This lecture was originally
delivered on January 25, 1989 to the Americas Society/Canadian Affairs in New
York. The author was the Society's 1988-89 Visiting Fellow sponsored by the
Donner Foundation. Views expressed are the responsibility of the author and do
not represent those of the Americas Society, the Donner Foundation or the
Canadian Region of CPA.
In the ongoing quest to maintain a
separate North American existence Canadians have always prided themselves on
adherence to parliamentary rather than congressional institutions.
The theory of parliamentary
government is well suited to a political culture that emphasizes order,
hierarchy and centralization in contrast to the American preoccupation with due
process, individual freedom and the diffusion of power through an elaborate
system of checks and balances.(1)
The traditional elements of a
parliamentary system -- responsible government, limited judicial review, and a
strong cabinet with power centralized in the hands of a Prime Minister
characterized Canadian politics for over a hundred years. In the last decade,
however, there have been significant changes in each of these areas. Today
prerogatives formerly held by the Prime Minister and cabinet must be shared
with a Supreme Court charged with interpreting the Canadian Charter of Rights,
an activist Senate controlled by the opposition and a House of Commons reformed
with the specific purpose of increasing the role of private members.(2)
Divided Government
The term "divided
government" is usually associated with the American congressional system
when one party holds the presidency and the other holds one or both Houses of
Congress. In theory such a division between executive and legislative branches
is impossible in a parliamentary system. But if one party does not control both
the House and Senate and if the Senate decides to exercise its constitutional
right to block legislation, you have essentially the same situation -- worse if
there is no provision for an override or an effective mechanism for working out
disputes short of an election.
In 1988 the Canadian Senate took
the very unusual position of declaring it would not pass the Canada-US free
trade legislation without an election thereby "forcing" the
government to go to the people. That election has been held and the Free Trade
Agreement adopted. In other respects the political situation is unchanged.
There is still a Conservative Prime Minister supported by a majority in the
House of Commons and a Liberal dominated Senate ready to exercise its full
constitutional power.
The movement toward an activist
Senate actually predates the free trade debate. It can be traced back to 1979
when Joe Clark managed to form a minority government, the first Conservative
administration since 1962. With few seats from Quebec, a province that usually
has anywhere from 8 to 12 ministers, Mr. Clark decided to appoint a number of
Conservative Senators from Quebec to cabinet and give them some high profile
portfolios including Justice.
There is always at least one
Cabinet Minister from the Senate to look after the government's interests in
that chamber but the presence of several Senators with departmental
responsibilities posed obvious problems. The two chambers being completely
independent there is no easy way for elected members of the House of Commons to
question Senators and hold them accountable.
Under the circumstances Liberal
Senators took the position that if the government was going to place ministers
beyond the reach of the House of Commons, it would be up to the Senate to hold
them accountable. But unlike the Commons, the Senate had no set period for
questions; nor was there any time limit to the length of interventions; nor
does the Speaker of the Senate have the same powers as the Speaker of the House
to call members to order. The Upper House had functioned on the assumption that
Senators, being mature legislators, had less need for the detailed rules of
procedure and continuous vigilance of the presiding officer that one finds in
the Commons.(3) In the new circumstances the Senate became rather disorderly
very quickly.
The minority Clark government was
short lived as the Liberals under Pierre Trudeau recaptured control of the
House in the 1980 election. However, with an absence of sufficient elected
members from the western provinces Mr. Trudeau also decided to compensate by
appointing several western Senators to the Cabinet. The Upper House continued
to function more and more like a miniature Commons, a tendency reinforced by
the appointment of several young and active MPs by Mr. Trudeau and his
successor, John Turner, just before the 1984 election.
In 1984 the Conservatives won a
massive electoral victory. The new Prime Minister, Brian Mulroney, had representation
in the House from all parts of the country and appointed only one Senator to
the cabinet to serve as Government Leader in that Chamber. The Liberals still
had a large majority in the Upper House but the absence of ministers with
departmental responsibility reduced the rational for asking questions since the
Government Leader could simply take the question as notice and forward it to
the responsible Minister in the House of Commons who would report the answer
back through the Government Leader in the Senate. Soon, Liberal Senators began
to find other ways to hold the government accountable. After delaying several
bills and forcing amendments to others their strategy reached its logical
conclusion with the refusal to pass legislation arising from the free trade
agreement unless there was an election.
That there have been so few
deadlocks between House and Senate is due largely to long periods of one party
dominance throughout most of Canadian history. When the House and Senate were
controlled by different parties, the appointed Senate, after making its
objections, usually yielded to the will of the popularly elected House. The
convention of responsible government was interpreted to mean responsibility to
the elected Chamber. This understanding and the conditions that made it
possible have been changing for at least a decade. The free trade debate merely
marked the culmination of this process. But such understandings or conventions,
once broken, are not easily re-established. It would be foolish to expect the
Liberal majority in the Senate to obstruct the Mulroney Government at the start
of its second mandate, as time goes by and issues emerge the Senate will surely
be tempted to build upon precedents established during the last few years in
its attempt to assert a larger voice in the Canadian political process.
For the immediate future the
important point for observers of Canadian politics is to realize that we have a
form of "divided government" without any effective dispute resolution
mechanism short of a general election. The Fathers of Confederation are often
maligned for not anticipating all the consequences of modernity but one problem
they did anticipate was the possibility of disagreements between the House and
Senate. They envisaged a mechanism for joint conferences to work out such
disputes. This procedure has been used so little, the last time in 1947, that
no one really knows how it should operate. Perhaps a small joint committee
should be established to look at the way other federations, including the
United States, deal with the issue.
The Meech Lake Accord
Canada is on the verge of some
important constitutional changes that must be examined in the context of
developments since the 1976 election in Quebec. In that year René Lévesque and the
Parti Québécois came to office on a platform that promised a referendum on the
question of Quebec independence. The referendum was held in 1980 and the NO
forces prevailed. During the debate Prime Minister Trudeau and other federalist
leaders promised, albeit vaguely, a better deal for Quebeceurs if they defeated
the referendum. In line with this promise Prime Minister Trudeau called all the
provincial premiers to a constitutional conference at which he proposed a
constitutional amendment to establish a Charter of Rights and Freedoms.
The Charter set forth several
categories of rights including: fundamental rights (speech, religion), legal
rights (freedom from arbitrary arrest, right to counsel), democratic rights
(right to vote) mobility rights, and equality rights. It also contained a
section giving constitutional recognition to English and French as official
languages and guaranteed certain rights for English and French language
education, wherever numbers warrant, across Canada. He also proposed to "patriate"
the constitution with an amending formula that would not require reference to
the United Kingdom for future amendments.
When the conference failed to agree
on the proposals Mr. Trudeau announced the federal government would proceed
without provincial approval to ask Great Britain to make the changes. His plan
to act unilaterally was opposed by all the provinces except Ontario and New
Brunswick. The "gang of eight" took the position that provincial
agreement was necessary for an amendment as fundamental as the Charter of
Rights. They argued it was incompatible with the doctrine of parliamentary
supremacy; that it would reduced provincial authority at the expense of
federally appointed judges of the Supreme Court.
Court challenges to the legality of
unilateral federal action produced a variety of opinions in different
provincial courts. Finally the Supreme Court was asked for an opinion. It said
that while the federal government would be legally correct in going ahead
without support from the provinces it would not be in keeping with conventions
that had developed concerning amendments.
There is no way of knowing what
would have happened if Mr. Trudeau had decided to go ahead with his threat
because a last minute political compromise succeeded in winning over all the
opposing provinces except Quebec. It was agreed to add a clause to the Charter
allowing any legislature to declare that a specific act may operate
notwithstanding some of the rights guaranteed by the Charter. For
example, the fundamental freedoms, legal rights, and equality rights can all be
over-ridden for a five year period after which a legislature can renew the
notwithstanding clause again if it wishes. The other rights are not subject to
the notwithstanding clause.
All the governments, except Quebec,
also agreed on an amending formula which, while requiring unanimous consent of
all the provinces in a few areas, such as changes to the Supreme Court,
provided that most other amendments would require the support of parliament and
2/3 of the provinces provided they had over 50% of the total Canadian
population. Following this compromise the Charter of Rights and the new
amending formula were submitted to and passed by the British Parliament.
Quebec had many problems with the
1982 changes. For one thing the 2/3 and 50% provision effectively eliminated
what it claimed had been a traditional veto right for that province over
constitutional amendments. Provisions of the Charter relating to minority
language education also rendered unconstitutional some Quebec education
legislation. To mark its displeasure the Quebec government, still led by Rene
Lévesque, refused to participate in federal-provincial conferences except as
observers and systematically prefaced every bill introduced in the National
Assembly with a clause stating that it operated notwithstanding the new Charter
of Rights.
By 1985 Mr. Trudeau, Mr. Lévesque
and their respective parties were out of office and the new governments led by
Brian Mulroney in Ottawa and Robert Bourassa in Quebec promised to bring Quebec
back into the constitutional fold. Mr. Bourassa established five conditions for
accepting the 1982 changes.
Recognition in the constitution of Quebec as a distinct society.
Changes in the amending formula to re-instate Quebec's veto right over
amendments.
Participation in the appointment process of Supreme Court judges.
Constitutional guarantees of an increased role in immigration policy.
Limitations to the federal spending power giving it the right to opt out
of national programs and still receive funding for its own program having
similar objectives.
After discussions with the other
Premiers, some of whom added their own items, such as a new method of
appointing Senators from lists submitted by the provinces, an agreement was signed
in 1987. Under terms of the 1982 amending formula the Accord had to be approved
by Parliament and all ten provinces. Unlike the 1982 amendment which required
the consent only of the governments, it was agreed that the 1987 amendments
would be submitted to the legislatures in each jurisdiction for ratification.
So far Ottawa and eight provinces have given their approval. Two provinces
where there have been elections and changes in government since the Accord was
signed (Manitoba and New Brunswick) are threatening to withhold consent unless
certain changes are made.
In less than a decade we will have
seen changes that reflect some American assumptions about the political
process. These include a Charter of Rights limiting the powers of all levels of
government, a sharing of certain appointment powers formerly held by the Prime
Minister and a movement toward a system characterized more by the principles of
checks and balances and less by responsible government as traditionally
understood in Canada.
Reform of the House of Commons
Aside from constitutional changes
during the last decade there have also been a number of important reforms to
the rules of the House of Commons. Indeed, soon after taking office Mr.
Mulroney made it clear that one of his priorities was reforming an institution
which had reached a nadir in 1982 during the so-called "bells crisis"
-- a shut-down of the Chamber caused wen the Official Opposition refused to
appear for a vote and the Speaker let the bells ring for 14 days and nights
until the parties had worked out a compromise.
The Office of Speaker
Nothing personifies the principles
of parliamentary government more than the office of Speaker of the British
House of Commons. The historic struggle between Crown and Commons produced an
office dedicated to upholding the rights of individual members against the
government and acting as a spokesman for the House collectively. For historical
and social reasons the Canadian Speakership never enjoyed the prestige and
independence of its British counterpart. But only recently did legislators
realize that the conditions responsible for the strength of the British
Speakership may not be reproducible. The need for imitation was less than the
need for innovation.
One of the first recommendations of
the Special Committee on Reform accepted by the Government and adopted by the
House was that the Speaker cease to be nominated by the Prime Minister and
instead be chosen by secret ballot of members. Canadian Speakers have always
been very reluctant to use their considerable authority as exemplified by
former Speaker Sauvé during the Bells crisis. By contrast the first Speaker
elected by the secret ballot process, John Fraser, has indicated he is willing,
if necessary, to play a more active role to foster the smooth operation of the
House. In 1987 he effectively ended a filibuster to a bill extending drug
patent protection even though he had to allow a rather unusual government
motion in order to accomplish this. The following year the Senate instructed its
Finance Committee to divide a bill that had been passed by the House. When the
Senate returned half the bill to the House the Speaker took the initiative in
suggesting this was an infringement of the rights of the House. Eventually the
Senate reconsidered its position.
Both issues were more political
than procedural. With the House and Senate controlled by different parties for
the foreseeable future and no dispute settlement mechanism in sight, we may see
a continuing role for the Speaker in expediting parliamentary business and as
spokesman for the House vis-à-vis the Senate. In fact having given the Speaker
a very powerful mandate it would not be illogical if, over time, legislators
begin to expect more leadership from the Chair in certain areas such as time
allocation. Of course such a development will not happen overnight. It may take
a couple of minority parliaments to establish the full powers of the new
Speakership. But ultimately we may see an office having more in common with the
Speakership of the U.S. House of Representatives than that of the British House
of Commons.
The Role Of the Private Member
The business of the House of
Commons is, for the most part, controlled by the government. It decides which
bills are introduced, how long they are debated and, assuming it has a
majority, the outcome of the debate. One carryover from earlier days when
government control was less pervasive is a special one-hour period several
times a week known as private members business when motions or legislation can
be introduced by private members -- i.e. those who are not members of the
cabinet. Such bills are limited in scope in that they cannot impose a tax or
require the expenditure of public funds, although to some extent the decision
as to what constitutes an expenditure can be rather subjective and is
ultimately decided by the Speaker.
In the past these bills, after
being discussed for one hour, were usually dropped from the order paper without
as much as a vote. Under the new rules bills and motions are still drawn for by
lot but the decision as to which bills come to a vote rests with a Committee on
Private Members Business. This obviously encourages lobbying, coalitions and
horsetrading across party lines in an attempt to convince the committee to
choose one bill or another. That will hardly seem unusual to anyone familiar
with congressional politics but Canadian parliamentarians have had little scope
for such activity since the advent of disciplined parties a hundred years ago.
In fact, if Canadian politicians are criticized for being obsessed with process
perhaps it is because 75% of elected members (i.e. those not in the cabinet)
have little input into day-by-day policy-making so there is an understandable
tendency to concentrate on process and problems of constituents.
Has the reform of private members
business make a difference? Traditionally the best a private member could hope
for was the mixed joy of seeing an idea taken over and implemented by the
government. In 1988 Lynn McDonald an NDP member introduced a bill to prohibit
smoking virtually anywhere under jurisdiction of the federal government. When
the Health Minister introduced a modified version of the anti-smoking bill it
looked as though the Conservative majority would defeat the private members bill
and support the government. But they did not. Lynn McDonald's bill became law,
pre-empting the government on this issue. Not exactly a revolution but
something that would not have happened five years ago.
The Committee System
A legislative body with nearly 300
members is not an effective forum for many kinds of debates so it is not
surprising that most work of the House is done in committees. Without going
into detail about the structure and operation of the committee system before
and after the recent reforms, a few general points should be kept in mind.
In reforming their committee
structure Canadian legislators made a conscious effort to avoid the more
anarchical features of the congressional committee system, such as the
proliferation of subcommittees. The objective of the reform was to make
committees less dependent on the executive. For example in order to undertake
studies committees formerly needed a reference by the House which in effect
gave the cabinet pretty close control over committee activity.
Now every standing committee can,
without a mandate from the House, launch its own study or investigation into
matters falling within its jurisdiction. To obtain money to travel or to hire
staff its budget is approved by a committee made up of the chairmen of all
standing committees and chaired by the Speaker. Thus, a hierarchical system of
operating and thinking has been replaced by a more egalitarian one whereby
chairmen and members have to lobby each other to see "who gets what,
when".
During the last parliament the best
example of a committee operating as envisaged by the new rules was the Standing
Committee on Finance. It undertook independent studies of tax reform, credit,
banking and other areas under consideration by the government. It became an alternate
source of public policy discussion. The chairman became a figure of some
importance on Parliament Hill and membership on the committee was perceived as
a political asset, not a thankless and unrewarding obligation(4)
The greater freedom has not produced
any discernible problems for the government or any serious breakdown in party
discipline. Committee chairmen are about two steps removed from the cabinet
and, human nature being what it is, they would have to think very hard about
jeopardizing their chances for promotion by being too critical. Nevertheless a
framework has been provided for a much wider participation in the legislative
process and further movement in this direction can be expected.
Review of Appointments
Traditionally Canadian parliamentarians
have had little experience with scrutinizing government appointments. During
the 1984 election campaign Mr. Mulroney suggested that patronage could be
reduced if there were some kind of legislative scrutiny process. This question
too was referred to the Special Committee on Reform of the House.
From the very outset some argued
that an American type confirmation process was incompatible with the principles
of responsible government. After long and difficult debate the reform committee
recommended two categories of appointments for scrutiny. One did not give any
veto power to members of the legislature and would apply to deputy ministers
and heads of some crown corporations. The other would be used for appointments
to a few specified regulatory agencies having a substantive policy making role
with little executive control over their activities. Appointment to these
agencies would be automatically referred to the appropriate parliamentary
committee. Should the committee report negatively on a nominee the government
would be obliged to withdraw the nomination.
This latter part of the
recommendation was eventually rejected by the government. The result is a
situation whereby nominees are examined by committees but their appointment
cannot be stopped. Presumably adverse publicity itself is enough to discourage
unsuitable appointments. But one must wonder if this argument holds much appeal
to parliamentarians. Having started down the path of scrutiny will they not
seek to enlarge their role in the review process? Again, it may take a minority
parliament before the issue is revived. Or, the review of appointments might
eventually be considered as part of Senate reform which is where it probably
belongs.
Conclusion
Canadians have always been
attracted by certain aspects of the American political system -- federalism in
the last century, the Bill of Rights in this one. Does this mean we are on the
way to full scale congressionalism? I do not think so. For one thing, in
practical terms the American legislature's distinctiveness derives not so much
from a different constitutional theory as from the process by which Members of
Congress are elected and the independence this gives them vis à vis their
party.
The American laissez-faire approach
to voter registration and primaries, their ritualistic conventions and debates,
and their methods for election financing and reapportionment hold little
attraction for most Canadians. Without significant changes in Canadian
electoral law and party organisation there is little cause to worry about
Canada's parliamentary system becoming "congressionalized". Sir John
A. Macdonald was a great admirer of the American form of government and never
hesitated to borrow ideas. He simply sought to improve upon defects which time and
events had shown to exist in the American system. This is probably still a good
rule of thumb for Canadian reformers.
Notes
1. Numerous authors have written
about the differences between American and Canadian political culture. See for
example, Edgar Z. Friedenberg, Deference to Authority, M.E. Sharpe, Inc., White
Plains New York, 1980.
2. The origin of most reforms since
1984 will be found in the Report of the Special Committee on Reform of the
House of Commons, Ottawa, June 1985. (Also known as the McGrath Report).
3. See statement by former Senate
Speaker Allister Grosart, Senate Debates, October 18, 1979, pp 115-116.
4. See Robert J.O. O'Brien,
"The Finance Committee Carves Out a Role" Parliamentary Government
Vol. 8 No. 1 pp. 3-10.