“It’s the only top job that requires no previous experience. No training, no qualifications and limited intelligence.” – Sir Humphrey on why anyone would want to be prime minister, in series 6, episode 1 of Yes, Prime Minister.
Recent controversies surrounding a handful of Canadian Senators have sparked an intense debate (at least among the chattering political classes) with many calling not simply for Senate reform, but for the Upper Chamber to be abolished. Those in favour of abolition view the Senate as a graveyard for appointed political hacks. I have written a good number of posts defending the Senate. I am not at all in favour of abolishing it, however, I do recognize that the appointment process is flawed. I will once again address some of the issues raised by critics of the Senate.
“Appointed political hacks”
One of the most common criticisms levelled at current day Senators is that they are simply “appointed political hacks”. The specific problems which have surfaced in recent days are due in large part to the appointment process. Senators are appointed by the Governor General, on the advice of the Prime Minister. In reality, the Prime Minister chooses who he or she wants, and the Governor General simply formalises that choice. How does the PM choose a candidate for the Senate? No one really knows. They may well solicit recommendations from others, but whether or not there is any sort of vetting undertaken to ensure that at the very least, the prospective Senator meets the very minimum requirements outlined in the Constitution Act, 1867, is impossible to say. One of those requirements is that the Senator live in the province they are representing, and one of the Senators currently in the media spotlight is in trouble over the very fact that it appears he does not, in fact, live in the province he is supposed to be representing – yet he is claiming the housing allowance. This would have been a very easy thing to verify before appointing said Senator. Apparently, no one bothered.
Appointment in and of itself is not the problem. Many high-level positions in this country are filled via an appointment process, for example, judges. The problem with Senate appointments is, as stated above, that there is no, or very little, vetting of prospective candidates, the process is under the full control of the Prime Minister, and there is little specific criteria set out that a prospective Senator needs to meet. Consequently, critics are right on this point – those who get appointed are largely political hacks – party fundraisers, failed candidates who lost their seat in the last election, etc.
Section 23 of the Constitution Act, 1867, sets out the following qualifications for a Senator:
(1) He shall be of the full age of Thirty Years;
(2) He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union;
(3) He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or in Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all Rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same;
(4) His Real and Personal Property shall be together worth Four thousand Dollars over and above his Debts and Liabilities;
(5) He shall be resident in the Province for which he is appointed;
(6) In the Case of Quebec he shall have his Real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division.
Reflective of the time, these requirements focused on property ownership and financial solvency. A Senator had to be at least 30 years old, a British citizen (since there was no Canadian citizenship at the time), own land worth at least $4000, not in debt, and be a resident of the province from which he (for there were no women Senators in 1867) was appointed.
As we can see today, even these minimal criteria haven’t been properly met by some recent appointees, which further supports the argument that very little vetting actually takes place.
The solution to the above isn’t abolishing the Senate, but reforming the appointment process. I have previously written about this, and while many ideas have been put forward, my preferred option remains that proposed by the late W.T. Stanbury and B.Thomas Hall in their paper “Reforming Canada’s Senate: a pragmatic approach“. Hall and Stanbury propose constraining the power of the PM by establishing an independent commission with legislated criteria for selecting appointees. This independent Senate Appointments Commission (SAC) would recommend candidates to the PM, who would then advise the Governor General to make the appointments.
The authors also propose criteria for nomination: “emphasize outstanding attainment in a profession or occupation, and/or a substantial record of interest in and contribution to public affairs” with the objective being to:
appoint men and women of real accomplishment seriously interested in effective public policy – rather than partisan advantage, although former partisans wouldn’t be excluded. We want Senators to reflect the diversity of Canada, and be able to provide a regional perspective where that can improve the quality of federal laws.
Hall and Stanbury posit in their paper that the creation of a SAC would not require any constitutional changes – it could be done by the federal government alone. I am not a constitutional expert, and so I will take them at their word on that. I’m certain some provinces would object, they usually do, but the authors state clearly that:
Our proposals are also not open to constitutional challenge by the provinces.
We believe democracy requires that a partisan body be subjected to periodical elections for it to be held accountable to citizens. We do not believe that a non-partisan body, whose members have been appointed for their knowledge, experience and devotion to the interest of all Canadians, need to be held accountable through elections. Instead, their work must be open and transparent and subjected to the criticism of the public and the public’s elected representatives.
“Elected political hacks?”
While some critics of the Senate aren’t calling for its abolition, they do want it to become more legitimate, e.g. they want elected Senators. As I’ve previously written in an earlier post on the Senate, I sometimes struggle to understand people’s fixation with democratising everything. I don’t think that elected necessarily equals better. We often lament the fact that we can’t attract really outstanding individuals to run for public office. There are a myriad of reasons why people might not be interested in subjecting themselves to the ups and downs of running for office, and I can certainly sympathise with them on that front. However, that doesn’t mean that these same people wouldn’t be interested in serving the country in a different way, and would welcome a Senate appointment. Still, it remains that many will not be satisfied with anything less than elected Senators. While electing Members of the Upper House might legitimize their existence for some, there is a real possibility that Senators would then go from being appointed political hacks to elected political hacks.
I say this because of the current status of the Canadian House of Commons. Concurrent with the debate on the Senate, there is a growing call for reform of the Canadian House of Commons, which many political observers (if not all of them by this point) consider to be highly dysfunctional. Various media and other sources have launched discussions on how to reform the House, and have identified some of the key problems. One of the biggest is that of the excessive control the party leader exerts over his or her MPs. By some accounts, the level of party discipline in Canada is the strictest in the world. Canadian MPs almost never vote against their party – even on items which shouldn’t be whipped votes (meaning there shouldn’t be a party line to vote against), such as Private Members’ bills and motions, as I explained in this post. Rebellion on larger issues, such as the budget? Forget it. While UK MPs regularly defy their party whips, this simply does not happen in Canada.
Part of the reason for this is that the party leader signs each candidate’s nomination form. Fall out of the leader’s good graces and that will be the end of your career as an MP. Of course, they could try running as independents, but independents very rarely get elected – and have virtually no power once in Parliament should they manage to get elected. If the party leader has that much control over MPs, surely the same process would be put in place for elected Senators. Meaning once elected, Senators would be as beholden to the party leader as MPs are. We’d end up with two Chambers of completely whipped automatons. I really fail to see how that would be an improvement over the current situation.
“Who needs it anyway?”
Which brings us back to the abolitionists’ position – just get rid of the Senate. It doesn’t do anything. Well, anyone who says that simply doesn’t pay any actual attention to the work that the Senate does. Because of the current level of dysfunction in the House of Commons, often the only real scrutiny any bill gets is in the Upper House. The Commons finds itself handstrung by time allocation measures or overwhelmed by massive omnibus bills – which are often also time allocated. The Standing Committee on Government Operations and Estimates concluded that the House is failing in its duty to properly oversee how the Government spends money.
Many on the pro-abolition side point to the provinces, which are all unicameral, and happily state that they function just fine without an upper chamber. Again, I can only assume that they don’t pay very close attention to what really goes on in most provincial legislatures. If they did, they probably wouldn’t make that assertion. Some smaller legislatures probably do function fine with only one chamber, but being in a position to very closely observe one of the larger provincial chambers, I can say that the problems common to the House of Commons are in some ways even more prevalent at the provincial level. An Upper Chamber might actually be a welcome addition for some provinces.
In 2011, at a meeting of the Commonwealth Heads of Government held in Perth, Australia, the 16 countries which have Queen Elizabeth as their head of state agreed to modernize the rules of royal succession. The proposed changes would put an end to three current practices:
- male children inheriting the throne ahead of their older, female siblings.
- a ban on a monarch or direct heir to the throne marrying a Roman Catholic.
- the requirement for all descendants of George II to obtain the monarch’s permission to marry or else have their marriage declared void.
The Canadian government recently introduced Bill C-53, An Act to assent to alterations in the law touching the Succession to the Throne. A motion was moved, and agreed to unanimously, to give the bill second and third reading the same day, and it is now before the Senate.
For many, however, the Canadian bill is problematic and potentially even unconstitutional. Essentially, it merely assents to the Bill currently before the UK Parliament. You can track the progress of the UK bill as well as read it in its current form here. By merely assenting to the UK bill, Canada is merely agreeing with whatever changes are ultimately adopted by the UK Parliament.
Many constitutional experts are arguing that this approach is not sufficient, and that Canada would actually be required to amend its Constitution in order to adopt these changes. The constitutional amendment would also require the support of all of the provinces.
I am by no means a constitutional expert, and so I will link to articles written by people far better qualified to explain this complex issue.
1. For an excellent overall background piece, please read Janyce McGregor’s Canada’s royal baby bill risks constitutional complications. McGregor explains how this issue came about, and provides an overview of the main constitutional arguments in a very accessible way.
2. For a more detailed discussion of the constitutional questions raised by Bill C-53, please read Prof. Philippe Lagassé’s The Queen of Canada is dead; long live the British Queen:
If the United Kingdom cannot legislate the rules of succession for the Canadian Crown, it follows that Canada must have the power to determine the rules of succession for its Sovereign and head of state. At present, the Canadian rules of succession are those that were inherited from the United Kingdom. And an argument might be made that they must mirror those of Great Britain absent a constitutional amendment, owing to the preamble of the Constitution Act, 1867. But mirroring the British rules does not mean Canada can simply assent to British bills to bring its succession into line with the United Kingdom’s. If Canada is a sovereign state and has an independent Crown, the Canadian legislatures—Parliament and the provincial legislatures—must pass substantive legislation to ensure that Canada’s rules of succession reflect those of Great Britain, not merely assent to a British law. Here again, the Governor General’s granting of Crown consent to the Canadian bill indicates the government is at least partially aware the British and Canadian Crowns cannot be affected by the same British law.
3. Australian constitutional expert Anne Twomey is also baffled by the Canadian government’s approach, as she explains in The royal succession and the de-patriation of the Canadian Constitution:
Hence, all that the Canadian Bill appears to do is to agree to a change in the law of succession in relation to the British Crown that does not in any way affect, or purport to affect, the succession to the Crown of Canada. The consequence would be that if the eldest child of the Duke and Duchess of Cambridge was a girl and a later child was a boy, the girl would become Queen of the United Kingdom and the boy would become King of Canada (assuming that neither jurisdiction had become a republic by that time).
Likewise, s 2 of the Canada Act 1982 provides:
No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.
It would therefore seem to be abundantly clear that a Canadian law that simply ‘assents’ to a British law that changes succession to the British throne, does not and cannot affect succession to the throne of Canada.
Similarly, the Canadian Royal Heritage Trust argues:
Queen Elizabeth II was proclaimed in Canada as the Sovereign and “Supreme Liege Lady in and over Canada to whom we acknowledge all faith and constant obedience” before she was proclaimed Sovereign in the United Kingdom. Of course Elizabeth II had become the Queen of both countries the instant that her father had died, by virtue of the laws of Succession. Her sovereignty was announced to her peoples, not granted, by the respective Accession Proclamations, but Canadians were able to recognize who their Sovereign was without reference to any proclamation of recognition in the United Kingdom because the laws of Succession in the two countries produced the same Sovereign. If there were no laws of Succession in Canada the Canadian Accession Proclamation in 1952 could not have been issued first. For the record, it was the already proclaimed Queen of Canada who was then proclaimed as Queen of the United Kingdom.
Of course, not everyone agrees with these arguments. For example, Prof. Mark Walters of Queen’s University dismisses these concerns:
The question has produced controversy — but it shouldn’t. The short answer is simple: under the law of the Constitution of Canada, the king or queen of Canada is whoever happens to be the king or queen of the United Kingdom. Although the government of Canada introduced a bill into the Canadian Parliament this month that, when enacted, will express “assent” to the changes to the rules of royal succession to be made by the British Parliament, this assent will be given as a matter of constitutional practice or convention only; it is not required by, and it will have no effect within, Canadian constitutional law. Again, the rule of Canadian constitutional law is simply that the Crown in Canada is worn by whoever wears the Crown in the United Kingdom. While British rules on who wears the Crown in Britain are complex and open to change from time to time, the Canadian rule on who wears the Crown in Canada is simple and, for the time being, fixed.
- The New Zealand Royal Succession Bill
- Parliament of Queensland (AUS) Succession to the Crown Bill 2013
One of my goals with this blog is to explain to people some of the more, shall we say, arcane aspects of our system of government. My role is not to go into explicit detail, but to provide an overview which I hope will help people understand some of the important, yet often misunderstood (or unknown!) procedures that make up parliamentary government in countries such as Canada.
I have recently come across a blog which has a similar goal, but rather than explain how our system of government works, or the fine points of parliamentary procedure, this blog looks at how to best engage with government. All of those online petitions you’re asked to sign? Those angry emails you’ve sent off to your local MP or a minister or even the prime minister? Maybe not the best way to get a response.
For an insider’s view on how people communicate with government, and why many approaches really don’t work, The Civic Engager is a blog written by a someone who works for the Canadian Government controlling and coordinating executive correspondence from the public. As explained in the About section, the goal with the blog is “to encourage better input from the public. The misconceptions people have about corresponding with the Government are endless, and the results are discouraging.”
So if you are planning to write to your MP, you might want to have a look at this blog first for some key advice on what to say and how to say it.
Canada, the United Kingdom, Australia, New Zealand, and many other countries, are constitutional monarchies. Constitutional monarchy is a form of monarchical government established under a constitutional system that acknowledges an elected or hereditary monarch as head of state. Modern constitutional monarchies usually implement the concept of trias politica or “separation of powers”, where the monarch either is the head of the executive branch or simply has a ceremonial role. Where a monarch holds absolute power, it is known as an absolute monarchy. The process of government and law within an absolute monarchy can be very different from that in a constitutional monarchy.
Canada is a constitutional monarchy and a Commonwealth Realm that formally recognizes Elizabeth II as Queen of Canada. Though the United Kingdom and Canada share the same Monarch, the Queen of the United Kingdom is a legally separate role from the Queen of Canada.
Today, constitutional monarchy is almost always combined with representative democracy, and represents theories of sovereignty which places sovereignty in the hands of the people, and those that see a role for traditions in the theory of government. Though the king or queen may be regarded as the head of state, the Prime Minister, whose power derives directly or indirectly from elections, is head of government.
Although current constitutional monarchies are mostly representative democracies, this has not always historically been the case. There have been monarchies which have coexisted with constitutions which were fascist (or quasi-fascist), as was the case in Italy, Japan and Spain, or with military dictatorships, as was the case in Thailand.
Some constitutional monarchies are hereditary but others, such as that of Malaysia are elective monarchies.
The Sixteen Realms of the Commonwealth of Nations
The most significant family of constitutional monarchies in the world today are the sixteen Realms of the Commonwealth of Nations, all independent parliamentary democracies under Elizabeth II. Unlike the United Kingdom, almost all of the other countries in this family have written constitutions with complex processes for constitutional change. Through political crises, peaceful constitutional drafting and international debate, the Westminster conventions concerning the constitutional monarch have gained much clearer definition in the other fifteen Realms than in the United Kingdom. In many of these constitutions the monarch or her representative have been regarded as an integral part of the Executive and Legislative processes, and their positions are explicitly protected, at least in part, by the written constitution.
Unlike some of their continental European counterparts, the Westminster monarch and her representatives retain significant “reserve” or “prerogative” powers, to be wielded only in times of extreme emergency (e.g. Australia 1975, Granada 1983, Solomon Islands 1994), usually to uphold parliamentary government. On these occasions a lack of understanding by the public of the relevant constitutional conventions can cause controversy: for example, the 1975 dismissal of the Whitlam Government in Australia.
Canada as a Constitutional Monarchy
Canada is a constitutional monarchy and a Commonwealth Realm that formally recognizes Elizabeth II as Queen of Canada. Though the United Kingdom and Canada share the same Monarch, the Queen of the United Kingdom is a legally separate role from the Queen of Canada.
The role of the sovereign, which on paper seems to be all-encompassing, is contrasted with the reality that the Queen is bound by convention to very rarely exercise her powers, and is thus largely a ceremonial figurehead. Instead the great majority of the Monarch’s power, prerogatives, and duties are performed on a day-to-day basis by the Governor General at the federal level, or by the Lieutenant-Governors at the provincial level. While her formal political role has diminished, and the Governor General has taken on more of the Head-of-State functions, the Monarch is still the constitutional head of Canada. In that capacity, all government business, all laws, all elections, etc., are done or proclaimed in the Sovereign’s name.
The current Queen, Queen Elizabeth II, has reigned as Canada’s sovereign since her ascension on February 6, 1952, and she has been a far more visible Monarch than any in the past, visiting Canada 21 times as Queen (and once as a Princess), more than any other Commonwealth Realm except the UK itself.
In Canada, the Queen’s official title in English is: Elizabeth the Second, by the Grace of God of the United Kingdom, Canada and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith. In French, the Queen’s title is: Élizabeth Deux, par la grâce de Dieu Reine du Royaume-Uni, du Canada et de ses autres royaumes et territoires, Chef du Commonwealth, Défenseur de la Foi. In common practice, Queen Elizabeth II is referred to simply as “The Queen” or “The Queen of Canada” when in Canada, or when abroad and acting on the advice of her Canadian ministers.
Some Notable Features of the Canadian Constitutional Monarchy
Although Queen Elizabeth II is also monarch of the United Kingdom and several other Commonwealth countries, each nation, including Canada, is sovereign and independent of the others. The identity of the sovereign is determined by the conditions set out in the Act of Settlement. As a result of the Balfour Declaration of 1926, the dominions acquired the right to be considered equal to Britain rather than subordinate; an agreement that had the result of, in theory, a shared Crown that operates independently in each realm rather than a unitary British Crown under which all the dominions were subordinate. The monarchy thus ceased to be an exclusively British institution, although it has often been called British since this time (in both legal and common language) for historical reasons and for convenience. The Royal and Parliamentary Titles Act, 1927 was the first indication of this shift in law, further elaborated in the Statute of Westminster, 1931. Under the Statute of Westminster, 1931, Canada has a common monarchy with Britain and the other Commonwealth Realms and cannot change the rules of succession without the unanimous consent of the other realms, unless Canada explicitly leaves the shared monarchy relationship by means of a constitutional amendment.
Succession to the throne has been by male-preference primogeniture and governed by the provisions of the Act of Settlement and the English Bill of Rights. These documents are now part of Canadian constitutional law. In 2011, the Commonwealth Realms agreed to amend the rules governing the line of succession to the Throne. The changes will enshrine gender equality and freedom to marry an individual of another faith in the laws governing the Royal line of succession.These changes are expected to be adopted in 2013.
Although the Queen’s Canadian title includes “Defender of the Faith/Défenseur de la Foi,” neither the Queen, the Governor General, nor any Lieutenant-Governor has any religious role in Canada. There have been no established churches in Canada since before confederation in 1867. This is one of the key differences from the Queen’s role in the United Kingdom where she is Supreme Governor of the Church of England.
On all matters of state to do with Canada, the monarch is advised solely by the Canadian federal and provincial first ministers. Effective with the Constitution Act, 1982 no British government can advise the monarch on any matters pertinent to Canada.
All powers of state are constitutionally reposed in the Queen, who is represented at the federal level by the Governor General of Canada and at the provincial level by Lieutenant-Governor. The Governor General is appointed by the Queen upon the advice of the Prime Minister of Canada. The ten lieutenant-governors are appointed by the Governor General, in the name of the Queen, upon the advice of the Prime Minister of Canada though the Queen is informed of the Prime Minister’s decision before the Governor General gives assent. The Commissioners of Canada’s territories of Nunavut, Yukon, and Northwest Territories are appointed by Governor in Council at the recommendation of the Minister of Indian Affairs and Northern Development. But as the territories are not sovereign entities, the commissioners are not representatives of the sovereign. They receive instruction from the said federal Minister of Indian and Northern Affairs.
Royal Assent and proclamation are required for all acts of Parliament and of the provincial legislatures. Territorial legislatures are subject to the oversight of the Government of Canada. Provinces and their legislatures, as sovereign entities, are not.
The legal personality of the monarch in Canada is referred to as “Her Majesty the Queen in Right of Canada,” and likewise for the provinces and territories (i.e., “in Right of Ontario,” etc.). For example, if a lawsuit is filed against the federal government, the respondent is formally described as Her Majesty the Queen in Right of Canada. Of course, the Queen herself takes no more role in such an affair than in any other business of government. Indeed, in cases in which, for example, a province sues the federal government, it would formally be Her Majesty the Queen in Right of Prince Edward Island v. Her Majesty the Queen in Right of Canada.
As in the UK, the Queen’s role is almost entirely symbolic and cultural, and the powers that are constitutionally hers are exercised wholly upon the advice of the elected government. In exceptional circumstances, however, the Queen or Governor General may act against such advice based upon her reserve powers as when Governor General Byng refused a demand by Prime Minister W.L. Mackenzie King for a dissolution of Parliament and call for new elections, because King’s request was blatantly unconstitutional, and it is the first order of the Crown to defend the constitution (see King-Byng Affair). For the most part, however, the monarch functions as a rubber stamp and a symbol of the legal authority under which all governments operate. It has been correctly said since the death of Queen Anne (1714), the last monarch to head the British cabinet (when almost all of Canada was still French colonial territory), that the monarch “reigns” but does not “rule”. In Canada, this has been true since the Treaty of Paris (1763) ended the reign of Canada’s last absolute monarch, King Louis XV of France.
Queen Elizabeth II, as is common for all her other non-UK realms, is generally regarded as “Queen of Canada” only when she is actually present in Canada or when she otherwise performs ceremonies relevant to Canada, such as conferring Canadian honours in the UK or participating in the Canadian World War II memorial ceremonies in France. Except for a few duties which must be performed by the Queen (e.g., signing the appointment papers of governors general and lieutenant-governors, which no governor general can do), or which require assent by the Queen as well as the Governor General (as when Prime Minister Brian Mulroney expanded the number of Senate seats to assure passage of the Goods and Services Tax), all of the Queen’s federal duties are performed by the Governor General and all of her provincial duties are performed by the pertinent Lieutenant-Governor.
For Further Reading:
- Senate of Canada – Canada: A Constitutional Monarchy
- Canadian Heritage – The Monarchy in Canada
- Official Website of the British Monarchy
- The Future of the Crown in Canada, by Edward McWhinney
- The Crown and the Constitution, by Paul Benoit
I am truly humbled and honoured to announce that this blog won first prize in the Best Political Blog category in the 2012 Canadian Weblog Awards. It won 3rd place in 2011.
Thank you to the jury and to readers everywhere.
Recently, Canada’s federal Official Opposition proposed measures for improving decorum in the House of Commons. These measures would require changes to the Standing Orders in order to increase the Speaker’s authority to discipline unruly MPs:
who use harassment, threats, personal attacks, or extreme misrepresentation of facts or position in the House, particularly regarding Statements by Members and Oral Questions, including:
i. Revoking questions during Oral Questions from parties whose Members have been disruptive
ii. Issuing a warning to Members for a first offense
iii. Suspending Members from the service of the House for one sitting day for a second offense; five days for a third offense; and twenty days for a fourth offense
iv. Suspending Members’ sessional allowance for the duration of their suspension from the service of the House
Reaction has been varied. Sun Media’s David Akin pointed out that new rules aren’t required – if MPs want to stop this sort of behaviour, they can simply stop it. He also suggests that if the rules governing broadcasting of House proceedings were relaxed to allow reaction shots, that too might lead MPs to think twice about behaving boorishly:
The rules require that whenever the Speaker stands, the cameras may only show him. When he is not standing, the cameras may only show the MP who is speaking.
If TV networks – Sun News Network, CPAC, CTV, CBC, etc. – were able to control the cameras, we would certainly zoom in on sleeping MPs, on MPs giving others the finger, and so on.
Knowing that their hijinks would be beamed into the nation’s living rooms would surely be the best corrective.
I am not convinced that reaction shots would change much. The cameras in UK House of Commons do not stay focused on the Member who has the floor, and this does not stop other MPs from gesturing, making faces at, or heckling their counterparts on the opposite side. Akin is closer to the mark when he ends his column with:
But more unworkable and impossible-to-enforce rules?
Newsflash: They won’t work.
The problem isn’t really not enough rules, but that over the years (decades) the rules have been changed in ways that increasingly weaken the opposition and empower the government side – essentially rendering backbenchers – and the legislature – largely irrelevant. And I refer not only to the Standing Orders of the House of Commons, but also Canada’s Elections Act, as Aaron Wherry of Macleans explains in this post. The real problem in the Canadian House of Commons is that backbenchers are not free to ask questions of interest to them, they are given scripted questions by their party Whips. Ditto for most of the highly partisan Members’ Statements – I am certain most MPs would prefer to use their Member’s Statement as intended – to speak of something of interest to them and their constituents. Instead, they are given prepared, highly partisan statements by their party leadership.
What would be needed, more than new penalties the Speaker could impose on disruptive Members, would be rule changes to strengthen the Opposition, and to ease the control party leaders have over their MPs. A lot, maybe most, of the heckling and boorishness occurs because MPs other than those on the front bench are frustrated.
While the clip from the UK’s Prime Minister’s Questions in the above link might not show it, overall, the UK House of Commons is far more respectful and decorous than its Canadian counterpart. And the main reason for that, I believe, is because backbenchers in the UK have far more freedom than do their Canadian counterparts. Part of that is due to sheer numbers – there are 650 MPs in the UK House of Commons – the Conservative party alone has almost as many MPs as does the entire Canadian House of Commons – and so it is simply impossible for the whips to exert the same level of control over backbenchers that Canadian party whips do. As well, MPs have more control over their party leader. For example, in the UK Conservative Party, a vote of confidence in the party leader can be triggered by 15% of the party’s MPs. This means that if 46 sitting Conservative MPs write letters indicating they are unhappy with Prime Minister David Cameron as their party leader, a confidence vote is held. If Cameron were to lose that vote, he would have to resign as party leader. He would not be permitted to run again for the post of party leader either. The Liberal Democrats require that a majority of sitting MPs pass a motion of no confidence in the leader to trigger a leadership contest, but the defeated leader is allowed to stand again. Labour has no such non-confidence provisions.
The UK House of Commons has also embarked on a series of reforms in recent years which have served to strengthen the House vis à vis the executive. I have blogged extensively about many of these (see, for example, my “Fixing Ottawa” series, first post here). Governing parties in the UK do not expect that bills that they put forward will go through un-amended – or that they will even pass, which is not the case here in Canada. Because the opposition parties in the UK know that they will most likely be able to amend any government bill, there is less need to resort to tactics to try to stymie Government business in the House.
I know some will argue that if a party “wins” an election, then it has a mandate to govern and to get its legislation through the House. This argument would have more weight if our electoral system actually reflected how people voted. I don’t know how anyone can argue that a party elected to majority government with less than 40% of the popular vote (and often dismal voter turnout) has a real “mandate” to push through any piece of legislation virtually unopposed. And no piece of legislation is ever perfect – amendments should be welcomed, not defeated at every turn.
The problems in the Canadian House of Commons are mostly due to the excessive control parties have over their Members, and to years of changes to the Standing Orders which have only served to strengthen the Executive at the expense of the legislature. Fining an MP for being disruptive during Question Period won’t change anything. The problems go much deeper than that.
Canada’s federal Liberal Party is currently in the midst of a leadership race. During a debate held on 19 January 2012, the issue of electoral reform was raised a few times. The party has adopted an official position endorsing preferential voting (or the Alternative Vote), and most of the candidates stated that they backed that option.
On Twitter, respected Canadian pollster Nik Nanos tweeted:
#LPCldr electoral reform – not likely hot with Canadians – Cdns want to hear about jobs and healthcare.
This comment reinforced two points for me.
The first is my strong opposition to trying to implement electoral reform via a referendum. Mr. Nanos is entirely correct – the majority of Canadians don’t care about electoral reform. Even among political geeks, electoral reform tends to be a bit of a fringe issue. This is one (certainly not the only) reason why a referendum on electoral reform is such a bad idea if you seriously want said reform to pass. Most people will not follow the debate, and so won’t really know what they’re being asked to vote on. And even those who will be more aware will be asked to choose between a system they know well, even if they’re not entirely happy with it, and one they’ve most likely never experienced. I like to use this analogy:
Electoral Reformer: What’s your favourite soft drink?
Average voter: 7-Up.
Electoral Reformer: 7-Up, yes, that’s pretty good, but you know what? I’ve got this drink that is way better than 7-Up. Do you want to have that instead?
Average Voter: Can I try it first before deciding?
Electoral Reformer: No, you just have to trust me. It’s way better than 7-Up. And if you vote for this new one, we’ll get rid of 7-Up forever. Trust me – it’s better.
How do you expect someone to vote when asked to choose between something they know and something totally new and foreign to them? Of course most people will stick with what they know. Three provinces in Canada have held referendums on electoral reform (one province has held two) and the reform was defeated each time. The Canadian media seems to be largely opposed to electoral reform, and the press was dominated by columns and opinion pieces warning of the chaos that would ensue if we dropped FPTP.
The second thing is, while electoral reform is not a priority issue for most Canadians, that doesn’t mean that it shouldn’t be pursued. Just because something doesn’t crack the average voter’s Top 10 List of Important Things doesn’t mean it’s not important or necessary. Improving our democracy shouldn’t be contingent on whether or not it’s a popular issue. It should be pursued because it is necessary and the right thing to do.
There have been a growing number of columns and articles in various Canadian media over the past few months bemoaning the state of our parliamentary democracy and proposing various changes which might improve the situation. More often than not, electoral reform is mentioned – either in the column itself, or by a reader commenting on the piece.
There does seem to be a growing recognition or acceptance that the First-Past-the-Post voting system doesn’t quite work the way people would like. I won’t say it doesn’t work the way it should because it works exactly as it should. It simply isn’t the ideal system for multi-party democracies.
Inevitably, in these discussions, someone proposes some form of proportional representation, usually Mixed-Member-Proportional, where most MPs would be elected the usual way, but then each party’s numbers would be topped up with list MPs to more closely reflect the party’s actual percentage of the vote. And also inevitably, many other people chime in denouncing any form of PR because it leads to coalition government which is of course completely unstable – just look at (insert name of favourite basketcase country here).
The voting system change that seems to garner (or be garnering) the most support is the very one the UK rejected in the 2011 referendum – the Alternative Vote (AV), or preferential voting. As I’ve explained in the very, very many posts I wrote during the lead-up to that referendum, under AV, voters rank the candidates in order of preference. To be elected, a candidate has to get over 50% of the votes cast. If no candidate tops 50% after the first count, then the candidate with the lowest vote total is dropped from the ballot and the votes for that candidate are redistributed based on the second preferences indicated by voters. This process continues until someone ends up with over 50%. See this post I wrote back in 2011 to explain to British readers how the vote would work.
AV isn’t used in a lot of places. Australia is the best example available of a western democracy which uses it. At the federal level, they use “full prefential voting” to elect the House of Representatives (a completely different system is used to elect Senators – see this handy guide to voting systems used in Australia). That simply means that voters have to rank every single candidate on the ballot. I believe they can leave one candidate unranked, and that will be counted as their last choice, but if they leave more than one candidate unranked, the ballot is rejected. At the State level, some states also use full preferential to elect their Legislative Assemblies, while others use “optional preferential”. Under this variant, voters can rank as many or as few candidates as they want – this was the model proposed in the UK. Under optional preferential, voters can treat their ballot as a FPTP ballot if they so desire – voting for one candidate and one candidate only.
The Alternative Vote appeals to many because it is fairly simple (not quite as simple as FPTP, but certainly far less complex than other voting systems out there), and it would address the issue of MPs being elected with minority support. As I’ve also repeatedly blogged, the majority of MPs in Canada win their seat with less than 50% of the vote cast in their riding – sometimes a lot less. AV would put an end to that, in theory, at least.
It is really important to understand that this is the only advantage or benefit AV has over FPTP. In many ways, it can lead to even more distorted results than FPTP currently does, e.g. a single party winning even more seats than it might have under FPTP. It is not at all proportional, so it won’t put an end to majority governments formed by a party with much less than majority support, meaning many voters will continue to feel as if their votes don’t count.
Each form of AV also presents other problems. Full preferential, where a voter would have to rank every single candidate on the ballot paper, would force many – probably most voters - into making what can only be described as artificial choices. Some voters simply don’t have a second choice – they vote for one party and one party only, and would have no desire to even attempt to rank any other candidates. Other voters might have an easier time ranking the two or three major parties on the ballot, but here’s the big problem. Most ballot papers in Canada have several candidates listed, often as many as 10 or so. Apart from the candidates representing the three or four major parties in the country, there are also a large number of candidates representing fringe parties most people have never heard of, as well as candidates running as independents. Leaving aside the one-party-only people, for everyone else, it would be a very trying experience, if not even a complete joke, to try to rank the fringe and independent candidates. And never mind trying to rank candidates you’ve never heard of, what about having to rank candidates you dislike equally? Think about this for a minute, about how many candidates were actually listed on your ballot the last time you voted. Now imagine having to rank every single one of those individuals in order of preference in order for your ballot to count.
So go with optional preferential – problem solved. Indeed. But let’s remember that the only advantage AV has over FPTP is that it is supposed to ensure that the MP elected is elected with over 50% support in that riding. While most think that means “50% of the votes cast”, if you’re using optional preferential, what you end up with is someone elected with 50% of the votes still in play, which may be a very different number from the total number of votes cast. Under optional preferential, voters can choose to cast their vote for one candidate only, and indeed, many do just that. This is a phenomena known as “plumping”. Optional preferential has been used in Canada in the past, in three different provinces, and I have a post looking at what happened in those provinces during the time they used optional preferential. As you can see, the plumping rate was quite high – sometimes over 60%. That means only a minority of people were actually ranking more than one candidate. I am willing to guess that at best, most voters who do bother to rank will rank only two or three candidates. If the majority of ballots can’t be transferred after the first count, the one advantage AV has over FPTP pretty much disappears.
As well, optional preferential can end up costing parties seats because of voters treating their ballot as a FPTP ballot. See this post by Australian elections expert Antony Green on the recent election in Queensland. There is also evidence that optional preferential disadvantages smaller parties (and independents) – just as FPTP does. As Green points out in this post, wherein he re-does the 2010 Australian federal election using optional preferential rather than full preferential, “optional preferential voting always advantages the party with the highest first preference vote.”
It may interest some proponents of AV to know that the State of Queensland is currently conducting an inquiry into its electoral law, and an important focus of that is whether optional preferential should be retained (discussion paper PDF here). From page 37 of that discussion paper (emphasis added):
A key issue with OPV is that it has the potential to become a de facto ‘first past the post’ system. Preferences can be quickly exhausted where a large number of voters choose to vote ‘1’ only. This is particularly problematic where a large number of candidates are contesting a seat. In such a circumstance, it would be possible for a candidate to be elected with only a small proportion of the vote, which could leave the majority of the population unrepresented.
As part of its analysis of a survey of ballot papers from the 2009 state election, the ECQ found that approximately 63.03% of ballot papers were marked ‘1’ only. At the 2006 election, 62.15% of surveyed ballot papers fell into this category. Up until the 2001 election, the number of ballot papers marked ‘1’ only had been significantly lower (20.7% in the 1995 election).
Meanwhile, others in Australia are calling for a move towards proper proportional representation.
While I agree with most that AV/preferential voting might be the easiest electoral reform to implement here in Canada because it isn’t that different from FPTP, there are some very important issues associated with it that need to be carefully considered. It won’t be the panacea many seem to think it might be.
On 7 January 2012, Conservative Party leader David Cameron and Liberal Democrat Party leader Nick Clegg held a joint press conference, which you can watch here, to promote the Coalition government’s Mid-Term Review. That review lists what the government says it has achieved in meeting its coalition agreement and outlines further reforms to come. Both Cameron and Clegg stressed that the coalition would last the full five-year term.
One of the stranger questions asked during the press conference was if the coalition was like a marriage. Indeed, when Cameron and Clegg held their first press conference together back in 2010 to launch the coalition, some of the press coverage read as if it should have been on the Society pages rather than in the Politics section (see for example, this piece, or this one). Cameron answered that question thusly:
“To me it’s not a marriage, it’s a Ronseal deal, it does what it says on the tin – we said we would come together, we said we would form a government, we said we would tackle these problems, we said we would get on with it in a mature and sensible way, and that is exactly what we’ve done.”
This prompted the BBC’s political editor to write a column entitled: Coalition: Official – it’s not a marriage. The column starts:
It’s not a marriage. It never was. They were never in love so they are not renewing their vows.
That, in summary, is the reaction inside Downing Street to how the media, including me, have spoken about today’s joint news conference to be held at Downing Street by David Cameron and Nick Clegg.
Robinson goes on to explain:
The reason this debate about terminology is revealing is that both sides of this coalition have concluded that all this talk of marriage is toxic as it invites hacks like me to conclude that the Tory and Lib Dem partners are still “in love” – something which infuriates many of their natural supporters – or preparing to “divorce” in the run-up to the next election.
The Cameron/Clegg talk of their strengthened “shared purpose” was, of course, always going to make it hard to resist the temptation to ask whether both men are protesting too much. I doubt that many hacks today will resist.
It’s not surprising that the UK media haven’t known exactly how to cover the coalition – it is a rarity in First-Past-the-Post jurisdictions such as the UK. Indeed, the UK media, almost from day one, has regularly speculated not on if the coalition would collapse – that seemed to be a given, but when this would occur. At times it seemed that every single policy was “the one that will tear the coalition apart”, bring about the aforementioned “divorce”. What the press have failed to understand is that, in the words of the Constitution Unit’s Robert Hazell, is that the UK has a coalition government, but not a coalition Parliament.
The Conservatives and Liberal Democrats have not merged their two parties, therefore it is not surprising – or at least, should not be surprising – that the backbenches of each party often disagree. Such disagreement in the House does not mean that the coalition itself is coming apart at the seams. Indeed, even the parliamentary splits aren’t always divisions between the Lib Dems and the Tories, but divisions within the Conservative Party itself, as this other analysis from the Constitution Unit explains. A coalition is not merger of two parties; it is an attempt by two parties to find common ground in order to govern jointly.
Deputy Prime Minister Nick Clegg was questioned by the House of Lords Constitution Committee on 9 January 2012 and addressed many of the issues surrounding the workings of the coalition, in particular how it impacts the doctrine of collective ministerial responsibility. It’s an interesting discussion and I recommend watching it.