On Collective Ministerial Responsibility and Impeachment

Posted on 2017/01/04 by J.W.J. Bowden

The Duke of Buckingham's Impeachment at the Bar of the House of Lords

The Duke of Buckingham’s Impeachment at the Bar of the House of Lords

Introduction: Ian Brodie’s Article in The Dorchester Review

Ian Brodie, one of Stephen Harper’s former chiefs of staff who served him both as Leader of Her Majesty’s Loyal Opposition and as Prime Minister, contributed an interesting article to the most recent issue of The Dorchester Review — to which, if you enjoy this blog, I recommend that you subscribe, since you’d probably also like the journal.

You should take as many grains of salt you deem appropriate before reading “Harper the Constitutionalist” in full, given that Brodie worked for Harper. However, I think that Brodie’s analysis of this incident is constitutionally correct and quite interesting, since it had never occurred to me before and flew under my radar in 2006. What is more, this example illustrates the principle of collective ministerial responsibility, and it rather complements my piece in the same issue of The Dorchester Review, “1841 or 1848: When Did Responsible Government Begin?” and my early findings on how the emergence of proper collective ministerial responsibility determines when Responsible Government truly came to its own.

On 21 and 22 June 2006, controversy erupted when New Democratic MP Nathan Cullen introduced a motion before the House of Commons Standing Committee on Environment and Sustainable Development (as it was then known) asking that Minister Ambrose alone be dismissed from Cabinet. Brodie summarizes the events as such:

Harper had long been a clear opponent of the Kyoto Protocol on greenhouse gas emissions. The Chrétien and Martin governments both advertised their support for the Protocol, but refused to take the steps required to meet the commitments Chrétien’s government had made in Kyoto. By 2006, Canada had no realistic options for meeting these targets, and Harper’s first environment minister, Rona Ambrose, admitted as much in public. NDP MP Nathan Cullen, unhappy with Ambrose’s admission, moved a motion in the House of Commons Environment Committee calling for her dismissal. The motion was based on the fundamentally unconstitutional idea that the House can vote non-confidence in a single minister.

Responsible government rests on the tenet that while ministers are individually and collectively accountable to the House, the House can only vote non-confidence in the government as a whole. Mr. Harper reminded everyone of this fundamental rule when he announced would see any vote of non-confidence in his environment minister as a lack of confidence in his government. The Liberals hurriedly voted with the Conservatives to defeat Cullen’s motion at the Committee’s next meeting, ending the manoeuvre quickly. But the American-style effort to impeach a single member of the ministry over a policy matter gave Harper the opportunity to correct a profound misunderstanding of Canadian constitutionalism. Ministerial responsibility has an individual dimension to it when malfeasance or bad administration is at issue. But on policy matters, the government are collectively responsible to the House. Harper’s timely warning was an astute effort to remind everyone of the appropriate separation of powers.[1]

In short, Brodie is undoubtedly correct in his analysis of the constitution and of how Responsible Government works.

Nathan Cullen’s Unconstitutional Motion of Impeachment Over Policy Disagreements

Cullen had proposed the following motion to the committee on 21 June 2006, which would have amounted to a de facto impeachment of Minister Ambrose, if even Cullen himself did not use that word. His seven articles of impeachment are as follows:

That because the Minister of the Environment has:

1) indicated in Bonn that Canada would not live up to its international obligations under the Kyoto Protocol;
2) refused to address the municipal mayors and councillors of the Federation of Canadian Municipalities assembled in Montreal in June, 2006;
3) been the first Federal Minister of the Environment to refuse to attend the annual Smog Summit in Toronto;
4) refused to appear before this committee in spite of a standing and open invitation;
5) tabled no plan for Canada to reduce Greenhouse Gas Emissions or to address Canada’s pollution problems;
6) done nothing to stop the regressive cuts to beneficial environmental programs such as Energuide for Houses Retrofit Incentive Program and for Low-Income Households;
7) implemented no single measure to conserve or protect Canada’s environment to date;

That the Standing Committee of the Environment and Sustainable Development call on the Government of Canada dismiss the Minister of the Environment from her current cabinet position and that this decision be reported to the House.[2]

The Minutes of Proceedings indicate that while the Chair had ruled the motion in order, Conservative MP Maurice Vellacott appealed the decision, and the committee ultimately agreed 7 to 3 that Cullen’s motion was out of order.[3] While Mark Warawa touched upon the absurdity of Cullen’s impeachment motion, the committee ultimately voted out of order without explicitly exposing the unconstitutionality of Cullen’s proposal. As Brodie points out, this motion had nothing to do with personal misconduct on the part of Minister Ambrose, nor did it even pertain to administrative incompetence in Environment Canada, for which the minister is responsible. Instead, the motion pertained purely to the policies of the Harper government. Cullen’s only recourse would therefore have involved tabling a motion of non-confidence in the government as a whole.

And what does “that the Government of Canada dismiss the Minister of the Environment” even mean? The phrasing betrays Cullen’s ignorance of the constitution. (Conservative MP Mark Warawa touched upon this during the committee). The Governor General appoints and dismisses Ministers of the Crown on and in accordance with the advice of the Prime Minister, who normally conveys his views to the Governor General in writing through an instrument of advice.  Ultimately, this authority derives from sections 9 and 11 of the Constitution Act, 1867, which, by the established constitutional conventions of Responsible Government, the Governor General exercises on and in accordance with the Prime Minister’s advice. The House of Commons has no business in ordering the Prime Minister to shuffle his cabinet, and no statute – let alone a mere motion – can purport to bind the Prime Minister without also binding the Governor General, or else it would be unconstitutional and ultra vires of section 41(a) of the Constitution Act, 1982.

But Nathan Cullen insisted on pursuing his unconstitutional motion. The following day, he rose in the House of Commons on a spurious point of privilege and took the extraordinary step of asking that Speaker Milliken overrule the vote of the committee and deem his unconstitutional motion in order so that the committee would have to vote on the motion itself at its next sitting. He droned on for several paragraphs, culminating in this reasonable-sounding but fundamentally incorrect and self-serving nonsense — and probably delivered without a hint of irony:

When a majority is used to abolish the rules and deprive me of a fundamental right to hold the minister to account, our system has fallen into disrepute. I ask you, Mr. Speaker, to see the prima facie case in my question of privilege, have the committee look at the motion, have the system that has allowed this travesty to be reviewed at the procedure and House affairs committee, and help restore my faith and that of the people who sent me to this place.[4]

Speaker Milliken, correctly, ruled against Cullen:

The committee is master of its own proceedings. It has made a decision. The hon. member clearly objects to it. I invite him to take up the matter with the committee once again, because in my view that is the proper venue for his complaint in this case. I do not believe he has raised a question of privilege.[5]

In short, the Standing Committee and the Speaker made the correct rulings, but for the wrong reasons. In particular, Milliken should have upheld the committee’s ruling on the grounds that impeachment of individual ministers is obsolete and incompatible with Responsible Government. Nathan Cullen’s motion was out of order because it proposed something unconstitutional. Prime Minister Harper correctly declared that he would regard such a motion for the impeachment of an individual minister on a matter of policy as a motion of non-confidence in the government as a whole, thus forcing the correct resolution of the issue.

Through his unconstitutional motion, Nathan Cullen attempted to re-introduce the idea that the Commons can impeach and force the Crown to remove a single minister for any reason. Brodie characterizes impeachment as an “American-style” procedure, which it is, in a way — but we should also bear in mind that the Americans derived both the concept and procedure for impeachment (the lower house tries, and the upper house convicts or acquits) from Stuart and Hanoverian England. Therefore, impeachment pre-dates the advent of Responsible Government and the principle of collective ministerial responsibility and cabinet solidarity; instead, the constitutionality and rationale of impeachment relies on a Tudor, Stuart, and early Hanoverian understanding of individual ministerial responsibility in which Privy Councillors were responsible only to the King and for their portfolio, but not responsible to one another as a group and not collectively responsible for all acts of the Crown. Worse still for Cullen, even the impeachments of the Tudor, Stuart, and Hanoverian eras normally pertained to personal misconduct — not mere disagreements in policy. For example, the English House of Commons impeached the Duke of Buckingham in 1626 because of his failure as a military commander (“his neglect of guarding the seas”) and personal corruption.[6] Cullen’s proposed impeachment of Rona Ambrose, on the other hand, was truly without precedent because it focused purely on policy, and his disagreement with it, and not at all about Ambrose’s personal conduct.

Conclusion: Collective Ministerial Responsibility Made Impeachment of Individual Ministers Obsolete

The British House of Commons explains that Cabinet Government and collective ministerial responsibility have made impeachment obsolete.

it should be stated unequivocally that for all practical purposes the procedure of impeachment is obsolete.

The earliest recorded impeachment was that of Lord Latimer in 1376 and the last was in 1806, when Lord Melville (Dundas) was charged by the Commons, but acquitted, of misappropriating official funds. Before Melville, the last impeachment had been against Warren Hastings in 1787 in relation to his role in India. An attempt to impeach Ministers occurred in 1713 for their part in the negotiating the Treaty of Utrecht. The Jacobite lords were impeached in 1716 and 1746 for rebellion. The last attempt to persuade the Commons to bring an impeachment was against Palmerston as Foreign Secretary, when private members alleged a secret treaty with Russia. The preliminary motion was not successful. Impeachment has not been used since 1806. 

There have been fewer than seventy impeachments during the whole course of English history. There are two distinct periods in which impeachment was relatively common; firstly in the 14th century until the establishment of the Tudor dynasty and secondly in the 17-18th century. A quarter of all of them occurred in the years 1640-2.[7]

The British House of Commons held impeachment proceedings mostly enthusiastically during periods when the Commons and King clashed most often, as under the reign of Charles I between 1640 and 1642, and when members of the House of Peers supported the first and second Jacobite Rebellions in 1716 and 1746. In the latter case, grounds for impeachment certainly fell under the category that Erskine-May and the US Constitution of 1787 both call “high treason or of certain high crimes and misdemeanours.” Again, the Americans took this procedure from the British because their constitution and strict separation of powers also pre-date Responsible Government. By necessity, impeachment remains the only means of forcing corrupt or criminal officials from office because the President and his cabinet do not govern based on commanding the confidence of a majority in Congress.

It’s not a coincidence that the last impeachment proceedings took place in 1806, during the period where collective ministerial responsibility, what we call Responsible Government and what the British call Cabinet Government, was emerging. As the British House of Commons acknowledges, “Ministers have been impeached, but before the modern concept of the Cabinet was established.”[8] Why? Because collective ministerial responsibility and votes of non-confidence have replaced impeachment.

The advent of Responsible Government rendered impeachment unconstitutional. Votes of non-confidence in the cabinet as a whole have replaced impeachment, but could, in a way, be regarded as a collective impeachment of the government’s policies and conduct. Essentially, Cullen orchestrated this too-clever-by-half move so that the Opposition could both get rid of Ambrose but also prevent the Harper government from losing the confidence of the Commons and triggering an election; Harper called their bluff and exposed the impossibility of that course of action. While it is possible that the controversy over Ambrose influenced his decision to assign her to a new portfolio is his first cabinet shuffle in 2007, this is not anything near equivalent to impeachment.

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[1] Ian Brodie, “Harper the Constitutionalist,” The Dorchester Review, 6, no. 2 (2016): 36-37.

[2] Canada, House of Commons, Evidence: Standing Committee on Environment and Sustainable Development, 39th Parliament, 1st Session, Meeting No. 11 (21 June 2006), at 1 (Nathan Cullen).

[3] Canada, House of Commons, Minutes of Proceedings: Standing Committee on Environment and Sustainable Development, 39th Parliament, 1st Session, Meeting no. 11 (21 June 2006), 1.

[4] Canada, House of Commons, Debates, 39th Parliament, 1st Session, Volume 141, No. 046 (22 June 2006), 2816 (Nathan Cullen).

[5] Canada, House of Commons, Debates, 39th Parliament, 1st Session, Volume 141, No. 046 (22 June 2006), at 2817 (Peter Milliken).

[6] John Rushworth, ‘Historical Collections: The impeachment of Buckingham (1626)’, in Historical Collections of Private Passages of State: Volume 1, 1618-29 (London, 1721), pp. 302-358. British History Online http://www.british-history.ac.uk/rushworth-papers/vol1/pp302-358 [accessed 7 December 2018].

[7] United Kingdom, House of Commons Freedom of Information Disclosures, “Impeachment (2015)”. < https://www.parliament.uk/site-information/foi/foi-and-eir/commons-foi-disclosures/other-house-matters/impeachment-2015/> [accessed 1 January 2017].

[8] United Kingdom, House of Commons Freedom of Information Disclosures, “Impeachment (2015)”. < https://www.parliament.uk/site-information/foi/foi-and-eir/commons-foi-disclosures/other-house-matters/impeachment-2015/> [accessed 1 January 2017].

Posted in Articles and Books, Censure or Impeachment of Ministers, Confidence Convention, Constitutional Conventions, Dorchester Review, History of British North America, Individual vs Collective Ministerial Responsibility, Parliament, Parliamentary Privilege, Responsible Government, Reviews, Separation of Powers | 6 Comments

1841 or 1848: When Did Responsible Government Begin?

Posted on 2017/01/03 by J.W.J. Bowden

cover-of-dorchester-review-6-no2

The latest issue of The Dorchester Review contains my first little foray into this question of when Responsible Government began;  I hope to expand this initial contribution into a larger project. For now, you can read my initial findings here.

The idea came to me when I noticed that Alpheus Todd, the Librarian of Parliament for the United Province of Canada and the Dominion of Canada, wrote in Parliamentary Government in the British Colonies that Responsible Government was granted to Canada in 1841. He stated it in a perfunctory way as a matter of fact, not in order to make an argument on a matter of controversy. In other words, the creation of the United Province of Canada itself marked the beginnings of Responsible Government. What made this observation so interesting, in my mind, is that Todd was a contemporary to the Rebellions of 1837 and the re-organization of Upper Canada and Lower Canada into the United Province of Canada and could therefore speak with some authority on the subject. Yet, most historians of the 20th and 21st centuries place the grant of Responsible Government to 1848, when Governor General Lord Elgin first applied the principles contained in his letters and instructions. Canadians elected the 3rd Parliament in January 1848; when it convened in March of that year, the Reformers, let by Baldwin and Lafontaine, used their majority to pass a vote of non-confidence in incumbent conservative administration, and Lord Elgin then commissioned Baldwin and Lafontaine to form a new government. (The custom that the incumbent government resigns before the next parliament meets, when the results and outcomes of the election are clear, did not emerge until the late 19th century).

I explore in this article what accounts for that discrepancy in the historiography of Responsible Government.

Bowden, James W.J. “1841: The Year of Responsible Government?” The Dorchester Review 6, no. 2 (Autumn-Winter 2016): 69-72.

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Posted in Dorchester Review, History of British North America, Individual vs Collective Ministerial Responsibility, Origins, Responsible Government | 4 Comments

The Old House of Commons Chamber (1866-1916)

Posted on 2016/12/25 by J.W.J. Bowden

 

The Old House of Commons Chamber

The Old House of Commons Chamber

While I was browsing at the Astrolabe on Sparks Street two days ago (which, sadly, is closing down soon), I happened upon this neat photograph of the old Canadian House of Commons, taken in 1898, 18 years before the great fire destroyed the original Center Block and the Victoria Tower. Library and Archives maintains a collection of official photographs of the interior and exterior of the Old Center Block, but this photo does not appear in the official collection. I have therefore decided to share it with you all because of its historical significance. And, if we’re honest, there is probably a significant overlap between those who would find this old photograph interesting and those who read Parliamentum! At any rate, this photograph deserves to be shared with a wide audience.

This original Center Block and Victoria Tower originally served as the Parliament of the United Province of Canada and became the Parliament of the Dominion of Canada after Confederation. They were built between 1859 and 1866, though judging by the photos and dates in the Library and Archives’ collection, Victoria Tower gained an upper level and spire circa 1870.

As you can see from Library and Archives’ collection, the interior shots of the Old House of Commons are taken from the government side, to the speaker’s right, and therefore show primarily the opposition benches. But this photograph from 1898 was taken from the opposite vantage point and therefore shows a side of the Old House of Commons that most of us haven’t seen before. I thought that the Old House of Commons is in the Uncanny Valley with respect to the current House of Commons; it looks somehow at once familiar yet also strange and unusual. The Old House of Commons was rotated 90 degrees relative to the New House of Commons, so it was wider than it is long. Based on the over-exposure in this and the Library and Archives’ photos, we can see that the Old House of Commons had skylights. Six chairs on the government side look more ornate than all the others, and I suspect that the Prime Minister sat in the chair furthest to the left in this photograph. If that is true, then the Prime Minister and Leader of the Opposition would have sat opposite each other and between the Clerks’ Table, whereas they sit well behind the Clerks’ Table in the New House of Commons. The Speaker’s Throne looks more ornate as well.

Most interestingly of all, the famous portrait of Queen Victoria, which now rests outside the main entrance to the Senate along with portraits of our other sovereigns and which was saved from the Great Fire of 1916, appears in the background of this photo in the galleries. In a way, the Commons is an odd place to put the Sovereign’s portrait, given the convention and parliamentary privilege that the Sovereign cannot enter the House of Commons!

Please let me know in the comments what other interesting things you observe. Merry Christmas!

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Posted in History of British North America, Parliament, Traditions and History | 4 Comments

Ontario’s Next General Election Has Only Just Been Scheduled for June 2018

Posted on 2016/12/22 by J.W.J. Bowden

wynnememe

On this subject, I raised the ire of various journalists who accused me of that cardinal sin of pedantry. If I’m pedantic, then they’re obtuse. To declare that a law has been amended even before the government has tabled the bill is sloppy, imprecise, and fundamentally unserious reporting. By this logic, the Star and the Post must report that cannabis has already been legalized merely because the Trudeau government has stated its intention of tabling legislation to that effect in 2017. In any event, this shall be my last update on this subject of the media’s bizarre coverage of this issue, because the bill changing the scheduled date for the next provincial general election has now become law.

As of 8 December 2016, parts of the Election Statute Law Amendment Act have entered into force, including section 7, which states that Ontario’s “general elections shall be held on the first Thursday in June in the fourth calendar year following polling day in the most recent general election.” This amendment means that the current 41st Parliament is now scheduled to live for closer to four years instead of four and one-half years, as it would have been scheduled to endure under the old law just replaced. Prior to 8 December 2016, no one could have accurately reported that the next general election was scheduled for June 2018 instead of October 2018, but various journalists and media outlets did not let accuracy and facts stop them from reporting otherwise.

But as the experience of the last eight years has demonstrated, fixed-date election laws merely limit the maximum life of a parliament and do not prescribe a minimum lifespan. As such, the Premier could advise the Lieutenant Governor to dissolve the 41st Parliament early, well in advance of the scheduled dissolution on 7 June 2018. The Lieutenant Governor of Ontario’s website confirms this interpretation, which is based on fact, experience, and the principles of Responsible Government (though Her Honour needs to update her website now that the legislature has amended the scheduled date!):

“The Lieutenant Governor may therefore dissolve the Legislature on the advice the Premier in circumstances outside of the fixed-date election timeline, such as if:

  • The Government loses a vote of confidence in the Legislative Assembly
  • The Premier is of the opinion that circumstances warrant the calling of a general election.”

Given that First Ministers have been known to wield dissolution as a weapon against restless or disloyal cabinets, we should never forget that this option exists.

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Posted in Dissolution, Fixed-Date Elections | 4 Comments

Kathleen Wynne’s Fairy Tale of the Invincible Premier

Posted on 2016/12/21 by J.W.J. Bowden

kathleen-wynne

In a recent interview with the Toronto Star, Premier Wynne responded to the lingering suspicions that she will soon resign as leader of the Liberal Party of Ontario and as Premier of Ontario with a novel theory on the authority of the first minister under our system of government. Quite frankly, if Harper had ever said what Wynne said, several scholars would have sharpened their knives and eviscerated him, especially for this assertion:

All the conversations about ‘are the knives out?’ and ‘are people plotting?’ . . . the fact is I’m the premier until either the people decide I’m not the premier or I decide I’m going to step down. That’s how it works.

No, Premier, that’s not how Responsible Government works. And that’s not how prime ministerial succession works either. Perhaps if Eugene Forsey were still alive, he could add Wynne’s statement to his “25 Fairy Tales About Parliamentary Government” as the 26th entry. Of the core Commonwealth Realms, only in Canada could a party leader get away with such a baseless and brazen declaration — despite some recent examples to the contrary. In particular, a prime minister or premier in Australia would never utter such a falsehood, because it could dare the parliamentary party to orchestrate an ad hoc leadership election.

Wynne asserts that only “the people decide” or “[she] decide[s]” when she must resign as Premier, by which she probably has in mind general elections that yield majority parliaments, which see an uneventful transition of power from one party to another, and to intra-parliamentary transitions of power that occur when the leader of the governing party and premier resigns and the new leader of the governing party succeeds as premier. In any event, it is not “the people” who determine whether Wynne will remain as Premier, but rather, the people’s elected representatives.

Her ignorance is all the more extraordinary given that she first became premier in a minority parliament on 11 February 2013 and that she advised the dissolution of that legislature on 2 May 2014, in anticipation that she would lose a vote on confidence on budget later that week. In reality, Premiers can lose power in various other ways. In a minority parliament, the government could lose a vote of confidence, and, if an alternate government could be formed within that parliament, then the governor could refuse the premier’s request to dissolve the assembly and instead appoint a new premier — though this is unlikely.

What is more likely is that the parliamentary party could within a majority parliament decide to replace its own party leader, and, consequently, the premier as well. Wynne should remain mindful of this possibility, given that this fate has recently befallen two Canadian premiers: Premier Dunderdale of Newfoundland was ousted by her own parliamentary party in January 2014, and Premier Redford in Alberta suffered this same fate in March 2014. By Canadian standards, these coups were swift and brutal: Redford announced her resignation on 19 March 2014, and it went into effect on 23 March 2014; Dunderdale announced her intent to resign as party leader and premier on 22 January 2014 and made her resignation effective the following day. In both cases, the PC Party of Newfoundland and Labrador and the PC Party of Alberta both opted to appoint “interim leaders” who, by virtue of their parties’ respective parliamentary majorities, the Lieutenant Governors were obliged to appoint as Premiers as well. In this respect, Canadian political parties differ from Australian political parties. In Australia, parties both oust leaders and elect leaders. But since all Canadian political parties, according to their respective party constitutions, elect their leaders through either delegated conventions or direct vote of party members, and since this process generally takes several months, the parliamentary parties must nominate interim leaders who will lead the party and their own quasi-caretaker government during this time.  In Canada, parliamentary parties do occasionally oust their leaders, but they never elect anything more than interim leaders.

If Wynne is not careful, the parliamentary party and cabinet could very well decide that she will follow in the footsteps of Dunderdale, Redford, and Chretien.

Wynne also alluded to Pierre Trudeau’s proverbial “walk in the snow” of 1984 for the benefit of Canadian politicos.

“I’ll be walking in the snow and on the beach, but I’m not going. I am going to be here through the 2018 election,” the premier said, conceding “of course I feel a sense of responsibility” that her unpopularity could be harmful to Liberal MPPs’ re-election chances. “I wouldn’t be honest if I said I didn’t feel responsibility — for sure.”

Wynne has this extraordinary ability to make statements which sound superficially reasonable, but which are in fact very presumptuous and even a bit mendacious. Wynne should not merely feel responsibility for her policies; in fact, she is responsible for them in every constitutional, legal, moral, ethical, factual, and practical sense. Our system of government necessarily means that Cabinet is collectively responsible for every policy that it puts forth. And both the principles of responsible party government and recent political experience over the last three years show that the Cabinet and parliamentary party both wield significant power and determine whether a party leader and premier can continue in those roles. But for whatever reason, the media and the academy are quite content in letting Ontarians forget it.

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