Coalition government and constraints on the PM’s prerogative powers

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

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

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

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

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

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

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

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

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

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Scandal as a catalyst for positive change

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

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

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

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

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

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

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

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

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

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

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

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On Speeches from the Throne and Prorogation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Worth following on Twitter

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

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

Canadian Constitutional/procedural expertise

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

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

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

Canadian political/parliamentary journalists/commentators

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

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

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

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Fix That House?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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PANDORA, Australia’s Web Archive

Last month, this blog was contacted by PANDORA, a Web Archive established by the National Library of Australia. They were seeking permission to include On Procedure and Politics in their digital archive.

This is a great honour and I will endeavour to write more about Australia in the future.

You can read more about the PANDORA archive on their website.

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E-petition misconceptions persist

From the BBC, we learn that 99.9% of e-petitions on the UK Government’s e-petitions website fail to reach the magic 1000,000 signatures target needed to have the petition referred to the Backbench Business Committee, according to a research team from Oxford University:

Nearly all e-petitions are doomed to become “digital dust”, they write.

“After 24 hours, a petition’s fate is virtually set,” the team concludes.

While the article itself is interesting as it explains the research’s team methodology, I did spot a few errors.

I have written a number of posts trying to clarify certain misconceptions surrounding how the UK e-petitions scheme works. The biggest misconception that persists to this day is that if a petition reaches 100,000 signatures, it will automatically be debated in the House of Commons. This is not the case. The only thing that happens if a petition reaches 100,000 signatures is that the government notifies the Backbench Business Committee that this has occurred. The article rightly states:

In a forthcoming book, a research team from Oxford University will show that 99.9% of e-petitions fail to reach the 100,000 signatures needed to trigger the prospect of a Commons debate.

This is a good choice of words – triggering the prospect of a debate is exactly what happens.

A bit further on, however, we read:

If an e-petition gets 100,000 signatures, a parliamentary committee will consider whether it merits a Commons debate.

The committee is not obliged to provide debating time, but nearly all of the petitions which have so far reached this threshold have either been woven into a previously arranged Commons debate or been the subject of their own debate.

This is false. If any petition – paper or digital – reaches 100,000 signatures, the Backbench Business Committee is formally informed of this. However, the Committee will only consider a possible debate on the petition if an MP or group of MPs apply to have it debated. If no MP decides to sponsor the petition for debate, the Committee has no authority to do so unilaterally. And even if the petition is sponsored by an MP who then applies to the Backbench Business Committee for a debate on the petition, it still has to meet the criteria set out for backbench business debates. As the article notes, most petitions which surpassed 100,000 signatures have been debated, but not all.

Also, the article fails to mention that any petition, regardless of the number of signatures it may have received, could be sponsored for debate by an MP. To the best of my knowledge, while this has not yet occurred, there is absolutely nothing stopping a backbench MP from applying to the Backbench Business Committee for a debate on any petition, even one that has received only a handful of signatures, if they believe the subject matter of that petition is worthy of being debated.

Because of this reality, which the article, and one presumes, the researchers, completely ignore, it rather undermines the premise that most e-petitions “fail” and become “digital dust” because they don’t receive 100,000 signatures. They “fail” because no MP sponsors them as a possible topic for a backbench business debate. What is needed is a better way for those behind an e-petition to connect with an MP who might be willing to bring the matter before the Backbench Business Committee.

I am also uncomfortable with saying that a petition has “failed”. Prior to the launch of e-petitions, traditional petitions presented in the House of Commons were tabled, and that was the end of it. While some jurisdictions require that the appropriate government ministry respond to every petition presented, regardless of how many people have signed the petition, this was never a requirement in the UK. Yet no one ever said these petitions had “failed”. It is only with the introduction of this rather arbitrary 100,000 signature target and the possibility of a debate that we now consider most petitions as having failed. Shouldn’t the true measure of a petition’s success or failure be whether it results in actual government action?

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Voter gender bias towards female party leaders

“The reaction to being the first female prime minister does not explain everything about my prime ministership, nor does it explain nothing about my prime ministership. It explains some things and it is for the nation to think in a sophisticated way about those shades of grey.” – Julia Gillard, 26 June 2013, farewell press conference

GillardRuddAustralian elections expert Antony Green has written an extremely fascinating article exploring the gender bias behind support for the Australian Labor Party (ALP). As you may recall, the ALP recently underwent another leadership spill which resulted in Prime Minister and party leader Julia Gillard being dumped by her party in favour of former party leader and PM Kevin Rudd.

During Gillard’s term as party leader and PM, gender because a prominent issue in Austrlian politics. As Green notes:

That opinion polls tended to show Mr Abbott polling less well among female voters was another factor in bringing gender into the general political debate.

Labor regularly highlighted Mr Abbott’s polling with female voters and the Liberal Party’s decision to feature Mr Abbott more often with his family and with his female colleagues and candidates suggested Liberal Party polling revealed something similar.

And of course, there was that now-famous attack on Abbott by Gillard in which she accused him of being a misogynist. That video went viral thanks to social media, garnering over 2 million views (at time of writing).

But what new polling is showing is that while the Liberal Party is less popular with women, Labor under Gillard was much popular with men:

On July 16, after the change of Labor leadership, the Australian featured a special analysis of Newspoll looking at the shift in gender voting with the change in leadership.

The article pointed to Labor’s support among women having lifted from 34 per cent to 38 per cent with the change of leadership. The article’s headline was all about Rudd being more popular among women than Gillard, the story re-visiting the misogyny and gender debate.

What I thought more revealing in the Australian’s table was the shift in the male vote after the change of leadership. Labor’s vote among men rose 7 per cent from 28 per cent to 35 per cent.

Before the change, a Fairfax Nielsen poll published on June 16 had highlighted a slump in Labor support among male voters; Labor slipping from its traditional position of polling more strongly among men than women had been evident earlier.

For all the talk of Mr Abbott’s problem with female voters, not nearly as much attention was paid to a clearly evident problem that Ms Gillard had with male voters, the other dimension to a gender gap in voting.

The leadership spill occurred on 26 June 2013, and the above poll would have been conducted days afterwards. Labor’s policies did not change overnight following the leadership change, therefore it is fairly safe to conclude, as Green does, that the increase in support for the part among male voters was entirely due to the change in leadership. The question remains, of course, did men simply dislike Gillard as a person, or did they dislike her specifically because she was a woman? That we will never know.

Political opinion polls conducted in Canada frequently single out the differences between male and female support for certain political parties, and sometimes for the party leaders as well. However, very little analysis is devoted to these differences, or to the fact that certain parties consistently poll better with one gender. If any analysis does focus on this, the difference in support by gender is attributed to policy – the party in question has policies which appeal more to male voters and less to female voters. It isn’t surprising that no attention would be given to the gender of the party leader since, barring a precious few exceptions, party leaders in Canada (at the federal level at least) have been overwhelmingly male.

There have been only four female leaders of major federal parties since 1867. The Liberal Party has never had a female leader, the Conservative Party (back when it was the Progressive Conservative Party) has had one, and the New Democrats (NDP) have had two. The Green Party is currently led by a woman, who is also the party’s only elected MP.

The NDP had two consecutive female leaders, Audrey McLaughlin (1989-1995) and Alexa McDonough (1995-2003). The party’s performance under their respective leaderships wasn’t stellar, but it isn’t possible to know to what degree gender bias may have been a factor. McLaughlin assumed the leadership from Ed Broadbent. Following the 1984 election, several polls afterward showed that Broadbent was the most popular party leader in Canada. Broadbent was the only leader ever to take the NDP to first place in public opinion polling, and some pundits felt that the NDP could supplant the Liberals as the primary opposition to the Progressive Conservatives. Nonetheless, he was not successful in translating this into an election victory in the 1988 federal election, since the Liberals reaped most of the benefits from opposing free trade. However, the NDP elected a party record 43 seats in that election, a record unchallenged until the 2011 election. The party’s first election under McLaughlin’s leadership (1993) was a disaster; the party was reduced to 9 seats, losing official party status. Things improved only marginally under McDonough – the party won 21 seats in the 1997 election, but then was reduced to 13 in the 2000 election.

Where the party’s misfortunes due to having female leaders? As Prof. Alan Cairns states in his paper, An Election to be Remembered: Canada 1993, it is impossible to know. In the 1993 election, two parties had female leaders: the NDP’s McLaughlin and the incumbent Progressive Conservatives were led by Kim Campbell:

The potential effect of this on their party’s support was unknown. Although McLaughlin suggested there was an anti-feminist backlash, this was discounted by most observers.

There were a great many other factors at play in the 1993 election which impacted the NDP’s fortunes. The PCs under Campbell’s leadership had a disastrous campaign, and the party itself was extremely unpopular after two terms in office, and it was decimated at the polls, reduced to only two seats. That result had very little to do with having a female leader.

Getting back to Australia, and Antony Green’s excellent article (please do read it in full!), the evidence is quite clear that male gender bias against Julia Gillard played a major factor in Labor’s polling:

In summary it is clear that in changing leader, Labor received overall support among intended Labor voters, received greatest backing for the change from among Centre voters, and received overwhelming backing from male voters – with little evidence of a major backlash among female voters.

(…)

Whether Labor’s problems were caused by sexism in the electorate, sexism by Ms Gillard’s opponents, sexism in the media, or missteps by Ms Gillard herself, clearly Labor couldn’t allow the impasse on the leadership to persist.

Labor’s bounce in the polls after the leadership change has subsided, and the Coalition are still favourites to win the election.

But Labor is still polling better than before the leadership change, and the Vote Compass data reveals that the story is not about Tony Abbot and female voters, but male voter attitudes to Julia Gillard.

This is obviously an area which requires more study, but until female party leaders are more commonplace, such study won’t be possible.

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Revisiting Rebuilding the House – Managing the rest of the House’s time

Background: The UK House of Commons Political and Constitutional Reform Committee (PCRC) released its Third Report of Session 2013-14, Revisiting Rebuilding the House: the impact of the Wright reforms. The Wright reforms are those recommendations put forward by the Select Committee on Reform of the House of Commons (aka the Wright Committee, after its chair, Dr Tony Wright). In the spring of 2010, the House of Commons voted to approve and give effect to many of those recommendations, which took effect at the start of the new Parliament following the May 2010 general election.

I am providing a brief overview across a number of posts of the report’s main findings. This is the third installment, looking at Section 4 – Managing the rest of the House’s time. Previous installments include the section on Select Committees, and the section on the Backbench Business Committee.

“There is a strong case for regarding all time as the House’s time. It is not the Government that seeks a debate but the House: what the Government needs are the decisions which enable it to carry out its programme.” (Rebuilding the House, para 129)

One of the main principles set out in the Wright Report was that the House of Commons should have more control over its own agenda, timetable and procedures. Despite the creation of the Backbench Business Committee, the Government still controls a significant majority of Parliamentary time. This reality rests partly “on the argument that governments are formed as a reflection of the popular vote” (p. 23).

The Committee found that the Commons “is as far away as ever from implementing the basic Wright principle that all time should be regarded as “the House’s time’”, and that the present procedure for setting the agenda, normally referred to as “the usual channels”, is inadequate. The usual channels describes the working relationship of the whips from the different parties and the leaderships of the Government and Opposition parties. The term refers to arrangements and compromises about the running of parliamentary business that are agreed behind the scenes. The Leader of the House then delivers a Business Statement in the House (usually on Thursdays), and members are able to question him or her on upcoming House business, the schedule for which has only just been presented to the House.

While there was much agreement among witnesses who appeared before the Committee that something else was needed, two important issues emerged. First, there was a lack of clarity about what a House Business Committee would do, and second, it would be very important to strike the right balance of membership. The Committee noted that:

 The balance of the evidence we received was that a House Business Committee with a limited role, its work clearly distinguished from that of the Backbench Committee, could be set up and could do useful work. (p. 27)

It also noted that the Coalition Government had promised to introduce a House Business Committee by the third year of the current Parliament, but as I discussed in an earlier post, the Leader of the House previously informed the Committee that this would not happen. The PCRC rejected this position and took up the Leader of the House’s challenge by putting forward the arguments for and against six possible models for a House Business Committee, these being:

  1. The Status Quo (“the usual channels”)
  2. More transparency about the business managers’ meeting
  3. An Informal Bureau
  4. A Consultative House Business Committee
  5. A House Business Committee that scrutinises the agenda
  6. A select committee which itself proposes an agenda for the House

I won’t go into the description and pros and cons of each model proposed above; that information can be found on pages 29-32 of the report. The PCRC favours option D, a consultative House Business Committee. This is described in the report as a:

[F]ormal select committee meeting in private, with published summary Minutes: membership established by House with representatives of all sides of House and not dominated by Whips, but separate from Backbench Business Committee; chaired by the Chairman of Ways and Means; purely consultative—Leader determines agenda actually announced to House; some House secretariat and access to forward plans to enable Committee to give timely consideration to Government’s proposals. (p. 30)

One final item considered in this section was that of a votable agenda, with many witnesses favouring such a reform. However, the Committee concluded:

111.  The Business Statement as it stands is not an adequate forum for discussion of the House’s agenda. It fails to provide a proper opportunity for Members to consider their future business, let alone for the House to endorse, and therefore genuinely control, its own agenda. We acknowledge the argument that, in certain circumstances, the House might welcome the opportunity to amend or vote down an agenda presented to it by the Leader of the House. However, we believe that a House Business Committee, constituted and operating effectively on the lines we propose, would remove the need for such a vote. (p. 35)

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