Roundup: The AG’s vacancy problem

The Auditor General was on Power Play yesterday to talk about his recent examination of the Great Lakes Pilotage Authority, and how the lack of appointments to the board meant a lack of oversight for the CEO, who then abused his expenses. Michael Ferguson then went on to talk about the greater pattern of unfilled vacancies by this government (which will be the focus of one of his upcoming reports), and it’s a verifiable problem that this government has, in large part because as part of their reform of the system to ensure that more women and minorities were appointed, they changed to a system of seeking out nominees to having people apply for positions. For as much merit as ensuring more diversity among appointees has, the way they’ve handled it has been a gong show.

All of this is well and good to point out, but where I have a problem is where the AG suggests that if governments can’t fill these positions in a timely manner that we should consider a system where these boards have their own nomination committees to make their own appointments. This should raise a major alarm because it’s a sign of creeping technocracy and undermining accountability and responsible government. Government makes these appointments so that there is someone who can be held to account for them. Who is accountable if boards nominate their own members? How do we ensure that they don’t turn into cesspits of nepotism after we worked long and hard to ensure that we have taken patronage out of our current appointment systems?

Unfortunately, this is not a surprise with Ferguson, whose recommendations around an external audit committee for the Senate ignores the detrimental effect that this would have on Parliament’s ability to be self-governing. I do think it’s problematic that you have an officer of parliament who keeps advocating for greater technocracy and the undermining of our parliamentary democracy (and worse, that nobody in the media will dare to call him on it, because apparently we worship auditors general and believe that they can do no wrong). His observations about the problems around appointments are valid, don’t get me wrong. It’s his solutions that are untenable in the extreme.

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Roundup: Cullen’s plan to launder accountability

The NDP used their Supply Day motion yesterday to call for a new process to vet nominations for Officers of Parliament using a newly created subcommittee of Procedure and House Affairs that would have one member from each recognized party to vet the nominees. And while you may think on the surface that this is innocuous, there are plenty of problems with this proposal that go to the core of our system of Responsible Government.

For starters, the original motion was absolutely a veto, despite Nathan Cullen’s protests, and that’s not entirely appropriate given our system. They negotiated an amendment to remove that section, but the Liberals decided they weren’t going to agree to the motion in any case, which is fine because the veto wasn’t the bigger problem.

The problem is that a committee like this will not actually bring other parties into the process to make it “non-partisan,” but rather, it will launder the government’s responsibility for the appointments so that it becomes impossible to hold them to account when things go wrong. Remember when the Public Sector Integrity Commissioner, Christiane Ouimet, turned out to be a giant problem? Do you remember what the government said when it came up in QP? They said “We consulted and no one raised any objections then – not our problem,” which was untrue. Add this process in, and that “not our problem” becomes baked in. At least this government has enough of a shred of decency when it comes to our parliamentary system to not look to find a new solution to wash their hands of future accountability, because that’s all that this motion offers – aside from the ability for opposition parties to engage in shenanigans of their own on the nomination sub-committee. And this isn’t even mentioning the fact that for many of these Officers, they serve Parliament as a whole, so a process that excludes senators becomes even more problematic for the functioning of our system.

To try and tie this to what happened with Madeleine Meilleur is a bit of a red herring – through the established process, it became clear to everyone (except maybe Mélanie Joly) that Meilleur simply wasn’t suited, most especially after she managed to alienate Anglophone Quebeckers – an extremely difficult thing to do, and yet she managed, and with the Senate lining up to vote against her appointment, it pretty much proves that the existing system worked.

No, this is about this farcical notion that people like Cullen keep pushing about how this is all about “making Parliament work.” It already works when the players involved do their jobs, and creating new processes creates added complications and unintended consequences, like the laundering of accountability, which nobody thinks about or raises as an issue because few people bother to learn how the system works. This Americanized suggestion is flash in the pan, trying to capitalize on what was clearly a blunder that the existing system nevertheless corrected. And if people had any good sense, they’d stop listening to Nathan Cullen’s attempts to “improve” our democracy.

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No, Elizabeth May, that’s not what “loose fish” means

(Note: This had been submitted as an op-ed that wasn’t picked up. I’m posting it here instead).

In Monday’s National Post, a section of Elizabeth May’s chapter in Turning Democracy Inside Out: Practical Ideas for Reforming Democracy was republished, in which May called for parties to essentially be abolished, and for the prime minister to be elected from the Commons as a whole at the beginning of each parliament. The problem? That May was wrong in both her history and her understanding of what Responsible Government means, which undermines her argument and spreads dangerous misinformation about how our democratic system is supposed to work.

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Roundup: Removing a senator over dinner

It started with a dinner invitation. The Prime Minister invited all of the senators who had thus-far sponsored government legislation to dinner to thank them for their contribution and to, presumably, talk about Senate modernization, and how it was taking shape. One of those senators was a sitting Conservative, Senator Stephen Greene, who had sponsored Bill S-4, on a tax agreement between Taiwan and Israel. The Conservative Senate leader, Senator Larry Smith, decided that if Greene was going to dine with the Prime Minister, that he was out of the caucus. Greene said fine – I’m going to be an Independent Reform Senator.

Part of Smith’s impetus for this move is because the Conservatives in the Senate are trying to preserve the Westminster role of opposition in the Upper Chamber, and that’s not a small thing. And there is a push, led by those like the Government Leader – err, “representative,” Peter Harder, to try and do away with the traditional roles of government and opposition, so that you have one big body of independents, which some of us have a problem with.

The other part of the context here is that Greene has been pushing for reforms in the Senate that would do away with partisan caucuses, and this would have been the final straw for Smith.

I will add that I do think that there is a problem with trying to eliminate the roles of government and opposition in the Senate, and I do think it’s problematic that the government is getting independent senators to sponsor legislation – particularly government legislation, and most especially budget bills. Those should be shepherded by ministers, which the Government Leader should be as opposed to this farcical “government representative” nonsense. Co-opting independents in this way has been problematic not only from a procedural and accountability framework (because ministers should be able to answer on behalf of cabinet when they sponsor such bills), but we have had several instances of independent senators sponsoring these bills with the intent to move amendments to them right away, which complicates their role in sponsoring and defending those bills. Part of this is the growing pains associated with the new reality of the Senate, but it’s also a reflection of this stubborn refusal by the PM to properly appoint a Government Leader who is the point of accountability in the Senate under our system of Responsible Government. Harder is not that, and it is a problem, and what happened to Greene is a fracture point in this bigger issue.

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Roundup: Amendments are not some power grab

After hours of debate, the Senate passed the first amendment to the assisted dying legislation to remove the definition “reasonably foreseeable death” and replace it with the language from the Supreme Court’s decision in Carter, and immediately the pundit class erupted in cries of horror and outrage that how dare an unelected body dare to touch the precious words of the elected House of Commons, and that this newly emboldened Senate was dangerously overstepping its bounds going forward.

Oh. Please.

It’s like any hint of context went out the window when it comes to this particular bill, and the fact that you have a Supreme Court of Canada decision that it’s supposed to be in answer to (not that parliament needed to draft a law, mind you). There are serious concerns about the constitutionality of this bill. MPs in the Commons believed it, you have a lower court judge in Alberta that believed so when crafting a judgment around an assisted death request and how the state of this legislation wouldn’t conform to the Supreme Court decision, and now Senators are doing their constitutional duty of weighing the constitutionality of a piece of legislation, and quite rightly, they find it wanting. This is why the Senate exists, and what the “sober” part of “sober second thought” means – that freed from the constraints of having to worry about what voters will think, they can take a more clear-headed look at these controversial bills. And if you get hung up on the “unelected” part, apparently the policy and legislative roles taken not only by the Supreme Court or the various administrative tribunals that exist in this country also should keep you awake at night. (Also, their democratic legitimacy comes from being appointed by a government who has the confidence of the chamber, but you know, it’s not like Responsible Government is anything other than a minor detail).

So what happens next? Once the remainder of the amendments are decided upon one way or the other, the report gets sent back to the Commons, which they will then debate and amend at their pleasure – you know, like democratically elected legislators are supposed to do. The Justice Minister doesn’t sound keen on these amendments “without more safeguards,” but I also take this with a grain of salt because I do believe the government is setting up this narrative of reluctance so that they can show that they have been “forced” to accept what the Supreme Court has laid out by a Senate that could veto the bill if they find it unconstitutional. Because remember, MPs who have electoral considerations don’t like to be seen to take bold steps with difficult decisions when it’s easier to hide behind another body who can take the blame for them. And it’s not like MPs aren’t used to giving abdicating all manner of their roles to other unelected bodies (the courts, Officers of Parliament, and the Senate), this just being one more in a long line of examples. It’s one more reason why I find this concern trolling by the pundit class all the more difficult to swallow. If MPs were actually serious about their jobs, then it wouldn’t be incumbent upon the Senate to be the grown-ups of parliament, and yet here we are.

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Roundup: Further conversations on constitutional conventions

In response to my blog post yesterday on the our unwritten portions of our constitution being just as important as the written parts, I had a lot of response over the Twitter Machine, many trying to argue that parties were not an integral part of the system, but historian Christopher Moore took the time out to chastise me for the use of the term “constitutional conventions” when it comes to Responsible Government. But the problem is that Moore is actually wrong in what he tried to argue. To wit:

Smith should look at Section 54 of the Constitution Act, 1982, which sets out in plain language that only the cabinet can make and propose the raising and spending of money. That is what defines the role of the cabinet of ministers. It budgets; it plans the getting and spending.  But then there is Section 53, which bluntly states that only the House of Commons can give approval to the cabinet’s proposals for getting and spending.

A few problems with this. First of all, he’s citing the Constitution Act, 1867 and not 1982, and looking at Section 54, there is no mention of cabinet at all:

It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed.

As is consistent in our constitution, there is no mention of a PM, or cabinet, because they are part of Responsible Government, which as I pointed out yesterday are part of the unwritten conventions that we inherited from the UK. As is consistent with the rest of the written constitution, only the Governor General is mentioned. And here’s the kicker: the unwritten constitutional convention is that under Responsible Government, the Crown – by way of the GG – acts on the advice of ministers, and for that to happen, ministers must hold the confidence of the Chamber. Ministers via the convention do all executive government in the Queen’s name. It’s not written because it’s a convention, per the preamble, as a constitution being similar in principle to that of the UK. Moore’s contention that it’s not a convention and that it’s embedded in the text does not hold. So while I’m happy to be corrected when I get it wrong (and it happens), this is not one of those times. Also, if you’re going to quote the constitution at me, then quote the constitution. And as for those people on the Twitter Machine insisting that Responsible Government can function without parties, well, it’s possible in a theoretical world with vampires and unicorns, but it will never happen in real life, so trying to disprove it to make a point is pretty much moot. The practice of parties developed for a reason. Maintaining confidence without them is a fool’s errand.

With many thanks to Philippe Lagassé for talking this issue through with me.

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Roundup: Constitutional conventions are constitutional

There was another example of the shocking level of civic illiteracy in our elected officials yesterday as Green Party leader Elizabeth May again trotted out the canard that political parties aren’t in the constitution. She was making a perfectly good point of privilege around the way that independent MPs and those from not officially recognised parties are being adversely affected by rules changes that are being carried forward from the last parliament, and that’s fine, but she’s shockingly wrong about the constitutional status of parties. Why? Because while political parties are not literally in the Constitution Acts of 1867 or 1982, they are part of the grounding framework of our system of Responsible Government, which is in and of itself a constitutional convention – part of our unwritten constitutional inheritance from the United Kingdom. It shouldn’t need reminding but apparently it does because apparently nobody learns civics any longer, but constitutional conventions are constitutional. In fact, they are just as enforceable as elements of the written constitution. And lo and behold, the preamble to the 1867 Act is:

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom

This is exactly where our Responsible Government framework lies. The UK has an unwritten constitution, and its constitutional conventions have stood the test of time, and this is precisely why May and others who follow her logic are dead wrong. Parties are at the heart of Responsible Government because it’s how a government gains and maintains confidence. The system simply cannot hold with hundreds of “loose fish” all vying for attention and reward. (If you try to bring up the party-less territorial governments, smack yourself upside the head because you simply cannot scale up a consensus model from 19 members in NWT or 22 in Nunavut to 338 in Ottawa. It is a complete impossibility). Does that mean that we don’t currently have problems with the powers accumulated by party leaders? No, we absolutely do, but that’s also because we tinkered with the system of selecting those leaders, presidentializing them with massive membership votes rather than caucus selection that keeps them accountable in the Responsible Government tradition. But parties are absolutely essential to the functioning of our parliamentary system, and the fact the written portions of our constitution are silent on that fact is indicative of absolutely nothing. If one relies solely on the written portions and not the constitutional conventions, they are wholly ignorant of our system of government, and need to be called out as such.

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Roundup: A vote for support

We have the motion on the Order Paper now for the debate and eventual vote on the newly refocused mission in Syria and Iraq, and to the relief of those of us who care about things like Crown Prerogative and the powers of the executive, it’s crafted simply in the language of supporting the mission. This is critical, because asking for authorisation is a giant can of worms that nobody really should want to even contemplate opening, but even with this language, it’s going to cause headaches going forward. To recap, asking for authorization is something that launders the prerogative and thus the government’s accountability. When something goes wrong, they can shrug and say “the House voted for the mission,” and to varying degrees, the Harper government did this, particularly with relationship to Afghanistan. These non-binding votes are a rather unseemly bit of political theatre that purports to put the question to MPs – because apparently they need to have buy-in when we send our men and women in uniform into danger, or some such nonsense – and it gives parties like the NDP a chance to thump their chests about peacekeeping and pandering to pacifistic notions (and does anyone seriously buy that nobody is trying to stop the flow of money, arms and fighters to ISIS without Canada butting to the front of the line to finger-wag at them?), and parties like the Conservatives a chance to rail that they were doing so much more when they were in charge (when they weren’t), or when they were in charge, to pat themselves on the back for everything they were doing (when really, it tended to be a bare minimum at best, or a symbolic contribution at worst). Of course, all of this could be done with a simple take-note debate without a vote, which is how it should be, because a vote implies authorisation, and that’s how the NDP have read each and every vote in the past, and they will loudly remind everyone in QP and elsewhere about it. Trudeau has been trying to keep expectations measured by saying that they recognise the role of the executive in making these decisions – but he went and proposed a vote anyway, muddling the role of MPs in this situations like these. That role, to remind you, is to hold the government to account, so if you’re going to have a vote on a military mission, then one might as well make it a confidence vote because foreign policy and control of the military is at the heart of the Crown’s powers. (These authorisation votes that aren’t confidence measures are playing out in the UK right now, which is making a mess of their own system, for the record). Trudeau should have known better than to continue this pattern of confusion and left it at a take-note debate, like it should be. A vote, whether it’s an actual authorisation or just a declaration of support, only serves to make the waters murky, which we need our governments to stop doing before they do lasting harm to our system of Responsible Government.

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Roundup: Carrying on the co-opting

Justin Trudeau and three ministers announced the new plan to fight ISIS yesterday, and while the CF-18s are coming home in two weeks, the surveillance and refuelling planes will remain along with triple the number of special forces trainers, plus ministerial advisors in Iraq and capacity building in neighbouring Jordan and Lebanon, along with a lot more humanitarian assistance on the ground, and small arms and ammunition to our Kurdish allies. Its’ an approach that the Americans praised (despite Rona Ambrose’ dire warnings), but there is something that is troubling, which is the fact that Justin Trudeau has declared that he will still call a vote on the matter in the House of Commons. Why is this important? Because it has to do with the practice of Responsible Government. Under our system, the government – meaning the cabinet – takes a decision, and the Commons gets to hold them to account for it. But what Stephen Harper decided to start doing back in 2006 is to put things which are normally the prerogative of the Crown – things like military deployments – to a vote in the Commons, for purely political reasons. Part of those reasons were about trying to drive a wedge in the Liberal ranks over the mission in Afghanistan, and he did it very effectively. The other part was that it gave him political cover. When things went wrong, and they did, his ministers stood up to remind the House that they voted for that Afghan mission. Because that’s what insisting on votes does – it co-opts the House’s accountability role, and launder’s the government’s prerogative so that they can help avoid being held to account. It was bad enough that the Harper government, it’s worse that the Trudeau government, which says a lot of good things about restoring the proper functioning of our parliamentary system, to not do so in this case – especially after saying that he understands the role of the executive in military matters, and then goes on to promise a vote anyway. (I would also add that it’s mind-boggling that the NDP would continue to insist on a vote despite the fact that it co-opts them, but mind-boggling is what a lot of their positions tend to wind up being). One imagines that the language of the vote will be one which simply expresses support in the mission rather than has the language of authorisation, as Harper did with the previous Iraq vote, but it’s still terrible all around, not only for optics, but the proper functioning of our system of government.

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Roundup: A refresher on the GG

With a minority government likely in the offing – possibly Conservative, possibly Liberal – we’re seeing a spate of new articles about post-electoral scenarios and the role of the Governor General. While some of them get it more or less right, (my own offering a couple of weeks ago here), into the middle of this, Duff Conacher of Democracy Watch sticks his nose in and starts making trouble of his usual sort – deliberately misconstruing the system to his own ends. And then, unfortunately, As It Happens picked it up and ran with it without someone credible to counter it. Fortunately, Philippe Lagassé was already ahead of that game earlier yesterday morning, followed by a smackdown of Conacher later in the evening. I’ll leave you to it.

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