that sentiment, let’s look at what’s actually happened here. The problem isn’t that the members of NSICOP were irresponsible or that they misused their clearances or mandate for political ends. Whatever else we can say about the current confrontation, it doesn’t suggest that parliamentarians can’t be trusted with classified information. 

Seeing the opposition’s demand for documents as unserious or irresponsible, moreover, reflects an executive perspective. The executive thinks that only an executive body should see documents from the executive. The executive maintains that parliamentarians serving in an executive capacity is a good compromise when the legislature seeks to hold the government to account. That may seem like a non-partisan and serious way of looking at it if you adopt the government’s point of view. If you come at it from a parliamentary perspective, though, you see a partisan executive trying to get around the legislature’s constitutional functions and powers. Defending those functions and powers may seem unserious and purely partisan from the executive’s point of view, but its a very serious matter if you look at it from a parliamentary vantage point. 

Lastly, it’s worth addressing the question that’s floating around this entire discussion: how would we prevent members of a parliamentary national security committee from sharing classified information under the cover of parliamentary privilege? This isn’t the intractable problem it’s made out to be: take a look at how the Australians and the British manage this risk with their parliamentary national security committees. But aren’t Canadian parliamentarians different? Aren’t they particularly irresponsible?

Well, perhaps the way to make them act more responsibly is to make them more responsible. 

NSICOP and the reality of a minority parliament

So, it seems that the National Security and Intelligence Committee of Parliamentarians (NSICOP) has hit a bit of a snag. This is regrettable and should have been avoided. But it was also predictable and reminds us that ours is a system of political accountability (see chapter 3 here), even in matters of national security and defence.

What is NSICOP? It’s an executive review body whose members must be parliamentarians.

Despite having ‘committee’ and ‘parliamentarians’ in its name, NSICOP is not a parliamentary committee. Rather it is a committee of parliamentarians who serve in an executive capacity. Don’t think that matters or that it’s a pedantic point? Alas, it does matter, as we’re seeing these days.

Because NSICOP is not a parliamentary committee, it does not review national security affairs as a subset of a house of Parliament. It does so as a part of the executive. During a majority parliament, we might not care or notice this distinction. The governing party will control Commons committees and they won’t be inclined to demand any documents or undertake any troublesome investigations, as a result. In that context, having NSICOP around is quite useful. The Committee undertakes reviews and publishes reports that are eventually tabled in Parliament, and as a committee of parliamentarians, it involves senators and members of Parliament in monitoring national security issues.

The problem arises when we have a minority parliament and opposition parties control Commons committees. In these situations, the opposition will be able to use the powers of Parliament to call the witnesses they’d like and to demand documents from the executive, including those that touch on national security. While the executive will naturally prefer that these questions be referred to NSICOP, the opposition will have no incentive to play along. Once a matter is referred to NSICOP, it can take months, if not years, for the committee to complete its review and produce a report. By the time this process is over, the issue at hand will be dead, politically. Why should the opposition accept that when it can keep the issue alive during a minority parliament, a situation where an election is always around the corner and parties are vying to make whatever headway they can against each other?

National security experts will likely answer that national security issues should be above partisan politics. A similar argument has been made about how the opposition is using sexual misconduct in the military to attack the government: these questions are too important to be mired in the muck of partisan politics.

As much as I sympathize with this view, it’s too idealistic and runs contrary to the system of government we’ve developed in this country. Government accountability in Canada is a political affair. To keep sufficient pressure on the government to account for itself and rectify whatever wrongs are happening, we rely on opposition attacks that attract and sustain media attention. However ugly and petty it gets, this is the mechanism we have in place to get answers and action from the government.  

A core weakness NSICOP has had since it was first proposed is that it runs counter to this political reality, notably during minority parliaments. The true test of the Committee’s viability was always going to be when the opposition would control Commons committees and make full use of the privileges of Parliament. When the opposition has these at its disposal, why should it settle for NSICOP when holding the government to account for national security matters? Unfortunately, the only answers provided to that question don’t reflect the political, and yes partisan, nature of accountability in Canada.

See my follow-up post here.

Wayward Governors General and the need for a Canadian Regency Act

Canada doesn’t have a regency act. Recent talk of the Queen’s power to dismiss Canadian Governors General highlights why this is may be a problem. Specifically, Canada’s current approach to a regency rests on the idea that the Governor General would exercise all of the Sovereign’s powers, including the prerogative to appoint their own successor. Were we faced with a Governor General who needed to be dismissed when the Sovereign was incapacitated or too young to assume the throne, we’d have to ask the vice-regal representative to fire themselves by naming their own replacement. That’s not a recipe for success.

The United Kingdom has a regency law, the Regency Act 1937, along with two amendments to that statute made in 1943 and 1953. Neither of these acts were extended to into Canadian law by the British Parliament. Accordingly, if we accept that the Queen of the United Kingdom and the Queen of Canada are separate and distinct offices (which not everybody in Canada does, but the English courts do), these British regency laws would not apply to the Sovereign in a Canadian capacity or the monarch acting for Canada on the advice of Canadian ministers. 

Why were the British regency acts not incorporated into Canadian law? The detailed explanation is provided by Twomey here. The short version is that these acts were passed by the British Parliament after the Statute of Westminster 1931. Section 4 of the Statute of Westminster 1931 provides that « No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to the enactment thereof ». Since the Canadian government did not request and consent that the British regency acts be extended to Canada, they aren’t part of Canadian law. 

The Canadian government didn’t see this as a problem in 1937 for the same reason we don’t think about it today: Canada has a Governor General who can exercise the Sovereign’s powers. In 1947, moreover, new Letters Patent were issued that explicitly allow for the exercise of all the Sovereign’s powers and prerogatives by the Governor General. All powers except for maybe one, that is: the power to appoint and dismiss the Governor General. 

Today most authorities would probably agree that the Letters Patent allow the Governor General to appoint their own successor, though this could be considered bad constitutional form and an affront to the Queen unless she was consulted beforehand or was incapacitated. According to the prevailing view, the Queen continues to appoint the Governor General ‘by agreement’ and this prerogative should only be exercised by the Governor General if the Sovereign ‘agrees’ to give it up, or necessity demands that it be exercised by the vice-regal representative. 

As importantly, it’s not hard to see why the Canadian government wouldn’t have seen this, and still doesn’t see this, as a big issue. In the event that the Sovereign was incapacitated, the Governor General could simply stay in office until the monarch recovered, died, or a successor came of age. Unlike provincial Lieutenant-Governors, furthermore, the Chief Justice of the Supreme Court can exercise the Governor General’s powers under the Letters Patent 1947 if the Governor General dies in office. And if the Chief Justice also died, then the next Chief Justice could do the same. This is all laid out in the federal government internal 1968 procedure and practice manual. So, our system has built-in resiliency here, unlike the provinces who must wait for the federal Cabinet to appoint a new Lieutenant-Governor if their vice-regal representatives dies, preventing them from having orders-in-council signed and royal assent granted.  

There’s one problem here, though. With the power to appoint the Governor General comes the authority to dismiss the Governor General. They’re twined prerogatives. Our regency workaround is fine when it comes to waiting for a new Governor General to be appointed or making due for a while. But what if we need to get rid of a Governor General while the Sovereign can’t exercise their powers? Basically, we need to ask the Governor General to resign by appointing their own successor. 

Now, according to constitutional convention, if the Prime Minister advised the Governor General to appoint their own successor, they would have to do it, unless the Prime Minister was advising it because the vice-regal representative was blocking them for acting unconstitutionally. (Think of a Canadian version of the Saturday Night Massacre.) 

Yet, if the Prime Minister is trying to forcibly get rid of the Governor General, it’s probably because the vice-regal has refused to voluntarily resign. In that context, said Governor General might also refuse to effectively dismiss themselves. In the absence of an existing regency act, the Prime Minister would have two options. First, they could rush a regency bill, or a constitutionally-dubious bill dismissing the Governor General, through Parliament. Alternatively, they could refer the matter to the Supreme Court in hopes that the justices would pull a Miller II, circumventing constitutional convention to solve the problem. Given that the Governor General also has the power to dismiss the Prime Minister, though, this sounds like a game of constitutional chicken we’d want to avoid, even if it all worked out in the end. Seriously, who needs the stress and aggravation?

Since we are likely facing decades of geriatric monarchs, and given that talk of dismissing a Governor General doesn’t seem that outlandish these days, perhaps we could get ahead of the curve. Indeed, addressing this lacuna would also address another ‘what if’ scenario: appointing additional senators under section 26 of the Constitution Act 1867, as happened in 1990 to pass the GST. Section 26 requires the involvement of both the Governor General and the Queen. A plain reading of the section suggests that the Governor General shouldn’t be able to act for the Queen. Simply assuming that the Letters Patent 1947 allows the Governor General to act for the Queen under section 26 seems risky, to say the least. 

A regency act could be passed by Parliament as a regular statute or a section 44 constitutional amendment, if need be. It could be as basic as New Zealand’s regency provision, which says that the British regent is also the regent for the Crown of New Zealand. It would take a couple of lines. Let’s get on it.