Primus Inter Pares

“I’m asking for your resignation. I am the Prime Minister. I name my ministers. I’m demanding your resignation. I have the right to do so.”- Lester Pearson, prime minister and winner of the Nobel Peace Prize to Mr. Dupuis, cabinet minister

Canadian prime ministers have always had the unilateral authority to select a cabinet ‘team’; to hire and fire ministers; to shuffle cabinet at will; to appoint senators, Supreme Court judges, deputy ministers and exempt staff. However, despite the seemingly divine authority that prime ministers possess, the history books tell us that they did not become full-blown autocrats until the late 1960s. It is, therefore, not the rules of the game that have changed in the past half century. Those have remained the same since Confederation. Instead, after spending the better part of six months researching prime ministerial power in Canada, I have come to the melancholy realization that it is not the rules that are the problem; rather, it is how the game is being played that must change. I use the word melancholy instead of gloomy, bleak, hopeless, or painful because in the game of politics it is much easier to change the way the players interact with the rules than the fundamental underpinnings of the game itself.

Canada has witnessed grotesque perversions of prime ministerial power throughout history: the Pacific Scandal, the King-Byng Affair, the Sponsorship Scandal, and the Harper prorogation, to name a few. However, it is my contention that cabinet ministers have been the lesser-known, but equally damaged victims of prime ministerial despotism, especially since the 1960s – which is a problem for Canadian democracy. A BIG PROBLEM. Sounds a little crazy, doesn’t it? After all, cabinet is an appointed body; all of its deliberations take place in secret; and most of its documents are sealed for decades before the public can access them. So why is it such a big deal if cabinet ministers’ power has been usurped by the prime minister?

Well, the short answer is that the cabinet represents the last check on prime ministerial authority that Canadians have. That is, because all laws and policies originate from cabinet, it is imperative that cabinet ministers are in a position to meaningfully challenge the prime minister on governmental objectives. If ministers simply rubber-stamp every initiative that the prime minister and his lackeys (or as Donald Savoie calls them, “courtiers”) in the PMO bring to the cabinet table then a government of many quickly turns into a government of one. Unfortunately, just that has happened. If you want to know more about how the prime minister has consolidated power over cabinet ministers, feel free to read my thesis in a month or two. For now, however, you will have to take my word that the prime minister is no longer primus inter pares (or ‘first among equals’) in cabinet. Instead, he is simply primus: a king, “le boss”, god.

As such, it seems like now is a great time to rethink how we ought to go about playing politics in Canada. Luckily, the following piece sets out to do just that. Below you will find one modest proposal for reforming prime ministerial despotism over cabinet ministers in Canada. It is a little half-baked, but that is the point. I want to know what you think. Enjoy!


On Dec. 3, 2013 Conservative MP, Michael Chong introduced bill C-559 to the House of Commons. The Private Member’s Bill entitled: “An Act to amend the Canada Elections Act and the Parliament of Canada Act (reforms)” (otherwise known as “the Reform Act”) sought to empower both cabinet ministers and MPs vis-à-vis the prime minister. In Chong’s own words:

“[The Reform Act] is a bill that would strengthen the principle on which our democratic institutions in Canada were founded, that being the principle of responsible government… It would restore and strengthen the concept of confidence in House of Commons parliamentary party caucuses and would reinforce the caucus as a decision-making body.”

Section 6 of the Reform Act is important to note. It provides that:

“(i) a leadership review may be initiated by the submission of a written notice to the caucus chair signed by at least 15% of the members of the party’s caucus, (ii) a leadership review is to be conducted by secret ballot, with the result to be determined by a majority vote of the caucus members present at a meeting of the caucus, and, (iii) if a majority of caucus members present at the meeting referred to in subparagraph (ii) vote to replace the leader of the party, a second vote of the caucus shall be conducted immediately by secret ballot to appoint a person to serve as the interim leader of the party until a new leader has been duly elected by the party.

In plain language, s.6 of the Act gives the parliamentary caucus the power to remove a party leader, even if that leader is a sitting prime minister. This provision represents a palpable departure from the belief that “what the parliamentary group did not create, it may not destroy, at least without ratification by the party ‘grass roots’.”, as Mackenzie King put it. Indeed, if the Reform Act were ratified by all parties it would be, as Chong says, a “once-in-a-generation opportunity to reclaim… influence in caucus and, by extension, Parliament.” Unfortunately, the Conservatives have been the only party to ratify s.6 of the Act thus far.

The reason why the Reform Act is important to note is because it represents a shift in the way that Canadians are thinking about executive power. However, despite the progressive nature of the Reform Act, I argue that a truly “once-in-a-generation opportunity” to empower parliamentarians will also take the political executive into account.  Therefore, I seek to take s.6 of the Reform Act several steps further.

Despite the fact that there are countless other reforms that could empower cabinet ministers vis-à-vis the prime minister, it is evident that palpable changes to the status quo are most likely to come about if they are done at the institutional level. Extraneous factors such as the media and the rise of executive federalism, for example, have taken on a path-dependent logic that makes them very difficult to reform without paradigmatic shifts. In the case of the media, it is unlikely that news outlets are capable of shifting away from the 24-Hour news cycle or “de-celebratizing” prime ministers unless societal attitudes towards media consumption shift enormously. Similarly, because executive federalism is an outcome of highly complex governing in the 20th and 21st centuries, it is difficult to reimagine a change in intergovernmental decision-making that would still allow for inter-jurisdictional programs to be negotiated and administered in a more efficient manner. This is not to say that the latter is impossible, but rather that it is unlikely given the inherent interdependence between the federal and provincial governments today.  Consequently, I am putting forward one recommendation that will directly empower cabinet ministers vis-à-vis the prime minister at the institutional level.

It is argued here that the following reform address the roots of ministerial disempowerment in Canada’s parliamentary system. That is, this reform will meaningfully change the status quo without changing the nature of extra-parliamentary institutions such as the media or executive federalism and without undermining the fundamental logic of responsible government. In fact, if this recommendation is adopted it is likely that Canadian democracy as a whole will function better because cabinet ministers will be empowered to play a more constructive role in all political institutions.

Recommendation:  All cabinet ministers, including the prime minister, are to be selected by the parliamentary and extra-parliamentary wings of their respective party before a general election has taken place. Moreover, all cabinet ministers, including the sitting prime minister, are to be subject to ‘leadership’ reviews by members of the parliamentary caucus.

Canadian prime ministers (and all party leaders, for that matter) have been selected by delegates from both the parliamentary and extra-parliamentary wings of their respective parties since 1919. The aforementioned method of leadership selection has ostensibly democratized the process by which a sitting prime minister comes into power. However, an unintended consequence of the democratization of party leadership selection is that it has put sitting prime ministers in what Savoie calls “unassailable” positions of power. As a consequence of their increased popular legitimacy –  which should not be conflated with democratic legitimacy –, Canadian prime ministers have dominated cabinet to an unprecedented degree compared to other Anglo-Celtic Westminster parliamentary democracies . Therefore, one is left to draw the conclusion that if Canadian prime ministers are to be primus inter pares in cabinet, that all other ministers of the Crown should enjoy the same amount of popular legitimacy as the first minister. In other words, if the prime minister has the ability to dominate cabinet decision making because she enjoys the popular support of the extra-parliamentary party, then perhaps the best way to restore a balance of power is to elevate all other ministers to the prime minister’s level.

Furthermore, as it stands, the Reform Act empowers sitting MPs to initiate leadership reviews and select an interim leader until the entire party can select a new leader. It is recommended here that – in order to completely remove the appointment of cabinet ministers from the prime minister’s powers – the leadership review mechanism outlined in the reform Act be extended to all cabinet ministers. These reviews would ensure that it is the caucus that decides whether or not a cabinet minister should remain in her or his portfolio, as opposed to the prime minister.

It is worth outlining the specifics of the proposed reform in brief. Once again, it is recommended here that cabinet is selected by party membership before a general election has been held. It would ultimately be up to the party to develop specific voting procedures and policies pursuant to the selection of cabinet. For instance, as discussed below, some pan-Canadian parties might decide to build regional representation into cabinet selection by placing regional quotas and caps on the amount of members who can run for a given position in cabinet. However, there are two requirements that all parties would have to adhere to in order for this reform to bring about meaningful change. The first is that only sitting MPs are eligible to run for positions in cabinet. The merits of having experienced MPs in cabinet are discussed in full below. The other requirement is that sitting MPs initiate leadership reviews – not members of the extra-parliamentary wing. The latter requirement will ensure that elected officials hold the balance of power in determining the performance of cabinet while still empowering all party members to take part in the selection of new ministers.

The timing of when cabinet is selected obviously carries virtues and vices. If cabinets are selected by parties before a general election, it is not unreasonable to maintain that cabinet minister elects will capitalize on the electoral security of winning their respective ridings. In the event that a cabinet minister ‘wins’ a portfolio, but goes on to lose her or his riding, however, an all-party election would be called to replace said minister after a general election – which could be a logistical drawback. On the positive side, if cabinet is selected by parties prior to elections, it is likely that campaigns would be less leader-driven and more focused on which cabinet – as opposed to simply which prime minister – is best suited to govern. However, the latter option is more feasible for opposition parties than for parties in government. This is because incumbent parties would already have a cabinet in place heading into an election and would thus be incentivized to re-elect their existing cabinet. Conversely, if a cabinet-wide review is undertaken prior to the dissolution of government it is entirely feasible for incumbent parties to put forward a new cabinet ‘team’ at the outset of the campaign period. What is important, in any case, is that the Canadian public knows not only who their prime minister could be when they go to the polls, but also who their entire government might be.

It should be noted that a less extreme solution to the problem of prime ministerial dominance in cabinet is for the political executive to be selected by all sitting MPs in the House of Commons, as is the case with the Consensus Government model used in Nunavut and the North-West Territories. Under Consensus Government, the first minister and cabinet are chosen by all MLA’s by way of a secret ballot after a general election has been held. Consequently, according to Graham White, “ministers are beholden to MLAs rather than premieres for their cabinet posts.” Despite the fact that this reform is progressive and well-suited to parliamentary governance, I argue that political culture inhibits it from being realistically implemented at the federal level. That is, because leadership conventions have become the norm in federal politics, it is much more feasible to work within the bounds of the existing framework than eliminate it all together.

The positive consequences of adopting this reform are four fold. Firstly, the prime minister (and a handful of his unelected senior advisers) would no longer have the power to unilaterally appoint cabinet ministers behind closed doors. Instead, all cabinet ministers would be appointed by the governor general on advice from the governing party as a whole. Because the governor general is still responsible for appointing cabinet – which is, after all, no more than a committee of Her Majesty’s Privy Council –, this recommendation fits well within Canada’s existing constitutional order.

It also logically follows that cabinet ministers would no longer serve at the pleasure of the prime minister under this proposed reform. Rather, because all ministers serve at the pleasure of their party, it is reasonable to assert that they would be in a better position to challenge the prime minister without fear of being removed from cabinet. By the same token, this recommendation also delegitimizes the prime minister’s ability to shuffle cabinet at will. According to White, frequent cabinet shuffles are a “defining feature of the modern-day Canadian cabinet.” In fact, White notes that Canadian prime ministers (and provincial premiers) shuffle their cabinets more than in any other Westminster system. The reasons for doing so: “to reward solid performers and remove political deadwood; to give the appearance of freshness and progress… and to alter the political composition or outlook of cabinet.” It is my position, however, that in a democracy one minister should not have the power to determine the composition or direction of government; to decide who is performing well and who is falling behind. That is the job of a king, not a prime minister. Instead, the caucus should be able to decide.

Not only do frequent cabinet shuffles undermine ministerial authority within their respective departments (an ‘involved’ minister will only know 20% her departmental on goings), but they also diminish a ministers’ ability to meaningfully advocate for departmental needs within cabinet. Peter Aucoin, Mark Jarvis and Lori Turnbull highlight the amount of power that comes with having the ability to shuffle cabinet at will: “[one cannot overemphasize the degree to which  Canadian prime ministers have been able to use “Cabinet shuffles,” entailing some mix of promotions, demotions, lateral transfers, and dismissals, to keep ministers in line with the prime minister’s agenda.” On the latter, cabinet ministers are serving on their portfolios less time than ever before, which indicates that ministers are becoming increasingly disposable. Frequent cabinet shuffles also have negative implications for the overall collegiality of cabinet, as well as the functioning of line-departments. Therefore, if the prime minister no longer enjoys the power – or at least perceived legitimacy – to shuffle cabinets, it can be said that ministers will enjoy a higher degree of authority both within their departments and cabinet.

Secondly, it is likely that the proposed reform would limit the size of cabinet to a reasonable number of ministers – which would in turn improve the overall collegiality of cabinet. This is because it would be logistically difficult to select more than a couple dozen ministers in a single convention. What is more likely is that parties will opt to standardize the size of cabinets or periodically decide how many ministers would be required to carry out their platform. It should be noted that Canadian federal cabinets have grown enormously since Confederation. In fact, while cabinet was originally comprised of 13 ministers under Macdonald, by 1907 the average federal cabinet contained 15 ministers. The size of cabinet steadily grew throughout the 20th century and hit its apex under Mulroney, whose cabinet contained 40 ministers in the late 1980s. The size of cabinet fell back into the 30s under Chretien and Martin, but then rebounded to 40 ministers in 2015 under Harper. Currently, the Liberal cabinet sits at 31 ministers – all of whom, despite their age, gender, or ethnicity, are nonetheless beholden to Mr. Trudeau for their portfolios. While the literature suggests that the size of cabinet does not directly correlate to the level of decentralization within it, one thing is certain: the ability to appoint ministers gives the prime minister some of the most valuable ‘carrots’ that any politician could dream of possessing. Consequently, by removing these ‘carrots’ (i.e., the power to reward loyal partisans with cabinet portfolios), the prime minister is significantly weaker.

Furthermore, positive partisanship still remains intact under the proposed recommendation. That is, by opening the convention process up to all cabinet ministers, it is likely that political parties will experience more participation simply by virtue of the fact that the extra-parliamentary wing has the power to select more than just the party leader. Moreover, such a shift has the potential to, once again, restore the regional minister model within cabinet. Under the proposed recommendation, regional footholds within parties could secure support from delegates in their regions and subsequently ‘win’ a spot in cabinet on the promise of advocating for local interests. Parties can even go so far as to set quotas for the amount of ministers they want in cabinet from each region, if they so choose. Quotas and caps can also be made for sociological factors such as age, gender, ethnicity, etc.

Finally, the recommendation that all ministers be selected in the same way as the prime minster has the potential to prevent the harm of experienced prime ministers taking advantage of inexperienced ministers’ naivety.  One of the most formidable powers that a prime minister has over cabinet stems from the fact that ministers are relatively inexperienced legislators, and therefore are less able to take advantage of cabinet procedures. Interestingly enough, according to Matthew Kerby,

“14 per cent of all cabinet appointments made between 1949 and 1990 went to parliamentarians who possessed fewer than two years’ total experience in the House of Commons. Compare this figure with the United Kingdom where ministers who served between 1945 and 1984 ‘had an average of 12.2 years of parliamentary experience before becoming ministers, and fewer than 10 per cent of ministers were appointed with less than five years’ experience’”

The fact that the current Liberal cabinet contains 18 (out of 31) rookie MPs reaffirms the trend that Kerby highlights.

As White argues, “it is unhealthy for Canadian democracy for so many ministers to attain office without experiencing life as a private member.” That is, in order for a minister to effectively head a department and meaningfully partake in cabinet debates, it is imperative that said minister has either sufficient experience as a legislator or formidable clout within the governing party. Both of these conditions safeguard ministers from becoming docile carriers of rubber stamps for the prime minister. As such, one of the best ways to ensure that cabinet ministers have experienced “life as a private member” is to make their appointment contingent on being re-elected to the House of Commons. The selection of cabinet by party membership incentivizes those MPs who have proven their worth in their ridings, in caucus, and in their party, for that matter, to rise to the top, should their party win a government mandate. In the case of the latter, it is reasonable to attest that those ministers who ‘win’ cabinet positions are sufficiently well-versed in governing or, at the very least, have the confidence of their party. Therefore, it is my belief that if ministers are selected in the same way as the prime minister, the harms associated with inexperienced ministers in cabinet will be mitigated.

Regardless of the positive consequences associated with reforming cabinet selection processes, it is important to analyze the negative implications of such a reform. Such analysis will serve to reinforce the notion that, on a balance, the positive attributes of reforming cabinet selection processes outweigh the negatives.

Firstly, many students of Canadian government and politics have noted that powerful prime ministers are an inherent feature of Westminster parliamentary systems. In fact, W.A. Matheson writes, “[b]ecause of [the prime minister’s] key role as builder and master of the cabinet and as leader of the majority party, the Prime Minister’s position is preeminent… he brings together the political leaders of the various subcultures and keeps them together, he is the one person who becomes a truly national [] figure.” Moreover, in the words of the current federal government: “The Prime Minister decides on the organization, procedures and composition of the Cabinet. This includes establishing Cabinet committees, selecting their membership and convening the Cabinet itself. In practical terms, the Prime Minister forms a team, decides on the process for collective decision making, and builds and adapts the machinery of government in which the team will operate.”

Thus, given the prime minister’s preeminent role in determining the overall direction of cabinet, one can certainly hold that an attempt to weaken the role of a prime minister would inhibit him from being, in the words of White, “sufficiently autocratic”.

Under the proposed reform, the prime minister’s ability to be autocratic would be significantly weakened. However, this is not to say that just because cabinet ministers are selected in the same way as the prime minister that all ministers would enjoy the same powers over cabinet organization. Indeed, the recommendation that all cabinet ministers are selected by party membership seeks to empower these ministers within their existing departmental and deliberative roles; not suggest that cabinet move forward without a leader. It is the notion that the leader of cabinet, conversely, ought to be primus inter pares and opposed to simply primus that my recommendation seeks to address.

In practical terms, a first among equals would possess the responsibility to ensure that cabinet (and all of its committees, for that matter) is a coherent, deliberative and collective decision-making body. Granted, such a responsibility might entail keeping cabinet in line with agreed-upon legal and policy initiatives – but it certainly ought not to permit the prime minister to form her or his cabinet ‘team’, decide when a consensus has been reached, fire ministers for non-compliance, shuffle cabinet at will, or circumvent cabinet on major policy decisions. In the latter set of actions, the prime minister is no longer “sufficiently autocratic”; instead, he is – as Savoie puts it – a king.

Opponents of the recommendation that all cabinet ministers are to be selected by their party might also argue that such a reform would have disastrous consequences for the representational imperative. Once again, the representational imperative is, as William Cross puts it, the “political principle that insists that, so far as possible, cabinet include “representatives” of all regions as well as all important ethnic, cultural and linguistic groups and various other politically salient groups (such as women and those who hold certain occupations).” The representational imperative is ostensibly intended to ensure that all provinces and “politically salient groups” have the ability to bring their concerns to cabinet deliberations. After all in a highly diverse country such as Canada, one would reasonably expect that its most important decision-making body represents the country’s distinct geographic, social, cultural, and linguistic characteristics. Others, like Matheson, have argued that the representational imperative has meant that “every cabinet must contain at least a few dullards or nonentities to represent some important interest”.

Criticisms aside, the consequence of removing cabinet selection from the hands of the prime minister is that new selection processes no longer guarantee equitable representation within cabinet. For instance, if a party is able to secure a majority government without electing many seats in Quebec (as was the case in 2011 with the Conservatives), it is entirely likely that no ministers from that region will ‘win’ a position in cabinet. Such a scenario would certainly have disastrous consequences for national unity. It is, thus, for the reason that the representational imperative is important to Canadians that I recommend parties build regional and sociological representation into their cabinet selection processes. For example, parties that are dedicated to making Canadian cabinets ‘look like Canada’ (as is the case with the current Liberal government) can devise a system of quotas and caps that dictate who can run for a given cabinet position. Such a system would ensure that the representational imperative is respected and that cabinet selection is placed in the hands of the many instead of the prime minister alone.

Negative consequences aside, it is fairly evident that, on a balance, it would be healthier for Canadian democracy if the entire cabinet – as opposed to simply the first minister – were to be selected by the parliamentary and extra-parliamentary wings of their respective party. Despite the fact that the proposed reform does not address prime ministerial power in the media or in the intergovernmental arena directly, it has been argued here that the above reforms will shift the political atmosphere in a way that incentivizes extra-parliamentary political institutions to refocus their efforts on entire governments instead of the prime minister alone. Moreover, the above recommendation will drastically diminish the power of the prime minister in cabinet vis-à-vis other ministers. That is, if cabinet ministers are no longer appointed by the prime minister, but rather by their party, it is reasonable to attest that they will no longer feel beholden to the prime minister for their cabinet position. By the same token, this reform will delegitimize the prime ministers who shuffle cabinet at will or fire ministers without reasonable cause. After all, under the proposed reform, it is the caucus who decides whether or not a cabinet minister is fit to continue in her portfolio – not the primus.

One thing is obvious: there has never been a golden age of Canadian democracy. Prime ministers have always been autocratic – even the ones who are able to woo the public with snappy one-liners and flashy public relations schemes. However, after nearly 150 years of despotic prime ministerial behaviour, I believe that it is time for Canadians to reimagine how power ought to be disbursed in the country’s most important decision-making body. After all, if it is, in fact, 2016, then maybe a gender-balanced and ethnically diverse cabinet is not enough. If it is 2016, then maybe we should not allow cabinet to be appointed in the same way that it was in 1867. If it is 2016, then maybe we should look past political rhetoric that seeks to appease the lowest common denominator and pressure those in power to make ‘Real Change’ in Ottawa. In that regard, perhaps it is not that Canada has lost its way; instead, could it be that it has simply yet to find it?

 

 

 

 

 

 

Real Change: Rhetoric vs. Reality

“Politics is about wanting power, getting it, exercising it and keeping it.” – Jean Chretien

Minutes after securing a majority government in Canada’s most recent federal election, Liberal leader, Justin Trudeau proudly said, “Canadians from all across this great country sent a clear message tonight. It’s time for a change in this country, my friends, a real change.”[i] Prime Minister Trudeau’s speech on election night was seen by many as the beginning of a new era in Canadian political life – an era that would see the reversal of measures that his father, Pierre Trudeau, implemented to strengthen his hand vis-à-vis backbench Members of Parliament (MPs) and Cabinet ministers in the 1970s[ii]. One of the primary mechanisms for empowering individual Liberal MPs that Justin Trudeau has promised is the allowance of more free votes in the House of Commons.

Mr. Trudeau’s platform plank appears to be a departure from the status quo because it would not force Liberal MPs to vote with the party on all motions in the House. However, despite the idealistic rhetoric that our new Prime Minister spins, a close analysis of the Liberal  electoral platform promise to allow MPs  more free votes makes one dubious of the degree to which Mr. Trudeau’s promise will, in fact, meaningfully empower MPs to deviate from the party line. In that regard, the question arises: if the goal of Mr. Trudeau’s government is to “restore Parliament as a place where accountable people, with real mandates, do serious work on behalf of Canadians”, then what will a real change to the way that MPs vote in the House look like? This essay will argue that a real change to the status quo would be one that allows MPs to vote freely on all motions that are not traditional matters of confidence. The Liberal Party defines traditional matters of confidence as “the Speech from the Throne and significant budgetary measures”. This essay will adopt the same definition.

To support the aforementioned argument, this essay will be divided into three parts. The first part will weigh the prospect of relaxing party discipline to allow MPs more free votes against the convention of responsible government. In doing so, this section will find that – in theory – disciplined parties are a necessary condition for responsible government to serve its constitutional purpose[iii]. Conversely, the second part of this essay will assess the vices associated with party discipline in Canada. On a balance, it will argue that a relaxed confidence convention whereby MPs are allowed free votes on all motions that are not traditional matters of confidence is the best way to secure real change. By building on the conclusion that a relaxed confidence convention is a necessary tradeoff to mitigate the harms of excessive party discipline, this section will go on to advocate for a three-line vote policy as an example of a measure that, if adopted in Canada, could foster real change.

The final part of this essay will weigh the specifics of the Liberal Party’s platform promise against a three-line vote policy. It will do so by asking the following two questions: (1) On a balance, will the Liberal Party’s plan to allow MPs more free votes meaningfully empower MPs vis-à-vis the Prime Minister? (2) Is this plan likely to bring about palpable changes to the status quo? The final section of this essay will conclude that the plan proposed by Justin Trudeau’s Liberals ultimately lacks teeth compared to the three-line vote, and is therefore unlikely to bring about real change. As such, the purpose of this essay is to prove that – by promising that more free votes will meaningfully empower MPs vis-à-vis the Prime Minister – the most prominent deficit our new government is running is rhetorical in nature.

Part 1: Free Votes vs. Responsible Government

The convention of responsible government is of first order importance in Canada’s parliamentary democracy. In its most basic form, responsible government dictates that the political executive can only legitimately govern if it enjoys the support of the majority of elected representatives in Parliament[iv]. It is important to note that in Canada (and other Westminster parliamentary democracies like Great Britain, Australia, and New Zealand), the political executive is not directly elected by the people; thus, the democratic legitimacy of a government hinges on its ability to command the confidence of elected representatives in Parliament[v]. Peter Aucion, Mark Jarvis, and Lori Turnbull outline the fundamental principles of responsible government:

“the prime minister and government must have the confidence of a majority [of elected representatives] in the House of Commons to govern; and when the prime minister and government lose the confidence of the House, they either reign so that a new government that has the confidence of the House can be formed, or the House is dissolved and an election is held.”[vi]

It should be noted that responsible government has a number of conventions attached to it – ministerial responsibility, for instance[vii]. However, for the purposes of this essay, responsible government will only be discussed in relation to the confidence convention outlined above. This is because the provision of more free votes in the House of Commons has a direct impact on how the confidence convention plays out in parliament.

A natural consequence of allowing MPs more free votes in the House of Commons is that it has the potential to undermine party discipline and, by extension, diminish the inherently adversarial nature of Canadian parliamentary democracyvi. Canadian political parties are highly disciplined – more so, in fact, than any other Westminster parliamentary democracy in the world[viii]. And although party discipline has been used as a justification by Canadian first ministers to usurp a great deal of power away from MPs and Cabinet ministers alike, many students of Canadian parliamentary government rightly contend that party discipline is an essential feature of responsible government, and our democracy as a whole.

Aucoin et al succinctly characterize the importance of party discipline in parliamentary democracy: “[t]he entire parliamentary process is predicated on partisan politics, which sees institutionalized adversarialism as the best means of securing democracy.”vi In other words, the logic of responsible government sees that parties in government vote together in order to stay in government and parties in opposition vote together in order to meaningfully (or at least coherently) oppose. Party discipline, then, creates a conducive environment for responsible government to exist because it allows for the lines between government and opposition to remain cleariii. Such clarity, in turn, reinforces the distinct roles of government and opposition in a Westminster parliamentary system.

With that, the logic of responsible government unravels when the government and opposition sides of the House do not consistently vote against each otheriii&vi. Or, as Jennifer Smith argues: “[t]he meaning of opposition members voting with the government or backbench members of the governing party voting with the opposition is not clear in the absence of a robust, unfettered confidence Convention.”iii Quite simply, according to parliamentary purists such as Smith, when the lines between government and opposition are blurred – that is, when opposition votes for government motions or vice versa – the very essence of responsible government is undermined. After all, if MPs are left entirely to their own devices, then the House of Commons runs the risk of resembling a Hobbesian-like state of nature instead of a stable and coherent legislative House.

Smith argues that another virtue of party discipline in Westminster parliamentary democracy is that it prevents MPs from making “selfish pleas” that go against the national interestiii. Smith goes on to argue that partisanship is the “engine” that helps to diffuse the “tension between collective policy-making based upon disciplined political parties and the representation of territorial interests through individual MPs and senators.”iii Smith’s analysis of party discipline is highly reminiscent of Edmund Burke’s take on partisanship: “[A] party is a body of men united, for promoting by their joint endeavors, the national interest, upon some particular principle in which they all agreed.”[ix] With that, not only does party discipline engender coherence in the House of Commons, but it also forces MPs to balance the national interest and the needs of their respective constituencies when making decisions. Therefore, with more free votes in the House, one can argue that Canadian politics will lose a measure of its stability in parliamentary votes and cohesion within its parties.

Given the theoretical analysis of the role that party discipline plays in securing responsible government, one might be led to believe that the Liberal party ought to entrench rather than mitigate the expectation that MPs must vote with their party on nearly all motions in the House[x]. However, as seen in the next section, excessive party discipline paradoxically undermines – rather than enhances – an MP’s ability to meaningfully support or oppose the government of the day[xi].

Part 2: The Status Quo vs. Real Change

Canadian political parties are the most disciplined out of any Westminster parliamentary democracy in the world. And it would be a gross mischaracterization of Canadian politics to hold that party discipline does not have its vices. In fact, a cursory glance at the current conventions surrounding party discipline illustrate that Canadian politics are in desperate need of real change. With that, it is argued here that a relaxed confidence convention is an increasingly necessary tradeoff to mitigate the harms that party discipline has on Canadian political life.

At best, excessive party discipline alienates backbench MPs from the powerful “center” of their party[xii]. At worst, it fosters “mindless squabbling, nasty name calling, mean-spirited personal attacks […] and blatant misrepresentation of […] Parliament at work in Canada”. What is clear is that, under the status quo, party discipline has turned MPs into “voting robots controlled by party leaders.”vi Today, more than ever, MPs are forced – under the threat of severe discipline and, in some cases, caucus expulsion – to vote with their party on nearly all motions in Parliament[xiii]. MPs are seldom given the opportunity to deviate from the party line, and are consequently robbed of a great deal of agency. In fact, with few exceptions, Canadian parliamentarians “are generally expected to vote with their party or face serious consequences” from the party leadershipxi. Ultimately, when MPs are not given meaningful opportunities to express their views notwithstanding partisan allegiances, they cannot serve their fundamental purpose, which is to “represent their communities in Parliament and hold the government to account.”[xiv]

At its core, excessive party discipline is a byproduct of prime ministerial power. Since Pierre Trudeau, Canadian Prime Ministers have enjoyed a marked increase in power vis-à-vis MPs and Cabinet ministers[xv]. The forces that have led to these increases are outside the scope of this paper. What is important is that Canadian Prime Ministers now wield a great deal of influence over the way that their caucus votes on all motions in the House – confidence or not. In 1997 Tom Flanagan and Stephen Harper accurately – and, in hindsight, somewhat ironically – illustrate the power that the Prime Minister has over her or his caucus: “We [Canadians] persist in structuring the governing team like a military regiment under a single commander with almost total power to appoint, discipline and expel subordinates.”[xvi] Similarly, Jeffery Simpson goes so far as to describe Prime Minister Chretien as a “friendly dictator”[xvii]. Consequently, thanks to the rise of prime ministerial power since the Trudeau era, it comes as no surprise that party discipline has become more of a vice than a virtue in Canadian politics.

With that, one might expect that a real change to the conventions surrounding party discipline would be one that empowers MPs vis-à-vis the prime minister; one that protects MPs from excessive vote whipping by party leadership; one that allows for MPs to vote with their conscience on matters that would not bring down the government. Andrew Coyne puts it best:

“If a small number of its MPs were to vote a different way, so what? It would not detract from the party’s general support for the policy. If, on the other hand, the party were genuinely divided on an issue, what would be the point of pretending otherwise? Why take a stand as a party if the party, as such, does not have a view?”[xviii]

As it happens, parliamentarians in the British House of Commons have already subscribed to Coyne’s logic. Compared to Canadian political leaders, prime ministers in Great Britain have been substantially constrained in their ability to whip caucus votes since they adopted a three-line vote policy (otherwise known as a ‘three-line whip’). This policy reduces the power of the prime minister over MPs by distinguishing between: “declared” votes of confidence (i.e., the Speech from the Throne and significant budgetary measures), votes where ministers are required to vote together, but backbench MPs can vote as they please, and “free votes” where all members can vote freelyvi. According to the British House of Commons Enquiry Service:

“Every week, [party] whips send out a circular (called ‘The Whip’) to their MPs or Lords detailing upcoming parliamentary business. Special attention is paid to divisions (where members vote on debates), which are ranked in order of importance by the number of times they are underlined… Important divisions are underlined three times – a ‘three-line whip’ – and normally apply to major events like the second readings of significant Bills.”[xix]

As seen above, under the three-line vote, MPs are only required to vote with their party on “significant Bills” – budgetary measures and main estimates for instance. The Liberals would classify significant budgetary measures and main estimates as “traditional confidence matters” because a majority vote against the government on these items would topple the government. To be clear, it is unlikely that a British MP would be expelled from caucus for deviating from the party line on matters that would not topple the government (i.e., one or two-line whips). Aucoin et al note that this has, in turn, forced prime ministers “to tolerate a degree of MP independence as long as it does not bring down the government”vi.

Some Canadian prime ministers have tried to implement reforms that reflect the three-line vote policy found in Great Britain. As it happens, Prime Ministers Jean Chretien, Paul Martian and Stephen Harper all sought to give MPs more free votes in the House. In 1993, Mr. Chretien included the promise of “more independence for Liberal MPs on votes in the House” in his platform[xx]. Similarly, Mr. Martian campaigned on a promise to reduce the “democratic deficit” by implementing the three-line vote policy discussed abovevi. Finally, in the run-up to the 2006 federal election, Mr. Harper promised to make all votes that were not related to the budget (or its main estimates) free votes for backbench MPsxx. Unfortunately, all three Prime Ministers failed to deliver on their promises after forming government. Such failures ultimately beg the question, ‘will the new boss be any better than the old one?’

A brief analysis of the three-line voting system practiced in Great Britain illustrates its potential to meaningfully empower MPs vis-à-vis the prime minister. Moreover, because the three-line vote, in theory, gives backbench MPs free votes on all motions in the House that are not traditional matters of confidence, it falls in line with the definition of real change that this paper advocates for. Thus, on the surface it appears that if Justin Trudeau’s Liberals want to make campaign rhetoric a reality all they need to do is peer ‘across the pond’. However, before moving forward, it should be noted that the adoption of a three-line vote is not the ‘silver bullet’ to mitigating all of the harms associated with excessive party discipline; instead, it should be seen as one component of a broad package of reforms. For example, caucuses in Australia, Great Britain and New Zealand all possess the power to remove their leader – even if the leader is the sitting prime minister. Moreover, New Zealand’s adoption of a proportional representation electoral system has significantly undermined its prime minister’s ability to unilaterally whip caucus votes. Finally, one of the reasons why the three-line vote is so successful in Great Britain is because the British House of Commons is comprised of 650 MPs. Consequently, in instances where prime ministers secure large parliamentary majorities, the government “[can] suffer the defection of dozens of […] MPs on any one piece of legislation and still get a majority vote in the house”vi. With that, Smith is quite right to conclude that no single reform in isolation can bring about meaningful change in a multifaceted and “interlocking” parliamentary systemiii.

However, it should also be noted that this paper does not attempt to take on the burden of proving that a three-line vote will bring about real change to all aspects of Canadian political life. Rather, its purpose is to examine the potential that the three-line vote holds for bringing about a net benefit to the status quo. In that regard, it is pertinent to weigh the three-line vote against the Liberal’s platform promise to bring about “Real Change” to the way that MPs vote in the House.

Part 3: “Real Change” vs. Empty Rhetoric

On a balance, it is likely that more free votes will empower MPs vis-à-vis the Prime Minister. However, MPs will only be empowered to a limited extent under the model that the Liberals propose because, unlike British MPs who operate within the three-line vote policy, Liberal MPs will still be forced to vote with the party on matters that could not topple government. In other words, the Liberal platform plank on more free votes creates an illusion of empowerment, where MPs are still forced to vote along the party line in instances where a relaxed interpretation of responsible government does not require them to do so. The following excerpt from the 2015 Liberal Party platform outlines the Liberal’s specific plan to give MPs more free votes:

“Liberal Caucus members in a government led by Justin Trudeau will only be required to vote with the Cabinet on three different measures: those that implement the Liberal electoral platform; traditional confidence matters such as the Speech from the Throne and significant budgetary measures; and those that address the shared values embodied in the Charter of Rights and Freedoms.”

Evidently, unlike the Martin Liberals, the Justin Trudeau Liberals have not promised to adopt the three-line vote policy used in Great Britain; instead, they have opted for a strategy that prima facie empowers MPs, but, as seen below, ultimately lacks teeth.

Granted, proponents of a “robust, and unfettered confidence convention”iii would likely support the Liberal’s deviation from a three-line vote. After all, whipping votes on matters that are tied to platform points and the Charter certainly make it easy for the electorate to hold their respective MPs to account. If anything, the Liberal’s plan certainly prevents its MPs from deviating from the party line in many instances, which means that constituents can reasonably expect their MPs to consistently vote in a certain way. Moreover, the harm of MPs selfishly advocating for their constituency notwithstanding the national interest outlined by Smith is mitigated by forcing MPs to vote with the party on motions that arise out of the national party platform. However, despite the prima facie attractiveness of the Liberal Party’s plan, this essay contends that a policy which does not allow MPs to vote freely on all motions that are not “traditional confidence matters” will fall short in bringing about real change.

A critical interpretation of this platform plank leads one to believe that MPs will not be meaningfully empowered vis-à-vis the Prime Minister. By way of illustration, the Liberals also promise to “[s]ave home mail delivery” in their platform. In theory, a motion to reinstate home mail delivery would not be a matter of confidence because it is not a “significant budgetary measure”. In other words, the government would not topple if it was defeated in the House on the matter of home delivery. Under a three-line vote, a Liberal MP from a sparsely populated, rural riding which generally opposes home delivery and has been using rural mailboxes for decades could vote against this motion without facing discipline from party leadership. Similarly, a Liberal MP from an urban riding that strongly supports home delivery – Halifax, for instance – would be free to vote with the party[xxi]. Under Justin Trudeau’s proposed model, however, all MPs would be forced to support a party policy that they did not necessarily develop and their respective constituents may not support. The result is that Liberal MPs who do not wholeheartedly endorse every ‘nook and cranny’ of their party’s national platform become alienated from both their constituents and fellow parliamentarians. After all, given that countless votes are wasted in Canada’s Single Member Plurality electoral system, it is entirely likely that the majority of constituents in a given riding oppose at least one platform point that their MP’s party advocates for.

For example, in the 2015 federal election, Liberal MP Jean-Yves Duclos won the seat in his Quebec riding, despite the fact that only 28.9% of constituents in that riding voted for him[xxii]. This is not to say that Mr. Ducols – or any other MP who did not secure the majority of votes in her or his riding – does not possess the democratic legitimacy to represent his constituents. To suggest otherwise would undermine the fundamental tenant of our electoral system: the person (or party, for that matter) who secures the most votes wins. However, it would also be undemocratic to contend that those who did not vote for Mr. Ducols do not deserve to be represented – especially on motions that are not “traditional” matters of confidence. After all, the Liberals claim to “want stronger communities that aren’t just for show but that have teeth and serve an important democratic purpose.” It would seem that strong communities cannot flourish if an MP is bound to a position that the majority of her or his constituents do not support. In that regard, if the intention of the Liberal party is to “restore Parliament as a place where accountable people, with real mandates, do serious work on behalf of Canadians.” by allowing for more free votes, then one would idealistically hope that party leadership would not bind their MPs to all platform planks. By doing so, the party does not empower MPs vis-à-vis the Prime Minster, but rather alienates them from their constituents, their fellow parliamentarians, and themselves.

A similar argument can be made against the provision that MPs must vote on the party line for motions that “address the shared values embodied in the Charter of Rights and Freedoms.” In a parliamentary debate on the Charter, Pierre Trudeau famously says, “[l]est the forces of self-interest tear us apart, we must now define the common thread that binds us together.”[xxiii] Since its entrenchment in 1982, it has become increasingly evident that the Charter has become the unifying symbol that Pierre Trudeau envisioned. In fact, Beverly McLachlin is notes that the Charter has brought about a “culture of rights” among Canadians[xxiv].

Conversely, despite its unifying effect, the rights in the Charter are broadly worded and not universally interpreted or agreed upon. In fact, Knopff and Morton note that less than 50 percent of Supreme Court rulings on issues tied to the Charter were unanimous between 1991-1998[xxv]. Moreover, all one has to do is look to Quebec’s frequent use of the “notwithstanding clause” in the years following 1982 to see that the unifying effects of the Charter are not equally appreciated or recognized across the Canadian federation[xxvi]. This is not to say that the Charter is an illegitimate basis for the Liberal Party to premise their values on. Instead, this essay suggests that the broad and ambiguous wording used in the Liberal platform puts the Prime Minister in a very powerful position vis-à-vis his caucus. By doing so, the Liberal party does not meaningfully uphold the spirit of allowing MPs more free votes; the spirit of “Real Change”.

The Prime Minister holds a great deal of power in situations where the Charter is a question because he is able to determine what constitutes “shared values embodied in the Charter”. Because the wording of this platform plank is so broad, there is nothing that stops the Prime Minister from interpreting his “shared values” clause as he sees fit, when it is politically convenient to do so, and while still keeping to his platform promise. Essentially, the caveat that Liberal MPs must vote with the party on matters pertaining to the Charter does not meaningfully empower our elected representatives; instead, it gives the Prime Minister a ‘trump card’ over a wide range of possible votes, so long as he can justify his use of party discipline within a broad and ambiguous sentence in his election platform. In that regard, because the Prime Minister holds the power to determine how this caveat is interpreted and applied, the “shared values” clause considerably increases his ability to whip caucus votes.

So, is the Liberal Party’s plan to allow MPs more free votes in the House of Commons likely to bring about palpable changes to the status quo? Given the above analysis, the answer to this question is a resounding no. On the surface, it appears that the platform promise to give MPs more free votes will engender real change in Ottawa; however, a closer analysis of the specific caveats within the Liberal’s platform promise elicit a different conclusion. At best, the Liberal Party’s promise to give MPs more free votes will incrementally empower caucus members in a narrow set of instances. To be clear, these instances will only occur when motions are not a “traditional” matter of confidence, not bound to the Liberal platform, and not tied to the “shared values” in the Charter. At worst, the measures evaluated above will entrench the excessive party discipline that the Liberal Party claims to be combatting and consequently alienate MPs from their constituents, their party, and themselves. Thus, by incrementally increasing the amount of free votes Liberal MPs are allowed to make, the Liberal Party’s free vote policy does not align with the spirit of their platform, which is to empower MPs vis-à-vis the Prime Minister; which is to bring about “Real Change”. If the Liberal Party is truly committed to bringing about real change, they should undertake measures that meaningfully empower MPs, such as the adoption of a three-line vote discussed earlier in this paper. Unfortunately, as it stands, Justin Trudeau has carefully disguised the status quo in rhetoric that does not reflect reality.

Conclusion

This essay has argued that, while in theory more free votes in the House of Commons could bring about real change, the Liberal Party’s plan to do so ultimately lacks teeth. The first part of this essay assess the implications that allowing for more free votes would have on the convention of responsible government. Based on a theoretical analysis of the relationship between responsible government and party discipline, one might be led to believe that a positive change to the status quo would be one that entrenches strict party discipline.  However, after outlining the harms of excessive party discipline, the second part of this essay concludes that – despite the virtues that party discipline plays in fostering a healthy, adversarial environment for responsible government to flourish in – a less strict confidence convention can mitigate the harms of party discipline without undermining the fundamental logic of responsible government. The final part of this essay suggests that the Liberal Party’s plan to allow for more free votes is low impact and will paradoxically strengthen the hand of the Prime Minister vis-à-vis MPs in some instances. Instead, the adoption of the three-line vote policy used in Great Britain would represent a meaningful commitment to real change. Therefore, one cannot help but cynically conclude that under the status quo, Liberal MPs are, indeed, still on a very short leash and that “Real Change” is nothing more than empty rhetoric.


 

[i] Macleans. 2015. Justin trudeau, for the record: ‘We beat fear with hope’. Macleans Magazine2015.

[ii] For example, see Lum, Zi-Ann. 2015. Justin trudeau’s victory ushers new era of ‘sunny ways’. The Huffington Post Canada2015.

Liberal Party of Canada. Real change – liberal party of canada. 2015Available from https://www.liberal.ca/realchange/.

[iii] Smith, Jennifer. 1999. Democracy and the canadian house of commons at the millennium. Canadian Public Administration 42 (4): 398-421.

[iv] Brooks, Stephen, and Marc Menard. 2013. Canadian democracy: A concise introductionOxford University Press.; Coffin, Michelle. 2015. Canadian public administration.

[v] Bonga, Melissa. 2010. The coalition crisis and competing visions of canadian democracy. Canadian Parliamentary Review 33 (2): 8-12.; Forsey, Eugene, and Helen Forsey. 2010. Prorogation revisited: Eugene forsey on parliament and the governor general. In Essential readings in canadian government and politics., eds. Peter H. Russell, Francois Rocher, Debra Thompson and Linda A. White, 87-90. Toronto: Emond Montgomery Publications.; Malloy, Jonathan. 2002. The ‘Responsible government approach’ and its effect on canadian legislative studies. Parliamentary Perspectives(5).

[vi] Aucoin, Peter, Mark Jarvis, and Lori Turnbull. 2011. Democratizing the constitution: Reforming responsible governmentEmond Montgomery

[vii] CSPG. 1989. The meaning of responsible government. Paper presented at Responsible Government, Ottawa.

[viii] Cross, William. 2004. Political partiesUBC Press.; Gibbins, Roger. 2014. Constitutional politics. In Canadian  Politics., eds. James Bickerton, Alain G. Gagnon. 6th ed., 47-65. Toronto, ON: University of Toronto Press.; Smith, David E. 2007. The people’s house of commons: Theories of democracy in contention. Toronto, ON: University of Toronto Press.

[ix] Ritchie, Daniel E., ed. 1990. Edmund burke: appraisals and applications, ed. Alain G. GagnonTransaction Publishers.

[x] For example, see Coffin, Mark, and Jamie Newman. 2014. Nova scotia Youth Civic literacy survey: Report 2 of the nova scotia youth poll. Halifax: Springtide Collective, .

[xi] Docherty, David C. 2014. Parliament: Making the case for relevance. In , eds. James Bickerton, Alain G. Gagnon. 6th ed. Toronto, ON: University of Toronto Press.

[xii] Savoie, Donald J. 2014. Power at the apex: Executive dominance. In Canadian politics., eds. James Bickerton, Alain G. Gagnon. 6th ed., 135-153. Toronto, ON: University of Toronto Press.

———. 1999. The rise of court government in canada. Canadian Journal of Political Science / Revue Canadienne De Science Politique 32 (4): 635-664.

[xiii] Lemco, Jonathan. 1988. The fusion of powers, party discipline, and the canadian parliament: A critical assessment. Presidential Studies Quarterly 18 (2): 283-302.

[xiv] Liberal Party of Canada. Real change – liberal party of canada. 2015Available from https://www.liberal.ca/realchange/.

[xv] Aucoin, Peter, Mark Jarvis, and Lori Turnbull. 2011. Democratizing the constitution: Reforming responsible governmentEmond Montgomery.; Bakvis, Herman. 1991. Regional ministers: Power and influence in the canadian cabinetUniversity of Toronto Press.

[xvi] Flanagan, Tom, and Stephen Harper. 1997. Stephen harper and tom flanagan: Our benign dictatorship. Next City: 1-13.

[xvii] Simpson, Jeffery. 2011. The friendly dictatorshipMcClelland & Stewart.

[xviii] Coyne, Andrew. 2014. Coyne: Why shouldn’t we have free votes in the house of Commons?. Postmedia News, May 27, 2014.

[xix] HOC enquiries. Whips. 2015Available from http://www.parliament.uk/about/mps-and-lords/principal/whips/.

[xx] Smith, Jennifer. 2009. Canada’s minority parliament. In Canadian politics., eds. James Bickerton, Alain G. Gagnon. 5th ed., 133-154. Toronto, ON: University of Toronto Press.

[xxi] For example, see Taylor, Stephanie. 2015. ‘Workers demoralized’: Nearly 13,000 homes in halifax latest to lose door-to-door mail delivery. Halifax Metro2015.

[xxii] Elections Canada. Election results. 2015 [cited 11/11 2015]. Available from http://enr.elections.ca/National.aspx?lang=e.

[xxiii] Russell, Peter H. 2010. The political purposes of the canadian charter of rights and freedoms. In Essential readings in canadian government and politics., eds. Peter H. Russell, Francois Rocher, Debra Thompson and Linda A. White, 315- 327. Toronto: Edmond Montgomery Publications.

[xxiv] McLachlin, Beverly. 2010. Courts, legislatures and executives in the post-charter era. In Essential readings in canadian government and politics   ., eds. Peter H. Russell, Francois Rocher, Debra Thompson and Linda A. White, 338-345. Toronto: Edmond Montgomery Publications.

[xxv] Knopff, Rainer, and F. L. Morton. 2010. Judges and the charter revolution. In Essential readings in canadian politics., eds. Peter H. Russell, Francois Rocher, Debra Thompson and Linda A. White, 356-368. Toronto: Emond Montgomery.

[xxvi] Leeson, Howard. 2010. The notwithstanding clause: A paper tiger? In Essential readings in canadian government and politics   ., eds. Peter H. Russell, Francois Rocher, Debra Thompson and Linda A. White, 346-355Edmond Montgomery Publications.