Canada’s Senate: Forced independence

Justin Trudeau, leader of the Liberal Party of Canada, has just kicked out all Liberal Senators from the party caucus. They are now independents in a parliamentary sense. It just so happens most of them have collectively decided to form a caucus of their own – the Senate Liberals. It’s their choice after all – having (forcibly) left their previous caucus they are free to associate how they wish. The more important part of his statement was the one where he proposed that all new appointments be made essentially on merit. This likely means a method similar to that of honours like the Order of Canada – perhaps a hint that he may go down the House of Lords Appointments Commission route.

This does leave some big questions: In Justin Trudeau’s Senate, what happens to the Leader of the Opposition in the Senate? If people are appointed regardless of political views, a formal opposition might potentially die out. Is the intention that this position fall into disuse or would people be appointed who are almost expected to be a Party representative? It is possible the Senate would have to adapt, in time, to the idea of a large group, if not a majority, of independent senators. Of course, the biggest problem with this would be the potential question of how many of the appointments should be for any particular party. That is the biggest question in the current House of Lords appointment system and constitutional experts are calling for some sort of agreement on a party balance in the House of Lords to stop the size ballooning (not a problem in the Senate but the partisan proportions would still be an important question). The problems only expand if you appoint without consideration of partisan leanings, allegations of bias in either direction would only bring the appointing body into disrepute.

In pure parliamentary terms, committee places would have to change – currently, they are appointed on the basis of party balance and independents don’t get a look-in. That would likely have to change, perhaps with elections by independent members to secure positions – since no whips would exist to nominate positions for the independent ‘caucus’.

The next speedbump in this plan is an eventual Liberal government – and how, exactly, the Senate will work with a Leader of the Government in the Senate (and deputy) who isn’t a member of the government nor even technically the governing party caucus. Currently, the Leader of the Government in the Senate, Claude Carnigan, isn’t actually a member of the government and he, or members of his party, simply sponsor government bills without being a member of the government. In the same way, the Leader of the Government in the Senate answers questions the best he can on behalf of the government but he isn’t part of it. While it’s possible to simply extend this to the Liberal model Senate constitutionally it’s a bit dodgy and probably not sustainable.

All the leader could repeat would be talking points. Negotiation between the Senate and the government over bills would be severely hampered because the sponsor of the bill in the Senate couldn’t guarantee that the Government could accept any given amendment or potentially might go rogue and accept amendments contrary to government wishes. While that’s not necessarily wrong, it’s not helpful for the government or the opposition. I think it likely that the standing order in the Senate to allow ministers to speak before the Senate would be resurrected, and new standing orders formed to allow them to speak to and sponsor bills. At the very least, that would be my preferred solution if the senate were to become separated from national parties.

I’m sure there are further potential problems with this model that would need solving, but ultimately it’s a step in an interesting and potentially promising direction.

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War: Parliament recalled over potential Syrian intervention

Today, Parliament has been recalled over the Syria crisis. Here’s a brief overview of the history of parliamentary responses to military interventions.

For many wars prior to 1914, Parliament often didn’t debate the start of a conflict and often Parliament wasn’t sitting or was prorogued when many of the conflicts broke out. Parliament could hold the government to account for these interventions through the occasional oral question, by votes of confidence and voting through the government’s estimates for army and navy expenditures. Occasionally, governments were defeated in the Commons for their performance during conflicts but this is entirely distinct from questioning whether they should have gone to war or not in the first place.

At the start of the First World War there were these curt exchanges on the 28th of July 1914.The next day a few questions were asked about the war and its financial footing and the day after further updates were requested. But these are not debates. No view was sought from the House of Commons about the war.

The outbreak of the Second World War was started with a debate on a business motion to deal with the running of the war, but the Commons didn’t debate the war itself. The House of Lords received a statement from the Foreign Secretary about the war and then some of the grandees in the House put their views forward. The Houses were kept up to date with further statements later on. But the House was not a participant.

The Korean War started on the 25th of June 1950. The next day, the Prime Minister was asked a question about the invasion in the Commons (which had been due to sit that day) and the day after further information was requested followed later on by a full statement. The House of Lords sat that day and both statements were repeated. Constant updates continued after British troops were deployed until the 5th of July when the Commons debated the government motionThat this House fully supports the action taken by His Majesty’s Government in conformity with their obligations under the United Nations Charter, in helping to resist the unprovoked aggression against the Republic of Korea.” After a long debate, the Commons supported the motion without a vote.

The government wanted the House’s blessing in the endeavour, perhaps because of the nature of post-war foreign policy.

When the Suez Crisis erupted, after a question in the Commons, the prime minister made a statement during a debate on a motion for the adjournment which was later resumed after the prime minister had more information. The motion “That the House do now adjourn” doesn’t really allow for a view of the House to be decided but Labour forced a vote anyway. The government ‘won’ the support of the House 270-218. In the House of Lords, only a statement was heard with some questions put to the government. 

While the Commons was given a voice by the adjournment debate, the government avoided the Commons being able to express a corporate view through a substantive motion like the Korean vote before. Despite this, the Labour Party still tried to put its view on the record before the intervention occurred and to make the point that the country was not unanimous.

The government kept Parliament updated on progress. On the 1st of November, only after British troops had entered the fray, a raucus statement was made and a debate was finally had on the opposition motion “That this House deplores the action of Her Majesty’s Government in resorting to armed force against Egypt in clear violation of the United Nations Charter, thereby affronting the convictions of a large section of the British people, dividing the Commonwealth, straining the Atlantic Alliance, and gravely damaging the foundations of international order.“. After much debate, the government managed to amend the motion by around 322-255 to say that “That this House approves of the prompt action taken by Her Majesty’s Government designed to bring hostilities between Israel and Egypt to an end and to safeguard vital international and national interests, and pledges its full support for all steps necessary to secure these ends.

In the Lords they didn’t have an equivalent motion; a debate was had merely calling attention to the government’s statement and moving for papers (a strange anachronism which is a procedural device used to let the person who started the debate speak again at the end; even if pushed to a vote, no ‘papers’ are ever expected to be given). This long debate too ended in a vote where the government ‘won’ the support of the House 82-30.

The Gulf War in 1991 was debated on a government adjournment motion which, again, was ‘won’ by the government 534-57. This motion was understood by many MPs to indicate parliamentary approval for the government in the event that Britain intervened in the war. The lack of agreement over the meaning of the motion again indicates the reason why such motions are used by governments – the will of parliament is unclear even after the vote, weakening opposition to the motion. Two days later, a statement was made after hostilities began.

The next military intervention was the Bombing of Iraq in 1998. On the 16th of November, both Houses of Parliament heard a statement explaining why military action had been authorised (but was not used thanks to Iraq backing down). A month later, bombing was authorised again and the next day each House heard a statement and the Commons debated the intervention on an adjournment motion. Those opposed to the war were deprived of even a vote on the adjournment because no members were appointed as tellers for the yes vote – because no one was appointed to count those voting yes, the vote failed to be held.

In the build-up to the Kosovo Intervention in 1998, the war merited only statements in the House of Lords initially with the House of Commons receiving statements after it returned from recess. Upon the exercise of military force in March 1999, the Foreign Secretary introduced an adjournment debate in the Commons on the deployment of British forces; again, no vote was actually held but this time it was because those opposed failed to push it to a vote by accepting the Deputy Speaker’s gathering of the voices (that bit where everyone shouts ‘aye’ or ‘no’). The House of Lords was content with a debate on the motion that the House ‘take note’ of the situation in Kosovo. There was also a statement in both Houses and a Commons adjournment debate after the policy changed the next month. This time, those opposed managed to vote but the division was declared invalid after less than forty members voted.

After the September 11th Attacks, the War in Afghanistan began; over the course of two months three recalls of Parliament were orchestrated, with each update consisting of statements in each House, an adjournment debate in the Commons and a ‘take-note’ debate in the Lords. While some members sought a substantive vote on the deployment, they were unsuccessful although the war did receive much debate in the Commons. The House finally was able to debate and vote on the deployment on the 9th of September 2010 when the House voted 310-14 in favour of the motion that “That this House supports the continued deployment of UK Armed Forces in Afghanistan“.

The continued use of the adjournment motion showed that MPs were keen to express themselves on military deployments, and the government had to keep resorting to parliamentary tactics to avoid members expressing themselves through a vote (even one that didn’t really mean anything) but it was only in 2003 that the sheer divisions in the governing Labour party forced the Prime Minister to allow a Commons vote on a substantial motion.

In the months before the War in Iraq, parliament was kept up-to-date with many statements (including one recall in the usual format of statements then adjournment/take-note debates) and after much pressure, the government conceded a Commons vote on a substantive motion to approve military action in Iraq before it began – thanks in large part to the Leader of the House of Commons Robin Cook. This long debate and vote took place on the 18th of March with the government voting down the amendment by 396-217 and winning the final vote by 412-149. The final motion was much more complex than the previous motions approving military action and runs to nearly 400 words. Meanwhile in the Lords, a similarly long debate was held on a simple take-note motion. This was the first occasion since the 1950s a substantive motion was debated on military action.

The next intervention was the Libyan Intervention in 2011, where a statement was given to the House of Commons at the first available opportunity (the 18th of March) about the UN resolution. The House of Lords was given an updated statement the Monday it returned (21st of March) and the Commons had a debate and vote on a long-winded motion to support the already-began Libyan Intervention.

This brings us up-to-date with the potential Syrian Intervention debate today. The government has backed down on asking for support for military action today and has instead tabled a motion supporting military action to deter the use of chemical weapons after a further Commons vote. The opposition is intending (as of this moment anyway) to push for its own amendment demanding that the intervention be time-limited, that a UN-vote must be held, and that the evidence against Assad must be compelling. The Lords is, again, debating a take-note motion. I’m uncertain whether there will be a statement first or not, but it’ll be interesting watching.

During the Second World War the Commons managed to require the government to come before the Commons and justify any important military actions through a statement followed by questions. For a while the Commons also was invited to retrospectively debate and decide whether it approved of military deployments but for fifty years after that the government decided to ensure that any debate couldn’t end in a corporate approval or disapproval of government action, and opposition parties supported this position.

In the new post-Iraq world the Commons decided that it wants to vote on military deployments and force the government, if it wants to intervene militarily, to do so by ignoring the publicly stated view of House of Commons.

UPDATE 30/08/13: Well that was unexpected! The government’s paving motion towards war in Syria lost by 13 votes. This is absolutely unheard of and there’s not really any equivalent vote in British Parliamentary history. The closest is 1855 when the House of Lords defeated the government over its appalling conduct of the Crimean War, but like I said that’s not the same as defeating the government over whether it should go to war in the first place.

They say the former Leader of the House of Commons, Robin Cook, may not have stopped the War in Iraq but he did give Parliament the right to stop a future war, and it looks as that maxim has been proved correct.

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Randy Hillier’s proposals: Making government accountable

It’s my first post-degree post, and it’s a long one.

A little while ago, I read up on Randy Hillier’s proposals to revolutionise the way the Ontario Legislative Assembly, and indeed government in Ontario, works. My reaction is mixed (partly because the proposals lacked enough detail, and partly because some are just plain bad ideas) but there’s so many good bits I thought I needed to emphasise them.

Private Members Bills

Removing Government Monopoly on letting bills get Third Reading:
Makes sense – if a government wants to vote a motion down, let them do so. But at least have the debate.

Fortnightly Night Sittings for Private Members Bill third readings:
I can imagine these sittings won’t be heavily attended. Not sure if that’s a good idea; I prefer my representatives to make their decisions in the cold light of day. I can see the need for extra time for debating third readings though.

Recording Abstentions:
I like the idea of recording abstentions, though it’s interesting that it doesn’t differentiate between those who choose to abstain and those who simply are not able to be present to vote, and people do those for different reasons. It seems unfair to lump them in to one number, so I would hope that recorded abstentions would be about the former, not the latter.

Compelling committees to hear all bills referred to them for review:
Hmm. Not sure about this one. Depends how you define ‘hearing’ all bills. Does it mean a positive vote on whether to pass the bill from committee, actual hearings for each bill, or some other requirement? What if the committee doesn’t feel it can give the bill a thorough enough hearing to decide whether it should be passed? What if the committee is inundated with bills referred to it and legislates in haste? Then you’d have bad legislation on the statute books without a government being held to account for it. This seems like it needs a bit more thought to be workable.

He also mentions that perhaps committees should be able to schedule the bills in their passage through parliament, citing the UK’s backbench business committee. It could be done, I suppose, on a rota system – over the course of a month, a day is scheduled for each committee to put some of its bills down for debate. So far as I know, it’s not done anywhere else but that isn’t necessarily a point against it. I just think it would be difficult to get a workable scheme that the government would agree to!

Motions

Reading motions aloud upon introduction
Makes a degree of sense in giving them some air time. You might have to give the Speaker permission to cut members off if their motions are too long to prevent filibustering.

Making motions binding on government
OK, I have some fairly big reservations here. In some respects, I fully agree that MPs should have some power over (for example) government regulations since they’re secondary legislation, but there’s a reason we separate executive policy formulation and legislative action. Full policy formulation is a complex and intricate process and requires thinking through to prevent unintended consequences. That’s why bills have to go through several votes and rounds of amendment before becoming law*.

For example, what would the limits be? The UK civil service differentiates between policy development and policy delivery (to use the rather annoying buzz-word); would a motion be able to constrain the delivery of government policy as well as the facts of it? Imagine the detail these motions could constrain government to! It’s US-style constraint of government without US-style scrutiny of government.

Essentially the proposal creates a new class of law-making; one which takes less time than passing a real government bill and is subject to less scrutiny. Despite the fact it affects less people (it can only constrain government actions), that still leaves a lot of lee-way for these motions to constrain people’s rights. A single vote of the legislative assembly could constrain the government to not provide services to a specific class of people or for the government to discriminate against a specific group of people. That kind of stuff may well be necessary in modern government, but let’s have it done by legislation that’s examined by committees and voted on at least twice by the Legislative Assembly.

I’m happy for legislatures to vote down individual statutory instruments. I’m even in favour of legislatures amending those instruments, somewhat radically apparently. But in terms of policy formation and implementation, I’d rather leave it to a government which the Legislative Assembly will hold to account rather than the whims of a rather busy and potentially rather partisan legislative assembly.

Motions of Confidence no longer to depend on the agreement of government and opposition:
Any proposal to let motions of confidence be debated is better than the situation which occurred under Dalton McGuinty. Ontario’s standing orders are truly messed up in that a motion of confidence can only take place on the agreement of the government and opposition. How in hell does that make sense? But letting them happen on opposition days, it doesn’t completely sort of the weirdness because the government controls when opposition days are (though you do have to have them in the current session)! Even in the UK (not known for its resistance to government fiat), it is a strong established convention that the motion of confidence takes precedence and the government makes time for a debate on it in the very near future. While that in itself isn’t IMO strong enough protection, it’s something at least.

Backbench motions debated at least once a month:
I suppose it depends on the sitting calendar of your assembly, but this seems alright. There’s no mention of how it is determined which motion is called for debate, merely (unless I’m misunderstanding) that the clerk publish the order of debate. Is that in first come first served, subject to some balloting principle, or something else? Also really wouldn’t you want it a bit more common than once a month? A secondary debating chamber could be used, like the Australian Federation Chamber, UK Commons’ Westminster Hall, or the UK Lords’ Grand Committee. Unfortunately in those, no business for which votes could occur take place because of the difficulty for members, which wouldn’t be very good for the new Ontarian motions regime which can have binding effect. At least, no legislature has yet sorted out the difficulty. We can live in hope…

Extended sittings for private members motions:
Nothing wrong with this; makes perfect sense that if business finishes early, private members motions should then be debated each day in a rotating party order.

Co-sponsorship of bills/motions:
Nothing wrong with members from the same party being able to co-sponsor bills/motions. Makes perfect sense, especially as he suggests for regional concerns though I’d expect more than regional concerns could come up.

Changes to Standing Orders to be voted on by secret ballot:
Certainly this would help the fight against the whips. It’s not an easy question though, and it depends if the loss of accountability of individual MPs for their vote is outweighed by the potential gains in fighting the party-carve up. Depends quite how threatened MPs feel by the whips on that matter.

Debate on the merits of regulations:
Ontario’s legislature has no power to annul regulations, although if motions had binding effect it would. Hillier wants members to be able to table a motion to debate that regulation and, if passed, a motion to debate the merits of the regulation must happen within that session for up to two hours. Firstly, you’d want to make clear that any debate on the merits of a regulation must be able to annul the regulation, otherwise the government could get around that easily by simply having a motion like ‘this House regrets regulation X’. It would seem to me the best idea would be to set aside a couple of hours every month to debate motions to annul regulations (whether under the Hillier motions regime or a statutory provision allowing the Assembly to annul regulations akin to the UK).

There definitely should be more scrutiny of regulations though. I don’t know any jurisdiction that does it well, to be honest.

Enabling the Regulations Committee to examine regulations for delegating power unusually or inappropriately:
A very good idea, exercised in the UK and Australia at the very least.

E-Petitions to stand alongside paper petitions:
Nothing wrong here, but who presents them? An MP has to present a paper petition, does an MP have to present an E-petition? It could leave constituents feeling a bit cheesed off if no one actually takes them up on their petition and presents it to the legislature. I mean, petitions have no effect once presented anyway, so if they lack even a presentation what kind of result is that?

Improving online access:
As someone who’s tried to look through the records of the Ontario Legislative Assembly’s website, yes please!

I hope some progress is made on these reforms. There’s so many good ideas that could be developed, I’d love to see the result.

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Gay marriage: Lords confounds expectations

The Marriage (Same Sex Couples) Bill has pretty much finished its passage through the House of Lords. Not only was the majority for the principle of gay marriage higher in the Lords than in the Commons (225 in the Commons, 242 in the Lords), but pressure from peers meant the government conceded changes to the bill including on the subject of humanist weddings in England and Wales and equalising pensions for gay couples.

The bill was not amended at all during its passage through the Commons, but has been subject to extensive amendment by the government in the Lords. Aside from the two big changes mentioned above, most amendments have been fixing the drafting of the bill.

The Commons and the Lords have both spent about 48 hours debating the bill, suggesting there’s not been significant filibustering either (allowed in the rules of the House of Lords, which doesn’t allow for bill debates to be guillotined).

This is perhaps surprising because often second chambers can be seen as the preserve of (small-c) conservative forces with the express purpose of thwarting progressive initiatives; from the foundation of the Fifth Republic until 2011, the French Senate was dominated by conservatives; the House of Lords had, from the early 19th Century until the close of the 20th, been dominated by small- and big-c conservatives.

Even after the end of the Conservative majority in the House of Lords, there was staunch opposition to equalising the age of consent for gays in 2000 and to the creation of civil partnerships for gays in 2004.

Given its reputation, there was widespread anxiety over whether the Lords would gut gay marriage, but instead it’s made the legislation fairer and arguably more progressive. Since 2004, hundreds of peers have been appointed and hundreds of the older peers have died. The House of Lords is undergoing a generational change and will only get more comfortable with gay rights.

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Royal Succession: New South Wales prepares to introduce its bill

Premier Barry O’Farrell today gave notice of a motion to introduce the Succession to the Crown (Request) Bill 2013, requesting that the Federal Parliament enact changes to the succession law. No text of the bill up yet, but it should be introduced soon. I’ll update this post then. Not really sure how long request bills take in New South Wales. The only one I can find on their website is the Australia Acts (Request) Act 1999 which passed very quickly. The bill had no consideration in detail and each chamber examined it over two days each, with the whole thing over in less than a month.

Also, I’m assuming it’s a ‘request’ bill rather than a ‘Commonwealth powers’ bill because it’s assumed that such matters are, in a special way, already the domain of the Commonwealth as well as the states so there’s no need to pass a bill to make it part of the Commonwealth powers.

EDIT: Now introduced, full text on the first link above, speech here (search for “succession”). It looks, on first inspection, very similar. New South Wales, for some reason, counts the Treason Act 1351 (which is amended by the UK Succession to the Crown Act 2013) as part of its law while Queensland doesn’t. Apart from that, the Commonwealth bills the two states request are identical, as might well be expected given they must have had agreed this at the Council of Australian Governments.

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Escaping the judges: New Zealand

Apparently, the New Zealand Parliament just passed the Public Health and Disability bill under urgency which included a rather nasty clause which puts paid to a saga of government court defeats on the fairness of disability payments:

[When this law kicks in], no complaint based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be made to the Human Rights Commission, and no proceedings based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be commenced or continued in any court or tribunal.

In New Zealand, they call them ouster clauses, and it’s a pretty awful way to escape scrutiny of your policy and doesn’t reflect well on the maintenance of the rule of law.

Aside from the shabby parliamentary procedure (urgency is incredibly overused in New Zealand and some of the restrictions on debate across the Commonwealth can be deplorable), there are similarities with another case I know about which should give some hope.

First, a bit of history. The UK used to have these sorts of clauses too. The Foreign Compensation Commission was created in 1950 to decide who was entitled to get compensation paid by foreign governments for the sequestration or nationalisation of property owned by British people. Under the Foreign Compensation Act 1950:

The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.

So, if you didn’t like the decision, there’s nothing you could do. An Order in Council was issued to ensure that with regard to Egyptian nationalisations between 1956 and 1959 the applicants were both the owner of the property of his or her successor in title and that both were British nationals at the time. Anisminic Ltd made a claim to the FCC over a sequestration by the Egyptian government of its property which was sold to an Egyptian Government Agency, but it was thrown out because the successor in title was the Egyptian Government Agency and not a British National. The Commission’s decision was blatantly unfair and contrary to natural justice.

The House of Lords (the Supreme Court of the time) was not happy and overturned the decision in Anisminic v. FCC [1969] despite the clause stating no determination of the Commission could be challenged in law. To do this they created a bit of a legal fudge. They ruled that that ouster clause couldn’t possibly apply to a determination that the courts decided was invalid. On the other hand, if it was ruled valid by the courts, then it was a proper determination and so couldn’t be called into question in any court of law. There’s no legal basis for that part of the judgment, they simply needed to make a decision and performed logical and lexical acrobatics over the words of the statute in order to get a just result.

I’m no lawyer. I don’t know whether any equivalent cases exist in New Zealand, or if this case would help a similar legal battle on this bill. but it proves that judges can often find reasons to do the right thing when it’s necessary to do so, especially when it counters the government taking power away from the courts! Who knows, it might be a useful case to cite in any legal battles on this bill.

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Royal Succession: Queensland passes

I missed this, but the Parliament of Queensland passed the Succession to the Crown Bill 2013 on the 2nd of May. It was taken from 2nd reading through consideration in detail to Third Reading in an hour and forty minutes, ten of which were spent debating ten amendments to the bill – all government, and all without a vote or much discussion – and third reading had no debate. Looking at some of the previous Hansards, it doesn’t seem unusual to take a bill’s second reading, consideration in detail stage (equivalent to committee in the UK and Canadian Parliaments) and third readings on the same day. In the UK parliament, that would be considered a fast-tracked procedure. I suppose at least there was a committee review. Here’s the finished bill which received Royal Assent today.

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