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.

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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.

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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.

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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.

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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.

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Mother Knows Best: Two Parliamentary Practices that Canada Should Adopt from Britain

The British parliament at Westminster is often referred to as the “Mother of all Parliaments.” A number of countries around the world, including Australia, Canada, and New Zealand, have based their parliamentary systems on the British model. Each country, however, has developed some of its own unique rules and conventions that guide its parliament. Question period in Canada is conducted differently than it is in Britain. In Britain time is set aside for questions directed to a particular minister while in Canada questions must be directed towards the cabinet as a whole. Additionally parliamentary committees in Britain are more independent of party leadership in Canada, and have much greater practical leeway to scrutinize and modify the legislation that they review. Question period and parliamentary committees play an important role in allowing parliament to hold the executive (the cabinet and Prime Minister) to account for the policies and the legislation they pursue. Canada would benefit from the adoption of the British approach to question period and from the creation of parliamentary committees with a greater degree of independence than they have now.

Question period is probably the most viewed and talked about session in parliament, and also the most maligned. It exists as a mechanism through which the opposition and backbenchers can hold the executive to account for government policies, but has largely degenerated into a venue for partisan attacks from both government and opposition. Partisanship in question period in and of itself is not a bad thing. Indeed, partisanship can lead to an opposition that is vigorous in its scrutiny of the government, seeking to exposure scandals and policy failures. This exposure benefits not only the opposition party, but the Canadian public as a whole. The same can be said of the partisanship and the government if the desire to avoid being embarrassed by a scandal hungry opposition pushes ministers to be more careful in the way they run their departments. Problems arise in question period, however, when partisanship leads ministers to refuse to answer questions or when parliamentary tactics lead parties to deflect questions away from the minister responsible for the department on which a scandal or policy failure occurred. When parliamentary secretary Paul Calandra (instead of the foreign minister or defence minister) is answering questions about the deployment of Canadian forces to Iraq, and when he is doing so by talking about what an opposition staff member thinks about Israel, question period is no longer serving its purpose.

In the United Kingdom a question period session is dedicated to the questioning of a particular minister. Most famous (and common) is Prime Minister’s question time, where all questions are directed towards the Prime Minister and must be responded to by the Prime Minister. Other ministers have their dedicated question time as well though. David Cameron cannot defer to a parliamentary secretary if he does not want to be seen talking about a particular issue or giving a particular answer. If he gets a question during Prime Minister’s question time, he has to provide the government response. If Stephen Harper does not want to be seen addressing a particular subject he can have any other minister or parliamentary secretary provide a response to the question. This led to the absurd scenario in which the response to a question over a discussion Stephen Harper had with Mike Duffy over Duffy’s expense account, not by Stephen Harper, but by then Foreign Minister John Baird.

The British approach to question period has several benefits over the Canadian one. The first is that it ensures that each department is effectively scrutinized and that the appropriate ministers are answering the appropriate questions. An issue such as the deployment of Canadian forces to Iraq is the responsibility of both the foreign minister and the defence minister, and both should be able to provide a full account to Canadians of the details of any policies relating to such a deployment. If they cannot, Canadians have reason to be concerned about the way the Minister is running that department. Further, because a department’s Minister has (or at least should have) the most information of any cabinet minister in government, the Minister should be in best position to give and full and complete answer to the opposition’s question. As the individual responsible for a department, it is reasonable for an opposition party to expect that that Minister will be the one who responds to questions designed to hold the government to account for the way that department is run. The ability of a minister to provide effective answers in question period can then be used as a way to judge that minister’s ability to run her department. A minister that spends most of their question time deflecting or ignoring questions can have their competence questioned by both opposition parties and by the public as a whole. The more important the minister, the more damaging the appearance of incompetence is to the government as a whole. It is one thing for a parliamentary secretary to respond to questions about Iraq by talking about Israel, it looks far worse when the Minister of Defence does so.

Requiring Ministers or the Prime Minister to answer questions further reduces the ability of governments to play partisan games with the way that questions are responded to. The degree of public scrutiny that a minister receives plays a role in the degree to which they can give non-responsive and partisan answers to questions. The more prominent a minister is, the less they can afford to look ridiculous by giving non-responsive and non-sensical answers. There is a reason that Stephen Harper defers to a parliamentary secretary, or even another Minister, when his party wants to make its most partisan of attacks or wants to completely ignore a question. A parliamentary secretary can be shamed into giving a tearful apology to the House of Commons, as Paul Calandra was after refusing to discuss the deployment of Canadian forces to Iraq, without that apology doing too much damage to the way people perceive the government. A Prime Minister or senior minister that has to apologize for ignoring questions is a much bigger deal. This is not to say that Stephen Harper never makes partisan attacks or always responds to question, no Prime Minister is ever as direct or as responsive as the opposition, or often the public, would like. But the Prime Minister and senior ministers are far more constrained in the types of replies that they can provide to questions because there is a greater likelihood that their replies could end up on the 6:00 news. That is a good thing for question period and for parliament.

In contrast to question period, parliamentary committees probably receive some of the least public scrutiny of any of parliament’s activity. They exist to allow MPs to debate and discuss the details of legislation, gathering informations (committees are allowed to call witnesses) and discussing details in a way that could not be done in a 300 person meeting of parliament. The committees provide a valuable venue in which parliament can scrutinize government and private member’s legislation. Individual MPs rarely have the time to go through every detail in a piece of legislation. There are simply too many pieces of legislation for a single MP to become an expert in each one. Committees allow for a division of labour in parliament when it comes to the scrutiny of legislation. The quality of this scrutiny hinges on the committees being independent of leadership, particular of government control. Committee members who are assigned committee positions by their party leadership are going to be less likely to go against the wishes of their party and provide proper scrutiny of legislation.

The independence of committees is affected by the way that members are selected to them. In Britain many committee chairs are elected by all MPs and by secret ballot, limiting the control that party leadership can exert over their selection. If a substantial number of government backbench MPs want to work together to get an MP selected chair of a committee the government can not only do little to stop them, but also has no ability to figure out who was part of the group that organized in favour of the backbencher elected. In Canada committee chairs are elected only by the MPs who sit on the committee. The small number of voters coupled with the control that parties have over who is assigned to committees makes it easy for party leadership to wrangle votes and ensure that the chairs that they prefer are appointed heads of particular committees.

One could go further than Britain in designing a committee selection process that maximizes the independence of parliamentary committees. All committee members could be elected by members of their parties, ensuring that the MPs chosen to represent their parties on a committee are accountable to their colleagues in parliament and not to party leadership. Committee positions are assigned to parties based on their overall representation in parliament, so elections would have to occur within the parties. NDP MPs would vote on which of their members would serve on a committee, say the finance committee, and Conservative MPs would vote on which of their members would serve on such a committee. MPs would thus have to demonstrate to their colleagues that they can best serve MPs’ interests rather than just demonstrating that they will do what party leadership wants them to. Groups of backbench MPs hostile to their party’s leadership would be able to organize and seek to gain control of the committee that deals with that issue. Government legislation in this area would then be subject to greater levels of scrutiny. The election of committee chairs and members would reduce the ability of party leadership to control committee activity and make leadership much more accountable to parliament as a whole.

Canadian parliament would be well served by changes to its procedures that allow more space for parliament to scrutinize the activity of the government. This is not to argue that party discipline and partisanship does not have its place in Canadian politics. Both do play important roles in ensuring that parliament can function effectively, but both can also serve as impediments to government accountability. Changes to the procedures that govern question period and the selection of committee members could help to improve the ability of parliament to hold the Prime Minister and cabinet to account.

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Who Exactly Are We Voting For: Different Electoral Systems and the Independence of MPs

The electoral system and the ability of Members of Parliament to act independently from their party are two issues that are often debated in Canadian politics. While both concerns make up a significant portion of the public debate over Canada’s political institutions, they are often discussed separately. Many followers of Canadian politics worry about the disproportionality of the Canadian electoral system. Others are concerned that MPs act as “trained seals” following the directives of their party once in Parliament. The electoral system and the way that MPs should behave in parliament, however, are related. MPs get their legitimacy from elections, and the different ways in which MPs are elected should affect the mandates they feel they have been given by their constituents. In single member plurality systems MPs are elected as individuals representing districts and as a result should be more willing to act independently of their party than MPs elected in other electoral systems. In proportional systems individuals vote for parties either instead of or in addition to individuals. As a result, MPs in these systems should be more deferential to their parties. There is a discrepancy in Canada between the way that MPs are elected and the way that they act in parliament. MPs are elected through a single member plurality system as individuals representing constituencies but are subject to strong party discipline that limits the degree to which they vote against and criticize members of their own party.

One of the often cited advantages of single member plurality is the way that it provides for strong regional representation. Different constituencies, even ones in the same region, often have different interests. Voters in rural Alberta likely have different concerns and issues than voters from urban or suburban Edmonton. These differences do not necessarily break down across party lines. An urban Conservative will have different views about agriculture policy or social policy than an urban Conservative. A single member plurality system guarantees that each constituency has an individual elected by its population to represent it and reliant on those individuals for re-election. MPs from Edmonton can ensure that the interests of Edmontonians are represented while MPs from Grande Prairie and Fort MacMurray defend the unique interests of those communities. To do this, MPs need a certain amount of leeway to contradict the views of their parties and to hold their leaders accountable. The interests of Conservatives as a whole are not always the same as the interests of Conservatives from Edmonton or from rural Alberta. This may be the case with respect to the positions that the party raises or with respect to the priorities that a government sets. MPs have a role to play in voting against the government when they feel their constituency’s interests run contrary to the government’s and questioning the government when its priorities are out of step with a constituency’s. Because MPs in single member plurality systems are elected as individuals representing particular districts, and not as a single partisan block, they have mandates to act fairly independently of their parties.

Despite its single member plurality system, Canada has a very high level of party discipline. Parties can use the allocation of cabinet and committee positions, the allocation of speaking and question period time, and control over candidate nominations to create strong incentives for MPs to fall in line with their parties’ positions. MPs that do not toe the party line can find themselves having trouble advancing to cabinet or to choice committee positions and having trouble getting the speaking time to ask questions and raise issues in debate. The result is a disconnect between the mandates that MPs receive in elections and the way that MPs behave in parliament. Parties often behave as highly cohesive units. Rarely do governments face backbench rebellions and rarely do backbenchers from a governing party question the positions of the government. The result is a loss of the individual constituency representation that single member plurality systems are designed to provide. Voters may be able to elect an individual who is beholden to their interests, but they do not see that MP act as an individual within parliament.

It is certainly true that many voters do not cast their ballots for an individual but for the party that they represent. Parties may reasonably claim that they and their leadership are more well-known and more popular than most of their backbench MPs. Leaders and key cabinet members feature more prominently in election campaigns and in political coverage in general than backbench MPs. There is certainly a disconnect between the importance that single member plurality grants to individual representatives and the much more limited visibility that those candidates have in national coverage. The problem with this argument is that seat allocation in single member plurality systems rarely reflects the support of different parties have accurately. Single member plurality tends to disproportionately increase the number of seats held by the largest party, often creating false majority governments. Even if voters are voting for the party, as opposed to their individual MP, governing parties in the House of Commons rarely can claim an electoral mandate to act with as much strength as they have seats in parliament. Governing parties usually have a greater percentage of seats in parliament than the percentage of the vote that they received in the election. More often than not a majority of voters have cast ballots for an opposition party, even if a party wins a majority government. This is less of a problem when MPs have a large amount of leeway to act independently. A majority government can be held more accountable and can have its ability to push through a policy agenda without compromise limited when its backbench MPs feel freer to question and to vote against the government.

Countries with proportional electoral systems should leave less room for MPs to act independently. In these systems individuals vote either only for a party or for a party and an individual representative. As a result, parties in PR systems have a clearer mandate to act as cohesive units, and the strength that parties have in parliament is much closer to the proportion of voters that support the party. Parties in these systems can make a much stronger case for disciplining their MPs. They have a direct mandate from the electorate in the form of votes for their party. In comparison, there is always ambiguity in single member plurality systems as to whether a voter that cast a vote for a party’s candidate was casting a vote for the party or the individual candidate. Parties in proportional systems are also immune from the claim that strong discipline grants them greater strength in parliament than the electorate sought to give them. If a party in a proportional system has a majority government, it is because the party won more than 50% of the popular vote.

Adjustments ought to be made to the Canadian electoral system and to parliamentary practices to bring the electoral legitimacy conferred on MPs have and the way that MPs act in parliament more closely into line. Parliamentary practice could be changed in a number of ways to give MPs more room to act independently. The control that parties have over the career advancement and speaking time of MPs could be weakened. Chairs of committees could be elected secretly by all members of parliament (as is done in the UK) and speaking time could be allocated by lottery as opposed to being determined by party leadership. Leaders could be given less control over candidate nominations through a restriction or elimination of the ability of leaders to veto party candidates. Further, MPs could be given greater strength vis a vis their leaders if the caucus in parliament was allowed to remove a leader (as is done in Australia- though this has created much greater turn-over in party leadership). A leader may exercise less party discipline if she knows that the people she is disciplining can vote her out of office. Finally, though this may not be particularly popular, the number of MPs in the House of Commons could be increased. A larger number of MPs in the House means more MPs with no hope of a cabinet position or a choice committee position. These MPs are less likely to be influenced by the carrot and stick of cabinet and committee memberships that are often used to control them. Alternatively, Canada could make adjustments to its electoral system to ensure that the number MPs each party has more closely reflects the percentage of voters that back each party. Adjustments either to parliamentary practice or to the electoral system would go a long way towards bringing the legitimacy that MPs and parties gain from elections into line with the way that they act in Parliament.

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