British Columbia’s Per Vote Subsidy Problem

British Columbia’s Premier, John Horgan, recently unveiled his government’s intention to reform the financial laws surrounding political donations. As has been noted in editorial, after editorial on the subject, BC before these proposed measures could accurately be called the Wild West when it came to the political donation regime– in that there were virtually no rules regarding who could donate, and how much could be given. This obviously led to big business money flowing into the pockets of the BC Liberals and big union money flowing into the pockets of the NDP, while smaller parties such as the Greens and the (barely a party) Conservatives, would be left with very little to compete against big money in general. Among the measures proposed is a $1,200 personal contribution limit, a ban on corporate and union donations and measures to ban and protect against third party advertising within the province. However, the proposal also includes a controversial addition to introduce a per-vote subsidy programme that would start at $2.50/vote and work down to $1.75/vote in 2022. It is estimated that this programme will cost the taxpayers $27-million over its lifespan (which actually does not have a definitive expiration date). It is similar, almost down to the letter, to the programme that was introduced on the federal level by Prime Minister Jean Chretien after his reforms to the political fundraising system in federal politics. It was wrong for Chretien to introduce that measure then and it is wrong for Horgan to do it now.

We can dispense immediately with the obvious elephant in the room that Premier Horgan has flip-flopped on his previous commitment not to introduce a per-vote subsidy programme. In addition to being dishonest in this case (and I will give him credit and say he has come forward about his lie), this promise-breaking removes any sort of popular mandate from the measure itself. Premier Horgan cannot stand and say that British Columbians support this measure as packaged up in measures that almost every British Columbian does support, he does not have a mandate on this measure. But in this editorial I will entertain the arguments that are being made for this measure, because even without a mandate, it could perhaps still be a good idea.

A change like this to our electoral system (because that is what begins to become the issue here, beyond just political funding) carries with it the onus being placed on the proposer of the reform to articulate why the measure is required. It is not for me, as the person standing in the position of the status quo, to explain why the proposal should not exist. The fact is that it does not exist at the moment, and it is a change to the system that must stand on its merits in debate before it can be implemented. So we can surely ask why such a measure is required alongside the package for reforms that are indeed required (if not because we are one of the last jurisdictions in the world not to have some measures on this subject). And the answer we get is that this programme is require because the political parties require an adjustment period to tool their fundraising systems and evolve to the new changes. The problem with that argument is that it paints a situation where one is essentially being told that political parties are designed to have only two options right now for fundraising; either depend on big money and the ethical rollercoaster that comes along with that or lean on handouts from the government based on votes. But we know that there is a third method, in fact it is the method that is supposed to be used by political parties and that is grassroots engagement. A political party that cannot build and engage a base that can offer financial and other supports to it should not exist. The basis of parliamentary democracy is civil engagement at the lowest level within the political party. And I get that we have moved from this concept, which will actually bring me to the real problem here.

Now retired esteem parliamentary journalist Susan Delacourt has penned an amazing book called Shopping For Votes that articulates the changes that have come into politics as a result of the expansion of consumerism and specifically the advertisement industry. She compares an elector walking into a voting booth on Election Day to a shopper walking down an aisle trying to pick out a can of soup. And she get gets to run with this analogy precisely because that is how political operatives at all levels view the elector– they are all out shopping for their candidate. A system like this does not require grassroots engagement, it requires money for technical resources which are guided and manipulated by a small, elite group of political operatives. These people usually all have backgrounds in communications, advertisement, polling or media relations. There is no reason to sell as many memberships, no reason to solicit donations from individuals, no reason to engage in order to retain members and develop a pool for potential candidates. No, the system can all be run through a giant communication strategy, usually focused solely on the leader and all it needs is a steady stream of money to keep the machine operating. And this where the per-vote subsidy feeds the machine.

By handing money to political parties alongside each single vote, the incentive for political parties to engage citizens shifts from grassroots to merely getting people to show up to vote. No need to build a dedicated political base, especially when you get $2.50/vote, and I’m sure they’ve done the math and know what segment to target and just what to say to get them to show up to vote. And after Election Day, that is it, they do not need your membership, they do not need your opinion, they got your vote and they got your $2.50. At its core the per-vote subsidy breeds a system where there is absolutely no incentive for political parties to develop a political base. And what suffers as a result is the civil discourse within society. Which brings me to my second point.

A vote does not equal a financial commitment. I would wager that a number of electors in the last BC general election voted for a political party that they would not go so far as give $2.50 of their own money to. I know that was the case for me. I would say it was the same case for many in the last federal election as well. I would go so far as to say that in the United States, during their last Presidential Election, that I am sure there are many voters who voted for a candidates that they would never give $2.50 otherwise. Voting is a civic responsibility wherein a citizen expresses their democratic will in determining who will represent their interests in an elected legislature. As a result of responsible government, this decision can also determine who will go on to form government. It is an important question on its own merits, so important that it should not have any other obligations attached to it other than that democratic expression. Just because a person votes for a candidate or a political party does not mean that they wish to support that party financially. No for that to happen for many people the party would have to become more relevant to them, it would have to actually try and engage that voter beyond the ballot and include them in the democratic process. Perhaps now you see how this per-vote subsidy programme encourages just the opposite.

Donating money to a political party is a matter of freedom of expression. I am free to express my support for a political party by offering it financial support to exist (and perhaps remain in or gain power in the next election). By forcing a form of expression on the elector through a per-vote subsidy programme, the provincial government is essentially violating my own freedom of expression. Showing up to vote is not an agreement to give $2.50 to a political party, it is not an agreement for me to make the specific form of expression of donating to a political party. And yet, with this per-vote subsidy proposal, the government is seeking to make it law, that regardless of how you wish to express yourself on this point, you must make this expression alongside your vote. It is a violation of one’s freedom of expression to attach any strings to the act of voting; voting itself as an expression has one purpose only. It would be absurd for the government to demand that each elector show up to vote with $2.50 in their pockets, payable to whichever party they had ticked in the box. It would be anti-democratic. And although there exists a certain level of cognitive separation because it comes in the forms of taxation, but the fact is that with this proposal you are essentially showing up to vote, and it has a cost to the tune of $2.50 (but don’t worry it’s supposed to go down by 2o22, what a bargain!) payable to political party X.

Never mind that Premier Horgan flip-flopped, never mind that he does not have the mandate for this change, never mind the sheer political greasiness of wrapping this flip-flop in a package of what are otherwise almost all universally agreed upon measures, never mind the $27-million (plus) cost, and the fact that this programme is never set to come to an end at this time; a per-vote subsidy programme undermines the base of the civil democratic system. It provides a strong incentive for political parties to avoid grassroots engagement and removes any incentive for a political party to engage and develop a political base that it can rely on for financial and other types of support. Furthermore, it is a violation of an electors’ freedom of expression because it forces a financial commitment to a political party based solely on a democratic vote. A political party that is unable to raise funds when they cannot rely on big money or cannot rely on grassroots fundraising should not exist on any democratic stage– no adjustment period required.

Photo credit.

Oral Questions / Question Period

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

Leader of the Official Opposition, Rona Ambrose, asks a question to the PM during Question Period.
Leader of the Official Opposition, Rona Ambrose, asks a question to the PM during Question Period.

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:

  1. The time is scarce and should, therefore, be used as profitably as possible by as many as possible.
  2. 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.
  3. 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.
  4. 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.

Supplementary Questions

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
  • say nothing.
Since the introduction of televised debated in the House, Question Period has become theatrical with the tone and body language of questions playing a big role.
Since the introduction of televised debated in the House, Question Period has become theatrical with the tone and body language of questions playing a big role.

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;
  • be hypothetical;
  • 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;
  • create disorder;
  • 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.

Conclusion

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.

Bills C-1 and S-1

You may have already noticed that bill C-1 and S-1 are not located anywhere in the Status of Government Legislation posts featured on this blog. There is actually a good and very interesting reason for this. In this post we will examine the practical purpose of bills C-1 and S-1 in each session of Parliament and briefly review the historical perspectives of these bills.

Each session of Parliament begins with the formal opening of said Parliament with a Speech from the Throne delivered by the Governor-General on behalf of the reigning Monarch (monarchs have delivered this speech in Canada on various occasions) in the Senate Chamber. However, before the session begins, before all of the MPs make the trek from the House of Commons to the Senate and before all of the Senators and Justices of the Supreme Court take their seats before a filled regal chair in the Senate Chamber the entire Parliament is summoned by the Governor-General on the advice of the Prime Minister. The summoning of Parliament is a formal requirement in accordance with our constitution and established conventions on the opening of a session of parliament. The Summons itself is a Crown prerogative that on convention is exercised on the advice of the Prime Minister and is the literal formation of a particular Parliament by the Crown-in-Canada. This fact is important, the formation of our democratically elected House of Commons and appointed Senate into a particular Parliament with all of the powers, authorities and privileges required to conduct the democratic will of Canadians is rested upon the ordering of certain persons to Ottawa by the Crown. The glaring authority of the Crown in the formation of Parliament is made obvious in the direction the Crown gives to the Usher of the Black Rod to collect Members of Parliament from the House of Commons and summon them, on their feet before the Bar of the Senate, to listen to the Crown’s priorities and objectives for the government and the upcoming parliamentary session.

The Prime Minister proposed bill C-1 in the House of Commons. CBC News.
The Prime Minister proposes bill C-1 in the House of Commons following the Speech from the Throne. CBC News.

At the end of the Speech from the Throne, MPs return to the House of Commons and Senators continue business in the Senate. In the House of Commons bill C-1 is normally proposed by the Prime Minister and is titled An Act respecting the Administration of Oaths of Office. In the Senate, bill S-1 is proposed by the Senator representing the Government and is titled An Act relating to Railways. Each bill is considered to be pro forma, in that their mere form represents the historical purpose of the proposed legislation. Each is given a first reading and then is never moved again. And each bill has nothing to do with the title, in fact in recent times the bill itself it not even printed or published. But they are arguably the most important pieces of legislation in each session of parliament. These bills represent the automous nature of Parliament and specifically of each House of parliament. Regardless of what reason the Crown gives in the Senate during the Speech from the Throne for why the Parliament has been summoned and regardless of what priorities the Crown has established for the Government, both Houses assert their independence and ability to set their own business. Without these bills, the Houses may be compelled to conduct only business strictly related to that outlined in the Speech from the Throne, or at least historically that would have been the case.

Each bill is a carry over practice from the British Parliament. In the UK, each session of Parliament begins with the presentation of the Speech from the Throne (albeit with the actual reigning Monarch) and when MPs return to the House of Commons, the government presents C-1, the Outlawries Bill. Like our own C-1 and S-1, the bill is read a first time and then never again dispensed with during the session. Rarely is the bill printed today. And just like the Canadian custom, the bill signifies the independence of Parliament from the Crown. During a review of House of Commons practice in 2002, the Procedure Committee reviewed the practice and determined that it had historical significance with little impact on other business and therefore had no reason to be removed from practice.

You will not see bill C-1 and bill S-1 on the Status of Government Legislation series on this blog because there is little reason to list it constantly in Second Reading in the House of Commons and the Senate respectively. However, that does not undermine their importance. Bills C-1 and S-1 are a constant reminder of the independence of parliament and the democratic authority that we mandate to our elected representatives in Ottawa. Their importance in a free and democratic society cannot be overstated.

The Path to Electoral Reform

Canadians from coast to coast to coast will soon be receiving a shiny postcard in the mail from the Government of Canada inviting them to participate in a new online survey on electoral reform that the Liberals are calling MyDemocracy.ca. The purpose of the new survey, according to Minister of Democratic Institutions Maryam Monsef, is to engage all Canadians on the issue of electoral reform and to gauge the public desire for the kind of change the government should seek regarding electoral reform. During her brief interview on The Agenda with Steve Paiken last week, the minister explained that several Canadians were unable to attend the ERRE committee meetings that were held in every province and territory in Canada and specifically mentioned rural Canadians who did not have a chance to get out to meetings that were more often than not conducted in large urban centres.

On the face of it, there should be no issue with the government in our modern digital age drafting and sending out an online survey to gauge public opinion on any given issue, the problem here comes from the fact that we have already had an all-party parliamentary committee review the issue and engage Canadians and they submitted a report that was well over 300-pages that provided recommendations to the House of Commons on moving forward on this issue. But the report did not detail what the government secretly wants for electoral reform, specifically that there be no national referendum on the issue and that a ranked ballot PR system form the way ahead in Canada (the Liberals support a ranked ballot system because as the traditional centre party, they will almost always capture run-off second and third choice votes). The NDP has been pushing for a RP system for quite some time, as have the Greens and the Conservatives maintain that any changes to our electoral system required a mandate directly from Canadians in the form of a referendum on the question. The report from the ERRE committee was a product of the current lay of the land in the House of Commons, namely that the Conservatives as official opposition were able to secure the position in the report that a referendum is probably the best way forward and the NDP and Greens both were able to secure a mention that PR was probably the best system to use in Canada. It is important to note that this current “lay of the land” in the House of Commons is the result of the democratic will of Canadians expressed in the previous general election that sent the Liberals to the government benches. These conclusions made Minister Monsef quite upset which lead her to outburst in the House of Commons, attacking the committee for not doing the work it was suppose to do. She later had to backtrack and apologize, but the damage was done. It was also one of the first times in recent memory that a majority government has submitted a minority report alongside a committee report in Parliament.

Monsef has stated that the government’s plan all along was to propose this survey to Canadians, which is mind-boggling because they allowed the ERRE committee to continue what was essentially parallel proceedings without once mentioning that they had a plan to do their own thing down the road. But it gets worse, Monsef was clear during her interview with Steve Paiken, that the government believes the positions outlined in the committee report do not reflect the will of Canadians and that the Liberals, somehow, have some greater insight into the electorate that requires going outside of parliament to get to the source of the concerns of Canadians. There are serious democratic implications for the position of her government, namely the richness of claiming that a report compiled by duly elected Members of Parliament somehow does not and cannot reflect the will of Canadians. Does she understand that such a statement is clearly laying bare the fact that this government does not in any way feel beholden to parliament on the issue? What makes electoral reform so different that the government is not required to have support in the House on the file?

I think that an easy way of understanding how the government is approaching the file can be articulated in an analogy of tree shaking. The Liberals stand around the tree of Canadian opinion and shake and shake and when an apple falls that is not to their own particular liking, for example that Canadians support a referendum on electoral reform, they shake and shake some more saying that “well, not everyone was consulted so we have a duty to ask again.” And when another apple that is not to their own liking falls again they put up their hands and say, “we are here to include all Canadians from all walks of life, and this tree is flawed, let’s try again to get their opinion.” And they shake and shake again until an apple of their liking has fallen to their feet all of the while coming up with vague and soft points on why the previous tree shaking was inferior to the next. Never minding the fact that Canadian taxpayers pay hundreds of millions of dollars to keep the institution of parliament running as a means of governing the country and expressing their will between election periods. We have a Liberal government that is committed to the people, and thus committed to circumnavigating parliament on this file— at least until the right apple falls.

Minister of Democratic Institutions Maryam Monsef answers a question during question period in the House of Commons on Parliament Hill in Ottawa on Wednesday, Dec.7, 2016. THE CANADIAN PRESS/Adrian Wyld
Minister of Democratic Institutions Maryam Monsef answers a question during question period in the House of Commons on Parliament Hill in Ottawa on Wednesday, Dec.7, 2016. THE CANADIAN PRESS/Adrian Wyld

Furthermore, the Liberals are becoming extremely dismissive with Canadians on the file. When questioned why her government did not include more specific questions on forms of electoral systems that could be implemented in Canada, Monsef explained that Canadians do not understand FPTP, MMP, PR and STV and that the issue was too complex and too technical to engage the majority of Canadians. I feel as if Minister Monsef might be projecting her own misunderstandings and difficulty comprehending our Canadian democracy and various electoral systems on to Canadians. At best it is government handling an electorate with kid gloves, at worse it is condescending and arrogant. Either way it does not make good politics for a government that is supposed to be sunny-ways and supportive. You cannot, with one side of you mouth, say that you value engagement and then criticize the quality of results from said engagement, that is double-speak. However, if Canadians are in fact not informed on this subject, it does start to beg the question of it’s importance to everyday Canadian at the moment. Is it possible that the government has created a mountain out of a mole hill here on electoral reform? Especially when we consider how many Canadians are currently out of work, how many are looking down the barrel of losing they jobs and how many young Canadians are fearful for employment in the future. Is electoral reform really something that the government should be pushing at the moment?

At the end of the day, Justin Trudeau made a promise to Canadians that the 2015 election would be the last under first-past-the-post in Canada, it is arguable whether or not this promise and his election victory earned his government a solid mandate to move forward on the file unilaterally. Conservative interim leader Rona Ambrose has handed the government an out in saying that they should drop 2019 as a goal line and should focus on more pressing issues in the country. I am inclined to agree with her, it is time for the Liberal government to drop electoral reform, at least during this current parliament.

Electoral Reform and Electoral Systems

The Library of Parliament has published a wonderful primer on electoral reform in Canada and around the world that scratches the surface of the various options before Canadians. I’ve decided to cut some snippets from the publication to share here with links to the original document so that you may follow-up on your own.

You can access the document here or a PDF copy here.

Plurality or Majority Systems

Description: In plurality or majority electoral systems, the winning candidate is the individual who garners the most votes in an electoral district. Depending on the particular rules of the system, the winner may need to receive a plurality (or more votes than the other candidates) or a majority (over 50% of the votes cast).

First Past the Post (FPTP): Under FPTP, an elector casts a single vote for a candidate to represent the electoral district in which the voter resides. Candidates must gain a plurality of votes to be elected.

Under FPTP, an elector casts a single vote for a candidate to represent the electoral district in which the voter resides.
Under FPTP, an elector casts a single vote for a candidate to represent the electoral district in which the voter resides.

Alternative Vote (AV): Also used to elect a single candidate per electoral district, this system is often called preferential voting. On the ballot, voters rank the candidates running in their electoral district in order of their preference. To be elected, a candidate must receive a majority of the eligible votes cast. Should no candidate garner a majority on the first count, the candidate with the fewest first-preference votes (lowest-ranked) is dropped, and the second-preference votes on the ballots where that candidate ranked first are assigned to the respective remaining candidates. This process continues until one candidate receives the necessary majority.

Two-Round: Also known as the run-off system, the two-round system has elections with not one but two election days, generally weeks apart. The system used for the first round of voting is largely similar to FPTP, except to win, a candidate must take a majority of the votes cast and not simply a plurality. Should no candidate garner a majority after the first round of voting, a second election is held with only the top two candidates from the first election results. The candidate with the higher number of votes in the second round is elected.

Block Vote: In essence, this system is FPTP but with multi-member constituencies. In each electoral district, voters may cast as many votes as there are seats. For example, if three seats are available in an electoral district, the three candidates with the most votes will be awarded seats.

On the ballot, voters rank the candidates running in their electoral district in order of their preference. To be elected, a candidate must receive a majority of the eligible votes cast.
On the ballot, voters rank the candidates running in their electoral district in order of their preference. To be elected, a candidate must receive a majority of the eligible votes cast.

Origins: Plurality or majority systems can be traced back to historical British parliamentary practice. FPTP continues to be employed to elect members to the United Kingdom (U.K.) House of Commons, and is also the system used today in most countries that were once part of the British Empire or have historical connections to England.

Advantages and Disadvantages: Plurality or majority systems are easy to use and understand, favour the formation of stable majority governments, maintain a geographic link between constituents and members, and encourage broad-based parties. Critiques of plurality or majority systems include that the seat allocation is disproportionate to the popular vote, and the system exaggerates regionalism and wastes votes. Further critiques of the two-round system are that it is the most expensive electoral system, and voter turnout may decrease between the first and second rounds.

Current Use: Australia – Lower house (AV), Canada (FPTP), France (Two-Round), U.K. (FPTP) and the United States (FPTP).

Proportional Representation Systems

Description: As the name suggests, proportional representation (PR) systems seek to closely match a political party’s vote share with its seat allocation in the legislature. Unlike in most plurality systems, in PR systems, voters elect more than one representative per constituency or geographic area. PR tends to be varied and flexible, and the method for calculating seat distribution can be quite complex, with some systems requiring that a minimum threshold of vote share be earned in order for any seats to be allocated. Citizens generally vote for several candidates, or a party, and the results determine which individual members will sit in the legislature, as well as the overall distribution of seats belonging to each party.

List PR systems are very flexible and have been adapted by the countries using them.
List PR systems are very flexible and have been adapted by the countries using them.

List Proportional Representation (List PR): There are two main forms of List PR: closed-list and open-list. Both forms use a regional or national list of candidates in each constituency drawn up by each party before election day.

In closed-list PR, the party ranks the names on the list, and citizens vote for a party, not a specific candidate. Once all votes have been counted, each party is awarded seats in proportion to its share of the national vote. Individual seats are then allocated to candidates of each party in the order in which they are ranked on the party list.

In open-list PR, voters choose a preferred candidate (or candidates) from the list of the party for which they wish to vote. This means that voters effectively determine the order in which the candidates on the list will be awarded seats.

List PR systems are very flexible and have been adapted by the countries using them.

Single Transferable Vote (STV): Citizens in multi-member electoral districts rank candidates on the ballot. They may rank as few or as many candidates as they wish.

In this system, as in FPTP and unlike in block vote, each voter selects one candidate only. However, the system differs from FPTP and resembles block vote in that several members are elected per electoral district. The candidates with the highest vote totals are elected.
In this system, as in FPTP and unlike in block vote, each voter selects one candidate only. However, the system differs from FPTP and resembles block vote in that several members are elected per electoral district. The candidates with the highest vote totals are elected.

In most variations of this system, winners are declared by first determining the total number of valid votes cast, and then establishing a minimum number of votes that must be garnered based on the number of seats to be filled (the “vote quota”). Candidates who receive the number of first-preference votes needed to reach the quota are elected.

If there are still seats to be filled, a two-step count occurs. In the first step, any votes in excess of the quota for elected candidates are redistributed to the second choices indicated on the ballots of the elected candidates, using a weighted formula (this is called “excess transfer”). Candidates who then reach the quota are elected.

If no candidates reach the quota in this way, a second step takes place in which the candidate with the fewest first-preference votes (lowest-ranked) is dropped, and the second-preference votes on the ballots where that candidate ranked first are assigned to the respective remaining candidates.

Such extra counts continue until enough candidates reach the quota to fill all available seats.

Some variations do not involve excess transfer, but only the elimination of the lowest-ranked candidate and the reassigning of the second preferences on the ballots for that candidate. Nonetheless, the counting process still fits the definition of a single, transferable vote.

Single Non-Transferable Vote (SNTV): In this system, as in FPTP and unlike in block vote, each voter selects one candidate only. However, the system differs from FPTP and resembles block vote in that several members are elected per electoral district. The candidates with the highest vote totals are elected. For example, in a constituency where 20 candidates are vying for five available seats, the five candidates with the most votes will all be elected.

Compared to FPTP or block vote, SNTV can facilitate the representation of minority parties and independents, because the minimum number of votes needed to be elected decreases as the number of seats in the constituency increases, giving parties that normally receive a lower percentage of votes a better chance of electing a candidate.

Origins: Discussion of proportional representation can be traced back to the late 1700s. Its first public use was in 1840 during an election held in Adelaide, Australia.16 Some observers have suggested that the implementation of PR systems, especially throughout Europe, was a response to unrepresentative electoral results, with others suggesting economic transformations and the growth of social democratic parties were driving forces.

Advantages and Disadvantages: PR systems produce results most closely matching the actual proportion of votes garnered by parties, permit greater representation of smaller parties, provide for greater choice, and can encourage power-sharing within a Parliament. Critiques of PR systems include that they can be difficult to understand, they tend to create coalition governments, the geographic link between constituent and member is less prominent, they increase the possibility of electing parties with extreme views, the ballots can be long and complicated, and the counting of results time consuming.

Current Use: Australia – Upper House (STV), Austria (Modified Closed-List PR), Belgium (Modified Closed-List PR), Denmark (Open-List PR), Finland (Open-List PR), Ireland (STV), Netherlands (Modified Closed-List PR), Norway (Modified Closed-List PR), Russia (Closed-List PR), South Africa (Closed-List PR), Sweden (Modified Closed-List PR) and Switzerland (Open-List PR).

The modified closed-list PR systems listed above essentially give electors some ability to influence which candidates on party lists are elected by stating preferences on the ballot. The countries use different methods and set different thresholds of vote share needed for election.

Mixed Electoral Systems

Description: Mixed electoral systems combine elements of a plurality or majority system with proportional representation. Citizens in a constituency cast two votes: one to directly elect an individual member to serve as their representative, and a second for a party or parties to fill seats in the legislature allocated according to the proportion of the vote share they receive.

Mixed Member Majority (MMM): Citizens in single-member electoral districts cast two votes: one for a candidate to represent their constituency according to the FPTP system, and one for a party. Each party presents a previously established list of candidates, similar to the List PR system. A predetermined portion of the legislature’s seats are filled using the plurality vote, while the remaining seats are filled by the party list vote.

The two votes under MMM are fully independent of one another; the party seats will not compensate for any disproportionate result in the constituency elections.

Mixed Member Proportional (MMP): This system operates in the same way as MMM, except that a citizen’s second vote, which allocates seats to parties according to List PR, is used to attempt to compensate for any disproportionate results in the FPTP constituency part of the election.

There are variations among the various MMP systems in how this allocation is made.
There are variations among the various MMP systems in how this allocation is made.

Additional seats are awarded to qualifying parties18 where the number of constituency seats that they won fails to reflect voter support shown in both components of the election.

There are variations among the various MMP systems in how this allocation is made.

Origins: Mixed electoral systems can be traced back to Germany’s adoption of an MMP system following the Second World War. Observers have noted that the system represents a compromise, or third way, between plurality or majority systems, and proportional representation.

Advantages and Disadvantages: Mixed electoral systems provide for fairly proportional outcomes, maintain the geographic link between constituents and members, provide for greater choice, and allow the opportunity for smaller parties to be represented in Parliament. Critiques of mixed electoral systems include that they may be difficult to use and understand, and they create two classes of members (electoral district versus list).

Current Use: Germany (MMP), Japan (MMM), Mexico (MMP), New Zealand (MMP), Philippines (MMM), Scotland (MMP), South Korea (MMM) and Wales (MMP).

Order Paper and Notice Paper

The Order Paper and Notice Paper is the most important published document from a legislative standpoint (see the first image). Both the Senate and the House of Commons produce the Order Paper and Notice Paper daily (we are just going to focus on the House of Commons right now). You can find the Order Paper and Notice Paper for the House of Commons here. This document contains two sections; the Order Paper and the Notice Paper. The Order Paper concerns the order in which the House will hear business (all per the Standing Orders, unless otherwise ordered) and presents an outline for business which the government intends to introduce (under the headings Business of Supply, Ways and Means, Government Bills (House and Senate) and Government Business (the specific of these headings are not important yet, we will deal with that in a later post). The Notice Paper is the bulk of the document as it contains the order in which Private Members’ Business, motions, written questions and government bills are presented (basically how the House decides what is going to be debated).

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Let’s take a look at Order Paper and Notice Paper No. 3 for the 1st Session of the 42nd Parliament of Canada. From this document we see that the House of Commons will be sitting a normal Monday routine. Further on in the document under Order of the Day we see that the government intends to debate the Reply In Address to the Speech from the Throne. We also get a little piece of information in that the Standing Orders grant six days of debate on this particular piece of business. You can also see a projection for the remainder of the week regarding the debate on this business. Government Orders has an interesting notice for the opposition concerning a Supply Day (otherwise known as an Opposition Day). The Standing Orders allocate a certain number of days broken down into three periods of the year for the opposition to present motions and control the flow of business in the House of Commons (see Standing Order 81). Because parliament has not been sitting for the full period ending 10 Dec 15, the President of the Treasury Board is indicating that the opposition will have one day this period (as per the Standing Orders) and it will be on 10 Dec 15, meaning we can expect an opposition motion of some sort on that day (or whatever else the opposition would like to focus the attention of the House on for that short period of time).

Cross-posted from Consumervoter.ca.

http://news.nationalpost.com/news/canada/canadian-politics/mps-in-glass-houses-shouldnt-throw-stones-at-senators-former-red-chamber-ethics-officer

Disagreements between the Senate and House of Commons

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.

(Featured image credit.)