Open questions

Now that the NDP is reaching levels of popular support that make a change in government look highly plausible, it's about time to double back to some of the more serious questions about what Stephen Harper might seek to do to stay in power after an election that doesn't go his way.

If he's determined to cling to power and continues to believe that he can get away with absolutely any level of damage to Canada's democratic system that suits his purposes, Harper holds plenty of cards regardless of how Monday's vote actually turns out. He'll technically remain Prime Minister either until he resigns to create a vacancy in the office, or until a non-confidence vote is held. He can put off the latter possibility by refusing to allow Parliament to sit for up to twelve months from the date of the previous dissolution. (Indeed, I'm not entirely sure what the remedy would be if Harper were to breach even that minimal requirement.) And even if he allows a new government to be sworn in, he can prevent it from passing any legislation by continuing to whip his majority in the Senate.

So while I wouldn't expect an answer from Harper anytime soon, now would seem to be the time to start asking some pointed questions about what will happen if the election results aren't to the Cons' liking.

First, will Harper resign as Prime Minister if his party fails to secure the largest number of seats in the House of Commons? (Actually, this would seem to be something less than a clear requirement to the extent there's some prospect of his finding support among other parties - but if the answer is "no", then based on Harper's rhetoric about the most seats being the measure of victory then it makes for the first clear indication that all bets are off as to what he'll do to stay in power.)

Second, will Harper summon Parliament to meet at some point before the last possible moment - and allow it to vote on his Throne Speech - even if the likely result is a non-confidence vote against his government?

Third, does Harper plan to comply with the instructions of the Governor General rather than threatening to take a case "to the people" if his attempts to shut down democratic voting mechanisms are overruled?

And finally, if another government takes power, will Harper order his Senators to allow it to pass legislation which receives the approval of the House of Commons?

Needless to say, in any remotely functional democracy the answer should be a clear "yes" to the latter three questions. But there's plenty of reason for concern that Harper will see matters differently.

Update: Turns out I'm not the only one asking these types of questions, and Tom Flanagan offers some theories in response to John Duffy:

If a single party wins more seats than the Conservatives, I think Mr. Harper, based on his statements, will announce his resignation as prime minister. If the Conservatives win a plurality but not a majority, he will carry on as prime minister and try to bring in a budget fairly quickly. If he is defeated in the House, he could (1) offer his resignation as Prime Minister to the Governor General, thereby allowing the latter to ask the leader of the Opposition to form a government; (2) resign as PM and also as party leader, opening up the possibility that the Governor General might ask an interim Conservative leader chosen by caucus to form a government; (3) ask for another election, as Mackenzie King did in 1926. If the GG refused that request, I imagine Mr. Harper would then resign as King did, and the GG would try to find someone else to form a government. I don't foresee anyone challenging the GG's authority with an appeal to the Queen, or ruling by decree. I don't think we will reenact “State of Siege.”

Needless to say I'd hope he's right. But until Harper himself starts answering, there's still reason to wonder whether Flanagan is being optimistic based on the Harper he knew rather than the one who's already shut down Parliament once to avoid losing power.

[Edit: fixed wording.]

On useful constraints

While I'm skeptical of a few of the "basics" that he thinks the Libs should take up (which not coincidentally are probably exactly the ones most likely to surface in a Lib platform), Gordon Gibson certainly has some useful ideas to add on the Harper-proofing front:

Electoral reform. Promise to bring in an element of proportionality so that the public view is honestly represented in Parliament. Propose the changes before the next election with a promise to implement them if the voters approve.
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Constrain prime ministerial power. We need strong leaders, but we don't need dictators. There are ways to do this:

* Get rid of the “confidence” rule on most issues, the main tool of prime ministerial power. (Details some other time, but it is fundamental.)
* Give parliamentary committees guaranteed continuity of membership and professional policy staff. Amazingly, this does not now exist. Committees, which should be quests for the truth and good policy, have become ignorant partisan jousting grounds.
* Above all, promise a truly muscular Freedom of Information Act. When I worked in the PMO, my job was to read all cabinet and other secret documents. I knew then and I am certain now that 90 per cent of everything in these very useful analyses could be and should be published on the front page of this newspaper every morning. Secrecy is for the convenience of the governing party, not the people, but we have paid for these analyses and we deserve to know them. Information is at the centre of a functioning democracy.
* One last thing: Provide for the direct-democracy tools of the initiative and recall for when politicians really screw up. Don't make it easy, but give these nuclear options to the voters in extremis.

On opportune moments

David Schneiderman weighs in on the options available to the opposition parties if they're able to agree that Parliamentary supremacy is worth affirming:

Prerogatives continue to exist, however, only to the extent that they have not been disrupted by statute. Although Judge Iacobucci's advice may be helpful in resolving some aspects of this dispute, what the circumstances require is that Parliament take immediate measures to control the exercise of prerogative power, using statute. This realm of unfettered discretion must be made accountable to the people and their representatives. It is not often that Parliament can acquire this authority in the face of an intransigent prime minister. With Mr. Harper's party in the minority, however, the House of Commons can enact a special statute directing disclosure of these documents, even under certain conditions, and so control the prerogative in this instance.

It also is an opportune moment for the House to consider limiting, even abolishing, the balance of prerogative powers that are exercised almost exclusively by prime minister and cabinet. This is what the British House of Commons select committee on public administration recommended in 2004 and the House of Lords recommended in respect of the prerogative of deploying troops in 2006.

A bill regulating the exercise of a prime minister's power to recommend prorogation or dissolution to the governor-general is a more delicate constitutional matter, but deserves serious consideration as well.

On missed objections

Oh, how I would have liked to be wrong in worrying that the opposition parties were going to pass up their chance to put in place some rules that couldn't be so easily manipulated by the Harper Cons. Here's Kady:

(G)enerally speaking, committees readopt the same rules of procedural engagement as the previous session, although there's always a remote chance that the government -- or, for that matter, the opposition -- will seize the opportunity to tweak the fine print. Usually, it involves the post-first round allocation of questions; those who followed me in my previous iteration may recall that the Conservatives were able to sneak a few more slots in for their side when the last session began.
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The newly elected chair takes his seat, and gets right down to routine motions; he notes that he's actually a new member, so -- cut him slack, I guess. He reads the motion in the House reinstating the previous routine motions, but it doesn't look like there's any objection.

So the opposition response seems to be that the rules underlying the Cons' obstruction manual - as already changed last session for the Cons' benefit - are just fine as they are and don't require even the slightest amendment. Can somebody explain why on earth they'd be acting based on that assumption?

Today's the day...

...to find out whether the opposition parties have actually developed rule changes to Harper-proof our Parliamentary committees at least to the extent of preventing the Cons from unilaterally shutting them down. Anybody want to take the "yes" side of that bet?

On independent reporting

Along with the story on the Cons' systematic throttling of information, the other major story yesterday was the Star's report on Peter Van Loan's suppression of a report on the federal gun registry. But I have to wonder if there's a relatively simple solution available to at least part of the problem with the gun report:

Van Loan told reporters he had the report in hand for "several days." He went on to accuse firearms staff of inflating numbers in the report to justify the existence of the gun registry.

In fact, the document trail shows the RCMP – as required by law – submitted the report to the minister's office on Sept. 18. The RCMP anticipated it would be released within the usual 15 sitting days.

But it was held until Nov. 6 while Van Loan's staff pored over the statistics within and tried to parse data that showed the firearms registry's use and popularity is on the rise.
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Unhappy with the contents of the report, ministerial staff asked for further explanations of statistics that showed a rise in police queries to the firearms registry, and greater satisfaction with service provided over the Internet or telephone.

The minister's office demands an explanation for "why the minister has been presented with an inked, bound and printed final draft not long before the document needs to be tabled," and appears to challenge why a report was produced at all, since the minister hadn't issued a direction or instruction on it.

Now, the Cons' efforts to pressure the RCMP about the contents of the report are obviously a problem. But the largest issue looks to have been the timing, as the report was hidden by Van Loan until after a vote in Parliament on the registry being evaluated.

Which raises the question: why should it be left to ministers to decide when and how to release or table statutorily-mandated reports which don't involve any political direction?

Of course, the government shouldn't be caught off guard by a report's release. But there's a difference between making advance copies available a day or two in advance to allow the government (and other parties) to craft their responses, and putting the release timing entirely in the hands of a government which goes out of its way to hide inconvenient facts. And at least some of the Cons' information suppression would seem to be relatively easily countered by ensuring that important reports don't have to flow through ministerial channels.

On secret votes

Rafe Mair offers up his own suggestion to empower MPs in Parliament. But it's worth noting the new difficulties which Mair seems willing to create in order to potentially change the culture of party discipline:

The easy (solution) is to give MPs the great protection that electors have -- a secret ballot. Now, that would put the cat amongst the pigeons. The rule would remain that the government would only be obliged to resign on a budget matter or one accepted as a "confidence" motion. And what's the argument against this again?

It has been pointed out that under this option, we won't know how our MPs voted. But we only know that under our present system because the MP must always vote as he is told.

If we, as a society, consider that regular people ought to be able to cast their votes free from outside pressure, promises of rewards, and penalties, why would we deny that same protection to those we elect to speak for us?

Now, Mair's argument is itself somewhat inaccurate. Parliamentary votes are recorded regardless of whether or not a particular MP follows the party line, and there are circumstances where MPs do wind up voting contrary to orders. (Indeed, one of the best indicators as to how a party treats a plurality of views can be found in its handling of whipped votes.)

The more important point, though, is Mair's calculation as to the relative priorities of top-down and bottom-up influences on MPs. In his view, it's worth trading off the ability of Canadian voters to hold MPs accountable for their votes in Parliament if that means simultaneously removing the power of party leaders to do the same. And I can certainly see reason to wonder whether the net result would be an improvement on the status quo.

But it's worth asking just what that trade-off means. Have we really reached the point where we're better off sacrificing our own ability to make informed decisions about our MPs in the hope that they'll produce better results if they don't have to answer quite as directly to party leaders? And if so, then isn't there some serious need to change the party system for its effects both inside and outside of Parliament?

In addition, there are serious questions as well as to what results would come of secret-ballot voting in Parliament. Isn't it likely that such a system would make party leaders all the more controlling at the candidate nomination stage in an effort to ensure party loyalty when it comes time to vote? And wouldn't such a system be ripe for manipulation by candidates who could get elected promising to vote one way in order to put themselves in a position to secretly vote the opposite?

Fortunately, there are some means available to restrict party leaders' ability to impose discipline from on high without simultaneously eliminating any ability on the part of citizens to hold legislators to account for their votes. And I for one would much prefer to be able to reward any legislator who casts his or her vote in favour of such an effort - rather than having to wonder whether an MP's words on the campaign trail bear any resemblance to his or her votes in practice.

On open government

The Ottawa Citizen discusses one noteworthy Harper-proofing proposal in the form of limits on how political staffers give directions to civil servants. But notwithstanding the fact that the issue comes up in the context of an issue of denial of information (which can be dealt with in other ways), I'd have to wonder if this may be one area where openness will do more than prohibitions.

After all, it would seem to be a simple enough work-around for staffers to give orders which are nominally signed off on by the minister responsible - and there would be no less deniability for that type of process than there already is when staffers exercise delegated authority. So there's relatively little to be gained by simply requiring that orders formally originate with the minister.

With that in mind, rather than merely providing that staffers never give orders, why not instead create a general rule that political orders - whether originating with ministers or staffers - are binding on our public servants only if they're made open to the public to begin with through a registry of ministerial instructions?

This wouldn't necessarily result in anything more being made public than should already happen now. But rather than requiring researchers to request access to records reflecting instructions after the fact, such a system would ensure that the directions given to the civil service are made known up front, giving Canadians a far better idea what priorities are being set by the political branches of government.

Of course, there would be some circumstances where secrecy might be justified. But the Access to Information Act already provides a model as to how to weigh the relative interests of confidentiality and openness in government operations. And aside from somewhat more of a presumption that the orders themselves should be open, there's no reason why a similar policing process couldn't be applied to the disclosure of orders.

It's worth noting that some of the other ideas suggested by the Citizen's sources - including a more professional view of a political staffer's role - are certainly deserving of some consideration as well. But the simplest step to limit political abuses of Canada's civil service would seem to be to pull back the curtain on what political orders are actually being given. And if the result isn't to actually improve the performance of a government like the Cons', then at the very least such a system would expose exactly how our public institutions are being manipulated.

Harper-Proofing Canadian Democracy: Accountability for Information

There's been no lack of talk lately about Canada's federal access to information procedures, and the recommendations of the Standing Committee on Access to Information, Privacy and Ethics offer at least one set of proposals worthy of action. But there's a more fundamental issue at play which doesn't seem to have been addressed - and I'll suggest that it makes for the most important possible safeguard against the likes of the Cons.

Currently, the access to information system contains two main outlets to try to ensure that governments actually provide the public with access to information as required by law. The first is the review process which provides for recourse to the Information Commissioner and ultimately the Federal Court against any decision by a government institution to deny access. But that process leads to no final result other than the disclosure of whatever documents should have been released in the first place (and perhaps an award of costs to merely account for the expenses of actually pursuing the case). Which effectively invites an unscrupulous government which wants to keep its actions secret to simply refuse to release information until forced to through the courts.

In principle, that impulse is supposed to be checked by ministerial accountability for access to information within a department - with theoretical political consequences for a minister who consistently suppresses information. But that kind of moral suasion is obviously rendered ineffective when it's applied to a government with no shame.

What's more, the notion of political costs as the consequence of failing to provide required information only encourages a government to see access to information in political terms, and to centralize its operations for partisan benefit as the Cons have done. If each minister exercises practical control over his or her department, then it might be easier to actually hold accountable the ones who are more secretive. But if all of them simply pass along documents for redaction by the PMO while being able to point fingers elsewhere without practical consequences, then political self-preservation may well weigh in on the side of playing along with information suppression even if a particular minister wouldn't be inclined in that direction.

That's where we are now: a system with no sense of individual responsibility where the statutory processes which theoretically provide access to information can be flouted by a government which simply declines to follow the law. So let's make it unmistakably clear that ministers and departmental officials are in fact individually responsible for their actions in dealing with information.

It would seem to be a simple enough matter to set up a system of regulatory penalties for noncompliance with the Access to Information Act, with ministers or other institutional heads bearing explicit supervisory responsibility for what happens within their departments.

Of course, the idea wouldn't be to create automatic punishment for any delayed response or disagreement as to what ought to be redacted - factors which could be taken into account by providing defences for good-faith action and reasonable reliance on the advice of officials. And it would make sense to create a filter for frivolous accusations by ensuring that the Information Commissioner gets to determine which cases actually justify prosecution (similar to the process under the Canada Elections Act where the Chief Electoral Officer has to refer matters to the Elections Commissioner for investigation).

But in the case of officials and institutional heads who might deliberately suppress information without a legal basis to do so, the difference between facing no repercussions other than losing an argument in court and facing personal legal liability would create a strong incentive to make decisions on the departmental level in accordance with the law. And since the cost of withholding information in bad faith would be personal rather than political, there would be far less inclination to farm out decisions to the PMO or any other department on the assumption that the government can get away with whatever it wants as long as it sticks together.

In sum, before Parliament spends much more time tweaking the types of exemptions or orders available under the current system, it would be well served to first take the single step which is most likely to force even a government as controlling as Harper's to take notice of the consequences of depriving Canadians of their right to information about how their country is run. And if the result is a system where all departments are motivated to set up better-functioning access to information systems which last under future governments, then so much the better.

Harper-Proofing Canadian Democracy: Powers of Appointment

Paul Wells is right to note that a government's power to make funding and staffing decisions which may go largely unnoticed makes for one of the ways in which it's most able to alter the fabric of Canadian society - and there's plenty of reason for concern about how the Harper Cons are using that power. So in figuring out how to reform our current system to protect against the likes of Stephen Harper, let's turn next to the question of staffing and appointments.

Needless to say, this area makes for one of the largest disappointments under Harper. On paper, the public appointments commission promised by the Cons and set up under the Accountability Act would seem to have been an effective means of ensuring that public service staffing would be carried out without a partisan slant. But any hope of positive change anytime soon was rlost when Harper announced that a party bagman would be his choice to chair the commission, then decided to throw a temper tantrum when the other parties didn't play along with the appointment - with the result that Canadians are on the hook for the cost of a nonexistent commission, while the Cons turn the public service as a whole into a partisan breeding ground.

Meanwhile, the Cons have similarly abused their appointment powers for other independent offices - rewarding unqualified party hacks for some roles which are supposed to involve actual independent oversight, while simply declining to make appointments to others. So it's worth wondering what can be done to ensure both that independent offices are actually filled, and that their inhabitants aren't appointed purely on a partisan basis.

Fortunately, there's at least some precedent for getting the opposition parties involved in key federal appointments: while the Cons chose not to bother in their most recent Supreme Court appointment, the earlier selection of Marshall Rothstein through a process featuring multipartisan steps appears to have been carried out without a hitch. So why not develop an adapted process to fill independent offices as well?

Ideally, that would involve a list of qualified candidates for each post developed by consensus among the parties in Parliament (or at least the approval of a majority of the parties for each candidate). From there, one would expect a few steps to narrow the field - likely involving a shortlist developed by the government, some elimination of candidates on an all-party or multiparty basis, then a final appointment by the PM.

For now, the opposition parties might be particularly well served to combine statutory proposals to entrench a multi-party process with some work among the opposition parties to develop consensus lists intended to help fill some of the key positions which are currently vacant or occupied only on an interim basis - including the chair of the Public Service Commission, the Information Commissioner, and the RCMP Complaint Commissioner as recent high-profile examples. Once the opposition parties presented their lists of qualified candidates, I'd think that at worst Harper would face pressure to make permanent appointments to the roles - and at best he might well be criticized as obstructing the proper functioning of government if he didn't work with the names provided to him.

Of course, at the end of the day the Prime Minister would maintain the power to make the final appointment even under the proposed changes. And the road to making even those limited amendments would be a long one: it would take a combination of statutory changes and some convention development to formally entrench a process along the lines of the above as the means of appointing independent officers, and Harper might well bristle at any suggestion that he should pay attention to anybody else's list of candidates. But a focus on ensuring that independent officers actually fit the title should at the very least put some serious pressure on the Cons - and may well produce some positive democratic reforms for a long time to come.

Update: Michael Ignatieff is making similar suggestions when it comes to appointing senators. I'd think the independent offices should be a higher priority, but there's no reason the idea couldn't work for both.

Why not both?

Meanwhile, taking into account the certainty that Stephen Harper will do absolutely everything possible to barricade himself in the Prime Minister's office, let's also respond to Murray Dobbin's question:

Reform democracy or rid the country of Stephen Harper?
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What is our goal? Do we want to finally rid the country of this execrable politician once and for all, or do we want democratic reform for the sake of democratic reform?

Of course, getting rid of Harper needs to be at the top of the to-do list. But particularly if the Cons plan to weasel their way out of any votes of non-confidence in this Parliament (or any future one), there's simply no guaranteed way to get there from here. So in the meantime, it's certainly worth some effort to put formal measures in place to limit the damage Harper can do - as well as setting up a more democratic system for future PMs.

Harper-Proofing Canadian Democracy: Delegated Authority

One of the areas where the Cons have rightfully faced at least some resistance is in trying to take executive control over an increased range of policy decisions - with a prime example being their move to allow the Minister of Immigration free rein in picking and choosing what immigrants are allowed into the country (which the Libs unfortunately wound up supporting in the end). But there hasn't yet been much attention paid to the question of whether Canada's system of governance is already set up to allow for too much executive power to set policy. And I'd think now would be the time to raise the issue as part of the discussion of the limits on top-down power.

Of course, a complete review of the federal regulatory structure is probably a bit ambitious for a single blog post. But let's look at least in general terms at what can be done to keep more policy-making power in the hands of Parliament - rather than (as the Cons seem to want) limiting MPs' role to deciding whether or not to vote out the current holders of executive power.

Nearly any statute will include regulation-making authority to facilitate the implementation of the policy included in the statute, and I certainly don't object to that. But many also seem to include a broad scope for delegated power to effectively take precedence over the purpose of a particular law - e.g. by dictating how the policy underlying the statute will be applied (as in the immigration categories discussed above), or by allowing for exemptions which undermine the point of a policy (see the Cons' wholesale elimination of environmental assessments for infrastructure projects).

In effect, there's a continuum of delegation ranging from having policy determined mostly by statute with the executive role based primarily on implementing the will of Parliament, to having Parliament set up a series of departmental structures which are close to policy-neutral which can then be used for whatever purpose a particular government sees fit. And it's worth taking a serious look at whether Canada has veered too far toward the latter.

Of course, there's a limit to how much detail can be dealt with by statute. And we know all too well from the climate change experience that the Cons aren't above flat-out ignoring the law of the land if it doesn't suit their mood.

But in order to ensure that the policy actually implemented by Canada's executive branch reflects the will of Parliament, it's still worth defaulting to the position that the purpose of any given area of legislative action should be governed by statute and implemented by the executive - such that broad policy issues worthy of debate in Parliament aren't delegated to be decided at the ministerial level.

In closing, I'll recognize that any suggestion along the lines of the above is bound to be met with the answer that it's easy to impose limitations on government when one actually isn't involved in running it. And in theory, an ideal government might well function more smoothly if it didn't have to clear its policy choices with the people's representatives.

To that, I'd counter that it's equally easy to say we should blindly trust that whoever's in power will do the right thing when one actually holds it (or expects to hold it in the near future). But surely one of the lessons of Harper's stay in power has to be that we shouldn't take the good faith of the executive branch of government for granted - a point which even Michael Ignatieff seems to be acknowledging lately. And if ensuring that Harper and his ilk can't use Parliament as little more than a rubber stamp means requiring governments of all stripes to be more accountable to Parliament, then that's a tradeoff worth making.

The reviews are in

The Ottawa Citizen:

For many years now, constitutional experts and other political observers have lamented the concentration of power in the prime minister's office. They've warned, persuasively, that this concentration of power erodes Canadian democracy -- and it doesn't matter who the prime minister is or to which party he or she belongs.

Harper's arbitrary abuse of the power to prorogue has caused many Canadians to wake up and realize that all might not be well with our parliamentary system. Although the Governor General is in theory able to restrain prime ministerial power by denying a PM the right to use prorogation for partisan purposes, Canadians have discovered that in practice prime ministers do what they want.

Have the powers of the Governor General atrophied to the point they don't exist? Is this a good thing, in that the GG is unelected and shouldn't have real powers anyway? Then again, aren't the aides and minions in the PMO also unelected, yet wield more power than any legislator except the PM himself? Everyone in Ottawa has heard anecdotes of 20-something staffers from the PMO scolding senior cabinet ministers, and loving it. That can't be great for Canadian democracy, either.

What began as a debate revolving around an arcane term is turning into a much bigger and more interesting conversation.

Harper-Proofing Canadian Democracy: Candidate Nominations

Following up on my earlier posts, let's take a more detailed look at some ways of bring power back to the political grassroots - starting with the law which is normally seen as having centralized power in the office of each Canadian party leader.

Under the Canada Elections Act, the default rule is that a candidate requires a party leader's signature in order to be nominated. On its own, this might seem to be a fairly harmless step - but in retrospect, it can be seen as the source of much of the ability of many party leaders to trample on the grassroots, as preferred candidates can be assured of a nomination while anybody who's seen as dangerously independent can be ruled unfit to run by the central party.

Based on the few party structures actually required by the Canada Elections Act, there aren't many obvious alternatives to endorse candidates Canada-wide. But I wonder if a relatively small change in a nomination process might serve to restore at least some nominating power to the riding level.

After all, the Canada Elections Act does provide for the registration of riding associations (officially "Electoral District Associations"). With those serving as the most obvious possible source of local approval for a candidate, what would happen if the rules for nominations were changed such that where a party has a registered association, it's the riding association's officers who have to sign off on candidate nominations?

This wouldn't make for a cure-all by any stretch of the imagination, as riding associations themselves can only be registered with the approval of a party leader. But at the very least, I'd think it would be a significant source of embarrassment for a party leader to have to de-register a riding association and officially impose a new one in order to control candidate selection - in effect signalling a slight to the party's most visible presence in a riding rather than only to excluded individuals. And there would likely be some real costs to that step as well to the extent the previous riding association has any financial resources or volunteers that don't transfer over.

Again, the ideal solution in both registering riding associations and nominating candidates would be to develop some other mechanism aside from the leader's confirmation to establish a party's approval. But even if that isn't practical (and I wouldn't rule it out entirely - e.g. how does the U.S. certify candidates in the absence of official "leaders"?), it's worth seeing what can be done to loosen the hold that leaders now have on a party's potential candidates - and a direct connection between riding-level officials and candidate nominations would seem to be a good start.