Rights and a Loose-Fish Legislature

In Our Republican Constitution (Hart Publishing, 2005), Adam Tomkins argues that parliamentary democracies do not need a constitutional bill of rights. Parliament alone, sans judiciary, can adequately check the exercise of executive power. (See my blog of February 4th, Does Parliament Secure Rights?) So much for Canada’s constitutional bill of rights, our beloved Canadian Charter. Not needed, if we buy Tomkins’s argument.

According to Tomkins, the principle or practice called “responsible government” does the job. “The government is required to secure the support of a majority in Parliament not only when ministerial careers are on the line, but every single day. It is a routine obligation on the part of the government that that it must ensure that its policies, decisions and actions enjoy parliamentary backing. Parliament is the instrument through which the government must legislate; Parliament is the instrument that will continuously inquire into the expenditure, administration and policy of every government department” (page 2).

It’s a pleasure to read someone so enamoured of the Westminster system. But Tomkins gives the argument a twist. He believes that parliamentary democracies would do even better at checking executive excesses if free of the constraints of party loyalty. “It has been customary to see the principal dynamic in Parliament, and particularly in the House of Commons, as being that between the two front benches, that is to say, as being that between government and opposition. But important as it undoubtedly is, there is a deeper dynamic at work in the constitutional understanding of Parliament than the relationship of government to opposition. This is the dynamic between Crown and Parliament, between front bench and back bench, or between minister and parliamentarian” (page 137).

Tomkins is asking for what we, with an eye to British North American history might call a “loose-fish” legislature. There would be no whipped votes; parliamentarians would be free to cross party lines on any and all issues. Thus we would see in the legislature the “separation of interests between the government ministers on the one hand and parliamentarians on the other.”

Canadians are familiar with proposals to allow more more free votes and to strengthen committees with a view to forging ties between individual parliamentarians in areas of expertise regardless of party allegiance. Tomkins endorses these ideas and a few more.

What he supremely contributes is a grounding in the history of Parliament from the early 1640s. It’s an important part of his case that the English Parliament in that early period had a coherent and disciplined idea of the “dynamic between minister and parliamentarian.” Hence his conclusion:  “The question in the modern era is how to re-energize this dynamic in the age of mass democracy and party politics” (page 137).

Am I convinced that parliamentary government suffices to secure our rights? I can’t deny that I’m interested. (And I have a few arguments of my own to support the contention; more later). Am I convinced that a loose-fish legislature is required? I know something of the seventeenth-century argument from my collaboration with Peter J. Smith (Ajzenstat and Smith, eds., Canada’s Origins, Liberal, Tory, or Republican, Carleton University Press, 1997).  I’ve reviewed the documents. What I’ll say at this point is that if I were still teaching a course on Parliament, I’d flog Tomkins’ argument for all it’s worth, before embarking on a defense of party politics.

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