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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On programming motions

Maclean’s Aaron Wherry’s recent column looks at the current Canadian government’s extreme fondness for using time allocation to speed passage of its legislation through the House of Commons. I strongly urge everyone to read it.

What I found particularly interesting in the piece was the Government House Leader’s justification for use of time allocation. In essence, they are using it to, in his words, schedule how legislation proceeds through the various stages:’

There’s no doubt we have used it as a scheduling device, not as a limiting of debate device. So, yeah, we’ve tried to change the culture around it, the whole meaning of it and what it does. In the past, I think, while it was intended when drafted as a scheduling device, the way it was used in practice, and the rhetoric around it, had meant that it was for shutting down debate.

The Government House Leader is a bit confused. Time Allocation was always meant to be a means (ideally of last resort) of curtailing debate, not as a means of scheduling a bill’s progress through the House. Going by the above quote, what the Government is trying to do is use time allocation as a programming motion.  Perhaps it would make more sense then for the Canadian House of Commons to adopt a new procedure, namely, programming motions similar (or identical to) those used in the UK House of Commons?

No one disputes the reality that time is limited in the House of Commons, and that a sitting Government does have the right to get its business before the House. However, some pieces of legislation will go over less well than others. As noted in Erskine May, to secure the passage of particularly important and controversial pieces of legislation, a government may face a series of difficult choices:

1) taking special powers to curtail debate;
2) cutting down their normal programme to an undesirable extent;
3) prolonging the sittings of Parliament; or
4) acknowledging the impotence of the majority of the House in the face of resistance from the minority. (May, p. 468)

Before 1997, when faced with such a situation, UK governments would resort to allocation of time motions, or as they are more commonly called over there, guillotine motions – a much more appropriate expression, in my view. However, since 1997, use of the guillotine has been replaced by programming of bills. Introduced at first on a pilot basis following a report of the Committee on the Modernisation of the House of Commons, it was enshrined in the standing orders in 2004. Since then, programming has become an established and broadly accepted feature of the transaction of Parliamentary business. In recent testimony before the House of Commons Procedure Committee, the Government stated that “There now appears to be a clear majority view in the House that, in principle, programming is beneficial to the scrutiny of legislation.” The Opposition concurred, saying they “support its continued use. In opposition we have sought through the usual channels to make programming work by acknowledging the executive’s need to manage the legislative timetable while censuring sufficient opportunity is available for members to scrutinize legislation.” (Procedure Committee, Third Report of Session 2013-14) The majority of government bills are now programmed.

The differences between time allocation and programming motions might appear minor at first glance, but they are very different procedures. Time allocation motions have one purpose, and that is to cut off debate – hence why they are called guillotine motions. They are normally moved during 2nd reading debate, but after a fair bit of debate has occurred, not right at the outset of 2nd reading debate, as has been the case here in Canada of late.

Programme motions cannot be applied to 2nd reading debate. That is perhaps the most important difference. They are used to guide the progress of a bill through the committee stage, consideration (report) stage and 3rd reading. However, while they can’t be used to curtail 2nd reading debate, notice of programme motions must be given before 2nd reading and they are moved immediately after 2nd reading begins. The programme motion is then voted on, and once adopted by the House, becomes a programme order.

When a programme order covers proceedings which take place in the House itself (committee of the whole House, consideration (report stage) or third reading), a programming committee is appointed, consisting of the Chairman of Ways and Means (the Deputy Speaker) and up to eight other members, nominated by the Speaker. The function of the committee is to divide the bill into various parts and  allot to each part such time as it considers appropriate. This is very important. While the Government determines how much total time will be allocated for consideration of the bill at each stage covered by the programme order, how that time is used is not controlled by the Government. A committee of MPs nominated by the Speaker determine how the time will be used. Proceedings in the programming committee are limited to two hours. The House may debate the programming  committee’s resolution for up to 45 minutes and, if it is agreed to, it has effect as if it were included in the programme  order.

What is interesting about the process in the UK is that if the Government cannot get its programming motion passed, it might opt to abandon the bill if it believes trying to move it through the House without a formal programming motion will take up too much of the House’s time. That is what happened with the House of Lords Reform bill earlier in the current Parliament. House of Lords reform, like Senate reform here in Canada, is one of those issues that pretty much everyone agrees is needed, but there is little agreement on which way to proceed. Consequently, the Coalition Government went to great lengths with this particular bill. They first produced a draft bill in May 2011, and on 23 June 2011, set up a Joint Committee made up of 13 peers and 13 MPs to study the bill in draft form. The Committee heard evidence over the course of the next several months, and reported on the bill in April 2012 – almost a year later. Based on the committee’s recommendations, the Government than produced a final bill which had 1st reading in the House of Commons on 27 June 2012. Second reading debate began on 9 July 2012, and the programme motion was tabled on 10 July. However, there was strong opposition to the programme motion from an alliance of Labour MPs and Tory rebels and the Government, sensing that the programme motion was unlikely to be adopted by the House, dropped it. The bill itself received 2nd reading with strong support (462 votes to 124, a majority of 338) but 91 Conservative MPs voted against it. Without the programme motion, the bill would have faced an incredibly bumpy ride. Faced with this reality, the Government essentially abandoned the bill – and it was formally withdrawn in September 2012.

It might seem ridiculous to some that the Government would abandon a bill into which it had invested so much time and effort simply because it had to drop its programming motion, but despite having sent it in draft form to a committee for pre-legislative study, the bill remained a very controversial one, and the Government feared it would simply tie up the House and detract from the rest of its legislative program. Could it have used guillotine motions to force the bill through? It would have been highly unlikely that any vote on a guillotine motion would have succeeded. Unlike here in Canada, UK Governments cannot count on 100% of their backbenchers supporting them all of the time. As stated above, there was significant dissent among Conservative backbenchers over the very issue of Lords Reform. Also, using time allocation would have been contrary to how business is normally conducted in the House. A majority of MPs on both sides of the House would probably have objected to the Government resorting to guillotine motions. Since programme motions have become standard practice, guillotine motions have become an endangered species.

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More on electing committee chairs

In my previous post, I wrote about the recent election of the new chair of the Select Committee on Health which occurred last week in the UK House of Commons. Dr. Sarah Wollaston was elected by her fellow MPs, winning on the fourth count over four other contenders for the post.

The BBC’s Parliamentary correspondent, Mark D’Arcy’s recent column warns that some Conservative MPs aren’t too happy that Dr. Wollaston won the election. Ms. Wollaston, he explains, “has never been an identikit party trooper.” She was the first Conservative MP chosen via open primary, and has always been very independent as an MP. In fact, she was highly critical of her Government’s original NHS reforms as proposed in the Heath and Social Care Bill back in 2011. Some Conservatives, according to Mr. D’Arcy, fear that having such an independently-minded Conservative heading the committee could be embarrassing for the Government should any major issue involving the country’s health services arise over the course of the final year of this parliament. They also think that this independence is why Dr. Wollaston has so much support from Labour MPs. Because of this, some Conservatives:

are starting to suggest that their party should have some kind of primary process to decide its favoured candidates before the election is thrown to the whole House, or that the election itself should be restricted to MPs from the party which holds the particular committee.

Now for the non-regular readers of this blog, and for those not familiar with how the UK House of Commons chooses committee chairs, let me explain why the above quote is worrisome. Chairs of select committees (the equivalent of Standing Committees here in Canada) are elected by the whole House – by MPs. The chairships are divided amongst the major parties at the outset of a new parliament, in proportion to each party’s share of seats in the House of Commons. This in itself is a major departure from how we do things in Canada. In the Canadian House of Commons, the government party chairs almost every single committee. In the current parliament, 22 of the 26 — 84% of the Standing Committees — are chaired by Conservative MPs, even though the Conservatives hold only 52% of the seats in the House of Commons. The Official Opposition chairs the other four, and the third party Liberals, despite holding 11% of the seats, don’t chair any. This isn’t the case in the UK House of Commons. There are 38 select committees in the UK House of Commons; the Conservative Party chairs 20 (53%), Labour chairs 14 (37%) and the Liberal Democrats chair 4 (10%). This is comparable to their representation in the House where the Conservatives hold 47% of the seats, Labour 40% and the Liberal Democrats 9%. The parties decide amongst themselves which party will chair which committee, although traditionally, the Public Accounts Committee is chaired by the Official Opposition and the Liberal Democrats always take International Development.

The Health Select Committee was allocated to the Conservative party, and thus when the former chair stepped down, only interested Conservative MPs were eligible to put themselves forward as candidates to replace him. However, following the election of two very independent-minded Conservative MPs, Dr. Wollaston at Health and, earlier this year, Rory Stewart at Defence, some within the Conservative party want to control the process of who becomes a committee chair. One way, according to Mr. D’Arcy’s article, would be for the Conservative caucus to decide by some process which of their MPs could stand for election for the post of committee chair. This would, in theory, allow the party (aka the party leadership) to weed out any MPs who are less keen on toeing the party line. Alternatively, any Conservative MP could put themselves forward as a candidate, but rather than the whole House voting to elect the Chair, the vote would be limited to  Conservative MPs (and one assumes they’d want the same process to apply to the election of chairs from other parties – limiting the vote to members of that party only). That would prevent the other parties from backing a candidate that they favour. Suffice it to say that either option completely undermines the entire point of having elected committee chairs and would reverse this very important procedural reform by putting the committee system back under the control of party whips.

However, not all Conservative MPs want the process to change. Mr. D’Arcy heard from a fair number who said they voted for Dr. Wollaston because she is independent-minded and won’t hesitate to criticize the government (and their own party) if that criticism is warranted.

Canadians may not be aware that a Canadian Conservative backbencher, Brad Trost, has successfully moved a motion ordering the Standing Committee on Procedure and House Affairs to study the matter of elected committee chairs. Trost was inspired by the reforms adopted by the UK House of Commons; however, his proposal falls short (in my view) because he does not also recommend distributing the chairships more proportionally among the parties. I don’t know why the government party has almost complete control of the committees here in Canada, but this is something that should be changed. As I mentioned above, in the Canadian House of Commons, the government party chairs almost every single committee. In the current parliament, 22 of the 26 — 84% of the Standing Committees — are chaired by Conservative MPs, even though the Conservatives hold only 52% of the seats in the House of Commons. The Official Opposition chairs the other four, and the third party Liberals, despite holding 11% of the seats, don’t chair any. If the chair positions were divided more proportionally, the Conservatives would chair 14 committees rather than 22, the NDP 8, the Liberals 3 and the Bloc Quebecois 1. But of course, in our system, the BQ can’t chair a committee because they aren’t “recognized” as a party, failing, as they do, to have the magic number of MPs required to be considered a party in the House. And because they don’t meet this magic number, not only are BQ MPs denied the right to chair a committee, they can’t even be members of a committee. This is another thing that we do horribly wrong – the entire concept of “officially recognized party” needs to be tossed out the window.

But that, my friends, is perhaps a post for another day.

(Note: for those interested, Mr. Trost’s motion on electing committee chairs was debated on two occasions, first on October 21 2013, and then again on January 29 2014.)

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New committee chair elected

SarahWollastonMPThe UK House of Commons today elected a new Chair of the Select Committee on Health.

Regular readers of this blog will know that chairs of select committees are elected by the whole House. This is a relatively new development – the reform was adopted at the end of the previous Parliament and implemented for the first time in May 2010, at the start of the current Parliament. By all accounts, it has proven to be a very positive change; select committees have gained a lot of respect and they are seen to be more beholden to the House rather than to party whips.

Committee chairships are allocated among the three main parties roughly in proportion to their representation in the House, unlike here in Canada, where the party which forms the government chairs all but three committees. The Health Committee is chaired by a Conservative, and thus the House had a choice of four Conservative MPs who put themselves forward as candidates: Charlotte Leslie, Dr. Phillip Lee, Dr. Sarah Wollaston and David Tredinnick.

The House uses the Alternative Vote to elect Committee chairs, meaning MPs rank the candidates on the ballot in order of preference. It took four stages of counting before one candidate ended up with the required 50% + 1 of the votes in play, and in the end, Dr. Sarah Wollaston was elected Chair.

Dr. Wollaston is a very interesting person for another reason. Before becoming the Member of Parliament (MP) for Totnes in 2010, she was the first person to be selected as a parliamentary candidate for a major British political party through an open primary, in which she emphasised that she was an outsider to politics, who had worked a ‘real job’. She won the nomination for the Conservative candidature and at the general election won the seat with an increased Conservative majority.

This is how the announcement of the results played out in the House this afternoon:

Mr Speaker: I will now announce the result of the ballot held today for the election of a new Chair of the Select Committee on Health. A total of 433 votes were cast, with two spoilt ballot papers. The counting went to four stages and 421 valid votes were cast in the final round, excluding those ballot papers whose preferences had been exhausted. The quota to be reached was therefore 211 votes. Dr Sarah Wollaston was elected Chair with 226 votes. The other candidate in that round was Dr Phillip Lee, who received 195 votes. Dr Wollaston will take up the post immediately. I warmly congratulate her on her election. The results of the count under the alternative vote system will be made available as soon as possible in the Vote Office and published on the internet for public viewing.

Dr Sarah Wollaston (Totnes) (Con): On a point of order, Mr Speaker. I thank my right hon. Friend the Member for Charnwood (Mr Dorrell) for his exemplary leadership of the Health Committee for more than four years. That leadership has been widely respected. I thank him for everything that he has done on behalf of patients, acting, as he has done, as their voice. The NHS touches people’s lives a million times every 36 hours. It is the most extraordinary achievement and also the most extraordinary challenge. The new chief executive of NHS England has called on everyone in the NHS to think like a patient and act like a taxpayer. The role of the Select Committee is to ask those challenging questions on behalf of patients and taxpayers so that this most cherished institution can continue to be there for all of our constituents when they need it the most.

Mr Speaker: I thank the hon. Lady for her words.

Dr Phillip Lee (Bracknell) (Con): Further to that point of order, Mr Speaker. I congratulate my hon. Friend the Member for Totnes (Dr Wollaston) on her success in the election. I know that she has the knowledge and, above all and perhaps more importantly, the wisdom to be a very good Chair of the Health Committee and I wish her all the very best.

Mr Speaker: I thank the hon. Gentleman for his gracious words.

Chris Bryant (Rhondda) (Lab): On a point of order, Mr Speaker. I know that you know that parliamentary procedure says that we should not be allowed to applaud in this Chamber, but might not this be the kind of occasion when the Speaker abolished the rule and allowed applause?

Mr Speaker: There is an old adage that was taught to me by the hon. Member for New Forest East (Dr Lewis) some 30 years ago that if one is intent upon a particular course of action, one should never give a bureaucrat a chance to say no. I think that I will leave it there for today.

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Australia might be headed for a double dissolution

Australia-VotesAustralia, like Canada and the United Kingdom, has a bicameral parliament, meaning it consists of two Houses, the lower house, the House of Representatives and the upper house, the Senate. Unlike Canada and the United Kingdom, however, Australia’s upper chamber is elected.

The House of Representatives normally lasts no more than three years. Senators, however, are elected for six-year terms. This means, that, under normal circumstances, when the House of Representatives is dissolved every three years for a new general election, the Senate continues to exist as Senators remain in office until the completion of their term and only half stand for election at any one time.

The most recent general election in Australia occurred on 7 September 2013. The House of Representatives was dissolved, and 40 of the 76 Senate seats were also contested.

Australia’s Constitution does allow for dissolution of the Senate, but only under very specific circumstances. This provision is called a double dissolution.

Double Dissolution

In Australia, as is the case in Canada and the United Kingdom, legislation must pass both Houses of Parliament before it can receive Royal Assent and become law.

In the UK, once a bill has passed third reading in both Houses, it returns to the House where it was introduced for the second House’s amendments (proposals for change) to be considered. Both Houses must agree on the exact wording of the Bill.

If the Commons makes amendments to the Bill, the Lords must consider them and either agree or disagree to the amendments or make alternative proposals. If the Lords disagrees with any Commons amendments, or makes alternative proposals, then the Bill is sent back to the Commons. A Bill may go back and forth between each House until both Houses reach agreement. This is usually referred to as the “ping pong” stage. In exceptional cases, when the two Houses do not reach agreement, the Bill falls. If certain conditions are met, the Commons can use the Parliament Acts to pass the Bill, without the consent of the Lords, in the following session.

The process is similar in Canada. The Senate often makes amendments to bills, some of which involve corrections to drafting errors or improvements to administrative aspects. The House normally accepts such amendments. If the House does not agree with the Senate amendments, it adopts a motion stating the reasons for its disagreement, which it communicates in a message to the Senate. If the Senate wishes the amendments to stand nonetheless, it sends a message back to the House, which then accepts or rejects the proposed changes. If an agreement cannot be reached by exchanging messages, the House that has possession of the bill may ask that a conference be held, although this practice has fallen into disuse, with the last one occurring in 1947. Over the years, the exchange of messages and the appearance of Ministers before House and Senate committees have considerably reduced the need for this procedure. If no agreement between the two houses is reached, the bill remains on the Order Paper where it dies at the end of the session; no new bill may be introduced in the Commons on the same subject matter and containing similar provisions.

As stated, the Canadian Senate and the UK House of Lords are not elected bodies, therefore, these upper chambers will tend to recognize the primacy of the elected chamber. In Australia, because Senators are elected, the situation is more complex.

When the government does not have a majority in the Senate a situation can arise that the two Houses disagree over proposed legislation. In most cases compromises are reached and amendments are made by one or the other House until the bill concerned is in a state acceptable to both.

However, there have been occasions when no agreement could be reached between the two Houses. The Constitution provides the double dissolution mechanism as a means of breaking a deadlock between the Houses when such compromise is not achieved.

In effect the legislation may be put to the people, presenting the electorate with the opportunity to change the composition of the Senate following a full Senate election. There is also of course the possibility of a change in the composition of the House (i.e. a change of Government)—the deadlock may be broken in either direction.

If, after a double dissolution and elections for both Houses, the Houses continue to disagree on the same bill, the Governor-General may convene a joint sitting of both Houses to enable the members of both Houses to vote together to resolve the matter. The House of Representatives has almost twice as many Members as the Senate, consequently a joint sitting is likely to see the will of a majority of the House overcome Senate resistance.

There have been only six double dissolutions; the last occurred in 1987.

Current Situation

The Liberal/National Coalition campaigned on a promise to (among other things) repeal the previous Labor Government’s carbon tax. After forming the Government following the September 2013 election, House of Representatives passed the Abbott Government’s legislation to repeal the Clean Energy Finance Corp. on 21 November 2013. The Senate rejected the bill on 10 December 2013. Three months have now passed, the the bill is scheduled to be re-introduced in the House of Representatives on 27 March 2014. If the Senate again refuses to pass the bill, the Prime Minister will be in a position to advise the Governor-General to dissolve both Houses. The Coalition had indicated even before the September 2013 election that it would trigger a double dissolution if it was prevented from repealing the carbon tax.

These are the steps which must take place before a double dissolution is possible.

Double dissolution

  1. The House of Representatives passes a bill and sends it to the Senate.
  2. The Senate rejects the bill, or fails to pass it, or passes it with amendments to which the House of Representatives will not agree.
  3. After an interval of three months (but in the same or the next session of Parliament), the House of Representatives passes the bill a second time and sends it to the Senate again. The bill reintroduced must be the original bill, except that it may be modified by amendments made, requested or agreed to by the Senate.
  4. The Senate again rejects the bill, or fails to pass it, or passes it with amendments to which the House of Representatives will not agree.
  5. The Prime Minister may now advise the Governor-General to dissolve both Houses. Once the preceding conditions have occurred, whether and when to advise a double dissolution is a matter for the Prime Minister. There is no constitutional necessity to do so, or to do so within any period of time.However, a double dissolution cannot occur within six months of the end of a three year term of the House of Representatives.
  6. Elections are held for both Houses.

Joint sitting

  1. In the new Parliament the House of Representatives passes the bill again and sends it to the Senate. The bill may be reintroduced with or without amendments made, requested or agreed to by the Senate. There is no constitutional necessity to reintroduce a bill that was the cause of the double dissolution.
  2. The Senate again rejects the bill, or fails to pass it, or passes it with amendments to which the House of Representatives will not agree.
  3. The Prime Minister may now advise the Governor-General to convene a joint sitting of the members of both Houses.
  4. The joint sitting votes on the bill as last proposed by the House of Representatives and on any amendments made by one House and not agreed to by the other. To be passed, amendments and the bill (as, and if, so amended) must be agreed to by an absolute majority—i.e. more than half of the total number of the members of both Houses.

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On reforming PMQs

The UK’s Hansard Society released a report examining public attitudes to Prime Minister’s Questions (PMQs) and asking whether PMQs is a ‘cue’ for their wider negative perceptions of Parliament. Some of the key findings include:

  • 67% of respondents agree that ‘there is too much party political point-scoring instead of answering the question’ – 5% disagree
  • 47% agree that PMQs ‘is too noisy and aggressive’ – 15% disagree
  • 33% agree ‘it puts me off politics’ – 27% disagree
  • 20% agree that ‘it’s exciting to watch’ – 44% disagree
  • 16% agree that ‘MPs behave professionally’ at PMQs – 48% disagree
  • 12% agree that PMQs ‘makes me proud of our Parliament’ – 45% disagree

Reaction to the report in the UK has been quite interesting. Speaker of the House of Commons, John Bercow, has long called for an overhaul of PMQs. For example, he delivered a speech to the Centre for Parliamentary Studies back in 2010 wherein he provides an interesting history of how Prime Minister’s Questions has evolved, looks at past (failed) attempts to reform it, and outlines what he considers to be the main problems with PMQs today:

We reached the point where almost nothing was deemed beyond the personal responsibility of the Prime Minister of the day, where the party leaders were responsible for a third of all the questions asked (and often more like 50 to 60% of the total time consumed) all set against a background of noise which makes the vuvuzela trumpets of the South African World Cup appear but distant whispers by comparison. If it is scrutiny at all, then it is scrutiny by screetch which is a very strange concept to my mind. The academic analysis does not make for enjoyable reading either. A survey by the Regulatory Policy Institute of all PMQs posed in 2009 concluded that the Prime Minister had answered only 56 per cent of all questions asked of him. If it seems harsh to cite Gordon Brown in this fashion then it should be observed that the same survey determined that only 56 per cent of the questions asked of him were actually genuine questions in the first place. What the detailed exercise revealed, depressingly, was that PMQs had become a litany of attacks, soundbites and planted questions from across the spectrum. It was emphatically not an act of scrutiny conducted in a civilised manner.

Speaker Bercow also identifies three steps that could be taken to address what ails PMQs, namely:

  1. Change the culture. “It would require the Prime Minister and a new Leader of the Opposition, as so nearly happened in 1994, to agree on a common understanding of behaviour, one which offered teeth to our existing code of conduct which states unequivocally that “Members shall at all times conduct themselves in a manner which will tend to maintain and strengthen the public’s trust and confidence in the integrity of Parliament and never undertake any action which would bring the House of Commons, or its Members generally, into disrepute”.”
  2. Shift the focus back to backbenchers. “If the session is to remain 30-minutes long, the next Leader of the Opposition could usefully ask whether he or she truly needed as many as six questions of the Prime Minister in order to land a blow or whether, in the spirit of Margaret Thatcher in the late 1970s, three or four would do instead.”
  3. The content of the encounter. “Is it the right device for ensuring effective scrutiny? Does it need to be supplemented by other institutions? Are open questions posed in the vain attempt to catch a Prime Minister out actually the best means of inquiry?”

In response to the recent Hansard Society report, Speaker Bercow sent a letter to the three party leaders asking them to curb the “yobbish” behavious of their own MPs during PMQs. He has received favourable responses from both the Labour Party and the Liberal Democrats, and a more cautious reply from Prime Minister Cameron. Some MPs are in full agreement with both the Hansard Society report and Speaker Bercow, while others have essentially told him to stop whining about PMQs.

There have been many suggestions put forward regarding how to improve PMQs, both on blog posts and in the comments section on media coverage of the Hansard Society report. Some of the suggestions put forward on this blog post on the Liberal Democrat Voice blog are quite typical. The most popular seems to be giving the Speaker more power to make the PM actually answer the question asked/allow the speaker to decide that a question hasn’t been answered. While understandable that people get frustrated by non-answers that don’t directly address the content of the question asked (and the problem is far greater during the Canadian House of Commons Question Period), there is a problem here. In some instances, it will be very obvious that the PM’s answer completely ignores the main (or entire) thrust of the question. In other instances, however, this will be less obvious. The reality is that the Speaker is not in a position to know if a question has been “properly” or “fully” answered because he or she is not the minister and is not briefed on that matter and simply does not know how much information the minister is in a position to make public at that time. That would call for a subjective judgement call by the Speaker, which no Speaker would want to have to do.

In fairness, Speaker Bercow has shut down the Prime Minister on a few occasions when his answer has started to deviate into obvious non-answer territory, for example, in this exchange from 6 November 2013:

John Cryer (Leyton and Wanstead) (Lab): Many women face discrimination at work when they become pregnant, so how will charging them £1,200 to go to an industrial tribunal help them? Before the Prime Minister has another attack of the Lyntons and starts talking about all the dreadful trade unionists on the Opposition side of the House, I should like to make it clear that I am a trade unionist and damn proud of it.

The Prime Minister: Millions of people in our country can be very proud of being trade unionists. The problem is that they are led so badly by bully-boys—[Interruption.] They are led so badly by people who seem to condone intimidating families, intimidating witnesses and intimidating the Leader of the Opposition. That is what we have come to with Unite. They pick the candidates, choose the policy, pick the leader and bully him till they get what they want.

Mr Speaker: Order. Actually, I think the question was about tribunals, if memory serves. [Interruption.] No. It is a good idea to try to remember the essence of the question that was put.

There has also been much concern expressed over “planted” questions. It’s important to understand that planted questions in PMQs aren’t quite the same sort of planted or lob-ball questions Canadians witness from government party backbenchers in the Canadian House of Commons. It is important to remember that which MPs get to ask questions during PMQs is determined by a lottery, therefore the party whips have no control over which or how many of their MPs will get called on. Yes, there are attempts by Number 10 to suggest questions Conservative MPs might want to consider asking, but as I explained in that post, few MPs agree. However, that doesn’t stop some government backbenchers from willingly asking questions that are framed in a way to highlight something positive that the government has done. They do this for a couple of reasons: first, it can be an attempt to ingratiate themselves with the party leadership in the hopes of future promotion, and second, they often use them to highlight something in their own riding and thus promote themselves to their constituents. An example of this could be this question from the Conservative MP from Portsmouth North on 29 January 2014:

Penny Mordaunt (Portsmouth North) (Con): Portsmouth is an entrepreneurial city, delivering a drop of 25% in jobseeker’s allowance claimants over the past year. With this in mind, is the Prime Minister aware of a commercial plan put forward to the Department of Energy and Climate Change to build a number of specialist vessels designed to revolutionise and facilitate the industrialisation of the tidal energy sector? Does he agree that Portsmouth would be an excellent place to build those ships?

The Prime Minister: First, may I congratulate my hon. Friend on everything she has done in recent weeks to highlight the importance of Portsmouth and all matters maritime, in the broadest sense of the word?

I am aware of this interesting project, and I understand there will be a meeting with the Department for Business, Innovation and Skills shortly. It is testament to the excellent reputation of Portsmouth that there is so much interest in this commercial sector, which my hon. Friend, I and the whole Government want to see expand. The appointment of a Minister for Portsmouth, my right hon. Friend the Member for Sevenoaks (Michael Fallon), will make a big difference. It is good news that the youth claimant count has fallen so quickly in Portsmouth, but we must stick to the economic plan and keep delivering for Portsmouth.

Who is to say if that was a planted question, or one that the Member willingly wanted to ask as it highlighted both her government’s work and her constituency? It certainly isn’t as blatantly “planted” as this exchange from the Canadian House of Commons question period (19 November 2013) which is little more than an excuse to attack the leader of the Liberal Party:

Ms. Joan Crockatt (Calgary Centre, CPC): Mr. Speaker, when it comes to protecting children, our government’s record is unequivocal. We have already passed mandatory prison sentences for child sexual offences, including aggravated sexual assault and Internet luring. Unbelievably, yesterday, when the Liberal leader was asked whether he would repeal these tougher sentences, he said, that he wouldn’t rule out repealing mandatory minimums for anyone. While the Liberals waffle, can the Minister of Justice explain how our government will strengthen sentencing for child sexual offenders?

Hon. Peter MacKay (Minister of Justice and Attorney General of Canada, CPC): Mr. Speaker, while sexual assault against children in Canada is actually on the rise, hearing that the Liberal leader is talking about repealing mandatory sentences for sexual predators is, frankly, appalling. Both Liberal and Conservative governments have passed mandatory prison sentences. This includes an omnibus crime bill that was introduced in 1968 by—wait for it—the then justice minister, Pierre Elliott Trudeau. Our government will soon introduce legislation to ensure multiple child sex offenders serve consecutive sentences. I hope that the Liberal Party and all parties present will support this important protection for Canadian children.

The BBC ponders if PMQs really is getting worse in this rather lengthy piece. The consensus seems to be that things have indeed deteriorated since the 1980s. In another BBC piece, the Spectator’s Isabel Hardman looks into the issue, essentially arguing that passionate debate is to be preferred over decorous, consensual debate. She raises the example of Winston Churchill refusing to rebuild the bombed Commons with a circular Chamber because too many earnest parliaments had been destroyed by “the group system.” She also notes that parliament offers plenty of decorous, respectful debate – and no one turns out to watch it. This last point is very true. The House of Commons is always packed for PMQs, with some MPs even sitting in the aisles because there isn’t enough room on the benches to accommodate them all. This presents a sharp contrast with almost all other proceedings in the House – including the departmental oral questions, which are often quite sparsely attended.

My main concern is the fascination Canadians have with PMQs, and the quite prevalent desire to adopt something similar here. In my view, PMQs is the least interesting procedure on offer in the UK House of Commons. I would much rather see the adoption of the rota system for questions to ministers, the introduction of urgent questions, reformed ministerial statements, and changes to the committees system. I don’t see how adopting the most boorish proceeding the UK House of Commons has to offer will improve anything here in Canada.

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Other reforms of Parliament are more urgently needed than electoral reform

A reader left the following comment on my post about the Reform Act’s proposals for party leader selection:

While there is much to be said for the concept of MPs having more weight than the average party member in selecting a leader, this assumes that the MPs are properly representative of the party’s voters. Because of our skewed winner-take-all vopting system, this is far from the case. As Stephane Dion never tires of pointing out, our voting system “makes our major parties appear less national and our regions more politically opposed than they really are.” It “artificially amplifies the regional concentration of political party support at the federal level. This regional amplification effect benefits parties with regionally concentrated support and, conversely, penalizes parties whose support is spread across the country without dominating anywhere.”

The Conservative “equality of ridings” provision ensures that representative from Quebec cast about 25% of the votes in a leadership contest. If the caucus elected the leader, Quebec representatives would cast 3% of the votes. Stephane Dion would be quick to say that this “weakens Canada’s cohesion.”

First things first. Once we have a fair, modern voting system that lets all votes count equally toward electing MPs, the caucus might be entrusted with more weight in selecting a leader. Not until then.

Many others have expressed a similar view, that electoral reform is a far more pressing issue. However, I disagree, and I think the above misses a couple of critical points: first, that the Canadian Parliament does not work properly; and second, that electoral reform will not only fail to address those very major problems, but might even exacerbate them.

Let me begin by stating that I am not against the idea of electoral reform; I have written a number of posts outlining some of the problems inherent with the use of single-member plurality (or First-Past-the-Post – FPTP as it is more commonly known) in a multi-party state such as Canada (and the UK). However, the problems facing the Canadian House of Commons have very little to do with the electoral system. The main problems (in my view at least) are as follows:

  • the absolute control of party leadership over caucus members;
  • the absolute control of political parties over too many proceedings;
  • the abuse of certain procedures such as time allocation by the Executive.

When people talk of the need for electoral reform, most refer to PR — proportional representation — without specifying exactly what they mean by that. Unlike FPTP, proportional representation is not a single voting system — there are probably as many variations of PR as there are countries which use it. Most, if not all, forms of PR enhance the role of the party, in that you end up with some MPs who are not directly elected by anyone. Those who advocate for electoral reform above any other reform regularly criticize FPTP by hauling out the usual “In the last election, 39% of the vote resulted in 100% of power” or “millions of votes didn’t count!” arguments.

The problem with these arguments is that they ignore how our system works. We don’t vote for a government. We don’t elect a government. We elect individuals to represent each riding as an MP, that collection of individual MPs forms a Parliament, and the Parliament determines who will form the government. Rather than view a general election as one election, it really should be viewed as 308 (soon to be 338) individual elections.

This is why the argument that “39% of the vote shouldn’t equal 100% of the power” misses the point. You can’t focus on a “national” percentage of the vote for each party – it’s irrelevant because there is no national party or government vote on the ballot. You have to focus on each individual race in each individual constituency.

If you take this approach to it, then yes, every vote most certainly did count. In a very close three- or four-way race, as in Ahuntsic back in 2011, where the final tally was:

  • Bloc Quebecois – 14,908 or 31.8%,
  • NDP – 14,200 or 30.3%,
  • Liberal – 13,087 or 27.9%

every vote most certainly did count, was counted, and at the end of the count, the BQ candidate ended up with the most votes. Now you can certainly make the argument that no one should be elected with less than 50% of the vote, but it doesn’t change the fact that Athuntsic was very competitive and every single vote mattered and was counted and a winner emerged — the candidate with the most votes. And that was repeated in the other 307 separate elections that were held. Some were runaway victories for one candidate — and in those cases, that candidate would have won the seat no matter what voting system we had in place, while others were like Ahuntsic. Others were even closer still, tight two-way battles won by a handful of votes. How can you argue that in those instances, votes didn’t matter? Each one did — a lot. The winner may not have won with over 50% of the votes cast, but every single vote was counted and mattered.

It’s really not fair (or right) to say “votes don’t count” under FPTP — they do. Even if we had a preferential ballot (where candidates are ranked in order of preference, and votes transferred based on those preferences until one candidate has over 50%), there would be people who would not have ranked the candidate who ultimately wins, or maybe would have ranked that candidate last — yet you wouldn’t say their vote didn’t count. Under most forms of Mixed-Member Proportional, the bulk of MPs are still elected using FPTP — the only difference is that each party’s seat total is then topped up with list MPs (whom NOBODY votes for) based on the party’s percentage of the overall vote.

The problem with most forms of PR, because they involve list MPs chosen by the party leadership to fill seats assigned to the party to ensure its percentage of seats in the House more closely matches the overall percentage of the vote received by that party, is that the party becomes even more dominant. Look at New Zealand, for example. As one extreme example, in New Zealand, party votes — which are most votes in the House — are cast based on the number of MPs that party has. If a party has 10 MPs and indicates it will support a certain bill, the party vote is an automatic 10 in favour – and the MPs don’t even have to be in the Chamber when the vote occurs.

FPTP is not the real problem. The UK uses FPTP and their Parliament — while certainly not perfect — operates so much better in so many ways than does the Canadian Parliament. If you follow UK politics closely, as I do, you will reguarly see both political analysts and readers bemoaning how whipped their MPs are; yet compared to Canadian MPs, British MPs appear incredibly independent and even rebellious. If we had far more independent MPs — and by independent, I don’t mean persons elected as Independents, but MPs willing to act more independently/less like party automatons, then our current system could work better. If backbenchers from the governing party understood that they were not part of government and were willing to actually hold the the government to account and vote against it now and then when they believed it was in the best interests of the constituents to do so, as they do in the UK, then even a single-party majority government wouldn’t be able to exercise the same level of power that they currently do. In the UK, it’s not uncommon for governments with even large majorities to see legislation to pass by only a handful of votes because a good number of the governing party’s own backbenchers vote against it. This has been particularly true with the Coalition government (for obvious reasons — Conservative backbenchers feel less “loyalty” to the government since it’s not a Conservative government), but was also true on more than one occasion during the Labour majorities. Blair suffered a number of important backbench rebellions on key pieces of legislation, which in some cases passed by only a handful of votes, or because there was enough support from MPs from other parties to make up for the number of Labour MPs who dissented. Our problem isn’t so much FPTP, but a combination of excessive and abusive party discipline and a need to reform some of the House of Commons’ current practices to lessen the power of the executive vis-à-vis the legislature.

What reforms do I think would be needed here in Canada?

First, increase the number of MPs. While the next election will see a larger House – 338 MPs instead of the current 308, I would like to increase the number of MPs by a significant margin – at least by 100, preferably by as many as 150. One of the biggest problems here is that it is too easy for the party leadership to “reward” their MPs with positions, thus ensuring their compliance. In the UK House of Commons, with its 650 MPs, the leadership of the two main parties simply cannot exert the same level of control – there simply aren’t enough positions to hand out. Let me illustrate the problem.

The current Conservative caucus in the House of Commons in Ottawa numbers 162 MPs. One of those is the Speaker, which brings the total down to 161 MPs. Of that number, 70 would be what is called the “payroll vote” – the PM, Cabinet and the parliamentary secretaries. That is 43% of the caucus. On top of that, 24 of the House of Commons’ 28 committees are chaired by Conservatives. Now, committee chairs are elected by the committee members, but the committee membership is appointed by the party leadership. There are only 44 Conservative MPs who are NOT members of any committee — those who are in Cabinet (39), the Speaker, and four other MPs — two of whom were elected in by-elections only in November of last year and probably haven’t had a chance to be assigned to a committee yet. That means that there are only 4 members of the Conservative Party caucus who have no role in the House other than being an MP (not counting the Speaker). More importantly, this means that there are only four members of the Conservative caucus who haven’t been “awarded” a role by the party’s leadership. The situation would be similar (and even worse) for the other parties in the House given that they have smaller caucuses. However, it matters more, perhaps, for the Conservatives since they form the government. The Conservative backbench MPs are not part of the government; they are simply MPs whose task it is to hold the government to account — same as the Opposition parties. However, because all but a handful of them have been appointed to one position or another by their party leader, they don’t do this. The issue of the payroll vote is one that is regularly raised in the UK — even by MPs themselves (see this article from 2011 by Conservative MP Sarah Wollaston). I can’t recall seeing much, if any, discussion of the issue here in Canada.

This would lead to my second reform: change how committee members and chairs are selected. In the UK House of Commons, the issue of the pay-roll vote is a major one, as explained in detail in this article. That said, however, recent reforms all but eliminated the influence of the party leadership in committees. I have explained these reforms in detail in this post, but to summarize, Select Committee chairs are now elected by the whole House using ranked ballots. Party caucuses elect which of their members will sit on each committee. This has led to Commons Select Committees being far more independent, willing to engage in a series of important inquiries, newsworthy, and, in many ways, far less partisan. There is a greater sense that they are accountable to the Commons as a whole, rather than trying to advance their parties’ respective interests. A Private Member’s bill has been put forward in Ottawa proposing a similar reform for the Canadian House of Commons.

Reform #3: Get the parties out of Question Period. Question Period in the Canadian House of Commons is, at best, a farce. It is completely controlled by the parties. Each party decides which of its MPs will ask a question, in what order they will ask the question, and even write the questions out that the MPs will ask. The Speaker has the power to call on any MP in any order, but rarely does so; he or she follows the lists provided by the party whips. In the UK, MPs submit their questions in advance, and these questions are drawn in a shuffle to determine which MPs will get to ask a question and in what order. What difference does this make? MPs are free to ask questions that matter to them and to their constituents. It is very common to hear MPs in the UK House of Commons ask ministers — including the PM — questions that are about a problem in their riding, or about a problem facing one of their constituents. You never hear that in the Canadian House of Commons. Also, questions in the UK are submitted at least three days ahead of the scheduled departmental question time to allow the ministers to prepare thoughtful answers. This in turn means that the questions do actually get answered, unlike in the Canadian House of Commons where a minister is as likely to answer with an attack on the opposition rather than address the actual question.

Reform #4: Bring in Urgent Questions and UK-style Ministerial Statements. You can read about both of those procedures in this earlier post.

Reform #5: Adopt the proposals put forward in the Reform Act. You can read my various posts about the Reform Act for more information.

The pressing problem here is that the Canadian House of Commons cannot carry out its duties of scrutiny and seeking information effectively. Changing the voting system will not address this; in fact, depending on which form of PR were to be adopted, it could worsen the situation by making the role of parties even more central to everything. The most democratic voting system in the world will mean nothing if the legislative body to which MPs are elected cannot function efficiently and effectively. Parliamentary and procedural reform are needed far more urgently. And the simple reality is that it might be easier to address the party control and discipline issues and need for Standing Order changes than to ever get any type of PR adopted.

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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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Towards a Parliament 2.0

UK House of Commons Speaker John Bercow delivered a speech to the Hansard Society (PDF downloadable here) outlining his plans for a Speaker’s Commission on Digital Democracy.

The first part of his speech highlighted the Westminister Spring – the remarkable revival of the UK House of Commons as an institution since the 2010 general election. Mr. Speaker noted that when he became Speaker in 2009,

the House of Commons as a meangingful political institution, an effective legislature, had been in decline for some decades and was close to reaching the point wher eit had become, to distort Walter Bagehot slightly, a diginified part of our constitution without any dignity.

(…)

Parliament appaered to have been reduced to the status of a small green room in which men, overwhelmingly men, shouted at each othe rfor relatively short periods of the working week and then disappeared from sight thereafter to do Lord Knows What. Certainly, it was not to strike terror in the hearts of Ministers or offer considreed criticism and surgical scrutiny either of proposed legislation in the Chamber or via the Select Committee system of the implementation of executive policy.

However, as Speaker Bercow explains, “the virtual corpse has staged an unexpected recovery.” He attributes this miracle to three facters: procedural reform, fresh blood and the novelty of coalition government.

In the dying days of the previous Parliament, the House adopted many of the Wright Committee recommendations (of which I have written about many times). These reforms were implemented for the first time in May 2010, following the general election. They include the election of the Deputy Speakers, the election of Select Committee chairs by the whole House, the election of Select committee members by their respective caucuses, and the creation of the Backbench Business Committee.

Added to this is Speaker Bercow’s revival of an existing, but almost extinct, procedure, the Urgent Question UQ), which Speaker Bercow describes as a “parliamentary intrument of inquisition.” I explain Urgent Questions in some detail here, but simply put, it is a procedure which allows any MP on any day to petition the Speaker to demand that a ministry send one of its Ministers to answer some issue or matter that has arisen very suddenly. In the 12 months under Speaker Bercow’s predecessor, only two UQs had been allowed. Since becoming Speaker, Bercow has granted 154.

The revival of the UQ has had another unexpected benefit – Ministers are now far more likely to take the initiative and deliver statements to the House “because they know that if they do not the chance of a UQ is now high.”

The 2010 general election saw a very large intake of new MPs – 227 (out of a total of 650 MPs). These new MPs were more diverse in terms of gender, ethnicity, race, career background, etc., that had been true previously. They also brought with them a new attitude – not content to simply sit quietly and do what they were told by party Whips.

Add to this mix the formation of a coalition government – the first in some seventy years, which forced both the government and Parliament to “make up new norms as we have gone along”:

The uncertainty as to what exactly is the correct way to proceed has offered the breathing space for backbench creativity and parliamentary originality which the House Backbench Business Committee chaired by the redoubtable Natascha Engel MP has eagerly exploited. It has also, I conclude, further convinced Select Committees that a more forensic approach to scrutiny is not an act of rebellion or disloyalty to their own political party but a civic obligation.

Speaker Bercow acknowledges that there is still more to do, particularly in the area of setting up a House Business Committee, improving Private Members’ Bills, and perhaps reforming Prime Minister’s Questions (PMQs). And beyond that, one enormous challenge remains, not only for Westminster, but for all legislatures in the 21st century, namely,

how to reconcile traditional concepts and institutions of representative democracy with the technological revolution which we have witnessed over the past decade or two which has created both a demand for and an opportunity to establish a digital democracy.

And this is where the Speaker’s Commission on Digital Democracy comes in. The Commission will have a core membership supplemented by a circle of around 30 expert Commissioners and will solicit input by the public. it will begin its work in 2014, reporting in early 2015, just before the next general election. Digital democracy initiatives could include:

online voting, e-dialogue between representatives and those they represent, increased interconnectedness between the functions of representation, scrutiny and legislation, multiple concepts of what is a constituency, flexibility about what is debated when and how, and a much more intense pace for invention and adaptation.

Speaker Bercow goes on to explain that digital democracy is a form of “in-reach encouraging and enabling the public to become more involved in the work of Parliament and Parliament responding as a result.” In-reach used to consist of voting once every 4-5 years, but this no longer suffices. He concludes by admitting that his plan is ambitious:

The structure is one which is unfamiliar to the House of Commons, the agenda is potentially vast and the timetable for publication is tight. Universities and even our schools, because this should not be an area deemed exclusive to so-called adults, might not necessarily respond to the call to e-arms, although I suspect that they will not need to be conscripted. The recommendations might not make the impact that they should arriving as they will but a few months before a general election, although I believe that when the new Parliament assembles it will be truly interested in what it means to become a new Parliament more broadly. And technology might turn up in 2020 or 2030 that renders all that we thought before redundant.

None of which should be an alibi for inaction. When I was elected Speaker I made it clear that while I would be a non-partisan figure withinour democracy, I would not be neutral about our democracy. Representative democracy is a wonderful principle but what it is to be representative has to be re-examined constantly. It is a process, not an event. I am a passionate advocate of democracy. I do not feel that it is stretching the  nature of the office in which I serve to champion that democracy. I am by choice politically celibatebut I am not a political eunuch. The fantastic people who work in and for the House of Commons arenot party political figures and should not be either but from the top downwards they share my desire to see Parliament and the people connected as closely as humanly possible and we recognise that technology can be our best friend and ally in this regard. All those who care about Parliament, and I  appreciate that with this audience I am preaching to the long-time converted, should want to embrace this  cause and deliver us their thoughts on the development of digital democracy. I am convinced that we can really make a difference.

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Coalition government and constraints on the PM’s prerogative powers

The UK House of Lords Select Committee on Constitution has been conducting an inquiry on The Constitutional Implications of Coalition Government. For anyone interested in parliamentary conventions, government formation and other related issues, this is absolutely fascinating stuff.

On 9 October 2013, Professor Lord Norton of Louth and Lord Donoughue appeared as witnesses before the committee. It was quite interesting, enlivened somewhat by Lord Donoughue’s staunch dislike of the very idea of coalition government. In fact, he repeatedly urged the Committee to stress in their final report the many advantages of alternatives to coalition since, as he put it, “I fear that a younger generation will begin to assume that if they do not get a majority, they must have a coalition.” (page 2 of the uncorrected transcript)

Some interesting points were raised during the course of the hearing. Lord Norton discussed some of the major departures from “normal” constitutional practice brought about by coalition government, particularly those that affect the Prime Minister’s prerogative powers. He identified four such departures, which he grouped under two headings. The first is the existence, under coalition, of a dual executive. This affects the Prime Minister’s traditional prerogative powers in two ways. The first concerns ministerial appointments, which are no longer purely the prerogative of the PM as the sovereign’s adviser. Normally, in the case of single-party government, the Prime Minister has the power to the power to appoint, reshuffle or dismiss cabinet ministers. With the current coalition, it was agreed that the Liberal Democrats would have five cabinet positions, and number of ministerial spots. It is the leader of the Liberal Democrats and Deputy Prime Minister, Nick Clegg, who decides which of his party’s MPs will be appointed to those spots. The Prime Minister, Conservative David Cameron, can still shuffle his cabinet, but he cannot dismiss or appoint any Liberal Democrats on his own. The second change brought about by the dual executive concerns the convention of collective responsibility. Traditionally, decisions are arrived at collectively in Cabinet, and Cabinet is bound to support those decisions plublicly and in the House (by voting for them, for example). There have been departures from this with the Coalition government.

The other changes which impede the PM’s prerogative powers have come about because of the Fixed-Term Parliaments Act, 2011. The first concerns maintaining the confidence of the House. As we know, the PM and Cabinet are responsible to, and must answer to, the House of Commons and must maintain the confidence and support of a majority of the House. If the government is defeated in the House on a matter of confidence, then the government is expected to resign or seek the dissolution of Parliament so that an election can be held. What are matters of confidence? That can vary, but it is generally acknowledged that confidence motions can be:

  • explicitly worded motions, usually moved by the Opposition, which state that the House has, or has not, confidence in the government;
  • any motion that the government expressly declares to be questions of confidence; and
  • implicit motions of confidence, that is, motions traditionally deemed to be questions of confidence, such as motions for the granting of supply, motions concerning the budgetary policy of the government and motions respecting the Address in Reply to the Speech from the Throne.

Under the Fixed-term Parliaments Act, 2011, the Prime Minister can no longer declare a certain vote to be a matter of confidence. Or rather, as Lord Norton explains, a Prime Minister could say that a particular motion was one of confidence, if defeated, the only thing the government could do is resign. The option of requesting a dissolution is no longer available. This ties in with the second change – previously, the Prime Minister could seek to dissolve the House and call a new election when he or she so desired. The Act now establishes a fixed date, and unlike similar Canadian and provincial Acts, there is a very specific process in place that must be followed in order to dissolve a parliament before the date fixed by law for the next election. As explained in the Cabinet Manual:

2.19 Under the Fixed-term Parliaments Act 2011, if a government is defeated on a motion that ‘this House has no confidence in Her Majesty’s Government’, there is then a 14-day period during which an alternative government can be formed from the House of Commons as presently constituted, or the incumbent government can seek to regain the confidence of the House.

If no government can secure the confidence of the House of Commons during that period, through the approval of a motion that ‘this House has confidence in Her Majesty’s Government’, a general election will take place. Other decisions of the House of Commons which have previously been regarded as expressing ‘no confidence’ in the government no longer enable or require the Prime Minister to hold a general election. The Prime Minister is expected to resign where it is clear that he or she does not have the confidence of the House of Commons and that an alternative government does have the confidence.

As Lord Norton concludes, those are the main changes to the Prime Minister’s prerogative powers, and the last two won’t end with a return to single-party government. They will have “ongoing consequences because they are statutory changes.”

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