Standing Orders and Oral Questions: New Zealand

In the second part of our review of Standing Orders governing Question Period in other jurisdictions, we will now look at New Zealand.

The New Zealand Parliament’s Standing Orders contain a rule addressing the matter of relevancy (SO 111):

(1) All debate must be relevant to the question before the House.
(2) After having called the attention of the House to the conduct of a member who persists in irrelevance or tedious repetition either of the member’s own arguments or of the arguments used by other members in debate, the Speaker may terminate that member’s speech.

Unlike here in Canada and in Australia, however, there is no disclaimer in the New Zealand procedural manual, Parliamentary Practice in New Zealand (more commonly referred to simply as “McGee” among procedural geeks) that this rule does not apply to oral questions, as we will discuss in more detail further below.

Oral questions in the New Zealand parliament share one important characteristic with oral questions in the UK House of Commons: Members must give notice in writing of a question for oral answer (SO 381), meaning the questions are tabled in advance:

(1) Notices of oral questions are lodged by members in writing to the Clerk. A notice of an oral question must be—

(a) signed by the member or by another member on the member’s behalf, and
(b) delivered to the Clerk between 10 am and 10.30 am on the day the question is to be asked.

(2) Twelve oral questions to Ministers may be accepted each day. Questions will be allocated on a basis that is proportional to party membership in the House. The Business Committee decides the weekly allocation and rotation of questions.
(3) Oral questions that have been accepted are circulated.

Once lodged with the Clerk, all questions are reviewed to ensure they comply with the Standing Orders. If a question is found to be out of order, it is returned to the Member who tabled it, or it may be accepted “subject to amendment or authentication of a statement or quotation contained in it.” (McGee, p. 548) As well as tabling questions to be asked of Ministers, questions may be put to a Member (not being a Minister or the Speaker) relating to any bill, motion or public matter connected with the business of the House, of which the member has charge. Questions can also be put to the Speaker, but only written questions. Questions put to other Members (not Ministers) are answered after the questions put to Ministers (SO 379).

As per SO 378, questions to Ministers must relate to public affairs with which the Minister is officially connected, or proceedings in the House or any matter of administration for which the Minister is responsible. The question cannot touch on the actions of a Minister in a personal or party capacity, nor can a Minister be questioned about a statement he or she has made if that statement was not related to some aspect of the Minister’s portfolio. (McGee, p. 556) 

Standing order 300 deals with the content of questions:

(1) Questions must be concise and not contain—

(a) statements of facts and names of persons unless they are strictly necessary to render the question intelligible and can be authenticated, or
(b) arguments, inferences, imputations, epithets, ironical expressions, or expressions of opinion, or
(c) discreditable references to the House or any member of Parliament or any offensive or unparliamentary expression.

(2) Questions must not seek a legal opinion.
(3) A written question must not repeat the substance of a question already lodged in the same calendar year.
(4) Questions must not refer to proceedings in committee at meetings closed to the public until those proceedings are reported to the House or (subject to Standing Order 115) to a matter awaiting or under adjudication in, or suppressed by an order of, any New Zealand court.
(5) Where the notice of a question does not comply with the provisions of the Standing Orders, it is not accepted. If, by inadvertence, such a notice is accepted it may be subsequently disallowed by the Speaker unless it is amended or revised so as to comply with the Standing Orders.

Similarly, rule 386 deals with the content of replies:

(1) An answer that seeks to address the question asked must be given if it can be given consistently with the public interest.
(2) The reply to any question must be concise and confined to the subject-matter of the question asked, and not contain—

(a) statements of facts and the names of any persons unless they are strictly necessary to answer the question, or
(b) arguments, inferences, imputations, epithets, or ironical expressions, or
(c) discreditable references to the House or any member of Parliament or any offensive or unparliamentary expression.

(3) Replies shall not refer to proceedings in committee at meetings closed to the public that have not yet been reported to the House or (subject to Standing Order 115) to a matter awaiting or under adjudication in,or suppressed by an order of, any New Zealand court.

McGee provides some interesting commentary regarding the answering of questions (pp. 563-66). Ministers “cannot be forced to answer a question”, but an answer ought to be given if it can be given consistent with the public interest. “It may be refused if, in the Minister’s opinion, the public interest would be imperilled by giving the information sought.” An inadequate or unsatisfactory answer is not a refusal to reply. If a Minister has decided that he or she will not answer a certain question, Speakers have stated that the Minister should indicate this via a point of order prior to the question being called. Strictly speaking, however, a Minister can simply refuse to answer when called upon by the Speaker. A Minister who refuses to answer a question is not obliged to give reasons why, but it is preferable if they do so:

A Minister’s response to a question that he or she does not intend to answer it is in fact a reply, unsatisfactory as it may be to members. Sometimes Ministers may be reluctant to give an informative response on a matter that is under negotiation or consideration by another body. A response in these terms is not, strictly speaking, a refusal to reply. Whether to respond in this way is a matter for ministerial judgment.

When a Minister does reply (and for the most part, they do), they are expected to address the content of the question:

The Minister’s reply must address the question asked. This involves a question of relevancy. The reply must be a direct response to the question; it cannot be a statement on an unrelated matter which it suits the Minister to introduce. (…)

While Ministers are required to “address” the question asked in their replies, whether the reply provided actually “answers” the question asked is a subjective judgment. It is no part of the Speaker’s role to make such a judgment. The test of adequacy is whether the answer addresses the question by being relevant to it. Essentially, the House itself and public opinion (assisted by the news media and reports of parliamentary proceedings) are the judges of the adequacy of a reply by making a political judgment on the matter. This is the position whether the criticism of a reply is directed to its accuracy in terms of facts asserted or its comprehensiveness in answering the question asked. (The Speaker does have a role in ensuring that it remains relevant to the subject matter of the question.)

Thus the Speaker cannot be appealed to on the ground that the reply is inaccurate. A deliberate attempt to mislead the House would be a contempt and if a Minister discovers that incorrect information has been given to the House the Minister is expected to correct the record as soon as possible. But subject to these circumstances, accuracy or otherwise is a matter that may be disputed and the Speaker is not the judge of it. It is a matter for political criticism of the Minister concerned if members believe that a Minister has answered incorrectly.

Again we see the argument that it is not up to the Speaker to judge the content of a reply, but in New Zealand, the Speaker is expected to ensure that the answer at least appears to be relevant to the question asked.

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Standing Orders and Oral Questions: Australia

Following a rather raucous Question Period earlier this week (see my previous post, as well as this excellent overview of events by Aaron Wherry), Canada’s Official Opposition has tabled a motion proposing a slight change to the Standing Orders:

That Standing Order 11(2) be replaced with the following: The Speaker or the Chair of Committees of the Whole, after having called the attention of the House, or of the Committee, to the conduct of a Member who persists in irrelevance, or repetition, including during responses to oral questions, may direct the Member to discontinue his or her intervention, and if then the Member still continues to speak, the Speaker shall name the Member or, if in Committee of the Whole, the Chair shall report the Member to the House.

I thought it might be interesting to have a look at how the Standing Orders of other Westminster-style parliaments handle their equivalent of Question Period. To begin, the Australian House of Representatives.

A couple of years ago, this clip of the former Australian Speaker shutting down former Prime Minister Julia Gillard for lack of relevancy in her answer went somewhat viral. The Australian House of Representatives has fairly clear-cut rules governing the conduct of Question Time.

Standing Order 98 deals with Questions to Ministers:

98  Questions to Ministers
(a)  A Member may ask a question in writing of a Minister (but not a Parliamentary Secretary), to be placed on the Notice Paper for written reply.
(b)  During Question Time, a Member may orally ask a question of a Minister (but not a Parliamentary Secretary), without notice and for immediate response.
(c)  A Minister can only be questioned on the following matters, for which he or she is responsible or officially connected:

(i)  public affairs;
(ii)  administration; or
(iii)  proceedings pending in the House.

(d)  Questioners must not ask Ministers:

(i)  for an expression of opinion, including a legal opinion; or
(ii)  to announce government policy, but may seek an explanation about the policy and its application, and may ask the Prime Minister whether a Minister’s statement in the House represents government policy.

Members may also pose questions to another Member who is not a Minister (or Parliamentary Secretary) relating to a bill, motion, or other business of the House or of a committee, for which the Member asked is responsible (SO 99). They can also ask questions of the Speaker at the end of Question Time on any any matter of administration for which he or she is responsible (SO 103).

Standing order 100 outlines the rules governing questions:

The following general rules apply to all questions:
(a)  Questions must not be debated.
(b)  A question fully answered must not be asked again.
(c)  For questions regarding persons:

(i)  questions must not reflect on or be critical of the character or conduct of a Member, a Senator, the Queen, the Governor General, a State Governor, or a member of the judiciary: their conduct may only be challenged on a substantive motion; and
(ii)  questions critical of the character or conduct of other persons must be in writing.

(d)  Questions must not contain:

(i)  statements of facts or names of persons, unless they can be authenticated and are strictly necessary to make the question intelligible;
(ii)  arguments;
(iii)  inferences;
(iv)  imputations;
(v)  insults;
(vi)  ironical expressions; or
(vii)  hypothetical matter.

(e)  Questions must not refer to debates in the current session, or to proceedings of a committee not reported to the House.
(f)  The duration of each question is limited to 30 seconds.

Rule 101 may be of particular interest to Canadians:

101   Speaker’s discretion about questions
The Speaker may:
(a)  direct a Member to change the language of a question asked during Question Time if the language is inappropriate or does not otherwise conform with the standing orders; and
(b)  change the language of a question in writing if the language is inappropriate or does not otherwise conform with the standing orders.

Our Australian cousins also have rules governing answers to questions, as outlined in SO 104:

104   Answers
(a)  An answer must be directly relevant to the question.
(b)  A point of order regarding relevance may be taken only once in respect of each answer.
(c)  The duration of each answer is limited to 3 minutes.

The Australian rule on relevancy and repetition, which is the target of the NDP motion here in Canada, reads as follows:

75  Irrelevance or tedious repetition
(a)  The Speaker, after having called attention to the conduct of a Member who has persisted in irrelevance or tedious repetition, either of his or her own arguments or of the arguments used by other Members in debate, may direct the Member to discontinue his or her speech.
(b)  The Member may then ask the Speaker to put the question—That the Member be further heard.
The question shall be put immediately and resolved without amendment or debate.

However, it should be noted that in House of Representatives Practice – 6th ed. (the Australian version of O’Brien and Bosc for Canadian procedure geeks), it clearly states that SO 75 “has not been regarded as applying to a statement being made by  leave or to answers during Question Time” (p. 512) which has long been the position of Speakers in the Canadian House of Commons (hence the motivation behind the NDP motion to amend that particular rule to make it apply to Question Period). The procedural manual also explains that oral questions “may raise significant difficulties for the Chair” because of the need to make instant decisions on the application of the above rules. Consequently:

Because of the importance of Question Time in political terms, and because of the need to ensure that this critical function of the House is preserved in a vital form, Speakers tend to be somewhat lenient in applying the standing orders, with the result that, for example, breaches of only minor procedural importance have not prevented questions on issues of special interest. The extent of such leniency varies from Speaker to Speaker and to some degree in the light of prevailing circumstances. (…) Speakers have commented that only a small proportion of questions without notice are strictly in order and that to enforce the rules too rigidly would undermine Question Time. (p. 548)

And while we’re on the topic of Australia’s Question Time, readers might be interested to know that technically, it is entirely within the discretion of the Prime Minister or the senior Minister present as to whether Question Time will even take place, and, if so, for how long it will go on. While Question Period in Canada has a set duration of 45 minutes, in theory, Question Time in the Australian House of Representatives could last hours if the PM were amenable to doing just that. Or it could last all of 20 minutes if the PM decides that’s long enough. Or won’t take place at all if the PM decides it won’t. This may strike many as odd, but the basis for this is that since, as is the case in Canada and Westminster, ministers cannot be required to answer questions, it would be pointless to proceed with Question Time if the PM indicates that questions will not be answered, of if Question Time is underway, that no further questions will be answered.

Australian Speakers aren’t shy about disciplining MPs during Question Time. Here’s a clip of one particularly boisterous session which saw a number of Opposition MPs, including the then Leader of the Opposition (now the current PM) sent off to the sin bin.

Further reading: You can access House of Representatives Practice online on the Parliament of Australia’s website. The current Standing Orders are also online here.

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Question or Answer Period?

Recently in the Canadian House of Commons, the Leader of the Official Opposition vented his frustration over the repeated non-answers to questions he was receiving from the Government side during Question Period on the Speaker. After first pleading for the Speaker to enforce the House’s rules on relevancy and repetition, he then openly questioned the Speaker’s impartiality. This caused the Speaker to deny the Leader of the Opposition his final two questions in the rotation.

The next day, before Question Period began, the Speaker delivered a statement to the House in which he explained that the rules on relevancy and repetition did not apply to Question Period, and that the numerous rulings in the past had clearly established that it was not up to the Speaker to decide if the content of an answer satisfied the question asked. Indeed, the Speaker has no say over the content of answers unless they contain unparliamentary language or a clear attack on another Member. He reminded the House that he had previously suggested to them that if they were not happy with the rules governing Question Period, the House was free to modify them and he invited them to do just that in order to provide the Chair with clearer, stronger rules to enforce. He also repeated the oft-heard “It is called question period, not answer period,” as if that alone justified everything.

But would it make any difference if it was called “answer period”?

Interestingly enough, in the UK House of Commons, the daily oral question time is actually called “Oral Answers to Questions”. Regular readers of this blog know that I am very fond of how the UK does oral answers to questions. Overall, I think UK MPs do receive better quality answers to the questions they ask. Is this attributable to the fact that they call their question time “Oral answers to Questions”? If we go by Canadian belief, then yes, that would be the reason. Obviously, if we changed the name of Question Period to Answer Period, everything that is currently wrong would become right overnight, yes? Unfortunately, things are a bit more complicated.

There are a myriad of procedural and cultural differences between oral questions in the UK and oral questions in Canada that explain why I personally think the UK system is better. One of the problems in Canada has to do with the questions themselves. The subject matter of the question must fall within the collective responsibility of the Government or the individual responsibility of one of its Ministers. This is the only basis upon which Ministers can be expected to answer questions. Too often, in the Canadian House of Commons, opposition MPs will ask questions that have nothing to do with government business. Examples include questions about the internal administration of the Senate or questions about the internal workings of the political party currently forming the government. Neither of these are government business, and the Speaker, even with our apparently very lax rules surrounding Question Period, would be well within his or her right to disallow such questions. Similarly questions from MPs from the same party currently forming the government frequently ask questions which are nothing more than attacks on the opposition’s policies or leader. These too should be disallowed by the Speaker.

In the UK, MPs have to table their questions with the Table Clerks for review before they can be included in the lottery. Inappropriate questions will be disallowed. Of course, this procedure applies only to the main questions which will then appear on the Order paper – MPs are free to ask any supplementary question once the Minister has answered the main question. While there are many rules governing tabled questions, there are few rules for oral supplementaries. However, the Speaker will call the MP to order if the supplementary is wide of the original question, if they refer to matters sub judice, or if they clearly have nothing to do with the minister’s responsibilities.

This is one of the biggest problems for Speakers, both in the UK (regarding supplementaries only) and Canada. The reality is that it is often difficult to tell if a question will be out of order until the MP asking it is a fair way into asking it. That said, it should be relatively easy to quickly identify questions from the government side which invite Ministers to comment on Opposition policies.

Because the main questions asked to Ministers in the UK are tabled a minimum of three days in advance, this gives ministers time to prepare actual answers. And for the most part, MPs do receive actual answers to their questions. MPs in Canada can give notice to Ministers of specific questions they intend to ask; I don’t know if any of them do actually do this, and I don’t know if it would result in an actual, factual answer if they did. But even when questions are pre-submitted, as is the case in the UK, the reality is that the Speaker is, most of the time, not in a position to judge if the answer provided adequately addressed the question asked. He or she is not privy to the Minister’s briefing notes; he or she does not sit in on cabinet briefings, etc. Granted, in some cases (particularly here in Canada), it will be blatantly obvious that the Minister is simply not answering the question asked; but in most cases, the Speaker is not in a position to make that assessment, and that is why repeated rulings here in Canada have maintained that is is not the Speaker’s role to judge the content of answers.

The UK House of Commons also favours a strong Speaker. I have not done a side-by-side comparison of the Standing Orders to ascertain if the UK House of Commons’ rules actually do give more power to the Speaker, but there seems to be a greater respect for, and expectation that the Speaker will ensure that the rules of the House and proceedings in the House are respected. The UK House of Commons Speaker can and will cut short over-long supplementary questions and ministerial answers. He or she has full control over how many supplementaries are asked. In Canada, this is all pre-decided by an established quota and rota between the parties – the Speaker can’t decide to give more questions to one side or the other, or extra supplementaries. In the UK, while 2-3 supplementaries is the norm, if the subject of a question is one on which the government is vulnerable, the Speaker is free to decide to allow several more supplementary questions, including often hostile ones from the government’s own side – which would never happen in Canada.

Another issue in Canada is the time limits. Questions and answers in Canada are limited to 35 seconds each. That reality alone will severely curtail how detailed an answer a minister can give, assuming he or she wanted to provide a detailed answer in the first place. In the UK, there are no fixed time limits. In 2002, the Procedure Committee conducted a review of parliamentary questions, including the tendency for both supplementary questions and ministers’ replies to be on the long side. The Committee fully supported the Speaker’s attempts to restrain MPs and ministers from abusing the time of the House, and in encouraging “more incisive, tightly focused exchanges.” The reality is that shorter questions are more focused. They have to be. Questions asked in Canada, even with the 35-second time limit, too often included pointless preambles. Rambling, unfocused questions make it easier for ministers to provide equally unfocused answers.

I could go on, but there is something else that we should maybe consider. It is repeatedly said (and I have said so myself) that the point of oral questions is to allow the opposition to seek information from the government and to hold the government to account. And, in the past, this was probably accurate. The question is, is this still the right way to look at Question Period? The former Clerk of the UK House of Commons, in his seminal guide “How Parliament Works” (6th ed 2006 – a 7th edition will be released later this year), takes a different view:

Question Time is above all a political exchange; it is not about seeking information, which is what written questions are for. Oral questions are about exposing and criticising, or helping and supporting. (p. 327-8)

We frequently dismiss Question Period as nothing more than a show, or a circus — and maybe that’s all it is now. Maybe Sir Robert Rogers is right; it’s not about  seeking information, it’s a contest of duelling party manifestos. It’s the only part of the parliamentary day that receives any real media attention, therefore are we really surprised that MPs will favour soundbites over substance? This is another advantage the UK system has over Canada’s: Prime Minister’s Questions. PMQs is the circus, the weekly equivalent of our daily Question Period. The other daily answers to oral questions in the UK House of Commons, the ones to ministers other than the Prime Minister, remain very respectful, informative, affairs – if somewhat boring. Is that the answer for Canada? Isolate the show – the Prime Minister – have him questioned separately once a week, and adopt a departmental rotation for the other ministers as they do in the UK? It seems to work pretty well over there and certainly, things couldn’t possibly get much worse over here, could they?

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Quality over Quantity

On 15 September 2014, MP Elizabeth May raised a questions of privilege in the Canadian House of Commons over the Government’s “unprecedented” use of time allocation, which she argued, has “obstructed, undermined and impeded” her rights and the rights of her colleagues, in particular those from smaller parties and independents.

In his response to Ms. May’s question of privilege, the Government House Leader dismissed her concerns that the House had insufficient time to properly scrutinize legislation and hold the Government to account  by comparing the Canadian House of Commons to the UK House of Commons, which I will quote in its entirety:

Contrary to the arguments of many in the opposition and media pundits, we actually have more extensive debate here than ever occurs in the British parliament.

For example, the average Canadian government bill in this Parliament, or since the last election, is debated at second reading for almost three sitting days, or 2.74 days, which is the average number. To compare with Britain, instead of three days at second reading, a typical bill in that current parliament since the last election is debated about one day, or just over that at 1.16 days. Therefore, we have almost three times as much debate on average for each bill in the Canadian Parliament as does the British parliament.

At report stage, the comparison is even more dramatic. Our average is 1.41 sitting days in Canada and in Britain it is 5.8 hours, not days, which is less than a full sitting day, for consideration. Then at third reading, the difference is even more stark where in Canada we spend on average 1.55 sitting days on third reading of a bill while the House of Commons of the mother parliament can deal with third reading on average in 41 minutes. That is 41 minutes compared with our over one and a half sitting days at third reading.

This tells you, Mr. Speaker, that notwithstanding the complaints and carping of the opposition, we actually have more ample debate here than they do in the British House of Commons.

The opposition says that we are shortening debate. No, we are actually a real talk shop compared with what they do across the ocean. Once more, this does not reflect the individual members’ of Parliament right to speak. We have only 308 members, but their 650 MPs can get the same amount of work done in well less than half the time because they are not quite such a talk shop. I guess they are a little more efficient. Perhaps they have a culture that actually focuses on getting things done as our government seeks to do.

Mr. Van Loan does have a point, but he also misses a few other very important points.

First, it is very true that second and third reading debates in the UK House of Commons tend to be much shorter in duration than those in the Canadian House of Commons. But there is a good reason for that, namely, they aren’t the most important part of the legislative process. As I’ve previously explained in an earlier post, nothing actually happens to the bill during either second or third reading debate. Second reading debate isn’t a debate on the contents of the bill; MPs don’t discuss the bill’s various clauses. It is a debate on the principle of the bill. Third reading is little more than a formality; the bill has gone through (hopefully) intense scrutiny during other parts of the legislative process and 3rd reading simply confers the House’s final OK, so to speak.

Related to this is the reality that while debates in the UK House of Commons during 2nd and 3rd reading are shorter, they are, I must say, of better calibre. In the UK, any MP who wishes to speak to a bill during either of these debates does not have to get his or her party whip’s approval to do so – they simply sign up for the debate on sign-up sheet outside the Speaker’s office. There aren’t any official time limits on speaking time in the UK House of Commons (although the Speaker may ask MPs to not exceed a certain amount of time if there is a large number of MPs who have indicated they wish to speak). MPs in the UK do not read out prepared scripts handed to them minutes before by their party whips. Other MPs can rise to ask questions of them at any point and the Member speaking will usually give way and take the question.

In his run-down of how much time is spent on various stages of debate in Canada compared with the UK, Mr. Van Loan neglected to mention Committee Stage, which is where the real scrutiny of the bill occurs. In the UK, it is not usual for major government bills to spend a very long time, often months, in committee. For example, the Coalition Government’s major Welfare Reform Act was in committee for two months with a total of 26 meetings held.

More importantly, the UK has been using draft bills more and more often when it comes to major pieces of legislation. Draft bills are published to enable consultation and pre-legislative scrutiny. After consultation and pre-legislative scrutiny has taken place, the Draft Bill may be introduced formally in House of Commons or the House of Lords. Most Draft Bills are examined either by select committees in the House of Commons or in the House of Lords or by a joint committee of both Houses of Parliament. See for example the Defamation Act which had a shorter passage through the various stages in the House,  but it was a Draft bill first and so was being looked at from Oct 2011 to March 2012 before it was introduced formally. Draft bills exist in Canada, but they aren’t used very often.

Another important difference Mr. Van Loan failed to mention was the simple fact that in the UK, there isn’t the same reliance on or tendency to introduce omnibus bills. There is no precise definition of an omnibus bill. In general, an omnibus bill seeks to amend, repeal or enact several Acts, and it is characterized by the fact that it has a number of related but separate parts. However, there use is, according to O’Brien and Bosc, unique to Canada. In the UK, the fact that these sorts of bills are brought forward is an issue of concern. The Political and Constitutional Reform Committee’s report on Ensuring standards in the quality of legislation, did discuss the issue of omnibus bills (often called “portmanteau” or “Christmas tree bills”):

11. “Omnibus”, “portmanteau” or “Christmas tree bills” attracted particular criticism. These are large multi-topic bills, upon which a Department “hangs” a number of areas of policy, like baubles on a Christmas tree. Dr Ruth Fox, Director of the Parliament and Government Programme at the Hansard Society, highlighted some of the problems this type of bill can present:

If you look at the size of the bills that are going through, the Conservative party, when it was in Opposition, would talk strongly against the number of large Christmas-tree, omnibus bills that the previous Government took through Parliament after Parliament, yet we are seeing some of that happening again. The Localism Bill had to be published in two parts, for example, with a lot of disparate provisions.

She noted, however, that additional time had often been allowed to consider such bills at Report stage.

12. First Parliamentary Counsel noted that the Government “on the whole does not like big bills because the scope is broad and amendments can come in on any subject”. He stated that “[a]mendments can come in on new subjects late in a bill’s passage and that is quite often an area where mistakes creep in, so you might see more of that in a multi-purpose bill than in a small confined bill”.

13. The Rt Hon Mr Andrew Lansley MP, Leader of the House, noted that “[t]here are substantially more candidates for legislation than there is time available.” Some caution therefore needs to be exercised in criticising large multi-topic bills, as they can enable Parliament to consider provisions that would not otherwise find a place in the legislative timetable. For example one of the amendments to the Crime and Courts Bill, accepted by the Government, was to include section 24, Appeals relating to the regulation of the Bar. This section was originally included within a draft bill that the Ministry of Justice consulted on, but which was not taken forward because of lack of time.

14. We recognise that legislation is not made in a vacuum. The parliamentary legislative process reflects the inherent constraints and negotiations present in the process of turning policy into statute, and we accept that the introduction of large multi-topic bills is, on occasion, a legitimate and appropriate use of parliamentary time. We acknowledge that the greater breadth of such bills allows greater scope for amendments by backbench MPs, and that without such bills, some “worthy” but “unglamorous” statutory sections might not become law because of lack of parliamentary time. However, multi-topic bills risk becoming simply too big to be scrutinised effectively.

15. We recommend that for large multi-topic bills, the Minister in charge of the bill explain to Parliament why this large scale format has been chosen. If there is a good reason for the legislation being brought forward then Parliament can be confident that the Government has given proper consideration to the importance of parliamentary scrutiny.

Another difference between these two jurisdictions is that a rather large number of Government bills will start off in the House of Lords rather than being introduced in the Commons first. They get a thorough going over in the Upper House, and so by the time the bill moves to the Commons, there is less work required by the Commons since the Lords have done a lot of the heavy lifting.

And finally, one more important difference between the UK and Canadian bill process: in the UK, the Government does expect that its bills will be amended, either at Committee stage, Report Stage, or by the House of Lords. They also know that they can’t count 100% on a bill even going through. Unlike in Canada, MPs don’t always toe the party line. So while yes, it is true, there is a bit more debate time available on bills here in Canada, overall, it really comes down to a question of quality over quantity.

 

 

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On Written Questions

While most are quite familiar with Question Period or Question Time – the parliamentary proceeding during which MPs question government ministers – you  may not know that in addition to oral questions, MPs can ask government ministers questions in writing. These written questions are often used to obtain more detailed information about policies and statistics on the activities of government departments that would require too long an answer to be asked as an oral question during Question Period.

Rules surrounding written questions vary somewhat from jurisdiction to jurisdiction. For example, in the Canadian House of Commons, 48 hours notice is required before a written question is placed on the Order Paper. Each MP is allowed a maximum of four questions on the Order Paper at a time. They can also indicate that they would prefer to receive an oral response to the question, which will be delivered during Routine Proceedings. They do this by marking the written question with an asterisk when it is submitted. These are known as “starred questions”, and a maximum of three starred questions are allowed out of the MP’s total of four. MPs can also request an answer within 45 calendar days.

In the UK House of Commons, both MPs and Lords can submit written questions to Ministers. There are different types of written questions. Ordinary questions do not have to be answered on a specific date. An MP will date a written question for two days after they have tabled it, but the convention is that the MP can expect it to be answered within seven days of the question being tabled. However, there is no parliamentary rule that states ordinary written questions have to be answered by a certain date. All House of Lords written questions follow a similar procedure. Lords enter questions on the Order Paper via the Table Office. Lords may table up to six questions each day and can expect an answer within 14 days.

Named day questions only occur in the House of Commons. The MP tabling the question specifies the date on which they should receive an answer. The MP must give a minimum of two days’ notice for these types of question. MPs may not table more than five named day questions on a single day.

As well, it should be noted that questions originally tabled for oral answer that do not get answered at oral question time are submitted to the government department as named day questions.

While there are variations in the rules governing how MPs use written questions from one parliament to the next, there is one thing MPs in most, if not all, legislatures have in common, and that is a growing dissatisfaction with the quality of answers provided by ministers.

On a number of occasions in the Canadian House of Commons, MPs have raised matters of privilege over the answers they’ve received to written questions – unsuccessfully (see, for example, 4 December 2002, 27 January 2003, and 13 December 2004). None of these cases was found to be a prima facie breach of privilege and Speakers have ruled that it is not the role of the Chair to determine whether or not the contents of documents tabled in the House are accurate nor to “assess the likelihood of an Hon. Member knowing whether the facts contained in a document are correct”.

In the UK, the House of Commons Procedure Committee released a report during the 2008-09 session looking at Written Questions and noted:

There is widespread concern that many answers to WPQs are unsatisfactory. We are particularly concerned that, in some cases, information is refused under a WPQ but later granted through a Freedom of Information request. The Government has a duty to answer WPQs accurately and in full. It is unacceptable that some answers fall short of these standards, and the Government must reiterate these responsibilities both in guidance provided to officials and in the Ministerial Code.

As a remedy, the Procedure Committee proposed that, on a trial basis, it take on the role of monitoring unsatisfactory answers referred to the Committee by Members. This would enable the Committee to assess the extent of any problems, and would send a message to Government that if it failed to meet its responsibilities in answering WPQs these shortcomings would be recorded and pursued.

The Committee began monitoring written questions in the following Parliament, in October 2010. They invited MPs to refer to them specific instances where they were dissatisfied with the answer received to a question they had tabled. This dissatisfaction could be due to an answer clearly not addressing the question or where information is refused when requested through a WPQ but is made available by other means. The Committee would then examine every submission and in cases of particular concern, would refer questions to Ministers for comment and review. The Committee received just over 50 complaints, and of those, about half merited further investigation. In their report, Seventh Report: Monitoring written Parliamentary questions, tabled in April 2013, the Committee noted that the experiment had been quite successful:

As a result we have obtained answers for Members on a number of occasions in circumstances where they would otherwise have found it difficult or impossible to follow up on an inadequate response, and we have been able to use the opportunity to emphasise to Ministers the importance and value of engaging adequately and appropriately with this particular form of Parliamentary scrutiny. We now intend to bring this trial period to an end and put the exercise on a more permanent footing.

The Committee’s second monitoring report was released in January 2014 and found that while the timeliness of ministries in answering written questions had improved over the previous session, certain ministries were still under-performing and were “on notice”:

Overall performance in timeliness of answering of written Parliamentary questions has improved since 2010-12, from 69% to 76% in respect of ordinary written questions answered within a working week of tabling and from 69% to 73% in respect of named day questions answered on the named day. The performance of certain departments, however, remains poor, and those with whom we have been in correspondence this year should consider themselves to be “on notice” that if the improvements which have been promised do not materialise when we come to examine the statistics for 2013-14, we will be considering very carefully what action, possibly including further oral evidence sessions, it is necessary to take.

The UK Parliament has also just launched an online written questions and answers module. Previously, one had to look in Hansard to find the answers to questions tabled by MPs — this new module makes it much easier to search through the questions and read ministerial replies. As the Procedure Committee noted in its first monitoring report, written questions “are a vital tool for the accountability of Government. The effectiveness of this form of accountability depends on Members receiving answers which are both timely and which respond adequately and appropriately to the question which has been asked.”  Perhaps making it easier for people to read the replies to WPQs will encourage ministers to provide more thorough answers.

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MP defections and by-election timing

Douglas Carswell, a UK Conservative backbench MP, today announced he was quitting the Tory Party to join UKIP (the United Kingdom Independence Party). He also announced he was resigning as an MP and would seek re-election under his new party label in a by-election.

Most of the discussion right now in the UK media is focusing on what this means for the Conservative Party as it is challenged on the right by UKIP. This blog, as we all know by now, does not focus on party policies or party politics in general. Rather, I want to look at two other issues raised by today’s events.

The first is Mr. Carswell’s decision to not only cross the floor to join another party, but to resign as an MP and seek re-election. I have discussed the issue of floor crossing (see this post), and normally, MPs in both Canada and the UK who decide to leave one party during the course of a parliament (meaning in-between elections) and join another simply do that. They do not resign their seat; they do not seek re-election under their new party label in a by-election. In other words, the voters in their constituency have no say in the matter until the next general election. As I explained in my post on floor crossing, there have been attempts in both the UK and Canadian Houses of Commons to pass legislation which would require an MP who decides to switch parties in-between elections to do exactly what Mr. Carswell is doing. Each attempt to pass such legislation (always via a Private Member’s Bill) have failed. Will Mr. Carswell’s actions change anything?

The question before us now is whether Mr. Carswell’s actions will set some sort of precedent. Will there now be greater pressure on defecting MPs to do the same thing rather than follow current practice, which, as I stated above, is simply to change party and continue on as an MP? Some in the UK are already arguing that it should.

The second point of interest involves the matter of the by-election itself. I’ve written a couple of posts outlining how the UK approach to calling by-elections compares with ours here in Canada, which you can read here and here. In both posts, I point out that the UK system seems better to me – the decision to call the by-election is not up to the Prime Minister, and consequently, vacant seats tend to be filled much more quickly in the UK than they are here in Canada. In Canada, the Prime Minister will often delay the calling of a by-election for as long as he or she can (and often for purely political reasons), which means a constituency can go up to six months without an MP.

In the UK, convention dictates that the party which holds the seat decides the date of the by-election. Generally, because it is their seat that is now vacant, the party wants to fill it as quickly as possible. This usually means that the writ is moved the same day or the day after the seat has become officially vacant However, the situation with Mr. Carswell is different. The Conservatives held that seat in the 2010 election, and so it is up to them to decide when to call the by-election. Here we may well see political maneuvering come to the fore. First there is the legitimate matter that they will have to find a suitable candidate to contest the seat against Mr. Carswell, and if we assume Carswell’s decision to defect to UKIP was a surprise to them, they probably don’t have anyone lined up as they full expected Mr. Carswell to run again in the 2015 General Election. But even once they find a candidate, they can still hold off on calling for the by-election to be held. However, even here, the by-election will most likely occur sooner than it would in Canada; a Speaker’s Conference on electoral law in 1973 proposed several changes to how by-elections are usually conducted and one of the guidelines adopted was that a writ for a by-election should normally be moved within three months of a vacancy arising.

So while most in the UK will be focusing on the Conservative-UKIP issues raised by Mr. Carswell’s defection, this blog will be far more interested in watching developments on these other two fronts.

ETA: Today (2 September 2014), it was announced that the by-election will occur on 9 October 2014. The resignation of Douglas Carswell as Clacton’s Member of Parliament became official the day after he announced he was defecting from the Conservatives to UKIP. On the afternoon of 29 September, a message was released by HM Treasury which made Mr Carswell’s resignation official:

“The Chancellor of the Exchequer has this day appointed John Douglas Wilson Carswell to be Steward and Bailiff of the Manor of Northstead.”

– HM TREASURY

(You may recall my earlier post explaining that MPs in the UK House of Commons cannot actually resign their seat.)

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Row over the selection of a new Clerk for the House of Commons

clerksEarlier this year, the Clerk of the UK House of Commons, Sir Robert Rogers, announced that he would be retiring at the end of August. Traditionally, a new clerk is appointed from within, but in this instance, the Speaker of the House of Commons announced that the position would be advertised.

After an exhaustive selection process conducted by a panel chaired by Speaker Bercow, it was announced that the successful candidate was an Australian, Carol Mills, the Director of Parliamentary Services in Canberra. The decision has been met with great consternation. Both parliamentarians and parliamentary observers deem Ms. Mills to be unsuited for the post. That said, the concern over the choice of Ms. Mills has been largely confined to the edges of public debate; the issue of who should be the next Clerk of the House of Commons is not of great concern or of much interest to the general public.

What does the Clerk of the House of Commons do? If you have ever watched parliamentary proceedings, either in the UK, or in Canada or any other legislature, you may have noticed certain individuals, usually robed in black, sitting at a table in front of the Speaker’s chair. These are the Clerks-at-the-Table, non-partisan officials who provide advice to the Speaker and to Members. In Canada, they also record the decisions of the House. At the head of the Table sits the Clerk of the House, the senior permanent official of the House of Commons. This is an ancient position; the first Clerk was appointed in 1363 in Britain though from much earlier times kings had employed officials to record their decisions and those of their advisers.

The Clerk of the House is the principal constitutional adviser to the House, and adviser on all its procedure and business, including Parliamentary privilege. If a point of order is raised by a Member, it is the Clerk that the Speaker will turn to for advice on the intricacies of the Standing Order in question. The Clerks are instrumental in preparing the rulings delivered by Speakers. Consequently, whoever holds the position must be an expert not only the legislature’s Standing Orders, but also parliamentary conventions and precedents that guide so much of what happens on the floor of the House.

While that is the traditional role of the Clerk, in more modern times, the role has expanded to include significant administrative duties. In effect, in many legislatures, the Clerk is also sort of the CEO of the legislature, with oversight responsibilities for a wide range of parliamentary services. Clerks now oversee decisions about Human Resources, information technology, catering, security, etc., areas which, in many cases, they have scant expertise since their main focus has always been the procedural side of Parliament. Some legislatures have recognized that expecting an expert in parliamentary procedure to also successfully see to the administrative side of things isn’t ideal, and have split the task between two positions. The Clerk remains responsible for procedure, while a second person will oversee the administrative and financial duties. This is the case in Australia, where Ms Mills manages the general administration of the building in her Director of Parliamentary Services role. She has, however, no procedural experience.

It is her lack of procedural experience which has raised concern. The Clerk of the Australian Senate wrote a scathing email (which was leaked) in which she made it clear that Ms. Mills was not qualified for the post due to her lack of procedural experience. A number of senior Labour and Conservative MPs are calling for her appointment to be delayed. The leading internal candidate, David Natzler, is considering appealing the decision of the appointment panel, and Sir Rogers, the out-going Clerk, has intervened,  asking Sir Jeremy Heywood, the cabinet secretary, to delay sending the name of his proposed successor to the Queen for approval.

It does not seem likely that a delay will be possible, however. Sir Rogers retires at the end of August, and the UK House of Commons will return from its summer break on 1 September 2014. Yesterday, Speaker Bercow indicated that he would be willing to split the Commons Clerk role to avoid this sort of controversy, but this split would occur in the future, after Ms. Mills retires.

At this point, it does look as if Ms. Mills’ appointment will proceed. I don’t know if she will be in place as Clerk for when the House returns on 1 September, but whenever she takes up the post, she will have a steep learning curve ahead of her.

Here is a video of out-going Clerk Sir Rogers, explaining the role of Clerks in parliament.

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Do we need a Peoples’ PMQs?

UK Labour Party leader Ed Miliband recently floated the idea of a weekly “public question time” where an audience representative of the country would question the prime minister on any issue of the day.

Miliband was a bit short on details regarding how this would work. Apart from stating that the audience should be representative of the country, the only other details he provided was that the public PMQs should be held in parliament at least every two weeks, but preferably weekly.

On the surface, it’s an interesting idea, but it also raises a number of questions. First of all, how would these people – representative of the country – be selected? Would it be a completely random process, you know, sort of like being chosen for jury duty? Or would interested persons be invited via a website or social media to put their name in? If the latter, self-selection, then you’re not going to end up with an audience “representative of the country.” You’re going to end up with an audience full of political partisans and people with specific causes and agendas.

As Dan Hodge rightly notes in this column:

The vast majority of British voters have zero interest in Prime Minister’s Questions. Nor, once the initial novelty had worn off, would they have any more interest in watching People’s Questions. It’s only politicians who think the weekly interrogation of politicians is of major national significance.

This is the reality of our times: most people – most ordinary people “representative of the country” just don’t care enough – or at all – about politics. They’d have no interest in participating in a Peoples’ PMQs. The only people who would be keen on participating, as I stated above, would be partisans and people with vested interests. The sad truth is that people who are really keen on politics aren’t the majority. And if you end up with an audience full of partisans, the questions won’t be any more enlightening than what you currently get in PMQs. Case in point: when this story came out in the UK, the Guardian put up an open thread column asking “What would you ask David Cameron?” If you’re not familiar with the Guardian, suffice it to say that the vast majority of its readers do not like the Tories. The paper is strongly associated with the Labour Party, and its readers are decidedly left-of-centre. A quick perusal of some of the suggestions quickly demonstrates what sort of questions partisans would ask.

I admit that I am very leery of “real people” questions. There has been an extremely annoying trend here in Canada regarding leaders’ debates during election campaigns, where the normal practice of having the party leaders face questions from a panel of seasoned journalists has been replaced with asking questions from “ordinary” Canadians. The problem with this is that, as I’ve said, most people aren’t really into politics, and the questions that are asked often tend to be rather non-specific, and often inappropriate. A lot of “ordinary” people will ask federal party leaders questions about education and healthcare, which aren’t federal responsibilities. Yes, the federal government provides funding to the provinces to be used for education and healthcare, but Ottawa’s ability to do much in those areas is quite limited. I do miss the days when Bloc Quebecois leader Gilles Duceppe would simply sneer at those questions and dismiss them with “That’s not a federal responsibility, it’s provincial” and refuse to say more, while the other federal leaders would try to wax poetic about grandiose plans over something they really couldn’t do much about. I would think any sort of “Peoples PMQs” wouldn’t be much better.

Another issue is simply that this idea looks like an attempt to by-pass Parliament. MPs are elected to represent people – it is their job to hold the PM and the Cabinet to account. If citizens have certain concerns about a government policy, they can (and should) contact their MP and that MP should try to get answers on behalf of his or her constituents from the relevant government minister, including the PM. There are a number of UK MPs who, once they learn that they’ll be allotted a question during PMQs (because the names of MPs are drawn in a lottery), ask for suggestions for questions on Twitter and other social media. Whether or not they actually use any of the questions suggested to them by their followers, I don’t know, but I do regularly see them on Twitter inviting people to suggest questions.

UK party leaders are already quite accessible to the public (especially compared to Canadian party leaders). Before he became PM, David Cameron held a regular number of Q&A sessions in marginal ridings. He has continued this practice since becoming PM (here’s a recent one from this year). Yes, these aren’t always public events or televised, so not the same as a Peoples’ PMQs, but my point here is that at least the PM is regularly going out and talking to people, being questioned by them. Deputy PM Nick Clegg has a weekly radio call-in show.

Every single minister regularly appears before his or her department’s select committee for questioning (including the PM, who appears before the Liaison Committee a couple of times each session – you can watch his most recent appearance here. More and more of these committees have also turned to Twitter and other social media to invite “ordinary people” to submit questions to be put to the Minister. They will often reserve the last 20 or so minutes of the session for questions submitted by the public. Here’s an interesting assessment of the very first time this was attempted back in 2012, by the Education Committee.

I don’t disagree with Ed Miliband and others that there is too often a disconnect between elected officials and the general public, but I don’t think that a Peoples’ PMQs will really do much to change that. My gut feeling is that a lot of people, probably a majority of people, will never be that interested in politics in general, and gimmicks won’t change that.

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Balancing Canada’s constitution: a proposal for Senate reform (pt.2)

(The following is part 2 of a two-part post by guest blogger JD Mussel. You can read part 1 here. JD is a Dutch-Israeli undergraduate student at Leiden University College in the Hague, the Netherlands. He is majoring in policy science with a focus on constitutional design. He frequently contributes to the political science blog Fruits and Votes. JD’s opinions are his own and do not necessarily reflect those of this blog’s administrator.)

Part 2: The specifics of Senate reform and their effects

In my previous post I discussed the problems of majoritarianism and the resulting executive dominance in Canada’s system of government. In this post I will explore in detail my specific recommendations for reform, as well as the way in which they would empower the Senate to fulfil its role of balancing out the power of the government and holding it to account, all the while better representing Provincial interests.

Creating bicameral incongruence

An interesting question is by what formula the Provinces should be represented in the Senate; it would be reasonable to think that a different basis of representation, such as equal representation for each province, could make the partisan composition of the Senate become incongruent to that of the Commons. However, such change to the current situation is not critical, much less sufficient for that end. Instead, the decisive factor would be the method of appointment or election, which must be one which makes a one-party majority very unlikely.

One way to appoint Senators that is likely to both create intercameral incongruence and a ‘Provinces’ chamber’ would be appointment by Provincial governments or legislatures. The main drawback of this solution would be an entanglement of provincial and federal politics, eliminating the separation between the two which is one of the advantages of federalism. People would no longer be able to vote in provincial elections without effecting the federal government. In the long term, this strongly incentivises federal parties to take over control of the provincial party systems, which would severely undermine any role the Senate may at first have as an agent of the Provinces’ interests.

The way forward would appear to be direct elections. In order to prevent governments from winning upper-house majorities – the absolutely crucial part of the equation – the electoral system should be some form of proportional representation. In order to avoid excessive party domination, it would be a good idea to choose a candidate-based PR system, such as the single transferable vote (STV). This fully candidate-based proportional system would inject a dose of intraparty competition that is not only likely to weaken the parties, but strengthen the role of provincial interests. The way for candidates to compete against other candidates of the same party is to differentiate themselves by catering to particularistic interests of the electoral district, in this case – the Provinces. Meanwhile, the degree of choice voters have under STV in ranking candidates from various parties (very much unlike the first-part-the-post used for elections to the House of Commons) is also commendable, and is more likely to result in the election of independents than other PR systems. The result of this electoral system should be a diverse representation of the electorate, with a majority for any single party becoming a highly unlikely prospect.

Proposal 1: that the Senate be directly elected, using proportional representation by means of STV

The next question is the election cycle. The best possibility would be to simply to hold Senate elections concurrently with elections to the House of Commons. Such elections would, however, best be staggered, with half of the Senate being elected at each general election, for two main reasons: firstly, it would increase the Senate’s independence by reducing the prime minister’s power to threaten dissolution to one that concerns only the more senior half. Secondly, in combination with proportional representation, it would make it more difficult for a government to achieve a majority in the upper house. Under PR, a party needs close to or over 50% of the vote to win a majority of seats contested – therefore, if Senate elections were staggered, two successive landslide wins would be necessary for a single party to win a Senate majority. Furthermore, longer terms may lead to longer-term thinking in the Senate as a result of the delay in concern for re-election. For these reasons one-half of each Province’s Senators should be elected at each federal parliamentary election, which would currently mean a term of no longer than eight years, while the minimum would depend on the frequency of elections.

Proposal 2: that elections to the Senate be staggered, with one-half elected at each general election; Senators’ terms last from election to the one after next.

Breaking Deadlock

Currently, the Senate’s full power is used only sparingly, due to the way in which it is appointed; there can be no doubt that an elected Senate would be much more assertive. For enabling an effective role for the Senate in review of legislation and government actions the crucial factor is that the Senate retain a large degree of power over legislation. The only reason governments have to co-operate with a Senate’s accountability measures, such as inquiry or information disclosure order is the latter’s potential threat of declining to pass government legislation until the government complies. A house of review with no legislative power would be ineffective, as it could simply be ignored. Likewise, a house that chooses to not exercise its legislative power is also a poor check. Therefore an assertive body of senators is essential to allow the senate to fulfil is role a check on government power.

Nevertheless, for good and effective government, complete deadlock should be avoided. A good mechanism would therefore be needed, in order to resolve disagreements between the Houses and to encourage Senators to work towards a compromise instead of being obstructive. The current formal powers of the Senate are almost symmetrical to that of the House of Commons, with only very few limits, specifically regarding initiative and amendment of money bills. A deadlock-breaking mechanism exists, in a form inspired by the British Constitution: additional appointments can be made (on the prime minister’s advice), limited to either 4 or 8 extra senators. As a deadlock breaker it is simply a way for the government party to come closer to having a majority in the Senate. If the Senate were elected, it is possible that governments will get into the habit of making these appointments at the start of each session, effectively a government bonus in the Senate which has no place in the reformed institution proposed here.

Actually, a certain deadlock-breaking mechanism is already inherent in the election cycle proposed above. Should the two houses disagree on a bill, and the government is well-positioned in the opinion polls to win an election, there’s an incentive for the prime minister to advise a ‘one-and-a-half’ dissolution, whereby the House of Commons and half of the Senate face new elections. This threat would be a potent bargaining tool in the hands of the PM, while also poses its own risks for him. A government which is not faring well in the polls will almost certainly not make use of this avenue. In such a case, there is a greater threat of deadlock; seeing as the Senate can block supply, there is even a threat that the opposition in the Senate will try to bring down the government and force an election. There is a good case for removing the Senate’s power to block supply, which effectively makes the government depend on both houses for funding. It can be argued that the government should only be responsible to one house to avoid the deleterious effects of instability, not to mention government shutdowns. Secondly, one could argue for removal in the interest of the financial efficiency that one-party government promotes; if such a government must compromise with other parties to pass its budget, this potential will decrease. However, a check on the government’s finances is as important as any other for the Senate for checking the government’s power and keeping it accountable.  I would suggest some limitation to the Senate’s power to block supply, so that it cannot veto the bare essentials necessary to fund government, but so that it can still veto radical changes to fiscal policy, including such things as tax increases.

Proposal 3: that the Senate’s power to block supply be somewhat constrained to the effect of preventing government shutdowns as a result of deadlock.

The proposals

Proposal 1: that the Senate be directly elected, using proportional representation by means of STV

Proposal 2: that elections to the Senate be staggered, with one-half elected at each general election; Senators’ terms last from election to the one after next.

Proposal 3: that the Senate’s power to block supply be somewhat constrained, to the effect of preventing government shutdowns as a result of deadlock.

Conclusion: curbing the excesses of the Westminster system

Some readers of this blog will note similarities between the proposal outlined here and the system existing in Australia on the federal level as well as in several states, and indeed, the Australian experience was the inspiration. As in Canada, the Australian government utterly dominates the lower house; but unlike its Canadian counterpart, the Australian Senate, elected through PR, has a very effective review role. The Australian Senate not only improves and moderates legislation, but also holds the government accountable and transparent in various ways, creating checks and balances not present in most versions of the Westminster system.

The Australian system of government, the inspiration for these proposals. Note well the intercameral incongruence, which is created through the use of PR for Senate elections.

The Australian system of government, the inspiration for these proposals. Note well the intercameral incongruence, which is created through the use of PR for Senate elections.

In all probability, a Canadian Senate reconstituted along the lines described above would be similarly empowered to increase scrutiny and oversight, carrying out inquiries and ordering the disclosure of information from the government, thereby checking executive power and increasing transparency. In the new Senate, devoid of a government majority, governments will have to negotiate with other parties to pass much of their legislation. Most proposals should pass with no significant clashes, or with improvements arising from bipartisan collaboration, but more controversial bills will have to be toned down and negotiated to have a chance of success.

Due to the more frequent need to secure compromises, the government’s ex-post accountability before the electorate would be watered down somewhat. Nonetheless, majority governments will remain in a very powerful position; the Senate will be able to constrain a government, but not to force one out. Since the other parties will remain unable to either remove such a government, or pass anything without its concurrence, a majority government would be partly responsible for any proposal that does pass, keeping accountability strong. The situation would of course be different, as it is now, in the case of a minority or ‘hung’ parliament. Such scenarios may sometimes prove trickier for governments than today, but in most cases, if a majority can be secured for some bill in the House, the same parties’ support will also be sufficient in the Senate.

In the long term, elections to the two houses may become strongly defined by the system. Elections to the House of Commons would become more strictly about the choice of government, with more people likely to vote strategically, voting their true preference in the Senate election.  Due to its electoral system, the Senate will almost certainly become more representative of the electorate than the House of Commons. Among its ranks there will be small parties which have great difficulty in capturing seats in the lower house. Such small parties (and independents) will begin focussing on elections to the Senate, where they will have a real chance to influence policy. They may also come to emphasise their role in making the Senate the place where the government is held to account, as the Australian Democrats did with their slogan ‘keep the bastards honest!’ Meanwhile, for the big parties, the distinguishing element of Senate elections would become competition among candidates of the same party (under STV). In order to differentiate themselves, a party’s candidates are will likely compete with each other in terms of bringing various benefits to their province.

Of course, this is not the whole picture; an elected Senate, where the government is permanently in minority, would fundamentally transform Canada’s political equation. Executive dominance, largely the unfortunate side-effect of the Westminster system’s majoritarianism, would be remedied while preserving most of its benefits. While the government, in most cases, should be able to continue to control the House, opposition parties in the Senate will have not only the power, but also the mandate to hold governments to account and subject their policies to a ‘sober second thought’. This, I am convinced, would be the best way of curbing the excesses of the Westminster system – by accomplishing what few of the participants in the FPTP-vs.-PR debate seem to contemplate: an elegant compromise between the accountability of the former and the representativeness of the latter.

Suggested further reading

Platypus and Parliament: The Australian Senate in Theory and Practice

Accountability Versus Government Control: the Effect of Proportional Representation

From breaking governments to a brake on government: a new bicameralism in Victoria?

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Balancing Canada’s constitution: a proposal for Senate reform (pt. 1)

(The following is part 1 of a two-part post by guest blogger JD Mussel. JD is a Dutch-Israeli undergraduate student at Leiden University College in the Hague, the Netherlands. He is majoring in policy science with a focus on constitutional design. He frequently contributes to the political science blog Fruits and Votes. JD’s opinions are his own and do not necessarily reflect those of this blog’s administrator.)

Part 1: Curbing the excesses of majoritarianism

Introduction

Canada has a parliamentary form of government, using first-past-the post to elect the members of its confidence chamber, the House of Commons. Despite the recent period of minority governments from 2004 to 2011, minorities are the exception in Canada as elections usually result in a Commons majority for one party. House majorities don’t usually result from majorities in vote terms, but are manufactured by the majoritarian first-past-the-post electoral system. The upper house, the Senate, is formally co-equal but is appointed on advice of the prime minister. While this doesn’t always mean that the Senate has a government majority, it has usually made the Senate passive even in times of a split parliament (different majorities in each house) as it usually defers to the greater legitimacy of the elected House of Commons. Meanwhile, the Constitution’s division of power between the federal level and the provinces may be said to favour the federal level, particularly in light of the fact that the Supreme Court is appointed by the federal government. Canada therefore has a constitution which can be characterized as being as close to Westminster’s as possible for a federal country with judicial review, having a lower house elected using a majoritarian electoral system, with few checks on the government’s power.

election chart

The electoral mechanics of first-past-the-post illustrated: in 2011 the Conservative Party won a House majority on just under forty percent of the vote. Not a representative result, but one offering ex-post accountability.

The main advantages of Canada’s system of government is that the way in which governments are formed flows directly from election results, providing a strong sense of accountability. Voters generally have the choice between two parties that could potentially form a government, and the party that receives the most votes usually receives a working majority to do so. Canada does not have a two-party system, but there has been a two-party alternation in government. When voters rally behind one opposition party, they can replace an unpopular government with relative ease. As a result of the system’s concentration of power, it is easier for Canadian governments to act decisively, an advantage in a crisis as well as a virtue for the democratic process, as it allows parties to more faithfully stick to their election promises. But much more important is the accountability this affords: majority governments, not having to compromise with other parties, have wide latitude to carry out their election promises, and can consequently be held accountable for its actions at the next election. It is far more straightforward to assign blame to the single party that forms government than it is in the context of a coalition or even a minority government.

The problem

The main drawback of Canada’s system of government is the lack of a check on the power of the government, a government rarely formed on true majority support. As a result of the development of party discipline, which is as strong in Canada as in any parliamentary regime, ‘responsibility’ to parliament is almost symbolic. The government so dominates parliament that one might almost say that the true relationship is the opposite: that the House of Commons is responsible to the government, which can dissolve it at any time, and which can order its parliamentary majority to pass laws with few constraints additional to that of public opinion. Some have gone so far as to call it an ‘elective dictatorship’, and there’s some truth to that. This excessive concentration of power in the federal executive has brought about polarising decisions, sharp swings in policy from one government to the next, as well as clashes between the federal government and the provinces. The case could be made that part of the problem is that Canadian government is too centralised, with no actor with an effective mandate to represent provincial interests at the federal level.  But the broader underlying issue is the shortage of actors of any type that would check the government and balance Canadian politics. As Madison wrote in Federalist no. 51, ‘A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions’. Though the danger of a lack of checks and balances may not have fully materialised yet, the power of the executive should not remain unconstrained, particularly in light of the fact that it rarely rests on majority support. On the whole therefore, what Canada’s constitutional situation calls for is more veto players: political actors with the power to act as a check on the party in government.

Reform alternatives and a proposed framework

There are a number of conceivable approaches to this question. One possible way of increasing the number of veto players would be to change the electoral system for the House of Commons to some form of proportional representation. Minority or ‘hung’ parliaments would become the norm, and parties would need to secure other parties’ support in order to remain in government. As currently happens as a result of hung parliament, the first governments under this system will be minority governments, but coalitions are likely to form eventually. By increasing the number of parties necessary, in most cases, to form a government and make policy, this would mostly solve the current ‘elected dictatorship’ and policy instability problems. However, this would come at the cost of the main benefits of the current system. The current efficient choice of government at the polls, the decisiveness of election results and resulting accountability and decisive policymaking would greatly diminish under proportional representation in the House of Commons. Besides, while proportional representation may ensure that no party achieves a majority in the House, it is no guarantee for effective review. A coalition government may be constrained by the divergent agendas of its constituent parties, but once coalition partners agree on a broad legislative programme, they can dominate the House to a degree not much lesser than a single-party majority government.

There is however a different option for reform, providing a new veto player by reforming a different institution: the Senate. In order for it to form an effective check on government power, its partisan makeup needs to become incongruent with that of the House: the parties in opposition should have a majority in the Senate. The Senate could then become an effective ‘house of review’, empowered not only to improve legislation and moderate policy but also hold governments to account. A secondary aim would be to give Senators institutional incentives to stand up for provincial interests and making the Senate into an institution geared to protect the provinces against federal encroachments, just as the ‘triple-E Senate’ campaign prevalent in Western Canada has in mind. Besides, it would put an end to the current patronage and lack of accountability in the current Senate.

For these reasons, the path forward should be in reforming the Senate. The primary goal should be to prevent the party in government from attaining a majority in that chamber, with a secondary goal of having Senators chosen in such a way that offers some incentive for protecting provincial interests. The aim is to strengthen the position of the Senate vis-à-vis the government of the day in order to limit the existing executive dominance over the system, thus transforming bicameralism into a source of checks and balances in Canada’s constitution. My next post will explore and identify more specifically how this goal would best be fulfilled and what Canadian politics would look like after the change.

(Part 2)

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