Government Politics

“The Reform Act”: some thoughts

Canadian Conservative MP Michael Chong today introduced Bill C-559 “An Act to amend the Canada Elections and the Parliament of Canada Act (reforms)“, otherwise known as the Reform Act. When news of what the bill would propose broke several days ago, it immediately sparked great excitement among columnists and politics fans alike. Some hailed it as the bill that would save Parliament; others were more subdued, calling it “a solution in search of a problem“.

The bill proposes three reforms. First, it would remove the existing requirement that a party leader sign the nomination papers of prospective candidates for that party. Second, it would allow a caucus to implement a leadership review upon a petition of 15% of the elected members and a secret ballot vote garnering over 50% support. Lastly, it will allow caucuses to elect their chairs and admit and eject caucus members based on the 15/50% rules employed to trigger a leadership review.

These are all interesting proposals, and in order to avoid an epically-long post, I will deal with them separately. This first post will focus on the second point, allowing a party caucus to implement a leadership review upon a petition of 15% of elected members and a secret ballot vote garnering over 50% support.

Specifically, Chong’s bill would amend subsection 366(2) of the Elections Canada Act by adding a new sub-clause. This section of the act governs the criteria that must be met in order for a political party to become a registered political party. Chong’s proposal would amend the application for registration to include the following:

(k) the extract of the party by-laws that provides that
(i) a leadership review may be initiated by the submission of a written notice to the caucus chair signed by at least 15% of the members of the party’s caucus,
(ii) a leadership review is to be conducted by secret ballot, with the result to be determined by a majority vote of the caucus members present at a meeting of the caucus, and
(iii) if a majority of caucus members present at the meeting referred to in subparagraph (ii) vote to replace the leader of the party, a second vote of the caucus shall be conducted immediately by secret ballot to appoint a person to serve as the interim leader of the party until a new leader has been duly elected by the party.

This is actually standard procedure in other countries such as the United Kingdom, Australia and New Zealand, where such measures are incorporated not into legislation, but in political party constitutions. For example, in the UK, under Conservative Party rules, a leadership review is triggered if 15% of Conservative MPs call for a no confidence vote in the leader. The Labour Party has a slightly higher threshold. It requires that 20% of Labour MPs express that they no longer have confidence in the leader. The Liberal Democrats have set the highest bar for a leadership review. According to the Lib Dem constitution, a vote of no confidence must be passed by a majority of all Members of the Parliamentary Party in the House of Commons or the receipt by the President of the Party of a requisition submitted by at least 75 local party associations.

While many commentators, even before they saw the bill, endorsed this proposed reform, others were less convinced that it was needed. Dale Smith wrote:

The provision around leadership review is also something that cannot be taken as anything other than a half-measure, and one that misses the target.  MPs already have the power to challenge a leader, and most especially a Prime Minister.  We’ve seen several provincial examples of opposition caucuses pressuring their leaders to resign, and the removal of a Prime Minister is one of the most important built-in functions of our system of Responsible Government, and that is that if they are unhappy with the status quo, they can simply withdraw confidence. After all, Responsible Government depends entirely on the Prime Minister having the confidence of the Chamber. If enough government MPs decide that it’s time for the leader to go, they can join in a vote of non-confidence — no need for a call for a leadership review that gives the PM time to organize one and to consolidate support for the vote.

I have a few problems with that statement. First, I strong object to this line from Smith’s piece:

… the removal of a Prime Minister is one of the most important built-in functions of our system of Responsible Government, and that is that if they are unhappy with the status quo, they can simply withdraw confidence. After all, Responsible Government depends entirely on the Prime Minister having the confidence of the Chamber.

Responsible government – or more specifically, the confidence convention, rests on the Government having the confidence of the House. While many might argue that for all intents and purposes, the Prime Minister IS the Government, that is too simplistic. There isn’t a single procedural manual which discusses the confidence convention in terms of the Prime Minister maintaining the confidence of the House – only the Government. In terms of the confidence convention, who is Prime Minister doesn’t really matter. A governing party can change its leader at any point during its mandate and this will not necessarily impact the Government’s ability to maintain the confidence of the House. In Canada, Liberal Prime Minister Jean Chrétien was replaced by Paul Martin, and the Government continued to enjoy the confidence of the House. In the UK, Labour Prime Minister Tony Blair was replaced by Gordon Brown, and Labour continued to enjoy the confidence of the House. Granted, in both of these instances, the governing party held a majority of the seats, making it very difficult, if not impossible, for the House to withdraw confidence without a significant number of members of the governing party also withdrawing support, but it still serves to illustrate the point that it is the Government that must maintain confidence and it can do so even if the Prime Minister changes.

My second issue is with Smith’s suggestion that a party wanting to change its leader could use an Opposition want of confidence motion to affect that change. I simply don’t see how that would work. First of all, it is not inconceivable that  a caucus might be increasingly unhappy with their current party leader, while still being quite satisfied with their party forming, or being a part of, the Government. If members of the governing party who were unhappy with their current leader did what Smith suggests – simply remove confidence from the Government (with the support of the Opposition parties), I don’t see how this would necessarily lead to a leadership change for that party because of how the confidence convention works in Canada.

When a House withdraws confidence from a Government, traditionally, the various procedural manuals will tell you that the Government has two options: it can resign, and another Government can take its place, or the Prime Minister can seek dissolution. In Canada, that first option is very rarely, if ever, considered. When a Government is defeated on a confidence vote, the Prime Minister will almost always seek to have Parliament dissolved and a new election called. A new election will take place almost immediately. For example, on 25 March 2011, the minority Conservative government was defeated on a want of confidence motion. The defeated Prime Minister met with the Governor General the next day to ask that Parliament be dissolved, and the writs were issued on the 26th. The vote took place on 2 May 2011, which resulted in the Conservatives winning a majority of the seats in the House of Commons. While no Conservative MPs voted against their party to indicate that they too had lost confidence in the Government, even if they had used it as an excuse for a leadership vote, the reality of the situation is that the party would not not have  had time to have a leadership convention following the Government’s defeat.

Using a want of confidence motion is simply not a viable option to ensure leadership change. The disgruntled caucus members who might attempt to use a confidence motion to rid themselves of a leader will find themselves in an election campaign with the same leader. Perhaps a leadership review might be held following the election (and most certainly would be if the party were defeated at the polls), but if the party is returned to power with an even stronger mandate, wouldn’t that simply reinforce the leader’s position, making it that much more difficult for caucus members unhappy with the leader to challenge him or her?

In her piece on Chong’s bill, Alice Funke wrote:

the Bill would formalize in legislation a party caucus’ ability to call for and effect a leadership review. I say formalize, because there is nothing in the law currently preventing party caucuses from doing this very thing now, and indeed they have done so frequently in our current system: Joe Clark was pushed into a leadership review, Michel Gauthier was pushed out as leader by the Bloc Québécois caucus, a good part of Stockwell Day’s caucus left him and the Canadian Alliance and joined the remainder of the Tories instead. And a significant group of Paul Martin backers were hatching plots to oust Jean Chrétien as Liberal leader and Prime Minister.

(…)

So, it’s not that a caucus CAN’T call for a leadership review or push a leader out, it’s that they apparently won’t, and/or they don’t. I fail to see how enacting legislation formalizing this authority gives them any more actual power to do so, or makes them any more accountable back home for not showing some backbone.

This is true – caucuses can exert enough pressure on a leader to force them to step down. However, as far as I can tell, none of our parties have specific processes in place outlining exactly how this is to be done. As stated above, the main political parties in the United Kingdom all to have very specific rules in their Constitutions allowing for the party caucus to express lack of confidence in their leader and potentially trigger a leadership change. The existence of these rules does make politics in the UK more interesting – hardly a week goes by without some report in the media that Tory MPs are edging ever closer to the magic number of 46 MPs required to challenge David Cameron’s leadership. But while perhaps generating more media attention, this doesn’t mean that caucuses in the UK regularly challenge their leaders. There were a number of attempts to oust Gordon Brown as leader of the Labour Party, which all failed. Despite regular rumours in the media, David Cameron’s leadership of the Conservative Party has not yet faced an actual challenge. The most recent Liberal Democrat leadership challenge occurred in 2006, when Charles Kennedy resigned once he realised he no longer had the support of most of his caucus.

Australian political parties also allow the caucus to oust a party leader. Labor most famously ousted its leader and Prime Minister Kevin Rudd in 2010, replacing him with Julia Gillard. Gillard herself was unsuccessfully challenged by Rudd in early 2012, again in March 2013, and again, successfully, in June 2013. As they say, third time’s the charm.

What is interesting here is that after Rudd regained the leadership, he got Labor to change its rules. Virtually insurmountable barriers now exist to such overnight challenges. Under the new rules, a leadership ballot aimed at removing a Labor prime minister can only take place if 75% of caucus members sign a petition—and only on the basis that the leader has “brought the party into disrepute.” Under the new rules, even when the Labor Party is in opposition, its leader can now only be challenged after a petition signed by 60% of caucus members. Another new election procedure will, for the first time in the party’s 122-year history, let party members vote for their leader. The Labor leader will now be selected by a ballot of all caucus members combined with a ballot of the party’s members, with each ballot having a 50 percent weighting in determining the final outcome.

This is another important difference to note between how party leaders are chosen in Canada, and how they are chosen in other countries. In Canada, party members as well as MPs, vote in leadership conventions. In other jurisdictions, party members either have no say at all – only the caucus – or they have very limited input. Dale Smith explains why this is problematic for Michael Chong’s proposed caucus leadership review reform:

The larger problem there is that we need to re-examine the way that we elect leaders in this country, because the status quo allows them to be shielded under a rubric of “democratic legitimacy” — that the membership chose them, and because of that, the caucus cannot remove them.  We need to return to the system whereby it is the caucus that chooses the leader, and it is the caucus that removes the leader.  Best of all, it eliminates the months-long leadership races, no-hope candidates outside of caucus who are simply trying to make a name for themselves, and the rudderless limbo that parties find themselves in.

Alice Funke points out another problem:

The one bad thing formalizing this authority in law might accomplish is to exacerbate regional tensions further, given that until recently most Canadian political parties have had regional bases of support and regional wastelands. Taking control away from delegates to party conventions, or even from party members (and now party supporters), means taking authority away from nationally representative deliberative bodies, and putting it into the hands of a potentially regionally unbalanced caucus.

This is a legitimate concern, but I don’t think it is insurmountable. Inevitably, all party leaders will appeal more to some parts of the country than others. The UK Conservatives, for example, are virtually shut out of certain parts of England (largely the north) and Scotland, where they have only one MP. However, this “problem” wouldn’t be a problem if some form of PR were to be adopted to replace FPTP. I think ensuring a solid chain of political accountability matters more: “citizens elect MPs, and their MPs not only influence policies but also hire and fire leaders to implement them.”

There is an alternative to what Smith proposes when he writes: “We need to return to the system whereby it is the caucus that chooses the leader, and it is the caucus that removes the leader.” Parties could implement a hybrid system such as the one used by the UK Conservative Party, which limits the initial rounds of a leadership vote to the caucus, but brings in the party membership to decide between the final two candidates. Simply put, following a successful leadership challenge, members of caucus will put themselves forward for the position of party leader. If there are more than two candidates, the caucus votes. If no candidate receives a majority of the vote, the candidate with the lowest vote tally drops out. This is repeated until the choice is down to two candidates. At that point, postal ballots are sent to all registered party members to let them vote on the two remaining candidates.

Chong’s proposal certainly deserves much debate, but as has been pointed out, it will create conflict with our existing means of selecting party leaders. Whether the answer is to remove party members from the process completely and leave leadership selection and deselection to caucus only, to to try to find some compromise between the two, I don’t know. That too is something which will require consideration.

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  • Karen Krisfalusi

    “This is actually standard procedure in other countries such as the
    United Kingdom, Australia and New Zealand, where such measures are
    incorporated not into legislation, but in political party constitutions.”

    Do you see an issue with the fact that the Reform Act 2013 drafts the constitutions of political parties into the Canada Elections Act? Isn’t that just bad form? Or is it the only way the sponsor of this bill can put his ideas out there for debate? I actually think Michael Chong expects his proposals to be completely reworked into a “Political Parties Act”. That is, the government would hard pressed to agree to expand the legislative scope of the Canada Elections Act to govern the conduct of MPs outside of elections. Stripped bare of campaign finance laws the Canada Elections Act only regulates political parties during elections. The mandate of Elections Canada really doesn’t include partisan politics! Elections Canada is independent of the government in order to preserve free and fair elections in Canada. So we’re back to bad form. Why does the Reform Act 2013 draft political party constitutions into legislation that can’t accommodate that?

    • http://thoughtundermined.com Radical Centrist

      Hi,

      I personally would prefer to see parties voluntarily adopt such measures (or ones tailored to their own needs but that accomplish the same goals), rather than legislate it. I do understand why Chong is seeking legislation – it would be the only way to guarantee that the parties played along. Andrew Coyne has written a piece arguing that it’s perfectly justifiable to legislate this sort of thing since we already legislate so much of how parties can function (and the Elections Act doesn’t just regulate parties during elections – it’s more controlling than that already).

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