ex_inklessej388

In light of my recent post on the subject of the legislative process in contrast to the democratic process in Canada, I thought it would be appropriate for a post on the procedure for dealing with conflicts between the two houses of parliament. Most Canadians, I am sure, would be surprised to learn that there is in fact little formal procedure in the way of dealing with a conflict between the elected House of Commons and the appointed Senate, especially considering the fact that our large cultural influence to the South, the United States of America, actually has constitutional provisions to ease a deadlock between their two houses and executive branch (the President). Let’s examine the process in Canada more in depth.

There are no provisions within any Constitutional document to deal with a deadlock between the Senate and the House of Commons. Within the legislative process, bills which originate in the House of Commons (which can be either public or private in nature) are sent to the Senate for concurrence and approval prior to receiving Royal Assent. Conversely, bills that originate in the Senate are sent to the House of Commons for approval, again, prior to receiving Royal Assent. This process of having each house propose, debate, and approve legislation opens up the possibility for either house to propose amendments to legislation that could reasonably be opposed by one house or the other, by the government of the day or sponsor of the bill itself. All of these situations would create a scenario where each house could be seen to be in conflict with one another and thus create a legislative deadlock. The question then becomes who would “win” between each House and how would the bill proceed to becoming law in Canada?

When a disagreement arises between the House of Commons and the Senate as to the amendments to be made to a bill, there are two possible ways of proceeding: the disagreement may be communicated in a message (this is normally the first step taken), or a conference may take place. (House of Commons Procedure and Practice 2nd Ed)

Messages can be passed between the houses of parliament between the Speakers of each house. Individual rules within each house govern the conduct of these messages, the crux is that they must be read in a timely manner to the members/Senators by the Speaker. It is interesting to note that the conference method cited in the Procedure and Practice manual has fallen into disuse in parliament. In fact, it has not been used since 1947 and only 16 times since 1903. The exact procedure around these conferences has changed since they were formalized in the Standing Orders of the House of Commons in 1903. Prior to 1903, these conferences were considered “closed” in that the House of Commons and the Senate each sent specific delegates who could only voice the concerns of each house without debate or discussion. In 1903, provisions were put into place within the Standing Orders (and Rules of the Senate) which permitted “open” conferences where delegates (referred to formally as managers) would be sent to a conference between the two houses and were allowed to discuss the issues and were empowered to come to a solution. There have been 13 “free” conferences since the provision was introduced but again none since 1947.

Turning to the Standing Orders of the House of Commons, Rule 77 under the heading of Senate amendments, there exists provisions for the Commons side of arrangements for the messaging and a potential conference between the two houses.

In cases in which the Senate disagrees to any amendments made by the House of Commons, or insists upon any amendments to which the House has disagreed, the House is willing to receive the reasons of the Senate for their disagreeing or insisting (as the case may be) by message, without a conference, unless at any time the Senate should desire to communicate the same at a conference. (Standing Orders of the House of Commons, Order 77)

The pre-text of this particular provisions describes a situation where the House of Commons and Senate disagree. However, it could be argued that this provisions does not exactly settle a dispute between the Commons and the Senate but merely provides two avenues for further recourse. The rule goes on the state that any conference between the two houses shall be “free” (as explained above) and that reasons for a conference shall be provided to the Senate (and visa versa in accordance with protocol).

The Rules of the Senate certainly do not offer any additional helpful guidance. Under rule 16 which is reserved for instructions pertaining to messages to and from the Senate, there is a provision regarding the messaging between the House of Commons and the Senate regarding disagreement and protocols regarding the formation of a conference.

When the House of Commons disagrees with amendments proposed by the Senate to a bill that originated in the Commons, and the Senate insists on any of its amendments, the message accompanying the bill to the Commons shall state the reasons. The Senate shall receive by message the reasons for the House of Commons either disagreeing with Senate amendments to bills or insisting on Commons amendments, unless the House of Commons at any time wishes to communicate these reasons at a conference. (Rules of the Senate, Rule 16-3(1)(4))

The Rules of the Senate also contain the same clause as the Standing Orders of the House of Commons which require that any conference between the two houses be conducted in a “free” manner.

The Senate of Canada amends a surprising amount of legislation that originates from the House of Commons. In this role they are fulfilling their mandate articulated by Sir John A. MacDonald in being the “sober second thought” of parliament. The vast majority of amendments are technical in nature (amending legal wording, uniform formatting of the bill, etc) and are accepted without hesitation from the House of Commons. However, there have been historical moments when the House of Commons and the Senate have been at odds over the pith and substance of a particular bill. When Progressive Conservative Prime Minister Brian Mulroney attempted to introduce the Government Sales Tax, it was blocked by the Senate until he took extreme measures granted to him within the constitution to appoint additional Senators (thus allowing him to overcome the partisan deadlock within the Senate Chamber). Recently, we saw an empowered Senate review and propose amendments on the pith and substance of bill C-14 which sought to extend the right of assisted dying to Canadians. It is during these moments that the procedures and processes surrounding the deadlock between houses of parliament become even more important.

Amendments proposed by the Senate on legislation originating in the House of Commons are sent back for debate and approval (or rejection). The debate concerning these amendments is restricted to the scope of the amendment question itself, meaning MPs cannot begin a new debate on the merits of the bill as a whole, for example. Each amendment is voted on individually in the order that it would appear in the bill (reasonably presenting the bill in a logical fashion). The House of Commons can reject or accept all amendments, or can approve and reject some but not all amendments from the Senate. If all amendments are accepted, a message is sent to the Senate to this effect and the bill is scheduled for Royal Assent. If some of the amendments are accepted, but not all, the same message communicating this fact is sent to the Senate, but the Senate is given a chance to reply to this message. If the Senate cannot agree to the provisions than a conference may be formed between the two houses. In the case of C-14, after the bill was read and approved at Third Reading in the House of Commons, the Senate sent amendments back which were then rejected by the House of Commons (being controlled by the majority Liberal government). However, after the rejection of their amended version of the bill, the Senate then approved the final text of the bill, from the House of Commons, essentially backing down and avoiding a protracted deadlock.

If the conference fails, the matter is closed and the bill simply remains on the Order Paper where it dies at the end of the session. During that time, no new bill may be introduced in the House in respect of the same subject matter and containing similar provisions. (House of Commons Procedure and Practice 2nd Ed)

At the end of the day, if the House of Commons and the Senate cannot agree and no movement is made through the options available in a conference, than the bill sits on the Notice Paper for the remainder of the session and is, for all purposes, dead. Furthermore, a legislative void is created because no bill on the same subject can be presented during the session until the similar bill on the Notice Paper is resolved. This was the case during the GST debate for a short period of time prior to the Prime Minister appointing additional Senators and reviving the legislative life of his taxation bill.

On a final note, and related to my last entry, the Senate understands it’s inherent democratic deficit. Because Senators are appointed on the advice of the Prime Minister of the day by the Governor-General collectively they do not possess the same democratic mandate as the government or the House of Commons as a whole. This does not impact their legal authority within the legislative process (as I have alluded to in my opinion piece) but it does inflict soft power over the Senate by the House of Commons. Often during debate, Senators who support the government can be heard calling on fellow Senators to speedily approve matters originating from the Other Place because they have no democratic right to hold up priorities of the duly elected government. And to some extent there is some truth to this statement, however, the Senate does have a legitimate role in the legislative process to review and scrutinize legislation, including government legislation. This is a key component of what little exists to resolved a dispute between the two houses of parliament. It is important to note, that no House can have authority over the other as they are each sovereign entities within parliament in union with the Crown. The executive, being embedded in the House of Commons, does not enjoy a carte blanche over legislation proposed within parliament and therefore the role of the Senate in being that sober second thought often becomes more powerful during periods of majority government rule in the Commons. It is therefore dishonest to simply cast the Senate away as an undemocratic institution with little or no value in the legislative process. On the same token, it could be argued that there exists a statutory nadir with regard to provisions for dealing with a deadlock between the Houses of Parliament which lends itself to relying on the false assumption that the House of Commons has authority over the Senate through their democratic legitimacy.

(Featured image credit.)

ex_inklessej388

X-posted from penlessej.

The House of Commons Procedure and Practice Ed 2 defines the official opposition (also know as Her Majesty's Opposition) as "...the opposition party with the largest number of seats" in the House of Commons. The leader of this party is also conventionally styled the Leader of the Official Opposition (LOO). Every parliament since confederation has had an official opposition despite the fact that the institution itself is never once mentioned in any constitutional document. The existence of the official opposition is drawn from the preamble of the Constitution Act, 1867 which calls for a parliament "similar in Principle to that of the United Kingdom." And while there is no mention of the official opposition in any constitutional document, special rights and privileges are granted to the institution through the Standing Orders of the House of Commons. These special rights and privileges include the right for the leader (or another member of the official opposition) to have unlimited time during debate to respond to the prime minister and the privilege to ask the first question during Oral Questions.

Three Contributing Factors

Interestingly, while we have had an official opposition in Canada for as long as we have had a House of Commons and parliament, very little has been written or explored specifically about the institution and its role in parliament. David E. Smith in his seminal work on the opposition in Canada titled Across the Aisle: Opposition in Canadian Politics scratches the surface of the role and function of the opposition, including opposition members of third and fourth parties in the House of Commons and concludes that the institution itself is unique from parliament to parliament and its role is largely driven (1) by the current composition of the House of Commons (majority or minority government, for example), (2) the issue at hand and (3) the personalities of the leaders within the House and government.

The Role of the Official Opposition in Canada

The first and obvious role of the official opposition in the House of Commons is to hold the government to account on all measures presented within the House and advanced by the government. It does not follow however that the opposition is forced to oppose all measures of the government despite the fact that such a situation would appear to undermine an institution charged with opposition. An example of such a situation would be a minority government being sustained with the support of a third party or, in the extreme, members from the official opposition. In order to maintain a degree of value of opposition in such an instance, official opposition leaders have advocated a vote abstaining from supporting or rejecting the government (and thus continuing confidence within the House). This is exactly what happened in 2005 when Stephen Harper (at the time the LOO) changed his stance on the budget presented by the governing Liberal Party and along with the NDP and Bloc abstained his caucus from voting, effectively allowing the government to advance in confidence of the House of Commons (notably, this was the largest abstention on any piece of legislation in Canadian history). However, for the most part, these moments are few and far between and more often than not the official opposition will oppose government legislation and initiatives. The mechanism by which the official opposition can constructively oppose the government is through amendments to legislation which are often tabled shortly after the prime minister or a minister presents a new piece of legislation. Another mechanism is through the presentation of minority reports from committees which are presented by the leader or a member of the official opposition immediately after the tabling of a report from a parliamentary committee. These minority reports often capture issues which the opposition drew from the investigation surrounding a piece of government legislation or initiative and may or may not propose an alternative course of action. And of course, the most direct means of opposition toward the government at the official opposition's disposal is voting against government motions and legislation when divisions are called.

David E. Smith asserts in Across the Aisle that the "practice of opposition in the Canadian Parliament has never conformed to the theory of opposition found in political science textbooks" (p. 101). And this statement is strikingly accurate. As mentioned earlier, what drives the role and effectiveness of an official opposition are not the laws and conventions which enable it, but the composition of the House which contains it, the issues which drive it and the personalities who lead it. The official opposition has been as colourful, if not more so, than that of the government-of-the-day since confederation.

Case Studies: Medicare and the Afghanistan Engagement

A contemporary example of the changing role of opposition in Canada can be derived in the passing of a national health insurance program in Canada, known as Medicare. In was under a minority government parliament that medicare was passed with the support of the governing Liberals under Lester B. Pearson, the official opposition under the leadership of Progressive Conservative John Diefenbaker and the third party NDP under the leadership of T.C. Douglas. It was through previous legislation introduced by Diefenbaker for a national hospital insurance programme that modelled the provincial medical insurance programme introduced in Saskatchewan while Douglas was the CCF premier that was instrumental in providing the framework for a more robust federal programme. Also, the opposition found support among key government ministers, especially Paul Martin Sr. who was a long-time supporter of a national healthcare plan for Canadians. In this instance, the government was able to secure support from opposition parties in a minority government parliament and medicare was introduced. We see how the composition of the House of Commons (a minority government requiring the support of opposition parties in order to advance legislation), the issue of the day (an almost universally supported concept of a federal medical insurance programme) and the personalities (support from key government ministers) articulated the role of the opposition and enabled the creation of one of the most popular government programmes in Canadian history.

The detailed article on the official opposition in the Compendium of Procedure explains that "by law, [the leader of the official opposition] must be consulted before certain important decisions are taken by the Government" and this was made evident in the lead-up to sending Canadian soldiers to Afghanistan in the aftermath of the terrorist attacks on 9/11. Prime Minister Paul Martin Jr. (as he then was) sought support from the Leader of the Official Opposition Stephen Harper (as he then was) prior to sending troops into combat. The logic in gaining such support was driven by the importance of the issue at hand. The belief was that since sending Canadians into combat had been such a contentious issue in the past especially in the passage of conscription legislation during World Wars One and Two, it was important for the government to seek support from all parties in the House of Commons. Such an initiative on the face seems to go against of the role of the opposition to oppose the government, but realistically it provides the opposition parties a chance to influence federal policy. However, the question of when and how such action by the government is deemed so important as to warrant support or consolation from the opposition benches is left to the government itself and is a cause of disagreement among parties in the House of Commons themselves. This was evident in 2014 when Stephen Harper did not seek unanimous parliamentary support to authorize the use of CF-18s for airstrikes against Libya. The justification from the government was that the mission did not constitute a direct "boots-on-the-ground" campaign and thus was not important or grand enough to require all-party support. In this case study we again see how the role and effectiveness of the opposition is driven by the composition of parliament, the nature of the issue at hand and the personalities of the leaders within the House of Commons.

Conclusion

Smith is absolutely correct when he concludes that three main factors contribute to a changing role for the opposition in Canada. He is even more correct when he points out that no political science textbook can capture this changing role. However, despite this, there is no question that the role of the opposition is key to the democratic function of parliament. Or, as Sir Wilfred Laurier succinctly explained,

… it is indeed essential for the country that the shades of opinion which are represented on both sides of this House should be placed as far as possible on a footing of equality and that we should have a strong opposition to voice the views of those who do not think with the majority.

ed_rex

Steven Harper sells Canadian Wheat Board to Saudis

and Canadian farmers down the river

More info at The Winnipeg Free Press.

ex_inklessej388

[ X-posted from inklessej. ]

Michael Den Tandt's recent piece in the National Post provides an explanation as to why Canada should abolish the Indian Act and the reserve system entirely. This particular editorial has sparked considerable debate on the subreddit r/CanadaPolitics. Using that forum as a metric, the debate concerning such a proposal assumes that abolishing the Indian Act is a logical necessity, implies a new system of funding First Nations is required and that a so-called 'special status' should not (re: no longer) be applied to First Nations peoples. The editorial itself is mostly misleading and simplistic, and the conclusions drawn in the debate on Reddit are baseless and not rooted in the realities of international and common law.

Any attempt to discuss abolishing the Indian Act should immediately trigger the White Paper Statement of the Government of Canada on Indian Policy. It was presented in 1969 by then Minister of Indian Affairs, Jean Chretien during Pierre Trudeau's first term as Prime Minister. From a UBC website project entitled Indigenous Foundations the 1969 White Paper proposed to:

• Eliminate Indian status
• Dissolve the Department of Indian Affairs within five years
• Abolish the Indian Act
• Convert reserve land to private property that can be sold by the band or its members
• Transfer responsibility for Indian affairs from the federal government to the province and integrate these services into those provided to other Canadian citizens
• Provide funding for economic development
• Appoint a commissioner to address outstanding land claims and gradually terminate existing treaties

ed_rex

The return of The Droz Report:

No prayers for the victims of the Boston Marathon bombings

April 16, 2013, OTTAWA — Whenever my Facebook newsfeed starts filling up with prayers and expressions of shock and sadness about tragedy halfway around the world, I find myself wanting nothing more than to scream at all those well-wishers to shut the fuck up with their ritual grief, whether caused by a tsunami, a famine, a school shooting, a bombing in Boston ...

You got me. I'm already sick to death of hearing how you feel about the bombs that went off in Boston yesterday afternoon. Yes, it was an awful thing, but if you don't live there, or know people who were directly involved, I would prefer you keep your ostensible pain to yourself.

Offering up your prayers or good wishes might make you feel a little better, but it doesn't do any tangible good. And it's not like these things occur in a vacuum. Most of the major problems facing women and men in this world are caused by men and women. Even the damage caused by hurricanes usually has a human cause in there somewhere. And since that's almost always the case, platitudes aren't the answer, nor are prayers going to help.

Thinking might help. Political activism might help. Even donating to the Red Cross might help.

It's not the sincerity of the well-wishers that bothers me, but the lack of seriousness.

If you want my take on yesterday's terror attack, without a platitude in sight, click here. Comments, arguments and calls for my head are welcome here, or there.

ed_rex

Dear Leader meets Only Leader ...

ed_rex

Can we say cronyism, ladies and gentlemen? Can we say corruption? Can we say rewarding one's friends?

A mere four and a half months into their majority government, the Harper Government hoists its true colours — the real Joly Roger.

The federal government is paying a high-powered management consultant firm almost $90,000 a day for advice on how to save money.

It's probably not criminal, since governments write the laws, but it is blatant theft from the citizens to the very thieves whose genius for self-dealing has been destroying the working and middle classes of this country for decades.

Who wants to bet that the final report won't include the following points among its top five recommendations?

1. Fire several thousand civil servants and replace most of them with contract workers (which will turn out to cost more, once the contracting firms' profits are (re)calculated)?


2. Cutting back on and/or eliminating several departments which serve the public good — perhaps environment, or science or education?


3. Funding more prisons, but as for-profit, non-union institutions?

If you can stomach it, the full article is at http://www.cbc.ca/news/politics/story/2011/09/20/harper-cuts-consultant.html?cmp=rss

ed_rex

The brothers Ford reveal the naked neocon truth

July 29 2011, OTTAWA —It sounds like a skit from a Marx Brothers movie. On the one hand, the Mayor of Canada's largest city is said to have given the finger to a six year-old girl and her mother while at the wheel of his van and while talking on his cellphone; and on the other, the Mayor's brother (and also a City Councilor) falsely claims there are more libraries than Tim Horton's coffee shops in his part of the city and tells Canada's leading novelist to butt out of municipal politics unless she gets elected to city council.

Yes it's farce, but it's also deadly serious politics, that reveals volumes about neo-conservative attitudes and the triumphalist agenda the radical right-wing. Read the full story here.

ed_rex

Kim Campbell's revenge

(Nothing new in the boys' room)

After two debates and an in-person attendance at a rally, I'm finding myself kind of depressed about the election, enervated instead of energized. Though I still think the choices facing us are important — Very Bad versus Not Very Good — it's not easy to get excited by the latter.

And it's not easy to get excited by canned rhetoric, by half-truths contending with lies, lies with half-truths, or by the fact the most inspirational actor in either the French- or the English-language debate was a separatist whose primary goal is to destroy the most successful and successfully complex civilization in the history of the world (ask me what's good about Canada some day!).

Tuesday and Wednesday nights saw me staring at the television, and Wednesday morning hopping on my bike for a hurried ride into downtown Ottawa, where Jack Layton was holding court at a Bank Street eatery at the ungodly hour of 8:00 o'clock in the morning.

Layton was introduced by my local MP who got predictable cheers for asking the partisan crowd of maybe 150 people who won the previous evening's debate.

Layton himself was, more or less, the same as what I've seen on television. Clear and concise, kind of funny, and a just a little stiff, as if even after decades in politics he's still not entirely comfortable speaking to a crowd. He stuck very close to his script; aside from a joke about the political points to be made from kissing "ma blonde" after the debate, I had already heard everything he said at breakfast almost verbatim on Tuesday night.

The NDP, it seems, is pro-family and pro-small business, anti-Senate and anti-credit card companies; pro-environment and pro-health care, against over-paid bank CEOs and, er, Stephen Harper — the rhetorical specifics are already fading, as are those from the "debates" themselves.

So I'd best get on with it. Click here for more if you're up for some ennui. I'll try to keep it short.

ed_rex

Harper's self-serving 'apology' exposes the cowardly venality lurking beneath his unbutoned shirt

"... if anybody is kept out of any of our events that's there to hear our message we obviously apologize to them. Our interest is in having as many people out to hear our message as we can. We're having huge meetings, we had another huge one last night and we want people to hear our message." — Stephen Harper 'apologizes' after being asked if he would take responsibility for a teenager's eviction from a rally because her Facebook page included a photo of herself with Liberal leader Michael Ignatieff.

Incriminating evidence: Awish Aslam's Facebook profile phto.

On April 3rd, two young women, students at the University of Western Ontario, attended a Conservative Party rally and were taught a valuable lesson about Conservative values and ethics.

About a half-hour after being admitted, both Awish Aslam and an un-named friend were hustled out of the meeting, publicly berated and had physically stripped of the stickers pinned to their shirts — all because they had both had the naive temerity to post a photo of themselves taken while meeting Liberal leader Michael Ignatieff on their Facebook profiles.

The London Free Press broke the story on April 5th.

"A week ago, Aslam, readying to vote federally for the first time, attended a Liberal rally in London where she and a friend snagged a photo with Liberal Leader Michael Ignatieff. Both made it their Facebook profile pictures.

"A few days later, the pair attended Harper’s rally, for which they signed up in advance online.

"But about 30 minutes after arriving, Aslam says, they were ordered out by a man who accused them of having "ties to the Liberal party through Facebook."

"He ripped Conservative stickers off their shirts, tore them up and ordered them out, Aslam says."

Note that no one accused Aslam or her friend of being disruptive in any way. They weren't demonstrating, or passing out leaflets or even asking questions — they were just, y'know, watching.

Further note that the Conservatives consider it an efficient use of their time to stalk the Facebook pages of attendees at their rallies, that they consider public humiliation of teenagers appropriate behaviour (Ms Aslam was reduced to tears) and that, as we'll see, Stephen Harper himself sees nothing wrong with any of this.

The Globe and Mail ran the story and followed up with the Prime Minister Who Would Be President himself.

Harper ducked the issue. "The staff runs our campaigns," he said, "and I can't comment on individual matters like that," typically passing the buck of blame to those below him.

See An apology means never having to say you're sorry for more.

Edited to fix really embarrassing typo.

ed_rex

It's not easy being Green

For Elizabeth May, it's debata-vue all over again

Tuesday was a good news/bad news sort of day for the Green Party.

On the one hand, Elizabeth May's band of political upstarts lost their bid to have the Federal Court make an emergency ruling giving her a seat at the table for next week's televised leaders' debates.

On the other hand, if the results of a poll commissioned by the Globe and Mail are to be believed, a significant majority of Canadians either "strongly" or "somewhat" support her presence at the boys' table.

Now May is calling for a boycott of next week's debates by the other party leaders and hoping for a repeat of 2008, when an enormous public outcry more or less forced the broadcasting consortium to let her in (and, don't forget, for Jack Layton and Stephen Harper to rescind their threats to withdraw should she be permitted to take part).

But should the Green Party have a seat at the table? After all, they've never elected a Member to the House of Commons and the party managed only 6.77% of the popular vote last time out.

Read the full article at Edifice Rex Online.