The House: Three-part reform

Rather than simply lament for how little attention is paid to the institution, I thought I’d ask some smart people if they had anything to say in response to my piece about the state of the House of Commons. Over the next little while, those responses will appear here. Next up, Mark D. Jarvis.

What is the role of the House to be?

Readers here will know Aaron has been making a Herculean effort to sketch how the House – and with it, effectively, Parliament – has diminished into “a sham”, to use Wherry’s terms. He asked if I would be willing to write a short piece about what sort of democratic reforms Canadians should be considering, especially now that we’re in the throes of an election campaign.

Why is the House failing? Simply put, a lack of clear and basic rules addressing the most essential aspects of the Canadian constitution has disrupted the capacity of the House to fulfill its fundamental role, undermining the democratic principles and integrity that most Canadians would hope to see in the functioning of the people’s Parliament.

For the sake of simplicity, we can draw distinction between two broad categories of democratic reforms that could be considered.

The first category deals with the day-to-day functioning of the House. Parliamentarians, academics and other observers have suggested a number of issues they argue are in need of reform, like improving decorum and the quality of questions and answers during Question Period. A number of proposals have emerged to address these issues, such as: elevating the role of the speaker in meting out discipline in the House; making changes to the Standing Orders and conventions that govern Question Period to allow longer, more thoughtful questions and responses; and, even remodeling the physical layout of the House of Commons to reduce the worst of the schoolyard-grade taunts and behaviour regularly on display.

In general terms, these proposals tend to meet an important two-fold test: they are not likely to cause further damage to the House and its proceedings; and, they may even bring about some positive changes.

But one point should be made as clearly as possible here. Many – though not all – of those who support reforming how Parliament works on a day-today basis have set their sights on reducing, if not eliminating, partisanship. This is a misguided effort. Any efforts to improve democracy by reducing partisanship are doomed to failure. The entire parliamentary process is predicated on partisan politics, which sees institutionalized adversarialism as the best means of securing democracy. Partisanship is an essential dynamic of public accountability in our democratic system.

The second, and more important, category focuses on the imbalance of power between the prime minister and Parliament. In our forthcoming book Democratizing the Constitution, my co-authors, Peter Aucoin and Lori Turnbull, and I document how prime ministers have come to exercise excessive control over parliamentary procedure, including the formation and dismissal of governments, to protect or advance the partisan-political interests of the governing party. This moves beyond just partisanship; it is a matter of acting in bad faith, in no way serving any democratic and/or public purpose.

Particular attention needs to be paid to the prime minister’s powers related to confidence, prorogation and dissolution, including changes of government between elections. Canada has not developed clear rules, guidelines or expectations with respect to the use of these powers, as New Zealand and the United Kingdom have. New Zealand, for example, has adopted guidelines to establish that if a government loses the confidence of the House, the Governor General is to ascertain whether an alternative government can be chosen from the same House. A prime minister who is defeated in the House has no right to demand that the House be dissolved. This reflects what should be well understood as a basic reality of responsible government: that without the confidence of the House the prime minister is just an ordinary member of Parliament.

While it isn’t possible or desirable to proscribe rules for every situation, a complete absence of rules leaves the integrity of the Canadian system vulnerable to abuse.

Without a few clear, firm and binding rules guiding the most fundamental aspects of the Canadian constitution, the prime minister has been able to exercise great power over parliamentary procedure in a manner that inhibits Parliament’s ability to fulfill its three major responsibilities: to review government legislation, to scrutinize government administration and to extend or withdraw confidence as it deems fit.

We have identified a number of practices that could be reformed to address this imbalance and strengthen Canadian democracy:

–       the power of current party leaders to approve party candidates and the inability of party caucuses to appoint or dismiss party leaders, reducing the likelihood that governing party backbench MPs will play any kind of serious role in scrutinizing and holding the government to account or constraining the prime minister, especially in committees;

–       the power of the government to unilaterally alter the schedule of opposition days to interfere with the opposition’s ability to raise important issues and to withdraw its confidence in the government when it desires;

–       the power of the prime minister to declare what does and does not constitute a vote of non-confidence;

–       the ability to prorogue Parliament to postpone confidence votes or shut down parliamentary scrutiny; and,

–       the ability to secure an early dissolution to avoid confidence votes, shut down parliamentary scrutiny or to secure snap elections when it appears favourable for the government to do so.

In failing to invest these powers concretely in the House we weaken its ability to fulfill the role of scrutinizing the government and extending and retracting its confidence in the government as it sees fit. Instead the prime minister is able to dissolve or prorogue Parliament at his or her discretion as well as to decide when the government has lost the support of the House of Commons. While these powers are formally assigned by the constitution to the Governor General, in the Canadian experience the Governor General has accepted the prime minister’s advice on these matters with only a single exception in 1926, an exception that is disputed as a constitutional precedent.

The concentration of those powers in a single individual does not belong in a robust democracy.

Relying on the personal discretion of an unelected Governor General to constrain a prime minister from abusing those powers is an equally problematic solution given the high level of disagreement on our constitutional conventions for determining what the Governor General should or should not decide and under what conditions.

The principle is that neither the prime minister nor the Governor General should decide: the House must decide. These issues take us to the very heart of whether the House still matters and what its role should be.

This is not the only area where a failure to keep the ground rules of Canadian democracy up to date has led to political controversy. For the second time in as many elections the absence of basic rules for leaders debates in election campaigns has led to a controversy over who should be able to participate and under what conditions.

While the issues are clearly distinct, the result is the same in both. Our failure to specify clear basic rules in advance leads to important democratic decisions being made on an ad hoc basis often in the middle of a campaign or political crisis. In these scenarios, decisions are left to people with heavily conflicted interests in privileged positions – the broadcast consortium and the prime minister, respectively – and in the midst of confusion and disagreement. In either case, there is no room for such a precarious approach to democratic institutions.

In our book, we propose a three-part reform:

–       that the term of Parliament be fixed at four years – that is, that elections occur every four years on a specific date unless a majority of two-thirds of MPs approve a motion to dissolve Parliament for a new election. This would remove the virtual right of the prime minister to call an election whenever he or she wants, even after the loss of confidence of a majority of MPs;

–       the adoption of a so-called “constructive non-confidence” procedure. Under this procedure, the opposition can only bring down the government via an explicit motion of non-confidence that also identifies the member who would replace the prime minister and would form a new government that has the support of a majority of MPs in the House. The motion must be supported by a simple majority of MPs. This would eliminate the power of the prime minister to dismiss some votes as not actually withdrawing confidence and make clear that we could change governments between elections; and,

–       that the consent of a two-thirds majority of the House of Commons be required to prorogue Parliament, so as to restrain a prime minister of a minority or majority government from shutting down Parliament to escape scrutiny.

These reforms would entrench power with the people’s democratic representatives and bolster the role of the preeminent democratic institution in our parliamentary democracy: the House of Commons.

The most effective means of enacting these reforms would be formal constitutional amendments to remove the Governor General’s powers for prorogating and dissolving Parliament and to establish these new processes. The failed fixed election dates law makes clear the inadequacy of legislative amendments to reform constitutional conventions when the powers of the Governor General are not restrained or removed.

Of course, there is little appetite for “opening the constitution”. Canadians’ assumed collective fear of constitutional changes has become an impediment to democratic reform. An alternative would be to articulate the processes in a formal government document, as was done in New Zealand’s Cabinet Manual and is now being done in the United Kingdom, and to seek explicit agreement of the relevant political actors that the provisions be respected as convention.

If this approach were taken it must be made clear that these procedures would not be mere “guiding principles,” but carry expectations as binding processes by, and on, all political participants – especially prime ministers. While this would not remove the Governor General’s powers, the document would enunciate what is deemed to be convention for the use of the Governor General in responding to requests (or demands) from a prime minister seeking to override the articulated processes.

The failure of Canada’s political parties to advance a concrete comprehensive reform agenda is nothing less than astonishing. For one, there is widespread agreement that the centralization and abuse of these powers are not recent phenomena, but rather a longstanding problem. Second, we have experienced an even greater concentration of these powers under the prime minister and, not surprisingly, a greater misuse of these powers for partisan purposes compared to other Westminster systems like New Zealand or the United Kingdom who have taken concrete steps to address the situation.

The concentration of those powers in a single individual does not belong in a robust democracy. Democratic reform is long overdue.

The proposals we put forward are of course far from the only reforms available for bolstering our democracy. Many commentators and other individuals and groups have their own preferred reforms measures, such as electoral reform. The merits of each of these can – and should – be debated in terms of how parliamentary democracy is to be improved.

In the absence of a comprehensive plan for democratic reform, four questions should be asked of any piecemeal reforms proposed by any of the parties during or after the campaign:

1) Is there a clear, unambiguous stated intention attached to each specific reform that would enhance robust democracy under the parliamentary system while fully accepting the partisan basis of parliamentary democracy?

2) Do the specific reforms rely too much on prime ministers acting in good faith or upon public opinion as a deterrent, leaving loopholes?

3) Is there a clear mechanism of enforcement by the House of Commons?

4) Do the reforms proposed cement the power of the House in both minority and majority settings?

We should all be skeptical of any reforms that fall short on all, or any, of these questions.

Mark D. Jarvis is a doctoral candidate at the University of Victoria and co-author with Peter Aucoin and Lori Turnbull of Democratizing the Constitution: Reforming Responsible Government, forthcoming later this spring from Emond Montgomery Publications. You can find more information about the book here:

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