The value of opposition and the perils of abusing your powers

Once upon a time, oppositions could extract concessions from governments. That all changed when oppositions started abusing their power to delay government business. Here, in my view, is a perfect example of how abusing power on one side leads to the abuse of power on the other:

One of the time-honoured ways that an opposition in a Parliament has had to oppose is to filibuster, to talk, and to talk things out, but we had an occasion where there was an extended filibuster, a speech that went on over several days—17 hours—so essentially what happened was, at that point, the opposition was engaged in obstruction. I should say that all of this has happened over time and over several administrations—every party, notwithstanding which party may have been in government or in opposition.

The government reacts to that in the way you would maybe expect, because they have to be able to govern. So what happened as a result of that is that we then saw time limits on speeches being imposed, and then, once we had time limits on speeches, one of the unintended consequences of that was—previous to that, third readings in the Legislature got passed sometimes in very quick measure and often on the nod, because there had been a full and fair discussion at second reading and in committee. The unintended consequence of the imposition of time limits on speeches was that, then, the reaction from the opposition was to, in every case, use the maximum amount of time to debate at third reading. So, in an effort to kind of contract consideration of legislation, it did have the consequence of expanding it in part through a longer debate at third reading.

Then you end up with a situation where the opposition now can’t oppose by way of talking something out, so they engage in other tactics. So we end up with an opposition that reads petitions for an entire afternoon to prevent the government from getting to orders of the day, and then does it again the next day, and then the third party engages in that same tactic.

So now the government reacts by saying, “Well, we can’t have this, so we’re going to impose a time limit on petitions.” The little bit of trivia here is that petitions, before we had a 15-minute time limit, took, on average, six minutes in every day of the legislative schedule. Now we have a time limit of 15 minutes, and you know what happens. The 15 minutes has expired by the end of the day. You know, again, there’s an unintended consequence.

The petitions having been dealt with, the next tactic that the opposition engaged in was to read a title of a bill that contained the name of every body of water in the province of Ontario, so the reading of that bill took the entire legislative day, and at 6 o’clock, the Speaker had no choice but to adjourn the House until the next sessional day, and then we engaged in the same kind of thing the next sessional day. The government reacted as one would expect: “We can’t have this.” Now there is a time limit on introduction of bills at 30 minutes, and no single bill can take longer than five minutes to introduce.

What I’m trying to get at here, though, is that little by little, the processes in the House have been ratcheted down and the opposition given fewer and fewer opportunities to express opposition and displeasure with government initiatives, that the tactics have become, over time, much more extreme, and then the government, over time, has reacted sometimes in a fairly heavy-handed manner.

So we have a piecemeal amendment process that has gone on over time to the standing orders that I think it’s arguable may not have been in the interest of the institution as a whole.

It’s a message I really want to get across: one abuse of power begets another abuse of power. This doesn’t mean don’t oppose, it means oppose with restraint. Responsible filibusters will extract concessions. Irresponsible ones will get filibusters taken away from you.

A while ago, I made this point on Lords reform and time allocation both here and in the UK, and I will continue to make it despite the fact it hasn’t really been picked up on. If oppositions (big O or little o) don’t show restraint, governments won’t either. And governments have power to stop you altogether. Accept there are limits on your power, or you will lose all of it in the long run.

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Government pre-emption of Parliament

The Lords’ Select Committee on the Constitution, just before prorogation, finished its report on pre-emption of Parliament. This is where government ministers incur costs and make changes to legally established bodies in anticipation of the bill that authorises them becoming law. It’s an interesting (albeit wonkish) subject, where the practice of centuries finally has some decent light shone onto it for the first time. Many current and former Cabinet ministers hadn’t heard of the so-called Ram doctrine or the 1932 concordat which underpinned the practice of the government in pre-emption, and one senior Treasury official memorably said he’d heard of the Ram doctrine only once, back in the 1980s – when his superiors asked him to find out what it was!

The report is worth reading in its entirety and is illuminating on subjects like the scope of the Common Law powers of the Crown, the Treasury’s supposed ancient status as guardian of Parliament*, and some of the assumed ‘conventions’ underpinning ministerial powers.

Essentially, the report pulls the rug out from under Whitehall’s feet on the assumption of parliamentary consent after second reading in the Commons, and recommends much more parliamentary scrutiny of individual acts of pre-emption and clarity on where the power to pre-empt Parliament comes from in each case**.

Once I get a chance, I’m going to see if there’s anything out there on pre-emption practices in other parliaments.

EDIT: Well, I couldn’t resist a quick check. This very useful document suggests that Australia’s appropriations system is much tighter than the UK’s and doesn’t allow for this kind of pre-emption, but I’m awaiting confirmation that there are no exceptions not covered in the document.

*For which precisely no documentary evidence can be found before an 1884 Public Accounts Committee report.

**Interestingly, any expenditure incurred could, in theory, be justified under the Supply and Appropriation Acts but in deference to constitutional propriety generally won’t – because it’s hardly rigorous Parliamentary scrutiny of spending if they do.

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The Backbench Spring: Defiance in Canada

First off, H/T to Aaron Wherry who invented the phrase, it’s perfect.

Canada’s parliament has long been one of the more executive-dominated, so it was wonderful when Conservative Mark Warawa MP stood up in the House of Commons and asserted, in effect, he wanted an end to the party muzzling of duly elected members of parliament. He was complaining of his party whips essentially vetting his members statement, and denying him a place on the list of members from each party sent to the Speaker. By convention, the Speaker has chosen the members on the lists sent to him to speak, whether it be for members statements, question period, or debates on bills.

After many of his colleagues came out in support of him, the Speaker has finally ruled on the issue: while nothing stops the party whips sending him lists and vetting who they put on that list, if Mark Warawa would simply stand up and tried to catch the Speaker’s eye, the Speaker has the discretion to choose him to speak and has done since Confederation and his pre-confederation predecessors.

The convention which allowed party whips to control who spoke in the Commons for a generation now is showing signs of cracks, and if the normally meek vote fodder on the backbenches shows signs of life and asserts their undeniable right to catch the Speaker’s eye it might very well break.

Of course, there is still a long way to go in MPs’ getting some degree of freedom from the party whips. Perhaps most importantly, party whips can still choose who sits on which committee and remove them at will. That too needs to change, but there are signs of stirring

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Royal Succession: UK Third Reading

The bill has passed the House of Lords without amendment! It will likely receive Royal Assent at next week’s prorogation ceremony by the Lords Commissioners. Lord Cormack put down an amendment at third reading for the Succession to the Crown Bill to explicitly state that Catholics cannot accede to the Throne which was withdrawn; Labour’s spokesman Lord Stevenson of Balcamara suggested the issue of the monarch and the Church of England has only been deferred, not decided. Lord James of Blackheath put down an amendment that… erm, I’m still not sure. Lord James of Blackheath explained it at length, but it’s not something I want to parse at this hour. It was also withdrawn. I’ll write up my analysis of the strands involved soon, but university work currently takes precedence so it might be a while.

In total, the House of Lords spent 663 minutes in public discussing the matters relating to the bill; that’s just over eleven hours. The British House of Commons spent 583 minutes, or nine and a half hours. Canada, the only other Realm to so far consider the laws, spent over 200 minutes in the Senate discussing the bill and perhaps a minute in the Canadian House of Commons. Queensland’s bill will soon progress, as will enabling legislation in the other Australian states and a full bill in the Commonwealth parliament. New Zealand can also expect progress on the bill soon.

We also learnt in the debate that Antigua and Barbuda has also decided that the way its constitution is worded means it doesn’t have to pass legislation. It’s pretty clear now that none of the smaller Realms will have to pass legislation; their constitutions are all worded extremely similarly thanks to their common British origin. In one way it’s a shame; I would have liked to explore how such small parliaments actually function. Perhaps another time.

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Royal Succession: Showdown Down Under

Australia

It looks like there’s going to be a showdown on Friday at the Council of Australian Governments (COAG). Queensland Premier Campbell Newman is currently engaged in a stand-off with Australian Prime Minister Julia Gillard over who will legislate for the Succession to the Crown. Gillard and the other Australian states are firmly behind invoking a clause in the Australian Constitution whereby the states pass laws enabling the federal parliament to legislate on an issue, while Newman wants to support the traditional relationship between states and Crown by writing their own law.

Federal Attorney-General Mark Dreyfus asserts that Queensland’s bill is inconsistent with the aims of the Commonwealth governments; State Attorney-General Jarrod Bleijie disagrees. Personally, I don’t understand what the big fuss is about; if the law is consistent with Commonwealth attempts then I see no issue with each state passing their own law. If it isn’t, let’s hear the evidence.

The federal government disagrees, and now the Gillard government is threatening to ‘override’ Queensland’s bill in the next parliamentary sitting in May unless the Queensland bill is dropped before the next COAG meeting this Friday. I assume this would require a constitutional amendment, which itself would require a nationwide referendum unless someone can see something in section 51 which would let the federal government legislate for it (I can’t find anything). EDIT: Confirmed.

Things are, at least, getting interesting in Australia!

UPDATE 21/04/13: Looks like a compromise has been reached: after a proposal from Queensland Premier Newman, COAG agreed that states can pass their own laws regarding the succession, but also all will request that the federal government pass legislation under section 53(38) of the Australian constitution. Any state laws on succession must be consistent with their request to the Commonwealth parliament. This means there will be two identical laws on the statute books for Queensland and the Commonwealth.

United Kingdom

Lord Cormack has put down an amendment at third reading for the Succession to the Crown Bill to explicitly state that Catholics cannot accede to the Throne. If this is the only amendment at third reading, it probably won’t take longer than half an hour in third reading. Further amendments may be forthcoming, but none on the most interesting question (for me anyway) of whether the monarch must be Anglican and the Establishment of the Church of England more generally. Given the Conservative backbench interest and Labour’s support for a committee of parliament to set up an inquiry it’s possible the Lords’ Constitution committee, the Commons’ Political and Constitutional Reform committee, or some new ad-hoc committee could begin an inquiry in the new Parliamentary session after May into this.

Given the force of opinion in the Clergy against disestablishment, the most pragmatic solution would be the regency model proposed by Jacob Rees-Mogg where in the event the monarch wasn’t Anglican, an Anglican regent would be appointed as Supreme Governor of the Church of England. It’s a compromise, but it would deal with the likelihood of an atheist monarch in the future. Of course, it would require another process just like this one which might put politicians off…

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Royal Succession: Canada’s done

Canada has just yesterday completed consideration of the Succession to the Throne Bill 2013, C-53. It has now received Royal Assent. First, a summary.

The House of Commons passed the bill at all stages with no debate; they spent less than a minute considering the matter.

The Senate debated it for around 270 minutes – that’s four hours thirty minutes. They debated the bill itself for 110 of those minutes (40% of the time), listened to witnesses for 160 minutes (59% of the time), though they spent only 55 minutes with those advocating change (20% of the time – only the third reading had one opposing speech out of three), and precisely 0 minutes was spent considering amendments to the bill.

Compare that to the British House of Commons. 585 minutes – 9 hours forty five minutes – debating the bill or its subject in public; 224 minutes (38% of the time) debating the subject of the bill in second and third reading, 66 minutes listening to witnesses (11% of the time) and a full 236 minutes debating 4 amendments to the bill (40% of the time). They also spent 59 minutes (10%) debating how long to debate the bill for.

The British House of Lords, though it hasn’t yet completed its study of the bill, has spent 613 minutes debating the bill in public so far; 10 hours and 13 minutes. 213 of those minutes (34%) were spent debating the subject of the bill in second reading, 397 of those minutes (64%) debating 19 amendments to the bill. Even in second reading in both chambers, many of the speeches in the debate (22 in the House of Lords, ) were not entirely happy with the bill and many of those who spoke went on to propose amendments. I would imagine third reading won’t take more than an hour.

As yet, no other parliament has substantively debated these changes, but so far the Commonwealth parliaments are showing a disturbing lack of ownership of the reforms. It’s their monarchy too*, and yet the two committees who have considered it have both ended up recommending no changes to the actual substance of the reforms, and one (Canada’s Senate Committee) seemed to have no concerns at all despite a heated academic debate on the issue. I kind of thought at least one committee would recommend ending the discrimination against Catholics taking the throne. Hell, they’ve cut to the core of the matter in the House of Lords (“Are they trying to end discrimination against Roman Catholics or are they just trying to enable the heir to the Throne to marry a Roman Catholic?”) where Anglican Bishops sit by right and I (perhaps foolishly) thought the more Catholic Commonwealth Parliaments might have a bit of a view on that. Senator Joyal at least mentioned it at third reading, but no more than that.

Senator Joyal spoke for most of the perhaps fifty-five minutes the bill was debated at third reading. He didn’t see a distinction between the fact that the 1937 bill was brought into Canadian law by a now-repealed section 4 of the Statute of Westminster. He claimed that the UK had redefined marriage, which is sadly untrue; as he is apparently unaware, the Marriage (Same-sex couples) Bill has only just emerged from the thicket of the Commons’ Public Bill Committee after a month of debate there and hasn’t even touched the House of Lords. He said that Canada was following the constitution by using the preamble of the Statute of Westminster to ‘assent’ to the bill, though I always assumed that preambles had no force of law and were merely an aid to interpretation.

He seemed to think no amendments could be put at third reading in the Lords; on that he is wrong, none of the amendments at committee/report were voted on, and so in theory any of them can be brought back to be voted on at third reading. While it is convention that third reading amendments are only drafting ones to tidy up the bill, it is quite often honoured in the breach rather than the observance. To be fair, it can happen easily in a chamber where order is kept by members in general rather than a presiding officer.

Senator Fraser spoke for a few minutes the day before and advocated passing a full succession law like Australia and New Zealand are doing. She gave a good critique of the way in which the government is enacting this reform, though I remain sceptical the bill actually changes anything. She also calls the process of assenting to whatever Westminster produces ‘servile’.

Oh well. We’ll see what the others do…

*Saying that, the government of Canada does seem to be launching in the direction that it isn’t their monarchy too.
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Ping pong with grenades: what happens when the Lords has the upper hand

The Justice and Security Bill is currently going through parliament, but because it started in the Lords the Parliament Acts won’t apply. The Commons has sent back the bill and has undone many of the Lords amendments – this is so-called parliamentary ‘ping pong’ where bills ping back and forth between the Houses until they both agree on the same version. Suddenly, the Lords has a great deal of power to resist the government until the eventual prorogation which is around three parliamentary weeks away. This has been described vividly by campaigners as ‘ping pong with grenades’.

It’s worth keeping up-to-date with this for any followers of parliamentary antics…

EDIT: Well, that was a bit of a disappointing dud. The government offered just enough concessions to split the Crossbench and Lib Dems, winning the vote by just 16 peers.

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