Standing Orders and Oral Questions: the UK House of Commons

In part three of our comparison of Standing Orders governing Question Period, we now turn our attention to the mother of all parliaments, Westminster.

While Australia and New Zealand both had very clear rules in place governing their version of Question Period, rules which outline the content of both questions and answers, there are actually very few standing orders in place governing Questions in the UK House of Commons. I think this is an important point. There has been a lot of discussion recently in Canadian political circles about the need for tougher, clearer rules as a means of improving the quality of the Canadian Question Period. Australia has fairly clear rules governing both answers and questions, yet Question Time in Australia can be every bit as loud, raucous and disrespectful as any Canadian Question Period. The UK House of Commons meanwhile has very few actual rules, relying more on accepted practice and conventions, and for the most part, Oral Answers to Questions are very calm, quiet, respectful proceedings. The one exception, of course, is Prime Minister’s Questions (PMQs). Consequently, I think it is very clear that having quite detailed, specific rules in place will not guarantee a better oral questions session; ultimately, it comes down to how Members choose to act during these proceedings, rules or no rules.

The standing orders specifically dealing with Questions are fairly straightforward. What follows will be a discussion of the standing orders which deal with Oral Questions to ministers ONLY. I will not discuss the rules dealing with Urgent Questions or Written Questions.

SO 21(1) outlines when Questions will take place (Mondays, Tuesdays, Wednesdays and Thursdays) after private business and motions for unapposed returns have been dealt with. In the UK, as was the case in New Zealand, Members must table their questions in writing with the Table Office “in a form determined by the Speaker”, we learn in SO 22(1). The UK also uses a rota system for questions to ministers, meaning that the entire cabinet is not present every day for questions. SO 22(5) explains that Members who wish to question a particular minister must submit their questions by a certain deadline as specified by the Speaker, and that only those questions which have been chosen in the “shuffle” will be printed on the Order paper:

(5) Notice of a question for oral answer may be given only for answer on the next day on which the Member to whom it is addressed is due to give oral answers; and in respect of each such day the Speaker shall specify the latest date and time at which notice may be given and how many questions are to be printed for each Member answering; and only that number of notices of questions (selected at random from those received in a manner to be prescribed by the Speaker) shall be treated as valid notices received on the day concerned:Provided that the latest date and time specified by the Speaker shall be such as to enable the notices selected to be printed and circulated
(a) in the case of questions to the Secretaries of State for Northern Ireland, Scotland and Wales and the Advocate General at least four days (excluding Friday, Saturday and Sunday) before the question is to be answered, or
(b) in the case of questions to other Ministers, at least two days (excluding Friday, Saturday and Sunday) before the question is to be answered.

The other standing orders deal with written questions and urgent questions.

The Standing Orders also include a rule on relevancy. Standing Order 42 states:

The Speaker, or the chair, after having called the attention of the House, or of the committee, to the conduct of a Member who persists in irrelevance, or tedious repetition either of his own arguments or of the arguments used by other Members in debate, may direct him to discontinue his speech.

According to Erskine May (24th ed.), the procedural manual of the UK Parliament, there isn’t the stipulation that the rule of relevance in debate does not apply to Questions. A Member’s speech “must be directed to the question under discussion or to the motion or amendment intended to be moved, or to a point of order (May, p. 438).” The Speaker has full authority to intervene when a Member strays from the matter under discussion (p. 452). Indeed, the Speaker has cut off Ministers if their answer was not addressing the main point of the question asked of them. You can see examples of Speaker Bercow doing that to the Prime Minister here and here during PMQs, for example. I will add that I don’t think I’ve ever seen the Speaker cut off a Minister during the other daily Answers to Oral Questions. I’m sure it has probably happened, but the point is that if we leave PMQs out of the equation, the other oral question sessions are conducted in such a way that the Speaker very rarely has to intervene. If and when he does, it is usually to cut off a Minister whose answer has gone on a bit too long. More often than not, the Speaker will simply ask the Minister to try to be a bit more succinct. This is why I think that the regular refrain here in Canada for more and better rules rather misses the point. Yes, the Canadian House of Commons Speaker could be more interventionist to enforce the rules and agreed-to conventions that do exist; but adding more rules won’t necessarily address any of the current problems if Members, both MPs and ministers, aren’t willing to make them work.

While there aren’t many rules governing Questions spelled out in the Standing Orders, there are extensive conventions in place that Members must respect. According to Erskine May, the purpose of a question is “to obtain information or press for action; it should not be framed primarily so as to convey information, or so as to suggest its own answer or convey a particular point of view, and it should not be in effect a short speech.” (p. 358) Questions to ministers must relate to matters for which the minister is officially responsible. A number of decisions by Speakers have defined the interpretation of “ministerial responsibility”. Any of the following will be ruled out of order:

  • questions on statements in the press or comments made by individuals or unofficial bodies;
  • questions on matters under the control of local or other statutory authorities or of bodies or persons not responsible to the Government;
  • questions on evidence of witnesses or other matters before a Royal Commission or parliamentary committee or matters within the jurisdiction of a parliamentary committee;
  • questions on the actions of a minister for which he or she is not responsible to Parliament;
  • questions seeking an expression of opinion on a question of law such as the interpretation of a statute, or of an international document, or a minister’s own powers, etc.
  • questions on matters that are more the responsibility of another minister, or ask a minister to influence the actions of another;
  • questions suggesting amendments to bills before the House or in committee;
  • questions which relate to opposition party policies rather than the Government’s policies;
  • questions on matters which have been devolved to the national assemblies of Wales, Northern Ireland or Scotland.

Erskine May also has a few words to say about answers to oral questions. They should be confined to the points contained in the question. Because the questions are tabled, proposed answers should not be revealed in advance. Ministers may refuse an answer on security grounds. (pp.  366-7).

The Speaker has a great deal of control over the entire questions process. For example, he or she is the final authority as to the admissibility of questions (p. 356). The Speaker can refuse  any question deemed irregular, even if it stands on the Order paper. The Clerks at the Table have full power to sub-edit questions. The Speaker will curb any Member whose question is too long. If a Member asks a question that was “of so general a character as to provide a wide area for supplementaries”, the Speaker will refuse to call Members to ask supplementaries. The Speaker will normally call no more than one Official Opposition front bencher during topical questions because of the expressed view that questions are intended for the benefit of backbenchers. (pp. 366-7).

As I’ve previously stated in other posts, it is difficult to explain why things work so much better in the UK. The political culture is quite different, with British MPs appearing to have a better understanding of, and respect for, parliamentary procedure. I get the impression that they take parliament more seriously. Maybe they have a better understanding of procedure – I don’t know. I can’t prove that this is actually the case, however; it’s just how things appear to be when you watch their proceedings as much as I tend to do. It is also very difficult to compare Canada’s Question Period with Oral Answers to Questions because the procedure in the UK is so very different. I have blogged rather extensively about these differences, but it doesn’t hurt to highlight again some of the things that I think make the British version better.

First, as mentioned above, the UK House of Commons uses a rota for ministerial departments. This means that on most days, only one ministry is being questioned. The larger departments get the full hour to themselves. Smaller departments will share the allotted hour, but not at the same time. For example, most Canadians will be quite familiar with Prime Minister’s Questions, the weekly half-hour during which the UK Prime Minister takes questions. This happens every Wednesday from noon to 12:30. What you might not know is that PMQs is the second half-hour of Wednesday’s one-hour questions slot, which runs from 11:30 to 12:30. PMQs is always preceded by questions to one of four smaller ministries: Scotland, Wales, Northern Ireland or International Development. Other departments will get 40 minutes and then a smaller agency will get the final 20 minutes of questions.

The second thing to understand is that the UK government maintains a clear distinction between the Ministry and Cabinet. Not all ministers are members of the Cabinet. Each department is headed by a Secretary of State, e.g. the Secretary of State for Health, the Secretary of State for Education, etc. They are part of Cabinet. Each Secretary of State will have a number of Ministers of State, who are not part of cabinet, assigned to their department. The number will vary depending on the size of the department, from one to perhaps as many as 7-8. These ministers will usually be responsible for one specific part of the department’s mandate. For example, the Rt Hon Nicky Morgan MP is Secretary of State for Education, and she has five ministers of State and one Parliamentary Under Secretary of State assigned to the Department. When it is the Department of Education’s time to face questions, the only Ministers present will be the Secretary of State, her five Ministers of State and the Under Secretary. No other cabinet minister will be present. In contrast, the Northern Ireland Office has the Secretary of State and one Minister of State, so they will be the only two fielding questions. Because only one department is up for questions at one time, Ministers cannot defer questions to some other minister as occurs here in Canada. There is one exception to my statement that no other cabinet ministers being present except the minister facing questions, and that is for PMQs. During PMQs, most of the cabinet will surround the Prime Minister on the front bench; however, the PM will never defer a question to another minister. If the Prime Minister is not available on a given Wednesday, he or she will delegate PMQs to another senior minister who will answer on his or her behalf. Prime Minister Cameron usually delegates this responsibility to Deputy Prime Minister Nick Clegg, but recently, both Cameron and Clegg were in Scotland on the Wednesday and so House Leader William Hague stood in. If another cabinet minister is away for their department’s oral questions, the other ministers assigned to that department will field all of the questions.

Which MPs get to ask questions is determined by lottery — the shuffle as it is known. All of the questions tabled by MPs for a particular department are shuffled and drawn by lottery. This means that the party whips cannot control which of their MPs will ask questions. They can certainly provide their MPs with questions that they would like to see asked, but they cannot control the outcome of the lottery. Nor can the whips stop any of their MPs from asking questions that are of interest to them. The right to ask a topical question is also determined by lottery. Topical questions differ in that the actual text of the question is not tabled. Or rather, all MPs who want to ask a topical question submit the same question: Will the Minister make a statement on his or her departmental responsibilities. This is an open question, meaning that MPs are then free to ask supplementary questions on any topic that touches on the minister’s departmental responsibilities. Topical questions are asked during the last 15-20 minutes of a question session, but only of the larger ministries. The four smaller ones which share their time slot with PMQs don’t have topical questions, while the first question asked of the PM during PMQs is a topical question, and all other questions are then in essence, supplementaries.

The Speaker has full control over which MPs to call on to ask questions. The order of the main questions drawn in the shuffle is predetermined, but the Speaker controls which MPs he or she will call on to ask supplementaries. The only pre-established “list”, if we can call it that, is that the Speaker will alternate between sides. If the main question was asked by an opposition MP, the Speaker will then turn to the government side for a supplementary, then back to the opposition side, then back to the government side, etc. Sometimes, there may be only members on the government side who stand to ask supplementaries on a given topic, sometimes mostly opposition members. In the end, however, most question sessions result in a fairly even division of questions between both sides of the House. This is so not the case here in Canada.

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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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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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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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A few thoughts on the Liberal Party’s Senate announcement

Much ado this week regarding the Liberal Party of Canada’s announcement that its 32 Liberals in the Senate would henceforth sit as independents, that if and when they form the government, they would set up an independent commission to oversee all future Senate appointments, and that all future Senators appointed that way would be independents.

Regular readers of this blog will know that I have long advocated setting up an independent body to oversee Senate appointments, something modelled on the House of Lords Appointments Commission (HOLAC) which was set up in the United Kingdom in 2000. Consequently, I heartily approve of this initiative. Some comments on Twitter and elsewhere questioned the constitutionality of having an independent commission make the appointments, or more specifically, advising the Governor General on who should be appointed. I don’t see that the process would work that way at all.

If we use HOLAC as our model, the Commission would assess nominations against specific criteria. The nomination process itself would be open to anyone – you could even nominate yourself, as long as you met the criteria. The selection criteria HOLAC uses is quite specific. They seek nominees:

  • with the ability to make an effective and significant contribution to the work of the House of Lords, not only in their areas of particular interest and special expertise, but the wide range of other issues coming before the House;
  • with a record of significant achievement within their chosen way of life that demonstrates a range of experience, skills and competencies;
  • who are willing to commit the time necessary to make an effective contribution to the work of the House of Lords. The Commission recognises that many active members continue with their professional and other working interests and this can help maintain expertise and experience;
  • with some understanding of the constitutional framework, including the place of the House of Lords, and the skills and qualities needed to be an effective member of the House – for example, nominees should be able to speak with independence and authority;
  • who are able to demonstrate outstanding personal qualities, in particular, integrity and independence;
  • with a strong and personal commitment to the principles and highest standards of public life;
  • who are and intend to remain independent of any political party. Nominees and the Commission will need to feel confident of their ability to be independent of party-political considerations whatever their past party-political involvement. For this reason, all nominees are asked to respond to the questions on political involvement and activities which are similar to those used for most public appointments;
  • who are resident in the UK for tax purposes and accept the requirement to remain so.

Of course, we could develop our own criteria for the Senate, but I would hope it would be something along the same lines. The actual appointing of Senators would still be left to the Governor General on the advice of the Prime Minister. The way I would see the process working is quite simple. There is a vacancy for a Senator from the province of Ontario. The Senate Appointments Commission (SAC) reviews nominees from that province, vets them, and comes up with a shortlist of 4 or 5 candidates. That list is provided to the Prime Minister, who would make the final selection from the short-list and advise the Governor General accordingly. To the best of my knowledge, there is nothing in the Constitution governing how the Prime Minister selects an individual for a Senate appointment; consequently, being provided by a shortlist of candidates by an independent commission would not be unconstitutional, and it would certainly be a far more transparent and accountable process than what currently transpires.

The bigger issue is perhaps making the Senate completely non-partisan. I don’t dislike the idea at all, but I also don’t object to appointed Senators having a party affiliation. That said, I do believe that their party affiliation should not be the main reason why they were appointed. In other words, their appointment should not be a partisan decision made for partisan purposes. I also think the Senate would benefit greatly from having crossbenchers, as is the case in the UK House of Lords and the Australian Senate. Crossbenchers aren’t necessarily independents in the way we understand it; in both the UK and Australia, while they do include persons with no party affiliation, they also include persons representing smaller parties (i.e parties which will most likely never form a government).

Some have asked how a future Liberal Government would get legislation passed in a non-partisan Senate. The same way it should expect to get legislation passed now: by presenting good pieces of legislation and being willing to accept amendments proposed by the Senate to improve the legislation.

There is an attitude that seems to be prevail in Canada that a government, in particular one with a majority, must ultimately be able to get its legislative business. That is nonsense. A government is entitled to put its legislative business to the House. It is not entitled to get its legislative business. It has to put its legislative proposals in front of the House of Commons and then the Senate. The job of the House of Commons and the Senate is to scrutinize and process them. Those bills that the government can win a majority for will succeed; those which it cannot will either be amended or defeated. In the House of Commons, if a party forms a majority government, that process is too often a moot point because government backbenchers never dissent. That means it is up to the Senate to fulfill that role. The House of Lords regularly defeats sections of bills (sometimes entire bills) put forward by the government of the day. This is not only accepted, it is expected. The Constitution Unit keeps a running tally of Government defeats in the House of Lords going back to the 2005-2006 session. So that is how legislation would be passed in a non-partisan (or much less partisan) Senate.

Those are my initial reactions. I am fully in favour of an independent appointments commission, and not opposed to, but not entirely sold on, the idea of an entirely non-partisan Senate. Right now, party affiliation is essentially the only reason someone is appointed to the Senate. I personally think that screening candidates by an independent body against specific criteria would mitigate partisanship significantly, and that is why I don’t think it would be necessary to then force individuals to sit as independents. But given that this is all hypothetical at the moment, I reserve the right to change my mind down the road.

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Coalition government: not liked, but expected

A few years ago, I wrote a post exploring why the very idea of  coalition government became such a negative thing in Canada. I’ve also written a number of posts explaining that, in the United Kingdom, coalition government has become the expected outcome in the event of a general election which results in a hung parliament (this being the most recent one).

UK polling firm Ipsos Mori today released its Political Monitor January 2014. Along with the usual data regarding voting intentions and satisfaction with the various party leaders and the economy, there are some very interesting numbers regarding the outcome of future elections.

A majority (51%) of those polled believe that the 2015 general election will result in another coalition government. That belief is strongest amongst Conservative (58%) and Liberal Democrat (66%) supporters. Labour Party supporters are less likely to think that will be the outcome (42%) – most likely because their party continues to lead in the polls.

But while a majority think there will be another coalition government in 2015, that doesn’t mean they like the idea. A strong majority, 60%, believe it’s a bad thing that no party achieved an overall majority in the 2010 election. That percentage has increased gradually since May 2010, when 52% thought it was a bad thing that no party had won an overall majority. And when asked about the 2015 election, 65% of those polled believe it will be a bad thing if that election again results in a hung parliament. Unsurprisingly, Liberal Democrat supporters are the only ones who overwhelmingly think hung parliaments are a good thing (55%). Supporters of the two largest parties, the Conservatives and Labour are equally unenthusiastic about hung parliaments, with only 21% thinking that it’s a good thing if no party wins an overall majority.

Ipsos Mori then asked supporters of each party who their preferred coalition partner would be from amongst the other parties, should the 2015 election result in a hung parliament. Conservative supporters strongly favoured a resumption of the current coalition with the Liberal Democrats (70%). Only 40% strongly supported a coalition with UKIP – assuming of course that UKIP even wins any seats in 2015. Labour supporters were almost equally supportive of a coalition with either the Liberal Democrats (62%) or the Greens (63%). Given that the Greens have only one seat in the current Parliament, and that is unlikely to change much in 2015, a coalition with the Green Party is not very likely. Liberal Democrat supporters actually favoured the Conservatives (65%) over Labour (53%) as coalition partners. That might surprise some. There is wide-spread assumption in the UK that the Liberal Democrats are a left-wing party, one that would more naturally align itself with Labour. I’ve never quite understood why people feel that way – the LibDems have always struck me as a very centrist party, even slightly right-of-centre in terms of economic policy. That their supporters more strongly favour the Conservatives as coalition partners possibly confirms my views. Or it could simply be a reaction to having had to endure a lot of abuse from Labour politicians and supporters since entering into a coalition with the Tories in 2010.

My interest in this is again to point out how the idea of coalition government has become, if not liked, at least accepted in the UK. The political parties and their supporters at least grudgingly acknowledge that it’s not only a viable alternative to single-party minority government in the event of a hung parliament, but perhaps a preferable option. Labour and Conservative supporters would certainly prefer that their party form a majority government on its own, there is no doubt about that. But the current coalition has demonstrated a couple of things: 1) despite constant predictions that it would fall apart, it hasn’t, and 75% of those surveyed believe it will last until May 2015 (only 40% thought that in July 2012); and 2) it has provided stable government during a difficult economic period. In other words, while it hasn’t always been pretty, the Conservative-Liberal Democrat coalition government has worked. And ultimately, isn’t that what matters most?

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Collective ministerial responsibility: a brief history

I am currently engaged in a fairly major research project, which requires that I delve into many older texts looking at the evolution of parliament and its many conventions and procedures. One such book is A.H. Birch’s Representative and Responsible Government: an Essay on the British Constitution, which was published in 1964.

Birch provides a very interesting history of how the convention of collective ministerial responsibility evolved.

The convention of collective ministerial responsibility holds that the Cabinet is collectively responsible to the people, through the Parliament, for determining and implementing policies for national government. Broadly, it is required by convention that all Ministers must be prepared to accept collective responsibility for, and defend publicly, the policies and actions of the Government. Part of this, of course, requires that the loss of a want of confidence motion or on a major issue – such as the Budget -  is expected to lead to the resignation of the whole Government.

According to Birch, the idea or concept of collective responsibility was advocated as early as 1739, when then Prime Minister Robert Walpole told the House of Commons that the ministry should be accountable to Parliament, and when he was defeated in a Parliamentary vote in 1742, he resigned. However, Birch argues that it was only with the passage of the Reform Act of 1832 that the convention was firmly established.Three developments were necessary for this to occur:

  1. the effective unity of the cabinet;
  2. the effective control of the cabinet by the Prime Minister; and
  3. the understanding that if the cabinet were defeated in Parliament on a major issue or a vote of confidence, the Prime Minister would have no choice but to resign or ask for a dissolution.

We take the first two points – that the cabinet is united and that the PM controls the cabinet – for granted today, but as Birch explains, this was not always the case. Birch suggests that cabinet unity was established between 1780 and 1815. The first collective resignation of a ministry occurred in 1782. William Pitt, Prime Minister from 1783 to 1800, did “a great deal to develop the convention that cabinet ministers, whatever their private disagreements, should present a united front.” For example, he secured the resignation of the Lord Chancellor in 1792 after the latter had criticized the PM’s policies in the House. In 1812, “an attempt to form a government drawn from opposed groups was rejected as ‘inconsistent with the prosecution of any uniform and beneficial course of policy’.” Birch argues that since 1815, public disagreements between ministers have been rare, even though political memoirs and other sources make it clear that private disagreements were (and are) quite frequent. Birch also writes that since 1832, “there has been no occasion on which cabinet ministers have disagreed in public.” Of course, Birch wrote this in 1964. There have been a number of fairly public disagreements within the current UK Government, but given that it is a coalition government, this is perhaps not surprising (although in fairness, many of the disagreements have been between ministers from the same party and not conflicts between Liberal Democrat and Conservative ministers). It is an issue of concern for some, however; it is one of the key points being studied by the House of Lords Constitution Committee during its inquiry into the constitutional implications of coalition government.

The powers of the Prime Minister within the British and Canadian political structure have developed in recent decades to such an extent that some political analysts now refer to these countries as having a Prime Ministerial government rather than a Cabinet government. As Birch points out, the situation used to be very different. According to Birch, it was only when William Pitt became Prime Minister that the position of Prime Minister became ascendant over that of the monarch, facilitated in no small part by the declining mental health of George III. Prior to 1783, the position of Prime Minister was overshadowed by the power of the monarch. Cabinet ministers were “the King’s ministers”: they had separate access to the King and more importantly, perhaps, the King could actually dismiss a prime minister and appoint one of his former colleagues in his place. William IV, who succeded George III, did not make any attempt to yield the same sort of power over cabinet that George III had. When the young Victoria ascended to the throne in 1837, at age 18, she and Prime Minister Lord Melbourne developed a close relationship, with the prime minister tutoring the new queen in government and politics. From that point forward, the Prime Minister was in control of the cabinet.

The final necessary development was the understanding that the Prime Minister should resign or ask for a dissolution if his or her ministry is defeated in Parliament. This understanding did not exist when Pitt became Prime Minister in 1783, and indeed, he refused to resign during the first few years of his ministry despite many defeats in Parliament. Attitudes gradually changed, however; in 1830, Wellington resigned when his ministry lost a vote and faced another one on a much more important motion. After the passage of the Reform Act of 1832, “it quickly became regarded as axiomatic that the government must respond to a Parliamentary defeat on a major issue.”

Thus, between Pitt’s appointment in 1783 and the passage of the Reform Act of 1832, the three conditions necessary for the establishment of of the convention of collective responsibility fell into place. And it was strengthened in no small way by the nature of party politics at that time. Party discipline in Parliament was very weak – bordering on non-existent. As Birch explains, between the first and second Reform Acts (1832-1867):

the question was not one of discipline, for the means to enforce this did not yet exist: the question was one of the influence that leaders could bring to bear on their Parliamentary supporters. And, as Bagehot noted in 1867, ‘the power of leaders of their followers is strictly and wisely limited: they can take their followers but a little way, and that only in certain directions.

Indeed, during that time period, several party leaders would change sides between one ministry and the next.

It was against that background, during the middle decades of the 19th century, that the collective responsibility of the cabinet to Parliament because a central feature of British politics. Between 1832 and 1867, ten governments were brought down by defeats in the Commons. In eight of these instances, the Prime Minister resigned and in the other two cases, he sought and was granted a dissolution. More interestingly, perhaps, is that not one government lasted the entire life of a Parliament, from one general election to the next. The House of Commons truly was, as Bagehot noted, “a real choosing body; it elects the people it likes. And it dismisses whom it likes too.”

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