To Stay in the Party: Why Jody Wilson-Raybould’s Criticism of Trudeau Does Not Mean She Should Have to Leave the Party Caucus

Jody Wilson-Raybould’s testimony to the Justice committee was remarkable.  It is rare that a former cabinet minister who is still a member of a party’s caucus gives such troubling evidence about the actions of a Prime Minister and their party leader.  Despite her testimony, Wilson-Raybould has stated that she wants to run for re-election as a Liberal.  That Wilson-Raybould was willing to give such testimony as a member of the Liberals was refreshing.  It is important to Canadian democracy that Prime Ministers are held to account when they act inappropriately.  This works best if Members of Parliament are willing to raise issues with respect to the inappropriate actions of their own party, and if doing so does not come with the expectation that they leave their party.

MPs’ roles in parliament are complicated.  On one hand they are representatives of constituencies tasked with pushing for legislation that fits their constituents’ interests and holding the executive (cabinet including the Prime Minister) to account for their actions.  On the other, they are members of a party.  As such, they are part of a team that runs for election on the promise that they will pass and implement the policies included in their party platform.  Even as members of that team MPs sometimes have conflicting interests.  On one hand they have to respect the extent to which the party leader has to broker compromises between competing interests within the party, ensuring that the party can present and, if elected, implement a coherent policy platform.  On the other, as prominent members of the party, they have a duty to ensure that the party is more than just a personality cult that serves the leader.  They ought to make sure that a particular leader’s ambition does not harm the party’s brand and long-term viability.

Too often the balance in Canadian democracy is struck in such a way that concentrates power in the party leader.  MPs from the government end up hesitating to hold the Prime Minister to account because the Prime Minister decides whether they will get appointed to cabinet or to choice House of Commons committees.  As both the public and parties increasingly expect higher levels of loyalty from their MPs, any indication of dissent leads to the expectation that an MP will be expelled from the party and forced either to run as independent or to join an opposing party.  This increasingly undermines the ability of MPs to push back against the leader when the leader is acting inappropriately.  Not only does this party discipline keep MPs from serving their role in parliament keeping the cabinet to account, but they also lose the ability to prevent a leader from pursuing ambition at the expense of what is good for the party.  The leader’s interests get conflated with the party’s interests and party’s ideological and policy foundation are replaced with individual ambitions.  If Louis the XIV could say: “l’étate, c’est moi” (I am the state), Canadian party leaders can increasingly say “le parti, c’est moi” (I am the party).

Wilson-Raybould’s testimony to the justice committee pushes back against too much Prime Ministerial power in two important ways.  First, she demonstrated that as an MP she had the ability to raise serious concerns about the Prime Minister’s action even when raising those concerns caused problems for her party leader.  As a result, she gave both parliament and the public important information about inappropriate actions taken by the Prime Minister.  Second, she did this while remaining a Liberal party MP, and hopefully will be able to run for re-election as a Liberal.  This second part is important because it suggests that Wilson-Raybould can reject the inappropriate actions of her party leader while still accepting the broader ideological and policy commitments made by the Liberals.  Wilson-Raybould’s continued presence in the Liberal party suggests that the party is more than just the interests of Justin Trudeau.  The party’s ideals can have an importance that goes beyond the immediate interests of the party leader, and one can remain committed to those ideals even if one rejects some of the actions taken by the leader.

One can find examples of parties asserting power in Westminster parliamentary systems outside of Canada.  In Australia, MPs have the power to remove their leader, and they often exercise this power.  While this may lead Australia to go through Prime Ministers at an almost comical rate, it also makes very clear that the interests of the leader are subservient to the interests of the party.  Whenever MPs feel that a leader is not serving the party’s interests, they find someone else to do the job.  In Britain, the large number of MPs that have no chance of getting into cabinet (Britain has 650 MPs 23 cabinet members including the Prime Minister and leader in the House of Lords) coupled with the inability of leaders to boot members from their parties allows backbench MPs fairly broad leeway to push back against a Prime Minister that acts against their interests.  One can accuse Theresa May of a lot of things, but having the ability to bully dissident backbench MPs into submission is certainly not one of them.  While this has led to a fractious parliament, it has also led to a parliament where MPs’ divided views over Brexit are more less reflective of the fact that there is a great deal of division in the British public over the issue.  As Prime Minister, May has to grapple with those divisions instead of simply pushing through the version of Brexit she likes best.

From time to time Canadian Prime Ministers are described as “elected dictators” because of the amount of pressure they are able to exert over MPs from their party.  This means that when a Prime Minister has a majority government, they have an ability to enact their policy agendas and avoid scrutiny that goes beyond that of their counterparts in Australia and Britain.  Wilson-Raybould’s testimony on the SNC Lavalin affair and her continued presence within the Liberal party pushes back against this Prime Ministerial control.  She should be lauded for her role in proving the House of Commons justice committee with some of the information they need to hold the Prime Minister to account for his actions in the affair.  She should not be expected to leave the Liberal party.  Her continued presence in the party demonstrates that one can take issue with Trudeau while still believing in the broad issues and policy platform that the party stands for.


Parliament’s Role: The SNC Lavalin Scandal Highlights Two Problems with Canadian House of Commons

For those that followed Canadian politics through the early 2000s this past couple of weeks may have seemed oddly familiar.  Like in the 2000s, the federal Liberals have gotten themselves into trouble with respect to inappropriate dealings with a Quebec firm.  This time the problems have arisen out of what may have been inappropriate intervention in the prosecution of an engineering firm, SNC Lavalin, for bribery in Libya.  A Globe and Mail story suggested that Prime Minister Justin Trudeau put inappropriate pressure on then Justice Minister and Attorney General Jody Wilson-Raybould to offer SNC Lavalin a remediation agreement in place of a criminal prosecution.  Though Trudeau has denied this, there has been ample speculation that Wilson-Raybould’s decision not to offer such an agreement played a role in Wilson-Raybould being moved from justice to veterans’ affairs in the most recent cabinet shuffle (Wilson-Raybould has since resigned from cabinet).*  The scandal raises serious questions about political interference in the judicial process.  At the same time, two aspects of the scandal highlight serious problems with the ability of the Canadian House of Commons to fulfil its role scrutinizing both government legislation and action.

Parliament, and in particular the House of Commons, has an important role in Canadian governance.  As the most powerful part of the legislative branch (the Senate is also part of the legislative branch but exerts less influence over legislation because it is not elected), the House of Commons has a central role studying and deciding whether to pass the bills that the Prime Minister and cabinet decide to put forward.  If the Prime Minister and cabinet put forward legislation that a majority of MPs feel is not in the country’s interest or that go against the views of their constituents they can change the legislation or prevent it from becoming law.  The House of Commons also serves a central accountability function.  They get to question the government in Question Period, forcing the Prime Minister and cabinet to defend their actions on a daily basis.  Committees of MPs assigned to various areas of government activity not only subject proposed legislation to close study, but get to investigate the government’s actions should they deem such investigation necessary.  These powers exist so that the decisions of government are subject to democratic accountability.  Empowering MPs to scrutinize legislation and investigate government keeps Canada from becoming an elected dictatorship.

At least that is the way that it is supposed to work in theory.  In practice the House of Commons often falls well short of expectations when it comes to scrutinizing the government.  The combination of majority governments and party discipline, that leads MPs to be tightly controlled by their party leaders, limits the extent to which the House of Commons holds the government to account.  With a majority of MPs of in the House of Commons, Trudeau faces little risk of having legislation defeated so long as Liberal MPs remain united.  With MPs taking their orders from the PM (usually in the hopes that doing so will lead to a future cabinet appointment or out of fear that too much dissent will get them expelled from the party), Trudeau can count on his party staying united.  With a majority on most committees and the right to deciding which Liberals get to serve on which committees, Trudeau and his cabinet ministers are relatively safe from committee investigations they might find embarrassing.  Both of these problems are important to the SNC Lavalin scandal.

The way remediation agreements became an option for firms like SNC Lavalin highlights a problem with the way legislation is passed.  Remediation agreements were added to Canadian law last year in the Liberal budget.  If a budget seems like and odd way to change the rules for how firms of prosecuted, that is because it is.  The Liberals’ budget was an omnibus bill, a bill that includes a wide range measures that are often unrelated to each other.  Because this was a budget, it was referred to the House of Commons finance committee for study and scrutiny and not the justice committee.  As a result, MPs assigned to the House of Commons justice committee, the MPs tasked with scrutinizing government legislation and activity that pertains to criminal law (among other things), did not get an opportunity to review an important change in the way corporations are subject to criminal prosecution.  Had they had an opportunity to study remediation agreements, the justice committee may have suggested changes to the law, or they may have left it as is.  But they would have had more of an opportunity to raise questions about the new legislation’s purpose and who it might benefit than a budget committee tasked largely with scrutinizing the way the government spends its money.  These omnibus bills have become more and more common under both the Harper and Trudeau governments.  The SNC Lavalin case highlights the way that these bills can lead to changes to legislation that do not receive proper scrutiny.

The second problem with the House of Commons that the SNC Lavalin scandal points to lies with committees’ investigative power.  With serious questions coming up with respect to the PM’s conduct and whether or not he applied pressure on Wilson-Raybould to offer SNC Lavalin a remediation agreement, it would make sense for the justice committee to investigate this matter.  Yet, the Liberal majority on the committee has been accused of limiting the witnesses they are willing to call as part of such an investigation, though Wilson-Raybould has now been invited to testify before the committee.  The extent to which the investigation can be trusted by the public, however, will always be called into question by the fact that Trudeau and the Liberal leadership in the House of Commons decide which Liberals get to serve on the committee, and by the fact that the Liberals make up a majority on the committee.**  It is highly problematic to have the Trudeau government being held to account by a committee with a majority that owe their positions on the committee to Justin Trudeau.

The House of Commons does not have to work this way.  Rules with respect to what can be included in legislation could be changed to allow the Speaker of the House greater leeway to break up omnibus bills.  This would have allowed legislation introducing remediation agreements to be debated separately from the budget, and would have allowed it to be studied by the appropriate parliamentary committee.  The British model of committee membership selection could also be adopted.  This method has committee chairs elected by a secret ballot of Members of Parliament, and members to a committee chosen by a secret ballot of the MPs in the party that MP represents.  Instead of having the Liberal members of the justice committee selected by the Prime Minister and party leadership they could be elected by Liberal MPs.  This would make committees beholden to all MPs in parliament instead of the Prime Minister and cabinet they are supposed to be scrutinizing.  All of this would increase the of House of Commons’ power relative to the executive and allow it to do more to fulfil its role in Canadian democracy.

The SNC Lavalin scandal probably could not have been prevented by strengthening parliament.  The scandal goes to questions over political interference in prosecutions and the relationship between the Prime Minister and the Attorney General.  At the same time, the scandal exposes two serious concerns over the way that the House of Commons operates and its inability to fulfil its role as a body the scrutinizes the actions of the Prime Minister and cabinet.  Restrictions preventing the use of omnibus bills would have made the legislation that allowed the SNC Lavalin scandal to happen subject to greater and more appropriate scrutiny.  Reduced party leadership control over committee appointments would strengthen the ability of the justice committee to conduct a proper investigation of the matter.  Both would lead to significant improvements on the quality of Canadian democracy.

*A short summary of the scandal is available here.

**When one includes the chair of the committee.


When the People Speak, the Sound is Incomprehensible

In democratic politics it is common to talk about “the people.”  Populists in particular use the term to justify their policies, but they are not the only ones to make use in the concept in political discourse.  Media will often speak of “the people” with reference to the mandates that different governments have.  When governments win majorities “the people” are said to have trusted the government to implement its platform.  When governments win minorities, “the people” are said to have wanted the opposition to moderate the government or they are said to be giving the government a test run before deciding whether to give it a majority.  These conceptions of voters speaking with a single voice through elections are highly problematic.  They paint a picture of “the people” as a monolithic body giving a clear verdict on how they want to be governed.  In reality popular opinion is far messier.  It is made up of people with a wide range of contradictory views and priorities.  These contradictions make it impossible to discern a single message from an election.

One of the most problematic tropes in a great deal of election coverage is the assumption that the outcome indicates a uniform desire on the part of Canadians for a particular government.  Election outcomes are, rather, a complicated mess of differently expressed preferences.  To the extent that votes are an expression of who individuals want to govern (which is likely true for most voters, but there are some that vote to express a protest or for a preferred local candidate), they almost always disagree over who ought to form government.  This is not just because government’s never win 100% of the vote, they very rarely win over 50%.  There almost never is a consensus, even amongst a majority of Canadians, over who ought to govern.

When majority governments are formed, it is usually a result of the electoral system producing a majority from a minority of seats.  This not necessarily a bad thing.  One can make a trade-off between the efficiency and the clear lines of accountability that majority governments produce and proportional representation.  It is important though not to interpret majority governments as an expression of a majority will to have a particular platform implemented by a particular party.  Most often, a majority Canadians voted for a different party and likely wanted a different party to implement a different platform (though those Canadians could not agree on which alternative they preferred).  This should not detract at all from the right of a majority government to govern.  But, they should not be treated as if they have a broad popular mandate derived from their unique ability to discern what Canadians want.  Rather their position in power is a result of the way our electoral system creates opportunities to govern out of divided public opinion.

Even more care should be taken in interpreting the extent to which minority governments have popular mandates.  Despite the analysis provided in much of the media coverage, it is highly unlikely that minority governments come about because Canadians want to temper a particular party’s power or want to test a party in government before granting a majority.  It is more likely that minority governments result from too much disagreement over which party ought to have a majority.

The extent to which governments can be seen as speaking for “the people” is even further complicated when one considers the vast array of motivations that different individuals have when casting votes.  Elections are very rarely fought over a single issue.  Some individuals’ will vote based on the state of the economy or economic policy.  Others will be most concerned with healthcare, the environment, social policy, foreign policy, or a plethora of other issues.  To add to that, there are plenty of voters who vote for reasons unrelated to a party’s platform.  These reasons vary from trust in the leader, to support for a local candidate, to partisan loyalty.  To extrapolate majority (or even large minority) support for a particular policy or set of policies from these range of views and motivations is highly problematic.  It is a mistake to believe that “the people” support everything or even the majority of what is in a party’s platform just because the party won an election.  This is not to say that most people oppose said policies either, it is impossible to be sure either way.

None of this is to say that elected governments have no legitimacy or that they do not have the right to implement the policies that they ran on.  Rather, it is to say that that governments should been seen as the product of messy compromises between large numbers of people with wide-ranging viewpoints and priorities.  Winning an election conveys upon a party a right to govern because of the way that the rules that govern Canadian democracy work and because they have found a compromise that builds a reasonably large coalition of voters.

This has consequences for the way that democracy should be approached.  If governments are the product of messy compromises between wide ranging and contradictory viewpoints, opposition parties are essential.  They provide a way to test the value of the compromise the government has cobbled together by subjecting that compromise to criticism.  They also provide a venue for those that are left out of the compromise to articulate their viewpoints.  Similarly, distributing power widely within parties and parliament is important.  The less of an ability individual MPs have to challenge governments and their party’s leadership, the fewer viewpoints are expressed and the less well parliament represents the wide range of views and priorities that exist within the public.

The lack of a clear consensus amongst the should further change the way leaders’ statements are evaluated.  Any leader that claims to speak for “the people,” as Doug Ford does, should be treated as someone who is potentially dangerous to democracy.  Such claims suggest a leader with an inadequate respect for the diversity views in the public and can suggest a lack of willingness to provide space for such views to be expressed.  This kind of leader can become a danger if they use what they interpret as a right the speak for “the people” as a way to undermine opposition parties or MPs that break with their party.  This danger does not just exist on the right.  Parties of all ideologies have been using party discipline to limit MPs’ ability to represent views that differ from their party for much of Canadian history.  Claims by left wing politicians such as British Labour leader Jeremy Corbyn to speak “for the many not the few” should be treated with skepticism should they be imported to Canada.  Any politician that makes a claim that Canadians (or Albertans, British Columbians, or Ontarians) want a particular policy in their platform should be treated as if they have an inadequate understanding of how public opinion works.

The views of a population of a country are complicated, contradictory, and messy.  Sorting through such views requires careful compromise.  Elections should be treated as part of a process where voters and politicians try to find a compromise between wide ranging views that allows a government to govern effectively.  They should not be treated as events where voters grant a government the right to implement a particular policy platform in the name of “the people” or of some conception of a universal popular will.


When the Popular Becomes the Enemy of the Correct: Doug Ford is Using the Wrong Arguments to Defend Using the Notwithstanding Clause

Doug Ford has wasted no time creating controversy now that he is the Ontario premier.  In a move that was seen by some as a way to take revenge on his opponents on Toronto city council, Ford brought forward bill 5.  This bill cut council from 47 members to 25 just months before the election.  The bill was then challenged in the Ontario Superior Court and struck down by Justice Belobaba.  Ford responded to the court’s decision by re-introducing the bill and invoking the notwithstanding clause.  This has set off a national debate over Ford’s abuse of power and the acceptability of the use of the notwithstanding clause by the Premier.  Ford is within his rights to invoke the notwithstanding clause (even if the law he is protecting is a terrible one).  He, however, has an obligation to explain why he disagrees with the Court’s ruling that goes beyond pointing out that he is democratically elected and that judges are not.

On the face of it, Ford’s actions come across as an abuse of power by a Premier looking to take revenge on his political opponents.  In this Maclean’s opinion piece Emmett Macfarlane makes a convincing case as to why the issue is more complicated.  At the core of Macfarlane’s argument is that the Justice Belobaba’s decision extended section 2(b) of the Charter, protecting freedom of expression, beyond what is reasonable.  It may be a stretch to argue, as the judge did, that freedom of expression grants one the right to run or vote in a particular electoral district.  There are democratic rights to representation enshrined in the Charter but, perhaps unfortunately, such rights only to federal and municipal elections not to municipal ones.  As a result, the courts could not have used democratic rights to strike down bill 5.

Even if one does not find Macfarlane’s argument completely convincing, and I am fairly convinced by it, it is hard to read his argument and see this as a clear-cut case.  This is where last part of Macfarlane’s argument, and Ford’s use of the notwithstanding clause enters into the equation.  The notwithstanding clause is in the constitution because most of the Premiers that Pierre Trudeau was negotiating with when the Charter was adopted were scared that the Charter would it make it possible for judges to limit legislator’s power without it being possible to hold such judges accountable.  Because of this fear, the Premiers would only accept the Charter if they also got the notwithstanding clause.  This gave the Premiers a way around court rulings that they felt were cases of judicial overreach or where rulings went against clear public interest.  Like it or not (and there are plenty of reasons to do either), the right for legislators to push back against court decisions or parts of Charter they disagree with is an essential part of the Canadian constitution.  Without it, few provinces would have agreed to the Charter.

Importantly the Premiers also put a check on themselves in the notwithstanding clause.  A law with the notwithstanding clause has to be re-passed every 5 years for the clause to apply.  This means that a government has to provide enough of a justification of the clause’s application in order to win an election.  If they cannot, the application of the notwithstanding clause expires automatically.

The idea that a legislature can simply override court decisions it does not like would seem to make the Courts meaningless.  The notwithstanding clause has not had that effect because of the way it changes public debate.  Use of the notwithstanding clause imposes an additional burden on the politicians that use it.  They must not only explain why the law they are passing is good, but also why it either is so important that it justifies overriding a Charter right or why the Courts were wrong to interpret the Charter in a way that struck down the law.  The power of the Charter thus lies, in part, in the trust that the public places in judges and their decisions.  The political backlash that governments face when they enact the notwithstanding clause makes it unlikely that they will do so unless they are confident that they can make an overwhelmingly strong case in favour of doing so.  This is why the clause has been used so few times.  Governments are afraid to be painted as going against Charter rights and the courts even if the laws they are defending were popular when they were originally proposed.  This was most notable with respect to marriage equality rights in Canada.  Such rights were controversial until the courts ruled in their favour.  When some on the right suggested using the notwithstanding clause to defend an unequal definition marriage they faced a backlash not only from those that supported equal marriage but also from those who opposed overriding court decisions in such a cavalier way.

The problem in Ford’s use of the notwithstanding clause lies not in its use, but rather in the way he has justified using it.  As Macfarlane’s piece notes, Ford could make a case that section 2(b) was applied inappropriately by the Justice Belobaba and that rights to freedom of expression should not be extended to include a right to run or vote in a particular electoral district.  Unfortunately, these are not the arguments that Ford is making.  Instead he has attacked Justice Belobaba as a McGuinty appointee (which is factually incorrect as the federal government appoints superior court judges) and asserted the right of elected leaders to overrule judges whenever they please in the name of “the people.”  These arguments violate key liberal democratic norms that give judges an important place in ensuring that democracy does not turn into tyranny of the majority.  If Ford believes that this is a case where a judge has acted inappropriately, Ford needs to explain why that is the case with reference to the way that Justice Belobaba interpreted the right to freedom of expression.

It is not surprising that Ford opted to launch an attack against a judge instead of engage in a discussion over how the right to freedom of expression should be interpreted.  It is far easier to assert that one is elected and acting on behalf of “the people” than it is to make a complex argument about the rights that exist in the Charter and their limits.  Arguing that Justice Belobaba’s ruling is inappropriate involves making two uncomfortable arguments.  First, that democratic rights with regards to municipal elections are not protected in the Charter.  Second, that freedom of expression does not extend to the right to run in a particular electoral district.  Neither argument is likely to be popular as it suggests limits to rights that many voters consider important.  The first argument, however, has the virtue of being true while the second is reasonably plausible.  Ford has predictability opted for simpler but less defensible arguments.  Doing so has threatened key democratic norms because the arguments Ford has used risk undermining public in the judiciary and its role interpreting and applying the constitution.

Ford’s use of the notwithstanding clause in of itself is not troubling.  The clause ended up in the Charter because the 8 of 10 Premiers in 1982 did not trust the courts to have the unchecked authority to overrule elected legislators on Charter and would not accept a constitution that allowed them that power.  To the extent that Justice Belobaba’s ruling is controversial, it is not unreasonable for Ford to make use of the rights that section 33 affords legislators.  Ford’s justification of the use of section 33 is troubling.  Using the notwithstanding clause should come with burden of not only showing that a law is supported by the public, but also with the burden of demonstrating that the law either is so important to the public interest that it should override Charter rights or that the Court has erred in its application of the Charter.  By choosing to attack the judge and asserting that he was elected by “the people” Ford has failed to meet that burden.  He deserves the public backlash that he has received.


Keep Government Responsible: Citizens of Parliamentary Democracies Should be Working to Inoculate Their Institutions Against Trumpism

The election of Donald Trump and his flouting of the liberal and democratic norms that underpin society has much of the world worried. These fears are made worse by the increasing strength of far-right parties in much of Europe, and the presence of Trump-like candidates Kellie Leitch and Kevin O’Leary in the Canadian Conservative leadership races. The rise of the far-right should raise concerns about the concentration of power with positions such as the Prime Minister or President. When a far-right candidate, such as Trump, wins control of executive office they have a great deal of power to affect policy. In parliamentary systems, parliament is supposed act as a check, holding the Prime Minister and cabinet accountable for their decisions, and removing them from office when they put forward or implement policy ideas that are at odds with elected MPs.  In practice, however, the ability for parliament to do this is constrained by the power the Prime Minister has over MPs. Two measures, the adoption of proportional electoral systems and increased MP control over leadership selection, offer important counter-balances to a potential far-right Prime Minister.

Parliamentary systems, in contrast to Presidential ones, rely on a fusion of power between the legislature and the executive. The Prime Minister only remains in power so long as she has the approval of parliament. If the PM and cabinet put forward legislation or enact policy that parliament dislikes, parliament can remove the PM from power through a confidence motion. In theory this practice ensures that PMs and their cabinets act in a way that reflect a country’s broader interests. In practice this can hand the PM a great deal of power to implement their policy. The PM can reward those MPs that support her with promotions to cabinet positions and punish those that do not by limiting their opportunities to rise beyond the backbenches. The power that the PM wields over MPs, especially when she leads a majority government, can prevent parliament from acting as an adequate check.

The adoption of a proportional electoral system, though it would make it easier for a far-right party to enter parliament and even to become a junior coalition member, would limit the ability for a far-right party to lead a government. Because proportional systems rarely produce majority governments, parties that win office in such systems have to share power, either through coalition governments or through minority governments that make significant concessions to opposition parties. The need to obtain the cooperation of other parties can make it difficult for a far-right party to gain control of government.  Because a PM’s power over MPs is usually limited to those in her own party, forcing the PM to work with other parties weakens the power of the PM and strengthens parliament.

The current Dutch election illustrates how PR can constrain the far-right.  In the Netherlands Geert Wilders’ Party For Freedom looks poised to win the more votes than any other party in March elections but is unlikely to win a majority. Wilders, however, is unlikely to become the Dutch Prime Minister because, to this point, no other party has expressed a willingness to join him in coalition. It is more likely that other parties will form an alternative coalition that keeps him out of power. Even if Wilders does manage to become PM, he will need to temper his extremism in order to maintain power. The threat that parliament can remove a far-right leader from power immediately through a confidence vote should prevent a far-right PM from acting in the same way that Trump has since becoming President.

Allowing MPs more say over their leaders would also empowers them to act as a check on the take over of mainstream parties by far-right candidates. One of the reasons that Trump was able to win the 2016 election was that he was able to win the support of loyal Republicans- individuals who might not have supported Trump had he run as an independent. In Canada, Kellie Leitch and Kevin O’Leary serve as similar examples of populist candidates seeking to take over a mainstream party. Allowing MPs a greater say over leadership selection or the power to remove leaders could serve as a check against this. MPs come from a diverse group of ridings and need reasonably broad support to win office. Leadership candidates often need only a subset of party members in order to win leadership election. Because many MPs need broad support to hold on to their seats they have an incentive to push back against leadership candidates that may be well-liked by a subset of the party’s base but have little appeal to the broader national electorate.

The extent to which MPs were able to push back against more extreme candidates was illustrated in the recent British Conservative leadership race. To become leader of the British Conservatives one must finish first or second on a vote of the parliamentary party (Conservative MPs) and then win a majority vote of the broader party membership. A third place finish on the parliamentary party ballot took candidate Michael Gove (who had campaigned to leave the EU during the Brexit referendum) out of the race. Indeed the other leave campaigner, Andrea Leadsome who had finished second, ended up dropping out because she did not feel she had sufficient support amongst Conservative MPs. MP’s ability to exert control over the leadership selection process helped the moderate Theresa May defeat more extreme rivals. Either increasing MPs’ ability to affect leadership races or giving them the ability to remove leaders they do not support would give MPs much greater power to check a far-right leaning leader of a mainstream party.

The way democratic institutions are set up affects the ability of individuals to win power and the ability of elected bodies to check those that wield it. Robust democracies do not grant a single individual the ability to rule by fiat, they force those that exercise executive power to be accountable to elected bodies such as parliaments. In the wake of Trump’s election victory and the threat that similar candidates could rise to power in parliamentary systems, there is a need to consider ways in which parliaments can be empowered to check such candidates. Proportional electoral systems and increasing MPs’ ability to choose or recall their leaders offer two ways through which this can be done.


Power to the Speaker: To Increase Civility in Federal and Provincial Parliaments Speakers Need to do More to Clamp Down on Uncivil Behaviour

Lack of civility has been an ongoing problem in Canadian parliament. At the federal level the scandal that erupted when Justin Trudeau accidentally elbowed an NDP MP, Ruth Ellen Brousseau, while trying to force the Conservative whip, Gord Brown, back to his seat demonstrated a lack of decorum in the House of Commons. In Alberta the berating of Premier Rachel Notley while she introduced Ontario Premier Kathleen Wynne to the Alberta legislature also demonstrated a lack of appropriate behaviour. None of this is anything new to parliaments in Canada, or indeed in many other countries. Heckling is common practice in Canadian (and many other countries’) parliaments and every parliamentary session has its fair share of inappropriate outbursts. In my last post I wrote about how parties needed to work together to re-establish norms to govern the way that parliament used its time. In that post I noted that there are some, albeit limited, changes to the way parliament operates that could increase civility. One way to increase civility in parliament would be to empower the speakers of the House of Commons and provincial legislatures to enforce more rigorous standards of civility and decorum, including strict limitations on the heckling of MPs.

It has been common after elections for one or more parties to make a commitment to make parliamentary debate more meaningful and to increase the level of civility in the House of Commons. At various points different parties have claimed that their members will either reduce, or altogether stop, heckling speakers from the other parties. These commitments rarely last through to the end of a parliamentary session. The problem with commitments made by individual parties is that each party faces a collective action problem when it comes to enforcing stricter standards of civility on their members. Parties that remain silent while their opponents speak allow opposing parties to get their message out clearly and without interruption while their members have to try to speak over the shouting of their opponents. If one party unilaterally decides to stop heckling it puts itself at a disadvantage when engaging in parliamentary debate, making it easier for their opponents to present their case to the public while ensuring that it remains difficult to present their own case. As a result, it is difficult to reduce heckling and similar uncivil behaviour through trusting parties’ and individual MPs’ self-restraint alone.

A way to get around the collective action problems that surround enforcing decorum would be to allow the Speaker of the House of Commons or provincial legislature to intervene to a much greater extent than they currently. Singling out members who speak out of turn or are otherwise uncivil for warning, and if need be, expulsion from the day’s sitting would be a way to ensure a higher level of civility and orderly conduct. Under current rules and practices Members of Parliament are expelled from the House if they use unparliamentary language that includes swearing or accusations of lying directed toward other Members. The Speaker could do the same for members who insist on speaking without being recognized by the Speaker. This would place a much greater deal of pressure on Members of Parliament to conduct themselves civilly than any self or party discipline can. If British House of Commons speaker John Bercow can remove an MP for referring to the Prime Minister as “dodgy Dave” than it seems reasonable to allow the Speaker to remove individuals who attempt disrupt the speeches of their colleagues by heckling.

Heckling is often defended by traditionalists as allowing for witty exchanges between Members and increasing the level of exchange between Members during the debates. The problem with this is that, while at its best a heckle might be witty or funny, it is almost impossible to make a good argument in the approximately 15 seconds that a heckle lasts for.  To make a meaningful contribution to a debate a speaker needs a reasonable amount of time to present an argument, explain, and provide evidence in support if it.  That cannot be done in the time a heckle takes. While a good heckle might be able to get laughs from other Members and from those watching, it cannot present the information needed to know why a particular Member supports or opposes a particular piece of legislation or government policy. A good heckle can amuse observers, but it cannot make them more informed nor does it do much to improve the quality of parliamentary debate.

At its worst heckling disrupts debate. It drowns out speakers making it difficult for observers and Members to fully hear each member speaking. It belittles individuals who make important and extraordinary contributions to public life. It can discourage participation in parliamentary debates by individuals who may have valuable things to say, but whose personalities do not relish trying to shout above the noise created in the House when each member feels the need to talk at the same time. Finally, there is some evidence that suggests that heckling in the Canadian House of Commons happens more frequently towards women, and at times includes language that is sexist, racist, religiously discriminatory, or homophobic. At its worst heckling can be use to denigrate and to make participation more difficult for individuals from backgrounds that are almost always underrepresented in parliament.

Often the response to uncivil behaviour parliament ends up being pressure on politicians to change their behaviour. This can be successful in changing parliamentary behaviour for a short period of time, but debate in parliaments usually ends up degenerating over time. Uncivil behaviour often creates incentives for other parties Members to also behave in a way that is uncivil. Rather than putting pressure on parliamentarians to change their behaviour pressure should be put on them to create rules and empower the Speaker to enforce them. This can ensure that all parliamentarians act in a orderly manner, and that if they do not, that they can be removed from parliament so that they cease to disrupt debate.


Meet the New Parliament, Same as the Old Parliament: The House of Commons Suffers from a Lack of Norms governing Debate

This past week was a bad one for parliamentary civility. In what is now being called “elbowgate” the Prime Minister has gotten in trouble for grabbing the Conservative whip and taking him to his seat, elbowing a New Democratic MP out of the way in the process. The incident occurred in the broader context of a competition between the government and opposition over the use of time in the House of Commons. As Elizabeth May explained in one of the few carefully thought through assessments of the incident, opposition MPs were stalling to try to delay a time allocation vote on the Liberal’s assisted dying bill while the Liberals were trying force one. In this case, as in many others, there is a broader problem in that parliamentary debate has become subordinate to parliamentary tactics for both government and opposition parties. Parliament is in need of stronger norms, accepted by all MPs, that constrain the extent to which it is acceptable for MPs to make use of tactics that decrease the quality of debate in parliament.

One of the commitments that the Trudeau government during the 2015 election was to improve the tone and quality of debate in parliament. The use of omnibus bills, non-answers in question period, and the failure to get the agreement of opposition parties for changes to electoral rules were all noted as particular problematic abuses of parliamentary norms and processes taken by the Harper government. Less than a year into the Trudeau government’s time in office things do not look much different. The incident on May 18th came during an attempt by the Trudeau government to use time allocation to limit debate on their assisted dying bill (though this was later withdrawn in wake of the fallout from the incident).  The Liberals have used time allocation and closure motions to limit debate on an earlier debate over their assisted dying bill, their budget implementation bill, a bill on Air Canada, and a bill on collective bargaining for the RCMP.  The Liberals have, further, given themselves a majority on the committee examining electoral reform.  This will allow them, like the Conservatives under Harper, to push through changes to the electoral process without the consent of any of the other parties.

While the Liberals’ failure to significantly change the qualify of democratic debate in the House of Commons is disappointing, it should not be surprising. There is a collective action problem that exists with respect to debate in parliament whereby parties can be hurt politically if they are the only ones to avoid the use of parliamentary tricks and tactics to advance their agenda. Closure and time allocation motions are often a response to efforts by opposition parties to needlessly extend debate in parliament and limit the ability of the government to pass their agenda. There is only so much time available in parliament to legislate. If the opposition can force the government to spend as much as time as possible on each bill brought forward, the opposition can limit the total number of new bills that a government can pass. If the Liberals refuse to make use of omnibus bills, time allocation, or closure motions (which end parliamentary debate on bills and bring them to a vote), they run the risk of opposition filibusters that waste the government and parliament’s time and limit their ability to legislate. If the Liberals unilaterally refuse to use parliamentary tactics to strong-arm the opposition, the opposition can use their own tactics to make it difficult for the Liberals to govern.

The same is true for electoral laws and for question period. If the Liberals refuse to change election laws without the support of the other parties, but the Conservatives use their majorities to change election laws, than the country will end up with election laws that favour the Conservatives. Similarly, if the Conservatives dodge questions in question period when they are facing criticism for the Liberals, there is little incentive for the Liberals to take Conservative questions any more seriously when they are in government. It is notable that, while the Liberals had promised a better tone in parliament, less than two months after the election Liberal cabinet minister John McCallum had to withdraw an answer in question period because his comments belittled the question as opposed to providing a serious answer to her question. The failure of one party to follow norms that produce good debate in parliament ends up leading other parties to abandon such norms as well. The more each party in the House disrespects parliament the more likely it is that other parties will do so as well.

Unfortunately there is no easy solution that improves parliamentary debate. Some good might be done by giving the House of Commons Speaker more leeway to enforce stricter rules for parliamentary debate. Allowing the Speaker to limit or end heckling (which the new Speaker, Geoff Regan has already done to some extent), force cabinet ministers’ responses to questions to stay on topic, and to eject MPs who fail to comply with the most basic of rules for civil behaviour (which Justin Trudeau breached by grabbing an opposition MP and which Thomas Mulcair breached by subsequently shouting at Trudeau) would go some way to improving the quality of debate in the House. The Speaker, however, has limited power to address the problems that stem from parties trying to unduly limit or extend parliamentary debate or trying to unilaterally change election rules. These problems can only be addressed by all parties working together to re-establish norms of conduct that create productive parliamentary debate. At some point, government and opposition MPs need to come together and agree to avoid the using certain tactics. The government might agree, for example, not to use omnibus bills, time allocation, or closure to limit parliamentary debate in exchange for a good faith effort on the part of the opposition not to use parliamentary debate for the sole purpose of slowing down the government’s agenda. The acceptance by all parties of some general norms that can govern how parties and MPs behave is necessary in order to create a more civil and productive parliament.

Parliament can be an important venue for democratic debate when it functions well. Norms play an essential role in ensuring a high level of quality in parliamentary debate. When parties abuse parliamentary procedures to try to gain an upper-hand in debate it weakens the quality of parliamentary debate and Canadian democracy. It also creates a vicious cycle whereby one party’s failure to follow norms that allow parliament to function leads other parties to discard those norms as well. Voters in Canad ought to pay careful attention to the way that parliament operates. When MPs, either in government or opposition, fail to act in a way that creates quality democratic debate, voters ought to remind them that their conduct is not meeting the standards that one would expect parliamentarians to aspire to.