Posts Tagged ‘procedural 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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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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Thoughts on “Saving the House of Commons”

Aaron Wherry of Canada’s Maclean’s magazine recently wrote a blog post proposing a series of reforms to “save” the House of Commons. Some I have previously discussed on this blog, such as changes to Question Period. Readers proposed other reforms and ideas the comments. I thought I would offer my own thoughts on some of what was proposed.

1. Wherry proposed amending section 67 of the Elections Act “to remove the requirement that any candidate wishing to run for a party must have the signature of that party’s leader to do so”.

This is not something I have looked at or considered to any extensive degree, but on the surface, I don’t have any issues with it. I think it would complement open primaries very nicely.

2. Reform of Question Period as per the changes suggested by MP Michael Chong (fortify the use of discipline by the Speaker; lengthen the amount of time given for each question and answer; allocate half the questions each day for Members, whose names and order of recognition would be randomly selected; dedicate Wednesday exclusively for questions to the Prime Minister; dedicate Monday, Tuesday, Thursday and Friday for questions to other ministers).

I have written many posts about Question Period in the Canadian House of Commons and in favour of adopting a format more akin to that used in the UK House of Commons (see this one, for example). Chong’s proposals are based on the UK model, but don’t go far enough. Rather than simply lengthening the amount of time for each question and answer, do away with time limits completely. The UK House of Commons had a target quota for questions – if a ministry gets the full one-hour of questions to itself, the target is 25 questions and answers (note, that’s a minimum). Rather than allocate “half the questions each day for Members … randomly selected”, make it completely open to all MPs. If only one ministry is up for questioning at a time (rather than the whole cabinet as is currently the case), of course each opposition party’s critic for that portfolio will be present, but they certainly shouldn’t be entitled to half of the questions. Any MP should be free to ask questions (non-scripted), including MPs from the government party. There could certainly be a dedicated PMQs on Wednesday, but that doesn’t mean that there couldn’t also be questions to a ministry that day as well. In the UK, one of the smaller departments gets a half hour of questions before the half hour dedicated to PMQs. The same could be done in Ottawa.

Side note to this, as I’ve repeatedly stated, adopting a UK-version of Questions would only work if we also adopted Urgent Questions and revamped Ministerial Statements.

3. Wherry proposes getting rid of Members’ statements.

For those who aren’t familiar with this proceeding, Members’ statements is a daily occurrence which precedes Question Period and lasts 15 minutes. During this time, backbenchers have a minute to make a statement on any topic of their choosing. Normally, this is used to promote an event in their riding, or to bring attention to the achievements of a person or school or organization, etc., in their riding. Increasingly, however, these statements are used to make partisan attacks on other parties or politicians, which is contrary to the rules. I’d have no issue with getting rid of Members’ Statements.

4. No reading of speeches during debates.

As Wherry notes, the rules already prohibit the reading of speeches and has been in place since Confederation.  The purpose of this rule, is quite simple: it exists to maintain the cut and thrust of debate, which depends upon the speeches of successive speakers referencing the arguments of previous speakers to some extent. If this rule is ignored, debate becomes nothing more than a series of set speeches prepared beforehand without reference to each other. However, as we learn in House of Commons Procedure and Practice (pp. 607-8), by 1886, it was clear that the convention was often being ignored, which prompted the House to adopt a resolution condemning the very prevalent practice of Members reading their speeches. Little changed, however, and several Speakers addressed the issue in statements to the House and rulings against the practice of reading speeches. The 1956 statement by Speaker Beaudoin remains the definitive statement on established practice in the House of Commons:

A Member addressing the House may refer to notes. The Prime Minister, the cabinet ministers, the Leader of the Opposition, the leaders of other parties or Members speaking on their behalf, may read important policy speeches. New Members may read their [maiden] speeches. The Members speaking in a language other than their mother tongue, the Members speaking in debates involving matters of a technical nature, or in debates on the Address in Reply to the Speech from the Throne and on the Budget may use full notes or, if they wish, read their speeches.

The use of extensive notes, even prepared notes, by Members delivering their remarks is still prevalent in the House of Commons and the Chair has been disinclined to insist that Members not read their speeches. This is in sharp contrast to what transpires in the UK, where you never see anyone reading from texts. In the UK House of Commons, the principle has been quite strongly reinforced by recommendations of the Select Committee on Modernisation of the House of Commons, which recommended, among other things, that Members who wished to take part in a debate should be in the House to hear the opening speeches, and if not, they should not expect to be called upon to participate. If they were called, they should make some effort to respond to and reference previous speeches before pursuing their own line of argument, and remain in the Chamber after they’d finished speaking to listen to at least two more speeches in order to ascertain the reaction to their own comments. Speakers regularly reinforce the views of the Committee in a letter to Members.

Debate in the UK House of Commons perhaps also benefits from the fact that there aren’t any time limits on speeches (unlike in Canada), and because of the practice of giving way, while in the Canadian House of Commons, we have Questions and Comments. As well, Samara.org found that many MPs are told at the last minute that they are to speak in a debate and are given prepared texts by the party whips to read. This certainly doesn’t help the situation.

5. Requiring justification for the use of time allocation and/or closure

One of the fundamental principles of parliamentary procedure is that debate in the House of Commons must lead to a decision within a reasonable period of time. While the political parties in the House may disagree on what a ‘reasonable period’ might be, they would all agree that eventually, debate must end and the House must decide a matter. Therefore, time allocation and closure motions do have their place; the problem is that they are often used to avoid debate and scrutiny. Therefore I don’t have any real objections to what Wherry proposes: require a Minister “to provide justification for the curtailment of debate; the Speaker would be required to refuse such a request in the interest of protecting the duty of MPs to examine legislation thoroughly, unless the government’s justification sufficiently outweighed said duty; criteria would be set out for assessing the government’s justification, which would provide the Speaker with the basis for a decision to allow for the curtailment of debate.”

6.  The Aucoin/Turnbull/Jarvis reforms

I admit to being less familiar with these proposals, which Wherry sumarizes thusly: “Codify the following: that elections occur every four years on a specific date unless a majority of two-thirds of MPs approve a motion to dissolve Parliament for a new election; that  the opposition can only bring down the government via an explicit motion of non-confidence that also identifies the member who would replace the prime minister and would form a new government that has the support of a majority of MPs in the House; and that the consent of a two-thirds majority of the House of Commons be required to prorogue Parliament.”

This sounds somewhat similar to what the UK recently adopted with its Fixed-Term Parliaments Act. That Act fixes elections at every five years and stipulates that while a motion of confidence in the Government will still require the current 50%+1 to pass, this now won’t automatically trigger the dissolution of Parliament. There will now be a 14-day period to see if a new Government can be formed which will command the confidence of the House. If no alternative Government emerges, then Parliament would be dissolved. If the House wanted to dissolve Parliament before the 5-year term was up without recourse to a motion of non-confidence as described above, this would require a majority of tw0-thirds of MPs to approve a motion to dissolve Parliament.

I am not a strong supporter of fixed-term parliaments. I am not convinced that they solve the problems they are supposed to address, and I do think that they create new problems while exacerbating others. I do like the UK changes re: non-confidence motions not automatically leading to the dissolution of Parliament, and I don’t have objections per se to requiring a super-majority vote in favour of a motion to dissolve Parliament before the usual end of a parliamentary term. I don’t think a motion of non-confidence would need to identify “the name of the member who would replace the prime minister and would form a new government”.

Ultimately, it is only the House of Commons itself which can initiate any sort of change in how it conducts its business. Also, a lot of the issues these suggestions are meant to address could be “fixed” by the political parties themselves if they simply decided to ease up on their control of their own members. It is interesting to see these issues debated in the media since it means that many Canadians are concerned about the health of their democratic institutions. The question is – do our politicians share this concern?

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The Speaker’s Seat

In an earlier post, I wrote about some aspects of the UK House of Commons Procedure Committee’s report reviewing the election process for certain positions in the House of Commons. One part of the report which I did not comment on concerned the brief discussion of creating a “Speaker’s Seat”.

As I have previously mentioned in other posts, unlike Speakers in other Commonwealth countries, the MP elected Speaker of the UK House of Commons resigns from his or her political party. They also run for re-election as “the Speaker” and not as a member of a party. There is a long-standing convention in the United Kingdom by which the three main parties do not run a candidate against a Speaker seeking re-election; however smaller parties will contest the seat.

There has been a proposal raised at various times to create a Speaker’s Seat specifically for a Speaker seeking re-election:

The concept of a Speaker’s seat (sometimes referred to as St Stephen’s seat) envisages that any Member once elected by the House to the Speakership would cease to represent a normal parliamentary constituency, resulting in a by-election, and would be automatically returned at the next General Election, if he or she so chose, to stand in the Speakership election.

In other words, once elected Speaker, that MP would, in effect, cease to be an MP with a constituency to represent. A by-election would be called and a new MP would be elected to represent the constituency from which the Speaker hailed. In a general election, the incumbent Speaker would be automatically returned to the House from this “St. Stephen’s seat”, which, since it isn’t associated with an actual constituency, would not be contested by any other candidate.

The idea of a Speaker’s seat has been proposed time and again in the United Kingdom to counter a couple of perceived issues. The first is that constituents in the Speaker’s riding are, to a certain degree, not represented in the House of Commons to the same extent because their MP, the Speaker, cannot speak on their behalf in the House. Also, because the Speaker resigns from his or her political party upon being elected Speaker, and because the major parties do not contest that seat during general elections, voters are, to a certain degree, disenfranchised. Their only options are to re-elect the Speaker, or to vote for candidates from minor and fringe parties.

It is certainly true that Speakers are constrained in how they can represent their constituents. They cannot participate in any debates in the House, they cannot bring forward petitions, they cannot engage in any activity which might be perceived as partisan. This is true (to varying degrees) of all Speakers in all Commonwealth countries. However, this does not mean that they cannot represent their constituents and work on their behalf. For example, they can still raise their constituents’ concerns with the relevant agency or government department, and because they are the Speaker, they will often receive replies far more quickly than would be the case for a backbench MP. They can also attend events and undertake visits of a non-party political character throughout the constituency.

As for the question of voters being disenfranchised, this one is more problematic, as it is certainly true that voters in the Speaker’s constituency will not be able to cast ballots for candidates from any of the major parties. The Committee notes that the question of creating a Speaker’s seat was studied at length on at least three occasions: in 1938, 1963 and again in 1982. In each instance, the proposal was rejected largely on the grounds that “it was wrong in principle to create a new category of membership of the House, especially one that introduced indirect election, and that it would reduce the accountability of the Speaker to the Commons.” Speaker Lloyd is quoted in the report, stating in his farewell address to the House in 1976:

“I firmly believe that the Speaker should be elected for a constituency, as are other hon. Members, so as to keep personally in touch with the hopes and fears and the personal and individual needs of many thousands of ordinary men and women, meeting them face to face from time to time and to know the problems of the area which he represents”.

While the Committee did not undertake a detailed examination of this issue, they did conclude from their review of the arguments and history of the debate that the perceived advantages of creating a special Speaker’s Seat were outweighed by the disadvantages:

There are great benefits to the House and to the Speaker in the Speaker’s retaining responsibility for a normal constituency and being thereby fully aware of the issues currently causing concern to constituents. The access that the Speaker, like Ministers who are also unable to speak out in debates, gains to the Government in order to raise matters relating to his or her constituents compensates in no small measure for the lack of a constituency voice on the floor of the House. We are also concerned that the proposal would remove the important democratic check on the re-appointment of a Speaker by either the public or the House and would create a new separate, distinctive and privileged category of Member to the detriment of the House. Finally, we recognise that the existence of a Speaker’s seat could lead to worse consequences for a returning Speaker, if not re-elected by the House, than at present since there could be no possibility of a return to the backbenches in such circumstances and the traditional honour of a seat in the Lords could cease to be available in the foreseeable future. For all these reasons, we do not support the concept of a St Stephen’s seat for the Speaker.

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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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What’s what in Parliament: The Standing Orders

The Standing Orders are the written rules under which a Parliament conducts its business. They regulate the way Members behave, Bills are processed and debates are organised. The continuing or “standing” nature of rules means that they do not lapse at the end of a session or a Parliament; they remain in effect until the House itself decides to suspend, change or repeal them. In some instances, however, provisional or temporary Standing Orders may be adopted by a legislature and last only until the end of a sesssion or a parliament.

The Standing Orders typically provide a detailed description of the legislative process, the election and role of the Speaker, the parliamentary calender, how committees will be organized and function, etc. However, not all rules observed in the House are found in the Standing Orders. Much of parliamentary procedure is not written into the Standing Orders but exist as the custom and practice of Parliament. Some stem from Speaker’s rulings in the legislative chamber, other procedures are followed because that’s the way things have been done in the past, so a precedent has been set. These will vary from one legislative body to another. For example, in the UK House of Commons, the practice that Bills are ‘read’ three times in both Houses is not in the Standing Orders, but it is in the Canadian House of Commons Standing Orders (SO 71). Another example, in the Canadian House of Commons, Members must not use props, displays or exhibits during debate, and any Member who does so will be ruled out of order by the Speaker. However, there is no rule in the Standing Orders of the House of Commons forbidding the use of props; this is simply a long-standing parliamentary convention.

Similarly, there may be rules in place which simply aren’t followed at all any more, or else actual practice followed in the House may differ from what is stipulated in the rules.

Other aspects of how business transpires in a Parliament are governed by the country’s constitution, as well as certain Acts. Some of these constitutional provisions may be adopted as formal rules in the Standing Orders. Using Canada again as an example, we learn in House of Commons Procedure and Practice (2nd ed.) that:

Sections of the Constitution Act, 1867 which can be traced back to the Constitutional Act, 1791 stipulate that all questions arising in the House are to be decided by a simple majority, with the Speaker having a casting vote in the case of a tie, and that all Members must take a prescribed oath before being allowed to take their seat in the House. Those sections of the Constitution Act, 1867 which can be traced back to the Union Act, 1840 stipulate that on first assembling, the House must elect a Speaker, that it must also proceed to elect another Speaker in the case of a vacancy in that office due to death, resignation or some other cause, that the Speaker shall preside at all meetings of the House, that the quorum of the House shall be 20 Members, and that all requests for the raising or spending of money must originate in the House of Commons and must be recommended to the House by the Governor General.

The Parliament of Canada Act also contains many important provisions which are of procedural significance. Examples of these include: the power of the House and its committees to administer oaths to witnesses appearing either at the Bar of the House or before a committee; procedures to be followed when Members resign or when seats are otherwise vacated; conflict of interest rules applicable to Members; a Deputy Speaker’s ability to act in the Speaker’s absence, etc.

The Standing Orders belong to the legislative body they govern, and that legislative body is free to amend or repeal any rule, and create new ones. In some instances, this is done by an all-party parliamentary committee which will review existing rules and put forward recommendations to improve how the House conducts its business. In other instances, the government of the day will propose changes to the rules which will then be debated in House and often reviewed by a committee. Sometimes the Speaker, in a ruling on a matter which may not be explicitly covered by the Standing Orders, may refer the matter to a committee for consideration, which may result in changes to the Standing Orders.

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United Kingdom House of Commons Standing Orders – Public Business, Private Business
United Kingdom House of Lords Standing Orders – Public Business, Private Business, Authoritative Guide
Canadian House of Commons Standing Orders
Canadian Senate Standing Orders
Australian House of Representatives Standing Orders
Australian Senate Standing Orders
New Zealand Parliament Standing Orders

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Some interesting links

1. Time to salute the post-2010 election Parliament

BBC parliamentary correspondent Mark D’Arcy has a good column providing an interesting overview of the current UK Parliament and an assessment of some of the many reforms introduced in the dying days of the previous Parliament and at the outset of this one: “So I’m afraid, as I head off for my holidays, I’m going to indulge in a little optimism. A stronger Parliament is doing a better job. And that is a good thing for the country.”

2. The Death Penalty: A Matter of Emotion, Not Reason

With efforts underway by pro-capital punishment forces to force the House to debate the issue by gathering 100,000 signatures on an e-petition, the Spectator’s Alex Massie provides a thoughtful piece on the subject: “I have a little more faith in the British justice system than I do in its American counterparts but not so much that I’m happy to grant the state this kind of sanction. If I won’t trust the state to issue an ID card why should I trust it with the death penalty?”

3. Can David Cameron and George Osborne defy history and remain friends?

The Guardian’s Nicholas Watt looks at the long history of Prime Ministers falling out with their Chancellors of the Exchequer, and ponders if Cameron and Osborne can avoid a similar outcome.

4. MPs find their voice at last

Complementing Mark D’Arcy’s article about how reforms have made the UK Parliament stronger, Steve Richards writes in The Independent about how these reforms have shifted power to MPs and away from the executive: “Until recently the committees were something of a backwater for MPs, largely ignored by the media and viewed with indifference by ministers. They produced their reports. Some of them were extremely insightful and provided an important alternative commentary on various governments. Rarely did they get much publicity. No member acquired such an aura that he or she became associated with sex appeal. This has changed. Suddenly committees are sexy.”

5. An interview with the creator of PMQs – The Game

Helen Lewis-Hasteley interviews Mark Richards, creator of the PMQs computer game I’ve previously blogged about: “I had really enjoyed doing retro video game-style caricatures of political figures and, one day, it just occurred to me that Prime Minister’s Questions is a real-life turned based battle, like those bits from the old Pokemon games.”

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Perceptions of parliamentary procedure: is the grass really greener?

Last week’s appearance by Rupert and James Murdoch before the UK House of Commons Select Committee on Culture Media and Sport (which you can view here if you missed it) as well as Prime Minister David Cameron’s ministerial statement in the House of Commons the following day (viewable here) received global media attention. Many Canadian journalists who normally report on proceedings in the Canadian House of Commons seemed enthralled by the often small, yet significant differences in how the UK and Canadian Houses of Commons function – the very same differences which I have been writing about here for over a year now.

CBC reporter Kady O’Malley, who regularly liveblogs proceedings on Parliament Hill in Ottawa, has since written two posts outlining some of the differences which she observed and, for the most part, would like to see adopted in Canada (first post on committee procedure, second post on procedure in the House of Commons). One highly respected political commentator, Andrew Coyne, national editor of Macleans Magazine, tweeted on July 20 “Everyone should be watching the UK phone-hacking debate, if only to see what a real parliament looks like”.

O’Malley’s post on committee procedure ignores one very important difference between Canadian and UK House of Commons committees: the majority of Select Committee Chairs are now elected by their fellow MPs. This applies to departmental committees and the Environmental Audit, Political and Constitutional Reform, Procedure, Public Administration and Public Accounts committees. Canadian committee chairs are elected by that committee’s members. Similarly, committee members in the UK are elected by their respective caucuses, while members of Canadian committees are appointed by their party whips. I have discussed this in detail in this post, and so I won’t repeat myself here, but it should be fairly obvious to most why having elected chairs and committee members would make for a more responsive and less partisan committee.

There are also a couple of other inaccuracies in O’Malley’s post on committee procedure. UK select committees do allow witnesses to make opening statements or general comments. Some witnesses decline to do so, but others take advantage of the offer. To her credit, Kady notes:

The following observations were inspired by what I saw when I was liveblogging the Home Affairs and Culture Select committees on Tuesday; as we are so often reminded, committees are, of course, masters of their own respective destinies, which means it is distinctly possible that other select committees operate on slightly – or even substantially – different rules.

O’Malley also writes that there aren’t time limits for questions and answers, nor on the length of time witnesses are expected to stick around to answer. Again, this isn’t entirely true. Each committee hearing has a set duration, for example, from 10:00 a.m. to 11:30. The committee may well decide to go on longer, or to cut proceedings short. Some witnesses do have to leave at a certain time because of other commitments, and so the committee knows it has only a half hour, or an hour, etc., with that specific witness. It is true, however, that unlike the Canadian House of Commons committees I have watched, the UK committees don’t have time limits for questions and answers.

While Kady O’Malley highlighted some key differences (based on having observed one committee hearing), a recent piece on the BBC website questions if MPs are really up to the task of questioning witnesses, stating that “[T]here had been criticism of earlier hearings for not asking sharp enough questions, or following up lines of enquiry.” One MP defended MP inquiries this way:

“We are asking questions as non-experts, as representatives of the public.

“You can’t prepare those questions in advance because you can’t always anticipate the way that the discussion will go.”

The comment by UK MP Nicola Blackwood that MPs are asking questions “as non-experts” also reminds me of former Prime Minister John Major’s recent calls for reforms to increase the number of MPs with expertise in specific areas, which I discussed in this post.

This is a legitimate criticism of parliamentary committees. For example, there has been much criticism of one MP on the Culture, Media and Sports committee, Louise Mensch, for making some comments during the July 20 hearing accusing former News of the World Editor Piers Morgan of phone hacking because he had supposedly admitted to this in his autobiography. This led to a fierce row between Morgan and Mensch, who refused to repeat the allegations outside of Parliament, where she would no longer be protected by parliamentary privilege. Here in Canada, other committee investigative hearings have been less than stellar. In 2007, the Canadian House of Commons Committee on Access to Information, Privacy and Ethics conducted an investigation into the Mulroney Airbus settlement. The questioning of former Prime Minister Brian Mulroney by MPs appeared often amateurish and boorish, and Mulroney’s legal counsel, Guy Pratte, described committee hearings as “damaging”:

“At a parliamentary committee there are absolutely no rules. Zero rules. At least at inquiry commissions some rules of fairness apply. Parliamentary immunity means things are said that never would be said if MPs were subject to defamatory libel.”

He remembers New Democrat MP Pat Martin saying to Mulroney: “I won’t call you a liar, but I don’t want anyone here to think that I believe you.” Pratte says, “That sort of thing would never be tolerated in a court of law. Never, never, never!” Mulroney fumed at the insult and his son Ben, the television host, had to be restrained in the audience. “Parliamentary committees play with peoples’ reputations sometimes in a very dangerous and damaging way,” says Pratte. “I understand they have work to do, and it is a political forum. I suppose there is a political advantage to be gained from getting a big headline the next morning.

“I’ve said it many times in the Mulroney affair. It should resemble an ordinary court.” Pratte says. “We should at least try to respect the basic principles of fairness. I wanted to present myself in politics several times, but my experience as much with Mr. Pelletier as Mr. Mulroney left me discouraged by the performance of certain, but not all, MPs and the lack of concern with which they threw out any sort of accusation.”

Kady O’Malley’s second post looked at differences between the UK and Canadian House of Commons in general. On Twitter on July 21, many Canadian journalists were enthralled by the ministerial statement delivered by David Cameron on the phone hacking scandal and the questions and debate which followed. I have also explored the vast differences between Canadian and UK ministerial statements, O’Malley, for some reason, did not comment on that at all. While UK ministerial statements are always far more productive affairs than their Canadian counterparts, this one was quite noteworthy: Cameron took 136 questions from MPs during his statement.

It was interesting to see the many comments from Canadians on Twitter, some of whom lamenting that Canada doesn’t have a Prime Minister’s Questions (not that there was a PMQs on 20 July). It reminded me that only days earlier, the Independent had run an article celebrating the 50th anniversary of PMQs. The sub-headline of that article reads: “No other parliament has anything like Prime Minister’s Questions.” Quite a few readers took exception to that and rattled off a series of countries that they said had PMQs: Finland, Japan, Hong Kong, Australia, Canada, to name a few. It was clear to me that people were confusing a general oral question period where all ministers, including the PM, take questions, which is what both Canada and Australia have, with a questions session where only the PM and no other ministers takes questions. It made me wonder if the Canadian journalists on Twitter, who were expressing such enthusiasm for PMQs, were aware of the UK House of Commons’ other daily questions – the department-specific oral questions, which I’ve written about in detail here. I don’t know if they’d be as impressed by those since they are such staid affairs when compared to PMQs. They should be, however, since again, they are far more productive than the Canadian version of Question Period for both getting information from the government and holding it to account.

Regular readers of this blog will know that I personally believe that the UK House of Commons functions far better than its Canadian counterpart, but as we all well know, the grass usually does look greener on the other side of the fence – or in this case, ocean. At least one very prominent figure in the UK believes there is still room for further reforms at Westminster.

House of Commons Speaker John Bercow spoke to the Guardian and stated that while “MPs and peers have “rediscovered their collective balls” over the phone-hacking affair”, more could be done to strengthen Parliament. First on his list is finding a way to allow Parliament to compel witnesses to appear before committees.

Parliamentary committees (both in the UK and Canada and other jurisdictions) have the power to request witnesses to give evidence to them via an informal invitation issued by the committee clerk or the committee chair. They can also draw on their formal powers to summon witnesses via a Speaker’s warrant. That power is unqualified, “except to the extent that if conflicts with the privileges of the Crown and of Members of the House of Lords, or with the rights of Members of the House of Commons.” (Erskine May, 24th edition, p. 820). Should a witness fail to comply with such a warrant, however, they will be found in contempt of Parliament. In theory, the House of Commons has the power to send for persons whose conduct has been brought before the House on a matter of privilege by an order for their attendance. In practice, however, as Bercow notes, this isn’t really an enforceable power:

“If the Murdochs had refused the warrant to attend, we would have been in an extremely awkward situation. I don’t think there is much we could have done. There has been a complete ambiguity, a lack of clarity, an uncertainty about what our powers are.”

Bercow says select committees should have enforceable powers to compel witnesses in British jurisdiction to attend, and not, as at present, “depend on a toxic blend of bad publicity and the entirely implausible threat of imprisonment.

“I don’t think frankly it should be the Speaker on behalf of the house imprisoning a witness. We have got a creche in the parliamentary estate, but not so far as I know a cell.”

I sort of agree with Bercow that there probably needs to be a better way to compel witnesses to attend when summoned to appear before a parliamentary committee. Currently, the most likely outcome of a witness’s refusal to appear before a committee will be for that person to be found in contempt of Parliament. They may be called before the Bar of the House to be reprimanded by the Speaker or asked to apologize, but again, there is no way to compel them to do so:

The problem is that the sanctions – involving fine or imprisonment – to enforce any punishment are constitutionally somewhat rusty. Vernon Bogdanor, the former professor of government at Oxford University, has suggested they may have fallen into “desuetude” [disuse]. The House of Commons is not believed to have fined anybody since 1666 and has not “committed anyone to custody”, apart from temporarily detaining them, since the 19th century.

The last time the Commons attempted to reprimand anyone at the bar of the house was in 1957 when the Sunday Express editor John Junor was criticised after offending MPs by publishing an editorial accusing them of abusing their petrol allowances. “Such a sanction would now appear high-handed,” the recent standard and privileges committee report acknowledged.

Another MP, Adrian Bailey, who chairs the Business, Innovation and Skills Select Committee, has called for new laws to be introduced to force witnesses to appear before select committees. In the US, a federal act makes contempt of Congress a misdemeanor “punishable by a fine of not more than $1,000 nor less than $100 and imprisonment.., for not less than one month nor more than twelve months.” Perhaps something along these lines would be what Bailey and Bercow have in mind.

Bercow also would like to see witnesses before committees examined under oath “as a matter of course”. Committees do have the power to administer oaths to witnesses, however, more often than not, they aren’t. This too has ramifications. If a witness was not sworn in before testifying, and then found to have provided false evidence or misled the committee, the worse that will happen is that they may be found in contempt. However, again according to Erskine May (p. 824), “[B]y the Perjury Act 1911, s 1, where evidence is given upon oath, the giving of false evidence is punishable as perjury. The power of either House to punish for false evidence is not, however, superseded by this Act.” Meaning that it would still be up to the house to administer any punishment – the range of which are similar to those available for anyone deemed to be guilty of contempt. And again from Erskine May:

it should be borne in mind that in 1978, the House of Commons resolved to exercise its penal jurisdiction as sparingly as possible, and only when satisfied that it was essential to do so. Thus many acts which might be considered to be contempts are either overlooked by the House or resolved  informally.  (p. 251)

And while Canadian journalists and political watchers were so enthralled by PMQs, that item of business remains a source of great frustration and embarrassment for Bercow:

“I cannot think of any business that would put its worst product in the shop window and in some respects it’s our worst product. I think the level of heckling, the extent of catcalling, the sheer decibel level, are not conducive to reasoned debate.”

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