Something we have lately taken to taking seriously - Macleans.ca

Something we have lately taken to taking seriously

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The Standing Committee on Procedure and House Affairs is presently concerned with a study of “issues related to prorogation” and, as part of those hearings, called Brian Topp, coalition biographer and former NDP campaign director, to testify. His opening statement, reprinted below, is almost certainly the most interesting treatise on Parliamentary democracy you’ll read this afternoon.

My name is Brian Topp. I’m very grateful to you for having me here today. And I would like to congratulate you for your discussions to date. I’ve read the available committee transcripts and have learned a great deal from them.

I’ll begin by introducing myself.

During most of the 1990s, I worked in the Government of Saskatchewan.

One of my duties, for five years or so, was to oversee our government’s House Business Office — the support arm to our government House leader. This modest credential gives me some small, well-disguised sympathy for the government members sitting in the minority on this committee. You don’t always have an easy job, I suspect.

I’ve been active in federal politics with the New Democratic Party of Canada during the past three elections. But I should add that what follows are strictly my own views, and in no way represent those of our party, our leader or our caucus.

I would like to speak about two topics: the substance of the matter; and then the issue of implementation.

So, about confidence votes and prorogation.

And then about the issue of what should be done to address these issues. Should the standing orders be amended? Should a new Parliament Act be adopted? Or should the constitution be amended?

***

In my view the power to declare or withdraw confidence is the fundamental power of the House of Commons.

There are other critically important powers, like the right to originate money bills.

But the right to assign and withdraw confidence in the Ministry is the crux of the matter — the central act of legitimacy and political power in our political system between elections.

This being so, subordinate or unelected players must not interfere in the exercise of this power. I refer here to the Cabinet, the Senate, and to the Governor-General as well as to the Courts.

To do so is to attack responsible government in Canada at its root.

It is therefore my view that a Ministry should never again, and must never again, seek to interfere in the sitting of the House of Commons when a confidence vote is properly before it.

And in my view the Governor-General must never again accept advice that would have that result.

I understand that a number of relatively complex proposals have been made by Parliamentarians on this subject.

I urge you to clarity and simplicity.

I suggest you find a way to say that when a confidence vote is properly before the House, the House cannot be prorogued or otherwise interfered with.

In any circumstances. For any reason. By anyone. Until that confidence vote has been dealt with.

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But what is a “confidence vote”, were this to be adopted?

At the moment, that may be far from clear.

For example, it has generally been understood that if the government is defeated on a money bill, it has lost confidence. But both Prime Minister Pearson and Prime Minister Martin arguably suffered defeats in the House that resemble this, and remained in office due to clever manoeuvring.

It is also, unfortunately, longstanding practice in the Canadian Parliament for the government of the day to point to whatever it wants to in its legislation and to declare that matter to be a “confidence vote” — a form of political blackmail that neatly reverses the purpose of such votes, and turns them from an exercise in accountability into an instrument for the reinforcement of executive power.

So a definition seems called for.

I suggest the following:

A confidence vote is a motion — a privileged and important motion — proposed by a Parliamentarian to immediately end the mandate of the sitting government, and to then trigger one of two outcomes.

 Either a Loyal Address to the Governor-General respectfully requesting that she authorize an election.

 Or a Loyal Address to the Governor-General respectfully requesting she immediate replace the Ministry with a specified alternative Ministry.

Governments, of course, would always remain free to resign or to threaten to do so, over any issue they like.

So, in other words, I suggest you define and enshrine “confidence motions” in two forms: as a decision by the House of Commons to request an election, or as a decision to immediately replace the government with a new one.

The election trigger seems straightforward.

For an example of how my suggestion for immediately replacing the government could work, I refer you to article 67 of the German constitution.

This mechanism — a “constructive vote of non-confidence” — worked smoothly in October 1982 to replace a Social Democratic government led by Helmut Schmidt with a Conservative one led by Helmut Kohl.

Reassurance, I hope members of the government caucus will agree, that these ideas aren’t just about getting rid of you.

Spain has a similar provision in article 113(1) and article 114(2) of its constitution.

And Hungary has a similar provision in article 39A(1) of its constitution.

***

Which gets us, briefly, to the issue of implementation.

Standing orders, a bill, or a constitutional amendment?

I see that the committee has spent some time pondering the issue of enforceability, which is central to the question of what form to use.

I suggest you not worry about that overmuch.

We are confronted here with a requirement similar to the one the House addressed when it adopted Mr. Stephane Dion’s Clarity Act.

The House needs to clearly state its view of how it expects subordinate and unelected players to behave in a specific set of circumstances related to a power — the power to give and withdraw confidence — that it holds exclusively under our system of government.

If you legislate clearly and without complexity, escape hatches or weasel words, I think you are then entitled to expect the Prime Minister and the Governor-General to govern themselves accordingly.

In other words, I agree with Thomas Hall that if the rules are clear, the Governor-General at least can be expected to abide by them.

If this proved not to be case, fundamental issues about the office of the Governor-General and the future of the Crown in Canada might then arise. I think you can expect the Governor-General to be mindful of this.

That being so, my advice is to both immediately amend the standing orders, AND to introduce a constitutional amendment under section 44.

I suggest immediately amending the standing orders, because the present Ministry probably cannot prevent you from doing so.

I suggest introducing appropriate constitutional amendments under section 44, with the goal of making these rules less vulnerable to a future act of executive power by a majority government or a majority combination.

I doubt that such a constitutional amendment will be adopted by the present Parliament, given the current majority in the Senate. But I suggest that that it be introduced, and that all parties of like mind commit to reintroducing it each and every session until it is adopted, in its own good time.

Such a amendment would be absolutely faithful to the principles and traditions of both the Progressive Conservative party and of the Reform Party.

And so, when at some point the circumstances before us today come to an end, I suspect the odds will improve for an appropriate amendment to find all-party support.

Until then, the majority in the House can, should, and must speak clearly and authoritatively — something you can do through the standing orders.

That is a moment I urge this committee not to miss.

Speak for Parliament.

Speak for accountable, responsible government.

Speak for our democracy — so that, slowly, step-by-step, one regrettable act of improvised ministerial survival at a time, we don’t lose it.

Thank you.