Proceedings of the Standing Committee on
Rules, Procedures and the Rights of Parliament
Issue 4 - Evidence - May 26, 2015
OTTAWA, Tuesday, May 26, 2015
The Standing Committee on Rules, Procedures and the Rights of Parliament, to which was referred Bill C-586, An Act to amend the Canada Elections Act and the Parliament of Canada Act (candidacy and caucus reforms), met this day at 9:30 a.m. to give consideration to the bill.
Senator Vernon White (Chair) in the chair.
[English]
The Chair: Honourable senators, this is the first meeting of the Rules Committee regarding Bill C-586, An Act to amend the Canada Elections Act and the Parliament of Canada Act (candidacy and caucus reforms). With us today is the sponsor of the bill, the Honourable Michael Chong, P.C., M.P., who represents the riding of Wellington—Halton Hills. Welcome.
After his appearance we will hear from the Honourable Bob Rae, P.C., O.C., Q.C., via video conference, and also from Professor William Cross of Carleton University.
Bill C-586 was introduced in the House of Commons in April 2014 and was received by the Senate in late February 2015. The bill would amend the Canada Elections Act so that the chief agent of every party must indicate the names of individuals authorized by the party to endorse prospective candidates. It would also establish processes for caucuses composed of members of the House of Commons to expel and readmit members, to elect and remove a caucus chair, to require leadership reviews and to elect an interim leader. The measures would apply to caucuses that vote to adopt them.
Mr. Chong, thank you for being here. We look forward to your opening remarks, which will be followed by questions from senators.
Before we begin, however, I would ask the senators to introduce themselves.
Senator McIntyre: Senator McIntyre, New Brunswick.
Senator Batters: Senator Denise Batters, Saskatchewan.
Senator Neufeld: Richard Neufeld, British Columbia.
Senator Doyle: Norman Doyle, Newfoundland.
Senator Wells: David Wells, Newfoundland and Labrador.
Senator Joyal: Serge Joyal, Quebec.
Senator Martin: Yonah Martin, British Columbia.
Senator Fraser: Joan Fraser, Quebec.
Senator Jaffer: Mobina Jaffer, British Columbia.
Senator D. Smith: Senator David Smith from the "Province of Toronto.''
The Chair: And I am Vernon White from Ontario.
Mr. Chong, we will take your statement, please.
[Translation]
Hon. Michael Chong, P.C., M.P., sponsor of the bill: Mr. Chair and honourable senators, thank you for inviting me to appear before the committee.
[English]
I would like to make three quick points. First, the reform act concerns only the House of Commons. It concerns how the caucuses of the House of Commons are to be governed and how members are to be elected to the House of Commons.
It does so by amending Part III of the Parliament of Canada Act and paragraph 67 of the Canada Elections Act. Neither Part III of the Parliament of Canada Act nor paragraph 67 of the Canada Elections Act has anything to do with the Senate; they concern only the House of Commons.
As honourable senators know, section 18 of the Constitution Act, 1867, enshrines the principle that each of the two chambers in our bicameral Parliament is independent of each other with respect to its own affairs, including the affairs of its caucuses. Section 18 reads:
The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada . . . .
This principle has been actualized in section 4 of the Parliament of Canada Act, which reads:
The Senate and the House of Commons, respectively, and the members thereof hold, enjoy and exercise
(a) such and the like privileges, immunities and powers as, at the time of the passing of the Constitution Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof, in so far as is consistent with that Act . . . .
The constitutional principle is clear: The House of Commons can determine how its caucuses are to be governed and how its members are to be elected.
On February 25, 2015, the House of Commons overwhelmingly pronounced on this matter by voting for the changes proposed in the reform act in a vote of 260 in favour and 17 opposed.
The second point is this: To amend the bill is to kill the bill. Amending the bill is a procedural way to defeat the bill.
The third and final point: Tens of thousands of Canadians contacted their local member of Parliament to voice their support for the reform act. MPs responded, and the bill went from being a long shot to being overwhelmingly adopted by the House of Commons. Let's demonstrate to Canadians that their Parliament can respond to their desire for reform and pass the bill before the end of June.
Thank you.
The Chair: Thank you very much, Mr. Chong.
We'll start with the critic of the bill, Senator Fraser, please.
Senator Fraser: I wasn't even on the list yet.
The Chair: You are now. I'm sure you have a question, by the way.
Senator Fraser: Welcome to the Senate, Mr. Chong.
The bulk of this bill has to do with party caucuses, and one of my fundamental difficulties is the question of why the law should be telling party caucuses how they should or should not organize their affairs. As you know, different parties have different constitutions and traditions, and here we're faced with a bill that would say, "We don't care what your party constitution is, what your various traditions are, or what your membership thinks. This is the way it's going to be.'' Why you do you think it's necessary to do in law as distinct from working within your own party to have your principles adopted within that party?
Mr. Chong: Thank you for the question, Senator Fraser.
I think the rule of law is incredibly important. What I have observed in my 11 years as an elected member of the lower chamber is a place where a lot of ad hoc, arbitrary and chaotic decisions take place in respect of party caucuses and all three recognized parties in the House of Commons. If there is any place in this country where the rule of law and order should be paramount it's in the Parliament of Canada.
One of the reasons for the ad hoc and arbitrary nature of caucus governance and rules is quite simply because there are no written rules. In that fact, Canada is an outlier among Westminster parliamentary democracies in that we have yet to codify either in legislation or in some form of writing the rules governing House of Commons caucuses.
So all my bill proposes to do is to use the instrument of legislation — a statute — not to impose upon caucuses a rigid set of rules but simply to demand that caucuses vote four times after each general election to decide whether or not to adopt the model rules contained in the bill or to reject them. In the event that they reject them, they can revert to the status quo. Alternatively, they can adopt a modified version of the rule.
But, at the end of the day, I think the "clubby'' atmosphere of a 19th century Parliament that operated under unwritten conventions is increasingly becoming archaic, and I think we need to codify these rules into writing to put more order and rule of law into the way caucuses governed and the way the rules are interpreted.
Senator Fraser: I guess we do have a fundamental disagreement there, don't we.
Senator Batters: Mr. Chong, welcome to our committee. Over the years, I have probably sold thousands of party memberships, as I'm sure you have, in order to keep the riding association going, for leadership campaigns and nomination campaigns. Over the years, hundreds of thousands of Canadians have purchased a party membership for $10 or $15.
In the 2004 leadership campaign, 68,000 members of the Conservative Party of Canada voted for Stephen Harper, and he won that particular leadership campaign. In the 2011 election that we just had, 5.8 million Canadians voted for Stephen Harper and the Conservative Party.
However, this bill would give caucus members, and only some caucus members — because it doesn't include senators — the right to veto the will of thousands of party members and, ultimately, the electorate on leadership issues. In the case of the government, that could mean that a handful of MPs could potentially remove a duly elected prime minister without consultation with party members or Canadian voters. How do you square that with grassroots democracy?
Mr. Chong: Thank you for that question. I have a refutation and two points to answer your argument.
First, 5.8 million Canadians did not vote for Stephen Harper; 5.8 million Canadians voted for their local Conservative candidate in each of Canada's 308 electoral districts. We don't elect governments in this country or even prime ministers; we elect a legislature — in the next election — of 338 members of Parliament who represent some 35 million Canadians. That's a very foundational, constitutional point that needs to be acknowledged.
With respect to your argument, the first thing I would say is that members of Parliament already have the right to review party leaders. The problem in Canada is that when that takes place, because the rules are not written down on paper it becomes a chaotic, arbitrary, ad hoc and messy affair.
There have been numerous examples of this in provincial legislatures in the last 18 months. We can think of former Premier Kathy Dunderdale in the province of Newfoundland and Labrador; former Premier Alison Redford in the province of Alberta; Mr. Tim Hudak, Leader of Her Majesty's Official Opposition in the Ontario Legislature, who was also removed by caucus some mere months ago. Those are just some examples at the provincial level.
We can think of Mr. Stéphane Dion, who was removed as party leader in December 2008 in the aftermath of the prorogation crisis, not through the convention of delegates at a national Liberal Party meeting but through protests from other quarters.
We can also think of the removal of Stockwell Day as Canadian Alliance leader in 2001. There, again, it was not done by the members of a registered political party.
But let's for a second take your argument, and the argument of many, that only party members can remove a party leader. If we are to take that argument as true, then we have, in effect, semi-privatized the election of premiers and prime ministers in this country, because, unlike the United States, political parties in Canada are not open to the general public. Parties in Canada, for the most part, operate as private organizations.
In the case of Jean Chrétien, he was elected in 1990. In those 13 years, he did not undergo a single leader review by the registered political party. Mr. Harper was elected in March 2004. Since his election to government in February 2006, he has not faced a review in the last nine years. We, in effect, have privatized the review and accountability of party leaders in our system.
If the only way a leader can be removed is through the membership of a party, then we are saying, in the case of Mr. Harper, that the 67,000 Conservative Party members who voted for him in March 2004 — over 11 years ago — can override the wishes of some 15 million Canadians who voted in this election a mere four and a half years ago and overturn the democratic wishes of the House of Commons.
I don't buy that argument for those two reasons — first, that MPs already have that power and, second, I don't believe we should semi-privatize our parliamentary system of government. I don't think that argument holds water.
Senator Jaffer: Thank you for being here.
Before I ask a question — and I will check on this — but I think Mr. Chrétien did go through a number of reviews. Also, further to Senator Batters' point, in the Liberal Party caucus, it would be just seven members who could decide to get rid of the present leader. I have a discomfort with that. You've answered Senator Batters on that, so I will ask you another question.
I'm concerned with your starting point of saying that if we amend it, we kill the bill. Basically, you're asking us to rubber-stamp this bill; is that correct?
Mr. Chong: That is correct. I believe that sober second thought does not apply to three types of bills in front of the Senate: They do not apply to supply bills; they do not apply to ways-and-means bills; nor do they apply to bills that deal exclusively with the governance of the House of Commons in the election of members to the House of Commons. I think those three bills are clearly in the purview of the elected House of Commons and not the Senate. So taxation, spending, and issues that exclusively concern the governance of the House of Commons should not be subject to amendment by the Senate.
The Chair: Keep questions and responses brief. We have another panel after this.
Senator Jaffer: Is that your belief, or are you relying on some convention?
Mr. Chong: I believe that's a clear constitutional convention. I think it's clear, as shown in the crisis of the British Houses of Parliament around the time of the First World War, that the upper chamber cannot amend for defeat bills concerning taxation or spending. I think it's also clear, based on section 4 of the Parliament of Canada Act and section 18 of the Constitution Act, 1867, that each chamber in our bicameral Parliament is independent of each other in respect to their own internal governance. So I don't think the Senate should have any say on how the house is to be organized and governed. I also think the house overwhelmingly pronounced on February 25 how it wishes to govern itself and how its members are to be elected.
Senator Wells: Thank you for appearing, Mr. Chong.
It's instructive sometimes to look at what would happen with respect to the leader who is Prime Minister if this bill were passed, because we're talking about removing a leader of a party. Let's assume that that leader is the Prime Minister.
After an election where a Prime Minister is installed, because of the majority or the plurality of seats go to one party and the leader of that party sits as Prime Minister, this bill would be designed to — well, let's take it to its conclusion: Eventually the majority of caucus members could "deselect'' that Prime Minister and the majority would then put in another interim Prime Minister or Prime Minister. That Prime Minister would sit without any say from the membership or from the Canadian electorate; is that correct? It would be a simple majority —
Mr. Chong: No, that's not correct.
Senator Wells: — of the party's house caucus members?
Mr. Chong: A couple of points. First, the leader of a party with plurality does not necessarily become Prime Minister; it's a leader who has the confidence of the majority of the House of Commons that the Governor General appoints as Prime Minister.
With respect to the election of an interim leader, that leader would become the interim leader of that party if the rules were enacted, but not necessarily the Prime Minister. The Governor General would still have to assess who held the confidence of the majority of the members of the House of Commons.
Senator Wells: Do you think it's safe to assume it wouldn't be the Prime Minister or the leader that was just deposed by his caucus?
Mr. Chong: Correct, but that's the case today.
Senator Wells: That's good.
So the next step would be —
The Chair: Senator Wells, are you asking a second question?
Senator Wells: No, I'm asking the first question.
The Chair: Please be more succinct. We have about 40 minutes, and there are a lot of questioners.
Senator Wells: I just want to understand and take it to its logical conclusion.
So it would then go to the party membership to elect a leader who would possibly become Prime Minister.
Mr. Chong: Yes, the party members would elect the leader of the party in a leadership contest, in the same manner that they did when Stéphane Dion was deposed as party leader and replaced by Michael Ignatieff and when Stockwell Day was deposed and replaced by Stephen Harper as leader. It would unfold in the same way, except the caucus would have a more orderly set of rules to rely on in order to effect that review and removal.
Senator Wells: I understand.
Following this process laid out in your bill, we would have two consecutive prime ministers not elected by the will of the membership or the will of the electorate. I just wanted to know if you see that as somehow destabilizing to a country such as Canada, which has, by convention and by law, one of the most stable democracies in the world.
Mr. Chong: First off, these rules in the reform act are presently in place in other Westminster parliamentary democracies, and I don't see the United Kingdom, Australia or New Zealand as places of instability or chaos.
Second, I disagree with the premise of that question. Canadians do not elect a Prime Minister; Canadians elect a legislature of — as of this October — 338 members of Parliament, who then come together and express or maintain confidence in a particular leader, based on which the Governor General appoints that leader as Prime Minister.
If we are, however, to accept your argument, we have, in effect, semi-privatized the election of heads of government in this country by handing it over, not to the Canadian electorate to decide based on the selection of local candidates in an election, but rather to a semi-private organization called the registered political party, which only has reviews once every 10 years or so for a leader who is in power.
Senator Joyal: Welcome, Mr. Chong.
I would like to come back to the first part of the bill. You have really not explained the gist of this proposal, which is essentially to give to a person authorized by a political party the responsibility to recognize a person as the candidate of that party. We know presently that it's the leader of the party who has that ultimate responsibility. I was a member in the House of Commons for 10 years, and I lived through that system. I would like to get your explanation of the roots for this proposal.
My second question is: Since it's a person authorized by the party, there is always a chance that that person will be chosen or will receive the approval of the leader of the party. In other words, is it as effective as you would contemplate it should be?
[Translation]
Mr. Chong: I made a compromise to gain the agreement of my fellow members in the House of Commons. The first part of the bill seeks to amend the Canada Elections Act. As you know, that act hasn't been amended since October 1970, and prior to that, party leaders didn't have the authority to decide who the party candidate would be in every riding across the country.
[English]
For the first time since October 1970, the bill would remove the statutory requirement that the party leader endorse a candidate for an election and leave that decision to each respective political party to decide. Political parties, as you pointed out, may very well decide to revert back to the party leader, but I believe that in the long-run, there will be pressure on political parties to democratize themselves and to ensure that local party members make the final decision as to who the party candidate will be.
Put another way, the bill removes for the first time since October 1970 the statutory impediment to parties democratizing themselves in the selection of party candidates. This is a very important thing.
Ultimately, the bill is trying to accomplish freer votes in the House of Commons. Most members of Parliament agree with their party 90-plus per cent of the time, me included. However, we don't agree with our parties 100 per cent of the time. The fact is that the average voting record in the Canadian House of Commons is 100 per cent compliance with the party whip. It's astounding. If you look at the empirical data, there is no other Westminster parliamentary democracy — no other democracy — where the elected chamber has that kind of compliance with the party whip.
Why is that? Party leaders in our system have immense powers that are not available to other leaders in other countries. They have the unilateral power to veto or approve party candidates, to expel members from caucus, and they face virtually no accountability when it comes to caucus reviews of the leader and election of the leader by caucus.
The bill is simply trying to rebalance power — a little bit — to the way it once was in Canada. These rules are not —
Senator Cools: And not that long ago.
Mr. Chong: These rules are not new; they were once in place in Canada, and to a much greater degree than the bill proposes.
It is an attempt to do that for one simple reason: Canadians are losing faith in their Parliament and their democratic institutions. That is clear. Poll numbers show it. Voter turnouts show it. We need to reconnect our Parliament with Canadians, and I think these modest reforms will take us a step in that direction.
Senator Joyal: Thank you for your answer.
I remember well the days in the year or so close to election, the regional leader would say, "If you don't toe the line, you won't get your letter;'' meaning, if you don't vote the way we want you to vote, you won't be the recognized candidate, even though you might have the support of your riding association by far.
There is no doubt that this is used as a whip instrument to compel the members to toe the party line. There is no question about that.
On the other hand, I think we have to recognize also that if a candidate who is selected from a riding association is the spokesperson of a lobby group — and I don't want to identify any of those lobby groups, because I don't think it should be proper — there is a safety valve for the leader to say, "Well, I don't want that the party to be taken over by a group of people who decided all to become members in one riding,'' especially today with the Internet in that it's easy to rally people around one cause.
I can recognize the validity of it, but there is also the fallout, which is the fact that it is used largely by the party to maintain discipline; in other words, to compel members to vote or to avoid criticizing policies or taking stands that are different than the government wants to propose.
On the other hand, the second point is the fact that a member can only be expelled according to a very clear procedure that you state. I feel that 20 per cent is a bit low, because if there is a debate on an emotional issue or on a conscience issue, there are very clear dividing lines among people. It is easy to gang up on somebody. I don't really want to tell my own story, but in those days, in 1976 especially, I was suing my own government; I was suing my own Prime Minister and Minister of Transport in court. It would have been easy to get 20 per cent of the caucus members to ask that I be expelled.
If they were to have voted on 50 per cent, I'm not sure, but 20 per cent is a low threshold, in my opinion, especially because politics is the dynamics of grouping and regrouping people. It's never static. Somebody who is with you one day will be against you the next day, and the chemistry of all political life is to try not to make enemies for the rest of your life.
Why did you choose the 20 per cent threshold?
[Translation]
Mr. Chong: Basically, the threshold whereby 20 per cent of caucus members must request a review of the occupancy of the caucus chair or party leader is not mandatory. Every caucus in the House of Commons can amend that rule and raise the threshold from 20 per cent to 30 per cent or 40 per cent. I suggested 15 per cent, in accordance with the electoral model of the Conservative Party in the U.K.
[English]
The Conservative Party in the United Kingdom has had that rule in place for decades, and 15 per cent of caucus can simply request a vote. The original bill was set at 15 per cent, but I heard concerns from Canadians and from my colleagues in the House of Commons about the threshold being too low, so we did two things: We raised it to 20 per cent, and we made the rule optional so that caucuses have the right to reject the rule and adopt a modified version of the rule.
Senator Joyal: Thank you.
Senator Doyle: First of all, let me commend you on your very hard work on the issue, and I want to tell you that I support your bill.
That said, I want to ask about proposed section 49.5 and if it sets up an ongoing official opposition within the caucus. Let us say you had 20 per cent of the caucus vote to initiate a leadership review, but then you have the leader winning by 70 per cent. What happens to the disaffected members in caucus? Is there any finality to it all? Is it done only once, or does it go on and on?
Mr. Chong: It currently goes on and on. As we know in the province of Newfoundland and Labrador, when Premier Dunderdale was removed as party leader and subsequently premier, the Progressive Conservative Party of Newfoundland and Labrador went through a series of leaders in the space of about six to eight months, precisely because of issues with caucus and caucus support.
We currently have a system that allows for continual review. The bill would simply codify the rules into writing, which would allow for a better application of the rule of law, order and finality, frankly.
To answer your question, it is possible to that a caucus would revisit these reviews a number of times in a single Parliament, but on balance, I think members of Parliament would use these powers judiciously and would use them only if there was a need to hold party leaders accountable.
Senator Doyle: So is it healthy, in your view, to have that kind of a democratic tension, if you will, within the caucus?
Mr. Chong: I think so. I think it's really important in our system of government that accountability takes place not only every four to five years during a federal general election where Canadians vote in a parliament of 338 members of Parliament, but that accountability takes place each and every day here on Parliament Hill.
The exercise of power is something that needs to be constantly regulated and checked, and I think having better accountability mechanisms, better checks and balances on power within party caucuses and the House of Commons, where only the confidence convention reigns, is a necessary thing to ensure better government and accountability.
Senator Cools: I would like to thank you for coming before us, Michael. I don't think I'm alone when I say that I admire your tenacity, and your wishes and your bill to see better done.
It is no secret that contemporaneously party leaders are acting with absolute power and that caucuses are quite ferocious places to work in. Things are done to party members that could not be done to caucus members and that could not be done in any other place of work but this one. Quite often secrecy is the cover for many ills.
On the other side of that, in spite of all of this, they are fantastic human beings and very good people, and so one must not go the other way.
I do not know if you were here at the time, Senator Joyal, but it was during a bill that we called the Pearson Airport bill and a Liberal senator not only voted against his government, but in the Senate a tie vote is a defeated vote and he was the tie.
I was a great admirer of this particular senator; he was a very independent-minded senator, independent in every way. But I wish to tell you that immediately a caucus was convened and a lead senator did the unusual and moved a motion to kick that senator out of the caucus. I tell you, he didn't have a chance in hell to succeed. I made it quite clear to the then Leader of the Government in the Senate that if they went down that road of putting him out of caucus, I would have a lot to say about it. And the leader — I won't say he or she — said, "Don't worry, Anne, I have no plans to kick anybody out of caucus.''
I just want you to know that quite often these issues and outcomes rest on the nerve strength of individual members of the caucus who feel so strongly in the opposite direction that quite often they can provide a balance, and that has to happen.
The Chair: We have a long list of questions for the member.
Senator Cools: Maybe, chairman, we should have the witness for a longer period of time, have him for two committee meetings if necessary. These are vital interests —
The Chair: I agree.
Senator Cools: They're interests that many of us, especially the independents —
The Chair: And many people have questions, senator, if you would like to put your question.
Senator Cools: I can only ask them in this committee. So the solution, chairman, is to have a longer meeting.
The Chair: Do you have a question, senator?
Senator Cools: Do you want to cut me off, chairman?
The Chair: Do you have a question for the member of Parliament?
Senator Cools: I think I put my hand up and said I had a question.
The Chair: Please ask the question.
Senator Cools: You can't dictate the time that I use to ask the question. You cannot dictate what I say, chairman. If I choose to make some commentary first, that is my absolute right. If you want to cut me off, go right ahead.
As I was saying, the famous statement made by — I forget which lord, one of those great guys, where he was talking about the development of the absolute power that prime ministers now hold, which was never intended. He said it took 700 years to take that power from the king — this is in the U.K. — and 50 years to give it to the Prime Minister. That was said a few hundred years ago.
Do you have any comment that we can make in respect of the massive numbers of caucus members from both caucuses, all caucuses, that have been expelled in the last few years compared to the previous, say, 10 years? Not so many. Do you have any comments on the whole question of absolutism, which is the absolute opposite of parliamentary governance?
Mr. Chong: Thank you, Senator Cools, for the question.
With respect to absolutism, I think this bill returns Canada to its fundamental roots. Just behind the Senate part of Centre Block is one of the largest statues on Parliament Hill. It's a statue to Robert Baldwin and Louis-Hippolyte La Fontaine for the introduction of responsible government into the Province of Canada in the 1840s. Responsible government, as many of you know, had been introduced just before that in the Nova Scotia legislature.
This is a uniquely Canadian invention, and we were ahead of many other democracies in the world when we introduced this concept. It was a marked shift from centuries of governments before. Essentially, before that point in time, the Governor-in-Council had the absolute power to do as he or she wished, was accountable not to the elected legislature but to him or herself and to London. We made a marked shift and established a constitutional convention that the leaders of parties are accountable to their caucuses and that the leaders of parties in power are accountable to the legislature as a whole, as is the Governor-in-Council. That was a marked shift that has continued to this day.
Unfortunately we have moved back towards the absolute right of kings in placing so much power in party leaders because of rule changes to our system. We are an outlier amongst British Westminster parliamentary democracies in how we have governed ourselves over the last several decades. We have changed the rules.
Sir John A. Macdonald would not recognize the Parliament that he once worked in. He would not recognize the rules under which caucus is operated. He would not recognize the way in which party candidates are selected. It would be a foreign institution to him, despite the fact that he actually worked here on this very Parliament Hill.
With respect to the issue of expelling members of the House of Commons caucuses, what I can say about what's happened in the last decade is this: It has been ad hoc and arbitrary. If there is one place where ad hoc and arbitrary measures should not be tolerated, it's here in the place where we value the rule of law.
Why do I say that the measures to expel members of the house caucus have been ad hoc and arbitrary? Because sometimes it has been done by a vote of caucus. Sometimes it's been done through the party leader. Sometimes it's been done through other measures. There are no clear rules, and I don't think ad hoc and arbitrary measures have any place in the heart of our democracy here on Parliament Hill.
Senator D. Smith: Thanks for coming.
I just want to talk a bit about the basic rationale of this bill. This bill, of course, relates to the Commons, not to us. It's the Commons, and it did pass 260-17, and that's duly noted by me. I sat in the other place, back in the Pierre Trudeau days, with Senator Joyal, so I've been there and done that.
Maybe you can comment on this. I think the basic rationale of this bill is that the role of MPs can be made more meaningful and give them more ability to get their views out and take the positions that reflect their views and not be a robot on a daily basis. I think the example you give, and I'm just asking you if this is the gist of it, is the U.K. example where they have these three line whips. There's a one-line whip, a two-line whip and a three-line whip, and there's a point at which you cross the line. But for the most part you are able to take a different position on something that doesn't fundamentally blow it all up.
Am I interpreting this correctly, that you want to give MPs more opportunity to get their views out, take positions that reflect their views and not do the robot thing all the time?
Mr. Chong: Thank you, Senator Smith. That's exactly the point.
If you look at the empirical data — and various newspapers have done an analysis of this — the average member of Parliament votes with their party 100 per cent of the time. It is astounding. No other elected chamber in the Occident has that kind of voting compliance.
If you look at the empirical data for parliaments like the Palace of Westminster, the numbers are very different. There is a website called publicwhip.org.uk where members of the British House of Commons are ranked in terms of the number of times they break rank with their party. Many members break rank with their party 15, 20 or 25 per cent of the time. In fact, a full quarter of the British House of Commons breaks rank with their party more often than any member of the Canadian House of Commons. About 150 MPs break rank with their party more often than any member of the Canadian House of Commons.
I don't think that's because the candidates they elect to the Commons across the Atlantic are any more capable than Canadian parliamentarians. I don't think it is because they're any more independently minded. I think it's simply because of the rules.
The rules here are very different. Here the leader has the unilateral power to veto or approve a party candidate. Very rarely do they face leader reviews, and they're certainly not elected by caucus as they are in the U.K. to a much greater degree. Finally, they have the unilateral power to remove a member from caucus.
It was astounding for me to learn that the Clerk and the Sergeant-at-Arms of the House of Commons are essentially appointments of the Prime Minister. In the United Kingdom, they're appointments by the house and the Speaker.
There is a series of changes and differences here that give leaders immense powers and the reason for which the whip here is incredibly heavy and why there is very little dissent to any piece of legislation in front of the house.
Senator D. Smith: Do you find it ironic that the British Parliament, which is the mother of parliaments, has adapted these changes to make the role of MPs there, in their individual capacity, much more meaningful than Canada?
Mr. Chong: I find it a source of optimism and hope that we can change our system here.
The British Parliament is a lot more modern and flexible in its rules than is the Canadian Parliament. In fact, in the last decade, the British Parliament has substantially reformed itself in respect of its parliamentary committees.
The standing committees of their House of Commons, what they call their select committees — they have other types of committees as well — are elected by members of Parliament. Their chairs, in turn, are elected by members of those committees. Their legislative committees are truly independent of party-leader power. Here committee members sit at the pleasure of the party leader.
Now, that wasn't always the case at Westminster. Those rules have changed in the last 10 years, because the British Parliament and elected members of Parliament over there have realized that they need to respond to the public's desire for reform.
I think we can work in the same spirit here and pass this reform act, which will move us in the right direction. I think that the rules in the bill are in place in other jurisdictions, and we have ample evidence as to how they operate.
Senator D. Smith: I might say in closing that I've spent quite a bit of time at Westminster, and I really think they are a role model for us.
Senator Martin: First of all, thank you to Michael Chong for being here. I agree that we can recognize the work and the passion with which you've worked on this bill and on other matters.
I have a couple of questions. First, regarding the definition of "caucus,'' you talk about how this bill deals solely with the governance of the House of Commons and, therefore, you're asking us to "rubber stamp'' this bill. But we are members of the national caucus, and in the Glossary of Parliamentary Procedure, "caucus'' is defined as "A group composed of all Members'' of the House of Commons "and Senators of a given party.''
I agree that we have independent houses and rules that govern those houses, and in the case of leadership review, what happens to a leader as a member of the national caucus. With the potential passage of this bill, how do you see the role of senators when we would be directly impacted by that decision?
I understand the independence of houses, but certain decisions affect us both. We are a bicameral system. We complement; we work concurrently. It's not completely separate. I will acknowledge the independence, but I'm trying to find how it will affect me as a senator, as a member of a caucus, and how you see us in this overall equation.
Mr. Chong: Thank you for the question. It's an important question that many senators have asked me privately over the last number of weeks.
National caucus, as we call it, would continue, and senators would continue to sit in national caucus. But I think it's important to note one fine point, which is that national caucus has no standing in law or in the Constitution.
What happens every Wednesday morning in the Conservative caucus and, more recently, in the Liberal caucus is more properly termed a joint meeting of the House of Commons Conservative caucus and the Senate Conservative caucus. We jointly meet, but under law we are two separate entities. The Constitution and Parliament of Canada Act are clear. The independence of the two chambers is innate and clear.
That's why, for example, Part II of the Parliament of Canada Act talks about Senate caucuses for all the parties, and the Rules of the Senate talk about Senate caucuses and how those Senate caucuses are to be recognized. Part III of the Parliament of Canada Act and the Standing Orders of the House of Commons talk about House of Commons caucuses and how they are to be established and recognized. The rules are very different.
The reform act does not create a new entity called the "House of Commons caucus.'' That currently exists in law.
For example, a Senate caucus is comprised of five members or more of the Senate who self-identify as such and who are affiliated with a registered political party. That's very different than the House of Commons.
In the House of Commons, the rules for the establishment of a House of Commons caucus is any group of 12 members of Parliament or more who self-identify, point final. There does not need to be a corresponding registered political party outside of Parliament in order for that recognized party in the house to be established. There are very different sets of rules in current law and convention that are established.
With respect to the joint meeting that takes place every Wednesday morning, or what we colloquially call the national caucus, that would continue as before. It's just that if the four rules concerning party leader review and removal, expulsion and admission of caucus members, review and election of caucus chair and the election of an interim leader, if any of those four rules is enacted unmodified, then those votes would be open only to members of the House of Commons caucus and not senators.
Frankly, in practice that largely happens today. We'll often hear in national caucus members cry out when there is the occasional hand vote, "Members of Parliament only. No senators.'' We, in effect, do that on many votes today when it comes to various issues.
Senator Martin: I see that as different, as being what happens to the leader of a party, which as members of the national caucus — I understand what is codified in law and what is by convention or tradition, but as it's defined now, it does include senators. Well, there is no definition of "caucus'' that would exclude senators, but in the reform act — although I know you're saying it's governing the House of Commons, it seems more exclusive and less parliamentary and going against the parliamentary traditions than not. That's just my interpretation.
Mr. Chong: Sure.
Senator Martin: The other thing I wanted to ask you about is you mentioned the other parliaments in Australia, New Zealand and the U.K., but none of those countries actually have legislation governing what the political parties do with their respective political systems in regard to leadership review. I'm wondering why you didn't take your ideas to the convention floor and have the membership look at it and make the those changes that would affect what happens with the leadership review rather than enshrine it in law.
Mr. Chong: I think that party caucuses are the responsibility of parliamentarians. The way caucuses are governed and whether the chair should be elected or members should be expelled by the party leader or by secret ballot vote of caucus is not the decision of a semi-private organization called the registered political party. Those are decisions of members of Parliament. We self-assemble here on Parliament Hill and we self-organize. We should not be handing off the rules concerning a very public institution called the Parliament of Canada, and more particularly, the elected House of Commons, to a semi-private organization called the registered political party. How caucuses are structured and governed here on Parliament Hill is the responsibility of elected members of Parliament.
When it comes to the decision of party candidates, the bill does give party members the decision as to how party members are to be selected. The bill says that it's up to each registered political party to decide how their party candidates are approved. The bill also leaves it to each registered political party to review the leader in the way in which they currently do. It also leaves it to the registered political party and its members to elect the permanent leader in the way in which they currently do. It doesn't affect those grassroots rights. It simply says that there is a parliamentary party — that's clear.
That's why we have a wall between the registered political party and the parliamentary party. That's why you and I cannot hold a meeting of the Conservative Party of Canada, the registered political party, here in this room. We can have a meeting of the Conservative caucus party here in this room, but we cannot have a meeting of the registered political party or its electoral district associations because that party does not exist here on Parliament Hill. We can use the resources we have for the party caucus and for the parliamentary party, but we cannot use Board of Internal Economy resources and Senate Internal Economy resources for the purposes of a registered political party. That's clear because that registered political party does not exist here on Parliament Hill.
The Chair: If I may, I have eight more questions and we have about eight more minutes, so we're going to have to push this a bit. I would ask that the questions be succinct and the responses as well.
Senator McIntyre: Thank you, Mr. Chong for your presentation.
In reviewing the bill, I note that it remains silent on or does not address whether a party chooses its leader by another means, such as acclamation. It would appear to limit the ability of a political party to amend its constitution and bylaws where it wishes to dispense with an election process, for example. I would like your thoughts on this.
Mr. Chong: My bill does not impinge in any way, shape or form the rights of the extra-parliamentary party, the registered political party, to decide how the leader is reviewed or to decide how the leader is elected. It simply says that we have parliamentary parties recognized under the Parliament of Canada Act that need to have further definition as to how they operate and are governed. Currently, parties on Parliament Hill — recognized parties in the House of Commons and recognized parties in the Senate — don't have a clear set of rules as to how they operate. They operate under very ad hoc and arbitrary measures. The bill simply is attempting to put more order and rule of law into the operation of these parliamentary parties.
Senator Frum: First of all, Michael, you know how much tremendous respect I have for you, so if I do not vote for your bill, I hope you'll see that as me exercising and enjoying my right to vote against my party and my colleague on a private member's bill. It is in no way a reflection of my enormous esteem for you, the hard work you put into this and your very good intentions.
I do want to challenge you on the idea that a leader currently has no accountability to caucus. The example of Premier Dunderdale came up, and I would cite the example of Premier Redford as the most recent example. When a leader loses the confidence of her caucus, she is a dead woman walking. We have seen that. It's true of the leaders of all caucuses at the federal level as well. The votes are not the only reflection of the support that a leader has.
You say that you want the leader's power to be constantly checked, virtually on a weekly or monthly basis. I know you can understand the dangers — you as somebody who has often put his neck out on a very principled position and who doesn't always have everyone following you. You understand that leadership should not be measured on such a regular basis, but you have to bring your caucus along with you, or they'll kill you. You need your caucus with you, and Premier Redford would agree with that, I am sure.
Mr. Chong: Senator Frum, I agree with you on both points. I agree that leaders currently need to be accountable to their party caucuses, and that's currently the case. I hope I didn't give anyone here the mistaken impression that there is currently no accountability between party leaders and their respective caucuses. I believe that exists today. I just believe, however, that it needs to be codified so that the rules are clear.
I also agree with your point that while leaders are on a daily and constant basis accountable on Parliament Hill, it doesn't mean that there should be constant leader reviews. We don't want a Parliament where every week or every month or two or three times a year we have leader reviews for the four-year life of a Parliament. I envisage a Parliament more like that of the United Kingdom, Australia and New Zealand, where leader reviews may happen once every year or year and a half or so, or in the case of a crisis, where the issue is dealt with swiftly.
I think back to the Canadian Alliance days when that crisis unfolded over the course of many months, and it destroyed the party. The party went from about 20-plus percentage points in Ontario in the November 2000 election down to single digits in mere months. Why? Because the caucus had no clear rules on how to review then leader Stockwell Day. It descended into weeks and months of infighting. Instead of focusing on the issues that Canadians cared about, they focused on their own internal battles. By the end of it all, the leader was removed from caucus because, as you point out, they are accountable to caucus, but it was a tattered party. Eventually, they elected Stephen Harper as leader, who then very smartly and tactically merged with the Progressive Conservatives.
I ask many of my Conservative colleagues: Who are we merging with next time? Because there will be no other party to merge with if we ever go through a 2001-period where the leader is in crisis and caucus doesn't have clear rules.
Senator Fraser: In response to a couple of the statements you made, Mr. Chong, the Senate, in fact, does have the power to amend and defeat the bills to which you referred, but we don't do so very often. The only power we don't have is to originate money bills, but we can defeat or amend anything that the House of Commons sends to us.
Secondly, the rules to which you refer in Westminster, Australia and so on are set by the parties themselves. They are not one-size-fits-all laws applicable to each party. I think that's important.
Could you please tell me why you think that for us to amend this bill, which has been here for only three months and was in the house for nearly a year, would be to kill it? If we amend this bill and send it back to the House of Commons, I understand it goes to the bottom of the private member's list, but you can trade it up. You have made a convincing case that you have great support for the bill in the house, so why wouldn't you be able to do that?
Mr. Chong: First, I don't believe the Senate has any right to defeat bills of supply or bills of ways and means. I can assure the senator that I believe strongly that the unwritten convention has been established for decades in this country where the Senate does pass bills of supply and bills of ways and means unamended. I would put to honourable senators here that if the Senate were ever to defeat a bill of supply or a bill of ways and means, it would be create a constitutional crisis.
Second, I don't believe that this bill is one-size-fits-all. Caucuses have the right under the bill to modify the rules and to change them as they see fit, whether it's increasing the vote triggers for threshold from 15 per cent to 20 per cent or doing other things.
Finally, with respect to amending the bill, there is simply not enough time to amend the bill and pass it in the next four weeks. Amending the bill is a back door way to kill the bill. More importantly, the house has overwhelmingly pronounced on Part III of the Parliament of Canada Act and on the Canada Elections Act. The Canada Elections Act concerns elections and has nothing to do with the Senate. Part III of the Parliament of Canada Act has to do with the House of Commons, not the Senate.
If the Senate wishes to amend its own governance, as some members here have suggested, they're free to do so. They can introduce a Senate bill which amends Part II of the Parliament of Canada Act. For that second and more important reason, I don't believe the Senate should amend the bill.
Senator Batters: As we've been talking about, House of Commons caucus members are the only ones included in the definition of "caucus.'' I previously heard you say that that's because senators are appointed by the leader. But, in fact, because of the length of some of the terms on the Senate side, the reality is that any given Senate caucus has members appointed by numerous leaders. In our Conservative caucus we have senators appointed by Prime Ministers Mulroney, Harper and even Liberal Prime Minister Paul Martin. The Liberal Senate caucus contains, among others, members appointed by Prime Minister Jean Chrétien and Paul Martin, both of whom were known to be rivals as leaders.
As things stand now, nomination papers for candidates in the House of Commons are directly signed by the current party leader. Plus, though Canadians formally, indirectly, elect their Prime Minister, I'm sure you would agree that leadership is a bigger factor in a voter's choice very often than an individual candidate is.
I'm wondering who is actually more beholden to the will of a leader.
Mr. Chong: First off, I disagree with the premise of your question. The bill does not create a House of Commons caucus. In fact, I can quote to you what Part III of the Parliament of Canada Act says.
Senator Batters: I didn't say "create''; I said it includes.
Mr. Chong: The bill simply, for the purposes of clarification, says that when we're referring to "caucus'' in the amendments to Part III of the Parliament of Canada Act, it's referring to the House of Commons caucus. It's not actually excluding or including anyone. Part III of the Parliament of Canada Act currently refers to each "party that has a recognized membership of twelve or more persons in the House of Commons.'' A "recognized party'' or "party caucus'' in the House of Commons is referred to numerous times in Part III of the Parliament of Canada Act, as are Senate caucuses in Part II and in the Rules of the Senate.
The bill simply conforms to existing constitutional and statutory principles about the separation of the two houses and simply adds further definition to House of Commons caucuses.
The Chair: The clerk passed on to me that on at least one occasion, June 10, 1993, the Senate did defeat a budget implementation bill, so you know.
I'll let you respond at the end, Mr. Chong.
Senator Wells: Mr. Chong, I wanted to go to the question of this being — I know you used the word "optional'' — an optional bill. How does the Senate of Canada begin even to consider something that you would like to see law and that people can decide that they wish to follow or not? Here's a law that's optional and further, as I've read through the bill, has no non-compliance penalty.
Mr. Chong: I think that members of Parliament will be asked to vote four times if the bill becomes law after the next general election. Those votes will be recorded votes. So members will be held accountable to various constituencies: first, and most importantly, to the constituents in their electoral districts; second, to party members in their electoral district; and third, to their fellow caucus mates. I think those recorded votes are a way to ensure that MPs exercise their judgment accordingly and are held accountable for the decisions they take.
Senator Wells: Again, this would be an optional law with no non-compliance penalty?
Mr. Chong: That's correct. That provides for the flexibility.
On the one hand, people have criticized the bill for being too prescriptive. That's precisely why we put in place these votes. These rules will not be imposed on party caucuses. Party caucuses in the house will decide whether or not to adopt or reject them. If they reject them, they can revert to the unwritten status quo or, alternatively, they can adopt a modified, written version of the rule.
The Chair: We have one more question.
Senator Cools: I want to thank Michael again. I want to say thank you for your generosity of mind and of spirit.
I would like to point out two things to you. One, political parties are not semi-private institutions. They are private clubs, make no mistake about that. A political party is a very unique animal.
Caucuses had no legal existence until recently, which has always been one of the reasons they're difficult to deal with, because they were thought to be secret societies. They're secret. The debates, the discussions, are secret.
These have always been difficult areas. When they get outside, beyond what I would call reasonable management, then we have a problem, but I wanted to say that.
Again, I just want to make the point that there isn't a person serving in any caucus who is not well aware of the imperfections. The day is over when party leaders are being chosen who know the history of Parliament, the law of Parliament and even basic management principles.
We have a situation, and I've seen this many times, where newbies are leading newbies. It's not a good thing. Parliament was supposed to run always with precedence, the elder statesmen leading on the issues and so on. I'm sure you know that I served for 20 years as a Liberal caucus member and a very brief time in your caucus, but it wasn't brief enough.
Thank you.
The Chair: There is no question. Do you want to respond to the bill implementation comment?
Mr. Chong: In 1993, was that not to do with the GST? No, okay.
The Chair: We didn't see constitutional chaos.
Mr. Chong: I strongly believe that things have evolved. As political science 101 teaches, new conventions are established when political actors in the system conform to that convention.
I believe that over the last 23 years we clearly have established a constitutional convention. I think there would be a crisis if a budget implementation act, a bill of supply or ways and means were to be defeated in the Senate. I think things have changed substantially.
The final point to make is this: On all these issues of party leaders and parties, there is one thing that I've not emphasized when it comes to this bill. This bill reinforces the confidence convention in the House of Commons. The confidence convention only exists in the House of Commons. It's the fundamental mechanism through which governments are held accountable to the legislature. Governments are not held accountable in the same way in the Senate because the confidence convention does not exist in the Senate. By reinforcing the accountability mechanism of party leaders in the House of Commons to their House of Commons caucuses, you in effect and indirectly strengthen the confidence convention between the Prime Minister and the house as a whole.
The Chair: I want to thank you very much for the work you've put into the bill. I know how hard you've been working at this and other bills as well. Thank you for finding the time today. I think we could have gone a lot longer.
I want to welcome, via video conference, Mr. Rae and Mr. Cross to the Standing Senate Committee on Rules, Procedures and the Rights of Parliament. Because we are short on time, we will jump into it right away.
I understood you have some comments you would like to start with, Mr. Rae.
Hon. Bob Rae, P.C., O.C., Q.C., as an individual: I'll be very brief.
First of all, Mr. Chair and honourable senators, thank you very much for the invitation to speak to you. I'm sorry that I'm not able to be there in person. I would have much preferred that, but my schedule simply didn't permit it.
I did want to say that this is a subject that has interested me for a very long time, going back to my early days as a member of Parliament in the late 1970s and early 1980s, then as leader of the New Democratic Party in Ontario for nearly 15 years. Later, of course, I was an MP and then interim leader of the Liberal Party federally.
I think what Mr. Chong is trying to do is a step in the right direction. When you come right down to it, it's a pretty modest step, but it begins to get the debate going in a more focused way about how to ensure that we continue to distinguish between Parliament and the executive. It's an attempt to define, if you like, the role of the party leader in a way that somewhat limits the power of the executive or the power of the leader, but does so in a way that is quite respectful of the political realities of the time.
My own view is that the bill does not go far enough. I would like to have seen more said about the election of committee chairs, the way in which committees function in the house, as well as ensuring a greater independence for members with respect to voting on bills, and what should be a matter of confidence and what should not be.
Having said that, I'm a big believer that you take what's there. I know there were a lot of debates internal to the Conservative Party before Mr. Chong's bill finally emerged from the House of Commons. So I think the steps that it proposes are pretty modest.
Frankly, when you look at what's happening in parliaments in Australia, New Zealand and the United Kingdom, we are all wrestling with these problems and are attempting to give greater capacity to the ordinary member of Parliament, recognizing that the MP has a right to an independent voice and that the confidence of the caucus is crucial to effective leadership in any political party.
Under proposed section 49, the parties, in a sense, can either sign up to those provisions or not. That allows each party to decide whether this is how they want to govern themselves. So I don't see this as prescriptive, but I do see it as pointing in a certain direction.
[Translation]
It's an issue I've been interested in for quite some time. I had the opportunity to debate the matter in the 1970s and 1980s as an MP and as the leader of the Ontario New Democratic Party, and later as a Liberal MP and interim leader of the Liberal Party. The meaningful reform of the House of Commons and caucus activities is a democratic objective affecting not just members of the House of Commons, but also all Canadians. It's a matter of preserving the integrity of our parliamentary democracy.
[English]
I would be happy to answer any questions, Mr. Chairman.
The Chair: Thank you very much, Mr. Rae.
Mr. Cross.
William Cross, Professor, Department of Political Science, Carleton University, as an individual: Thank you. I would like to begin by thanking the Senate for the invitation to appear today. I'd like to congratulate Mr. Chong on spawning such an important discussion about our democratic institutions.
For the sake of brevity, I'll limit my opening remarks to the questions within the bill relating to candidate selection and leadership selection and removal. These are really my areas of expertise. I write broadly on these questions on the Canadian parties but also comparatively with the other Westminster systems, particularly Australia, New Zealand, Ireland and to some extent the United Kingdom. So I would be happy to address questions from members on those cases.
I come to this work with what I think is a healthy skepticism of state regulation of our political parties and particularly of the internal decision-making processes of political parties. There are a number of reasons for this, and I'll quickly mention two.
One is this notion of one-size-fits-all, which would pretend that there is a single best approach that should be identified and then imposed on all of our parties. Of course, our parties prioritize different democratic ethos; they reflect different democratic principles that they prioritize differently; and, of course, at varying times, they find themselves in very different political contexts. For instance, a party selecting a leader when it's in government — essentially selecting the new Prime Minister — is in a very different situation than a fourth- or fifth-place parliamentary party with a caucus of 12 selecting a leader. And it's not clear that one set of rules best reflects what might be done in these different cases.
A second concern is what I would refer to as the state capture thesis. As political parties become overly dependent upon the state for their financing and are heavily regulated by the state, at some point there is a tipping point. Research shows that at some point citizens become disengaged from parties that are overly regulated and that are too close to the state. This can lead to declining engagement in political parties and declining confidence in parties.
Having said that, it is clear there is a need for some state regulation of our parties. They're simply too important in our democratic processes; they're too privileged in terms of the amount of taxpayers' dollars they receive, the privileged position they have in election campaigns, to access to the public airwaves, and to the electoral ballot to say that we would leave them completely as private organizations.
The challenge, then, is to find the correct balance. In my mind, I think the current version of the reform act largely finds that balance. I find it much improved over the initial version of the bill, which was far too prescriptive and directive. The current bill is far less so and leaves considerable discretion to the political parties.
In terms of candidate selection, the proposal before you is also an improvement over current law. As long as we provide for party affiliation on the electoral ballot, which we've done now for more than four decades in Canada, there is a need for someone in the party to identify who the candidate of that party is in each electoral district. As you know, this authority currently lies with the party leader. The proposal in the bill would not necessarily end that; it would simply require that parties deliberate on this question and decide in some affirmative way who they want to have that authority.
This is not something new in Canadian politics, even since we've had party affiliation on the ballot. I would remind senators that in the 1990s the Reform Party, through party statute, essentially took this authority away from the leader and placed it with their executive council. That wasn't necessarily legally binding, but it was the practice of the party as enunciated through their statutes.
I suspect if this bill were passed, there would be experimentation within the parties and different approaches would be taken. This, in itself, might be a healthy thing.
For my last point, when it comes to candidate selection, there is a lot of misinformation when we hear proponents of the bill repeatedly say that the Canadian situation is far more centralized than the other Westminster systems. That is empirically not true in cases like New Zealand, Australia and Ireland. I would be happy to speak to that if senators are interested.
In terms of the proposal relating to leadership selection and removal — and I would say both selection and removal are affected by the bill before you — again I think this is a significant improvement over the original proposal since it's not compulsory or binding on political parties.
However, I do have some concerns with this part of the bill, particularly because it gives the authority by statute to the House of Commons caucus to remove the leader if the party should so desire. This is not consistent with Westminster tradition in which statutes are typically silent on this question, and the decision is made by the extra- parliamentary party. It is true that in a majority of the Westminster parties at the moment, this authority is given to the parliamentary caucus; they have the authority to remove the leader should they choose to exercise it, but it doesn't come from statute.
I don't think that this is insurmountable in the current bill for two reasons. First, quite frankly, the extra- parliamentary parties are not going to easily give up their rights in this regard that they fought hard to get. We can think back to the removal of Mr. Diefenbaker as the first time the extra-parliamentary party effectively removed a party leader. Shortly after that, through their statutes, the extra-parliamentary parties gave themselves this right.
I suspect that through resolution of convention, they will instruct their parliamentary caucus how to vote and whether to adopt the rules that are in Mr. Chong's bill. Of course, this wouldn't be binding, but I suspect this is the route they would go.
Second, nothing in the bill prevents the extra-parliamentary party from continuing to have authority to remove the leader themselves. We could possibly end up in a situation where both the parliamentary caucus and the extra- parliamentary party independently have the right to remove the leader. I will conclude by saying that that isn't unprecedented; the Liberal Democrats in the United Kingdom take that approach.
The Chair: Thank you, Mr. Cross.
We'll start questions with Senator Fraser.
Senator Fraser: Thank you to both of you, Mr. Rae and Mr. Cross.
I'd like to ask both of you a basic question: Is 20 per cent too low a threshold? It seems to me that particularly at times of controversy 20 per cent is going to be very easy to rally, at least temporarily, but "temporarily'' does the trick. I'm concerned that with a threshold as low as 20 per cent of the MPs in a given caucus, you can destabilize leadership that, upon reflection, should not have been destabilized.
Am I overly concerned here? What do you think?
Mr. Rae: First of all, it's important to stress that under the bill as it now stands, parties themselves are quite capable of passing their own rules, as has been pointed out, that would substitute for the proposal in the bill, in a sense.
Second, the practical reality of political life, from my experience of having led two different caucuses in two different legislatures, is that if you don't have the support of your caucus, you can't function as a leader. That's just a practical reality. The work of a political leader in Canada is so much involved in the life of Parliament and in the give and take of Parliament that if you lose the support of your colleagues, you're done.
All that the 20 per cent threshold does, if that's the threshold that a party chooses, is set in motion a review that would take place within the caucus. At that point, you have to win over 50 per cent in order to be successful.
I'm not sure it's that big a deal. If, on any given day, I couldn't get the support of over half of my caucus to support me continuing on as leader, I wouldn't stay as leader. It's just a simple fact; that's what happens.
Now, can you imagine a situation where 20 per cent would say, "Let's try and dump this guy''? I suppose you could imagine it, but the most likely outcome is that each party would decide in and of itself the process by which their leader will maintain their confidence.
A question that also has been raised by Professor Cross is: What happens if the political party says, "Here are our rules, not the rules as set out in the act, and we're allowed to substitute our rules for those that are in place''? That's a debate that will happen internal to the political party in question.
To me, the critical issue in the whole bill is that it's trying to reassert, in the context of a lot of other changes that are happening, the power of the constituency association, the rights of the individual member and the rights of the caucus to have something to say about how leadership performs. A practical matter would be as follows: A leadership review takes place within a caucus. The majority of the caucus says, "We no longer have confidence in the leader.'' At that point, the party would have to do something about it. They wouldn't simply be able to impose a leader upon the caucus.
As I said, I'm one of those people who believes that when you lead a political party, you're also leader of that party in the House of Commons. That's how you get your authority and legitimacy as leader. If you can't generate the support from your caucus, you shouldn't expect to stay on indefinitely as leader.
The Chair: Thank you, Mr. Rae.
Mr. Cross, do you have a response to the same question?
Mr. Cross: The 20 per cent rule can be seen differently depending on the size of the caucus, as well, and how many members that might entail. It speaks to the one-size-fits-all question. As Mr. Rae and Mr. Chong both point out, parties would be free to change that if they so desired.
In terms of what it means for challenges, I would just say two things. One, members are putting themselves out there when they challenge their leader, so we find that there is often hesitancy to do that in other systems where caucus can challenge the leader unless they really think they have the numbers to succeed, because there is some personal cost of course to doing that. Second, many parties in other systems put a restriction on how often these challenges can come. Thus, if a challenge comes and the leader survives, he or she cannot be challenged sometimes for another 12 months by another caucus resolution.
Senator Fraser: As a supplementary point, when you say the parties can vary the rules, what they would have to do is have their caucuses vote not to accept Mr. Chong's bill and then go off and make up their own rules, which I presume they could do anyway if any wanted to.
Mr. Cross: Correct.
Mr. Rae: That's right. The bill is, if you like, a suggestion or a fail-safe to say that if caucuses don't get it together and have a set of rules which are clearly established, then here is what will happen.
I go back to my point: This, in the whole scheme of things, is not the central issue. The central issue is how we try to give to members of Parliament a greater degree of independence, a greater capacity to elect a committee chair, and a greater ability to establish some independence from the executive?
When I look at how the U.K. Parliament works — and I know quite a bit about it, having studied it for some time — they have a far greater degree of independence and their caucuses have a greater degree of an ability to tell the executive, "No, this is our view.'' I think there is a whole range of things that we need to do in terms of freedom of voting that would make a big difference to creating a more demographic house as it goes forward.
Senator Wells: Mr. Rae, you said that each party will decide within itself with respect to leadership. Professor Cross said that parties will be free to change this, especially under this legislation. You can vote, I think, within seven days of the general election. Mr. Chong even said it was optional.
If this is optional, essentially voluntary by the parties or by the caucuses, and if there is no penalty for non- compliance, as you may have heard earlier in my question to Mr. Chong, if parties should choose their own and it's optional and should be free to change, should this be codified in Canadian legislation? Isn't this what we already do and have been doing for many years, very successfully, in our party structure?
Mr. Rae: I think if members of Parliament felt that they had complete confidence in the way in which they were being treated by the executive, I suspect that this bill would never have seen the light of day. But I think it speaks to a wider problem, which is why it has been presented. The problem is a sense among a great many members of Parliament, I would observe — and certainly there's a lot of literature to this effect — that they feel less in command of their lives and in charge of the politics around them and that they live more on a daily basis than they would like. That is why I think that the House of Commons passed the bill and why I think there were members of Parliament from all political parties who supported Mr. Chong's initiative.
I think you're right when you point out the provision in proposed section 49 of the bill, which says that if parties want to substitute their own judgment for the judgment that's in this act, then they're free to do so. I think that was probably the price of peace that Mr. Chong had to make in order to get it through, and I don't think that's the end of the world.
My view is that it has already started a debate, which is a very healthy one. I think it makes parties realize that whatever they do with respect to the power of the executive, the power of the leader, versus the members and the rest of the party and the caucus, these things do appear to need to be codified. This is because leaders need to hear that their power is limited, and that's the simple reality. You may recall and others may remember from the history books the famous debates in the British Parliament at the end of the 18th century, with the simple resolution that the power of the executive is too great and needs to be diminished. That debate has gone on ever since that time.
Senator Wells: I only wish that option was in the Income Tax Act, to opt in or opt out.
Mr. Rae: I think we all feel that way this time of year, don't we, senator?
Mr. Cross: I have two points in response. The first would be that the provisions relating to candidate selection are not merely suggestive. That part would be imposed so that the party would have to name someone, perhaps the leader. They could stick with the status quo or not.
With regard to the provisions of leadership selection and removal, I see it largely as a suggestion. It is suggestive that parties might do it this way, will be forced to consider and have a vote within their parliamentary caucus as to whether they want to do it that way.
You are absolutely correct that our political parties have been at the forefront of political parties around the world in tinkering with, amending and changing the ways in which we deal with party leadership selection and removal. The Liberals moved to convention in 1919, which was decades ahead of other parliamentary systems and sort of democratized and expanded the selection of leaders. The rules have been changed, as you all know, many times. So the extra-parliamentary parties have been responsive, if you will, and have been willing and able to change these rules.
I think Mr. Rae is correct that this really is, at its core, about trying to empower MPs and give them, more explicitly, some authority and checks on the leader and force the party to consider whether or not that's a good thing in deciding whether or not to adopt this suggestion.
Senator Batters: Thank you very much, both of you, for being here.
First of all, Professor Cross could briefly start by setting out your background? I understand that you are a professor in the Department of Political Science at Carleton University.
Could you please tell us more about your view that this particular bill's authority by statute to remove a parliamentary leader is not consistent with Westminster tradition?
Mr. Cross: I used to be a lawyer in the United States and was counsel to the Democratic National Committee for several years, so I have some experience with the operation of political parties. I then went back to school and did a PhD in political science and since that time have written extensively on questions of leadership selection and removal, and candidate selection. I have published many books on this subject, most recently with Oxford University Press.
With regard to your question about statutory enactment in these areas, in the Westminster systems the only thing I can think of that is close to a statutory requirement is in New Zealand, where there is a requirement that candidates for the house are nominated in a "democratic'' fashion. This was passed when the country changed their electoral system to mixed-member proportional, and people were concerned that the list of members would be chosen through some kind of backroom dealing. You might remember that discourse in Canada when we considered having closed party lists as well in electoral reform.
Nowhere else is there regulation that dictates the way in which, in the Westminster systems, candidates or leaders should be selected. It's left to the discretion of the extra-parliamentary parties.
Senator Batters: Mr. Rae, as a former party leader, I am sure that you're well acquainted with the dread of bozo eruptions from one's own caucus members. In some cases that can mean the airing of views that run counter to the values of the party and indeed sometimes most of the electorate. If leaders no longer have the power to sign nomination papers or remove individual MPs from caucus, how would you envision party discipline be enforced?
Mr. Rae: I appreciate the question.
To me, senator, I suppose it's always a matter of balance. In my view, the balance has gone way too far over to simply say that the leader can basically, at the pointing of a finger, kick somebody out of caucus. With the pointing of a finger, the leader can say, "You don't get the nomination.'' This is not just true in one political party; it's true in all political problems.
I have a problem with that. I think it goes too far. I am one of those people who believes that you will have people in caucus who from time to time have a different point of view. I can assure you, senator, that I've lived with that both federally and provincially and didn't always like it and wasn't always keen on it.
I think the leader of a government has a responsibility to ensure that the people who are in cabinet are supportive of what the cabinet is doing. I believe in cabinet solidarity. I think that's an important principle. It doesn't make sense to have people going every which way.
Within the broader caucus, my own view is you would leave a little more leeway. If people vote against the whip, they have to take some consequences for that.
I think what the bill is trying to do is say that banishing people for all time is not something which should simply rest with the leader. It should be a decision of the collective group. It should be a democratic decision, and every individual member should know where they stand.
Believe me, party discipline is a great thing to have, but party discipline is something that as leader you have to earn. I don't think it's something you exercise by simply banishing people from a caucus. My own view has always been a little different from that. Ultimately, if a caucus decides that's what's going to be done, then let the caucus make that decision, and it shouldn't simply rest in the leader's hands.
Senator Frum: Professor Cross, you offered to elaborate on the idea that Canada does not have the most centralized executive in the Westminster system. Could you elaborate on that, please?
Mr. Cross: Certainly. The point I was making was in regard to candidate selection. In fact, if we look at other parties in Westminster, we see that the centre, if you will, often plays a more significant role in the selection of local candidates in the party to stand for election.
For instance, to take an example, the New Zealand Labour Party of Helen Clark has often been in government, and candidates at the local level are selected through a "selectorate'' committee that is comprised of six or seven members, depending on the size of the membership of the local association. Three of those six are representatives of the national executive, what they call the New Zealand Council, and the other three are representative of the local association. If the local association is at all divided, then the centre essentially controls who is selected.
In Australia, there is decentralization in the sense that state parties determine the rules for what they call pre- selection, candidate nomination for the federal House of Representatives. The most common approach is to share the voting authority; so the state council might have 50 percent of the vote and the local membership vote will count for 50 per cent.
In Ireland, there are multi-member districts of three to five members. The centre decides how many candidates locals can nominate. Because of their electoral system, it's strategic. You don't want to over-nominate because of their preferential balloting. That's determined centrally. They will also give dictates to the locals such as, "You have to nominate people from various communities within the electorate,'' again to maximize the transferability of the votes. It's a bit complicated. But they also will often reserve one seat, keep one pick in reserve, so the centre can appoint a candidate if they so choose.
All these parties and systems have something similar to what's come be known in Canada as the "red light/green light'' process, where candidates are vetted by the centre and have to be approved before they can stand. There are also what they call in Australia captain's picks, where the leaders will occasionally appoint candidates similar to what can happen in Canada.
I wanted to correct what I think is a misimpression that we often hear that everywhere else it's left completely to the locals and that we are somehow anomalous in this regard.
Senator Cools: Professor Cross, I would like to welcome you here and express my appreciation for your joining us this morning.
It's an interesting thing. American presidents envy the powers of a prime minister. In fact, there is no other creature that has the absolute powers of a prime minister — set the election dates, everything included. On the issue that — Bob Rae. Hello, Bob. This is Senator Cools speaking.
Mr. Rae: Senator, how are you?
Senator Cools: I'm very well. Nice to see you.
In any event, the term "empower MPs'' is recurring in this debate. The second thing that is recurring in this debate, and I think you articulated it, Professor Cross, was that a challenge to the leader has a cost. I would like to hear more about these costs to MPs of a challenge. Big challenges, little challenges? What kinds of challenges? There are some people's whose egos are so weak that a mere question on the floor is a challenge. I would like to hear more about that.
In the area of what you're saying, where we're trying to regulate — and we must be careful not to over-regulate things that are difficult to regulate anyway — whatever happened to the leader who led by the force of moral character or by the force of intellect, the force of argument and the force of persuasion in respect of dealing with members? Where did this go? Mackenzie King was a master at this. Mulroney lost the support of the country but he never lost the support of his caucus. I can tell you that. He never did. What has happened to these requirements or characteristics of leadership? What has happened to them, if you have an answer?
Mr. Rae: Is that for me, senator, or Mr. Cross?
Senator Cools: For both or one.
Mr. Rae: I guess the short answer is you're absolutely right, that you can't prescribe a style of leadership. The key to democratic leadership is the capacity to share a vision and to be able to persuade. I think what Professor Cross is pointing out is that in any political situation, those who try to lead a revolt, if they succeed, become leaders, and if they fail, they are banished to the netherworld.
Within a democratic context, persuasion is everything. Again, Professor Cross pointed this out. In the U.K. system, and in many other systems, the leader is able to persuade a riding association or to encourage a riding executive to accept someone as a candidate because that's the person the leader would like. In any healthy situation, there would be a certain leeway for a leader to have that power and capacity of persuasion.
I don't see anything in this bill which prevents that from happening. In fact, quite the contrary, I think that's exactly what will continue to happen. You can't change the practical reality that the leader may have certain views as to who he would like to have as part of his or her team. That's politics. You can't legislate out politics by passing a bill.
What I think you can do is say yes, these things happen, but they happen within a set of rules. It is important to remember that the riding association, the constituency association, ultimately selects the candidate. Ultimately, the member of Parliament represents the constituency and has a relationship with that constituency that has a certain degree of integrity to it that goes beyond simple party affiliation.
I was elected 11 times. I've represented constituents federally and provincially for different political parties. The relationship between a member and a constituency is always important to understand. It's important to recognize that MPs are not just pawns in a game. They're not just part of a set of numbers that you throw up on a wall and say, "Now I have a majority.'' It's always an exercise in persuasion.
Mr. Cross: I would simply add that I think you're correct about the relative power of the Prime Minister versus the President. I think that largely is a result of the fusion of the legislative and the executive branch in our parliamentary system.
In terms of styles of leadership, I think it's important to remember that rules don't necessarily dictate behaviour. Mr. Mulroney was in a system in which his caucus did not have the formal authority to remove him. Yet, like any successful leader, and I think Mr. Rae would agree, he cultivated and continued to always cultivate strong support within his caucus.
Another example would Mr. Rudd in Australia, in a system where he could be removed as leader, was removed as leader by his caucus, and was known to be, some would say, arrogant and dismissive of his caucus members. There the rules may have suggested that people would behave in different ways than they did.
Mr. Rae: Senator, I'm sure you know the story of Mr. Douglas when he was Premier of Saskatchewan. He went into his office, and there in the waiting room were the King of Siam, of Thailand, and a backbench member of his caucus. As he walked through the reception area, he said to the caucus member, "Come with me.'' He pointed to the king and said, "Your Majesty, I have somebody very important I have to see, and then I will be able to spend some time with you.'' I think Mr. Douglas understood what it meant to lead a caucus.
Senator Cools: Yes, and I think the successful leaders must understand what it means and takes to do it and be prepared to give those things.
Senator McIntyre: Thank you both for your presentations.
Professor Cross, we've been talking a lot about the term "caucus'' in the last hour. As I understand, the term "caucus'' is not defined in any federal statute. A definition of "national caucus'' can be found in members' bylaws made by the House of Commons Board of Internal Economy, in the Standing Orders of the House of Commons, in the glossary of parliamentary procedure in House of Commons Procedure and Practice, but, for all practical purposes — and correct me if I am wrong — the term "caucus'' is not defined in any federal statute. An amendment to the Parliament of Canada Act will, for the first time, provide a statutory definition of "caucus,'' which will be a House of Commons caucus, and in that caucus senators obviously would not be included. Am I correct in saying that nowhere in our federal statutes can we find a definition of the term "caucus?''
Mr. Cross: Senator, I believe that's correct, and particularly of a House of Commons caucus in this case.
The Chair: If there are no further questions, I want to thank Professor Cross and the Honourable Bob Rae for finding the time today for us. It was very helpful.
Our next meeting will be next Tuesday, June 2, at 9:30, and we will send a list of witnesses out over the next few days. Thank you very much.
(The committee adjourned.)