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Parliament: A Broken Institution

Under the constitutional convention of responsible government, the government (the executive) is accountable and responsible to the Parliament of Canada. Yet the Canadian Parliament, including all of its constituent elements, is failing miserably in its constitutional obligation. My observations are institutional, not partisan nor personal. The problems are systemic and endemic; ironically, the only institution with the authority to remedy this glaring democratic deficit has no incentive to do so.

The current Conservative government treats Parliament as an inconvenience at best and with contempt at worst. The current executive routinely shuts down debate by implementing time allocation (it has imposed strict time limits on debate seventy times since the last election); it has prorogued Parliament to avoid a confidence motion it was sure it was going to lose, shut down a parliamentary committee investigating the transfer of Afghan detainees without obtaining assurances against torture, and to avoid, for over a month, answering awkward questions regarding the PMO involvement in the Senate Expenses Scandal. Finally, in 2011 the government was found in contempt of Parliament for its refusal to provide detailed cost estimates for hosting the G20 Summit and the cost of purchasing new fighter jets to the parliamentary committee studying the matter.

Amazingly, the government was not even embarrassed by being held in contempt of Parliament. In the election that followed Parliament’s loss of confidence in the government, the Conservative Party of Canada (CPC) argued its detractors were playing partisan games and were conspiring to form a coalition government. As a result, the Conservative government was rewarded with a majority mandate by the electorate!

The current government, somewhat reluctantly, acknowledges Parliament as a legislative body with lawmaking authority. But to the greatest extent possible, it prefers to run all aspects of Parliament rather than be accountable to it. The current government prefers to govern by Order-in-Council and executive edict as opposed to having to answer to an occasionally meddlesome Parliament.

As a result, the executive has so neutered the institutions of Parliament as to render them nearly impotent, practically unable to fulfill their constitutional duty to hold the executive to account. Any Ottawa insider will verify that almost nothing goes on in the Parliamentary Precinct without the Prime Minister’s Office’s knowledge, consent, and, increasingly frequently, direction.

Executive control and interference has converted all of the major components of the Parliament of Canada, changing them from serving as meaningful checks on government power to serving as placators, complicit in the government agenda The institutions of Parliament, which are failing Canadians in holding government to account, are the House of Commons, the committees of the House of Commons, the government caucus, and the Senate of Canada.

Constitutional expert Peter Russell once famously wrote that a Canadian prime minister with a majority mandate is like a U.S. president without a Congress.[1] Sadly, that is true; a prime minister who can control all of the Parliamentary Precinct can govern without being answerable to any of the constitutional checks and balances on prime ministerial authority. A prime minister in such an enviable power position will treat Parliament as a rubber stamp for his agenda, rather than a constitutional check on his government’s power.

1. The House of Commons

Those who advise the Crown must command the support of the democratically elected chamber. The lower house, the House of Commons, is the democratically elected chamber and it is, in theory, the primary body in holding the government to account. In sad reality, the House of Commons serves as a rubber stamp for a majority government’s agenda.

A House of Commons has existed since the thirteenth century when, following the signing of the Magna Carta, King John consented to submit his requests for increased taxes to an elected assembly. This elected legislature was designed specifically to represent the citizen taxpayers and provide a check against the Crown’s insatiable appetite for more taxes. Eight hundred years later, these constitutional requirements still apply — the Crown (the executive) cannot spend money that Parliament has not approved. Money bills must be introduced in the elected House of Commons, not in the appointed Senate. No private MP can introduce a bill or initiative that requires the Crown to commit funds without the express approval of the government or a royal recommendation.

However, the House of Commons, especially one in a majority setting, has long abandoned assigning any value to its role of serving as a check on government spending or of vetting proposed government initiatives or legislation. There is a simple reason why this is the case: the members of the governing caucus think of themselves as part of the government, rather than a check on the government. They refer to the government using pronouns like “we” or as “our government.” They go home on weekends armed with talking points and prewritten op-ed pieces to submit to local newspapers praising the government’s performance and virtue. They show up at government-funding announcements in their ridings (or in nearby ridings if the riding is not served by a member of the governing caucus), often with oversized novelty cheques (sometimes bearing the party logo) bragging and taking credit for the pork that has just been delivered.

These MPs are of no value in holding the government to account; they consider themselves to be part of the government. They do not even pretend to be a check on the government. On a good day, they are cheerleaders for the government; on a bad day, they are government apologists. On all days, they are part of the communications machinery of government, as opposed to critical reviewers of government proposals. And nowhere is this dereliction of duty in providing a check on government more evident than in the daily proceedings of the House of Commons.

The majority of the House of Commons’ day is spent debating government bills. The remainder is spent debating and voting on Opposition bills. One hour each day is reserved for debating private member bills or motions. However, most of the “debate” and all of the “votes” are so closely monitored, and, when necessary, orchestrated, by the Prime Minister’s Office that any separation between the executive and the legislative branches is purely illusionary. Government backbenchers are encouraged to deliver speeches in favour of government legislation and in opposition to Opposition motions (unless of course the government supports the Opposition motion, in which case its backbenchers are expected to do likewise). Almost all members read from prepared text. The PMO prefers this method; freelancing might result in someone going off script. The department sponsoring the government bill, or potentially affected by an Opposition motion, will prepare speaking notes or complete canned speeches. Members of Parliament uncomfortable with the role of actor, reading the playwright’s script, are encouraged to vet their own proposed comments with the designated government point person.

The entire process is a farce and resembles less of a debate than it does bad theatre. Not infrequently, a compliant parliamentarian will read a prepared text on a topic he or she is mostly unfamiliar with; that talk will be followed by a member from another party doing exactly the same thing, although staking out a different position. On several occasions, as a member of the Conservative caucus, I was handed a canned speech mere minutes before I was asked to present it, as the planned speaker had somehow been delayed. Literacy skills have replaced debating skills in what passes as a debate in the House of Commons.

It is almost unheard of for a member to address points raised by the previous speaker, which real debate would require. This is the obvious limitation of any “debate” advanced by prepared text, written by staffers, days before the “debate” has even commenced.

Eventually, the debate will collapse when there are no more speakers rising to participate or, more than likely, after the government has expedited the process by introducing a time allocation motion limiting further debate to a specified number of hours or days. Both the time allocation motion and then the vote on the merits of the bill or motion will be whipped. The party whips will produce voting instructions and actual instruction sheets will be distributed by parliamentary pages and placed on the desks of the elected MPs.

This is what parliamentary democracy has devolved into: elected MPs being issued voting instructions. So disengaged are many MPs that I have actually witnessed members confused as to what the current vote was and what the whipped party position was when multiple deferred votes are being taken. Too many times I have heard a disengaged member inquire of his or her neighbour: “Which vote are we on? We’re voting ‘yea,’ right?”

I am ashamed to disclose that your elected MP is frequently so disengaged that he is not only reliant on his party whip for his voting instructions, but quite possibly will also need to be coached by mates only slightly more engaged in the process.

Elizabeth May, then the sole Member of Parliament representing the Green Party, tells the story of MPs of various party affiliations inquiring of her as to how she decides how she is going to vote on any particular bill or motion. She replies that she reads the bill, studies it, consults with her constituents, sometimes asks questions of the sponsor, and then comes to her position. Incredulous, MPs from other parties exclaim about how labour intensive that must be and how much easier it is to simply follow the voting instructions provided by the party whips! Undoubtedly that is true. However, I believe most constituents would be shocked to discover that their elected representatives are voting automatons, often too disengaged to even follow what item they are voting on.

I do not mean to be too critical of the whipped party voting machine. Given the complete lack of efficacy of the individual parliamentarian in having any input into, let alone impact on, a process completely dominated by government and party operatives, they cannot be overly blamed for losing interest and becoming disengaged.

Of course, there is nothing particularly new about whipped votes per se. Whipped votes on matters of confidence are as common, and have existed for as long as there have been parties in Parliament. However, as with all matters regarding the erosion of parliamentary democracy and responsible government, it is the increased use of whipped votes that should concern defenders of democracy.

The Reform Party, and its successor, the Canadian Alliance, had a party policy of free votes. The original constitution of the Conservative Party of Canada promoted free votes, except in matters of confidence, budget votes, and votes on the expenditure estimates. After the 2008 CPC convention in Winnipeg, the words “and core government initiatives” were somehow added to the list describing the exceptions to the free vote presumption, although no one that I have talked to can recall that matter ever being debated or voted on. Regardless, that addition has allowed the government whip to declare essentially all matters as core government priorities, and, as a result, every vote on every government bill or motion is now a whipped vote.

This now even applies to procedural motions such as time allocations. This change surprised me when I was a member of the CPC caucus, because I am unfamiliar with any party policy priority, much less any key one, that states the Conservative Party of Canada will place limits on debate on non-urgent matters and use its parliamentary majority to suppress the democratic process.

As difficult to accept as these changes are, it is the expansion of the whipped vote to include private member’s business that even many loyal partisans find particularly odious.[2] For centuries, it was the prerogative of a Member of Parliament to forward a legislative bill or motion and have it adjudicated by his or her parliamentary peers without the meddling of the party leadership.

This is traditional and logical. By definition, a matter cannot be a core or key government or party priority if the government has chosen not to table a bill or motion on that particular subject. Accordingly, it ought to be open to private members to put forward a policy idea where the government has chosen not to.

There are many examples to demonstrate that the party leadership will not allow private MPs that privilege. On June 5, 2013, Conservative members of the Standing Committee on Access to Information, Privacy, and Ethics were whipped into eviscerating C-461, a private member’s bill (which I sponsored) that would have allowed for specific salary disclosure for senior levels of the federal public service. The bill had widespread support in the CPC caucus until the government objected to allowing the public access to how much it is paying its senior people and disclosing how many civil servants were earning generous (six figure) performance bonuses.

When the government is able to whip its members to vote against a private member’s bill, predominately supported by those members, the government’s control over Parliament is complete. In the process, Parliament has surrendered its ability and role in holding government to account.

The focal point of the House of Commons’ day is between 2:15 and 3:00 p.m. Eastern Standard Time (11:15 a.m.–12:00 p.m. on Fridays). That is the holy grail of holding government to account: Question Period. QP is the forty-five minute period in the day when the House of Commons asks the executive to explain and defend its actions.

Although many commentators correctly observe that answers are provided only when the government wants to provide them, and that there are no rules against refusing to answer a question, making up your own question and then answering it, or uttering incoherent nonsense, eventually, with enough media attention, the government will pay a political price if it routinely attempts to evade important questions or to obfuscate when asked to defend its actions. For forty-five minutes, the Opposition is actually afforded a purposeful opportunity to live up to the expectations of holding government to account.

But holding government to account is Parliament’s prerogative; it is not the exclusive role of the Opposition. Accordingly, backbench members of the governing party are afforded three questions per day. Recalling that the current government prefers its backbenchers to be an extension of its Communication Branch, rather than to ask actual questions that might have the potential to embarrass the government, it is little wonder that these questions are scripted, planted, and designed exclusively for the purpose of allowing the government to get some message out.

“Mr. Speaker, the government just yesterday completed a historical trade deal with Country X. Can the hard-working Minister of International Trade please advise the House as to what this deal will mean for Canadians in terms of jobs and economic growth?”

It is not so much a question as an infomercial.

Even more egregious, planted questions will frequently be used to attack a member of the Opposition. “Mr. Speaker: yesterday the Leader of Party Y mused about legalizing small amounts of marijuana (or criticized ‘our’ government’s minimum mandatory sentences); can the Minister of Justice please tell this House why Party Y’s soft-on-crime policies are bad for law-abiding Canadians?”

Such a question should be disallowed. Commenting on somebody else’s statement or policy has nothing do with government business or policy; therefore, this type of “question” has no place in the forty-five important minutes allotted to the House to hold the government to account.

The use of government-planted questions from backbenchers is infantile, giving governments self-serving, leading opportunities, and allowing them even more avenues to practise their talking points. But worse, this practice denies the House of Commons three actual questions every day. That’s fifteen opportunities per week to hold the government to account squandered, in favour of self-serving blather. However, if it were ever proposed that the governing party lose the right to ask puffball questions during Question Period, rest assured the government would aggressively defend the practice, hypocritically citing the important role of the backbench MP as a justification for planted question continuation.

The fifteen minutes prior to Question Period are reserved for members’ statements. A time-honoured tradition, Standing Order 31 allows private members, members who are not part of the executive council, to speak on any topic for up to sixty seconds. Traditionally, the period has been used for members to congratulate a local sports champion, honour a milestone birthday of a local volunteer, or eulogize a local philanthropist.

However, in the last few years, all parties have decided to politicize the members’ statements (colloquially referred to as an SO 31). Generally, up to a third of these SO 31s will be used to attack an opposition member, or policy, or make a self-serving, free-standing political announcement. Countless CPC members’ statements refer to the supposed NDP $21 billion Carbon Tax. The Opposition is no better, with the leadership encouraging its members to use their infrequent members’ statements to chastise the government for its alleged complicity in the Senate Expenses Scandal.

Again, diverting members’ statements away from their intended purpose is an attack on the few rights that private members maintain. Sadly, members anxious to gain favour with their party leadership are only too happy to participate in this political manipulation of Standing Order 31. But it is the government and opposition party leaders’ vetting and approval of members’ statements, prepared by the members themselves, that is truly compromising members’ rights and establishing them as subservient to their leadership.

However, in the spring of 2013, there was a well-publicized and rare display of an MP standing up for himself. The MP for Langley raised a point of privilege, arguing that his rights as a Member of Parliament had been infringed upon in that he was denied his apportioned slot for an SO 31 member’s statement because the “topic had not been approved.” Without naming specifically who did not approve his member’s statement, Mark Warawa correctly stated that it is only the Speaker who can reject an SO 31. Standing Order 31 states: “A Member may be recognized, under the provisions of Standing Order 30 (5), to make a statement of not more than one minute,” and that “the Speaker may order a Member to resume his or her seat if in the Opinion of the Speaker improper use is made of this Standing Order.”

The practice of members submitting their proposed members’ statements to the House Leader’s Office for vetting has developed lately, and, strangely, it has for the most part gone unchallenged, at least on the government side. Why private members would require the approval of the executive is a mystery, but it is further evidence of party leadership micromanaging MPs and converting them from watchdogs into cheerleaders.

According to the rules, only the Speaker can determine if the contents of a proposed SO 31 are inappropriate or if the statement exceeds the allotted one minute. The rules are there to protect the integrity of the House and the rights and responsibilities of its members. Neither private members’ motions nor bills nor SO 31s are the prerogative of the whips or the House leaders; they are the prerogative of private members. The government controls so much of the parliamentary procedures and calendar, it is imperative that private members stand firm on defending the few rights and opportunities we maintain to raise matters of importance to our constituents.

Sadly, it is through blind ambition that MPs have, for the most part, allowed themselves to become puppets of their party leadership rather than using the rare opportunity to ask a question during Question Period or give an unvetted member’s statement, holding the government to account and representing their constituents, respectively.

The final topic to be canvassed regarding a change in Commons’ procedure that has allowed the government to compromise the House’s ability to force accountability is the government’s increasing reliance on omnibus bills and, more recently, omnibus motions.

The House of Commons is supposed to vet, scrutinize, and, theoretically, improve government legislation. That becomes impossible when the government submits omnibus bills (lengthy bills containing changes to legislation in disparate areas). Time allocations, implicit in the standing orders or imposed by motion, provide inadequate time for MPs to scrutinize complex and lengthy pieces of legislation. The government understands this and submits such bills deliberately.

The most egregious recent example of an omnibus budget bill was the Budget Implementation Act of 2012,[3] which came in at over 1,100 pages. The bill had many non-budgetary items attached to it such as changes to the environmental assessment process.

Invariably, an omnibus budget bill will contain multiple wedge issues, which make it difficult for the opposition parties to vote against the legislation without also voting against a part of the bill that they otherwise would have supported. This kind of packaging allows the cabinet to gleefully point out in Question Period every time the opposition votes against a specific line item in the omnibus budget.

For example, if a question arises concerning the care and treatment of injured war veterans, the minister will take great delight in pointing out that the last budget bill contained a $x increase to the Department of Veterans Affairs, but the honourable member asking the question voted against it. Although that might be true, the MP only did so because he or she was wedged; he or she was not voting against the increase to the department or program under consideration but was voting “no” to the government’s spending plans in their entirety.

In order to properly hold the government to account, it is necessary to break omnibus bills up into logical, bite-sized pieces. Doing so allows them to be properly vetted and then voted on individually rather than as part of an unmanageable package

More recently, we are beginning to see omnibus government motions also. In the first week back following prorogation in the fall of 2013, the government House leader introduced a single motion combining such completely unrelated concepts as: the reformation of parts of the MP expense regime, the restoration of the Special Parliamentary Committee on Missing and Murdered Aboriginal Women, and, notably, the restoration in its entirety the government’s legislative agenda to the stage that it was at prior to the government’s decision to prorogue. So, in order to vote for the continuation of a critical special committee engaged in an important study, the members were wedged into allowing the restoration of the government’s legislative agenda, notwithstanding the longstanding rule that government bills die when the government opts for prorogation.

The government should not be allowed to package such unrelated concepts. In fact, in at least one instance the Speaker actually ruled in favour of an NDP request for partial severance. However, the growing reliance on long, disparate omnibus bills and motions is clearly a deliberate and calculated attempt by the government to prevent the House of Commons from holding it to account.

2. Parliamentary Committees

Committees of the House of Commons have traditionally played an important role in the vetting and improving of the legislation referred to them. Many committees of the House have worked together to improve and tweak legislation passed in principle by the entire House of Commons at Second Reading.

However, currently, the House committees have become so politicized that they have become completely useless at vetting or improving legislative initiatives. The committee process has been completely commandeered by the executive, most notably by the Prime Minister’s Office.

Perhaps the clearest example of this is the above-referenced case of interference by the PMO and the minister of justice with the Access and Privacy Committee regarding PMB C-461, the private member’s bill I introduced dealing with public sector salary disclosure. The government decided it was opposed to allowing the public access to such information and the PMO instructed compliant members of the committee to gut the bill.

The committee performed a charade in which they pretended to study the legislation. Not a single witness who testified was in favour of raising the salary disclosure bar. Regardless, amendments were proposed to raise the bar to a level that would ensure it would apply to no deputy minister, and then, without any debate on the amendment, compliant members of the committee did the PMO’s bidding.

How is it possible that such a well-orchestrated political manoeuvre can be executed? It is the result of a little-known process not established by the standing orders, regarding committees: the pre-committee meeting. It is at the all-important pre-committee meeting that specific decisions are conveyed to the members of the caucus sitting on a specified committee. All concerns are addressed and the instructions are made clear by executive staffers to the elected committee members.

No detail is left to chance; the entire committee process is managed by executive staffers from the minister’s office affected by the proceeding. When ministerial staff run into logistical problems that they have insufficient clout to resolve they call for back-up heavies from the PMO. Even the questioning of witnesses is decided on by executive staffers — they provide “suggested” questions for the use of the members when posing questions during committee hearings. If the minister is the witness, there is nothing “suggested” about the questions distributed to committee members — the distributed questions are scripts that are to be followed to the letter.

Similarly, decisions regarding amendments proposed by Opposition members are discussed, and a designated MP, generally the parliamentary secretary, will be provided with speaking notes as to why an opposition amendment is inappropriate and why the government members will not support it.

I used to pride myself on my ability to cross-examine hostile witnesses at Justice Committee meetings (that is, witnesses not supportive of the proposed government legislation). Although limited by strict time limits (often five minutes), I was nonetheless frequently able to poke holes in the witness’s analysis or point out contradictions. However, I eventually learned that my contributions were not appreciated. As the hearings are a sham and voting instruction are determined by executive staffers prior to the commencement of the hearing, nobody really cares what evidence comes out or how it stands up to cross-examination. The entire process is a farcical show. Accordingly, the executive staffers would prefer it if members simply lobbed softball questions to supportive witness, rather than giving any more of the committee’s limited time to unsupportive witnesses.

The entire committee process is micromanaged by executive staffers to the extent that the committee members are often little more than their puppets. As a result, there is no separation of powers between legislative committees and the executive.

In April 2013, in an extraordinary meeting of the sub-committee of the Procedure and House Affairs Committee (PROC), which deals with the votability of private members’ bills and motions, the sub-committee was considering Motion 408. M-408 would have condemned discrimination against females through sex-selective pregnancy termination. As is the procedure for vetting the votability of such bills and motions, the committee relies on the expert advice from an analyst regarding the constitutionality (both jurisdictional and Charter compliance)of an issue and whether the matter is redundant.

On these points, the analyst stated clearly his determination: “It is within federal jurisdiction. It does not offend the Constitution, and there’s no similar motion currently on the Order Paper.” In other words, the motion was, in the view of the non-partisan analyst, entirely votable.

After a couple of clarifying questions for the analyst, the Conservative member of the committee moved that “Bill C-408 should not be deemed vot[a]ble because it does not meet these two criteria.” This motion was carried unanimously without any further discussion. So, with swift adjudication, Motion 408 was dead, prevented from being debated and voted on in the House of Commons.

What is disturbing about this, firstly, is the haste and carelessness with which the motion was dispatched. The mover of the motion three times referred to it as a bill, when, in actuality, M-408 was a motion. This is more than mere nitpicking; the analyst clearly pointed out in his analysis that the standard of review is different for bills than for motions. Because motions are not binding and do not invoke statutory rules, the test is relaxed slightly.[4] So, any misunderstanding of what the committee was considering was most relevant.

But what was more disturbing than the committee’s haste was their apparent disregard for the rights of the private MP. Private members may bring matters of importance up for debate in the form of motions or bills. In a parliamentary calendar largely comprised of government business, subject to rules and a lottery that determines precedence, this is the most significant tool a private member maintains.

Undoubtedly, the issue of pregnancy termination is a subject that makes some MPs uneasy and most party leaders nervous, but that is entirely irrelevant. If members are opposed to a motion, they can vote against it. If leaders are strongly opposed to it, they can use moral suasion, or, more likely, whip their caucuses to vote against a motion. But to essentially censor a motion right at the gate, against the advice of an independent analyst, is heavy-handed and, I would suggest, contrary to the expectations of constituents, who rightly believe that their MPs have a voice and can represent them in Ottawa.

Predictably, a subsequent appeal to the entire PROC Committee was conducted in camera (i.e., privately) and purportedly summarily dismissed. By moving the vote in camera, the government ensured that the public would not know what, if anything, the committee considered before dismissing the appeal. This is a disturbing trend: moving the operation of committees in camera, preventing scrutiny of how Parliament operates. It requires majority support to move a matter in camera; the members of the majority government caucus can, when convenient, vote to move a motion away from the prying eyes of the public and the media.

As well as moving inconvenient committee discussions in camera in order to avoid the glare of publicity, the government has also taken to attempting to control — to the point of preventing it — committee work that it takes exception to. At a Justice Committee meeting in the winter of 2013, the NDP justice critic put forward a perfectly reasonable motion, requiring that the committee conduct a study regarding a whistle-blower’s allegation that the minister of justice was not vetting government legislation for Charter compliance before tabling the legislation, as required by statute.

This was, in my view, a serious allegation, especially given the growing number of the government’s tough-on-crime bills that had been struck down by the courts for being in violation of some Charter-protected right. I was not satisfied by the assurance given me by the parliamentary secretary to the minister of justice that all proposed legislation was indeed being properly vetted. She described some vague process that was being followed, which did not seem particularly similar to the very specific process prescribed and allegedly not followed according to the whistle-blower’s assertion.

However, the government, apparently not believing it was answerable to the committee, and certainly not to the NDP justice critic, instructed its majority on the committee to vote the motion down. Given the serious nature of the allegations, and since I was not feeling particularly compliant that day, I suggested that Ms. Boivin table her motion for forty hours (until the next meeting) to allow me to do my own research and allow the parliamentary secretary the opportunity to provide a more credible assurance that the government was, in fact, living up to its statutory Charter-vetting obligations.

I have never in my professional life caused such chaos or such a ruckus! Multiple staffers were literally running in and out of the committee room. Blackberries were buzzing constantly, as the executive staffers tried to figure out what the hell was going on. Did a backbencher just vote to hold over a motion potentially embarrassing to the justice minister rather than vote it down as instructed? This may have been precedent setting: a Conservative backbencher looking for assurance that the minister of justice was complying with the law!

The entire process concluded with an invitation to attend the principal’s office (that is the office of the chief government whip). I was, not so subtly, reminded of the expectations of me as a member of the team. Shortly thereafter, I was transferred off of the Justice Committee, albeit largely for reasons unrelated to my above attempt to hold the government to account and in compliance with the law.

3. The Caucus

I suppose that if there was a criticism of my performance as a member of the Conservative government caucus it was that I was not a team player. If my critics equate being a team player with being a government cheerleader, I concede the point.

Now, within caucus, there are obviously differing understandings of this role both in concept and in application. There are those who believe members, owing their election to the party and the party leader, are essentially an extension of the Prime Minister’s Office Communications Branch. Proponents of this model believe it is the purpose of MPs to read prepared lines in the House and then return to the ridings on break weeks to continue the selling of the government’s messaging. Any straying from approved communication lines is viewed as going rogue.

When I served as a Conservative MP, I took a more nuanced view of my role as a backbench caucus member. As a member of the government caucus, I was loyal to the party and to the leader, under whose banner I was elected. Accordingly, I felt obliged to support the government’s legislative agenda and I believe my voting record reflected consistency in that regard. However, supporting the government does not, in my view, necessitate blindly and mindlessly supporting everything the government says or does.

In my view, the constructive criticism of government initiatives is not the equivalent of mutiny, or even disloyalty. Quite the opposite actually; sycophants and yes-men are certainly less valuable to a government’s performance than constructive critics who demonstrate their loyalty by challenging the government to continually perform even better. Whereas a yes-man will continue to cheer blindly even as it becomes obvious that a policy is going off the rails, the constructive critic, not shy of speaking truth to power, will advise his caucus colleagues of the proposed policy’s shortcomings in order that improvements can be made — changes that will ensure that the final policy is sound. In so doing, he demonstrates his loyalty to his party and his government.

Traditional caucus loyalists believe that all differences between caucus members ought to be resolved in caucus behind closed doors; once a position is determined, the party leaves the caucus room united and singing from a single song sheet. It all seems perfectly reasonable; however, as appealing as in camera discussions might be for those concerned only with the party’s interests, they do absolutely nothing to promote the public interest. When a decision is under consideration behind closed doors, it is inevitable that political ramifications will also be under consideration. How will this initiative be viewed by the base? How will the voters react in the strategic swing ridings? How will the party’s fundraising be affected?

These partisan considerations might be extremely important to party operatives, but they are of absolutely no relevance to the taxpaying constituents that a Member of Parliament is supposed to be representing. In order to ensure that it is the public’s interests rather than the party’s interests that are being considered, transparency demands that important matters be decided in public.

A public discussion of the issues would ensure that the points of view of the various stakeholders are heard and considered. Such is certainly not the case in a typical CPC caucus meeting, which in fact barely qualifies as a meeting. The process is completely controlled by the party leadership and more closely resembles a briefing than a meeting. There are no motions; there are no votes. There is no Roberts Rules of Order.

Caucus members do receive updates, and they hear from the prime minister how great they all are and how Canadians trust only them to manage the country, especially the economy. To remove any doubt, caucus members are provided talking points, canned stump speeches, and sample letters to the editors of local newspapers, all designed to reinforce the government’s messaging and the caucus member’s role in distributing those communications to his or her constituents.

Members are briefed about the government’s plans and proposed legislative initiatives. However, these plans and initiatives are often news to the caucus members as, frequently, no notes will have been distributed in advance to provide background. That deficiency significantly compromises the caucus members’ ability to ask researched or meaningful questions.

More problematic, no votes are ever taken inside the government caucus room. A minister will brief the caucus concerning a legislative initiative she intends to introduce. She will take questions and will attempt to provide clarification and satisfy concerns caucus members may have. But the government bill will not formally (or informally) be approved by the caucus. Caucus members will subsequently be whipped, or instructed, to support a bill or motion that they have had the opportunity to discuss but have never had the opportunity to approve.

An Opposition motion or bill will similarly be presented to the caucus. The government will state its position; there will be a discussion of it and the opportunity to ask questions. But no vote will ever take place. Caucus members will be expected to follow the government’s position regarding the proposal but will never have the opportunity to ratify that government position.

This is very different from situation that existed in the provincial Progressive Conservative caucus of Ralph Klein, which I had the pleasure of serving in from 2001–2004. Premier Klein ran what at least approximated a democratic caucus. No legislative proposal could make it to the floor of the Alberta Legislature without first having been vetted, then supported by an actual vote at a standing policy committee of the caucus and finally by a show-of-hands vote at a full caucus meeting.

The party whip would ask for a show of hands on all matters before the caucus. If the result was not obvious, hands would remain up until a formal count could be taken. If a minister’s recommendation was defeated, the minister could tweak the proposal or remedy the defect and bring it back for approval, but nothing made it onto the floor of the legislature without caucus approval.

I was able to use that democratic vetting process in 2003 to delay radical changes to Alberta’s automobile insurance regime for over a year. In a well-publicized display of democracy in action, Finance Minister Pat Nelson had to modify her legislative proposals, which capped injury claims, several times. It was not until she changed the legislation to include public consultation and a mandatory legislative review in the future that the bill received the requisite caucus support and could proceed to First Reading in the Alberta Legislature.

There is no comparable vetting or approval process in the caucus of the Conservative Party of Canada. In a partial, but woefully inadequate, attempt to remedy this defect, the government established Caucus Advisory Committees (CACs) several years ago. The CACs are comprised of the caucus members who are assigned to various committees; other caucus members may attend, but the schedules are not published.

The aptly named advisory committees are briefed on imminent legislation initiatives and can ask questions and provide input. Informal votes are sometimes taken, but these are completely non-binding on the minister — a fact that perfectly illustrates the focus-group relevance of the CPC caucus including the CACs. For example, the Justice CAC unanimously approved salary disclosure, in PMB C-461 (also known as the CBC and Public Disclosure Act), at $188,000. However, the committee’s approval of this bill did not prevent the executive from instructing the evisceration of the CBC and Public Disclosure Act at the Access and Ethics Committee. As with all other aspects of their role as members of that caucus, MPs are expected to willingly and unequivocally follow the will of the party leadership.

As a result, the government caucus plays no meaningful or substantive role in holding the government to account.

4. The Senate

On Tuesday, March 05, 2013, the House of Commons was debating an NDP Opposition day motion seeking to abolish the “chamber of sober second thought” (the Senate). They cited recent well-publicized allegations against specific senators as a rationale for mothballing the $92 million upper house. I listened intently to their argument, but was not remotely persuaded, save to the extent that recent developments reinforce the need to reform the Senate.

Firstly, every institution has members who have fallen beneath the standard expected of them. All professions — physicians, lawyers, businessmen, and clergy — have had members fall from grace; yet we do not abolish their important institutions. Members of Parliament and members of provincial legislatures, past and present, have been, and are, embroiled in ethical and even legal quagmires. In the end, senator misconduct is not a good argument in favour of Senate abolishment. The institution is bigger and more important than the individuals who comprise it.

Secondly, the Senate serves a useful, although frequently misunderstood, purpose. The Senate does in fact provide a deliberate and thoughtful second look at legislation that was inadequately vetted by the House of Commons. A recent example was PMB C-290, dealing with single-event sports betting. The bill seemed straightforward: it would allow casinos to take wagers on single games — currently they will only accept bets on multiple games, to prevent against game fixing, something that has become a problem in European football matches.

The House rushed the bill through, as it had bi-partisan support. At the Senate hearings, however, it was discovered that all the major professional sports associations were vehemently opposed to the legislation. Paul Beeston, president of the Toronto Blue Jays, went so far as to opine that expansion of minor league professional baseball in Canada would be compromised if the bill became law. The Senate correctly put the brakes on potentially damaging legislation until more information could be obtained and important questions answered.

Although unicameral legislatures do exist in modern democratic states, they are certainly the exception, not the norm. The democracies of Scandinavia, New Zealand, and Singapore all have single houses. But the United States and most Commonwealth countries have bicameral legislatures, designed specifically to provide checks and balances, allowing reconsideration of inadequately vetted legislation in a manner similar to the incident cited above where brakes were put on the gambling legislation.

Ironically, the Senate sometimes comes under attack for doing its job. In fact, the Senate usually comes under criticism when it actually amends legislation approved by the democratically elected House. Critics argue that an appointed body has no legitimacy in overriding an elected body. However, as we saw with the case of the single-sport betting bill, hastily approved by the House of Commons but opposed by all professional sports associations concerned by match fixing, the Senate attempted to improve the legislation and fulfilled its constitutional obligation by applying the brakes to the bill and ordering protracted study and hearings.

Constitutional experts cite the potential for gridlock between chambers and the slowing down of government reforms as negative bicameral side effects. The cynic in me suspects that is the real reason the NDP supports Senate abolition. If they ever form government, they might find the upper house unsympathetic to an aggressive socialist agenda.

The framers of the U.S. Constitution, in published papers, were most mistrustful of unencumbered power. Madison further warned of the “fickleness and passion that could absorb the House.” Accordingly, they designed a system that separated the executive from the legislature and then further divided legislative powers into a House and a Senate. The drafters believed that the different houses would represent different interests. Whereas the British House of Lords was designed to represent the aristocracy, the U.S. Senate was designed to promote regional representation. Accordingly, the Constitution provided for two senators from every state of the Union with terms much longer than House members. Prior to the Seventeenth Amendment, the senators were actually appointed by the state legislatures, thus confirming their role in providing regional representation and safeguarding the states’ rights.

Aspects of both models were incorporated into the Canadian Senate. The British North America Act provided property requirements for eligibility and allows the prime minister to appoint senators, similar to the appointment process for the House of Lords. But the Canadian Constitution also established that each region of Canada would have a specified number of individuals eligible to sit in the upper house. This is borrowed from the U.S. model and reflects the realities of diverse regional interests in a large geographic country such as Canada.

Regional representation is a legitimate priority. However, the Canadian Senate ceased to be a body of regional representation, if it ever was one, decades ago. In the U.S. Senate, senators will frequently break rank with their party to defend a matter of regional interest or protect the state they represent. This is natural, as they will eventually have to face the electorate again. Canadian senators abandon their loyalty to their province in favour of the party that appointed them immediately after having been sworn in. The Senate was designed to provide sober second thought, not to be a warehouse for party loyalists and bagmen.

Accordingly, the chamber needs to be reformed so that senators are elected and accountable to their constituents, not to the party that appointed them.

Defenders of liberty believe that the greatest threat is the concentration of power. The division of powers between the federal government and the provinces and the division of federal powers between bicameral legislatures are both part of a deliberate system of checks and balances to minimize the approval of ill-considered legislation. Parliament exists to hold government to account; an effective Senate is integral to that parliamentary prerogative.

I remain a strong proponent of bicameralism (two houses of parliament), provided that both houses are functional. The current PMO/Senate Expenses Scandal confirms my belief that our system needs more, not fewer, checks and balances on executive power. Bicameral legislatures exist to provide a further check on both government power and the lower house by providing “sober second thought” to the deliberations of the lower, and in Canada the only elected, legislative chamber.

I am also a strong proponent for Senate reform. Although the current problems facing the Senate underline the dysfunctional state of affairs that exists there at present and cause many to support abolition, that option should seriously be considered if, and only if, reform is impracticable. Given the constitutional realities, reform is indeed challenging; however, as abolition is subject to even more onerous constitutional considerations, we should probably be resigned to incremental reform being more likely than abolition.

Potentially, the Senate could have an important role to play in reconsidering legislation improperly vetted by the lower House. Admittedly, it would do so with much greater legitimacy if the senators were elected and therefore accountable to someone other than the political party that appointed them. However, until the Constitution is amended to provide for compulsory, rather than non-binding, advisory senatorial elections, the Constitution Act does in fact give equal status in the legislative process to the Senate as is enjoyed by the House.

Although the Senate was criticized for “gutting” Bill C-377, a trade union disclosure bill, by raising the disclosure threshold, it did not do so with anything close to finality. Amending the bill as the Senate did, parliamentary procedure ensured that the bill would be returned to the House of Commons for further debate and deliberation. It is only when a bill is passed by both chambers in identical form that it becomes law. The title bestowed on the Senate — the “Upper House” — is not descriptive of the the Senate’s role in the legislative process.

Like the judicial branch of government, senators get their legitimacy from the Constitution and the fact they are not elected is immaterial from a legal perspective. However, the appointment process for the Senate is antiquated. It attempts to combine the House of Lords’ concept of protecting landowners’ rights with the American Senate’s attempt at providing representation on a loosely defined regional basis. Only the latter — the defending of regional interests — remains of relevance in a country as large and geographically diverse as Canada. However, if appointed senators exercise more deference to the party that appointed them than to the region or province they represent, their usefulness is indeed questionable.

However, by breaking party rank occasionally, amending flawed private members’ bills and sending them back to the House for further consideration, the Senate did indeed show its value in providing an important check on the House of Commons and in the process also showed that the tools for holding government to account exist should the senators choose to use them.

Amending the Constitution to either elect senators or abolish the entire institution is going to be difficult, if not impossible. Accordingly, any changes that result in a depoliticization of the chamber will effect a noticeable improvement. All too frequently, the Senate caucus is as disciplined and deferential to leadership as the House caucuses. More rubber stamping is unhelpful. Until we are in a position to have actual senatorial elections, democratic reformers will be limited to insisting that future appointments be based on merit, experience, policy expertise, or outstanding achievement in a chosen field.

The greatest factor in our democratic deficit is not the unelected Senate, but the ebbing of power away from Parliament and its concentration inside the Prime Minister’s Office. However, a Senate operating as a PMO branch plant, as it has been recently, serves no purpose whatsoever. For a chamber to provide sober second thought, it must have some notional objectivity. A Senate full of partisan appointments and government cheerleaders provides the farthest thing from that objective standard.

Appointing senators based on the quality of the representation they might provide, rather than according to their partisan pedigree, will be an integral interim step to an eventual constitutional amendment providing for a fully elected Senate. Our broken democracy needs more and better-functioning checks on centralized power — not fewer.