Posts in Category ‘Procedure’

It’s not about the most seats

Recently, I’ve seen a few comments and blog posts wherein the writer states that the party that wins the most seats in the next election (but not a majority of the seats) gets to form the next government.

As I’m certain I’ve written many times before, this simply isn’t the case.

The incumbent governing party (we’ll call them Party A) is the party that gets the first chance to see if it can form a government that would command the confidence of the House. In a situation where another party (Party B) wins an outright majority of the seats, this becomes a moot point – Party A could not command the confidence of the House no matter what machinations it attempted, and so it resigns, usually immediately.

However, if an election results in a hung parliament, then Party A is still given the first shot at forming the government, even if another party has more seats (but not a majority of the seats). If the leader of Party A determines that it is unlikely to be able to command the confidence of the House, he or she resigns, and then the party that did end up with more seats will be asked to try to form a government that will command the confidence of the House.

For example, let’s pretend that the May 2 Canadian federal election results in the following seat count:

Conservatives – 120
Liberals – 129
BQ – 33
NDP – 26

As the incumbent governing party, it would be the Conservatives’ right to try to form a government first, even though the Liberals won more seats. Of course, it isn’t very likely that the Conservatives could command the confidence of the House; it is doubtful that any of the other parties would agree to support them on confidence matters (and we all know how the Conservatives feel about coalitions). Thus, one would expect that the Conservatives would resign. Only then would the Liberals be asked to try to form a government. Of course, in such a scenario, it is very doubtful that the Liberals could command the confidence of the House for very long either unless they reached some sort of agreement with at least one of  the other parties.

In the 2006 general election, even though the Liberals won fewer seats than the Conservatives (103 to 124) Martin could have waited a few days to see if some agreement or arrangement could be worked out with one or more of the other parties that would have allowed the Liberals to continue to govern. He opted not to do that, conceded defeat, and informed the Governor General the next day that he would not form a government and resigned as Prime Minister. It was only then that Stephen Harper was called on to form a government (notwithstanding media declarations of a “Conservative minority government” before all the polls had even closed).

Similarly, the 2010 UK general election saw the Conservatives end up with the most seats (306 on election day) and Labour second with 258. However, because Labour was the incumbent party, it was Gordon Brown’s prerogative to try to form a government. Brown did not resign until five days after the election, once it became clear that no workable arrangement could be found that would allow Labour to form the government. However, if the numbers had been a bit different – if the Liberal Democrats had elected 15 more members, for example, that would have potentially allowed Labour to continue as the government with the support of the Liberal Democrats – as a coalition or some other arrangement.

My point here is simply that in the UK last year, the Conservatives were not immediately declared the “winner” by the media or pundits. It was recognized that it was still Labour’s right to try to form a government first. Our system works exactly the same way. If we end up with another hung parliament, it will be the Conservatives’ right to try to form a government first, even if another party ends up with more seats.

I strongly recommend this report from the UK House of Commons Committee on Political and Constitutional Reform to everyone, and in particular this chapter. Not all of it applies to Canada because our system isn’t completely identical to that of the UK’s, but there is enough in there that does apply.

Related Posts:

Contempt of Parliament not a criminal offence

My attention was recently caught by a post on ProgressiveBloggers.ca asking if contempt of Parliament is a federal crime that can bar Prime Minister Stephen Harper from re-election. The question seems to have come from this very unfortunately blog post arguing that indeed, Harper has committed a federal offence.

The short answer to the question is quite simply no. Contempt of Parliament is not a federal offence.

On February 7, 2011, a Member of the Canadian House of Commons, Scott Brison rose on a question of privilege on behalf of the Committee on Finance arguing that the failure of the Government to provide the committee with financial information on the estimated cost of the F-35 aircraft, the original estimates and final costs of hosting the G8 and G20 summits, the adjustments to the fiscal framework to incorporate the costs of several government Bills and the estimated cost to the federal treasury of the planned reduction of corporate tax rates as requested by the committee constituted a prima facie case of privilege. On March 9, the Speaker of the Canadian House of Commons ruled that the question raised by Mr. Brison constituted a prima facie question of privilege. The Speaker determined stated that it may well be that the government has valid reasons for not complying with the committee’s order, but that this judgement must be made by a committee empowered to investigate the matter, and not by the Chair. The matter was then referred to the Committee on Procedure and House Affairs, which reported back that the Government was in contempt of Parliament for failing to provide the committee with the documentation it had requested.

What the Government is in breach of is not a federal or other criminal law, but a Standing Order of the House of Commons, as well as centuries of parliamentary convention. The Standing Orders are the body of rules that govern how business is conducted in the House of Commons. These rules are made by the House itself, periodically reviewed and changed. Standing Order 108 in Chapter XIII of the Standing Orders outlines the powers of committees (emphasis added):

108. (1)(a)  Standing committees shall be severally empowered to examine and enquire into all such matters as may be referred to them by the House, to report from time to time and to print a brief appendix to any report, after the signature of the Chair, containing such opinions or recommendations, dissenting from the report or supplementary to it, as may be proposed by committee members, and except when the House otherwise orders, to send for persons, papers and records, to sit while the House is sitting, to sit during periods when the House stands adjourned, to sit jointly with other standing committees, to print from day to day such papers and evidence as may be ordered by them, and to delegate to subcommittees all or any of their powers except the power to report directly to the House.

Committees have the power to request documentation from the Government. If the Government fails to comply with the request, this can be a breach of privilege. Parliamentary privilege is the collection of rights, powers and immunities of the House and its Members. The classic definition of parliamentary privilege is found in Erskine May’s Treatise on the Law, Privilege and Usage of Parliament (23rd edition, p. 75):

Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively … and by Members of each House individually, without which  they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extend an exemption from the general law.

The privileges of Members of the House of Commons provide the absolute immunity they require to perform their parliamentary work while the collective or corporate rights of the House are the necessary means by which the House effectively discharges its functions. The rights and immunities accorded to Members individually are generally categorized under the following headings:

  • freedom of speech;
  • freedom from arrest in civil actions;
  • exemption from jury duty;
  • exemption from being subpoenaed to attend court as a witness; and
  • freedom from obstruction, interference, intimidation and molestation.

The rights and powers of the House as a collectivity may be categorized as follows:

  • the exclusive right to regulate its own internal affairs (including its debates, proceedings and facilities);
  • the power to discipline, that is, the right to punish persons guilty of breaches of privilege or contempts, and the power to expel Members guilty of disgraceful conduct;
  • the right to provide for its proper constitution, including the authority to maintain the attendance and service of its Members;
  • the right to institute inquiries and to call witnesses and demand papers;
  • the right to administer oaths to witnesses appearing before it; and
  • the right to publish papers without recourse to the courts relating to the content.

Contempt, on the other hand, is generally defined as “any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a  Member of the House” and is punishable by the House. While privileges are defined, contempt of the House has no limits:

Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members or its officers. (O’Brien and Bosc, 2nd ed., pp. 82-83).

What the Government was found in contempt of is a Standing Order and the general parliamentary privilege of the right of the House and Members to demand papers and to not be obstructed in the discharge of carrying out their parliamentary duties.

That unfortunate blog post I linked to at the outset (and I was hesitant to provide the link because I really don’t want to give them more traffic than they’re already getting given how ill-informed the post is), also claims that “No federal government or cabinet minister has ever been found in contempt before.”

This is also false. Many governments and ministers (and individual members) have been found in contempt. However, of all the prima facie cases of contempt raised in the House of Commons since 1867, only five motions containing the word “contempt” have been adopted by the House. What is unique in this particular situation is that no government has ever been defeated by a non-confidence motion that arose from a finding of contempt of Parliament. Please note this distinction. It wasn’t the finding of contempt by the Speaker and committee that defeated the government, but rather, a non-confidence motion filed by the Opposition based on the finding of contempt. That this confidence motion was moved is also unusual because the Canadian House of Commons has traditionally been very reluctant to invoke its authority to reprimand or punish anyone found in contempt. Again from O’Brien and Bosc (p. 87):

The reluctance to invoke the House’s authority to reprimand or admonish anyone found to have trampled its dignity or authority and that of its Members appears to have become a near constant feature of the Canadian approach to privilege. For example, in 1976, the Standing Committee on Privileges and Elections chastised a former Member (Auguste Choquette (Lotbinière)) who claimed that many parliamentarians had obtained undue financial considerations, but did not recommend any further consideration be given to the matter after concluding that his attitude was intemperate and irresponsible. In the 1987 Parry case where the Member divulged the result of an in camera vote, the Standing Committee on Elections, Privilege and Procedure also did not recommend punishment and the Member’s apology to the House put an end to the matter. In the 1996 Jacob case, the Standing Committee on Procedure and House Affairs noted that while the Member’s actions were ill-advised, they did not amount to contempt or a breach of parliamentary privilege. In 2005, the Standing Committee on Procedure and House Affairs found “that the Ethics Commissioner was in contempt of the House of Commons” for his actions during the conduct of an inquiry, but did not recommend any sanctions or penalty because the actions were neither deliberate nor intended. In 2008, the House found the Deputy Royal Canadian Mounted Police (RCMP) Commissioner in contempt of the House but did not impose any punishment because “this finding of contempt is, in and of itself, a very serious sanction”.

There are a myriad of other problematic claims in that blog post, but I’m not going to address them. A quick overview of the site seems to indicate that it is one bordering on conspiracy-theory fringe territory. It is only because the notion that a contempt of parliament finding might be a criminal offence seemed to be spreading that I decided to address that particular issue.

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It’s not about who wins the most seats

(Note: Not the information you’re looking for? I do try to help people as much as I can and regularly monitor key word activity on this blog to see what is bringing people here. If this post doesn’t answer your questions, please consider contacting me with details regarding what information you’re looking for, including context (i.e. if it relates to something currently in the news). I might be able to answer your question(s), or at least direct you to a site that might provide more answers. I will reply to you by email, and if it’s a very interesting question, I may even write a proper blog post about it.)

Canadian Liberal Party leader Michael Ignatieff issued a statement on the weekend addressing the issue of whether he would form a coalition with any other party or parties should the Liberals end up with the most seats, but not a majority, in the 2 May election.

Ignatieff categorically rejected the idea of coalition. This post is not about that.

Ignatieff’s statement contained the following claim:

Whoever leads the party that wins the most seast on election day should be called on to form the government.

If that is the Liberal Party, then I will be required to rapidly seek the confidence of the newly-elected Parliament. If our government cannot win the support of the House, then Mr. Harper will be called on to form a government and face the same challenges. That is our Constitution. It is the law of the land.

Unfortunately for Mr. Ignatieff, this is not how our parliamentary system works. Parliamentary custom and convention dictate that, in the event of a hung Parliament, the incumbent Prime Minister has the right to remain in office and attempt to form a government that will command the confidence of the House of Commons, even if his or her party won fewer seats than another party.

In the event that another party win a clear majority of seats, then the incumbent party very obviously would not be able to command the confidence of the House and usually resigns immediately.

There are other scenarios, however, where the issue is more complex. In the May 2010 UK General election, the incumbent Labour government finished second in seats to the Conservatives, but neither party won a majority. However, it was Labour’s prerogative to attempt to see if it could arrive at any agreement with other parties that would allow it to  command the confidence of the House. When it became clear that no workable agreement was possible, Brown resigned as PM, five days after the election. He did not wait, nor did he need to wait, to see if the coalition talks between the Conservatives and the Liberal Democrats would come to fruition, since it was clear to him that one way or another, the Conservatives would form a government – either a minority Conservative government, or else a coalition with the Lib Dems.

In the event that the Liberal Party wins more seats than the Conservative Party in the 2 May election, but falls short of a majority, it will still be incumbent PM Stephen Harper’s right to attempt to form a government that would command the confidence of the House. If he determines that this is not possible, then he will resign, and only then will the Liberals be asked to form the government. However, if Mr. Harper is able to work out some sort of agreement with another party, or parties, that would allow him to command the confidence of the House, it would be his right to continue to govern, even if the Liberals had more seats.

Such a scenario is highly unlikely, however. Mr. Harper has framed the concept of coalition as something very negative, and has also stated that a coalition is only legitimate if it includes the party that won the most seats.

It is unfortunate that some in the media repeated Ignatieff’s claim that the party that wins the most seats should form the government – see this column by Andrew Coyne. Coyne later admitted that he was wrong on this point.

This situation is similar to when, during the UK general election campaign last year, Lib Dem leader Nick Clegg was asked under which circumstances his party would support an attempt to form a government. Clegg stated that in his opinion, “whichever party gets the most votes and the most seats, if not an absolute majority, has the first right to govern, either on its own or by reaching out to other parties.”

Clegg’s comment was initially included in the draft version of the 2010 Cabinet Manual as a footnote. The Cabinet Manual is an account of the workings of Cabinet Government that consolidates the existing unwritten, piecemeal conventions that govern much of the way central government operates under the existing constitution. It was authorized by Gordon Brown in February 2010, and in December 2010, a full draft was released for consultation. However, the House of Commons Political and Constitutional Reform committee raised some concern that while the December 2010 Manual “provided greater clarity on the extent to which an incumbent government has a right to stay in office to see whether it can command the confidence of the House of Commons”, the “inclusion of the comments made in May 2010 by the Leader of the Liberal Democrat party may suggest that this view will carry weight in future.” Upon its recommendation, that footnote of Clegg’s comment has been removed.

Related Posts:

Summoning Parliament

(Note: Not the information you’re looking for? I do try to help people as much as I can and regularly monitor key word activity on this blog to see what is bringing people here. If this post doesn’t answer your questions, please consider contacting me with details regarding what information you’re looking for, including context (i.e. if it relates to something currently in the news). I might be able to answer your question(s), or at least direct you to a site that might provide more answers. I will reply to you by email, and if it’s a very interesting question, I may even write a proper blog post about it.)

Following the May 2010 UK general election, I remember being somewhat puzzled when so many political commentators grew concerned that no government might emerge in time for the opening of Parliament. What puzzled me wasn’t so much that a date for the opening of Parliament was already scheduled, but 1) that the date set was so soon after the election and 2) that there didn’t seem to be any option for changing it in the event that no government had emerged by that date.

In the UK, the proclamation to summon a new Parliament specifies the date on which the new Parliament will meet. The appointed day is chosen on the advice of the Prime Minister when he (or she) goes to see the Queen to ask that Parliament be dissolved. Recent custom had been for Parliament to meet on the Wednesday following the election. In the 2010 election, the Prime Minister indicated that Parliament would first meet on 18 May, 12 days after the election. This followed a recommendation of the Commons Modernisation Committee that the interval between polling day and the first meeting of Parliament should be 12 days to allow more time for the induction of new MPs. Still Gordon Brown was criticised for following this recommendation because he was seen by some Conservatives as allowing himself more time in which to negotiate to continue in government.

In retrospect, the decision to have a longer 12 day period between polling day and the first meeting of Parliament was sensible, and proved successful. It allowed for the possibility of a protracted period of government formation, which was entirely appropriate given concerns about a hung parliament. It also gave the incoming MPs and ministers more time for induction and adaptation to working in Parliament and in government.

However, Parliament meeting 12 days after an election is in sharp contrast with what happens in Canada and its provinces. In Canada, Section 38 of the Constitution Act, 1867 provides for the summoning of Parliament: “The Governor General shall from Time to Time, in the Queen’s Name, by Instrument under the Great Seal of Canada, summon and call together the House of Commons”.

The “Instrument” consists of a series of proclamations issued by the Governor General on the advice of the Prime Minister and published in the Canada Gazette. As in the UK, on the day that Parliament is dissolved or prorogued, a proclamation is issued summoning Parliament to meet on a given day. It is issued at the end of the preceding session, in keeping with the principle of the continuity of Parliament, whereby a session ends with provision made for its next meeting. A second proclamation confirms or changes the date and may set the time for Parliament to meet for the “Dispatch of Business” (the date can later be advanced or put back). A third proclamation is issued if the time for Parliament to meet was not announced in the second proclamation. (From House of Commons Procedure and Practice, 2nd edition)

The big difference in Canada is that the new Parliament usually won’t meet for several weeks (or longer) following an election.

For example, at the dissolution of the 38th Parliament in November 2005, along with the proclamation dissolving Parliament and the issuance of the Writs for a January 23, 2006 election date, a proclamation was initially issued on December 1, 2005, summoning Parliament to meet on February 20, 2006. A second proclamation was later issued on February 9, 2006, changing the Feb. 20 date and summoning Parliament to meet on April 3, 2006, and finally a third was issued on March 17, 2006, summoning Parliament for the “Dispatch of Business” on April 3, 2006 at 11:00 a.m. In other words, the original summons would have seen the new Parliament meet 28 days after the election, but it was modified and the new Parliament met 70 days after election day. The January 23 election did result in a change of government, from a Liberal minority government to a Conservative minority government, which probably explains why the new government wanted more time before summoning Parliament.

The most recent general election in Canada was held on October 14 2008. On September 8, 2008, the three proclamations were issued: one dissolving Parliament, one issuing Election Writs and the other Summoning Parliament to meet on November 12, 2008 (29 days after the election). On November 10, 2008, however, a second proclamation was issued summoning Parliament to meet on November 18, 2008, 35 days after the election. There was no change of government this time – the Conservatives were re-elected with another minority. So while an initial date for Parliament to meet is set when Parliament is dissolved, as is is in the UK, this date can, and usually is, changed after the election to better suit incoming government.

Consequently, it isn’t that unusual for several weeks, or even a few months to pass, between the date of the election and the date the new Parliament meets. Custom in some provinces is for a fall election, but with the legislature sitting only the following spring. This is especially true if there is a change of government. The new party taking over government often likes to give its new ministers ample time to familiarise themselves with their portfolios and departments, as well as to hire its own advisors and communications staff. At the provincial level, there have been a few instances of a new government wanting to order an independent audit of the province’s finances before it starts to plan for its own first budget – especially if it suspected that the former government might have been less than forthcoming regarding the province’s books, and so it delays the start of the new Parliament until the audit is complete.

The UK, however, has a long history of virtually immediate transitions between administrations, with one PM leaving 10 Downing Street to offer his or her resignation to the Queen and hours later, the new PM moving in. This simply does not happen in Canada. Even when the same party is re-elected, there can be a significant gap between election day and the opening of the new Parliament.

Related Posts:

Issuing the Writ

Canada’s Prime Minister will begin the process of calling a general election by presenting the Governor General with an Instrument of Advice recommending that Parliament be dissolved. Once the proclamation dissolving Parliament has been issued, the Prime Minister presents an Order in Council to the Governor General recommending that writs of election be issued and fixing the date of the election as well as the date for the return of the writs. The Governor General then issues a proclamation for the issuance of writs of election.

When a general election is called, the Chief Electoral Officer issues each returning officer a writ of election. A writ is a formal written order instructing the returning officer in each electoral district to hold an election for a Member of Parliament. The writ specifies the polling date and the date on which the writ, with the name of the successful candidate noted on the back, is to be returned to the Chief Electoral Officer. The date of the issue of the writ, the polling day and the date for the return of the writ are the same for each electoral district. (Click here to see what a writ looks like.)

Federal elections in Canada are administered by Elections Canada, an independent, non-partisan agency that reports directly to Parliament and headed by the Chief Electoral Officer. Originally, the Chief Electoral Officer was responsible only for the administration of general elections and by-elections. Under the Canada Elections Act and other laws that now govern the federal electoral process, Elections Canada’s mandate has broadened to include the administration of referendums and other important aspects of the electoral system. Each province has a similar agency that oversees provincial and municipal elections held in that province.

The agency’s duties include (from the website):

  • administering electoral legislation
  • registering political parties and third parties engaged in election advertising as well as electoral district associations, leadership contestants and nomination contestants of registered parties
  • maintaining the National Register of Electors
  • appointing and providing instructions to returning officers (one in each of the 308 electoral districts)
  • disclosing contributions to candidates, political parties and third parties, and to electoral district associations, leadership contestants and nomination contestants of registered parties; examining and disclosing their financial returns; and reimbursing expenses to candidates and parties according to formulas laid down in the Act
  • ensuring access to the system for all eligible citizens, through both physical facilities and public education and information programs
  • providing legal, technical, financial and administrative support to the independent commissions responsible for the periodic process of readjusting federal electoral boundaries, to ensure that representation conforms to the Electoral Boundaries Readjustment Act

The writs of election cannot be issued or dated later than the 36th day before polling day, making the minimum length of a federal election campaign 36 days.

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On Caretaker Government

(Update 05/08/2011: Blogger James Bowden acquired a copy of the Canadian Government’s caretaker convention following an Access to Information request. You can access it here (PDF). He has also acquired a copy of the Manual of Official Procedure of the Government of Canada, which you can download from his site.)

The Toronto Star carried an interesting article about the existence of “an actual handbook setting out the terms of a caretaker government” which for unknown reasons, the Privy Council Office won’t make public.

In Canada, during an election campaign, the Prime Minister is still technically the PM and ministers retain most of their powers until a new government is sworn in following the outcome of the election. This period is referred to as a “caretaker government”. There are limits, however, on what the PM and ministers can do during this period, which former Clerk of the Privy Council Alex Himelfarb summarises this way:

“Do not do anything that would give you political advantage by virtue of being the government and do not make commitments that will constrain the government that is eventually elected.”

Why this handbook is being kept secret is puzzling. As the Star article explains:

the guidelines are kept under lock and key by the Privy Council Office, and not widely known even within government.

The existence of the caretaker’s guidelines only became more widely known a couple of months ago, when [Peter] Russell organized a workshop in Toronto, dedicated to setting down some guidelines for how to proceed in the case of an unclear election result.

Though Russell and other participants in the workshop had been studying Canadian government for a long time, it was the first that many had heard of an actual “Manual of Official Procedure of the Government of Canada,” which dates back to 1968, the same year that Pierre Trudeau came to office.

When I blogged back in February about the UK House of Commons Select Committee report Lessons from the process of Government formation after the 2010 General Election, I skipped over one section of the report because, at the time, it was of less interest to me. However, it related directly to this issue, and may be of interest to others, even if the UK rules and conventions won’t be identical to the Canadian conventions. But since we have no way of knowing what the Canadian guidelines are, this might be better than nothing.

Section 5 of that report deals with the pre- and post-election activity of governments.

First important difference, terminology. In the UK, the term “purdah” is used to describe the convention that government activity is subject to restrictions during an election campaign. These restrictions are described thusly:

…it is customary for Ministers to observe discretion in initiating any new action of a continuing or long-term character. Decisions on matters of policy on which a new Government might be expected to want the opportunity to take a different view from the present Government should be postponed until after the Election, provided that such postponement would not be detrimental to the national interest or wasteful of public money. (From the General Election Guidance issued to civil servants before the 2010 general election and published by the Cabinet Office)

There are similar restrictions on public appointments and communication activities.

During the previous Parliament, the Justice Committee was reviewing the matter and made extensive recommendations in this area. Most notably, the Committee found that:

“the term ‘caretaker’ is clearer and more meaningful than ‘purdah’ and should be used in formal guidance”. In fact ‘purdah’ traditionally refers to restrictions on government announcements, and ‘caretaker’ has been used to describe restrictions on other government activity, and so to use ‘caretaker’ to describe both would be misleading.The Cabinet Secretary [Sir Gus O'Donnell] also raised objections to the term ‘caretaker’ in written evidence. The December 2010 Cabinet Manual refers to “restrictions on government activity”, which seems to us to be clear, accurate and easily understood.

This draft Cabinet Manual is an initiative launched by Gordon Brown when he was PM and was intended to be “the first, comprehensive account of the workings of Cabinet Government [which] will consolidate the existing unwritten, piecemeal conventions that govern much of the way central government operates under our existing constitution into a single written document.” On 14 December 2010, the Cabinet Office published the draft manual for consultation (with the deadline for comments being 8 March 2011).

Quite the contrast – the Canadian manual is top secret, kept under lock and key, the UK puts the draft of its manual up for public input and consultation.

The current draft version of the Cabinet Manual has this to say about pre- and post-election activity (from pp. 32-33 of the Draft Cabinet Manual):

Government activity between the announcement of an election and polling day

68. When an election is called, the Cabinet Office publishes guidance on activities in the pre-election period. The Prime Minister writes to ministers in similar terms. The pre-election period starts on the day the election is announced. The guidance to government departments issued in 2010 is available here (PDF).

69. During this period, the Government retains its responsibility to govern and ministers remain in charge of their departments. Essential business is carried on, which may include meetings of Cabinet or Cabinet committees as required. Ministers continue in office but must observe discretion in initiating any action or making any commitment of a continuing or long-term character once the election has been announced. This means the deferral of activity such as: taking or announcing major policy decisions; entering into large/contentious procurement contracts or significant long-term commitments; and making some senior public appointments and approving Senior Civil Service appointments, provided that such postponement would not be detrimental to the national interest or wasteful of public money. If decisions cannot wait, they should, where possible, be handled by temporary arrangements or consultation with the relevant opposition spokesperson.

Activity post election

70. Immediately following an election, if there is no overall majority, for as long as there is significant doubt over the Government’s ability to command the confidence of the House of Commons, many of the restrictions set out at paragraphs 68 and 69 would continue to apply. However, while avoiding long-term commitments, the Government would be able to announce its policy intentions – including policies it might hope to include in the Queen?s Speech – since restrictions on announcements that would be inappropriate during an election campaign need no longer apply. The point at which the restrictions on financial and other commitments should come to an end depends on circumstances but may often be either when a new Prime Minister is appointed by the Sovereign or where a government?s ability to command the confidence of the Commons has been tested in the House of Commons.

The Political and Constitutional Reform Committee had some concerns with paragraph 70 above. Where the Cabinet Manual states that following a hung parliament where a Government’s ability to command the confidence of the House is in doubt, it should still be allowed to announce policy intentions, including those it might include in a Speech from Throne, the Committee worried that “announcements by the Government in such circumstances could be used to party-political advantage”. In fact, the Committee felt that if anything, “the restrictions on government activity should be more stringent and limit a government to only its day-to-day running and urgent and essential decisions”. Consequently, the Committee recommended in its report that the Cabinet Manual be amended to:

a)   reflect that restrictions on public announcements apply not only in the weeks before an election but also in situations where there is doubt as to who can command the confidence of the House of Commons; and

b)   make clear that the restrictions which apply to government activity where there is doubt as to who can command the confidence of the House of Commons are more stringent than those which apply to government activity before an election.

For anyone interested in this issue, Section 5 of the Committee report is worth looking at. It provides actual examples of how these restrictions work in practice, as well as addressing other issues such as pre-election contact between the civil service and opposition politicians. As stated above, the Canadian rules might not be identical, but since they’re not public, this at least provides an interesting discussion of the matter.

Related Posts:

Plugging committees

There are some very interesting (to me at least) inquiries being conducted by Parliamentary committees at Westminster. I’ve previously posted at length (three posts) about the report of the Political and Constitution Reform Committee on Lessons from the process of government formation after the 2010 general election (post 1, post 2, post 3). I’ve also commented on the findings of the Procedure Committee regarding ministerial statements to Parliament (here). I thought I would take this opportunity to point readers towards some other interesting publications available on the Committees’ websites. Please note that I have not had the chance to read through these reports in full yet. I may write additional posts at a later date analysing some of these in greater detail in the future.

From the Procedure Committee

Yesterday, the Committee released a report on the Use of hand-held electronic devices in the Chamber and committees. I’ve not had a chance to read this one in full yet, but the Committee is recommending that the House agree to the following resolution:

That hand-held electronic devices (not laptops) may be used in the Chamber, provided that they are silent, and used in a way that does not impair decorum; that Members making speeches in the Chamber or in committee may refer to electronic devices in place of paper speaking notes; and that electronic devices, including laptops, may be used silently in committee meetings, including select committees.

There was also an article in the Guardian about the Committee’s findings.

Earlier this month, the Committee also reported on Improving the effectiveness of parliamentary scrutiny. This one, as far as I can tell, passed under the radar as I don’t recall seeing any coverage in the media. Not that surprising, as the subject matter truly is largely procedural – not the sort of stuff that makes for exciting headlines. It certainly can’t compete with the idea of MPs being allowed to use Twitter in the House and at Committee meetings. Still, parliamentary scrutiny is critically important to the good functioning of Parliament and holding the Government accountable. The Committee recommends:

First, we recommend that select committees be allowed to table in their own amendments to bills and motions on the floor of the House. These amendments should be agreed unanimously at a quorate meeting of a committee and notice should be given to all members of that committee that such amendments will be proposed for consideration at that meeting. We also suggest that, subject to the established conventions on selection for debate and decision, the Speaker or the Chairman of Ways and Means might look favourably on a select committee seeking a separate decision on its amendments where business is programmed.

Secondly, we recommend that during this Parliament Members and opposition spokespeople be encouraged to table explanatory statements on amendments to bills and that the Government use this facility to provide explanatory statements to clarify the origin of amendments and new clauses proposed on Report.

Thirdly, the Committee recognises that whilst written parliamentary questions (WPQs) are a vital part of parliamentary scrutiny, there is a danger that their value is being eroded by the record numbers being tabled which also imposes significant costs on the public purse. We propose no restrictions on the current ability of a Member to table questions in person, but in order to reduce the number and to make questions more effective, we propose a three-month trial of applying a daily quota of five and an earlier daily deadline of 6.30 pm from Monday to Thursday and 2.30 pm on sitting Fridays to questions for written answer submitted electronically. We also recommend that, to assist Members, the Government deliver all answers to parliamentary questions to the Member concerned by email at the same time as the answer is delivered to the House.

From the Political and Constitutional Reform Committee

The Political and Constitutional Reform committee (probably my favourite committee – yes, I have a favourite committee) currently has four ongoing inquiries. One is of particular interest to me, and that is the one on the Role and Powers of the Prime Minister. The Committee has published the written evidence it has received to date, and there are some very interesting papers among them. In particular, I would draw your attention to the submission from Professor the Lord Hennessy which compares the functions of the Prime Minister in 1947, 1995 and 2011. Many of the submissions address the question of whether the PM should be directly elected. From what I can tell (again, I’ve not read through them all yet), the overwhelming consensus on that question is a resounding “no”.

I am certain other Commons (and Lords) committees are producing equally interesting reports as per their sphere of responsibility; however, since my area of interests are primarily procedural, constitutional and political issues, I am not paying much attention to the work of any of the other committees. It is unfortunate that much of the work committees do goes unnoticed by both the media and general public. If more people had read the Political and Constitutional Reform Committee’s report on the Lessons from the process of government formation, for example, perhaps we’d see fewer comments from people that the Coalition Government has “no mandate”.

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Procedural mind games

As I posted yesterday, barring some last-minute case of cold feet, the three opposition parties in the Canadian House of Commons will be voting no confidence against the sitting minority Conservative government, and precipitating Canada’s 4th general election in seven years.

This week in the House has been a rather busy one. On Monday, the Procedure and House Affairs committee tabled a report finding the Government in contempt of Parliament over its refusal to release papers. On Tuesday, the Government tabled its budget.

The Opposition parties very much want to defeat the government on a confidence motion about contempt of Parliament. The Government, however, would rather be defeated on its budget since it will then make that the focus of its election campaign. Because of this, Wednesday’s proceedings in the House were fraught with procedural manoeuvrings as both sides attempted to gain the upper hand.

The Opposition forced a division on the very routine motion to move to Orders of the Day. By doing so, they successfully prevented the Government from beginning debate on the budget. This was crucial to their plans.

Had debate on the budget begun on Wednesday as the Government wanted, that would have forced the first confidence vote — on a Bloc Québécois sub-amendment which would have been introduced Wednesday to occur on Thursday.

Because the Opposition managed to prevent the budget debate from starting on Wednesday, debate on the budget will begin today (Thursday), and the BQ sub-amendment will only be introduced today as well, thus pushing the first vote on the budget from today until next week. However, on Wednesday, the Liberals introduced a non-confidence motion citing the government for contempt of Parliament, and that vote will occur Friday around 11:30 a.m. (EST), thus allowing the opposition parties to defeat the Government on a question of contempt of Parliament and priorities rather than on a budget vote.

The text of the Liberal motion:

That the House agrees with the finding of the standing committee on procedure and House affairs that the government is in contempt of Parliament, which is unprecedented in Canadian parliamentary history, and consequently, the House has lost confidence in the government.

The other two opposition parties, the Bloc and the NDP, have indicated that they will support the Liberal motion. The Conservatives have no methods left to try and delay it as they did the last time they faced a non-confidence vote in 2008. Following the defeat of the Government, the Prime Minister is expected to visit the Governor General on Saturday to seek the dissolution of Parliament.

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On Ministerial Statements

In this post, I compared the UK format for oral questions to the Canadian format, and argued that the UK format provided for more, not less accountability. In that post, I also referred to Urgent Questions, which is another means available to Members of the UK House of Commons to question a minister on an urgent, topical matter, regardless of whether it is that ministry’s turn in the oral questions rotation.

There is yet another option available to Members in the UK that provides greater accountability, and that is statements by ministers, where a minister – including the Prime Minister, elects to address the House on a topical issue.

Now, ministerial statements exist in Canada as well. However, there is a huge difference in how they are used in both countries.

This is how Statements by Ministers unfolds in Canada, as explained in House of Commons Procedure and Practice:

During “Statements by Ministers”, Ministers are expected to make brief and factual statements on government policy or announcements of national interest. Members speaking on behalf of parties recognized by the House are normally the ones who speak in response to a Minister’s statement. However, with the unanimous consent of the House, independent Members have been allowed to respond. In responding to the statement, Members are not permitted to engage in debate or ask questions of the Minister. The length of each response may not exceed the length of the Minister’s statement; Members who exceed this length are interrupted by the Speaker. The rules provide no explicit limitation of time allotted to the Minister or the overall time to be taken for these proceedings, although the duration of the proceedings can be limited at the discretion of the Chair.

This is the list of Statements by Minister from the most recent parliamentary sessions (the index for the 2nd and 3rd (current) sessions of the 40th parliament are not yet online):

38th Parliament (04/10/2004-29/11/2005)

  • Canada Labour Code, federal labour standards, Part III, review
  • Canadian Charter of Rights and Freedoms, Section 15, Equality Rights, 20th anniversary
  • Chicoutimi, HMCS, submarine, October 2-6, 2004, fire, injuries, damage, adrift in North Atlantic, Lt Chris Saunders, death, condolences
  • Holocaust Memorial Day, commemoration
  • Veterans Week (November 5-11, 2004), commemorating
  • Veterans Week (November 5-11, 2005), commemorating

39th Parliament, 1st session (03/04/2006-14/09/2007)

  • Accountability and transparency, improving, Federal Accountability Act (Bill C-2)
  • Afghanistan, Canadian aid, reconstruction support (Harper), 282
  • Air India, flight 182, June 23, 1985, terrorist attack, public inquiry
  • Chinese Canadians, Chinese Head Tax and Chinese Immigration Act, 1923: Apology/compensation and Repeal, 60th anniversary
  • Commonwealth Youth Ministers Meeting (Nassau, Bahamas, May 24-26, 2006), youth development and empowerment theme
  • Democracy, women, participation, Equal Voice Canada position
  • Employment Equity Act, 20th anniversary, tribute
  • Indian residential schools, compensation agreement
  • Judges, salaries and benefits, Legislation (Bill C-17)
  • National Day of Mourning, workplace fatalities, occupational health and safety, April 28th, commemoration
  • Québécois, nation within a united Canada
  • Slave trade, abolition, 200th Anniversary of the Act to Abolish the African Slave Trade in the British Empire
  • Softwood lumber, Canada-United States trade dispute, settlement agreement
  • Veterans Week (November 5-11, 2006), commemorating
  • Vimy Ridge (April 9-12, 1917), World War I battle, anniversary

39th Parliament, 2nd session (16/10/2009-07/09/2008)

  • Aung San Suu Kyi, Burma, political prisoner, honorary Canadian citizenship
  • Indian residential schools, apology to former students
  • Queen Elizabeth II and H.R.H. the Duke of Edinburgh, Diamond Wedding Anniversary
  • Veterans Week (November 5-11, 2007), commemorating

40th Parliament, 1st session (18/11/2008-04-12/2008)

  • Economic and Fiscal Statement (November 27, 2008)

As is fairly clear by the list of topics, most ministerial statements tend to focus on commemorative matters and explaining key pieces of government legislation. There are some exceptions, of course, such as the Prime Minister’s statement on the softwood lumber agreement with the United States (27 April 2006), a long-standing trade dispute. However, if you read the transcript from the Debates, there is no holding the government to account in these statements. The Prime Minister trumpets his government’s success in ending this dispute, then the leader of each opposition party has a chance to reply, and they do, in very partisan terms. There is no questioning of the PM for further information, no discussion, only partisan one-upmanship.

In the UK, after Question Time (and any urgent questions that may have been allowed) a government minister may make an oral statement to the House. Notice of statements is not usually given until the day they are to be made. The statements usually relate to matters of policy or government actions. At the end of a statement, unlike in Canada, MPs can respond or question the government minister on its contents – all MPs, not solely the leaders of recognized parties.

To see how this contrasts to Statements by ministers in Canada, I will provide a couple of recent examples from the UK House of Commons. Just yesterday (14 March), Prime Minister Cameron made a statement on events in Japan and the Middle East, which you can read here. As you can see, Cameron outlines what that UK government is doing in both cases, and takes questions from MPs. On 28 February, the first day back after a week-long recess, Cameron used a ministerial statement to brief the House on what had transpired during that week with regards to the situation in Libya and the efforts by the government to extricate British nationals from that country.

If you’ve taken the time to at least briefly look at the Canadian example and the UK examples, which to you appears to be the most informative and the best way to hold the government to account? In my view, there’s really no comparison to be made – ministerial statements in the Canadian House of Commons are rather self-serving affairs that more often than not fail to address urgent or topical issues. Because there is no opportunity for MPs to then question the minister, ministerial statements cannot be considered a means of holding the government to account.

Consequently, when you combine the focused, ministry-specific form of oral questions with the regular use of Urgent Questions and Statements by Ministers, there exists far more opportunity for the opposition to hold the government to account in the UK House of Commons than there are in the Canadian House of Commons.

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On misleading the House

On 9 March 2011, the Speaker of the Canadian House of Commons delivered two rulings on matters of privilege raised by the opposition against the Government. In both instances, the Speaker found that prima facie cases of privilege had been established, and that the government was in contempt of Parliament. It should be noted that this was the third such finding of contempt against the Government in less than a year. For a summary of both, I would direct you to this article.

I want to focus on the second ruling, that International Co-operation Minister Bev Oda breached parliamentary privilege by misleading MPs about the alteration of a document.

Accusations of deliberately misleading the House are fairly rare, and very difficult to prove. This particular contempt was given explicit recognition in 1963, following the infamous Profumo Affair in the United Kingdom. In that case, the House of Commons resolved that a former member (Profumo) who had made a personal statement to the House which he subsequently acknowledged to be untrue had committed a contempt of the House.

(What follows is based largely on information contained in various procedural manuals, in particular Parliamentary Practice in New Zealand by David McGee and House of Commons Procedure and Practice by O’Brien and Bosc.)

There exists an established constitutional convention that Ministers should always tell the truth to Parliament as far as this is possible without harming national security. The underlying assumption is that all Members are honourable, and therefore granted a certain benefit of the doubt in instances where statements might appear contradictory or in conflict with supporting documentation, for example. By benefit of the doubt, I mean that it is assumed that there was no deliberate attempt to mislead the House – deliberate being the very key word here. Consequently, there are three elements that have to be established when it is alleged that a member is in contempt for misleading the House:

  • the statement must, in fact have been misleading;
  • it must be established that the member making the statement knew at the time the statement was made that it was incorrect;
  • and, in making it, the member must have intended to mislead the House.

The standard of proof required is the civil standard of proof, but given the serious nature of the allegations, proof of a very high order. Consequently, reckless use of words in debate, for example, will fall short of the standard required to hold a member responsible for deliberately misleading the House. Also, the misleading of the House must be concerned with a matter of high importance to the House.

For a misleading of the House to be deliberate, there must be something in the nature of the incorrect statement that indicates an intention to mislead. Remarks made off the cuff in debate can rarely fall into this category, nor can matters about which the member can be aware only in an official capacity. But where the member can be assumed to have personal knowledge of the stated facts and made the statement in a situation of some formality, for example by way of personal explanation or in testimony before a committee, a presumption of an intention to mislead the House will more readily arise.

In the Oda case, what the House of Commons Procedures and House Affairs committee will have to determine is if Oda’s statements before the Committee on Foreign Affairs and International Development in December 2010, combined with her statement to the House in February 2011, meet the three elements described above. For anyone interested in more background information and a complete timeline of events in this matter, please see here.

There is one oddity in the Speaker’s ruling on the matter. Near the end, he states: “the Chair is of the view that sufficient doubt exists to warrant a finding of prima facie privilege in this case.” It is not up to the Speaker to determine if sufficient doubt exists, but rather, does sufficient proof exist to warrant a finding of prima facie privilege. Perhaps Speaker Milliken means that there is sufficient doubt about the Minister’s assertions that there was no deliberate attempt to mislead the House, but even if that is the case, it is an odd way to phrase his conclusion.

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