The Committee on Privileges of the House of Commons, which is reviewing the authority of select committees to compel the production of information and punish for contempt, has published my submission, which provides a general overview of similar dilemmas facing Congress in this area. If you would like to read it (and why wouldn’t you?), click here.
An Update on Parliament’s Contempt Power
So at virtually the same time I told you that Parliament’s contempt power was in a state of desuetude, this happened. The House of Commons held the British government in contempt for its failure to publish the Attorney General’s legal advice regarding Brexit as the House had previously demanded.
To be sure, my prior post related to the use of contempt to impose punitive measures such as fines or imprisonment. These were not involved in yesterday’s contempt vote, which the article describes as “largely symbolic.” Yet it appears that the government intends to comply with the Commons’ demands as a consequence of the contempt vote. Moreover, while the use of contempt to impose rebukes is more common than fines or imprisonment, it is still extremely rare. According to this 2012 analysis I referred to yesterday, the last time someone was called to the bar of the house to be admonished by the Speaker was in the 1956-57 session. And it is apparently the first time ever that the British government itself has been held in contempt.
It should be noted that Congress’s inherent power of contempt derives from Parliament’s power (and thus has been recognized as being an “inherent” part of the legislative power conveyed in Article I). From time to time, the idea of using the inherent contempt power against a recalcitrant executive branch has been broached, but the idea always founders on practical considerations (e.g., what happens if the recalcitrant executive official is protected by security that does not want to surrender him/her to the custody of the Sergeant at Arms?).
If the House (or Senate) were to follow the procedure apparently used in the House of Commons yesterday, however, these problems largely disappear. The Commons simply voted on a resolution holding the government in contempt, without following the normal practice of referring the matter to the Committee on Privileges. No trial was held, nor was anyone (it appears) called to the bar of the house.
If Congress were to follow such a process, it would more closely resemble a censure or similar resolution, as opposed to a finding of contempt. It could be argued that such a largely symbolic action would have little impact in our system, where the continuation of the government does not depend on majority support in the legislature. On the other hand, if contempt were used, it would be possible for a trial to be held, with an executive official (or the entire executive branch) as the “defendant.” It would be up to the executive branch whether it wanted to attend or mount a defense. One can imagine that such a process could be more powerful as a display of soft power than a simple vote on a resolution.
We will see if some enterprising member of Congress picks up on this.
Facebook’s Encounter with Parliament’s Inherent Powers
A parliamentary committee has seized a trove of internal Facebook documents relating to the company’s data and privacy policies and practices. The documents were obtained via a U.S. businessman, Ted Kramer, who had sued Facebook in state court in California. Kramer had access to the documents because his company had obtained them through discovery in the litigation, but a protective order prohibited the parties from sharing them with the outside world.
So how did the documents end up with a House of Commons committee investigating Facebook in the U.K.? Somehow the chair of the committee learned Kramer was in London on business, and he thereupon dispatched the Commons Serjeant at Arms to Kramer’s hotel. The Serjeant at Arms (no word on whether he was carrying his sword) served Kramer with an order demanding the documents, and the committee followed up with an email threatening the businessman with contempt of Parliament if he did not comply. After a meeting with the committee chair in which he was allegedly told he could be subject to fines and imprisonment for contempt, Kramer (who unwisely attended this meeting without his lawyers) used his laptop to access and download the documents to a USB drive and then handed it to the committee.
Facebook argues that the document disclosure violated the California court’s protective order, and it is seeking discovery regarding this disclosure (presumably hoping to establish collusion between Kramer and the committee). It has also demanded that the committee return its documents. The committee, however, notes that it is not subject to the court’s jurisdiction and is in any event protected by parliamentary privilege. The committee has already used the documents in the course of an extraordinary hearing held in London on November 27, 2018 in which lawmakers from nine different countries, calling themselves the “International Grand Committee on Disinformation,” interrogated a Facebook representative about the company’s policies and practices.
This series of events raises some interesting questions, which we will briefly consider below. Continue reading “Facebook’s Encounter with Parliament’s Inherent Powers”
Me Too’s Privileged Few
If you are interested in the law and custom of Parliament (lex et consuetude parliamenti), you should follow Jack Simson Caird on twitter (@jasimsoncaird). Had you done so, you too would have learned of a recent controversy involving parliamentary privilege and legislative self-discipline that caught my attention.
The story begins on October 24, 2018, when the Daily Telegraph, a British newspaper, charged that a “leading businessman” had engaged in “alleged sexual harassment and racial abuse of staff.” This reporting followed an eight month investigation by the Telegraph of the allegations in question. However, the newspaper was unable to reveal the identity of the businessman and other details of its findings because of an injunction issued by a three-judge appellate court at the request of the businessman and his companies. This ruling was widely criticized (at least according to the Telegraph) by MPs and others as a violation of press freedom and an inappropriate attempt to gag harassment victims.
The British court’s opinion explains that five employees had made allegations of “discreditable conduct” against the businessman in question, but all of these claims had been settled by agreements in which the employees had received “substantial payments” and the parties had entered into nondisclosure agreements. The court found that the claimants had made a showing sufficient to establish the likelihood “a substantial part of the [Telegraph’s] information was obtained through breach of duty of confidentiality to the Claimants, either in breach of the NDAs, or by those with knowledge of the NDAs, and that the Telegraph acquired the information with knowledge both of the NDAs and the breach of confidence.” Accordingly, the court issued a temporary injunction prohibiting the newspaper from publishing the businessman’s identity or other details about the alleged misconduct until a full trial on the merits.
Needless to say, the substantive law in the U.K. is quite different from that of the United States, where the First Amendment presumably would prevent a judicial order of this kind. The divergence is illustrated by the British court’s quote of the following from an earlier case:
To take an extreme example, the content of a budget speech is a matter of great public interest. But if a disloyal typist were to seek to sell a copy to a newspaper in advance of the speech in Parliament, there can be no doubt that the newspaper would be in breach of duty if it purchased and published the speech.
The notion that the advance leaking of a budget speech is an “extreme example” potentially justifying a prior restraint against publication would strike Americans as outlandish (though, to be fair, bribery of a government official to provide confidential information might well have other civil or criminal consequences in the U.S.).
What is interesting for our purposes, however, is not the substantive law on press freedom, but what happened next. On October 25, 2018, immediately following the issuance of the injunction, Lord Peter Hain revealed in the House of Lords some of the confidential information covered by the court’s order, including the identity of the businessman in question. This in turn allowed the British media, which otherwise would have been risking contempt of court, to report the information to the general public. (See this blog post by Professor Jelena Gligorijevic for further details). Hain’s action has been widely condemned as an abuse of parliamentary privilege. Continue reading “Me Too’s Privileged Few”
Legislative Discontinuity: An Introduction
Last month I had the pleasure of participating in the International Conference on Legislation and Law Reform, which was held at AU’s Washington College of Law. During one of the plenary sessions on U.S. legislative drafting, a Dutch lawyer asked about the practice of “discontinuity” in Congress. I am not sure the panelists understood what this term meant (I know I didn’t), but the lawyer elaborated that he was asking whether legislation had to pass within a certain period of time. The panelists then explained that bills must pass both houses within the two-year congressional term and that all unfinished legislative business dies at the end of each congress.
This practice is known, at least internationally, as one of “discontinuity” because legislative business does not continue past the expiration or dissolution of the legislature. I asked the Dutch lawyer later whether there are legislatures which follow the opposite practice of allowing legislation to continue even though a new legislature has been elected. He said there are, including the Netherlands and the EU Parliament. In these jurisdictions bills can remain “live” for years or even decades after they are introduced. In some cases, the original sponsor of the measure is no longer in the legislature so there is no one who can formally withdraw it.
There apparently is not a lot of literature on discontinuity, but one recent article discusses it in some depth. SeeRivka Weill, The Living-Dead, 38 Fordham Intl L. J. 387 (2015). Professor Weill explains that legislative discontinuity is “the prevailing norm in both presidential and parliamentary systems.” Id.at 389. There are, however, exceptions, including the Netherlands and the EU Parliament (so that checks out). Id.Another exception is Israel, and Weill (who is Israeli) focuses on the decision of the Knesset to adopt a rule of continuity in the 1960s.
She describes two different schools of thought within the Knesset. The pro-continuity side saw the Knesset as a continuing body. Id.at 447. This position, according to Weill, rested on a conception of the legislature as having “perpetuity and continuity similar to an artificial body, like a corporation.” Id. at 448. Under this vision, the continuity of the legislature is maintained by the passage of sovereignty from one assembly to another, just as in a monarchy the sovereignty of the King’s person passes in death to the natural body of his heir. Id.
The discontinuity side, on the other hand, believed that “each parliament is born anew.” Id.at 447. Weill argues that this conception is fundamental to representative government and that the failure to follow it “severs the link between legislative cycles and election cycles, and thus eviscerates the significance of elections.” Id.at 413. By contrast, the pro-continuity argument is mistaken because in Israel and other liberal democracies “the continuity of sovereignty rests with the people, not with their representatives.” Id. at 448. Thus, popular sovereignty “is manifested in the real power of constituents to influence the content of laws by breaking the legislative continuity and electing new representatives.” Id.
Weill also contends that as a matter of actual practice, the Knesset has not regarded itself as a continuing body. Moreover, even in the U.S. Senate, which does consider itself to be a continuing body, “the principle of discontinuity of the legislative process applies, as bills that do not become law within two years are dead.” Id.at 449.
One of the interesting aspects of this Israeli debate related to the discussion of British parliamentary practice. See id.at 404-06, 409-10. Weill explains that Great Britain was viewed as the symbol of discontinuity and that both supporters and opponents of the continuity proposal used its example in their arguments. Id.
Here, some background on British practice may be useful.
Discontinuity in Britain
Historically, discontinuity in Britain stems from the crown’s prerogative powers of summoning, proroguing and dissolving parliament. Once a parliament was summoned, the king could either use prorogation to end its session or dissolution to end the parliament altogether:
The Tudor and Stuart monarchs summoned parliaments not merely to request tax revenue, but also to enact policies. They also relied on prorogation to prolong the life of a favourable rather than risk dissolving it and summoning a new, potentially less pliable parliament. For example, Henry VIII used prorogation to extend the life of the Reformation Parliament to seven years; it sat through seven sessions between 1529 and 1536 and passed a variety of statutes that broke with the Holy See and established England as an independent Protestant kingdom. Charles II used prorogation to prolong the life of the Cavalier Parliament and its Royalist majority from 1661 to 1679. The Stuarts also expressed their hostility toward what they regarded as parliamentary encroachment on Divine Right by dissolving pesky parliaments. The Sovereign thus determined at his own discretion both the duration of each individual parliament through prorogation and the number of years between parliaments through dissolution.
James W. J. Bowden, Reining in the Crown’s Power on Dissolution: The Fixed-Term Parliaments Act of the United Kingdom versus The Fixed-Election Laws in Canada19 (June 4, 2013). Either prorogation (end of a session) or dissolution (end of a parliament) resulted in the death of pending legislative business. See 1 William Blackstone, Commentaries on the Laws of England186-88 (1765).
As Parliament grew stronger, these royal prerogatives were to a large extent limited by statute and practice. Bowden, supra, at 19-22. Eighteenth century parliaments had a statutory maximum life of seven years and the dissolution of one parliament was routinely followed by the summoning of a new parliament and accompanying elections for the House of Commons.See1 Blackstone, at 177-78, 189.
Even today, the queen formally exercises the powers of prorogation and dissolution, though in practice she does not exercise her own discretion but acts on the advice of the prime minister. SeeWilliam McKay & Charles W. Johnson, Parliament & Congress: Representation & Scrutiny in the Twenty-First Century33, 123 (2010). A new parliament is summoned by the crown and the parliament ends when It is dissolved by royal proclamation or (less commonly) by the passage of time. Id. Parliament continues to follow a rule of both legislative and sessional discontinuity (or, as it is sometimes called, “sessional cut-off”). However, sessional discontinuity is no longer absolute as some legislation can carry over from session to session. Id. at 465-66; Weill, 38 Fordham Intl L. J. at 404 n.74, 409-10.
Continue reading “Legislative Discontinuity: An Introduction”
Felons on the Floor?
The Telegraph reports that a point of order has been raised in Parliament with regard to the propriety of allowing a “convicted criminal” the right of access to Westminster. A former member of Parliament named Chris Huhne, who two years ago resigned and pled guilty to the offense of “perverting the course of justice” (something having to do with his wife taking his “speeding points”), applied for and received a parliamentary pass that is customarily made available to former MPs.
The point of order, raised by a conservative MP (Huhne was a Liberal Democrat), questions whether these privileges can be revoked with regard to Mr. Huhne:
Given the low esteem many members of this House are held in by our constituents in regard to poor behaviour, is there any method [by which] we can actually rescind this application to ensure someone who is a convicted criminal cannot freely walk around the Palace of Westminster?
Judging by the speaker’s response, the answer is no. But this got me to wondering whether we could have the same issue in Congress. Both the House and Senate allow former members floor privileges and certain other courtesies. This handy and delightfully brief CRS report describes these privileges and notes certain exceptions. For example, former members cannot access the floor if they are registered lobbyists.
But there appears to be no exception for felons.
Catching Legislators In Flagrante Delicto
So the important point to take away from this post is that there is a very cool website, Constitute, which allows you to read, search and compare the world’s constitutions. (Hat tip: Lawrence Solum). When you enter the site, there is a topics section on the left side and if you click on a topic, subtopics appear. For example, the topic “Legislature” is divided into 8 subtopics, one of which is “Legislative Independence and Power.” That subtopic is further divided into categories, one of which is “Immunity of Legislators.” Click on that and you can scroll through the world’s constitutional provisions on legislative immunity, from Afghanistan to Zimbabwe.
Scrolling through a few constitutional provisions on legislative immunity, it became apparent that many nations have constitutionally enshrined the concept of “flagrante delicto.” This term is defined by Black’s Law Dictionary as “in the very act of committing the crime,” but as far as I know it is not a legally significant concept under American or common law. It is better known here as a euphemism for being caught in the midst of sexual activity.
In many countries, however, a legislator’s immunity from arrest may turn on whether he was caught in flagrante delicto (in the legal sense). In France, for example, Title IV, Art. 26 provides: “No Member of Parliament shall be arrested for a serious crime or other major offence, nor shall he be subjected to any other custodial or semi-custodial measure, without the authorization of the Bureau of the House of which he is a member. Such authorization shall not be required in the case of a serious crime or other major offence committed flagrante delicto or when a conviction has become final.”
So basically a French MP can avoid being arrested for a serious crime so long as he leaves the scene quickly enough.
In France the “flagrante delicto” exception applies solely to the arrest privilege, but in some constitutions it appears that it would also apply to prosecution and punishment for whatever period the member would enjoy this protection. In other words, if a member is immune from prosecution during the legislative session or while he remains in office, he would lose this protection if caught in flagrante delicto. At least according to my quick scrolling through a number of constitutions.
I don’t know how often legislators are actually caught in flagrante delicto. (In the legal sense; in the other sense I am sure it happens all the time). But the important thing is that you can learn lots of interesting information at Constitute. Also I have made it through this entire post without mentioning Anthony Weiner.
Upcoming Legisprudence Conference in Israel
An international conference co-sponsored by the Bar-Ilan University Faculty of Law and the Knesset Legal Department, which will take place on December 10-11, 2014 in Israel, was brought to my attention by one of the participants. The conference is entitled “Legisprudence and the Legislative Process: From Theory to Practice,” and includes a number of panels that will be of great interest to legislative lawyers and parliamentary experts around the world. The agenda and list of speakers is here.
For those who don’t know, a group which included me before I googled it today, “legisprudence” is defined by Black’s Law Dictionary as “the systematic analysis of statutes within the framework of jurisprudential philosophies about the role and nature of law.”
As long as we are more or less on the subject, I recall that in 2000 the Speaker of the Knesset reached out to Speaker Hastert to inquire about how Congress received legal advice. The letter indicated that the Knesset was considering “making some changes in the structure and role of [its] legal department . . . in order to ensure a clear separation of powers between the branches of government.” (The House Counsel’s response is here.). I wonder what the Knesset’s subsequent experience has been. Anyone with feedback on this or the results of the conference would be welcome.
The Use and Abuse of Legislative Privilege- Canadian Edition
The Speaker of the Canadian Parliament (who is 32 years old!) issued this ruling last week in response to a point of order. The issue concerned the action of a Government Minister who had “tabled a document” with the House detailing a political donation made by a particular named individual. The point of order was whether this action invaded the privacy of the named individual and would “put the chill of fear into public servants and individuals in Canada donating to a political party that a minister will use that against them.”
The Speaker acknowledged “that ministers enjoy considerable latitude and may, at their discretion, table a wide range of documents in the House.” However, he also quoted a predecessor’s admonition regarding the “awesome and far-reaching privilege” of freedom of speech enjoyed by members of the House:
Such a privilege confers grave responsibilities on those who are protected by it. By that I mean specifically the Hon. Members of this place…. All Hon. members are conscious of the care they must exercise in availing themselves of their absolute privilege of freedom of speech. That is why there are long-standing practices and traditions observed in this House to counter the potential for abuse.
The Speaker also cited the admonition from the House of Commons Procedure and Practice, which states “Members are discouraged from referring by name to persons who are not Members of Parliament and who do not enjoy parliamentary immunity, except in extraordinary circumstances when the national interest calls for this.”
He concluded by reminding members “to use great care when referring to or singling out an individual who does not have a voice here in this House and to avoid circumstances when, by such reference, an individual could have his or her reputation damaged without having the opportunity to respond.”
A word to the wise.
The Canadians seem to be having their own version of the Karl Rove/Harriet Miers/Josh Bolten controversy that arose in during the Bush administration (when these White House officials asserted immunity from having to appear before congressional committees). The Canadian government has declared only cabinet ministers, not their political staffs, can be called as witnesses before parliamentary committees.
Generally speaking, I presume the Canadian Parliament has the same inherent powers to call for testimony and records as does the Congress. According to the Canadian House of Commons Procedure and Practice Manual, standing committees have the power to issue a summons for any person located on Canadian soil, with certain recognized exceptions. These include the Queen (no surprise), the Governor General and provincial lieutenant-governors (who I think are the Queen’s representatives) and members of either Canadian provincial or federal legislative bodies.
Since parliamentary committees are not permitted to summon Members of Parliament (at least not without the specific authority of the House), it would seem that they cannot not compel the appearance of the prime minister or a cabinet minister (who are Members of Parliament). In this case, however, the government is arguing that the committee must call the minister, rather than his or her political subordinates. The basis of the argument, which I don’t fully understand, has something to do with the concept of “ministerial responsibility,” a system in which it is only the ministers (and not their subordinates) who are considered responsible to both the Parliament and the Canadian people. A government spokesman distinguishes this system from that in the
Normally this type of issue would not arise in the Canadian system because the government and the Parliament would be controlled by the same party. However, the current Conservative government has only a plurality in Parliament, and this apparently means that the opposition effectively controls at least some of the standing committees. The latest controversy involves a request to a government official to testify before the House of Commons committee on access to information, privacy and ethics, which is chaired by a Liberal Democrat.
What happens if the government official refuses to appear and the parliamentary committee refuses to accept the failure to appear? Like the Congress, the Canadian Parliament has the inherent power to punish for contempt, and to imprison recalcitrant witnesses. The last time this authority was used, however, was 1913.