On reasons for opposition

Both Greg and Berlynn have already chimed in on this morning's report that some parts of the Accountability Act may be unconstitutional. But as far as I can tell, the issues surrounding this particular constitutional question seem to me to be less problematic than has been suggested so far.

From a foundational standpoint, I don't agree entirely with the implication that any statute which is of questionable constitutionality should be dropped by a government rather than pursued further. Prior to past decisions being released, it's been far from clear that current laws on issues ranging from tobacco control to political advertising would ultimately be upheld under the Charter. Similarly, the only reason why we now have a body of jurisprudence on the question of division of powers is the fact that past governments have decided to pass laws which were at least arguably subject to question.

This isn't to say, of course, that a law's constitutionality should be ignored. But in the case of all but the most obviously-unconstitutional legislation (of which a new ban on SSM may well be an example), it's generally worth examining whether the potential benefits of the law outweigh the risks of it being struck down.

With that out of the way, let's take a look at what constitutional issues seemingly raised by the Accountability Act. There appear to be two issues at stake: first, whether or not courts receive some authority to review some actions by cabinet ministers acting in their capacity as MPs, and second, the manner in which Parliament determines its voting procedures.

In each case, it's the affected group itself which will determine whether or not to pass the law in the first place, which eliminates the usual concerns about imposing a law on a group with no ability to fight it. The real issue is the extent to which Parliament has the ability through a majority vote on a bill to modify either the rights of a cross-section of its individual members, or the process by which parts of its internal procedure are determined. Yes, it is a constitutional issue, but more based on fine lines involving division of powers within the same body than on anything approaching important individual rights.

Moreover, future Parliaments will have the ability to restore the status quo ante in the future: obviously this Parliament couldn't bind a future Parliament which chose by a majority to pursue a different path. Needless to say, that ability to reverse the questionable statute isn't present for most people on the wrong end of a possible constitutional violation.

I'll grant that there's a serious need to look at the issues raised by Walsh (as well as other issues related to the Accountability Act) to determine whether the rewards do outweigh the risks, and in that regard the memos should be made available for review. But the presence of some advice to the effect that the legislation may violate traditional Parliamentary rights should be a much smaller issue than the substantive contents of the Accountability Act - both in terms of what the Cons have put in, and what they've omitted or planned to cut out. And if the Accountability Act does get shot down based to any substantial degree on arcane issues of Parliamentary privilege, that seems likely only to play into the Cons' hands when they claim that opposition obstruction is more of a problem than the potential for a Con majority.

(Edit: typo.)