David Frum misses the point

“Parliamentary control of the executive—rightly conceived—is not the enemy of effective government, but its primary condition.” Bernard Crick, The Reform of Parliament, 1970, p 259

David Frum is not a fan of the Reform Act.

What underlies Frum’s objection to the Act is a blurring of the distinction between, on the one hand, the legislature and the Executive, and on the other, party and government. It’s not that Frum doesn’t understand that these distinctions exist – he does – to a degree, at least. But he doesn’t seem to understand them well.

Frum doesn’t want to relinquish one iota of a party leader’s control over candidate nominations. He writes:

No party can perfectly protect itself against ever nominating crooked or stupid or obnoxious candidates. But it can screen against them and then take decisive action against those who somehow slip through the screens.

(…)

Nominations are decided by relatively small numbers of people who typically cluster more toward the political poles than the political center and have their own narrow agendas. Their influence is counteracted in Canada by the party leader’s ultimate veto power over nominations. That power is rarely used, but it shapes the whole process.

To be fair, Frum isn’t the only critic of the Reform Act to voice this concern. However, what he and the others seem to ignore is that no one is advocating that there be no screening of potential candidates. The only thing that is being proposed is that party leaders not sign off on nomination papers. I wrote a lengthy post outlining how the UK Conservative and Liberal Democrat parties select candidates. Both have a very comprehensive screening process in place for persons interested in running for the party. The screening is done by a board (or boards throughout the country) that consists of sitting MPs and senior Party volunteers. They have specific criteria drawn up detailing what qualities a party candidate must have, and they test each interested applicant, running them through interviews and scenarios. If the person makes the grade, they are on a List of Approved Candidates and can then seek out the nomination in constituencies that will need a candidate in the next election. The final decision regarding who will be the candidate is left to the local constituency’s selection committee, but all of the candidates that apply to local constituencies have already been screened and approved by the party. Even if, as Frum claims, nominations are currently “decided by relatively small numbers of people who typically cluster more toward the political poles than the political center and have their own narrow agendas”, that would be circumvented by a process such as the one used by the UK parties. It is very thorough and does not involve the party leader at any stage in the process. Why couldn’t Canadian parties implement similar procedures?

Frum’s rejection of “looser” candidate selection is grounded in the fear that this will result in a caucus overrun by “irresponsible and refractory” MPs who will constantly undermine the leader. This is where Frum’s willful (or perhaps unconscious) blurring of the distinctions between the legislature and the Executive, and party and government, becomes most apparent. Frum writes:

If a prime minister has pledged that his government won’t take action on abortion during its next mandate — and a backbencher insists on trying anyway — that action makes liars out of the whole government. Voters can’t be counted on to grasp the distinction between the “government” on the front benches and the government members behind them.

The votes of those backbenchers sustain the government. Stray musings by those backbenchers can doom it.

Here Frum argues that the problem is that “voters can’t be counted on to grasp the distinction between ‘the government’ on the front benches and the government members behind them.” That may be so, but it doesn’t change the very important fact that this distinction exists – it is the very foundation of our system of government. We do not elect the Prime Minister. We do not even elect the Government. We elect individual MPs and they form a Parliament. The Executive (Government) is drawn from the Legislature and is accountable to it. MPs from the political party from which the Government is formed (or parties in the case of a coalition government) are not part of the Government. They have the same job as all of the opposition MPs in the House – and that is to hold the Government to account, and to withdraw confidence if the Government is undeserving of that confidence. If anything, I would argue that backbenchers from the governing party should hold the Government to account even more stringently than the Opposition does because they should want their party to provide the best government possible. They shouldn’t tolerate abuses of the legislative process. They should want imperfect bills to be amended and improved. They should not provide unconditional support if that confidence is not warranted.

Disaffected backbenchers would gain new leverage over party leaders, because a small minority of them – 15% — could at any moment set in motion a leadership review.

The Reform Act is a grant of power to each party’s most irresponsible and refractory MPs.

On the surface, there is some truth to this. Our main political parties are “big tent” parties, meaning they attract supporters under a very broad banner, such as “conservatism” or “social democracy”, but these supporters often have very disparate views on some issues – views which may be at odds with official party policy. Big tent parties seek to find a middle-ground, to appeal to voters beyond their more traditional base. They have to if they want to win enough seats and possibly form a government. The main consequence of this push to the middle ground is that within the party, some will become increasingly disgruntled by the party’s lack of concrete action on a particular issue. In the United Kingdom, for example, there are regular rumours of Conservative MPs challenging party leader and Prime Minister David Cameron’s leadership. This is in no small part due to the reality that the Conservatives are in a coalition government with the Liberal Democrats, which has forced the party to put aside some of its key manifesto commitments in order to find a compromise position with its coalition partner. The UK’s membership in the European Union is one such issue. Many Conservatives believe the UK should withdraw from the EU and want a referendum on that very question. The Liberal Democrats are staunchly pro-EU. The Conservatives are also feeling pressure because of the growing support (in polls) for the UK Independence Party (UKIP), a strongly Eurosceptic party committed to withdrawing from the EU.

But here’s the thing – despite all of the rumours of dissatisfaction with David Cameron, no leadership review has been triggered. It would take only 46 of the Conservatives’ 303 MPs to trigger such a vote. This hasn’t happened. But even if a review was launched, it would take 152 of those 303 MPs to force David Cameron out as leader. Perhaps the main reason why no review vote has proceeded is because the disgruntled MPs know they’d never get enough support to actually unseat Cameron.

As I explained in a previous post, in a study of some countries which do allow caucuses to trigger leadership reviews and spills (the UK, Australia, New Zealand and Ireland), between 1965 and 2008, only 17 party leaders have been ousted by their caucus. Of that number, only 3 were actually Prime Minister at the time. The reality is that parties in power rarely oust their leader; they will only do after a poor election showing, or a sharp decline in the polls leading up to an election.

Frum raises the spectre of abortion in his piece. Yes, for Canada’s federal Conservative Party (CPC), many of its supporters are strongly opposed to abortion, yet the party, while in Government, has pledged to not reopen that debate. This doesn’t mean that all of the party’s MPs are happy about that. If the measures proposed in the Reform Act were in place, it would take 24 of the CPC’s 161 MPs to trigger a leadership confidence vote. I don’t know that there are 24 CPC MPs sufficiently committed to the issue of abortion to want to initiate such a vote. But even if that were the case, it would then take 81 MPs to vote against the current leader. If the leadership review was triggered based solely on one fringe issue, I find it very difficult to believe that a majority of the caucus would vote for a leadership change. The more fringe the issue, the less likely a leadership challenge would succeed. This is the point that Frum doesn’t seem to grasp. He assumes the parties would become beholden to the fringe. This isn’t the case. Dissatisfaction with the party leaders would have to be widespread throughout the caucus in order to gain majority support for a leadership change. This reform would not “empower factionalism”, as Frum argues, rather it would isolate it. The dissenting MPs would have to find other reasons – larger reasons – to attract majority support from the rest of the caucus in order to successfully challenge a leader. A faction within a party might be able to trigger a confidence vote, but they would need massive support beyond their fringe grievance for that vote to be successful.

Of course this might present a greater problem for parties with much smaller caucuses – namely opposition parties. A party in power is going to be far more leery of doing anything that might jeopardize their hold on the Government – and coming across as divided is something they will seek to avoid. If the dissatisfaction can be shown to be limited to a handful of MPs committed to one particular issue, that could actually isolate the faction even more. If the party successfully defeats the faction, their popularity with middle-of-the-road voters could actually increase. Smaller caucuses could well be more vulnerable to such hijacking because the numbers required are so much lower. But even then, I am not certain that this would occur. The federal Canadian Liberal Party currently has a caucus of only 36 MPs. Under the Reform Act proposals, it would take only 5 Liberal MPs to trigger a confidence vote in the party leader, but it would take 19 MPs to vote against the leader to force him out. It might be easier for Liberal MPs to trigger a vote, but it would still require widespread dissatisfaction in the caucus to oust the leader. Appearances of internal division will be as detrimental to a small party as they are to larger parties; most caucuses would seek to mitigate that, and only force a leadership review if they knew there was widespread support in caucus for a change.

There are a number of other questionable points in Frum’s article. For example, he writes:

Seemingly small changes in political rules can yield very large changes in political result. Given Canada’s record as arguably the best governed country in the developed world, you’d want to be very cautious about tinkering with those rules.

Advocates of the Reform Act, however, deny that Canada is so well governed. They see a Parliament crushed and stifled; MPs deprived of their historic role; local constituencies trampled by an all-powerful Prime Minister’s Office.

(…)

The promise is that, freed from PMO control, MPs will speak out on behalf of the good people of his or her constituency with a verve and brio sadly lacking today. But where’s the evidence that such local interests go unarticulated today? I’ve seen none adduced.

Again, Frum misses the point. A stronger Parliament will mean better government. That said, the changes proposed in the Reform Act are not procedural reforms. At best, they would encourage backbenchers from the governing party to do their job of holding the Government to account more effectively by not allowing the Executive to take their support for granted. This would improve government, not hurt it, hence the quote at the start of this post: “Parliamentary control of the executive—rightly conceived—is not the enemy of effective government, but its primary condition.” As for his claim that there is no evidence that MPs don’t articulate the concerns of their constituency, has he not listened to Members’ Statements or Question Period in recent years?

And even if one accepts the view that Canada is “arguably the best governed in the world” – which appears to be based not on any OECD or other empirical study but on Mr. Frum’s personal opinion from an earlier op ed piece, does that mean it can’t be improved at all? Frum’s main argument seems to be that we should avoid reforms because there is nothing wrong with the status quo. Our politics may be dull, but “more exciting politics is not the same thing as better government.” I counter that no one is advocating for “more exciting” politics, but better politics. And better politics will inevitably mean better government.

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“The Reform Act”: some thoughts

Canadian Conservative MP Michael Chong today introduced Bill C-559 “An Act to amend the Canada Elections and the Parliament of Canada Act (reforms)“, otherwise known as the Reform Act. When news of what the bill would propose broke several days ago, it immediately sparked great excitement among columnists and politics fans alike. Some hailed it as the bill that would save Parliament; others were more subdued, calling it “a solution in search of a problem“.

The bill proposes three reforms. First, it would remove the existing requirement that a party leader sign the nomination papers of prospective candidates for that party. Second, it would allow a caucus to implement a leadership review upon a petition of 15% of the elected members and a secret ballot vote garnering over 50% support. Lastly, it will allow caucuses to elect their chairs and admit and eject caucus members based on the 15/50% rules employed to trigger a leadership review.

These are all interesting proposals, and in order to avoid an epically-long post, I will deal with them separately. This first post will focus on the second point, allowing a party caucus to implement a leadership review upon a petition of 15% of elected members and a secret ballot vote garnering over 50% support.

Specifically, Chong’s bill would amend subsection 366(2) of the Elections Canada Act by adding a new sub-clause. This section of the act governs the criteria that must be met in order for a political party to become a registered political party. Chong’s proposal would amend the application for registration to include the following:

(k) the extract of the party by-laws that provides that
(i) a leadership review may be initiated by the submission of a written notice to the caucus chair signed by at least 15% of the members of the party’s caucus,
(ii) a leadership review is to be conducted by secret ballot, with the result to be determined by a majority vote of the caucus members present at a meeting of the caucus, and
(iii) if a majority of caucus members present at the meeting referred to in subparagraph (ii) vote to replace the leader of the party, a second vote of the caucus shall be conducted immediately by secret ballot to appoint a person to serve as the interim leader of the party until a new leader has been duly elected by the party.

This is actually standard procedure in other countries such as the United Kingdom, Australia and New Zealand, where such measures are incorporated not into legislation, but in political party constitutions. For example, in the UK, under Conservative Party rules, a leadership review is triggered if 15% of Conservative MPs call for a no confidence vote in the leader. The Labour Party has a slightly higher threshold. It requires that 20% of Labour MPs express that they no longer have confidence in the leader. The Liberal Democrats have set the highest bar for a leadership review. According to the Lib Dem constitution, a vote of no confidence must be passed by a majority of all Members of the Parliamentary Party in the House of Commons or the receipt by the President of the Party of a requisition submitted by at least 75 local party associations.

While many commentators, even before they saw the bill, endorsed this proposed reform, others were less convinced that it was needed. Dale Smith wrote:

The provision around leadership review is also something that cannot be taken as anything other than a half-measure, and one that misses the target.  MPs already have the power to challenge a leader, and most especially a Prime Minister.  We’ve seen several provincial examples of opposition caucuses pressuring their leaders to resign, and the removal of a Prime Minister is one of the most important built-in functions of our system of Responsible Government, and that is that if they are unhappy with the status quo, they can simply withdraw confidence. After all, Responsible Government depends entirely on the Prime Minister having the confidence of the Chamber. If enough government MPs decide that it’s time for the leader to go, they can join in a vote of non-confidence — no need for a call for a leadership review that gives the PM time to organize one and to consolidate support for the vote.

I have a few problems with that statement. First, I strong object to this line from Smith’s piece:

… the removal of a Prime Minister is one of the most important built-in functions of our system of Responsible Government, and that is that if they are unhappy with the status quo, they can simply withdraw confidence. After all, Responsible Government depends entirely on the Prime Minister having the confidence of the Chamber.

Responsible government – or more specifically, the confidence convention, rests on the Government having the confidence of the House. While many might argue that for all intents and purposes, the Prime Minister IS the Government, that is too simplistic. There isn’t a single procedural manual which discusses the confidence convention in terms of the Prime Minister maintaining the confidence of the House – only the Government. In terms of the confidence convention, who is Prime Minister doesn’t really matter. A governing party can change its leader at any point during its mandate and this will not necessarily impact the Government’s ability to maintain the confidence of the House. In Canada, Liberal Prime Minister Jean Chrétien was replaced by Paul Martin, and the Government continued to enjoy the confidence of the House. In the UK, Labour Prime Minister Tony Blair was replaced by Gordon Brown, and Labour continued to enjoy the confidence of the House. Granted, in both of these instances, the governing party held a majority of the seats, making it very difficult, if not impossible, for the House to withdraw confidence without a significant number of members of the governing party also withdrawing support, but it still serves to illustrate the point that it is the Government that must maintain confidence and it can do so even if the Prime Minister changes.

My second issue is with Smith’s suggestion that a party wanting to change its leader could use an Opposition want of confidence motion to affect that change. I simply don’t see how that would work. First of all, it is not inconceivable that  a caucus might be increasingly unhappy with their current party leader, while still being quite satisfied with their party forming, or being a part of, the Government. If members of the governing party who were unhappy with their current leader did what Smith suggests – simply remove confidence from the Government (with the support of the Opposition parties), I don’t see how this would necessarily lead to a leadership change for that party because of how the confidence convention works in Canada.

When a House withdraws confidence from a Government, traditionally, the various procedural manuals will tell you that the Government has two options: it can resign, and another Government can take its place, or the Prime Minister can seek dissolution. In Canada, that first option is very rarely, if ever, considered. When a Government is defeated on a confidence vote, the Prime Minister will almost always seek to have Parliament dissolved and a new election called. A new election will take place almost immediately. For example, on 25 March 2011, the minority Conservative government was defeated on a want of confidence motion. The defeated Prime Minister met with the Governor General the next day to ask that Parliament be dissolved, and the writs were issued on the 26th. The vote took place on 2 May 2011, which resulted in the Conservatives winning a majority of the seats in the House of Commons. While no Conservative MPs voted against their party to indicate that they too had lost confidence in the Government, even if they had used it as an excuse for a leadership vote, the reality of the situation is that the party would not not have  had time to have a leadership convention following the Government’s defeat.

Using a want of confidence motion is simply not a viable option to ensure leadership change. The disgruntled caucus members who might attempt to use a confidence motion to rid themselves of a leader will find themselves in an election campaign with the same leader. Perhaps a leadership review might be held following the election (and most certainly would be if the party were defeated at the polls), but if the party is returned to power with an even stronger mandate, wouldn’t that simply reinforce the leader’s position, making it that much more difficult for caucus members unhappy with the leader to challenge him or her?

In her piece on Chong’s bill, Alice Funke wrote:

the Bill would formalize in legislation a party caucus’ ability to call for and effect a leadership review. I say formalize, because there is nothing in the law currently preventing party caucuses from doing this very thing now, and indeed they have done so frequently in our current system: Joe Clark was pushed into a leadership review, Michel Gauthier was pushed out as leader by the Bloc Québécois caucus, a good part of Stockwell Day’s caucus left him and the Canadian Alliance and joined the remainder of the Tories instead. And a significant group of Paul Martin backers were hatching plots to oust Jean Chrétien as Liberal leader and Prime Minister.

(…)

So, it’s not that a caucus CAN’T call for a leadership review or push a leader out, it’s that they apparently won’t, and/or they don’t. I fail to see how enacting legislation formalizing this authority gives them any more actual power to do so, or makes them any more accountable back home for not showing some backbone.

This is true – caucuses can exert enough pressure on a leader to force them to step down. However, as far as I can tell, none of our parties have specific processes in place outlining exactly how this is to be done. As stated above, the main political parties in the United Kingdom all to have very specific rules in their Constitutions allowing for the party caucus to express lack of confidence in their leader and potentially trigger a leadership change. The existence of these rules does make politics in the UK more interesting – hardly a week goes by without some report in the media that Tory MPs are edging ever closer to the magic number of 46 MPs required to challenge David Cameron’s leadership. But while perhaps generating more media attention, this doesn’t mean that caucuses in the UK regularly challenge their leaders. There were a number of attempts to oust Gordon Brown as leader of the Labour Party, which all failed. Despite regular rumours in the media, David Cameron’s leadership of the Conservative Party has not yet faced an actual challenge. The most recent Liberal Democrat leadership challenge occurred in 2006, when Charles Kennedy resigned once he realised he no longer had the support of most of his caucus.

Australian political parties also allow the caucus to oust a party leader. Labor most famously ousted its leader and Prime Minister Kevin Rudd in 2010, replacing him with Julia Gillard. Gillard herself was unsuccessfully challenged by Rudd in early 2012, again in March 2013, and again, successfully, in June 2013. As they say, third time’s the charm.

What is interesting here is that after Rudd regained the leadership, he got Labor to change its rules. Virtually insurmountable barriers now exist to such overnight challenges. Under the new rules, a leadership ballot aimed at removing a Labor prime minister can only take place if 75% of caucus members sign a petition—and only on the basis that the leader has “brought the party into disrepute.” Under the new rules, even when the Labor Party is in opposition, its leader can now only be challenged after a petition signed by 60% of caucus members. Another new election procedure will, for the first time in the party’s 122-year history, let party members vote for their leader. The Labor leader will now be selected by a ballot of all caucus members combined with a ballot of the party’s members, with each ballot having a 50 percent weighting in determining the final outcome.

This is another important difference to note between how party leaders are chosen in Canada, and how they are chosen in other countries. In Canada, party members as well as MPs, vote in leadership conventions. In other jurisdictions, party members either have no say at all – only the caucus – or they have very limited input. Dale Smith explains why this is problematic for Michael Chong’s proposed caucus leadership review reform:

The larger problem there is that we need to re-examine the way that we elect leaders in this country, because the status quo allows them to be shielded under a rubric of “democratic legitimacy” — that the membership chose them, and because of that, the caucus cannot remove them.  We need to return to the system whereby it is the caucus that chooses the leader, and it is the caucus that removes the leader.  Best of all, it eliminates the months-long leadership races, no-hope candidates outside of caucus who are simply trying to make a name for themselves, and the rudderless limbo that parties find themselves in.

Alice Funke points out another problem:

The one bad thing formalizing this authority in law might accomplish is to exacerbate regional tensions further, given that until recently most Canadian political parties have had regional bases of support and regional wastelands. Taking control away from delegates to party conventions, or even from party members (and now party supporters), means taking authority away from nationally representative deliberative bodies, and putting it into the hands of a potentially regionally unbalanced caucus.

This is a legitimate concern, but I don’t think it is insurmountable. Inevitably, all party leaders will appeal more to some parts of the country than others. The UK Conservatives, for example, are virtually shut out of certain parts of England (largely the north) and Scotland, where they have only one MP. However, this “problem” wouldn’t be a problem if some form of PR were to be adopted to replace FPTP. I think ensuring a solid chain of political accountability matters more: “citizens elect MPs, and their MPs not only influence policies but also hire and fire leaders to implement them.”

There is an alternative to what Smith proposes when he writes: “We need to return to the system whereby it is the caucus that chooses the leader, and it is the caucus that removes the leader.” Parties could implement a hybrid system such as the one used by the UK Conservative Party, which limits the initial rounds of a leadership vote to the caucus, but brings in the party membership to decide between the final two candidates. Simply put, following a successful leadership challenge, members of caucus will put themselves forward for the position of party leader. If there are more than two candidates, the caucus votes. If no candidate receives a majority of the vote, the candidate with the lowest vote tally drops out. This is repeated until the choice is down to two candidates. At that point, postal ballots are sent to all registered party members to let them vote on the two remaining candidates.

Chong’s proposal certainly deserves much debate, but as has been pointed out, it will create conflict with our existing means of selecting party leaders. Whether the answer is to remove party members from the process completely and leave leadership selection and deselection to caucus only, to to try to find some compromise between the two, I don’t know. That too is something which will require consideration.

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The situation of Parliament during a prolonged period of political crisis

I have previously written about the convention of caretaker government here, and here. That convention holds that during an election campaign, the ministry continues to hold office until a new ministry is sworn in. There are, however, limitations on what a minister can do during both the election campaign and the period of government formation following a general election.

For Canadians (as well as people in the UK, Australia and other countries), there normally isn’t much of a delay in forming a new government following a general election. Usually, it is known on election night which party will form the government. This isn’t always the case, however. In 2010, in the UK, it took five days of intense negotiations between the three main parties before a new government emerged, the Conservative-Liberal Democrat coalition government. During that time, the Labour party under Gordon Brown, which had been the incumbent party, acted as the caretaker government.

In countries which use some form of proportional representation rather than First-Past-the-Post, because of the need to form coalition governments, it isn’t unusual for several weeks to go by before a new government emerges. Generally, however, this caretaker period is still of a fairly short duration. However, following the 2010 parliamentary elections in Belgium, the caretaker period lasted over 500 days.

I came across a very interesting paper by Mr. H. Hondequin, the Secretary General of the Belgian Senate, prepared for a conference of the Association of Secretaries General of Parliaments, wherein he discusses the situation of the Belgian parliament during a prolonged period of political crisis. You can download his paper (it’s a docx) here, but I will summarise the main points below.

Belgium, like Canada and the UK and other countries, is a parliamentary democracy. That means that there are no elections separate from the parliamentary elections to elect a president who then appoints the government. As is the case in Canada and the UK and other countries, the prime minister emerges from the parties which end up forming the government.

As Mr. Hondequin explains, there are normally twelve parties represented in the parliament, and it generally requires six parties to agree to work together to obtain a simple majority. If a governing coalition wants to amend the constitution, this requires the cooperation of an even larger number of parties since constitutional change requires a two-thirds majority to pass. As Hondequin explains:

All these elements – the large number of parties, the search for an agreement on the institutional development of the country, and therefore, in practice, the search for a qualified majority – combined with the difficult economic situation and therefore with the importance of the socio-economic choices that had to be made, explain why the formation of the government after the 2010 elections was a real Echternach procession, or for the benefit of those who are unfamiliar with that event, a journey of two steps forward followed by one or even several steps back.  However, where the Echternach procession manages to cover its route in one day, the “Belgian” procession took a year and a half.  The government in power since 2007, resigned on 22nd April 2010 and that resignation was accepted 26th April 2010.  Parliament was dissolved on 7th May 2010 .  The elections were held on 13th June 2010.  The new government was finally sworn in on 6th December 2011, and obtained the confidence of Parliament on 7th December 2011, or 540 days after the elections and almost 600 days after the resignation of the previous government.

This does not mean that there was no government during that time. Parliament convened in accordance with the Constitution on 6 July 2010. The departing government continued on as a caretaker government. Hondequin explains that in Belgium, the concept of a caretaker administration was developed by the courts. A caretaker government is limited to covering “urgent matters where decisions cannot reasonably be postponed, acts of day-to-day management and acts which form the continuation or completion of procedures which had been started in a legitimate manner before the regime of caretaking administration took effect.” As well, minus a few very specific exceptions, the caretaker government does not take any legislative initiatives, and nor does Parliament.

A government in Belgium, as in Canada and other parliamentary democracies, stays in power because it has the confidence of the House and is subject to oversight by parliament. However, in the case of a caretaker administration, while parliament’s power to exercise oversight remains, the confidence convention does not. As Hondequin explains: “Withdrawing confidence from a government that has already resigned has no meaning or effect. You cannot kill a dead person!”

It has long been argued in Belgium that a caretaker government does not have sufficient legitimacy to introduce bills, to take position on private members’ bills, to propose amendments to these bills, or even to enact or promulgate  bills that would nevertheless have been adopted by parliament.  It was inferred that one of the branches of the legislature was unable to act and that the legislative process therefore should stop altogether.

It is true that until recently, there was no real in-depth legal reflection about this issue.  However, as the negotiations on the formation of a new government lasted longer and longer, the reflection deepened, first in academic circles, then with some reluctance, in the political world.

The newly elected members of parliament, if they had followed long-established tradition, would have been forced to face a long period of inactivity. However, as the political crisis dragged on, and this in a climate of economic crisis requiring problems to be addressed, they gave the matter serious consideration.  Both in the House of Representatives and the Senate, they consulted their legal services.

These services, basing their opinion on old and recent legal doctrine, pointed out that the figure of a caretaker government limits the scope of government action as executive power, when it cannot be politically sanctioned by parliament and that it therefore protects the prerogatives of parliament in the exercise of political oversight over the executive.

On the contrary, in the exercise of the legislative function, Parliament holds the key role.  It is parliament that votes the laws. Parliament always has the last word, whether the law emanates from a parliamentary or a government initiative.  In legislative matters, the fact that the government is a caretaker administration in no way affects the powers and means of action of the parliament, or the balance of the system of division of powers.

It is ultimately this view that prevailed.  Both during the caretaker regime of 2007 and the very long one in 2010, the House of Representatives and the Senate passed a number of laws on the most diverse subjects, resulting from both governmental or parliamentary initiatives.

Hondequin goes on to say that the laws adopted during this period were “technical” – in other words, laws which did not involve fundamental choices or major political debate, and that they were usually adopted without much debate and with more or less the unanimous support of both houses. Also, whenever the caretaker government wanted to bring forward a bill, it took great pains to justify to parliament why the bill was necessary and to consult with parliament beforehand.

He adds that another change which occurred due to the prolonged period of caretaker government was the implementation of various forms of questioning the government via oral and written questions, debates and hearings. In the past, parliament did not question the caretaker government, but as the crisis went on and on, parliament felt it was necessary to change this practice.

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The length of two swords

Recently, the brilliant UK actor Philip Glenister (Life on Mars, Ashes to Ashes, State of Play, Mad Dogs, Hidden, etc.) was interviewed on the Andrew Marr show in connection with his latest role, that of Chief Government Whip in the play “This House“, which is set in 1974, when Labour had a shaky minority government.The discussion turned to the innately adversarial nature of politics in the UK House of Commons, with Marr noting that the play was in some ways an attack on the British parliamentary tradition, that of two sides against each other, and that underneath, there was a dream of a better way of doing things, a call for politics to be more consensual. Glenister noted that UK was “one of the few democracies, just by the layout of our parliament… it’s in a rectangular shape as opposed to in the round. It’s only one of two in the world.”

If Glenister is correct, and there are only two democracies in the world with rectangular Chambers which force government and opposition to face off against each other on opposing sides, then the Canada is the other one. The Canadian House of Commons, the Senate and most of the Canadian provincial and territorial legislatures are also rectangular, the exceptions being the Legislative Assembly of Manitoba, the Legislative Assembly of Nunavut and the Legislative Assembly of the Northwest Territories.

What is being implied here is that layout of the Chamber, government on one side, opposition parties on the other, makes our politics more adversarial because it imposes an “Us vs Them” feel from the outset. This is the same argument put forward by architects in this very interesting article, “The Shape of Debate to Come“.

However, it is debatable to what extent the shape of the chamber might influence how adversarial or consensual debate will be. As Professor White notes in the above article, countries which end up with a more consensual approach to politics also tend to use some form of proportional representation rather than First-Past-the-Post:

But, in an email, he said there was “pretty much zero” chance of more co-operative behaviour in Canadian legislatures. And he put the differences in approach in legislatures such as Wales and Scotland more down to mixed electoral systems, not just first-past-the-post.

He said: ”Unquestionably the opposing rows of benches in standard Westminster parliaments reinforces the adversarial nature of the place; for my students I liken it to opposing armies or sports teams squaring off. At the same time, I see seating arrangements as very much secondary to underlying political culture and prevailing political norms.

“The Manitoba [legislature], which is semi-circular, has exceedingly nasty, adversarial partisan politics, and the US Congress these days is hardly a paragon of non-partisanship.”

Because PR makes it very difficult for any one party to form a majority government on its own, this means that coalition government tends to be the norm in countries which use some form of PR, and that reality alone will require parties to work harder to find some sort of consensus. As Prof. White points out, despite sitting in the round, politics in both Manitoba and the US Congress are very partisan and adversarial, and both jurisdictions use FPTP. The Australian House of Representatives is horseshoe-shaped, and politics Down Under is every bit as partisan as it is up here, particularly in the current minority parliament. Australia uses the Alternative Vote to elect its MPs, a voting system which requires voters to rank the candidates on the ballot in order of preference, and to win the seat, a candidate must gain over 50% of the vote, either outright, or through transferred preferences. AV, like FPTP, is not at all proportional, which may explain why political debate in the House of Representatives is partisan and adversarial.

This summer, it was reported that the UK Parliament could be closed for five years for extensive refurbishment, with MPs and Lords “convened in a replica chamber or a conference centre for the duration of the repair work, which could start in 2015.” This immediately alarmed some. The Spectator’s Fraser Nelson raised the threat of some advocating that a new, refurbished chamber would be “a chance to move the MPs to a lifeless, European style semi-circular chamber that supposedly encourages them to co-operate.” Fraser comments on how deathly boring debate is in the Scottish Parliament, which is circular. He does not mention that Scottish Members of Parliament (MSPs) are elected using Mixed-Member Proportional representation (MMP).

But is the electoral system alone enough to determine how consensual or adversarial politics will be in a given jurisdiction? Thomas Carl Lundberg, in his paper “Politics is Still an Adversarial Business: Minority Government and Mixed-Member Proportional Representation in Scotland and New Zealand“, concluded that while both nations introduced MMP in part to bring about a “new politics”, in the end, “the impact of institutional engineering upon the behaviour of politicians has been limited.” New Zealand adopted MMP in 1996, Scotland in 1999. New Zealand has seen the formation of mostly minority governments under MMP (albeit minority coalition government rather than single-party minority government) supported by other smaller parties through confidence and supply agreements, while Scotland has experienced two terms of majority coalition government, one term of single-party  minority government, and most recently, to the surprise of most, a single-party majority government.

The reasons why MMP has had limited success in curbing adversarial politics in Scotland and New Zealand, according to Lundberg are varied. Long before New Zealand adopted MMP, it had a very strong two-party system (Labour on the left and the National Party on the right) and a long history of single-party majority government. With the introduction of MMP in 1996, that didn’t really change. Politics remained quite adversarial between Labour and the National Party, but both of the main parties learned to work with the much smaller parties in order to form governments.

Scotland on the surface may appear more consensual, but there are other tensions at work. Scotland has a true multiparty system, that is one in which “there are three to five relevant parties which are not separated (polarised) by a large or intense ideological distance” (which isn’t the case in New Zealand). Rather, Scotland’s party system “is characterised by two significant cleavages” – class divisions and “the process of building the UK (with England at the centre dominating the periphery composed of Scotland, Wales and Ireland) in the latter.” The two largest parties in Scotland are Labour and the Scottish National Party – both are centre-left, and they have a long, adversarial relationship dating back before devolution, or to quote the former leader of the Scottish Liberal Democrats: “there is a level of visceral hatred between the Nationalists and Labour to this day. So, it just transferred from London to Edinburgh … we just so massively underestimated how important it is for people to have good, personal relationships across all parties.”

Simply put, how adversarial or consensual politics might be in a given democracy will depend on many factors. While the shape of the debating chamber and the voting system used to elect members undoubtedly play a part, changing one or both will not necessarily bring about more polite politics.

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Australia’s Labor Party’s revolving door leadership

In June 2010, Australian Labor Party leader and Prime Minister, Kevin Rudd, was ousted by his caucus in a leadership challenge won by Rudd’s Deputy Prime Minister, Julia Gillard, who then became both party leader and Prime Minister. Less than two years later, history appears to be repeating itself, with Rudd now challenging Gillard’s leadership of the party. Gillard announced a ballot for the party’s leadership would take place Monday, February 27. Mr. Rudd’s challenge failed, and Ms. Gillard successfully held off the challenge, winning by 71 votes to 31 votes for Rudd.

If Rudd’s challenge had been successful, he would have replaced Gillard as party leader, but not necessarily as Prime Minister of Australia.

The party leaders in Australia are elected by their party caucus in Parliament, that is, the elected members of that party in both the House of Representatives and the Senate. In contrast, Canadian political party leaders are chosen by party members. The rules are different for each Canadian political party, but essentially, whenever there is a leadership race, anyone who is a member of that party can run as a candidate for the leadership, even if they aren’t a sitting MP, and anyone who is a member of the party has the opportunity to vote for the party leader at a leadership convention.

There are pros and cons to each approach. In the case of party leadership decided by the party caucus, this strengthens the role of individual MPs and makes the party leader more responsive to his or her MPs. A party leader elected in a more democratic way, by party members, may be able to more easily exert pressure on his or her MPs, rendering MPs more docile and submissive to the party leader, since they can claim support that extends beyond the caucus and to the party as a whole.

Some parties seek to balance both approaches. In 1998, the UK Conservative Party changed its rules for electing a new leader by opening up the process to party members. Prior to 1998, the party leader was chosen by caucus. However, while the actual selection of the party leader is more open, the party caucus still plays an important role. For example, the party caucus can potentially force a leadership review by calling for a vote of confidence in the party leader. To secure a confidence vote, 15% of Conservative Members of Parliament must submit a request for such a vote, in writing, to the Chairman of the 1922 Committee.

If the incumbent Leader wins the support of a simple majority in any such vote, they would remain Leader and no further vote could be called for a period of twelve months from the date of the ballot.  If the Leader were to lose such a vote (again, on a simple majority basis) they must resign, and they may not stand in the leadership election which is then triggered.  As well, it is the party caucus which decides on who the candidates for the leadership will be from among the current sitting MPs. If only one name is put forward, that person becomes the new leader, without party members having any say in the matter. If two names are put forward, then those names are put to the general party membership. However, if three or more names are put forward, a ballot is held within the Parliamentary Party. An exhaustive ballot system is used to select two candidates to go forward to the general membership of the Party.

Getting back to the situation in Australia, these internal Labor Party machinations have prompted some backlash in Australia, with calls for party leaders to be directly elected by the people. Indeed, even this blog has received hits from people based on those search terms. What is not clear is if people are calling for the Prime Minister to be directly elected, or simply for political parties to democratize the way they choose their leader by opening up the process to party members.

I stated at the outset that if Rudd’s leadership challenge was successful, he would replace Julia Gillard as Labor Party leader. One would assume that he would also automatically become Prime Minister, however, this was less immediately clear because of the current hung parliament situation in the Australian House of Representatives.

The Prime Minister is appointed by the Governor-General. This can only happen if there is a vacancy to fill, meaning Julia Gillard would have to resign. If she loses the party leadership, one would assume that she would then resign as Prime Minister as well. As Australian constitutional law expert Anne Twomey explains:

“A lot of people don’t realise that it’s actually a reserve power of the Governor-General; she has some discretion in making this decision, but it’s a discretion confined by some convention.

“The convention says she has to appoint the person who either holds the support of the majority of the Lower House or is most likely to hold that support.”

Professor Twomey says that is where independent MPs will play a key role.

“Can she feel certain that the independents will support Kevin Rudd and that he is the one who holds the support of the majority of the Lower House?” she asked.

“It might be quite difficult for the Governor-General. There’s two ways she could approach it.

“The first would be to ask the independents to come in or give a letter telling her which way they intend to vote – you saw that sort of experience more recently in Tasmania with the hung parliament there.

“Alternatively she could … wait for parliament to sit, and let there be a vote of confidence or no confidence on the floor of the parliament and whatever the House of Representatives chooses then that person [will be appointed] as prime minister.”

“And that would make sure she wasn’t seen to be in any way biased or influencing results – she could leave it to the House to decide.”

Labor currently governs as a minority government with the support of a Green and a few independent MPs. If these independents indicated to the Governor-General that they can’t support Labor with Mr. Rudd as party leader, but would support Opposition leader Tony Abbott’s party, the Governor-General could then ask Mr. Abbott to form the government. Or, if the independents indicate that they can’t support either Rudd or Abbott, they could indicate their preference for an election to be called:

“The independents can’t themselves advise the Governor-General and say ‘hey, call an election’, but what they can do is say ‘we will not give support to the new Labor leader, we will support Tony Abbott to the extent that when he comes into power, the first thing he’s going to do is advise the Governor-General to call an election’.

“So that would be the way of causing an election if the independents thought that was the way to resolve the matter.”

The Governor-General’s third option would be to dissolve parliament, which she can only do on the advise of the Prime Minister, meaning she would have to appoint someone Prime Minister first:

“So if the Governor-General is inclined to think this whole issue that should be resolved by an election, she would be able to appoint Tony Abbott who presumably would not want to be stuck dealing with independents and therefore would advise her to call an election – that would be the way to achieve it.”

The Rudd-Gillard contest presented a special dilemma for the Labor Party:

Gillard is well liked by the majority of her colleagues but disliked by the majority of the voters. Rudd is loathed, indeed hated, by the majority of his colleagues, but is vastly more popular than Gillard among the public.

Because of this, Rudd tried to by-pass caucus support for his leadership by appealing directly to the general public. As Geoff Robinson, a lecturer in politics at Deakin University explains:

“There’s a difference between Julia Gillard’s appeal, very much to the parliamentary party, perhaps the traditions of the Westminster system, whereas Kevin Rudd is mounting a populist, almost an American-style campaign to the mass of the electorate, potentially to Labor supporters.”

Recent polls showed Rudd to be more popular than Gillard, and also more popular than Opposition leader Tony Abbott, but while this may be the case, it is the Labor party caucus which will decide who the party leader will be, and by all accounts, there was great animosity towards Rudd among those he would have to work with day in and day out.

While there is certainly a case to be made for parties such as the Australian Labor Party to democratize how it chooses its leader (and indeed, some are making that case), in a Westminster parliamentary system, party leaders couldn’t be elected directly by the people.  It is not a presidential system. As I have repeatedly stressed in many other posts, voters in Westminster parliamentary systems do not elect governments, much less the Prime Minister, they elect parliaments. It is the party (or group of parties) which can command the confidence of the House which forms the government, and the leader of said party then becomes Prime Minister. A government may, in theory, be removed at any time, if it loses the confidence of the House. If the party in power wishes to change leaders at some point during its mandate, that is the party’s prerogative.

In most instances, e.g., when there is a single-party majority government in place, a change in the party leadership will not affect the governing party’s ability to command the confidence of the House. However, as discussed above, in a minority situation, where the government depends on the support of other parties to stay in power, or in again, perhaps in the case of a majority coalition government such as the one in the UK, a change of party leader might make it more difficult for the government to retain the confidence of the House. The Australian independent MPs might not have supported Labor with Kevin Rudd as leader – they had agreed to support the party led by Julia Gillard. Similarly, if the UK Conservatives ousted David Cameron for another leader, the Liberal Democrats might rethink their position in the coalition.

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Electoral Reform and DPR Voting, Part 2

(Note: Back in April of this year, I wrote about Direct Party and Representative Voting, an electoral voting system invented by Stephen Johnson. That post continues to get regular hits on this blog, and recently, Mr. Johnson contacted me asking if I would be interested in revisiting the topic. He provided me with a few more points addressing some of the questions I had raised in my original post. I invited Mr. Johnson to contribute a post to this blog, and he accepted. This is the second of two posts. Click here to read Part 1.)

Electoral Reform and DPR Voting, Part 2

by guest blogger Stephen Johnson

Can DPR Voting claim that no votes are wasted?

In DPR Voting you cast your Party vote for the party you support and this determines which party (or parties) form the Government. You can vote for the party of choice whether or not there is a party candidate standing in the constituency. The Party votes are added up nationwide and then the percentage of votes of each party is used to determine the total number of votes each party has in the parliament. This means that every vote makes a mathematical difference to the result of the election and determines the number of votes each party will have in the parliament regardless of where the vote is cast. The mathematical consequence of percentages is that if one party gets one extra vote the percentage of the total vote for that party increases and the percentages for all the other parties is reduced. There are no longer any marginal constituencies, as there are in the FPTP system. Every vote in every constituency is equally important. Your vote makes a real difference to the party you vote for, and for many people this is the real purpose of going out to vote.

Read more

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Electoral Reform and DPR Voting, Part 1

(Note: Back in April of this year, I wrote about Direct Party and Representative Voting, an electoral voting system invented by Stephen Johnson. That post continues to get regular hits on this blog, and recently, Mr. Johnson contacted me asking if I would be interested in revisiting the topic. He provided me with a few more points addressing some of the questions I had raised in my original post. I invited Mr. Johnson to contribute a post to this blog, and he accepted. This is the first of two posts, you can read Part 2 here. The views expressed below are Mr. Johnson’s.)

Electoral Reform and DPR Voting, Part 1

by guest blogger Stephen Johnson

The functioning of our democracy depends in part on the acceptance by the people of the way the electoral system works.  This blog (April, 2011) reviewed Direct Party and Representative Voting, a new proportional electoral system, and found some merit and some shortcomings. Stephen Johnson argues that the system deserves a closer look as a PR system to replace ‘First Past the Post’ (FPTP). Read more

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Report on 2010 elections for positions in the House

The UK House of Commons Procedure Committee released a report on 31 October 2011, which reviewed the elections held, for the first time, in most cases, to fill various positions in the House. It is an interesting report as it provides more detailed information into how exactly these elections proceeded.

In the dying months of the previous parliament, the House of Commons adopted many of the recommendations of the Committee on Reform of the House of Commons (the Wright Committee). These recommendations were implemented for the first time in the new Parliament elected in May 2010.

Among the changes introduced were first time elections for the Deputy Speakers of the House, the chairs of the main select committees and the chair and members of the new Backbench Business Committee, and a new system adopted by the parties to elect their members of the relevant select committees. While the entire report is interesting, I will focus on the elections affecting select committees.

To recap for those who don’t know, one of the recommendations of Wright Committee adopted in March 2010 and implemented for the first time following the May 2010 general election was the election of the chairs of the major select committees. Previously, this process had been a private arrangement between the party Whips. Standing Order No. 122B outlines a three stage process:

  1. The Speaker writes to the party leaders indicating the proportion of chairs of select committees falling to each party based on the composition of the House following the election;
  2. The House agrees to a motion tabled in the names of the leaders of all parties entitled to one of more chairs specifying to which party each chair is allocated;
  3. Two weeks later, ballots are held for each of the posts, except in cases where only one candidate has come forward, in which case they are declared elected without a ballot. The vote is conducted using the Alternative Vote system (preferential ballot), meaning MPs rank the candidates in order of preference.

What happened in May 2010

A total of 24 committee chair positions were open for election. Of these, 8 were elected unopposed and 16 were contested and decided by secret ballot. The allocation of chairs between the parties, as stated above, follows the convention of mirroring the party breakdown in the House. The Speaker sent a letter indicating the proportion each party was entitled to and was arithmetically correct, but the motion tabled by the party leaders was not, nor does it have to be. The motion allocated one fewer chair to Labour and one more to the Conservatives than would have been the case if the figures supplied by the Speaker had been strictly followed.

Members nominated for a committee chair position engaged in rather vigorous campaigning. One of the main problems faced by candidates was making themselves known to new MPs who weren’t familiar with their record in the House or past work on committees. The volume of communication sent out by some candidates even overloaded the email system. This went on for the two week period between the House agreeing to the motion tabled by the party leaders and the actual ballot date. As mentioned, AV is used, since it eliminates the need for subsequent ballots and it ensures that the winning candidate has the support of more than half of those voting.

Once the committee chairs were elected, committee membership was elected. The Wright Committee had proposed that the members of select committees should be elected by secret ballot by each political party, according to their level of representation in the House and using transparent democratic means. The House would then endorse the results.

In 2010, the process of internal party elections was carried out after the election of the chairs. Once complete, the party Whips submitted a list of names for each committee to the Committee of Selection and the House agreed to the formal motions to nominate the select committees. Little information was published as to how the division of seats between the parties was made nor on the method used for election within each party. The Labour Party asked Members to nominate themselves for a select committee. Those who had applied for an undersubscribed committee or where the number of candidates matched the number of vacancies were declared elected unopposed. They then held a two-stage election process with elections for the vacancies on the 12 most subscribed committees followed by an election for the rest of the vacancies.

The Conservatives adopted a similar process to Labour. The process of administering the election will handed over from the Whips, who ran the contest in 2010, to the 1922 Committee for future elections.

The Liberal Democrats were awarded a number of select committee places in accordance with their party strength. Interested members signed up for vacancies and there was no need for ballots.

Committee Recommendations

After reviewing the election process for committee chairs, the Procedure Committee made a few recommendations. The members of minority parties complained that they were excluded from even standing for a post as a select committee chair. While the Committee sympathised, they did not recommend a change to the election process for select committee chairs.

Other members complained about the volume of communications issued by candidates in contested elections, arguing for more control over how MPs campaigned. Others called for opportunities for members to meet with and hear from the candidates for each post, which would have been very helpful for the newly-elected MPs. The Committee reviewed these issues and in the end decided against more central control over the campaign. Given the number of elections involved, they decided that it would be unwise to lay down rules about how each event should be organised, leaving it instead to the candidates to decide how best to reach out to their fellow MPs.

Another issue raised was the participation of Ministers. Voting for the chairs was open to all MPs, but since the role of select committees is to hold Ministers to account, some suggested that it was not appropriate for Ministers to have a vote in deciding who should undertake that role. The Committee recognized this as a valid concern, but problematic to address. Excluding Ministers from voting would affect the party’s balance of the electorate. Changing the rule to say that Ministers could vote in all elections except those relating to their department might be difficult to police. Instead, the Committee concluded that Minister would be “well-advised to refrain from voting in the election for a chair to scrutinise their own department” but decided that a more formal prohibition would be undesirable.

The Committee also reviewed the use of AV for the vote and decided that it would be best to move from AV to FPTP. The Committee justified this on the following grounds: 1) FPTP is simple and is the voting system MPs are most familiar with and 2) the results from 2010 showed that even in the contests which required more than one round of counting, the candidate who was in the lead on the first count remained there and won. Of the 16 contested elections, seven were decided on the first count, five on the second, three on the third and one required 6 counts. In each case, even the one which went six rounds of counting, the winning candidate was ahead by a significant margin in the first round of counting and the subsequent rounds only served to increase their lead until they surpassed the 50% mark.

I have to say that I find this recommendation a bit problematic, given the reasons the Committee provides to justify it. First, AV is hardly that much more complicated than FPTP. While I can understand that a newly-elected MP might find it difficult to rank several candidates, none of whom he or she knows at all, they probably would find it as difficult to vote for a single candidate among a list of names that they don’t know at all. As for the second reason provided, simply because the elections held in June 2010 weren’t that close, this doesn’t mean that in future years, there won’t be much closer races. At least with AV, the eventual winner will be the candidate who eventually receives 50% of the vote. With FPTP, if there are very close races for some chair positions, the winning candidate may well be elected by a bare majority of the vote – maybe even one vote.

In my view, this would be problematic when electing the chair of a select committee. I would think that it would be preferable to have a chair who had the backing of an overall majority of his or her fellow MPs, even if that means they are the “compromise” candidate, than to end up with a chair who was narrowly elected over another candidate, and given the vote totals, very likely elected only by their own party, with no support (or barely any support) from members of other parties, which is exactly what could happen using FPTP. The chairs of select committees have to represent and answer to the House, not simply their party caucus. The whole point of moving away from Whip-appointed chairs to House elected chairs was to make the committees more independent and accountable. FPTP could very well undermine this in the event of a very hotly-contested race between several candidates.

Because FPTP was never meant to be used in instances where there are more than two candidates running, I think the Committee is making a mistake in recommending that AV be dropped in favour of FPTP for the election of committee chairs. Alternatively, they could recommend that if there are only two candidates contesting for one position, FPTP could be used since one candidate will inevitably end up with more than 50% of the vote, but in instances where there are three or more candidates, AV be used to ensure that the eventual winner have majority support of the House.

Regarding the election of committee membership, the Procedure Committee got little feedback from members and thus concluded that there was little evidence that any changes were needed. However, they did recommend that it would be more in keeping with the “spirit of the Wright reforms” if each party published details of the process by which it elected its members to select committees.

As stated at the outset, the report covers much more than simply the elections for Select Committee chairs and members. I strongly recommend readers have a look at the report in its entirety.

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On pairing

Pairing is a parliamentary practice whereby two members of parliament from opposing political parties may agree to abstain where one member is unable to vote, due to other commitments, illness, travel problems, etc. The rationale behind the practice is to maintain the relative distribution of seats in the House so that a party’s strength is based on who was elected, not which MPs are ill that day, or had their flight delayed.

There are slight variations in how pairing is organized in different jurisdictions.

UK House of Commons

As explained on the UK Parliament website,

Pairing is an arrangement where an MP of one party agrees with an MP of an opposing party not to vote in a particular division. This gives both MPs the opportunity not to attend. Pairing is an informal arrangement and is not recognised by the House of Commons’ rules. Such arrangements have to be registered with the whips who check that the agreement is stuck to. Pairing is not allowed in divisions of great political importance but pairings can last for months or years.

There have been times, however, where one or more of the parties have refused to participate in pairing arrangements. In December 1996, for example, Labour and the Liberal Democrats discovered that the Tories had been cheating by pairing the same three Conservative MPs with three Labour MPs and three Liberal Democrat MPs. Because of that, the two opposition parties decided to withdraw from all pairing arrangements beginning in January 1997.

It is not clear how long this protest lasted – perhaps only until the end of that parliament since in the 1997 general election, Labour were elected with a huge majority. Pairing is currently practiced by all three of the major parties in the UK House of Commons, but only, as stated above, for votes that aren’t of great importance (one or two line whips).

Canada House of Commons

In the Canadian House of Commons, pairing did not have any official recognition up until 1991. It was considered a private arrangement between Members. In 1991, the Standing Orders were modified to provide for the establishment of a Register of Paired Members, which is kept at the Table. The actual pairing arrangements are arrived at by the party Whips, and Members who will not be participating in any recorded divisions on a given day will have their names entered into the Register by their respective party Whips. These pairings Members are published in the Debates (Hansard) and in the Journals immediately following the entry for any recorded division held on that day.

While this process has formalized pairing to a degree, it still remains largely a private arrangement between the parties, and nothing can be done if a paired Member “forgets” that they were paired and votes. Also, unlike in the UK, the practice in the Canadian House of Commons is that pairings are agreed to on an ad hoc basis, that is, vote by vote. There aren’t any long-term pairing agreements which may last months or years, as occurs in the UK House of Commons. As well, since there is no distinction between one-line, two-line and three-line whips in the Canadian House of Commons, the parties can agree to pairing arrangements on any type of vote, including those of “great political importance”.

Pairing most commonly occurs in the Canadian House of Commons during hung parliaments, when there is a minority government in place. In such instances, the numerical balance between the parties matters far more, and it becomes far more important that the relative voting strengths of the parties is maintained. When one party forms a majority government, pairing is much less common.

Australia House of Representatives

As in the UK and Canada, pairing in the Australian House of Representatives is an unofficial arrangement organized by the party Whips. As in the UK, Members have at times been paired not only on particular questions or one sitting, but sometimes for extended periods. This has even included pairing the Prime Minister with the Leader of the Opposition. As in Canada, pairing is more common when the relative strength of the parties is much closer. Also like Canada, pairing is allowed on crucial votes, and arranging pairings on key votes can be a very protracted and disorderly affair. Parties might also pull out of pairing arrangements, for various reasons:

Pairs have been cancelled by the Government because of the need for an absolute majority to pass a bill to alter the Constitution. The Opposition has cancelled the arrangements for the remainder of the session as a consequence of its view on the manner in which the proceedings of the House were being conducted. (House of Representatives Practice, p. 279)

New Zealand Parliament

Pairing was abolished in the New Zealand Parliament in 1996, following the introduction of new Standing Orders to accommodate the change to the MMP voting system. MPs no longer have to be in the chamber at the time of voting. Parties declare their total votes including the ‘proxy’ votes of those away.

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Speaker Bercow and accusations of bias

British House of Commons Speaker John Bercow annoys many MPs. There have been a rash of articles over the course of the past year hinting at behind-the-scenes plots to get rid of him. Having regularly livestreamed proceedings from the UK House of Commons, I find it difficult to assess why there is such animosity towards Speaker Bercow.

Reasons oft-advanced is that he is arrogant and overbearing, and that he hates the Conservative Party. It is this last point that raises some eyebrows. Bercow was a member of the Conservatives, until he became Speaker of course. Like all MPs elected Speaker in the UK, once elected to the post, Bercow resigned his party membership in order to maintain the highest degree of impartiality. And is perhaps because he does strive to be impartial that some Conservative MPs think he now “hates” the party.

Recently, the Daily Mail ran an article claiming that Bercow reprimands Conservative MPs twice as often as the does Labour MPs. This conclusion is based on figures compiled by Rob Wilson, the parliamentary private secretary to Culture Secretary Jeremy Hunt, who counted the number of times Mr Bercow shouted “order” at MPs since the general election in May 2010. He found that Conservative members were admonished 257 times compared with 109 times for Labour MPs. The article quotes Mr. Wilson saying: “Those MPs who have suggested bias in the Speaker’s handling of the Commons would feel vindicated by these figures.”

Of course, there was no suggestion anywhere that perhaps, just perhaps, Conservative MPs were called to order more often because it was deserved.

Conservative backbench MP Douglas Carswell addressed some of the complaints made against Speaker Bercow earlier this year. He dismissed the claims that Bercow was biased:

Bercow’s biased, complain others. If by that you mean he shows favour to one side of the Commons chamber or party, that is demonstrably not true. If anything he can be tediously even handed.

What bias Bercow does undoubtedly have is one which favours backbenchers against the frontbenches - and in support of the legislature over the executive.

Under Bercow, even tiddly little backbenchers like me can force ministers to come before the Commons and answer urgent questions. It makes their life difficult – and keeps them on their toes.

Commentators have observed the way in which this Parliament is more rebellious than others. One of the key reasons for this is the way the Speaker calls amendments. Under previous Speakers amendments tabled by backbenchers that the government might have found inconvenient would almost never get called. Now, there is every chance that they will.

I suspect that is precisely why part of the Tory hierarchy has taken against Mr B. It is because the legislature is slowly getting off its knees, no longer lying prostrate before the executive, that some inside the government remember fondly the days when Whips anointed Speakers – and Speakers behaved accordingly.

This is the impression I have from watching proceedings in the House of Commons. If Bercow is biased, as Carswell notes, it is towards the legislature at the expense of the executive. He is helped in that role by some of the new procedures that were voted on by the House in the dying days of the previous Parliament, such as the creation of a Backbench Business Committee, new rules for electing committee chairs and choosing committee membership, etc., which have also strengthened the legislature vis à vis the executive. But Bercow has also appeared more willing to make use of existing rules, such as Urgent Questions. His predecessor, Speaker Martin, allowed only two urgent questions during his last year as Speaker; Bercow has granted over 60 in the first year of this new Parliament.

If the legislature is being strengthened at the expense of the executive, it is natural that the party forming the executive would perceive that as bias against them. Once in power, a party develops a sense of entitlement; having that undercut doesn’t always sit very well.

This is not meant to downplay many of the other criticisms levelled at both Speaker Bercow, and in particular, his very out-spoken wife. However, the charges of “hating” the Conservatives, and bias in the Chamber are, I believe, undeserved. The rules have changed, voted on and adopted by the House itself, and Speaker Bercow is simply applying those rules. Perhaps some MPs belonging to one of the parties forming the government believe they are entitled to more of a free ride in the House. Speaker Bercow disagrees.

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