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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Scandal as a catalyst for positive change

In 2009, the UK Parliament was rocked by a major scandal. The scandal was triggered by the leak and subsequent publication by one of the UK’s major newspapers, the Telegraph, of expense claims made by members of both the House of Commons and the House of Lords over several years. These disclosures revealed widespread misuse of the Additional Cost Allowances (ACA) members were able to claim. The UK Parliament had been fighting disclosure of these expenses for years.

Compared to the UK expenses scandal, the current Canadian Senate expenses scandal is relatively minor. The abuses uncovered in the UK were quite extensive. Alongside specific allegations of incorrect claims such as claims for the cost of mortgages which had already been repaid in full, the Telegraph alleged that parliamentary expenses rules gave wide scope for a number of abuses, especially those related to costs of maintaining two residences, one in the constituency and one in London. Areas of questionable claims highlighted by the Telegraph included (but were not limited to):

  • Nominating second homes: MPs and peers were able to ensure that their second home was the one which enabled them to claim more expenses. In at least one case, the nominated home was near neither constituency nor Westminster.
  • Re-designating second homes: MPs were able repeatedly to switch the designation of their second home, enabling them to claim for purchasing, renovating and furnishing more than one property. This practice became widely known as “flipping”.
  • Renting out homes: MPs were able to claim for their “second home” while they were, in fact, renting other homes out. In most cases the rented homes were ‘third’ properties, but in one case, a second home was rented to another MP, who was claiming the rent on expenses.
  • Over-claiming for council tax on second home: MPs were able to round up actual amounts due, claiming for 12 monthly instalments where only 10 were due or by claiming up to £250.00 per month with no receipt required until those rules were changed. Over 50 MPs were alleged to have over-claimed council tax.
  • Subsidising property development: The rule that MPs could not claim for repairs “beyond making good dilapidations” was not enforced and consequently MPs were able to add significantly to the value of a property. By implication some “second homes” were effectively businesses (not homes) since they were renovated on expenses and then rapidly sold.
  • Evading tax and inappropriate attempts at avoiding tax: MPs either evaded tax, or inappropriately deemed themselves not required to pay tax on reimbursements when it was likely tax was due.
  • Claiming expenses while living in grace and favour homes: Ministers with “grace and favour” homes in Westminster as well as their existing primary residence were able to claim for a further “second home” in addition.
  • Renovating and furnishing properties when standing down: MPs were able to claim for renovations and furniture even when they had already announced their intention to resign from Parliament.
  • Furnishing of other homes: MPs were able to claim for items of furniture that were actually delivered somewhere other than their second home.
  • Exploiting the ‘no receipt’ rule: MPs submitted a large number of claims for just below £250, the ceiling under which they were not required to produce receipts, without being challenged as to their legitimacy.
  • Over-claiming for food: Under a rule permitting up to £400 for food each month (without receipts), MPs were simply able to claim the whole £400 every month, even when Parliament was not sitting.
  • Overspending at the end of the financial year: MPs were able to submit claims just before the end of the financial year, so as to use up allowances, without being challenged as to their legitimacy.

There was massive political fall-out from this scandal. The Speaker of the House of Commons, Michael Martin, was forced to resign because of his handling of the crisis. He appeared to be far more concerned  with the fact that the information was leaked to the Telegraph than with the actual abuse of expenses. MPs from his own majority party, Labour, and the minority opposition party, the Conservatives, felt he had lost the confidence of the public and the House in general. Martin was the first Speaker to be forced out of the office by a motion of no confidence since John Trevor in 1695. A number of ministers resigned. A number of MPs from both Labour and the Conservative parties announced they would not seek re-election. Four MPs and 2 Lords were charged and convicted of various criminal offenses.

However, the scandal had a silver lining. Public outrage and anger over the expenses scandal drove home the fact to MPs and Lords alike that Parliament needed to change if it hoped to regain the public’s trust. One of the first reforms implemented, in May 2009, was the creation of the creation of the Independent Parliamentary Standards Authority, intended to manage Members’ expenses at an “arm’s length” from the House, ending the historical self-policing by MPs of their expenses.

The next initiative was the striking of the Select Committee on Reform of the House of Commons, which was appointed by the House of Commons on 20 July 2009 to consider and report by 13 November 2009 on four specified matters and related matters:

  • the appointment of members and chairmen of select committees;
  • the appointment of the Chairman and Deputy Chairmen of Ways and Means;
  • scheduling business in the House;
  • enabling the public to initiate debates and proceedings in the House

More commonly known as the Wright Committee, after its chair, Tony Wright, the committee’s report led to the adoption of by the UK House of Commons of the many reforms about which I have frequently written. These reforms include: the creation of the Backbench Business Committee, various initiatives to increase public involvement in the legislative process and other House business; the election of select committee chairs and select committee membership, etc.

The Wright Committee understood why it had come into being and what it needed to do. To quote from the introduction of its November 2009 report, Rebuilding the House:

1. We have been set up at a time when the House of Commons is going through a crisis of confidence not experienced in our lifetimes. This is largely, but not exclusively, because of the revelations about Members’ expenses, bringing with it a storm of public disapproval and contempt. Public confidence in the House and in Members as a whole has been low for some time, but not as low as now. It is not too much to say that the institution is in crisis.
2. The storm has been gathering, but has now reached its climax. In 2001 a survey found that 30 per cent of people were dissatisfied with how Parliament was doing its job; in 2009, in the wake of the expenses scandal, dissatisfaction with the Commons was a massive 71 per cent (Ipsos/Mori). This demands a response, if public confidence in the central institution of our representative democracy is to be restored. Action is already being taken to establish a transparent, fair and independently regulated system of allowances. This is necessary, but not sufficient.
3. The great majority of Members of Parliament work extremely hard. Members are in closer and more regular contact with their constituents than ever before, and dedicate a great deal of time to serving their interests. But while the House of Commons remains the central institution of British democracy, in both real and symbolic terms, there is a sense in the country that it matters a good deal less than it used to. We believe that the House of Commons has to become a more vital institution, less sterile in how it operates, better able to reflect public concerns, more transparent, and more vigorous in its task of scrutiny and accountability. This requires both structural and cultural change. This report by necessity focuses on structural changes, but we hope they will lead gradually to a change of culture. The core business of Parliament has to matter more to the public and to individual Members. At present many Members do not see the point in attending debates or making the House the primary focus of their activities. In order to address this we must give Members back a sense of ownership of their own institution, the ability to set its agenda and take meaningful decisions, and ensure the business of the Chamber is responsive to public concerns. We believe this is what the public demands, what the institution needs and what most Members want. The present crisis presents an opportunity to make some real progress with this.
4. Without the shock of recent events, it is unlikely that this Committee would have been established. Yet the case for an inquiry such as ours was already strong, and becoming ever stronger. Since 1997 the Modernisation Committee has presided over a number of reforms, some of which—such as sittings in Westminster Hall and oral questions without notice to Ministers—have proved successful. However, a number of the proposals from that Committee, and the Procedure Committee and others, have been shelved, sidelined or simply disregarded, often without being put to the House, which is dispiriting for reform and reformers. A steady stream of reports from outside bodies have made the case for significant parliamentary reform.  Meanwhile, the Modernisation Committee has run out of steam and not met for over a year.
5. We have a rare window of opportunity. There is an appetite for reform inside the House and among the public at large. We have a newly elected Speaker expressly committed to it. Backbenchers are fed up with their inability to make a difference and the deadweight of timeworn procedures. Select committees are universally praised but have few opportunities to initiate debates or propose amendments to legislation and sometimes struggle to maintain a quorum. Thirty years ago, in the closing period of the 1974–79 Parliament, our predecessors took the bold step of proposing a system of departmental select committees, which have now become integral to the work of the House. Unlike our predecessors, we have had to work at high speed under a very tight timetable, but hope to have produced proposals which—if implemented—may have an equivalent impact.

The Senate scandal in Canada could be a rare window of opportunity to finally implement real and lasting reform – not only of the Senate, but of our Parliament as a whole. Sadly, I doubt that will happen.

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On Speeches from the Throne and Prorogation

As is often the case – if you follow the right people! – a very interesting discussion transpired on Twitter over the matter of Speeches from the Throne and prorogation.

For the uninitiated, prorogation is, normally, a very mundane parliamentary procedure used to bring to an end one session of a Parliament so that a new session can begin.

If you read my post explaining the differences between a parliament, a session and a sitting, you will recall that a parliament lasts from one election until it is dissolved for a new election. In Canada, this tends to be about four years, with a constitutional maximum duration of five years. After an election, the new parliament begins with a Speech from the Throne, wherein the Government will outline what it hopes to achieve during the upcoming session. Once the Government feels it has achieved the goals it identified in the Speech from the Throne, it may decide to prorogue that session – bring it to an end – and start a new session with a new Speech from the Throne identifying new goals and priorities. Sometimes, a Government might feel a need to prorogue because circumstances may have changed since the last Speech from the Throne. Perhaps the global (or domestic) economy has dramatically changed – such as occurred in 2008. The Government may realize that it won’t be able to carry out some of the initiatives it had promised in the Throne Speech; or it might believe a new budget is required. There are many legitimate reasons why a Government would want to bring one session to an end and start afresh with a new one.

In Canada, there is no set number of sessions per parliament, nor is there any maximum or minimum length set out for the duration of a session. Some parliaments have had only one session, a couple have had seven. The shortest session lasted 0 days (18th parliament, 6th session, 1940), the longest (to date) ran 1,325 days (32nd Parliament, 1st session, 1980-83 – note that this is the total number of calendar days from the opening of the session to prorogation; it is not the total number of sitting days, which was 591 for the House of Commons and 329 for the Senate). You can compare the length and number of sessions of each parliament here.

Because the Canadian parliament doesn’t have a tradition of regularly-timed prorogation, the Government’s agenda as outlined in the Speech from the Throne tends to be very general. It may sometimes identify a few key priorities that it hopes to achieve, but for the most part, the Speech from the Throne is long on rhetoric and short on specifics. This isn’t the case in other countries, however. Many legislatures prorogue annually, and usually for a very short time, sometimes less than a day. It is not uncommon to have the legislature prorogue in the morning and a new session start in the afternoon. The UK parliament prorogues annually in the spring, for about two weeks. Because of this, the Queen’s Speech in the UK tends to be very short and quite specific when compared to Canadian Speeches from the Throne, as I explained in this post. The Government of the day will put forward a list of bills it plans to introduce and there is none of the rather pointless rhetoric extolling the virtues of the Government one finds in Canadian Throne Speeches.

Against this background, you will now appreciate the following discussion which occurred on Twitter. Former Canadian House of Commons procedural clerk Thomas Hall (@ThomasHall17) asked a simple question: “Are Throne Speeches outdated relics of the past? They were supposed to set out the Government’s agenda, but this is no longer really true.” He elaborated, explaining that if we got rid of all throne speeches except the one after an election, the “issue” of prorogations would also disappear.

Emmett Macfarlane (@EmmMacfarlane), a professor at the University of Waterloo disagreed, arguing that they still provided a good outline of the government’s main objectives, to which Hall replied that this could be achieved by other means – such as a ministerial statement in the House, for example, like the Budget Speech.

Professor Philippe Lagassé (@pmlagasse) pointed out that constitutionally, the Speech from the Throne highlights where the ministry’s authority flows from, and that it is a helpful symbol that the executive operates independently of Parliament, but must account to Parliament. Hall acknowledged that this was a good point, that symbols are important. What Lagassé means is that the ministry’s authority comes from the Crown. The constitutional and parliamentary nature of prorogation is described in the following passage from Erskine May (24th ed., p. 144):

The prorogation of Parliament is a prerogative act of the Crown. Just as Parliament can commence its deliberations only at the time appointed by the Queen, so it cannot continue them any longer than she pleases.

At this point in the discussion, E (@freezingkiwi) commented on Hall’s suggestion of having only the one Throne Speech at the start of a new parliament, noting that this was the common approach elsewhere – it was just to set the agenda at the start of each new Parliament. He added that he didn’t recall any mid-Parliament Throne Speeches in New Zealand.

The norm in both Australia and New Zealand is one Throne Speech (or Governor-General’s Speech as it is called in Australia) and only one session per Parliament. This is in large part because, unlike Canada and the UK, parliaments in Australia and New Zealand last only three years. And because of this, prorogation – while still a procedural option available to governments in both countries – has largely disappeared in practice. As explained in House of Representatives Practice (5th ed., chapter 7), Australian Parliaments have often consisted of only one session without a prorogation intervening, and this is now the norm:

The history of the Australian Parliament in respect of prorogations is marked by inconsistency. In 1957 the Leader of the House stated that in future annual sessions of Parliament would be held, and this practice continued until the end of 1961. Subsequently, the division of a Parliament into more than one session by means of regular prorogations appears to have been regarded as either inconvenient or unnecessary.

This isn’t to say that prorogation doesn’t occur, but it occurs only when necessary, usually triggered by an extraordinary event. There have been only four prorogations in Australia since 1961, each one occurring for a very specific reason:

  • the 1968 prorogation followed the death of Prime Minister Holt and the formation of a new Ministry;
  • the 1970 prorogation was caused by a general election being held on 25 October 1969, resulting in the Parliament being forced to meet, under section 5 of the Constitution, prior to Christmas; the Parliament met for one sitting day but the Government found that it was not able to have the Governor-General announce fully its proposed program at that time; the program was announced at the opening of the second session; and
  • the Parliament was prorogued in 1974 and 1977 to enable the Queen to open the new session in each case.

The situation is very similar in New Zealand, which reduced the maximum length of its parliaments from 5 years to 3 years in 1879. As explained in McGee’s Parliamentary Practice in New Zealand (chapter 9):

Until 1984 there was usually one session of Parliament held in each calendar year during the course of each Parliament; though there were occasionally more than this when a special session was held, as in 1977 on the occasion of the visit of Her Majesty the Queen. It was exceptional for a session (like the ones of 1921–22 and 1941–42, for example) to extend over more than one calendar year. Since the 1984 session was brought to an end for a snap election, sessions have been more variable and lengthier. There were, for example, only two sessions in each of the three Parliaments after that. Since 1984 there has no longer been a presumption that a session will correspond with a calendar year. Since the forty-fourth Parliament (1993–1996) there has been only a single session lasting the entire life of the Parliament and this has now become the norm.

If the maximum duration of a Parliament is only three years, there is little need for more than one session to be held. It would be much easier for a governing party to put forward a legislative agenda to cover roughly 2.5 years – Canadian governments do that fairly regularly.However, if Canada, with its 4-5 year parliaments, followed the UK Parliament’s example and prorogued annually, that would force the Government to deliver far more focused Throne Speeches. If each session lasted only a year, then the Government would have to outline very specific initiatives it planned to bring forward during the course of that year.

However, the Canadian Parliament does not prorogue annually. The reality is that, at the start of a new Parliament, the Government has no idea how long the session will last. It could be a year, it could be two, it could last the entire parliament. This is why Canadian Throne Speeches take the form they do – favouring vagueness over specifics.

I personally would prefer annual sessions and prorogations – of a short duration (e.g. a few days or certainly no longer than the two weeks the UK Parliament usually stands prorogued). This would force the Government to be more focused and specific in what it hoped to achieve, and probably make it easier for the Opposition to hold them to account. I don’t think doing away with Throne Speeches over the course of a four to five year Parliament is a good idea. Inevitably, the Government will need to reset itself at some point during that time. Alternatively, shorten the duration of a Parliament to three years like Australia and New Zealand. A three-year Parliament would work fine with only one session, meaning one Speech from the Throne and, most likely, an end to prorogation (unless absolutely necessary given some extraordinary event).

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Worth following on Twitter

Twitter has “Follow Fridays” (#FF) where users can recommend to their followers other Twitter accounts worth following. I’ve decided to start promoting certain Twitter accounts here, since not everyone follows this blog on Twitter, and I can better explain why I think some people are worth following.

Many people dismiss Twitter because of the 140 character limit; this makes it impossible to actually discuss or debate anything of substance. It is a challenge, but I have been surprised by how many fairly detailed discussions of complex subjects such as the royal prerogative and Canada’s succession laws actually occur – if you follow the right people. This brings me to my first round of Twitter follow recommendations.

Canadian Constitutional/procedural expertise

Philipe Lagassé (@pmlagasse) is associate professor of Public and International Affairs at the University of Ottawa and a senior fellow with the Canadian Defence and Foreign Affairs Institute. His research focuses on Canadian defence policy and politics, civil-military relations in Westminster democracies, machinery of government related to foreign policy and national security affairs, and the nature and scope of executive power in the Westminster tradition. Apart from Twitter, Lagassé maintains a blog, Thoughts on the Crown in Canada, which is also worth bookmarking.

Mark D. Jarvis (@markdjarvis) is a doctoral candidate at the School of Public Administration at the University of Victoria in Canada. His research investigates how individual public servants are held to account for their day-to-day work within national-level bureaucracies, comparing Canada, Australia and the Netherlands. He is one of the co-authors/editors of Democratizing the Constitution: Modernizing Government Accountability.

Thomas Hall (@ThomasHall17) is a retired Canadian House of Commons procedural clerk and self-described Constitution nerd. He can be trusted to chime in on discussions of parliamentary procedure and other related topics.

Canadian political/parliamentary journalists/commentators

Aaron Wherry (@aaronwherry) is the Parliamentary reporter with Maclean’s magazine. I frequently link to his Macleans articles in my blog posts. I don’t always agree with him (for example, he is wrong about abolishing the Senate), but his insights on key issues facing Canada’s parliament are always worth reading.

Kady O’Malley (@kady) is a Canadian journalist covering Parliament Hill. Formerly with the Hill Times and then Maclean’s magazine, she currently works for the Canadian Broadcasting Corporation. O’Malley regularly liveblogs House of Commons proceedings – especially committee meetings and blogs on the CBC website.

(Disclaimer: these and future recommendations are not intended to signal that I completely agree with or endorse everything written by the above individuals – on Twitter or elsewhere.  They are very knowledgeable individuals and contribute to political debate – whether you agree with them or not.)

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Fix That House?

Two of the CBC’s politics programmes – CBC Radio’s The House and Newsworld’s Power and Politics – are exploring ways to “fix” Parliament. The series is called “Fix that House” and people are being invited to send in via email or Twitter their ideas to improve Parliament. I have been reading through the list of at least some of the suggestions submitted thus far and have found a few recurring themes, as well as an unfortunate lack of understanding concerning how Parliament works and why some things are done the way they are. Consequently, I thought I would comment on some of the suggestions put forward.

First of all, there are a fair number of calls for electoral reform – this was probably the most popular suggestion. Most proposed some unspecified form of proportional representation, and one person called for adopting the preferential ballot.

Different aspects of Question Period were a favourite target. A fair few suggestions called for an end to scripted questions from backbenchers. Unfortunately, this isn’t really something that could be fixed with a rule change. It would be easy enough to add a new Standing Order formally banning the practice, but how could you prove that a question asked by an MP was scripted by their party whip if the MP were to insist it wasn’t? The only way to end this practice is for the party leadership to stop forcing their MPs to read ask these scripted questions. Or for MPs to simply refuse to ask scripted questions. If only one MP in a caucus did so, they’d probably be expelled from that caucus, but if all of the backbenchers in a party caucus refused to ask scripted questions, I would think the party leadership would have no choice to but to back down.

The asking of questions during QP wasn’t the only thing under fire; some suggested that answers to questions be required to relate directly to the question asked, rather than used to attack the opposition or provide an opportunity to sing the praises of the government. It is true that there aren’t any Standing Orders governing the content of answers provided; but even if there were, how would the Speaker – whose job it would be to enforce this new rule – be able to assess if the answer did fully relate to the question asked? In some cases it would be fairly obvious – for example, if a minister was asked about taxation and he or she replied by attacking the opposition leader instead, that is clearly an unrelated answer. However, the Speaker can’t assess this until the answer had been given – and it’s too late at that point. Some suggested imposing penalties for those who would violate this rule – what sort of penalty? Naming them and kicking them out of the Chamber for the duration of Question Period? While I fully understand where people are coming from on this, again, rules won’t really change overall behaviour. It is up to the ministers to take Question Period seriously and provide the House with serious, thoughtful answers.

Related to this, someone suggested extending the time allowed for each question and answer during QP from the current 30 seconds to 90 seconds. I would go one better – get rid of time limits completely. In the UK House of Commons, there are no time limits and ministers frequently give fairly long, detailed answers to questions.

Another reader suggested moving Question Period to 20:00 and broadcasting it nationally (on what network, he didn’t say) so that Canadians could see their politicians in action. Hmmmm… Nice idea but I’m afraid they would lose badly in the rating to the multitude of US TV shows that Canadians would much prefer watching. Even if every Canadian network were forced to broadcast QP in prime time, my gut tells me that most Canadians would just switch over to a US network to catch their favourite show.

Someone suggested that the Speaker be “allowed” to recognize MPs during Question Period. The Speaker does not have to be allowed to do this – he or she has every right to do so – it’s in the Standing Orders. Yes, the parties provide a list of MPs who are to stand to ask questions on behalf of the party, but there is nothing stopping MPs not on those lists from standing to catch the Speaker’s eye and the Speaker calling on them.

One suggestion was for a more general move away from the reading from texts during debate so that “actual debate” could occur. I fully support this suggestion, and have blogged to that effect in the past. This would require a return to giving way as they do in the UK House of Commons. And for giving way to work properly, we’d probably also have to get rid of the existing time limits on speeches followed by the questions and comments section. This is what has killed proper debate in the Canadian House of Commons. If you watch any debate from the UK House of Commons, you will see the difference immediately. The MP who has the floor will give way – meaning they will sit down briefly so that another MP can ask them a question or comment on something they just said, and then the MP will get up again and respond, and then continue on with his or her remarks. We used to do this in Canada as well, but then time limits on speeches were introduced (to counter the opposition’s tendency to filibuster), and knowing they had a time limit on how long they could speak, MPs were increasingly unwilling to give way, so no other MP could ask them questions or comment on what they were saying. A brief “questions and comments” section was then added to the end of each MP’s speaking time. It makes for a very stilted, artificial “debate”.

Some suggestions were rather bizarre. One reader proposed an age limit for politicians to discourage “lifers”. First of all, I would think this would be unconstitutional, and second, it doesn’t make much sense. I think what the person has in mind might be a term limit, not an age limit. I think their goal is to prevent one person from sitting for decades – becoming a career politician, if you will. However an age limit wouldn’t necessarily change this as some people only enter politics when they’re older. If you set the age limit at say, 60, and someone was elected for the first time at age 58, they’d have to retire after only two years of service, while someone first elected at age 25 would (assuming they got re-elected) be able to serve for 35 years!

On a similar note, someone suggested that we should only elect “highly educated/experienced” Canadians to counter the perceived problem of ministers with little or no background in the portfolio to which they are appointed. This I know would be unconstitutional – section 3 of the Constitution Act, 1982 states:

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

That means that every Canadian, regardless of educational background and experience, has the right to qualify to be a member of the House of Commons (or a provincial legislature).

Someone proposed that MPs vote from their constituency office via the web or social media rather than from inside the Chamber. This is completely impractical and ignores the fact that there is way more to being an MP than voting in divisions. What about participating in debates? Or sitting on committees? MPs need to be in the House.

Still on the topic of voting, another person suggested that MPs be allowed to vote “anonymously” in order to represent their constituents or beliefs rather than as their party whip tells them to vote. The reality is that most votes in the House are sort of anonymous already – they are voice votes. Most Canadians are familiar with the recorded division – where each MP stands and their name is called out as they vote for or against something. That is only one way of voting. There are also voice votes (where members call out Yea or Nay). No names are recorded during these votes, so it isn’t possible to tell exactly who voted how. See this chart from House of Commons Procedure and Practice to see the various ways voting occurs in the House of Commons. Only recorded divisions require that the MP stand and have their name recorded – the other means are, for all intents and purposes, anonymous.

One person proposed that we needed a Speaker with experience and “who has majority approval of each of the parties. Perhaps even right to recall.” The Speaker does have majority approval. He or she is elected by all MPs at the start of each new Parliament, by secret ballot. And the House can move a motion of no confidence in the Speaker if they are unhappy with their performance.

Many people had issues with MPs not being in the House and proposed posting attendance records or similar ideas. While it is true that, outside of Question Period, the chamber is often quite empty, this doesn’t mean that MPs aren’t working. They might be sitting on a committee, meeting with constituents or visiting delegation, taking part in some other House-related activity, etc. Most MPs work 70 hour weeks – you can’t judge the work they do simply by whether they are sitting in the Chamber.

One person oddly suggested that Question Period should be held only once a week for a full hour. I have no problems increasing it from 45 minutes to one hour, but only once a week? This would mean even less holding the government to account.  In the equally odd category, someone else proposed enlarging the House of Commons to “over 1000 members”. I really can’t see that going over well at all. Even with a population of 1.2 billion, India’s lower House, the Lok Sabha, has only 552 members. With a population of only 35 million, it would be very difficult to justify having over 1000 MPs here in Canada. People complain enough about the 308-soon-to-be-338 that we currently have.

There were many calls for an end to political parties, allowing each MP to be elected as an independent. Nice idea, and it works in Nunavut and the Northwest Territories, but I don’t think it would be practical for a larger Chamber. I think that instinctively, MPs would coalesce into like-minded informal groups.

Another idea put forward was to have an election every 18 months. This would raise some problems. First, the reality is that people don’t like voting that much and I think if we were forced to go to the polls every year and a half, our already low voter turnout rates would just drop even further. Second, it’s not practical. Many policies require a long-term view and if parties had to focus on elections every 18-months, they’d completely forfeit any policy other than short-term, quick-fix ones.

One reader proposed giving the Ethics Commissioner “real teeth” so that they had the power to remove a sitting MP for infractions. The problem with this is that it would violate parliamentary privilege. Under section 18 of the Constitution Act, 1867, which endowed the House with the same privileges, immunities, and powers as enjoyed by the British House of Commons, the House of Commons possesses the power of expulsion. The Ethics Commissioner could at best recommend expulsion; it would ultimately be up to the House itself to decide the matter.

A few people suggested getting rid of the desks and having MPs sit tightly together on benches as they do in the UK House of Commons. I am not certain what problem this is intended to “fix”, but I don’t dislike the idea.

Most of the suggestions were aimed at improving decorum and increasing the independence of MPs/lessening the influence of political parties.

There were a number of suggestions that had little to do with fixing the House – such as abolishing the Senate, or changes affecting the Parliamentary Budget Office, or changes affecting Elections Canada, so I’ve ignored those.

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