Competence of Parliament and the Limits of Criminal Law

By McWhinney, Edward | Canadian Parliamentary Review, Summer 1996 | Go to article overview

Competence of Parliament and the Limits of Criminal Law


McWhinney, Edward, Canadian Parliamentary Review


During the Spring of 1996 an unusual question of privilege was referred to the Standing Committee on Procedure and House Affairs. The question related to a communique sent to Members of the Canadian Armed Forces by a Member of Parliament on October 26, 1995, a few days before the Referendum on Quebec Independence. The letter stated that Quebec should create a department of defence and offer all Quebecers serving in the Canadian Forces the chance to integrate into the Quebec forces. The issue as to whether this letter constituted a breach of privilege was referred to the Committee on March 18, 1996. One witness asked to appear before the Committee was Dr. Edward McWhinney who was asked to advise on the contemporary limits to the House's power to punish or discipline its Members for actions or conduct occurring outside Parliament. This article is based on his testimony to the Committee.

The British Parliament, from whose historical practice and Conventions our own House of Commons' rules and practice have been so largely received, was in its origins a High Court of Parliament. The earliest ancestor of Parliament was the mediaeval Curia Regis, in which judicial, executive and legislative functions were fused, and this derived ultimately from the pre-Norman conquest, Anglo-Saxon, Witan. But the process of attrition of the judicial functions of Parliament was well under way by the 14th century and was completed with the outcome of the great English constitutional battles of the 17th century.

The United States Constitution, which was heavily influenced by 17th century English Puritan (Cromwell) constitutional theory, directly incorporated the English constitutional institution of Impeachment in its Article II, and this at a time when that institution had virtually disappeared in Great Britain itself. The last two British cases of Impeachment - of Governor-General Warren Hastings in 1787, and Admiralty Treasurer Lord Melville in 1805, - both ended in qcquittal. In fact, the power of Impeachment had become politically redundant and unnecessary by that time, with the development of the principle of Ministerial responsibility before an elected House of Commons.

There is little doubt that, in its "classical" constitutional use in England, Impeachment, together with its constitutional analogue, Attainder, became high political acts of judgement against the King's Ministers, rather than legal trials in the strict sense in which issues of criminal conduct would have to be proved. Indeed, the popularity, with accusers, of Attainder rather than Impeachment, stemmed from the fact that an Act of Attainder was not necessarily preceded by a trial in which the accused could defend himself. But it was the development, by the early 18th century, of Cabinet Government, with Cabinet responsibility before Parliament, that explains the disappearance of Attainder, rather than any reaction to its frequently (in legal terms) arbitrary, capricious and politically vengeful character.

In an Expert Opinion given, on invitation, to the American Senate Committee on Campaign Activities (Ervin Committee) two decades ago I directed attention to the schism, in English Constitutional history and practice, between Impeachment (Attainder) of a "criminal" character, - that is, for acts alleged to be in breach of the Criminal Law; and "political" Impeachment where what was complained of was the manner of exercise of the political discretion of the accused. (1)

American constitutional law has, of course, taken a different course than that of Great Britain or, by legal reception, Canada, because of the American Constitution's explicit separation-of-powers and system of inter-institutional checks-and-balances. But the Impeachment of Andrew Johnson after the American Civil War is, in historical retrospect, clearly a "political" Impeachment of the sort rendered obsolete and unnecessary in Great Britain by the triumph of the Parliamentary forces over Royalist Prerogative powers, in the English Civil War.

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