The final results of the 41st general election in British Columbia have been tallied and the parliament is hung. The incumbent BC Liberals hold a total of 43 seats (one seat short of a majority mandate), the BC NDP hold 41 and the BC Green Party holds 3 seats. As of yesterday, BC NDP leader John Horgan and BC Green Party leader Andrew Weaver have reached an agreement that would see the BC NDP form a minority government while being propped by the Green Party for the next four years. I feel the need to be absolutely clear here, because the media at times has not, but this is not a government-in-waiting scenario. In fact, Christy Clark is still the Premier of the province, and will remain the Premier until her government falls or she resigns. However, with this new agreement there are several outcomes for this BC parliament. This post will examine those outcomes and the road to each with some commentary on the fallout from each potential scenario.
Clark Resigns as Premier
In this scenario, Premier Clark looks at the seat-count in the legislature and the agreement between the BC NDP and BC Greens and decides that she won’t present a Throne Speech in the opening of parliament and resigns as Premier. She would have to go to the Lieutenant-Governor of BC, the Hon. Judith Guichon, and request that her ministry be dissolved (but not the legislature, thus not leading to an immediate election). In this scenario the L-G would have the option of asking Mr. Horgan to form the government as per the agreement between the BC Greens (being the party and leader that seemingly are able to establish the confidence of the legislature) or she could ask another MLA from the BC Liberal Party to form government (unlikely). Additionally, in this scenario could also decide to dissolve the legislature and trigger an election but this is the most unlikely course as it would be unconventional for her to dissolve the legislature without the advice of the Premier (and a legitimate question of constitutional law would arise as to whether or not she actually has the authority to do it without said advice). It is also important to note that in this scenario, Horgan would still need to prove that he has the confidence of the legislature through the passing of a Throne Speech.
Clark Dissolves the Legislature
In this scenario, Premier Clark still heads to Government House to speak with the L-G but in this case she asks that the entire legislature be dissolved. This would trigger a new election. The downside to this approach is that the L-G could decide that Clark’s request is not in the interest of the province and undermines her responsibility to ensure a democratic government is in place in BC, and could ask the BC NDP to attempt to form government. We are getting into Byng-King territory here and so it rapidly becomes a constitutional minefield. I personally, cannot see Clark going this route for two reasons: (1) having to overcome the whole “you brought us into another election merely a month apart” will be hard to overcome on the campaign trail and (2) there is too much uncertainty in what the L-G could do (there will be a lot of egg all over Clark’s face if she requests an election only to see the L-G ask the BC NDP to form government and go on to have a successful mandate).
Clark Presses Onward
In this scenario, Premier Clark maintains power as the incumbant government under a party with a plurality of seats in the legislature. This would allow her to open parliament and bring down a Speech from the Throne that outlines her plan for the next session of parliament. If she was shewrd (and she is), this speech would include a laundry list of “goodies” for the BC NDP and BC Greens, which would put them in the awkward position of voting down something that has a policy plan in their own favour. It would bring to light the power-grab nature of the opposition’s approach leading up to the opening of parliament. If the chips fall as the seat-count shows in light of the agreement, than the Clark government would fall but she would have some ground to stand on in presenting a plan that accomodated the opposition, and it would leave the onus on them to explain why they voted down the plan.
The Speaker Issue
The last scenario with Clark pressing onward as Premier and presenting a Throne Speech also has another aspect to it; the election of the Speaker. The first act of any parliament is the election of the Speaker. Because the BC NDP and BC Greens would be holding on to power with a slim majority in the legislature between them, chances are they will turn to the BC Liberals to supply the Speaker (standard in a minority government situation for the opposition to attempt to pick off another seat from the government by sending a member to the Chair). However, the individual elected as Speaker in BC must agree to actually take the job. A scenario could very well play out where the legislature is unable to elect a Speaker because no BC Liberal MLA will accept the job. The BC NDP and the BC Greens could offer up one of their own to be the Speaker, but in a tie between the government and the opposition following a vote on the Throne Speech, conventionally the Speaker would be compelled to vote in favour of the government. So it would break up the agreement regardless. If the legislature cannot elect a Speaker and thus cannot offer confidence to a ministry, the L-G would be compelled to dissolve the legislature and a new election would be called.
I am probably going to pen an editorial on the topic shortly, but since we are going down the path of scenarios I will mention my thought-process briefly here. There is certainly nothing immediately wrong with the politicking that we are seeing right now in BC between the BC Liberals, BC Greens and BC NDP. This is how parliament works. But there are many other principles at play here. For example, a fundamental principle of parliament is stability and the continuance of the ministry. This is a strong aspect of parliamentary democracy, the fact that it is designed to withhold extreme changes back and forth in how government’s get formed and how the legislature props up or takes down said ministry. This is evident in the incumbency convention which dictates that the incument ministry remains in power until actually defeated in the legislature or upon resignation of the Premier. It is also evident in the convention that the Speaker sides with the government or more specifically the status quo. Nothing changing things quickly and limited dramatic moments are the centerpiece of the parliamentary system. What Andrew Weaver did by playing king-maker with a meagre three seats in the legislature is unparliamentary and unstatesmen-like. It is a power grab and an attempt to subvert the legitimate government in British Columbia. This is not to say that Weaver had to support the government, he didn’t, but he could have at least heard the Throne Speech, could have at least given Clark an honest go at governing in accordance with our conventions and the formation of parliament. Instead we get backroom deals and a king-maker who essentially lost the last election. I am the last person in line to call what is happening right now undemocratic, but I am first to label Weaver what he is: a power-hungry partisan politician.
CBC News’ Sunday Scrum review the episode in the House of Commons on 10 May 17 wherein the opposition asked Prime Minister Justin Trudeau the same question 18 times and he replied in kind with the same answer each time.
While I was browsing at the Astrolabe on Sparks Street two days ago (which, sadly, is closing down soon), I happened upon this neat photograph of the old Canadian House of Commons, taken in 1898, 18 years before the great fire destroyed the original Center Block and the Victoria Tower. Library and Archives maintains […]
Oral Questions, or Question Period as it has come to be unofficially called, is by far the most routinely watched and followed segment of the parliamentary day. It is during this daily 45 minute period that Members of Parliament are permitted to put oral questions to the government of the day and Ministers of the Crown are called upon to answer. Since Confederation, the period of time reserved for oral questions has evolved and now includes formal rules outlined in the Standing Orders of the House of Commons as well as through various Speaker Rulings throughout the history of the House of Commons. In this post we are going to examine the modern nature of oral questions, their historical significance and development over time.
Historical Development of Oral Questions
When Parliament first opened following Confederation, there were actually no provisions within the Standing Orders for oral questions. The only provisions for any sort of questions from MPs toward the government came in the form of written questions. Interestingly enough, the first recorded oral question took place without any formal guidance in place on 29 Nov 1867 (a full three weeks before any rules were formally written down, actually) when an oral question was posed to the Chairman of the Printing Committee. The inspiration for an oral question period came from the British House of Commons where the Prime Minister was subjected to questioning three times a week by MPs. It became a Canadianized practice during the legislatures of Upper and Lower Canada and eventually in the United Province of Canada prior to Confederation. It was not uncommon for MPs to put forward oral questions to Ministers of the Crown for urgent matters that required an answer within a timeline tighter than that of written question requirements. It was under this sentiment that Speaker Timothy Anglin made the first of a series of historical Speaker’s Rulings on oral questions when he said in 1878:
It is customary for hon. members to ask the Government for any special information between the various calls from the Chair for the day, before Notices of Motion or the Orders of the Day. I am not aware that any hon. member has a positive right even to do that; but I think he must confine himself entirely to asking the information from the Government, and he must not proceed to descant on the conduct of the Government.
But the 1940s a period of oral questioning had become an accepted part of the parliamentary day. However, there remained no official rules or guidelines covering their use and conduct. In 1944, the House procedures committee reviewed the practice of oral questions and concluded that it was “neither possible not advisable to do away with [oral questions].” However, the report from the committee was not accepted by the House of Commons and therefore was not actioned. This did not mean that oral questions went by the wayside, simply that the practise continued with little or no formal guidance in the Standing Orders of the House of Commons.
In 1964, the Speaker of the House of Commons attempted to enforce what was later viewed to be outdated rules concerning the conduct of oral questions and the formation of specific questions. This led to the formal codification of oral questions into the House of Commons Standing Orders. Thus Standing Order 37 was born which established a period of time for questions of an urgent nature to be put before the government. Under this new order, the Speaker had the power to determine that a question was not urgent enough to warrant an oral answer and could order the question sent to written questions. By 1975, a set timeframe for oral questions was established when a complete overhaul of the House of Commons routine business was conducted by the procedures committee. Since that time oral questions happen for 45 minutes each day at 2:15 pm EST Monday-Thursday and 11:15 am EST on Fridays, immediately following Statements by Members.
In 1974, Speaker Jerome established guidelines for questions during oral questions which were expanded and articulated in 1986 by Speaker Bosley. Bosley’s directions on oral questions remain the standard today for the conduct of this segment of business in the House of Commons. Speaker Bosley established four principles for the conduct of oral questions:
The time is scarce and should, therefore, be used as profitably as possible by as many as possible.
The public in large numbers do watch, and the House, recognizing that Question Period is often an intense time, should be on its best possible behaviour.
While there may be other purposes and ambitions involved in Question Period, its primary purpose must be the seeking of information from the Government and calling the Government to account for its actions.
Members should be given the greatest possible freedom in the putting of questions that is consistent with the other principles.
And adding to the ruling made by previous Speakers of the House of Commons, Bosley went on to articulate the principles, saying:
Mr. Speaker Jerome, in his statement 11 years ago, put his view with regard to the first principle of brevity so well that I would merely quote it:
“There can be no doubt that the greatest enemy of the Question Period is the Member who offends this most important principle. In putting the original question on any subject, a Member may require an explanatory remark, but there is no reason for such a preamble to exceed one, carefully drawn sentence.
“It is my proposal to ask all Hon. Members to pay close attention to this admonition and to bring them to order if they fail to do so. It bears repeating that the long preamble or long question takes an unfair share of the time, and invariably, in provoking the same kind of response, only compounds the difficulty.”
I agree with these comments and would add that such comments obviously also apply to answers by Ministers. I would also endorse Mr. Speaker Jerome’s view that supplementary questions should need no preambles; they should flow from the Minister’s response and be put in precise and direct terms without any prior statement or argument. It is the Chair’s view that it equally follows from the first principle, that time is scarce, that Members should seek to avoid merely repeating questions that have already been asked. I do not mean that other questions on the same subject should not be asked — as apparently I have been interpreted — just that subsequent questions should be other than ones already asked.
For similar reasons it has always been a fundamental rule of questioning Ministers that the subject matter of the question must fall within the collective responsibility of the Government or the individual responsibility of one of its Ministers. This is the only basis upon which Ministers can be expected to answer questions.
Beyond these few restrictions, there are a few other traditional restraints that flow from the principles above. Questions should relate to matters of some urgency and not be purely hypothetical. They should not seek a legal opinion or inquire as to what legal advice a Minister has received. They should not normally anticipate Orders of the Day. However, I hasten to add that there is normal exemption to that with regard to the budget process which I fully intend to honour. Members should be very careful with regard to questions or matters that are sub judice. Ministers should be questioned only in relation to their current portfolios and not in relation to any previously held responsibilities or Party responsibilities.
Since his ruling in 1986, Speaker Bosley remains the authority on determining the conduct of business during oral questions and has been cited by Speakers since as the foundation of our understanding of business during this segment of the parliamentary day.
The development of oral questions over time also saw the introduction of supplementary questions– or follow-up questions. Today, the standard is that one question is asked and then the member who posed the original question has up to three supplementary questions to ask. There is very little formal guidance for these supplemental questions but in 1997, Speaker Parent articulated in a ruling that supplementary questions should be related to the topic of the original question. This has become somewhat outdated with the current practice of having a different member rise to ask a supplemental question, and little formal direction has come out as of late from the Speaker’s Chair. It is not uncommon to see the Leader of the Official Opposition and the leader of each respective opposition party to take advantage of all three supplementary questions following their initial line of questioning on the government, and occasionally we see backbench members following up on their original questions.
Adjournment Proceedings or The Late Show
In 1964, the procedures committee implemented a new practice each day called Adjournment Proceedings. Essentially, it became a half hour period at the end of each day initiated by a motion to adjourn the House for the day under Standing Order 37(3). The idea was that members who were not completely satisfied with answers on a given topic would have a chance to bring up the issue one more time at the end of the day. Since that time, three topics are given notice during the day to the Speaker that will be brought up during the Adjournment Proceedings– or Late Show. These topics are typically follow up items from issues that have arisen during the day or week. Ministers of the Crown typically do not attend the Late Show, however it is not uncommon for Parliamentary Secretaries to spar and follow-up with MPs on issues that arose during oral questions earlier in the day. This proceeding coupled with question period and the odd opposition day are essential the only periods of House business that the opposition can control away from the government. They are therefore even more important in majority government situations (such as the current parliament) as they give the opposition a forum to bring issues of the day to light. Most Canadians are not aware of the connection between Oral Questions and Adjournment Proceedings and almost every major media outlet does not give the Adjournment Proceedings the same level of attention and coverage as Oral Questions.
Answers During Oral Questions
The old parliamentary adage goes that oral questions are called “question period and not answer period for a reason.” And there is a lot of truth to this statement. When answering questions a Minister of the Crown has a handful of options available to them:
answer the question;
defer their answer;
take the question as notice;
make a short explanation as to why they cannot furnish an answer at that time; or
Most of the time the Minister chooses to answer the question, or if you were to ask the opposition, they chose to speak to the question, rather than give an answer. It has come up often times throughout any discussion on oral questions that there are virtually no mechanisms available to the Speaker to ensure that questions are answered. This was put on a fantastic show during the previous session of parliament when the Parliamentary Secretary to then Prime Minister Stephen Harper, Paul Calandra, refused to answer a direct question from the NDP and instead spoke about issues in the middle east. The NDP was out of line for pleading for the Parliamentary Secretary to answer the question at hand, and the Speaker was left powerless to watch the House devolve into a circus as a result of Calandra’s poor answers. In the end, he apologized to the House and all was made well but not before an attempt was made by the opposition to have the Speaker rule that answers should have substance. In his ruling, Speaker Scheer outlined the guidelines handed down since 1867 and explained to the House the limits that the Speaker had in holding the government to account in answering questions to the satisfaction of the opposition. And with that statement he hit the crux of the issue on the head; by what metric would a Speaker determine that a question has been adequately answered? If the opposition is the benchmark, in other words a question if answered only when the opposition is happy with it, than we are entering into the realm of political and the debate of facts, which is not the place of the Speaker to determine but of the whole House.
There is little in the way of guidance for answers however the following three principles have arisen out of Speaker’s Rulings on the subject:
no particular Minister is compelled to answer a particular question, even if that question was directed to a particular Minister in the statement,
no MP can insist on the answer and no point of order can be raised on the grounds that a question was not answered satisfactorily
the content of answers is considered a debate about facts and thus within the realm of the entire House and not the Speaker to rule when is in order and out of order
Questions and answers in the House of Commons are subject to all other Standing Orders and Speaker’s Rulings, meaning that language must always be parliamentary in nature (cannot call someone a liar, for example) and questions must be directed to the Speaker and not individual members. Additionally, the following guidelines on what questions should not be asked have been established over time based on existing Standing Orders and past Speaker’s Rulings:
be a statement, representation, argument, or an expression of opinion;
seek an opinion, either legal or otherwise;
seek information which is secretive in its nature, such as Cabinet proceedings or advice given to the Crown by law officers;
reflect on the character or conduct of Chair Occupants, members of the House and of the Senate or members of the judiciary;
reflect on the Governor General;
refer to proceedings in the Senate;
refer to public statements by Ministers on matters not directly related to their departmental duties;
address a Minister’s former portfolio or any other presumed functions, such as party or regional political responsibilities;
be on a matter that is sub judice;
deal with the subject matter of a question of privilege previously raised, on which the Speaker reserved his decision;
make a charge by way of a preamble to a question;
be a question from a constituent;
seek information from a Minister of a purely personal nature;
request a detailed response which could be dealt with more appropriately as a written question placed on the Order Paper; or
concern internal party matters, or party or election expenses.
The inspiration of this post came from comments made by a Liberal Minister concerning questions related to the Liberal cash for access scandal currently before the government. There were significant questions on the subject during question period, and the Minister was commenting on the fact that the way she understood the guidelines, such questions were not in line (see: concern internal party matters, or party or election expenses, above). It could be argued however that the questions concerned the conduct of government, and not the Liberal party specifically.
As mentioned earlier, question period is the most watched and most engaging aspect of the parliamentary day. It’s importance within the Canadian political culture cannot be understated, however given it’s importance it is alarming how little the average Canadian knows about the conduct of question period. Opposition leaders are often measured in their capability within the job against their performance in the House of Commons, Ministers of the Crown conversely are measured in their capability through their answering and performance during question period. It is an essential element of our democracy in Canada.
I am inclined to agree with the recent assessment made by Rex Murphy in an attempt to explain the bizarre messaging from the Liberal government on the political financing issue. This Liberal government, and indeed everyone before it, possesses an air of arrogance that compels them to conclude that everything they do in inherent right and good, and therefore how dare we question them. It was the same attitude that brought down only the most recent Liberal government before Justin Trudeau, and it is one that seems to be sticking pretty hard to the Liberals at the moment.
The reason why I am so confident that the Liberals believe they possess this miraculous capability for political decision making is because it seems to be the only logical and reasonable explanation as to why the Liberal government insists on sputtering out worn talking point after worn talking point on the issue. Reminding any Canadian willing to listen that the federal government in Canada has some of the most rigorous laws concerning political financing in the world. Never mind the fact that the original question was the Prime Minister’s actions against his own words in the letters he drafted for each of his ministers. Even this morning we see a weak argument from the government about being ready to co-operate with the Ethics Commissioner and something, something laws being the strongest.
Here is the part that Murphy gets and I am in full agreement. Something smells here. It is hard to accept that government business is not discussed at these meetings. It is even harder to accept that what business is discussed is strictly linked to the middle class. It is tough to square offers of invitations to tax payer funded state dinners against political influence and the obvious access to power it assumes. Canadians should rightly become concerned if not slightly angered. But the response from the open and sunny way government under Justin Trudeau is not to explain clearly what is happening but to shut the door and avoid the questions entirely. The bag may smell, but it has a Liberal party logo on the side, so we’re meant to carry on and accept that what is happening is meant to be a good, it is going to be right for the country.
The problem, is that history paints a different picture. Never mind with just Liberal governments, all governments are indeed subject to the temptation of corruptibility. It is why we have laws in the first place. Canadians expect this. It is also why Justin Trudeau was able to score support with the language he used in his letters. Canadians expected even more than just the law– regardless of how strong in it relative to other countries or even provinces– and the Liberal government in the end has failed to deliver.
In light of my recent post on the subject of the legislative process in contrast to the democratic process in Canada, I thought it would be appropriate for a post on the procedure for dealing with conflicts between the two houses of parliament. Most Canadians, I am sure, would be surprised to learn that there is in fact little formal procedure in the way of dealing with a conflict between the elected House of Commons and the appointed Senate, especially considering the fact that our large cultural influence to the South, the United States of America, actually has constitutional provisions to ease a deadlock between their two houses and executive branch (the President). Let’s examine the process in Canada more in depth.
There are no provisions within any Constitutional document to deal with a deadlock between the Senate and the House of Commons. Within the legislative process, bills which originate in the House of Commons (which can be either public or private in nature) are sent to the Senate for concurrence and approval prior to receiving Royal Assent. Conversely, bills that originate in the Senate are sent to the House of Commons for approval, again, prior to receiving Royal Assent. This process of having each house propose, debate, and approve legislation opens up the possibility for either house to propose amendments to legislation that could reasonably be opposed by one house or the other, by the government of the day or sponsor of the bill itself. All of these situations would create a scenario where each house could be seen to be in conflict with one another and thus create a legislative deadlock. The question then becomes who would “win” between each House and how would the bill proceed to becoming law in Canada?
When a disagreement arises between the House of Commons and the Senate as to the amendments to be made to a bill, there are two possible ways of proceeding: the disagreement may be communicated in a message (this is normally the first step taken), or a conference may take place. (House of Commons Procedure and Practice 2nd Ed)
Messages can be passed between the houses of parliament between the Speakers of each house. Individual rules within each house govern the conduct of these messages, the crux is that they must be read in a timely manner to the members/Senators by the Speaker. It is interesting to note that the conference method cited in the Procedure and Practice manual has fallen into disuse in parliament. In fact, it has not been used since 1947 and only 16 times since 1903. The exact procedure around these conferences has changed since they were formalized in the Standing Orders of the House of Commons in 1903. Prior to 1903, these conferences were considered “closed” in that the House of Commons and the Senate each sent specific delegates who could only voice the concerns of each house without debate or discussion. In 1903, provisions were put into place within the Standing Orders (and Rules of the Senate) which permitted “open” conferences where delegates (referred to formally as managers) would be sent to a conference between the two houses and were allowed to discuss the issues and were empowered to come to a solution. There have been 13 “free” conferences since the provision was introduced but again none since 1947.
Turning to the Standing Orders of the House of Commons, Rule 77 under the heading of Senate amendments, there exists provisions for the Commons side of arrangements for the messaging and a potential conference between the two houses.
In cases in which the Senate disagrees to any amendments made by the House of Commons, or insists upon any amendments to which the House has disagreed, the House is willing to receive the reasons of the Senate for their disagreeing or insisting (as the case may be) by message, without a conference, unless at any time the Senate should desire to communicate the same at a conference. (Standing Orders of the House of Commons, Order 77)
The pre-text of this particular provisions describes a situation where the House of Commons and Senate disagree. However, it could be argued that this provisions does not exactly settle a dispute between the Commons and the Senate but merely provides two avenues for further recourse. The rule goes on the state that any conference between the two houses shall be “free” (as explained above) and that reasons for a conference shall be provided to the Senate (and visa versa in accordance with protocol).
The Rules of the Senate certainly do not offer any additional helpful guidance. Under rule 16 which is reserved for instructions pertaining to messages to and from the Senate, there is a provision regarding the messaging between the House of Commons and the Senate regarding disagreement and protocols regarding the formation of a conference.
When the House of Commons disagrees with amendments proposed by the Senate to a bill that originated in the Commons, and the Senate insists on any of its amendments, the message accompanying the bill to the Commons shall state the reasons. The Senate shall receive by message the reasons for the House of Commons either disagreeing with Senate amendments to bills or insisting on Commons amendments, unless the House of Commons at any time wishes to communicate these reasons at a conference. (Rules of the Senate, Rule 16-3(1)(4))
The Rules of the Senate also contain the same clause as the Standing Orders of the House of Commons which require that any conference between the two houses be conducted in a “free” manner.
The Senate of Canada amends a surprising amount of legislation that originates from the House of Commons. In this role they are fulfilling their mandate articulated by Sir John A. MacDonald in being the “sober second thought” of parliament. The vast majority of amendments are technical in nature (amending legal wording, uniform formatting of the bill, etc) and are accepted without hesitation from the House of Commons. However, there have been historical moments when the House of Commons and the Senate have been at odds over the pith and substance of a particular bill. When Progressive Conservative Prime Minister Brian Mulroney attempted to introduce the Government Sales Tax, it was blocked by the Senate until he took extreme measures granted to him within the constitution to appoint additional Senators (thus allowing him to overcome the partisan deadlock within the Senate Chamber). Recently, we saw an empowered Senate review and propose amendments on the pith and substance of bill C-14 which sought to extend the right of assisted dying to Canadians. It is during these moments that the procedures and processes surrounding the deadlock between houses of parliament become even more important.
Amendments proposed by the Senate on legislation originating in the House of Commons are sent back for debate and approval (or rejection). The debate concerning these amendments is restricted to the scope of the amendment question itself, meaning MPs cannot begin a new debate on the merits of the bill as a whole, for example. Each amendment is voted on individually in the order that it would appear in the bill (reasonably presenting the bill in a logical fashion). The House of Commons can reject or accept all amendments, or can approve and reject some but not all amendments from the Senate. If all amendments are accepted, a message is sent to the Senate to this effect and the bill is scheduled for Royal Assent. If some of the amendments are accepted, but not all, the same message communicating this fact is sent to the Senate, but the Senate is given a chance to reply to this message. If the Senate cannot agree to the provisions than a conference may be formed between the two houses. In the case of C-14, after the bill was read and approved at Third Reading in the House of Commons, the Senate sent amendments back which were then rejected by the House of Commons (being controlled by the majority Liberal government). However, after the rejection of their amended version of the bill, the Senate then approved the final text of the bill, from the House of Commons, essentially backing down and avoiding a protracted deadlock.
If the conference fails, the matter is closed and the bill simply remains on the Order Paper where it dies at the end of the session. During that time, no new bill may be introduced in the House in respect of the same subject matter and containing similar provisions. (House of Commons Procedure and Practice 2nd Ed)
At the end of the day, if the House of Commons and the Senate cannot agree and no movement is made through the options available in a conference, than the bill sits on the Notice Paper for the remainder of the session and is, for all purposes, dead. Furthermore, a legislative void is created because no bill on the same subject can be presented during the session until the similar bill on the Notice Paper is resolved. This was the case during the GST debate for a short period of time prior to the Prime Minister appointing additional Senators and reviving the legislative life of his taxation bill.
On a final note, and related to my last entry, the Senate understands it’s inherent democratic deficit. Because Senators are appointed on the advice of the Prime Minister of the day by the Governor-General collectively they do not possess the same democratic mandate as the government or the House of Commons as a whole. This does not impact their legal authority within the legislative process (as I have alluded to in my opinion piece) but it does inflict soft power over the Senate by the House of Commons. Often during debate, Senators who support the government can be heard calling on fellow Senators to speedily approve matters originating from the Other Place because they have no democratic right to hold up priorities of the duly elected government. And to some extent there is some truth to this statement, however, the Senate does have a legitimate role in the legislative process to review and scrutinize legislation, including government legislation. This is a key component of what little exists to resolved a dispute between the two houses of parliament. It is important to note, that no House can have authority over the other as they are each sovereign entities within parliament in union with the Crown. The executive, being embedded in the House of Commons, does not enjoy a carte blanche over legislation proposed within parliament and therefore the role of the Senate in being that sober second thought often becomes more powerful during periods of majority government rule in the Commons. It is therefore dishonest to simply cast the Senate away as an undemocratic institution with little or no value in the legislative process. On the same token, it could be argued that there exists a statutory nadir with regard to provisions for dealing with a deadlock between the Houses of Parliament which lends itself to relying on the false assumption that the House of Commons has authority over the Senate through their democratic legitimacy.
Recent events within parliament surrounding bill C-14 have cast a light on the possibilities of the two houses of parliament stuck at a deadlock. In actuality, any theorizing was dubbed moot because the House of Commons rejected the proposals from the Senate on bill C-14 and the Senate duly accepted the rejection from the Lower Chamber. Democracy, as the pundit would say, was saved for the day. But there is something inherently wrong in claiming that having an Upper Chamber capable of overriding the Lower Chamber on legislative affairs is an outright offence of democracy and democratic values in Canada. It is certainly worth taking a closer look at the legislative process in Canada in comparison to the democratic process– most people, I wager, would be surprised to understand a difference between the two.
There is no question that if you are reading a blog such as this, and a post such as this, that you have a basic understanding of how laws are made within parliament in Canada. Bills are proposed as Acts of Parliament in either the House of Commons or the Senate. Some bills are “special” compared to others because they originate from the government (which resides in the House of Commons). The Senate is composed of Senators who are appointed by the elected Prime Minister of the day (or more technically by the Governor-General on advice from the Prime Minister of the day). Bills are read a certain number of times in each house and are sent to committee for a clause-by-clause review. Each reading stage of the legislative process (there are three in total within each house), have a specific purpose and scope of debate. At the end of the reading stages, each house puts the bill to question (that is to say, votes) and it is moved on the to next step in the process. The final step being Royal Assent, where the Governor-General signs the bill which thus becomes an Act of Parliament and the law-of-the-land. Where things get murky in the process, however, is when legislation in moved between the House of Commons and the Senate. Obviously, all government bills will originate in the House of Commons and be sent to the Senate for further review and eventual approval. But what happens if the Senate rejects a bill proposed by the House of Commons, and more specifically, generated by the government of the day?
Canadians saw this process somewhat unfold between the House of Commons and the Senate recently on bill C-14. The House of Commons passed the bill on Third Reading and sent it to the Senate for further review (never minding the deadline issue at this moment). The debate in the House of Commons on the bill was substantial and focused on the constitutional nature of the bill. In the Senate, the Senators heard testimony from constitutional experts that the bill would have violated Canadian law. The Senators proposed amendments similar to what was proposed by the opposition in the House of Commons in order to avoid a conflict with the Charter. Surely, however, the Senate would be out of line for proposing such amendments over the government and the House of Commons because unlike the Lower Chamber, they are unelected! This is where the debate gets sidetracked by the introduction of the democratic process. The problem is that both processes are separate from one another, and should not mix as closely as it being attempted in this sort of debate.
The democratic process in Canada serves one purpose: the composition of the House of Commons. About every four years (a maximum of five as mandated in the constitution), Canadians participate in a general federal election. Which more accurately should be called federal general elections, because in reality there are over three hundred elections happening across the country. The purpose of the election is to select an individual Member of Parliament to serve in Ottawa on behalf of a geographical boundary drawn up based on population (and mandated representation requirements). Once the MPs are selected across the country, they are sent to Ottawa and a government is formed from among their ranks by appointed of the Governor-General. Note, that Canadians play no part in the formation of their government aside from the indirect manner of electing Members of Parliament. A key component of responsible government is that members of the cabinet, the executive body, are appointed from among a pool of elected MPs. This is exactly where the democratic process ends and the legislative process begins. Once a parliament is formed, and more specifically once the House of Commons is formed, the democratic process ends and the legislative process kicks in to full swing. From the basis of responsible government, which sustains a particular ministry through the maintenance of the confidence of the entire House of Commons, the government can participate and dominate the legislative process. This dominance is scalable based on the size of their influence within the House of Commons (the formation of majority or minority governments, for example). The continuance of responsible government permits the appointment of agents of the state such as Senators, who are empowered through the constitution to participate in the legislative process alongside the duly elected government. And while mandates will shift between ministries, generally those agents of state remain empowered within the legislative process, intentionally made to be immune from the democratic process. This is an essential balance between the elite and the populist, and is a key feature of any Westminster parliamentary system.
It is therefore not undemocratic for the Senate to reject any piece of legislation coming from the House of Commons, especially legislation coming from the government benches, because there is nothing that should permit the democratic process from interfering with the legislative process. While principles of democracy are inherent in the system (MPs for example vote by majority, as do Senators), the process itself, the democracy-in-Canada (to fancy a label on it), is not a part of the legislative process. That process exists when the people elect their individual Member of Parliament. The rest is the entire system working as it ought to and churning out lawful decisions of the state.