Posts Tagged ‘parliamentary reform’

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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Procedure Committee Review of the Backbench Business Committee

Back in March, I wrote about a motion adopted by the UK House of Commons which changed how members of the Backbench Business Committee (BBCom) are elected:

The current members of the Backbench Business Committee were elected by the entire membership of the House of Commons. Members of most of the other Select Committees were elected only by their own caucuses, meaning Labour MPs serving on a committee were elected only by Labour MPs, Conservative members of committees elected only by their fellow Conservative MPs, and the same for the Liberal Democrats (there are no members of smaller parties on any committees).

Backbenchers argued strenuously that the BBBCom was different, and that it was right that its members be elected by the entire House. Changing that so that the elections were controlled by the parties risked making the BBBCom more partisan.

What also upset many at the time that the motion was debated and voted on was that the Procedure Committee had only just undertook a review into the operation of backbench business, and many felt the Government should have waited for that report to be presented to the House before moving forward with any changes to the Committee.

That report was published on 22 November 2012. Overall, the report notes that there is widespread satisfaction with the work and functioning of the BBCom, and concludes that while there is “no need for major substantial change to the practices or procedures which have developed around backbench business and the work of the Committee, a number of proposals could improve and refine the framework within which it operates.” (link)

The report does address the matter of the election of members to the Committee and the changes to that process brought forward and adopted in March. I found that section to be particularly interesting. The Backbench Business Committee is one of the many reforms proposed by the the Wright Committee in its report, Rebuilding the House. The Wright Committee explicitly recommended that the BBCom:

should be comprised of between seven and nine members elected by secret ballot of the House as a whole, with safeguards to ensure a due reflection of party proportionality in the House as a whole. (p. 8 – italics added)

In October 2011, the Procedure Committee released a report reviewing the process of electing the Speaker, committee chairs and members, which had been tried for the first time at the start of the new Parliament following the May 2010 election. The Government responded to that report and in its response stated:

It would be appropriate for the House to address the anomaly whereby members of the Backbench Business Committee other than the Chair (unlike those of other select committees) are elected by the House as a whole rather than by Members of the political party to which they belong. (p. 10)

In this report, the Procedure Committee rightly notes that the earlier report “had noted no such anomaly, nor had the Government sought to draw our attention to it in the course of our inquiry.”

In oral evidence to the Committee, Tony Wright did not agree with the Leader’s use of the term “anomaly” to describe the system of whole House elections for membership of the Backbench Business Committee. He said:

Whatever else it was, it wasn’t an anomaly. It was there by design. The intention was that there should be a collective House mechanism: something that wasn’t the usual kind of party business that dominates most of what goes on here.

He went on to describe the changes brought forward by the Government as “a retrograde step.” Dr Meg Russell, who was specialist adviser to the Wright Committee, described the changes as “very much contrary to the spirit of what the Wright Committee proposed.” (pp. 8-9)

The committee was “disappointed” that the Government had proceeded to change how BBCom members are elected without waiting for the Procedure Committee to conclude its review and remains unconvinced by the arguments put forward by the Government justifying the need for the change:

We are not persuaded that it was necessary to change the method of electing members of the Backbench Business Committee. In our report on 2010 elections to positions in the House, we noted that we had “received no adverse comments on the arrangements for the elections to the Backbench Business Committee”.  Apart from the comments from the Leader and the Shadow Leader, nor did we receive any such comments in this inquiry. Backbenchers who submitted evidence to this inquiry were content with the method of election as originally proposed by Wright and as enshrined in the relevant Standing Order when the Backbench Business Committee was established. Nevertheless, the House made its decision in March this year and we do not consider it appropriate to recommend further changes so soon afterwards. We will return to these matters in a future inquiry. (p. 9)

One of the interesting (to me) recommendations in the report concerns select committee statements. The BBCom had begun the practice of scheduling short debates on select committee reports. While in many parliaments, debate on committee reports is fairly straightforward, in the UK House of Commons, it is a rather cumbersome process: “the Chair of the Committee in question must move a motion that the House takes note of the report, and Members who wish to ask questions must make interventions.”(p. 21) The matter was studied by the Liaison Committee:

In its report on select committee powers, resources and effectiveness, that Committee proposes that a statement on a select committee report should be able to be made “within a reasonable period of the publication of the report: say, within 10 sitting days”. It further proposes that it should be for the Speaker (in consultation with the Chair of the Liaison Committee), rather than the Backbench Business Committee, to decide whether a select committee report is sufficiently topical and significant to merit a statement on the floor of the House on any sitting day. (p. 22)

The Procedure Committee endorses this proposal adding the suggestion that such statements could also be taken in Westminster Hall.

Another interesting recommendation is the proposal to limit how much speaking time can be taken up by the frontbenches during BBCom debates. There aren’t proscribed time limits on speeches in the UK House of Commons as there are in the Canadian House of Commons, for example, but the Speaker can impose time limits when there is a lot of interest among MPs in participating in a particular debate. However, the Speaker’s ability to limit frontbench speaking time is circumscribed by the Standing Orders:

Under Standing Order No. 47, he may do so in respect of both backbench speeches (under paragraph (2)) and frontbench speeches (paragraphs (3) and (4)). The limit in respect of frontbench speeches is, however, subject to paragraph (5)(b), which requires the Speaker to add to the twenty minutes (or ten, in the case of a topical debate) to which frontbench speeches may be limited up to a further fifteen minutes for interventions. The power to impose a time limit on frontbench speeches is thus not used, because a limit of thirty-five minutes would not be worth imposing. Jane Ellison described the lack of any effective power to limit frontbench speeches as “a pressing problem”, saying that “to see backbenchers in a backbench debate being reduced to a four-minute time limit almost immediately when you have had two 25-minute Front-Bench speeches is not the right way round.” (p. 27)

The report recommends amending SO 47 to allow the Speaker greater discretion in applying limits to frontbench speeches.

Other recommendations found in the report include increasing the number of days available to Backbench business from the current 27 to 35; that the Government allow the Backbench Business Committee a legitimate expectation of a backbench business slot, in the Chamber or in Westminster Hall, in every sitting week, with exceptions at certain times of the parliamentary year (for example, the debate on the Queen’s Speech and the Budget); that the Committee be given the power to table business motions to regulate the time for which it is responsible; and finally, that responsibility for scheduling one of the four 90-minute adjournment debates that occur each week in Westminster Hall be transferred from the Speaker to the Backbench Business Committee, on a one-year trial basis.

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Committee rejects MP Recall proposals

An important item of note concerning political and constitutional reform occurred this week in the United Kingdom.

This was the release of the Political and Constitutional Reform Committee’s report on the Government’s draft bill on Recall of MPs. Regular readers of this blog know that I am not a fan of recall – I think it is yet another measure designed to save voters from themselves – but even so, I had issues with the proposals the Government had put forward, and the Committee has largely agreed with me, essentially recommending that the Government simply drop plans for MP recall.

The Committee’s report comes in at an impressive 148 pages, but most of that is written evidence and other documentation received by the committee. As I had noted in my own critique of the Government’s draft proposals, the Committee noted that what the Government was proposing would do little to build public confidence in the political system. Indeed, because voters would not be able to initiate recall proceedings themselves, it might actually further undermine public confidence. There wasn’t really anything the committee liked about the Government’s proposals. The committee’s main concerns with the Government’s proposals are as follows:

  • With regards to for the purposes of the first  trigger of a custodial sentence of 12 months or less, the Government change its decision not to take account of the motivation of the MP in committing the offence.  One  possibility would be to enable the House itself to decide whether there should be an exemption from a recall petition in a particular instance because of the political nature of the crime.   The committee was particularly concerned with cases wherein an MP or group of MPs might be convicted for civil disobedience, for example.
  • With regards to a petition triggered by a resolution of the House of Commons, this too was problematic because the Government did not want to define what would constitute a “serious wrongdoing”. If these were limited to breaches of the Code of Conduct for MPs, this might not take into account actions or behaviour that the public would consider serious wrongdoings and worth of recall.
  • If a recall petition were launched, the Government proposes that it be in one central location for signing. The committee believes this too restrictive and would be a deterrent for voters in large constituencies, particularly rural ones. The Government should replace the requirement for a single designated location for signing the petition with arequirement for at least two and no more than four designated locations, and even send out signing sheets to those who are registered for postal voting.
  • The Committee also had reservations about the 10% threshold for a successful petition and recommended that if the Government takes  the steps the Committee recommended to make signing the petition easier—having several designated locations and those who have an extant postal vote automatically being sent a  postal signature sheet—it should raise thethreshold from 10% to at least 20%, which would represent a significant level of dissatisfaction with the sitting MP.

While these are just some of the concerns the Committee has with the mechanics of the recall procedure as proposed, perhaps most damning was their verdict on the Government’s justification for recall (p. 26):

76. The Government has not made  the case for introducing recall.  We have not seen enough evidence to support the suggestion that it will increase public confidence in politics, and fear that the restricted form of recall proposed could even reduce confidence by creating expectations that are not fulfilled.  The aftermath of the expenses scandal has shown that MPs can be, and are, removed by current processes as quickly as they would be by recall.

The Committee noted that the majority of witnesses who gave evidence rejected the Government’s proposals. Witnesses fell into one of two camps: those who favoured total recall, and those who felt recall wasn’t at all necessary. Concerning the arguments in favour of total recall, the Committee noted some important concerns, such as MPs who have dual roles: local MP and cabinet minister.  With recall, there might be “a danger that Ministers might be less willing to make decisions in the long-term national interest if they feared that they could face a recall petition because their decision would be unpopular in the short term or unpopular locally.” (p. 27) Also, recall could be used against the person, when it was really the party and its policies that had upset voters:

There is not a single, clear job description for an MP and everyone will have their own idea about what behaviour constitutes being a “good MP”.  To an extent, individual MPs must decide for themselves what their job entails.  If their constituents disagree, they have an opportunity to vote for someone else at the next general election.  Differences of opinion about what constitutes the proper role of an MP should not be allowed to trigger recall petitions.

84. We believe that a system of full recall may deter MPs from taking decisions that are unpopular locally or unpopular in the short-term, but  which are in the long-term national interest.  It may also discourage them from taking on powerful interests, or expressing controversial or unusual opinions.  The Government argues that a recall mechanism should not leave MPs vulnerable to attack from those who simply disagree with them.  We agree.  For these reasons, we cannot support a system of full recall. (p. 28)

Ultimately, the Committee agreed with those who don’t think recall is necessary:

89. We do not believe that there is a gap in the House’s disciplinary procedures which needs to be filled by the introduction of  recall.  The House already has the power to expel Members who are guilty of serious wrongdoing.  This should be regarded as an active option; rather than a theoretical possibility.  We note that expulsion would not prevent the person concerned standing in the resulting by-election.   We recommend that the Government abandon  its plans to introduce a power of recall and use the parliamentary time this would free up to better effect. (p. 29)

I must say that I agree with the Committee’s recommendation that recall be abandoned. However, I urge you to read their report for yourself and come to your own conclusions.

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The Primacy of the Commons and Lords Reform

As I have previously written, the UK Government has brought forward a draft bill on reforming the House of Lords. A Joint Select Committee – meaning a committee with membership drawn from both the House of Commons and the Lords – has been holding a series of meetings hearing from constitutional and other experts.

I have been following some of these hearings with great interest, either watching the meetings on the UK Parliament website, or reading through the written evidence, and sometimes both. If there has been a common theme emerging, it would be the issues of whether a partially or fully elected Lords will challenge the primacy of the House of Commons. The consensus, at this stage, would seem to be yes, it will.

The draft bill attempts to ensure this won’t occur in Clause 2, the “General Saving” clause. Section 1 of that clause reads:

2 General saving
(1) Nothing in the provisions of this Act about the membership of the House of Lords, or in any other provision of this Act—

(a) affects  the status of  the House of Lords as one of  the  two Houses of Parliament,
(b) affects the primacy of the House of Commons, or
(c) otherwise affects the powers, rights, privileges or jurisdiction of either House  of  Parliament,  or  the  conventions governing  the  relationship between the two Houses.

Clause 2 of the draft bill seeks to protect the primacy of the Commons and the conventions governing the relationship between the two Houses, but the majority of witnesses have expressed doubts or reservations about how effective legislative provisions can be in circumscribing the behaviour of a reformed House of Lords.

What is meant by the primacy, or pre-eminence, of the House of Commons is that when there is disagreement between the two Houses, the will of the Commons normally prevails. This convention stems from certain provisions in the Parliaments Act, as well as through a couple of other provisions that have given the Commons greater powers: the Constitutional Reform and Governance Act, which has given the Commons a role in relation to treaties, and the Localism Act, which has given the Commons a role in relation to national policy statements. Other conventions further strengthen this, such as the financial privilege of the Commons. By invoking this privilege, the Commons is entitled to disagree with any amendment put forward by the Lords and reject it without having to provided any reasons for doing so, other than claiming the existence of said privilege. The Lords traditionally accept this. Another convention which ensures the primacy of the House of Commons is the Salisbury-Addison Convention, which has evolved so that is is now the case in the House of Lords that not just manifesto Bills, but, normally, all government Bills get an undisputed Second Reading. However, perhaps the principal check on the Lords over-ruling the Commons is the recognition that the House of Commons is elected, the Lords appointed, and thus the Commons has a greater legitimacy given its popular mandate.

Of course, if the Lords were partially or fully elected, the argument that they lack a popular mandate no longer exists, and many fear that this will lead to gridlock between the two Chambers. Elected peers will be less reticent to continue to fight the Commons over amendments to bills, for example. Certain powers that the Lords have but rarely or never exercise, or exercise only in a very limited way, because of their current lack of a popular mandate, could be dusted off and used.

This view was expressed by many of the witnesses who appeared before the Joint Committee (and was expressed by members of the Committee themselves). Here are a few examples from the written evidence. During his appearance before the Committee on 23 January 2012, David Beamish, Clerk of the Parliaments, stated:

Thirdly, Clause 2 seeks to protect the primacy of the House of Commons and the conventions governing the relationship between the two Houses. While the Parliament Acts certainly ensure that the will of the Commons can usually prevail, I have reservations about how effective legislative provisions can be in circumscribing the behaviour of a reformed House of Lords. (p. 5 of the uncorrected oral evidence)

When Lord Pannick appeared before the Committee on 30 January 2012, he was asked if he agreed with the view expressed by Lord Goldsmith that if the House of Lords were to be fully elected, the Parliament Acts would no long apply. Lord Pannick responded:

My opinion is that the better view is that the 1911 Act would no apply in the event that the upper Chamber were wholly or mainly elected. I say that for these reasons. First, the Preamble to the 1911 Act makes it very clear indeed that Parliament’s intention was to move in the future to a second Chamber that was popularly elected. Secondly, it is clear to my mind that the purpose of the Parliament Acts was to regulate the relations between the two Houses at a time when one House was elected and one was not. Thirdly, there is no material that I can see in the Hansard debates that suggests that the 1911 Act was intended to apply even when we moved at some time in the future to a position where both Houses would be elected. The conclusion that I have drawn from this is that it is absolutely vital, in my opinion, for the reform Bill to specify with clarity whether or not it is the intention that the Parliament Acts should continue to apply in the even of there being a substantially or wholly elected upper Chamber. (…) I think that the better view is that the 1911 Act would not continue to apply, but it seems to me wholly desirable for the matter expressly to be addressed in the Bill. I do not think that the current Clause 2 of the Bill adequately addresses that question, not least because it does not specifically refer to the 1911 Act; it refers to provisions affecting the primacy of the House of Commons, which is ambiguous. (pp. 6-7 of the uncorrected oral evidence)

Lord Cunningham of Felling, who testified on the same day as Lord Pannick, had this to say about Clause 2 in his opening statement (pp. 31-32 of the uncorrected oral evidence):

In Clause 2 of the Bill, which, trying to be kind, I can describe only as disingenuous, there are a number of naive propositions. it is almost like someone walking off a cliff-edge in the dark. It suggests that all these things can happen – that profound changes can take place – but nothing else will be changed. (…) The purpose of this draft Bill and any legislation that follows it is to empower the second Chamber. It is to make it an entirely different place. In the eyes of the public and those elected, it is to have a mandate of at least equal authority to that of the people in the House of Commons. That is, by any test, a profound change. That empowerment cannot be denied by custom and practice, convention or any other of the arrangements that currently obtain between the two Chambers. If it does not change those things, it is a denial of the mandate an the power of election.

He then referred to international examples of elected second chambers in Japan, Australia and the United States and added:

People say that Members elected to the upper House in the United Kingdom will not have constituency duties or correspondence. They will not act a though they were elected Members. That beggars belief. Senators in America have the most powerful committees in Congress. They take a view on international relations, defence, energy policy, the environment and global warming. Of course they do that; they feel, as elected Members, that they have every right to do so. I share their view.

Two members of the Joint Committee attempted to argue that an elected Lords would have a lesser mandate than the House of Commons, therefore the primacy of the House of Commons wouldn’t be undermined. Baroness Symons of Vernham Dean asked Lord Cunningham which of the two Chambers would have a stronger mandate on the basis of the size of their electorates (76,000 for a Member of the House of Commons versus 570,000 for a Lord). Lord Pannick rejected this, stating:

A mandate is a mandate, regardless of the size of the electorate. It is true to say that if someone is elected by an electorate of between 500,000 and 600,000 voters, that is a much broader sweep of the electorate. Therefore, it  could be argued that that is a stronger, more representative mandate, but I would not get carried away about that. I do not think that anyone says that the two Senators who represent a state in the USA where there are millions voting for them have a better mandate than members of the House of Representatives. As Lord Richard and I discussed earlier, it is just that, on  the basis of how the constitutional 52 and other arrangements in Congress  have evolved, the Senate has become more powerful. However, that is not related to the number of voters. (p. 51)

Similarly, MP Gavin Barwell asked: “Could I put it to you that someone who is elected in a general election on a turnout of 70%, when the election is specifically to form the Government of the country, has a greater mandate than someone who is elected in a multi-Member constituency on a lower turnout for the explicit purpose of membership of a second Chamber? Would you not accept that the level of mandate in those two situations is different, or do you see them as equal mandates?”

The following exchange then took place (p. 56):

Lord Cunningham of Felling: You can put it to me, but I do not agree. It is like saying that Members of the European Parliament or Members of the devolved Administrations do not have a mandate.
Gavin Barwell: I did not say that anyone did not have a mandate. It is about the level of mandate.
Lord Cunningham of Felling: A mandate is a mandate.
Gavin Barwell: No,  it  is not. For example,  I put  it  to you  that  the Mayor of London, elected by millions of Londoners, has proven to have a much stronger mandate than the  old  leader  of  the  GLC  had.  There  is  a  difference. Mandates  come  in  different degrees.
Lord Cunningham  of  Felling:  You  are  comparing  apples with  pears,  are  you  not? There was no elected mayor under the GLC, so you are not comparing like with like.

Mr. Barwell raised the same point with another witness, Lord Grocott, again finding that few agree with his “lesser mandate” theory:

Gavin Barwell: My question is for Lord Grocott and picks up the question that I put to Lord Cunningham. You described your role as a back-room boy and said that at the moment there is a presumption that the House of Commons has primacy. Is primacy a digital quality or an analogue one? In other words,if you moved to the world envisaged in this draft Bill, what would the presumption be of someone doing the kind of roles in which you have been involved?
Lord Grocott: Inevitably,if I was the Chief Whip of an elected Labour group in the House of Lords, my position would be pretty much the same as being Chief Whip of a  72 Labour group in the House of Commons. That is to say, my Members would have been elected on the most recent manifesto and the job would be to deal with that. Frankly, on many of the Bills coming from the coalition now, there would be a whipped vote to vote it down, preferably at Second Reading, and to harass it at every stage, if not at Third Reading. That is how it would operate.
Gavin Barwell: Let me pick up on two of those points. Assuming that the draft Bill went through, you would be a Labour Chief Whip in a House that was 80% elected, not 100% elected, and two-thirds of your Members would have been elected prior to the most recent general election for the House of Commons. Would you still feel that you had a mandate equal to that of the House of Commons under those circumstances?
Lord Grocott: It is not so much what I would feel as what the individual Members would feel. Presumably they would all go back to their constituency parties—we all have different mechanisms—but it would be difficult to do so and say, “I really dislike this Health Bill. In fact, you told me not to vote for things like this when you selected me as a candidate, but I’ve got to recognise the primacy of the House of Commons so I’ll go along with it.”  The answer is that it would be impossible to  sustain your position in relation to your own party unless you operated in pretty much the same way as Members of the House of Commons operate. (uncorrected oral evidence, 30 January 2012, pp. 71-72)

I could quote many more instances of witnesses objecting to the idea that the primacy of the House of Commons wouldn’t be affected by a partially or (in particular) a fully elected upper Chamber, but you get the general idea.  One only has to do a search for the word “primacy” in the Written Evidence submitted to the Committee to see that few agree that Clause 2 will suffice to guarantee the primacy of the lower Chamber. Lord Cunningham stated as much: “I have read some of the submissions on Clause 2 of the draft Bill. I do not think that I have read anything complimentary about it.” (p. 46)

However, one witness before the Joint Committee had a very different view. MP Graham Allen, who is also the Chair of the Commons Select Committee on Political and Constitutional Reform, argued that what existed in the UK system was not the primacy of the House of Commons, but rather:

the primacy of Government. We have Executive sovereignty. I think that there is an opportunity again here for those of us in the first and second Chambers to work together more effectively to do what Gladstone said of the role of the House of Commons, which is not to run the country but to hold to account those who do. (…)

Then there is the issue that occasionally gets raised in the context of primacy, which is that  somebody has got  to win. Virtually no western democracy  thinks  like  that. You can  have  independence within  your  institutional  settlement,  and  it works,  provided that  you have  reconciliation. An  effective process of  reconciliation  can be  found  in almost  every  other  democracy.  The  second  and  first  Chambers  working  together could quite  easily  come  to have  common  custom  and practice on  reconciling  their views  and  I  think  that  that  would  make  us  stronger  in  holding  Government  to account. (from the uncorrected oral evidence, 23 January 2012, p. 26)

There are a myriad of other key issues being raised in these hearings, and I urge you to either watch the archived evidence sessions, available here, or read through some of the written evidence, available here. The next hearing is scheduled for 27 February 2012, with Deputy Prime Minister Nick Clegg and Mr Mark Harper MP, Minister for Political and Constitutional Reform.

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Public Perception of Access to Parliament

UK House of Commons Speaker John Bercow established the Speaker’s Advisory Council on Public Engagement (SACPE) which provides informal, independent advice from an external perspective on the programs which the House of Commons has already introduced to improve outreach and to serve as a vehicle for thinking about what Parliament needs to do to convince the public that it has reformed and that it is really relevant to them.

Recently, SACPE chairperson, Professor Jonathan Drori, appeared before the House of Commons Administration Committee as part of their inquiry into Visitor Access and Facilities in the House of Commons.

It was an interesting meeting. There appeared to be a degree of tension between Dr. Drori’s ideas for how Parliament should be made more accessible and open to the public and some MPs’ focus on cost and practicality and feasibility of doing just that. Dr. Drori emphasized what he believed to be the larger issue: that people needed to value democracy and in order for this to happen, they needed to be engaged. This would happen via education: ensuring people understand the mechanics of democracy – voting, how laws are made, the differences between local politics and national politics, etc., but also via Parliament ensuring that the people understand the work it does. He repeatedly stressed the need for a new education centre, a project which has been discussed in Parliament for several years now, but the development of which seems to be largely hampered by two issues: cost and lack of space.

Drori also stressed that Parliament needs to employ all means available to reach out to the general public and to engage citizens by providing means for them to participate and contribute on a larger scale. He encouraged the members of the Committee to adopt a mindset of experimentation in order to seek out the best ways to achieve these ends.

One member of the Committee, Dr. Phillip Lee appeared to disagree with Dr. Drori that Parliament wasn’t accessible to the public, explaining that they could watch proceedings on television or online, or listen to them on the radio. He seemed particularly unhappy with the idea of increasing visitation to Parliament, saying that on some days, it was already “like a school playground” given the number of school groups visiting. Dr. Lee added that the design of the buildings and security concerns made greater access impractical. Dr. Drori noted that viewing Parliamentary proceedings on television or online simply did not provide the same level of experience and reminded the members that the public paid their salaries.

Indeed, much of the meeting did focus on the logistics of balancing greater access with security concerns, and the physical limitations of the Parliament buildings themselves. Dr. Drori tried many times to suggest that there were initiatives that could be undertaken that would allow for greater public access without them getting in the way, and that it was most important that the public not be kept out. He stressed that it really came down to an attitudinal divide: some MPs simply don’t like having members of the public around.

At one point near the end of the meeting, Dr. Drori stated that Parliament’s portcullis logo wasn’t viewed as particularly welcoming by the general public, that it was seen as a gate, something to keep the people out. This statement seemed to upset at least one member of the Committee, Labour MP Rosie Cooper who said she’d never heard such a thing and demanded to know where Dr. Drori got that information. He said it was research that had been shown to SACPE members at one of the meetings, and that he would be willing to provide the details to the Committee.

Of course, the portcullis is a gate. The symbol was developed as part of Sir Charles Barry’s plans for the rebuilt Palace of Westminster after the original burned down on 16 October 1834; he conceptualized the new Palace as a “legislative castle”, and the symbol of a castle gate, a portcullis, fitted well with the scheme. The Portcullis with a crown on top has come to be accepted as the emblem of both Houses of Parliament. In 1996 the use of the crowned Portcullis was formally authorised by license granted by the Queen. Dr. Drori was quick to explain that he wasn’t advocating that Parliament discard its symbols and logos, but that it was crucial that it be aware of public perception and views regarding these matters: “People need to see that Parliament is theirs, that it is of them and for them.”

You can watch the committee meeting with Dr. Drori here.

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Some parliamentary reforms to look forward to in 2012

The BBC’s parliamentary correspondent, Mark D’Arcy, has an interesting look ahead  at what to expect at Westminster in 2012, with two items in particular worthy of special attention.

The first will be a review of the Backbench Business Committee. I have written a number of posts about this new committee, and many readers have frequently asked if the Backbench Business Committee has been a success. By most accounts, it has, which is why the review will take on added importance. As D’Arcy notes:

While the Leader of the House, Sir George Young, and his Lib Dem deputy, David Heath, are both convinced reformers, not everyone is an unalloyed fan of the new empowerment of backbenchers.

“Too keen on confrontational debates”, murmur some voices. “Too ready to schedule debates on a Thursday on voteable motions”, complain others. They might want to clip the committee’s wings by limiting its powers in some way.

It is not clear when this review will take place – D’Arcy has it listed under the April to October timeframe.

He also writes that both the chair and members of the Backbench Business Committee will be up for re-election, probably some time in June:

having realised the power it wields, committee places and perhaps even the chair will be hotly contested.

In particular, I’d be slightly surprised if the contingent of Tory awkward squaddies on the committee remained unscathed.

The other item of note is in some ways the counterpart to the Backbench Business Committee: the creation of a House Business Committee. The Coalition Government had promised to institute a House Business Committee by 2013, therefore in order to meet that deadline, moves in that direction will have to occur this year.

What is a House Business Committee and what will it do? In theory at least (since nothing has yet been proposed), it will be a Committee of the House of Commons, with (one assumes) an elected chair and members similar to most of the other Select Committees, which will organize most, if not all, other debates in the House of Commons. This might not sound particularly important, but it is very close to revolutionary change since it is currently the Government which has full control in deciding the House’s business agenda. As D’Arcy explains:

A house business committee would decide how much time would be devoted to particular bills, which matters more than you might imagine.

In the last Parliament [under Labour] it was quite usual to see heavily-amended legislation hammered through the Commons in a single day’s debate on “remaining stages” – report and third reading – with the result that scores of important changes were voted through unscrutinised.

To its credit, this government has avoided that particular practice – but a more open approach to scheduling debates, something more than the normal carve-up between government and official opposition, could still produce improvements.

The key would be that the agenda for coming weeks was presented as a voteable motion – so MPs who were unhappy that not enough time was being devoted to some bill or debate could attempt to amend it.

Not everyone likes this idea. “I’m not having the business of the House decided by (shudder) Peter Bone,” one upwardly mobile backbencher told me.

Some fear the government would lose the ability to put its bills before the House – defying the time-honoured maxim that the government “must get its business”.

Others fear that a house business committee would amount to no more than the same old backroom dealing, but clothed with a little extra legitimacy because a few establishment grandees had been in the room when it was sealed.

But for those who want the Commons to control its own business, and not have it handed down from on high, the key will be that voteable motion.

They argue that the prospect of being over-ridden by a vote in the House will help ensure the concerns of backbenchers are not ignored.

This innovation should be of great interest to Canadian readers, particularly given the current Canadian government’s propensity to curtail debate through the use of time allocation and closure motions. This is one initiative that I will follow with great interest, and keep readers updated on developments as they occur.

One other item of note will be the Coalition’s draft bill on Lords’ reform. That draft bill is currently being scrutinised by a committee of MPs and peers, and the committee is due to report in March, which means there would be a Lords Reform Bill available to be put into the coalition’s next Queen’s Speech (what Canadians call the Speech from the Throne).

All in all, for those interested in parliamentary and procedural reform, the coming year at Westminster promises to be an interesting one.

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Challenges facing modern parliaments

In this post, I wrote about a recent report by the UK House of Commons Procedure Committee which reviewed the elections held, for the first time, in most cases, to fill various positions in the House. These elections were part of the reforms adopted by the House of Commons in the spring of 2010, before the May 2010 general election.

Recently, House of Commons Speaker John Bercow addressed the Hansard Society as part of their events marking the 100th anniversary of the Parliament Act 1911. You can find the link to download the entire speech here. In this post, I will focus on second part of Speaker Bercow’s talk: the challenges facing modern parliaments.

Speaker Bercow identifies what he believes are the three core challenges facing all modern parliaments today. These are: the need to strike the right balance between their whole and their parts; the need to be “relentlessly relevant” in terms of the subject matters they address; and finally, the need to embrace every aspect and opportunity afforded by emerging technologies to get parliament’s message across.

Regarding the first point, that parliaments must strive to strike the right balance between their whole and their parts, Bercow explains that by this he means “that there are times when parliamentary scrutiny is best served through the chamber itself and then other moments when the better device is a specialist parliamentary committee”. He provides a brief history of the development of a full-blown structure of departmental select committees, which was not established until 1979. For those readers who are less familiar with the UK select committee system, there is a Commons Select Committee for each government department, examining three aspects: spending, policies and administration.

These departmental committees have a minimum of 11 members, who decide upon the line of inquiry and then gather written and oral evidence. Findings are reported to the Commons, printed, and published on the Parliament website. The government then usually has 60 days to reply to the committee’s recommendations.

Some Select Committees have a role that crosses departmental boundaries such as the Public Accounts or Environmental Audit Committees. Depending on the issue under consideration they can look at any or all of the government departments.

Other Commons Committees are involved in a range of on-going investigations, like administration of the House itself or allegations about the conduct of individual MPs. In total, there are 35 Commons Select Committees.

Bercow notes that while the departmental select committees were established in 1979, the House as a whole did not have true democratic control over them until last year, when elections were held for the first time to allow the House to elect committee chairs, and party caucuses to elect their members to those select committees (which I explain in detail in the earlier post). Bercow explains that a modern parliament needs both a chamber and commitees which are “complementary to one another rather than seen as competitors to each other”. He concludes that “meaningful scrutiny demands strong select committees alongside a strong chamber.”

This is a reform that I would very much like to see the Canadian House of Commons (and provincial legislatures) adopt – letting all MPs elect committee chairs and letting party caucuses elect their own members to committees, rather than the current system where chairs and members are appointed by party whips. I have discussed this in detail in this post, for anyone interested.

Regarding the need for modern parliaments to be “relentlessly relevant”, Speaker Bercow warns that if a parliament is not discussing  “matters of real, immediate salience which are part of the day’s national conversation” then they risk “being in a world of our own”. He stresses that he does not mean a parliament should limit itself to discussing only what makes the front page of the daily papers, but that topicality is important. Speaker Bercow has facilitated this by reviving a previously much underused power of the Speaker, permitting Urgent Questions. From the UK Parliament website:

At times Members may want to put an urgent question to a Minister. Besides being subject to the standard rules for questions, Urgent Questions (UQ) are also judged against two additional and special criteria laid down in the rules of the House: they must be urgent and of public importance. A variety of sudden developments or emergencies fulfil these criteria, although these can quite often be covered in the form of a Ministerial Statement. A Member must apply to the Speaker before noon on Monday or Tuesday, 10.30am on Wednesday, 9.30am on Thursday or 10am on a sitting Friday on the day in question, to put forward such a question. The relevant government department would be informed at once. It is up to the Speaker to decide whether or not to allow an Urgent Question, and if it is allowed such questions will be taken immediately after Question Time, or at 11am on a Friday. Prior to the 2002-03 session of Parliament, this procedure was known as a Private Notice Question.

Members are informed that an urgent question will be asked by notices posted in the House and on the in-House annunciator. The information is usually available to the House of Commons Information Office approximately an hour before the House begins sitting. The procedure on Urgent Questions is similar to ordinary oral questions.  The main question will be asked, the Member who has put the question down is then allowed to ask a supplementary. Other Members will then be called to ask further questions on the same subject.

As stated, it is up to the Speaker to decide whether or not to allow an Urgent Question. Speaker Bercow’s predecessor, Speaker Martin, allowed only 2 Urgent Questions in the last 12 months of his tenure as Speaker. Since June 2009, Speaker Bercow has allowed (as of this date) 78.

Urgent Questions is another innovation that would be welcomed here in Canada. While Canadian ministers are (in theory at least) questioned daily in the House during Question Period, the format of Question period doesn’t allow for proper scrutiny due to the time limits on both answers and questions, and also because ministers can simply refuse to answer any question. They couldn’t refuse to appear in the House to answer an Urgent Question, nor could they defer the matter to a cabinet colleague as frequently happens during Question Period.

Lastly, Speaker Bercow argues that a modern parliament must embrace all forms of modern technologies and the opportunity they present in order to get its message out to the people and to allow people to participate in parliamentary proceedings. This includes the ability to follow these proceedings at their convenience. The UK Parliament has made great strides in this area, both in terms of its website (which I strongly invite you all to explore given the wealth of information available), and also by engaging on Facebook, Twitter, Flickr and YouTube. There is also a Twitter account for the House of Lords. The UK House of Commons also now accepts e-petitions, while in Canada, only the Quebec National Assembly does so. I have written quite a bit about the e-petitions scheme, and so won’t repeat myself here. There are still some glitches to be worked out, but as Speaker Bercow notes, “[M]odern parliaments need modern communications to reach out to the modern world.”

Speaker Bercow also makes some interesting comments on further reforms he believes would be needed to increase the authority and independence of Select Committees. I encourage you to download the speech in full to learn 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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Sin binning

The issue of order and decorum – or rather, lack thereof – is a fairly prevalent one, not only here in Canada, but also in other parliamentary jurisdictions such as the UK and Australia. While the general public may well get the idea that heckling, name calling and other boorish behaviour is rampant during most parliamentary proceedings, the truth of the matter is that this sort of disorderly conduct is prevalent mostly during oral questions (in the UK, PMQs).

It is up to the Speaker to maintain order in the House, but he or she has limited options at their disposal. They can call Members to order, but that may only temporarily silence a Member. And if one Member stops heckling after being called to order, another one will often just pick up where the first left off.They can refuse to recognize a Member who is being disruptive, but this won’t necessarily stop the Member from misbehaving.

In the previous Canadian parliament, Speaker Milliken was sometimes criticized for not doing more to curb indecorous behaviour in the House of Commons during Question Period. In interviews, Milliken defended himself explaining that the only real punishment a Speaker can inflict on unruly Members is to name them. Naming a Member means that they are banned from the Chamber for the remainder of the sessional day. Speaker Milliken was very hesitant to resort to naming Members and has explained that this was almost more of a reward than a punishment for some Members – they would immediately run down to the lobby and talk to the press, getting more publicity and air time than Members who were behaving properly in the chamber. There was also the problem of minority government to deal with. Naming a Member or Members meant that they might miss critical votes, and this in itself could increase the tension in the Chamber.

I recently learned that Speakers of Australia’s House of Representatives have an additional tool at their disposal for dealing with disruptive Members. Standing Order 94(a) states that:

94. The Speaker can take action against disorderly conduct by a Member:
Direction to leave the Chamber
(a)  The Speaker can direct a disorderly Member to leave the Chamber for one hour. The direction shall not be open to debate or dissent, and if the Member does not leave the Chamber immediately, the Speaker can name the Member under the following procedure.

This practice is commonly referred to as “sin binning”. Ian Harris, Clerk of the House of Representatives, in a presentation to the Canadian Clerks-at-the-Table annual Professional Development seminar in 2006 stated that the concept of the “sin bin” first came to the attention of Australians in relation to hockey – the practice of sending a player off the ice for a few minutes for having broken a rule. The practice was adopted in both major forms of rugby played in Australia. In 1994, the House Representatives adopted the above rule allowing the Speaker to direct a Member who is behaving indecorously to leave the Chamber for an hour. The adoption of this rule was on the recommendation of the Procedure Committee,

which saw the mechanism as a means or removing a source of disorder rather than a punishment, enabling a situation to be defused before it deteriorated, and without disrupting proceedings more than necessary. A Member who is directed to leave the Chamber under this procedure may not enter the Chamber galleries or the room in which the Main Committee is meeting.

In other words, sin binning is the procedural equivalent of being sent to the penalty box. It is an interesting idea, and certainly one that would have worked better than naming in the previous parliament. It would have removed the disruptive Member (or Members) for one hour only, which (one hopes) would have had a calming effect on proceedings during Question Period (or other debate), but wouldn’t have punished anyone unduly or caused problems for parties in the event of a crucial vote since the Member(s) would be back in the Chamber in time to participate in any vote scheduled for that day.

Since the idea has a Canadian influence, it might be something the Canadian parliament might want to consider adopting.

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