The Parliament of Canada and the Charter of Rights: The Need to Establish a Joint Scrutiny Committee on Human Rights

The mandate letter issued to the Leader of the Government in the House of Commons by Prime Minister Trudeau calls for ‘Strengthened Parliamentary committees so that they can better scrutinize legislation.’ The mandate letter elaborates on this, and calls for parliamentary committees to be properly staffed to allow for ‘non-partisan research’ as well as ‘strengthening the role of Parliamentary committee chairs, including elections by secret ballot; and changing the rules so that ministers and parliamentary secretaries no longer have a vote on committees.’

While this mandate letter does not specify which elements of scrutiny need to be strengthened, the letters issued to the Minister of Justice and the Minister of Public Safety and Emergency Preparedness suggest that the failings of the Harper government, in relation to the Charter of Rights and Freedoms, need to be addressed.

For instance, Prime Minister Trudeau has instructed the Minister of Justice to ‘Review our litigation strategy.  This should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values.’

The Prime Minister has also instructed the Minister of Justice to support the Minister of Public Safety and Emergency Preparedness ‘in his efforts to repeal key elements of Bill C-51, and introduce new legislation that strengthens accountability with respect to national security and better balances collective security with rights and freedoms.’

Although the Trudeau government has focussed on Bill C-51 (Anti-terrorism Act 2015), many bills introduced by the Harper government are of questionable constitutionality, and should be reviewed by the Minister of Justice for potential inconsistencies with the Charter of Rights. Examples of these Acts of Parliament passed by the Harper government include:

  • Bill C-31 (Protecting Canada’s Immigration System Act), that, amongst other things, removes the right of refugees on a ‘safe country list’ determined at the discretion of the Minister of Citizenship and Immigration to appeal their rejection of refugee status to the Immigration and Refugee Board. Provisions of this bill were recently determined to be unconstitutional by the Supreme Court of Canada in  v. Appulonappa.

Reporting Charter Inconsistencies to the House of Commons

There is a statutory responsibility placed on the Minister of Justice under section 4.1.1. of the Department of Justice Act to report any Charter inconsistency to the House of Commons ‘at the first convenient opportunity.’ However, there is nothing that prevents the Minister from reviewing Acts of Parliament passed by a previous government.

During the 2nd session of the 41st Parliament, former Minister of Justice and Attorney General of Canada, Irwin Cotler, introduced a private member’s bill, C-537 (Constitution Compliance Review Act), that called for the Law Clerk and Parliamentary Counsel of the House of Commons to review all bills and report any likely inconsistencies involving the Charter of Rights and the Canadian Bill of Rights.

Under section 6(2) of this bill, these individuals would report inconsistencies to the Speaker of the House of Commons in regard to bills introduced to the House, and to the Speaker of the Senate, when a bill originates in the upper house. Bill C-537 did not proceed past first reading, and there is currently no requirement that bills be assessed for their relationship to the Charter of Rights and Freedoms, or the Canadian Bill of Rights, once they are introduced into Parliament.

There should be parliamentary assessment of Charter consistency once a bill is introduced, but this needs to be in regard to statements of compatibility issued by the Minister of Justice under a reformed reporting duty under section 4.1.1 of the Department of Justice Act. Further, this should be the responsibility of parliamentarians and not officials of the House of Commons and the Senate, as outlined in Bill C-537. The Law Clerk and Parliamentary Counsel should be involved, but in a supporting capacity to parliamentary committees and the elected members.

In several works published in 2007, 2009, 2012, as well as here, I’ve argued alone or with co-authors, that the Minister of Justice’s reporting duty needs to be rethought as it is unworkable as a statement of incompatibility. It should be revised as a fulsome statement of compatibility that the Minister of Justice submits when a government bill is introduced into the House of Commons.

The intention of the Trudeau government to strengthen the scrutiny capacity of parliamentary committees is an excellent objective. However, the government should strengthen rights-based scrutiny at the committee level to prevent a repeat of the approach to the Charter of Rights under the Harper Conservatives that produced bills such as Bill C-2 (Respect for Communities Act), Bill C-24 (Strengthening Canadian Citizenship Act), and Bill C-51 (Anti-terrorism Act 2015).

On their own, statements of compatibility will not solve the practical and constitutional difficulties of the current Charter certification process that requires the Justice Minister to report against government bills by issuing a statement of incompatibility.

For the Minister of Justice’s reporting duty to have an impact on the parliamentary process and to allow for Charter-based scrutiny, changes to Parliament’s committee structure would need to be introduced in tandem with changes to the Minister of Justice’s reporting duty as a statement of compatibility.

What is needed is the establishment of a stand-alone parliamentary committee that, first, receives the statements of compatibility introduced by the Minister of Justice in regard to government bills, secondly, scrutinizes these statements of compatibility, and finally, issues an independent assessment to Parliament whether, in fact, the committee agrees with the report issued by the Minister of Justice that a bill is compatible with the Charter of Rights and Freedoms, or any statutory document such as the Canadian Bill of Rights.

A Joint Scrutiny Committee on Human Rights (JSCHR)

It would be incorrect to suggest that Canada does not have a parliamentary committee that is tasked with the consideration of human rights issues. The Standing Joint Committee of Regulations is required to determine whether any regulation or statutory instrument ‘is not in conformity with the Canadian Charter of Rights and Freedoms or the 1960 Canadian Bill of Rights’.

This committee was established in 1971 and its mandate was expanded in 1982 with the passage of the Charter of Rights. However, this Standing Joint Committee is limited to the review of regulations and does not assess whether government bills are consistent with the Charter of Rights or the Canadian Bill of Rights.

With the exception of New Zealand, which is a unicameral parliament, the practices in the United Kingdom and Australia have been to establish joint parliamentary human rights scrutiny committees. A review of these Westminster approaches to rights-based scrutiny is provided below.

The United Kingdom

In the United Kingdom, the Joint Committee on Human Rights (JCHR) is chaired by an opposition member from the House of Commons, and is composed of 12 members, based on party standings in the Lords and the Commons. As Prime Minister David Cameron heads a majority government, the Conservative Party has a majority of the members on the JCHR, yet a member of the Labour Party chairs it. The current chair of the JCHR is former interim leader of the Labour Party and cabinet minister, Harriet Harmon.

The role of the JCHR is to provide Parliament with an independent assessment of the section 19 statement attached to all government bills, as required by the Human Rights Act 1998 before second reading of a bill. Under section 19 of the Human Rights Act 1998, a minister proposing a bill must inform Parliament whether a bill is compatible with the Human Rights Act, or failing this, whether the minister considers the bill to be incompatible.

Thus, the JCHR conducts an independent review of government bills and assesses whether they are, in fact, compatible with the Human Rights Act 1998. Therefore, Parliament has the opportunity to consider two human rights reports submitted when a government bill is introduced: the ministerial report under section 19 of the Human Rights Act 1998, and the report issued by the JCHR when it completes its assessment of the human rights implications of the same government bill.

Australia

In Australia, the Human Rights (Parliamentary Scrutiny) Act 2011 establishes a 10 member Parliamentary Joint Committee on Human Rights (PJCHR) drawn equally from the House of Representatives and the Senate, and is chaired by a government member from the lower house. Similar to the JCHR, this committee is based on party standings in Parliament, and the government of Prime Minister Malcolm Turnbull, which is a majority coalition of the Liberal and National parties, has a majority of members on the PJCHR.

Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires a member introducing a bill to attach a statement of compatibility ‘in the explanatory statement relating to the legislative instrument’ but notes that ‘A statement of compatibility prepared under subsection (1) is not binding on any court or tribunal.’ Further, ‘A failure to comply with this section in relation to a Bill that becomes an Act does not affect the validity, operation or enforcement of the Act or any other provision of a law of the Commonwealth.’

New Zealand

New Zealand is an outlier, as it is a unicameral parliament that does not have a dedicated parliamentary committee that reviews legislation for its consistency with the New Zealand Bill of Rights Act 1990. The New Zealand Bill of Rights does not require a member to attach a statement of compatibility to a bill introduce into the House of Representatives. Instead, the Ministry of Justice and the Crown law Office conduct ‘Bill of Rights Act’ (BORA) vetting on all bills, and post these assessment of compatibility on the Ministry of Justice website.

However, the Attorney General must make a statement of incompatibility to the House of Representatives under section 7 of the New Zealand Bill of Rights 1990, where the Attorney General believes ‘any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.’ All section 7 reports are published on the Ministry of Justice website and on the parliamentary website.

Because New Zealand does not have a dedicated parliamentary committee to review bills from a rights perspective, this is the general responsibility of all Select Committees that have ‘subject matter’ mandates. However, three Select Committees – the Law and Order Select Committee, the Justice and Electoral Select Committee, and finally, the Social Services Select Committee – receive the vast majority of statements of incompatibility issued by the Attorney General under section 7, and act as defacto BORA scrutiny committees

Why a Joint Scrutiny Committee and not a Committee of the House of Commons?

Given the current debate surrounding the Canadian Senate, why is it preferable to have a Charter scrutiny committee constituted as a Joint Committee of both Houses of Parliament and not simply a Standing Committee of the House of Commons?

There are essentially three reasons why a human rights scrutiny committee should not be a committee of the House of Commons: first, the normal composition of the House of Commons as majority government; second, the rules governing the composition of committees under the Standing Orders of the House of Commons; and finally, the intense partisanship of the House of Commons that would undermine the effectiveness of rights-based scrutiny involving government bills.

Committees of the House of Commons are based on party standings. As majority government is the norm in Canada, the United Kingdom and Australia, a committee located in the lower house would be controlled by the government, either through the election of committee chairs or the allocation of committee membership along party lines.

The only mandate that a human rights scrutiny committee would have is to scrutinize government bills and determine their consistency with rights instruments such as the Charter of Rights. This is the principal reason why a rights-based scrutiny committee should not be located in the lower house of parliament, where the vast majority of government bills originate, and where the lower house is dominated by the governing party.

If located in the House of Commons, a standing committee would be under the control of the government, as a member of the governing party would most likely be elected as chair, and a majority of the members would be from the government caucus. The natural inclination of this committee, as constituted, would be to accept ministerial conclusions on compatibility and would not engage in substantive review of the bill in question

This is challenge that any parliamentary committee faces, given that party standings in Parliament determine the composition of committees, and majority government is generally the norm in the Westminster systems under consideration. Indeed, parliamentary committees are only as effective as their composition, and tend to be less effective when a committee is chaired by a government member and composed of a majority from the government caucus.

Scrutiny of Acts and Regulations Committee of the Parliament of Victoria

On two occasions, I have been an invited guest and observed the workings of parliamentary scrutiny committees in Australia. In June 2005, I observed the Standing Committee for the Scrutiny of Bills in the Australian Senate, and in February 2008, I was an invited guest of the Scrutiny of Acts and Regulations Committee (SARC) at the Parliament of Victoria in Melbourne, Australia.

I will confine my remarks to SARC, as Victoria and the Australian Capital Territory are the only Australian jurisdictions that have statutory bills of rights. In Victoria, the statutory instrument is the Victorian Charter of Human Rights and Responsibilities Act 2006 and in the Australian Capital Territory, it is the Human Rights Act 2004.

Under the Victorian Charter, section 28 calls for a reasoned statement of compatibility, as it requires the member introducing a bill to certify it’s consistency with the Victorian Charter and establish ‘how it is compatible.’ Thus, a reasoned statement of compatibility has potentially two parts: the reasons why a bill is considered compatible with rights and freedoms, and secondly, failing this, why the bill is considered a reasonable infringement on protected rights or freedoms.

Similar to section 19 of the UK’s Human Rights Act 1998, a member can also attach a statement of incompatibility when a bill is considered inconsistent with rights and freedoms.

Section 30 of the Victorian Charter places a statutory responsibility on SARC to review all bills and report any inconsistencies to Parliament. As a committee, SARC predates the introduction of the Victorian Charter, and simply had its mandate augmented by the introduction of the Charter in 2006.

SARC is a seven member Joint Committee of the Legislative Assembly and the Legislative Council that is chaired by a member of the government caucus with the party standings during the current parliament: Australian Labour Party (4), Liberal Party (2) and National Party (1). As SARC reflects party standings in Parliament, the Australian Labour majority government in Victoria has a majority of the committee members on SARC.

As a guest of SARC, I observed the functioning of a Joint Committee chaired by a government member where a majority were drawn from the government caucus. What I observed leads me to conclude that the composition of a scrutiny committee, and who chairs the committee, are vital decisions that determine whether a parliamentary committee can properly scrutinize a statement of compatibility issued by a cabinet minister that involves a government bill.

During the SARC meeting in February 2008, the committee reviewed a statement of compatibility issued by a Labour government minister. In this particular statement, the minister did not report any Charter inconsistencies – in effect, the minister contended that the bill did not engage any protected rights, and did not require a justification of consistency based on the reasonable limits clause in section 7 of the Victorian Charter.

In reviewing the ministerial statement of compatibility, SARC divided sharply along party lines – the majority of its members from the Australian Labour Party supported the statement of compatibility submitted by the Labour government minister, and the opposition parties rejected it, arguing that the bill was both a violation of the Victorian Charter and an unreasonable limit under section 7.

Based on this experience, and after a thorough review of all ministerial statements of compatibility issued between 2007 and 2010, I concluded that SARC had rarely, if ever, challenged a ministerial statement of compatibility, and the dialogic promise of this parliamentary bill of rights had yet to be realized.

My broader argument was published in the Australian Journal of Political Science 46:3 (2011), 257-278, and explores the ‘difficult dialogue’ between SARC and the Cabinet that had emerged under the Victorian Charter in the 3-year time period investigated.

What are the lessons to be drawn from SARC as a Joint Committee charged with rights-based scrutiny?

  • A rights-based scrutiny committee is only effective if its members act independently and are freed from the party Whip when assessing statements of compatibility.
  • A member of the opposition must chair a rights-based scrutiny committee, as this provides the ability to call witnesses and conduct hearings that may challenge ministerial certification.
  • A rights-based scrutiny committee must be a Joint Committee because of the advantages that upper houses poses as scrutiny chambers that do not exist in lower houses.

The Value of Upper Houses as Scrutiny Chambers

Upper houses are less partisan and this is for a number of important reasons. In the case of the Australian Senate, which is the only elected upper house under consideration, Senators serve for 6-year terms, whereas members of the House of Representatives have a three-year term. The longer term allows Australian Senators to focus on policy work, as opposed to constituency work, and has produced a more collegial body because of the longer periods between elections.

A longer term is not enough to produce a less-partisan chamber, and there are additional characteristics of upper houses that support the establishment of a Joint Committee in Canada with responsibility for rights-based scrutiny.

Although the House of Lords is composed of appointed and hereditary Peers, it is a less partisan chamber than the House of Commons because of balanced party representation where no party has a majority in the Lords (see current standings here). While the Conservatives are a majority in the House of Commons, the Conservatives in the Lords only number 251 out of 822 members (31%), followed by Labour (213 or 26%) and a crossbench of 179 members (22%).

In the United Kingdom as in Australia, ‘crossbench’ is the term for independent members or those from very small parties such as the Greens in Australia. The Australian Senate is based on the Single-Transferable-Vote system (STV), whereas the House of Representatives uses Preferential Voting (PV). This has produced the following notable characteristic similar to the relationship between the Houses of Parliament in the United Kingdom: a majority party generally controls the lower house, whereas the Australian Senate is rarely composed of a majority of government members.

In the current Australian Senate of 76 members, the Coalition of Liberals and Nationals led by Prime Minister Malcolm Turnbull has 33 members (43%); the Australian Labour Party has 25 Senators (33%) and a crossbench of 18 members (24%). The Green Party is the largest contingent of crossbenchers at 10 Senators.

In truth, a rights-based parliamentary scrutiny committee would be most effective if it were located solely in an upper house, given that the government rarely controls a majority of the members, and a government bill considered incompatible by this committee would have to be responded to in a thoughtful and constructive way because government members are generally in the voting minority.

In Canada, because of the democratic deficit that exists in an unelected Senate, a human rights scrutiny committee cannot be a committee solely of the appointed upper house, and would need to be established as a Joint Scrutiny Committee.

However, given the approach of the Trudeau Liberals to the Senate, while in opposition and in government, the conditions for a less partisan and more independent chamber may exist that would benefit right-based scrutiny by the proposed Joint Scrutiny Committee on Human Rights – first, the decision in January 2014 to remove all Senators from the Liberal caucus, and secondly, the appointment process announced as part of the Minister of Democratic Institutions mandate letter to ‘Bring forward a proposal to create a new, non-partisan, merit-based process to advise the Prime Minister on Senate.’

As of January 2014, Canada now has a large number of crossbenchers in the Senate, and the new appointment process may result in a less partisan body. With the appointment of 22 non-partisan appointments to fill the Senate vacancies, 28 former Liberal Senators and 10 independents, a potential cross bench of 60 Senators in the 105-member chamber is a strong possibility.

Perhaps for the first time in many generations, the Senate can perform its role, independently, as a chamber of sober second thought, which would be to the benefit of rights-based scrutiny by a Joint Committee charged with this responsibility.

Have these Parliamentary Bills of Rights Been Effective?

In Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom (Cambridge University Press, 2015), this question was explored in collaboration with my co-author, Janet Hiebert. We concluded that rights-based scrutiny by the JCHR in the UK and Select Committees in New Zealand had not been particularly effective. In this book, we considered the issues of prisoner disenfranchisement, drug policy, anti-terrorism legislation, and equality for gays and lesbians.

There are a number of reasons why rights-based scrutiny has not been effective in the UK and New Zealand:

  • Ministerial statements on compatibility failed to generate meaningful rights-based scrutiny because of the composition of the scrutiny committee that favoured the party in office. This conclusion held whether the party in office was a majority government, as in the United Kingdom, a minority government (New Zealand), a coalition government (UK and New Zealand) or a minority government supported by ‘supply and confidence’ agreements with minor parties (New Zealand);
  • Even when opposition members on parliamentary scrutiny committees disagreed with ministerial certifications of compatibility, they rarely succeeded in having a report of incompatibility passed because the committee tended to divide along party lines;
  • Scrutiny committees are most effective when chaired by members of the opposition, a member of the governing party that was a former minister, or a backbencher without ministerial ambition;
  • Scrutiny committees gain effectiveness when crossbenchers are appointed, as they mediate between the parties of government and opposition;
  • The limited role provided to the courts under the Human Rights Act 1998, the Victorian Charter of Human Rights and Responsibilities Act 2006, and the New Zealand Bill of Rights Act 1990 was probably the most significant reason why statements of incompatibility rarely saw Parliament refuse to pass a bill into law.

The cost of reporting rights-based inconsistencies to Parliament in Australia and the UK is very low for two important reasons: because of majority governments, Parliament has generally been unable to require that a bill comply with rights and freedoms before it is passed; and secondly, the courts are unable to review Acts of Parliament under any of these parliamentary bills of rights and declare them unconstitutional.

Would a Joint Scrutiny Committee on Human Rights be effective?

In Bonfires of the Liberties: New Labour, Human Rights and the Rule of Law (Oxford University Press 2010), K.D. Ewing discusses the futility of the Human Rights Act 1998, which he attributes to the reality of parliamentary democracy (page 2): ‘This is the problem of centralized power and executive dominance, and the ability of governments with the support of the House of Commons to do pretty much what they want.’

Given that these assessments of parliamentary bills of rights in the United Kingdom, New Zealand, and Australia have, for the most part, been pessimistic, why should we expect that the Canadian experience with a Joint Scrutiny Committee on Human Rights would be any different?

There are a number of reasons why we can expect the Canadian experience to be more successful:

  • Canada can learn from parliamentary bills of rights and design scrutiny procedures that overcome the limitations experienced by the JCHR, SARC, and Select Committees in New Zealand;
  • The Canadian Charter of Rights is different from any of these parliamentary bills of rights. It is supreme law, it is entrenched in the constitution, and Canadian governments, for the most part, have attempted to design legislation that is compatible with the Charter of Rights and Freedoms;
  • The Liberal government of Prime Minister Justin Trudeau has indicated that it will comply with the Charter of Rights in a substantive way, and respect the parameters established by the Supreme Court of Canada;
  • The Canadian courts are provided with important responsibilities under the Charter of Rights that do not exist in the any of the bills of rights under consideration. The Canadian courts can declare Acts of Parliament or the provincial legislatures unconstitutional, can amend the Charter in areas such as equality rights through ‘analogous grounds’ and can fashion remedies that the courts consider ‘appropriate and just in the circumstances’ under section 24(1).
  • In the United Kingdom, select courts can make ‘declarations of incompatibility’ under section 4 when legislation departs from the Human Rights Act 1998. Under section 36 of the Victorian Charter, select courts make ‘declarations of inconsistent interpretation’. However neither of these judicial declarations affects the legality of laws that continue in force despite negative rulings under section 4 of the Human Rights Act 1998 or section 36 of the Victorian Charter.
  • In New Zealand, the role of the courts is even more restricted. Under section 4 of the NZBORA, the courts cannot declare acts inconsistent with rights and freedoms, and under section 6, the courts must ‘prefer’ an interpretation of an act as consistent with the NZBORA.

Reasoned Statements of Compatibility and Strong-form Judicial Review

The ability of the courts in Canada to declare legislation ‘of no force or effect’ under section 52 of the Constitution Act, 1982 is an example of what Mark Tushnet refers to as strong-form judicial review in Weak Courts, Strong Rights (Princeton University Press 2008). The presence of strong-form judicial review is an important reason why the Canadian experience may be more successful than either that of the United Kingdom or New Zealand.

The remedial powers of the Canadian courts under section 24(1) of the Charter of Rights, in combination with a reporting duty that requires the Minister of Justice to explain whether a government bill is compatible with the Charter of Rights, and more importantly, on what basis a government bill is compatible, could result in a more successful example of rights-based scrutiny by a parliamentary committee.

The form that a statement of compatibility takes, therefore, is very important as it can determine whether a parliamentary committee can engage in rights-based scrutiny when a minister submits a report to Parliament on a bill’s consistency with the Charter of Rights.

For instance, the approach to statements of compatibility in the Australian Capital Territory (ACT) is not particularly useful, and does not generate rights-bases scrutiny. Under the ACT’s Human Rights Act 2004, the Attorney General is required under section 37 to issue a compatibility statement on every bill submitted to the Assembly.

The Crime Legislation Amendment Bill 2014 is an example of the standard approach by the ACT Attorney General, where this minister simply states that a bill is compatible without providing a reasoned opinion establishing the basis of compatibility. This approach lacks transparency, as compatibility may be based on the Attorney General’s conclusion that a limitation on a right is demonstrably justified and reasonable. However, by simply stating that a bill is compatible, a parliamentary committee is placed at a serious disadvantage in determining whether, in fact, compatibility has been established.

Instead, the Minister of Justice in Canada should adopt the practice in the United Kingdom (see Terrorist Asset-Freezing (Temporary Provisions Bill) 2010 at paragraphs 36-49) or Victoria, where the responsible minister is required to provide a reasoned report why a government bill is considered compatible with the human rights instrument (see Tobacco (Control of Tobacco Effects on Minors) Bill).

In these reasoned statements of compatibility, the responsible minister discloses when a bill infringes a protected right and why the minister considers the infringement a reasonable limitation, and thus consistent with either the Human Rights Act 1998 or the Victorian Charter.

Requiring the Minister of Justice to provide a disclosure statement modelled after the United Kingdom and Victoria could generate rights-based dialogue at the Joint Scrutiny Committee on Human Rights between the Minister and the committee.

As the test of reasonableness is subjective and contestable, a reasoned statement of compatibility may see the Joint Scrutiny Committee disagree with the report issued by the Minister of Justice and inform Parliament that, in the opinion of the committee, the government bill in question is incompatible with the Charter of Rights and Freedoms.

This compatibility disagreement would occur before the second reading debate on a government bill, and would require the government to provide either a stronger justification for proceeding with a bill that the Joint Scrutiny Committee on Human Rights has indicated is inconsistent with the Charter of Rights, or alternatively, propose amendments to reconcile these rights based inconsistencies noted by the JSCHR.

The Structure of a Joint Scrutiny Committee on Human Rights

As the main task of this committee will be to assess the statements of compatibility issued by the Minister of Justice in regard to government bills, the experience of SARC suggests that a committee chaired by a member of the government and based upon party standings in Parliament will be less than effective as a scrutiny committee.

There is a real danger that, if the Joint Scrutiny Committee is based upon party standings in the Parliament of Canada, it will divide along party lines when assessing statements of compatibility, with government members support the report issued by the Minister of Justice, and the opposition parties rejecting the statement of compatibility. In such a scenario, the opposition members would be outnumbered and out-voted, and the Joint Scrutiny Committee would simply accept the Minister of Justice’s statement of compatibility without proper consideration.

Composition

Appointing a government member as chair creates real challenges for the effectiveness of a scrutiny committee, as the New Zealand experience also demonstrates. As we found in Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom, despite the minority status of many governments under the Mixed Member Proportional (MMP) electoral system in New Zealand, as well as the Standing Orders of the House of Representatives that committee membership should reflect party standings, the government generally had majority control – either on its own or in partnership with its ‘supply and confidence’ partners – of the critical committees that reviewed the section 7 reports under the New Zealand Bill of Rights Act (NZBORA) issued by the Attorney General.

We concluded that rights-based scrutiny in New Zealand proved to be less than effective; despite the Attorney General reporting that government bills appeared inconsistent with the NZBORA on 32 instances between 1990 and 2014.

The limited ability of Select Committees in New Zealand to amend legislation to ensure compliance, once the Attorney General reported inconsistencies to the House of Representatives, occurred for a number of practical parliamentary reasons:

  • Select Committee chairs from the governing caucus tended to have ministerial ambition, and clearly understood that challenging the compatibility of government bills or amending bills to ensure greater compatibility would undermine their career ambitions;
  • Select Committees chaired by a government member that reviewed the vast majority of section 7 reports (Justice and Electoral, Law and Order, and Social Services) were composed of a majority of government members, despite the minority status of most governments under MMP.

As voting occurred along party lines, committee members from the governing party always passed government bills despite the Attorney General issuing a statement of incompatibility under section 7 of the NZBORA. Thus, party-political considerations dominated Select Committees, and the scrutiny mandate was of secondary importance.

  • Parliamentary scrutiny committees are only as effective as their composition. If the governing party constitutes an overall majority on a scrutiny committee or the lower house of Parliament, statements of incompatibility or committee disagreements with ministerial certifications of compatibility will have little or no impact on the bill in question.

Like the Standing Committee on Public Accounts in the Parliament of Canada, a member of the opposition should chair the Joint Scrutiny Committee on Human Rights. The JSCHR should not reflect party standings in Parliament, members of the governing party should be in the minority, and crossbenchers from the Senate should be appointed to ensure that the committee has an independent composition or component.

The structure of the committee is essential to ensure that Parliament receives an independent assessment of Charter compatibility when the Joint Scrutiny Committee reviews a government bill to ensure that it does more than simply endorse the report issued by the Minister of Justice.

The ideal chair of this committee is a former government minister from an opposition party: in effect, an individual that understands the machinery of government that produces government bills, and a person that is independent from the government caucus with an important profile in Parliament.

As I indicated previously, the current chair of the JCHR in the UK is the ideal profile for the chair of the proposed Joint Scrutiny Committee on Human Rights: the current chair of the JCHR, Harriet Harman, is a former Labour minister from the Blair and Brown governments, as well as the former interim Leader of Her Majesty’s Most Loyal Opposition and interim Labour leader.

Staffing the Joint Scrutiny Committee on Human Rights

Creating a Joint Scrutiny Committee is important. Properly staffing the JSCHR is of vital importance to allow it to properly assess the statements of compatibility issued to Parliament by the Minister of Justice.

In the United Kingdom, the JCHR employs a full time legal advisor and an assistant legal advisor to support the committee in scrutinizing government bills and to assess their compatibility with the Human Rights Act 1998. As well, the Scrutiny of Acts and Regulations Committee of the Victorian Parliament appoints a Human Rights Advisor that performs a similar role.

In the research conducted for Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom (Cambridge University Press 2015), one issue we noted was the resistance by departmental officials and government ministers to the vetting of statements of compatibility by scrutiny committees and their legal advisors.

This occurred for a very practical reason – a team of policy officers and legal officials within the bureaucracy developed the statement of compatibility presented by the government minister, whereas a single legal advisor attached to a scrutiny committee generally authored the assessment of the statement of compatibility. In effect, because of the organizational resources devoted to developing the policy and ensuring that it was, in the minister’s opinion compatible, government officials were generally sceptical about the quality and thoroughness of the rights-based scrutiny performed by parliamentary committees supported by a handful of legal advisors.

This highlights the need to properly staff scrutiny committees to overcome bureaucratic and ministerial resistance to parliamentary committees tasked with rights-based scrutiny.

To provide some organizational context to this scepticism, the Human Rights Law Section at the Department of Justice in Ottawa employs 28 legal counsels, and the Legal Service Unit at Health Canada has 41 legal counsels. With the exception of the Department of Foreign Affairs, every government department has, within its organizational structure, a Legal Service Unit that is staffed by lawyers from the Department of Justice roughly the size of Health Canada’s.

Within the House of Commons, the Office of the Law Clerk and Parliamentary Counsel has 7 Parliamentary Counsel (Legal) and 4 Parliamentary Counsel (Legislation). Every parliamentary committee has a Procedures Clerk who relies on the Office of the Law Clerk and Parliamentary Counsel for legal and constitutional advise on bills before it.

For the current Parliament (2015-), there are 25 Standing Committees of the House of Commons that are supported by the 11 members of the Office of the Law Clerk and Parliamentary Counsel.

The potential for departmental and ministerial scepticism toward the work of the proposed Joint Scrutiny Committee on Human Rights exists in the Canadian context. This scepticism could be addressed in several ways:

  • Adopt the practice of the JCHR in the United Kingdom and appoint a full-time legal advisor with an international reputation in the area of public law or public policy. The first legal advisor of the JCHR between 2000 and 2004 was David Feldman, Professor of Law at the University of Cambridge. Professor Feldman has served as a Judge of the Constitutional Court of Bosnia and Herzegovina (2002-10) and as a Vice-President of the Court (2006-09);
  • Alternatively, significantly increase the size of the Office of the Law Clerk and Parliamentary Counsel Office to support the scrutiny activities of the Joint Scrutiny Committee on Human Rights, as well as the work of all parliamentary committees.

Conclusion

Of the countries and bills of rights considered, the Canadian Charter of Rights and Freedoms is the oldest document and the Parliament of Canada is the least reformed institution in respect to human rights and parliamentary scrutiny.

The Trudeau government recognizes the underdeveloped nature of parliamentary scrutiny, and has expressed concerns with the former Harper government’s approach to the Charter of Rights and Freedoms.

A better path can be chartered toward a new relationship between the Canadian Charter of Rights and the Parliament of Canada by adopting four simple, incremental, non-constitutional changes:

  1. Require the Minister of Justice to issue reasoned statements of compatibility that accompany every government bill when it is introduced into Parliament. This would replace the current unworkable statement of incompatibility that is required under section 4.1.1 of the Department of Justice Act;
  1. Create a stand-alone Joint Scrutiny Committee on Human Rights to receive these statements of compatibility;
  1. Construct the Joint Scrutiny Committee on Human Right in a way that allows it to break free from government control and leadership. This would help to ensure that this committee engages in rights-based scrutiny of ministerial certifications under a revamped section 4.1.1 of the Department of Justice Act;
  1. Provide the Joint Scrutiny Committee on Human Rights with sufficient human resources to conduct independent assessments of ministerial statements of compatibility. To be most beneficial, these reports should be available to parliamentarians before a government bill proceeds to second reading.

 

 

 

 

 

 

The Charter of Rights and the Minister of Justice: Why Section 4.1.1 of the Department of Justice Act needs to be rethought and reformed

The Trudeau government has gone to great lengths to ensure greater transparency in the operation of the Canadian government. It has released all mandate letters sent to members of Cabinet, which has allowed Canadians to clearly understand the government’s policy objectives and the ethical standards demanded by the Prime Minister. This is a good start and a clear attempt to differentiate itself from the former Harper government.

As the party that introduced the Charter, the Trudeau government has indicated that it will approach public policy in a way that is more respectful of the Charter and the judicial process. The mandate letter to the Minister of Justice indicates that the Court Challenges Program will be reinstituted; it also calls for a review of the government’s litigation strategy, which ‘should include early decisions to end appeals or positions that are not consistent with our commitments, the Charter or our values’. This has quickly been acted upon, as the Trudeau government has ended the appeal of the Niqab ban in citizenship ceremonies that was introduced by the Harper Conservatives.

Not surprisingly, the Trudeau government has placed the Charter of Rights at the centre of a more transparent approach to policy. If the government is serious about transparency, and wants to demonstrate greater commitment to the Charter, it should consider changing how the Minister of Justice dispenses her reporting duty to Parliament under section 4.1.1 of Department of Justice (DOJ) Act. The DOJ Act requires the Minister of Justice to review all government bills and regulations for their Charter compliance, and ‘shall report any such inconsistency to the House of Commons at the first convenient opportunity.’ This reporting duty does not apply to private members bills, and to date, the Minister of Justice has never reported to Parliament that a government bill is inconsistent with the Charter of Rights.

The failure to report is because section 4.1.1 is unworkable, as it requires the Minister of Justice to perform two contradictory roles: first, as a member of cabinet, she is required to support government bills because of cabinet solidarity; and secondly, as Parliament’s legal advisor under section 4.1.1, the Minister of Justice must report incompatible government bills to the House once a bill is introduced.

Presently, section 4.1.1 is a statement of incompatibility and would only be used by the most principled (and foolhardy) Minister of Justice, given the obvious career implications attached to reporting against a government bill. This raises an important question that is both practical and constitutional – how could a Minister of Justice participate in cabinet discussions leading to the introduction of a bill into Parliament where, at the moment of introduction, the Minister of Justice now decides that the bill is inconsistent with the Charter and reports to the House of Commons under section 4.1.1 of the DOJ Act? A Minister of Justice that reviewed a draft bill and concluded that it was inconsistent with the Charter, briefed cabinet on these inconsistencies, and was unable to convince the cabinet to reconsider introducing such a bill, would surely have to resign because of the conflict between individual ministerial responsibility and the collective will of cabinet.

There is a deeper problem in the Canadian context, however, with a Minister of Justice being required to issue a statement of incompatibility. It requires the Minister of Justice to report on what the ministry is constitutionally prohibited from introducing under section 52 of the Constitution Act – legislation that is inconsistent with the Charter of Rights, or any other part of the constitution. No government would knowingly introduce such legislation, and this explains why the Minister of Justice has never reported to the House of Commons under section 4.1.1. of the DOJ Act. Further, this reporting duty obscures the nature of constitutionality under the Charter: does the Minister of Justice consider a government bill inconsistent with the Charter because it infringes a protected right? Is it inconsistent because the infringement is not considered a reasonable limit under section 1 of the Charter? In effect, what is the standard employed to determine Charter inconsistency?

What is the solution to this unworkable reporting duty that is, at its core, an attempt to ensure a transparent Charter certification process? Are there practices in other Westminster systems that the Trudeau government could learn from and adopt? The answer is yes, it is found in Australia, New Zealand and the United Kingdom, and the solution is rather simple. Although Australia does not have a national bill of rights, the Parliament of Australia passed the Human Rights (Parliamentary Scrutiny) Act 2011 that requires all bills to have a statement of compatibility certifying that it is consistent with recognized rights and freedoms. In New Zealand, all statements of compatibility are posted on the website of the Ministry of Justice, and reports of the Attorney General under section 7 of the New Zealand Bill of Rights Act 1990, which are statements of incompatibility, are available on the parliamentary and Ministry of Justice websites. Similarly, a minister introducing a bill in the United Kingdom is required under section 19 of the Human Rights Act 1998 to attach either a statement of compatibility or incompatibility to a bill.

The experiences of these parliamentary bills of rights have been examined by Janet Hiebert and myself in a 2015 book by Cambridge University Press, and the Trudeau government should revise the Minister of Justice’s reporting duty in a similar way. Instead of reporting on Charter inconsistencies, the Minister of Justice should be required to attach a statement of compatibility to every government bill that certifies it is consistent with the Charter when it is introduced into the House of Commons, and on what basis the Minister of Justice believes a government bill is compatible with the Charter of Rights. Perhaps this could be extended to private members bills (PMB), but given that few PMBs are passed into law, it may be prudent to have the Minister of Justice only report on those PMBs that survive first reading in the House of Commons, which is the practice in New Zealand.

Statements of compatibility submitted by the Minister of Justice would take one of two forms. In the first, the Minister of Justice would report that a bill is compatible because it does not engage any Charter rights: few reports would likely take this form, as most legislation does engage the Charter of Rights to some degree. Many bills considered by Parliament infringe protected rights and freedoms, but are ultimately supported because these limitations are considered reasonable under section 1 of the Charter. The vast majority of statements of compatibility would acknowledge this duality of Charter certification – that a government bill infringes a right, but that the Minister of Justice considers the infringement reasonable under section 1 of the Charter. The second approach to statements of compatibility is the most important, as it would demonstrate a government’s commitment to Charter transparency when the Minister of Justice reports to the House of Commons the reasons why a government has decided to proceed with a bill that engages the Charter of Rights.

What would be the value of these statements, particularly the second version? First, it could create an informed parliamentary debate on whether to proceed with a bill that infringes protected rights. Secondly, it would require the government to defend its position that the limitation is reasonable on the floor of the House of Commons. Finally, statements of compatibility would be a valuable addition to the workings of parliamentary committees, and may become of such importance to the legislative process that the Parliament of Canada establishes a committee devoted to parliamentary scrutiny of these statements, such as the Joint Committee on Human Rights in the United Kingdom, and the Parliamentary Joint Committee on Human Rights in Australia. The temptation for any government would be to have the Minister of Justice report that a bill does not engage the Charter of Rights. This would render a statement of compatibility little better than the current approach to section 4.1.1 and would need to be avoided for a workable reporting duty.

The Speech from the Throne in December 2015 focused on greater transparency, as the Trudeau government indicated that ‘it will not resort to devices like prorogation and omnibus bills to avoid scrutiny.’ Altering the Minister of Justice’s duty under section 4.1.1. from reporting on Charter inconsistencies to issuing statements of compatibility is in line with this sentiment. More importantly, it would demonstrate the Trudeau government’s commitment to approaching the Charter of Rights in a more transparent and accountable way than its predecessor.

The Leader of the Government in the House of Commons and Parliamentary Reform: Prime Minister’s Questions and Backbench Independence

The mandate letter issued by Prime Minister Justin Trudeau  to the Leader of the Government in the House of Commons, Dominic LeBlanc, contains several modest – but realizable reforms – that would immediately improve the character of Parliament.

The intention to establish ‘Prime Minister’s Questions’ modelled after the United Kingdom, whereby one day a week is devoted to questioning the Prime Minister for 30 minutes, is a good idea. In the United Kingdom and Canada, question time or period, respectively, is held Monday to Thursday for 1 hour. However, in the United Kingdom, question time does not involve the Prime Minister but the rest of the ministry, which allows their shadow cabinet counterparts to regularly question individual ministers about their portfolios and performance.

The current practice in Canada, where the Prime Minister attends the daily question period when in Ottawa, does have its advantages, as the opposition parties hold the Prime Minister to account on a daily basis. However, this has reinforced the dominance of the Prime Minister to the detriment of individual cabinet responsibility, as the ministry is overshadowed by the opposition parties’ preoccupation with questioning the Prime Minister.

Question period has essentially become ‘Prime Minister’s Questions’ in Canada, and this is at the expense of collective responsibility, as well as the individual responsibility of ministers for their briefs. Adopting the British practice of Prime Minister’s Questions would signal a desire to move away from prime-ministerial government that intensified under the Harper government and to return to a cabinet-centred approach to government whereby the Prime Minister is simply ‘first amongst equals’.

Lessening Party Discipline

The mandate letter to the Leader of the Government in the House of Commons also calls for a lessening of party discipline and more free votes for Liberal MPs. Most governments begin their time in office with such noble intentions, and the test will be whether the Trudeau government can relax party discipline and tolerate having its legislative agenda defeated by Liberal MPs voting with the opposition parties.

While the defeat of a government bill by its own backbench is a feature of the United Kingdom, an independent backbench may be the product of the larger size of the British House of Commons and the fact that most backbenchers realize that they will never be cabinet ministers, or even parliamentary private secretaries.

The career of most British MPs is that of the backbenches. This career realism within a Parliament such as Westminster creates the environmental setting that has allowed a class of independent backbenchers to emerge, thrive, and be sustained against the will of the front bench.

Additionally, there are far more ‘safe’ seats in the Westminster Parliament, and British MPs do not face automatic reselection as the party candidate each election.  A sitting MP in the United Kingdom is more secure than their Canadian counterpart, and this contributes to the greater independence of Westminster MPs that reside on the backbenches.

In the United Kingdom, the government is equated with the ministry and a Conservative backbencher would never self identify as part of the Cameron government, as the government and the caucus are distinct bodies. In Canada, the government is synonymous with the party in office, and a backbench Liberal would self identify as a member of the Trudeau government. This suggests that there are important cultural differences between these two parliaments that also determine the degree of backbench independence.

The modest size of the Canadian House of Commons, the relatively small size of the government caucus in comparison to the United Kingdom, and the comparatively large proportion of the government caucus that are either in the ministry or serve as parliamentary secretaries, may be the real reason why disciplined caucuses are the norm in Canada.

On its own, loosening the party whip will not produce the equivalent of the 1922 Committee that exists in the British Conservative Party, which is an institutional manifestation of backbench independence within Westminster. There are other forces at work that explain the high cohesion of Canadian political parties and the endurance of party discipline than the voting instructions communicated to MPs by the Whip’s Office.

A lessening of party discipline would only produce an independent backbench if other changes occurred – a significant reduction in the size of the cabinet, an overall expansion in the size of the House of Commons, and the automatic reappointment of sitting MPs as parliamentary candidates.  As none of these are likely to occur, party discipline will remain a characteristic of the Canadian House of Commons.

A Gender Balanced Cabinet

There is, however, one change to the selection of the ministry by Prime Minister Trudeau that may, in fact, partially advance the goal of backbencher freedom but with a gendered outcome and twist – the decision to appoint a gender-balanced cabinet.

The cabinet prospects for male Liberal MPs have worsened, whereas those of female Liberal MPs have significantly improved. For instance, of the 50 Liberal MPs that are women, 15 are members of the ministry and 12 are parliamentary secretaries, for a total of 54% (27/50) of the female Liberal caucus being directly appointed by Prime Minister Trudeau.

This career realism may result in greater freedom on the part of backbench male Liberals but greater adherence to the party Whip by the Liberal’s women caucus, which may become the law of unintended consequences simply because it’s 2015.

 

 

The Senate after the Election: How will the NDP and the Liberals react?

Although the Senate is a much-maligned institution, it plays a vital role in our bicameral parliament. The current debate on the Senate, and the stated positions of the opposition parties that seek to form government after October, downplay its centrality to the functioning of any government. I am not referring to the embarrassment that Senators may cause a future government, or how they may undermine confidence in the Prime Minister. Instead, a very practical issue exists that the two opposition parties have downplayed – the need to have a caucus in the upper chamber that ensures the passage of legislation referred to it by the House of Commons.

The Leader of the Government in the Senate is responsible for the management of the government’s legislative agenda, which is principally introduced in the House of Common. This individual coordinates with the Leader of the Opposition in the Senate to ensure the passage of government bills, once received from the House of Commons, and reviewed by the appropriate Senate Committee. In short, the government that resides in the House of Commons requires individual Senators to adopt, support, and drive its legislative agenda until Royal Assent is granted.

Leaving aside the Conservative party, which has a disciplined caucus and a workable Senate majority despite 22 vacancies, how do the stated positions of the Liberals and NDP square with this basic principle of Canadian parliamentary democracy, which is bicameralism?  Who will be the Leader of the Government in the Senate if either of these parties form government after the October election? Will the Senate Liberal Caucus – what the expelled Liberal Senators are now referred to as – be welcomed back into the fold, once Justin Trudeau realizes that being Prime Minister without a Senate majority and a Leader of the Government in the Senate makes passing any bill rather complicated? I wonder whether the Liberal advisors surrounding Justin Trudeau now realize that their practical ‘reform’ of the Senate is misguided as it creates real constitutional consequences for the act of governing.

Of the two opposition parties, the NDP predicament is far more serious. Unlike the Liberal party, which at least has a former Senate caucus that may be reintegrated as a minority party in the Senate, or at the very least, support government bills, the NDP caucus does not have a single Senator. In recent parliaments, it has not been unusual for the Official Opposition to be lead in the Senate by a party other than the one that performs this role in the House of Commons. During the periods in which the Bloc Québécois, the Reform Party and the Canadian Alliance lead the Official Opposition in the House of Commons, the Progressive Conservatives and the Conservative Party performed this role in the Senate.

For a party committed to abolishing the Senate such as the NDP, the absence of senators in its caucus is a perfectly understandable position. For a party that is a government-in-waiting, this is a serious constitutional situation, and requires the NDP to inform Canadians how it would interact with the Senate if it forms the next government.   Would Thomas Mulcair appoint NDP Senators to ensure that the Leader of the Government in the Senate is drawn from his own party? Alternatively, would the NDP ask Conservative senators or Senate Liberals to represent the government in the Upper House? Would an NDP government act as if Parliament is unicameral, and simply expect the Senate to pass its legislative agenda without scrutiny?

The NDP response to this practical issue may simply be that it intends to abolish the Senate, and the absence Senators is a short-term problem. However, altering the Senate is a long-term constitutional project that extends beyond the life of the next Parliament.

If the NDP or the Liberals form government, this would be the first time that a government residing in the House of Commons would not have Senators in its caucus. More significantly, the government would not be lead in the Senate by a member of the same political party. Our system is based on peace, order, and good government. Our parliament is bicameral and both houses advance legislation toward Royal Assent. The length of the current campaign provides ample time for the opposition parties to tell Canadians how they intend to work with the current Senate to pass legislation, as the Liberal and NDP positions create a potential crisis for parliamentary democracy after the October election.