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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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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Cabinet vs the Ministry

The Executive Government consists of the Cabinet and the Ministry led by the Prime Minister. The Ministry is derived from the party (or parties) that command the confidence of the legislature.

The Ministry consists of all those Members of Parliament chosen by the Prime Minister (or in some countries, the party caucus). They serve as members of the executive arm of government and administer the various government departments.

There is often confusion between the ministry and the cabinet. In some countries, there is a clear distinction between the ministry and cabinet. In these instances, only the most senior Ministers, including the Prime Minister, form the Cabinet. So while all Cabinet Ministers are members of the ministry, not all members of the ministry are members of the Cabinet.

Other countries don’t observe this distinction, or if they do, the distinction between the two is much less clear.

In the UK, the number of paid ministerial posts is set out in the Ministerial and Other Salaries Act, 1975. This Act limits the size of paid cabinet positions to 22 (21 MPs and one peer). The ministry, however, is much larger. The same Act limits the ministry to 109 paid appointments. If the maximum number of Cabinet Ministers are appointed, a maximum of 29 Ministers of State and 33 paid Parliamentary Secretaries may be appointed. Of course, the Prime Minister can have an even larger ministry – the Act only limits how many ministers can be paid appointments, that is, MPs who will receive additional remuneration above the base salary of an MPs. There is no limit on the number of non-paid appointments.

Another interesting note is that the House of Commons Disqualifications Act, 1975, limits the number of ministers who can be in the House of Commons at one time to 95. This limit does not depend on whether or not the office holders are paid. You can see the current list of UK ministers (Cabinet and department ministers) here. The list starts with the Cabinet, followed by the nine ministers who also attend Cabinet, but aren’t Cabinet ministers, then the list of all ministers by department, including Ministers of State and Parliamentary Under Secretaries of State.

Some MPs in the UK are also appointed Parliamentary Private Secretaries (PPSs). They do not receive any additional remuneration for this, however, and are not considered to be part of the ministry.

In Canada, the division between the ministry and Cabinet doesn’t exist. As you can see on the official Ministry page, there is no distinction between Cabinet ministers and other ministers – all members of the ministry are part of the Cabinet. There is also no legislation limiting the number of Cabinet and other ministers as there exists in the UK. The current Canadian Cabinet totals 39 ministers.

As in the UK, the Prime Minister can also appointment a number of parliamentary secretaries. Yet unlike PPSs in the UK, parliamentary secretaries in Canada do receive additional remuneration above the base pay for an MP. However, they are not part of the Ministry. When Paul Martin became prime minister in December 2003, he appointed parliamentary secretaries to the Privy Council and said they would be invited to cabinet meetings when a policy matter for which they had specific duties was to be discussed. The current Prime Minister has returned to the earlier practice of not appointing parliamentary secretaries to the Privy Council. Under the Parliament of Canada Act, the number of parliamentary secretaries may not exceed the number of ministers.

Australia distinguishes between Cabinet and the Ministry. There are 20 Cabinet Ministers (including the PM), but a total of 30 ministers (an additional 10 ministers do not attend cabinet), and 12 parliamentary secretaries. All Ministers and Parliamentary Secretaries become members of the Executive Council. They receive the title “Honourable”. The Council’s full membership never meets. In practice the minimum number of Ministers or Parliamentary Secretaries (that is, two in addition to the person presiding) are rostered to attend. Meetings of the Council are presided over by the Governor-General or a deputy appointed by the Governor-General (usually the Minister with the title Vice President of the Executive Council). The matters dealt with at each meeting are recommendations by Ministers, for the approval of the Governor-General in Council, that something be done—for example, that a regulation be made, a treaty be ratified, or a person be appointed to a position.

While the Executive Council may seem no more than a rubber stamp, the processes involved in bringing matters before the Council ensure that Ministers’ actions are properly documented, are legally and constitutionally valid, and are in accordance with government policy.

New Zealand also has 20 Cabinet Ministers, plus five Ministers outside Cabinet who may attend Cabinet if needed, and three support party Ministers (link). Support party ministers are from the parties with support and confidence agreements with the governing National Party. New Zealand also has Parliamentary under-secretaries who are government MPs who are appointed to assist ministers with their portfolio duties. They do not have the powers of ministers, and are not members of the Executive Council. All ministers are members of the Executive Council, whether or not they are members of cabinet. The Executive Council is the highest formal institution of government in New Zealand, and is the means by which the government provides collective and formal advice to the governor general. The Executive Council generally meets weekly, following the meeting of cabinet, and is presided over by the governor general. The Executive Council implements decisions that require the force of law through regulations made by orders in council. It is the legislative executive, while cabinet is the political executive.

For further reading:
The Australian System of Government
Limitations on the number of Ministers and the size of the Payroll vote
The Role of Parliamentary Secretaries

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The Westminster System of Parliamentary Government

I frequently refer to the “Westminster system of parliamentary government” in posts, and thought it might be a good idea to fully explain how the Westminster system of government works.

The Westminster System of Parliamentary Government

The Westminster System is a democratic system of government modelled after that of the United Kingdom, as used in the Palace of Westminster, the location of the UK parliament. The system is a series of conventions and procedures for operating a legislature. It is used, or was once also used, in most Commonwealth and ex-Commonwealth nations. There are other parliamentary systems, for example those of various European countries, whose procedures differ considerably from the Westminster system.

Aspects of the Westminster system include:

  1. a head of state, who is different from the head of government, and who may possess reserve powers, which are not normally exercised, and whose role is largely ceremonial. In most countries, this is either a monarch or a representative of the monarch (e.g. Governor General), or a president;
  2. a head of government (usually called the Prime Minister or Premier or First Minister) who is appointed by the head of state, but who, by convention, must have the support of the majority of the Members of Parliament;
  3. an executive branch, usually called the Cabinet, made up of Members of the legislature and led by the head of government;
  4. the presence of opposition parties;
  5. an elected legislature, or a system in which one house is elected and the other appointed, although in some countries with bicameral systems, both Houses are elected;
  6. the confidence convention, by which the lower House can dismiss a government by either withholding Supply (not passing the budget) or via a vote of non-confidence (either by passing a motion of non-confidence or defeating some other measure which was deemed a matter of confidence);
  7. parliamentary privilege, which allows the legislature to discuss any issue deemed by itself to be relevant, without fear of consequences stemming from defamatory statements or records thereof;
  8. a parliament which can be dissolved and elections called at any time, even when there exists fixed election dates.

Most of the procedures of the Westminster system originated with the conventions, practices and precedents of the UK parliament, which are a part of what is known as the British constitution. Unlike the UK, most countries which use the Westminster system have codified the system in a written constitution. However convention, practices and precedents continue to play a significant role in these countries, as many constitutions do not specify important elements of procedure: for example, older constitutions using the Westminster system (e.g. Canada’s) may not even mention the existence of a head of government or Prime Minister, with the office’s existence and role evolving outside the primary constitutional text.

Operation

The pattern of executive functions within a Westminster System is complex. The head of state exercises a largely ceremonial role, even though they are the de jure source of executive power. The head of state does not normally exercise their executive powers; rather, these powers are exercised in their name by the head of government (Prime Minister),  the Cabinet and other junior ministers. For example, in the UK, the Queen theoretically holds executive authority, even though the PM and the Cabinet effectively implement executive powers. In a parliamentary republic like India, the President is the de jure executive, even though executive powers are essentially instituted by the PM and his Council of Ministers.

In a Westminster system, some members of parliament are elected by popular vote, while others may be appointed. Most Westminster-based parliaments which are bicameral have a House of Commons or House of Representatives, comprised of local, elected representatives of the people, and an upper house, which can come in a variety of different forms, such as the British House of Lords (with membership previously determined only by heredity, but changed to a mixed appointment-heredity system), or the Canadian Senate (appointed by the Prime Minister), or the Australian Senate (elected using a proportional system, the Single Transferable Vote). In Britain, the Commons is the de facto legislative body, while the House of Lords practices restraint in exercising its constitutional powers and serves as a consultative body. In other Westminster countries, however, the equivalent upper house of parliament can sometimes exercise considerable power. The head of government is usually chosen by being invited to form a government by the head of state or the representative of the head of state (e.g. the Governor General), not by parliamentary vote. There are notable exceptions to the above in the Republic of Ireland, where the President of Ireland has a mandate through direct election, and the Taoiseach (prime minister) prior to appointment by the President of Ireland is nominated by the democratically elected lower house, Dáil Éireann. In two of the Canadian territories, Nunavut and the Northwest Territories, which don’t have political parties but a system of consensus government, the Premier is elected by the other Members of the legislature.

The head of government, usually called the Prime Minister, must be able to either control a majority of seats within the lower house,  or to ensure the existence of no absolute majority against his or her government. If the parliament passes a motion of no confidence or if the government fails to pass a major bill such as the budget, then the government must either resign, so that a different government can be appointed, or seek a parliamentary dissolution so that new elections may be held in order to re-confirm or deny their mandate. In bicameral jurisdictions, government is formed in the lower house alone. Although the dissolution of the legislature and the call for new elections is formally done by the head of state, by convention the head of state acts according to the wishes of the head of government.

Cabinet Government

Members of the Cabinet are collectively seen as responsible for government policy. All Cabinet decisions are normally made by consensus. All ministers, whether senior and in the Cabinet, or junior ministers, must support the policy of the government publicly regardless of any private reservations. A cabinet member may be forced to resign, or may choose to resign, if they oppose one aspect of a government’s agenda. The power to appoint ministers to the Cabinet – and to dismiss them – is perhaps the single most powerful constitutional power which a Prime Minister has in the political control of the Government in the Westminster system.

Linked to Cabinet government is the idea, at least in theory, that ministers are responsible for the actions of their departments. It is no longer considered to be an issue of resignation if the actions of members of their department, over whom the minister has no direct control, make mistakes or formulate procedures which are not in accordance with agreed policy decisions. One of the major powers of the Prime Minister under the Westminster system is to be the arbitrator of when a fellow minister is accountable for the actions of his or her department.

The Official Opposition and other major political parties not in the Government, will mirror the governmental organisation with their own Shadow Cabinet made up of Shadow Ministers.

Consequences

The Westminster system is characterized by the presence of well-disciplined legislative parties in which it is highly unusual for a legislator to vote against their own party, whether they are part of the governing party or an opposition party, and in which no-confidence votes are very rare occurrences, usually occurring only during times of minority government. Also, Westminster systems tend to have strong cabinets. Conversely, legislative committees in Westminster systems tend to be weak, though they often have the ability to force a government to reveal certain pieces of information. The degree to which this is true varies from one jurisdiction to another, of course. Party discipline is extremely strong in Canada and Australia, but much less so in the United Kingdom. Also, recent reforms of select committees in the UK have given committees there much more independence and influence.

Ceremonies and Traditions

Parliaments using the Westminster system are greatly influenced by, and continue to follow many very ancient British customs. A Westminster-style parliament is usually a long, rectangular room, with rows of seats or desks on either side. The chairs are positioned so that the two sides are facing each other. The intended purpose of this arrangement is to create a visual representation of the adversarial nature of parliamentary government. Traditionally, the opposition parties sit on the side to the left of the Speaker, and the government party will sit to the Speaker’s right. This is how the UK House of Commons and the Canadian House of Commons are laid out, but the Australian House of Representatives and New Zealand parliament are not. Those two chambers both adopted a horseshoe arrangement, but the government side is still to the right of the Speaker and the opposition parties to the left. Tradition holds that the distance between the to sides in the UK House of Commons is that of the length of two swords although no documentary evidence exists to support this and in fact, weapons have never been allowed in the Palace of Westminster at any time.

At one end of the room sits a large chair, for the Speaker of the House. The Speaker usually wears a black robe, and in many countries, a wig. Robed parliamentary clerks often sit at narrow tables between the two rows of seats.

Other ceremonies sometimes associated with the Westminster system include an annual Speech from the Throne (or equivalent) in which the Head of State gives a special address (written by the government) to parliament about what kind of policies to expect in the coming year, and lengthy State Opening of Parliament ceremonies that often involve the presentation of a large ceremonial mace carried by the Sergeant-at-Arms.

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Faint signs of democratic awakenings

I have written a number of posts on how whipped Canadian backbench MPs are when compared to their counterparts in other parliaments. In recent weeks, it would seem that some backbenchers have maybe had enough of this situation.

One MP raised a point of privilege to argue that prevented by his party whip from delivering a statement in the House during “Statements by Members”, a 15-min period each day during which backbenchers can deliver one-minute statements on matters of international, national or local concern. As per the Standing Orders, any MP can be recognized by the Speaker to speak during this time, but, in practice, the Speaker is guided by lists provided by the respective party whips. The Member, Mr. Warawa, appealed to the Speaker that in being removed from his side’s list last Thursday, his privileges as an MP were breached.

For a detailed overview of the situation, I will refer you to this guide prepared by Aaron Wherry of Macleans. Mr. Wherry’s guide includes a multitude of links to other posts he and others have written on the issue. A number of MPs spoke up in support of Mr. Warawa’s point of privilege, and the Speaker delivered his ruling on the matter last week, which you can read in full here. The Speaker did not find that there was a prima facie case of privilege but reminded backbenchers that the Speaker is guided by the lists, not bound to them, and if they want to speak, they need to “seek the floor”, which they are free to do at any time.

For people unfamiliar with the Canadian House of Commons, it is important to understand that the issue of lists of which MPs will speak is not limited to Members’ Statements. The party whips provide lists to the Speaker for Question Period, for debates on bills – in sort – for virtually every single item of business in the House. And it isn’t simply a matter of these lists largely determining which MPs will be able to speak in the House, if they are on the list, they are often also told exactly what they will say when they do get the floor. They are given scripted questions to ask during Question Period, which means that rather than question the government and hold it to account, questions from government backbenchers are used to attack and question opposition party policy, or to give the government an opportunity to promote a policy or initiative. And sometimes, the question will manage to do both:

Mr. John Carmichael (Don Valley West, CPC): Mr. Speaker, while the NDP members continue to bend and twist Canada’s rich military history to suit their far left leanings, our government is committed to commemorating Canadian veterans and their accomplishments.

In January our government proudly marked 2013 as the year of the Korean War veteran, and today the Minister of Veterans Affairs and the Minister of National Defence made yet another great announcement. Would the Minister of Veterans Affairs please update this House on how we are continuing to recognize Canada’s great accomplishments during the Korean War?

Hon. Steven Blaney (Minister of Veterans Affairs and Minister for La Francophonie, CPC): Mr. Speaker, the member for Don Valley West is right. They were young and reckless. Along with more than 15 countries with the United Nations 60 years ago, they fought in Korea for freedom, democracy, and the rule of law against communism. Today, the Minister of National Defence and I presented a certificate of recognition to our great Canadian Korean War veterans to show our deepest gratitude and recognition for their many sacrifices. I thank our Korean War veterans. Thank you very much.

The Speaker concluded his ruling thusly:

Even so, as Speaker I cannot exercise my discretion as to which Member to recognize during Statements by Members or at any other time of the sitting day if only one Member is rising to be recognized.
As previously mentioned, due to an over-reliance on lists, more often than should be the case, even those Members on the list do not always rise to be recognized.

Were the Chair to be faced with choices of which Member to recognize at any given time, then of course the Chair would exercise its discretion. But that has not happened thus far during Statements by Members, nor for that matter, during Question Period. Until it does, the Chair is not in a position to unilaterally announce or dictate a change in our practices. If Members want to be recognized, they will have to actively demonstrate that they wish to participate. They have to rise in their places and seek the floor.

In the meantime, I will continue to be guided by the lists that are provided to me and, when and if Members are competing for the floor, will exercise my authority to recognize Members, not in a cavalier or uninformed manner but, rather, in a balanced way that respects both the will of the House and the rights of individual Members.

While this should strike most as common sense – if a Member wants to be recognized by the Chair, he or she needs to stand in their place to indicate to the Speaker that they want to speak – what is surprising (also shocking and terribly saddening) is that some MPs apparently didn’t even know that they could do this. As Laura Ryckewaert writes in “Former House Speaker Fraser calls Scheer’s ruling ‘very important,’ but another expert expects MPs won’t do much with ruling” ($):

Mr. Scheer’s ruling isn’t groundbreaking, and he has instead highlighted a pre-existing right that was forgotten over time by MPs but Mr. Warawa and Mr. Chong said they hadn’t previously realized they had the right to stand to be recognized by the Speaker during statements or questions.

Another MP, Mr. Rathgeber, told reports that he planned to take advantage of this new-found right and added that “he thought there would be a ‘transition’ as “members will have to adjust to being able to speak without having been approved, being put on a list.””

Many might wonder how this dire state of affairs came to be. Peter Loewen explains the situation quite well in this article from the Ottawa Citizen. Mr. Loewen writes that prior to 1970, party labels did not appear on ballots, only the names of the candidates running in each constituency. The candidates were representatives of a party, but the situation wasn’t regulated and at times, there could be two candidates claiming to represent the same party. Parliament decided that reform was required and the solution adopted “was to have party leaders sign off on candidacies, officially identifying their party’s candidates.”

This solution created a new problem – the party leaders realized that this gave them enormous power over their MPs:

Since party leaders sign off on candidates, they can also refuse candidates by declining to sign their nomination papers. There is no legal mechanism for locally-selected candidates to overcome this prerogative. Sitting MPs are subject to this signature at every election. As a consequence, MPs serve not only at the pleasure of their electorate but also of their leader.

That MPs work beneath the thumbs of their leaders would be less objectionable if they had some counterweight. In other Westminster-style democracies, the counterweight is obvious: party leaders serve at the pleasure of their caucus.

In Canada, we have delegated the right to remove leaders to party members, that small class of Canadians who pay a pittance each year to carry a party’s card. From time to time, a small minority of them will trek off to a convention centre or a hockey arena to decide whether to renew their leader’s mandate.

They are accountable to no one. It should be no surprise, then, that the leaders they affirm are equally free of accountability.

The neutering of our MPs as free-thinking, independent representatives begins with their nominations and it ends with their inability to keep their leaders in check. In the meantime, the media and the punditocracy do what they can to remind MPs of their diminished role.

Since the ruling, some MPs have tried to stand and catch the Speaker’s eye to be recognized. Some have succeeded, others haven’t. A former House of Commons committee clerk, Thomas Hall, is quoted in the Ryckewaert article as saying that he doesn’t expect this to last: “If the whip wants to, he can crack down on that, he still has the power to discipline Members who disobey him.” In the same article, Professor Lori Turnbull (political science, Dalhousie University) says some MPs would consider this new-found freedom “career suicide”:

If you’re an MP and if you’re thinking, ‘Okay, I want to be on that particular committee, or I want that particular diplomatic post when I retire, or I want to say on [current Prime Minister] Harper’s good side’ or whatever it is, then you’re not going to be the guy who stands up in the House with the explicit knowledge that the Prime Minister and the party whip think you should sit down and shut up.

Still, perhaps the radical idea that MPs have the right to stand up of their own initiative and speak in the House might spark an interest in exploring other ways by which backbenchers might regain some power in the House. There is still a very long way to go before one can speak of real democratic reform, but at least it’s a step in the right direction.

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Proposal for elected Commons committee chairs

For the past three years now, this blog has explored some of the more interesting developments in parliamentary procedure in various jurisdictions (primarily the UK, Canada, Australia and New Zealand). Regular readers know that I am a big fan of many of the reforms introduced in the UK House of Commons in 2010, as per the recommendations of the Wright report.

One of those reforms involved select committee chairs being elected by the whole House, as I’ve blogged about in detail in other posts. For example, back in April 2011, I wrote one of my Fixing Ottawa posts, this one focused on Committees, wherein I explained in detail how UK select committee chairs and members are now elected. In another post written later that same year, I discussed the findings of the UK House of Commons Procedure committee’s report reviewing the elections held, for the first time, in most cases, to fill various positions in the House, including, of course, the election of committee chairs and members. If you read either or both of those posts, you will see that I am quite fond of this reform, and would very much like to see it adopted here in Canada.

Consequently, I was very pleased to read, via Kady O’Malley’s Inside Politics Blog, that a Conservative backbench MP, Brad Trost, will be putting forward a motion proposing something very similar to what the UK House of Commons – that is, have the House elect committee chairs via a preferential ballot.

As Kady O’Malley points out, if this motion passes, “it would be binding, as it would constitute an instruction to the House.”

If you are interested in parliamentary reform, I would strongly encourage you to contact your MP and ask them to support this motion. It has made a huge different in the UK with committees becoming far more independent, less partisan, and generally more effective.

Further reading

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Appointed political hacks

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.

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Canada’s Royal Succession Bill

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.

Further Reading:

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On Constitutional Monarchy

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.

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Preferential voting isn’t the solution some think it might be

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.

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