3. Serious Reform to Representative Institutions and Practices – (February 15, 2017)

This is part of my article entitled “Reform or Revolt: The Challenge to Canadian Democracy“.

Our representative institutions and practices need serious reform to reduce executive power and return it to Parliament. We need to enhance citizens’ influence as much in between as during elections. We need substantive, systematic change in the way government deals with citizens and vice versa. We need electoral reform and a definitive end to our first-past-the-post/winner-takes-all voting system. We need a properly reformed Senate. And we need reforms to some of the operations of political parties, specifically in respect of nominations and perhaps the leadership selection process.

The representative institutions and practices that used to serve as checks on unfettered executive power continue to atrophy. Neither the House of Commons nor the still-hapless Senate provide any meaningful legislative oversight of the Trudeau PMO on any of the issues of the day. The political parties that used to be broad-based grassroots organizations have been reduced to mere election machines at the beck and call of the leader and his entourage, who tightly control the nomination process that selects those elected to be members of Parliament.

Parliamentary Reform

Extensive parliamentary reforms are crucial if we are to truly constrain prime ministerial authority, curtail the executive branch, and re-engage Canadians with our government. These reforms should relax party discipline/leader control and allow MPs much more autonomy in developing responsive policies and programs, particularly across partisan lines. In turn this will open up Parliament to respond better to citizens’ concerns.

During the 2015 election campaign, the prime minister promised a great deal in terms of more genuine openness and transparency in governance, and more freedom for MPs. Unfortunately, while some progress has been made, much, much more remains to be done.

To begin with, the federal government has not undertaken the overhaul the outdated legislative frameworks for ethics, privacy, and freedom of information. The prime minister has particularly tripped up defending the indefensible cash-for-access controversy. He was ultimately reduced to claiming that we should just trust him not to have behaved unethically. This is dangerous territory.  A leader may believe that he is personally incorruptible, that he personally knows what is good for his citizens regardless of what he hears from the wealthiest to the poorest of them. But this is not good enough in a vibrant democracy that depends on the rule of law, not the personality of its leader.

Urgent legislative action is required.  For example, the Accountability Act still does not provide for the enforcement of the “duty to act honestly” on the part of senior civil servants and cabinet ministers by an independent conflict-of-interest and ethics commissioner reporting to Parliament.  This “duty to act honestly” is referenced only in a set of accountability guidelines – “Accountable Government: A Guide for Ministers and Ministers of State” – the enforceability of which lies only with the prime minister. 

We need to replace the current conflict-of-interest and ethics commissioner, who reports privately to the prime minister, with an independent commissioner reporting to Parliament and appointed through a merit-based process, with strong powers to investigate government officials and lobbyists. We need effective whistleblower protection for public- and private-sector employees. And we must strengthen the rules of conduct for lobbying. All lobbyists’ contacts with politicians and government bureaucrats, both formal and informal, must be reported and made public.

Similarly, the Access to Information Act and the Privacy Act, which both date back to 1983 – i.e., before the Internet – require comprehensive overhauls to bring them into the digital age.  Reforms must ensure greater transparency of and accountability for government activities, and a more equitable balance between Canadians’ right to know and the legitimate protection of information.

A variety of steps are required to explicitly reduce the power of the PMO. These include stricter limits on the budget of the PMO and dismantling the all-powerful command-and-control network built out of the PMO through a thick network of political staffers and communications officers. Strengthening the operations of parliamentary committees and reducing party leaders’ and whips’ control of Parliament to enhance the autonomy of individual MPs is also essential. Indeed, committees of the House of Commons have a vital role to play in examining the policies, programs, and actions of the government. Committees need to have adequate budgets no longer controlled by the Board of Internal Economy, but through the Library of Parliament, in order to function vigorously and independently. They should have a clear set of rules and check their partisanship at the committee door.

Instead of the prime minister having the power to appoint deputy ministers, associate deputy ministers, members of boards and commissions, and ambassadors, we should have an impartial and objective Public Appointments Commission. A fully independent and transparent appointments process should also be established for judicial and quasi-judicial positions, including a meaningful parliamentary confirmation process. The process would also be applied to the selection of a new arm’s-length Criminal Justice Council.  This Council would oversee changes to the Criminal Code and insulate the Code from capricious partisan amendments from a future less progressive government.

Political Party Reform

With respect to political parties, in our social media age of fragmentation and flexibility it is likely impossible to restore the role of political parties as a bottom-up channel for policies in between elections. But even if political parties are relegated to the election process only, we need to remove control of the candidate selection process from the political party to Elections Canada. At the same time, we should amend the Elections Act to remove the requirement for national party leaders to sign the nomination papers of candidates for their respective parties. This does not preclude appropriate vetting of accuracy of qualifications.

These changes will ensure nominated candidates are not the effective appointees of the leader, owing more loyalty to him than to their constituents. And it means that elected MPs will have greater autonomy and be much less likely to unthinkingly toe the leader’s line in Parliament. This will complement parliamentary reforms designed also to enhance the power of MPs. We should also consider whether rethinking the leader selection process is required to diminish the power of the leader and his entourage. Some informed observers recommend returning to the process of a leader selected by members of the caucus.

Finally, we need to do much more to elect women to Parliament – women are still stuck at an unacceptably low 26% of MPs. Appointing a gender-balanced cabinet is laudable but will not survive the current prime minister’s tenure.  Moreover, if you look beyond the enthusiastic claims that the prime minister is a feminist,  this may not be supported by the facts.

To achieve real advances for women in political life, serious structural reforms are required. In addition to transferring control of the nomination process to Elections Canada control, we need, among other things, independent organizations, like Emily’s List in the US.  Emily’s List is devoted to raising significant resources to support good female candidates to secure nominations in winnable ridings still largely dominated by male party insiders who are well-practised in the art of manipulating nominations.

Electoral Reform

In addition to parliamentary and political party reforms, electoral reform is an essential component of ensuring a Parliament that is more responsive to Canadians, more collaborative, and more creative. We urgently need electoral reform that puts an end to governments that govern as majorities with a minority of the vote. This means a form of proportional representation, so that the representation in the House of Commons reflects the popular vote, and we initiate a tradition of coalition-building in Parliament

Contrary to its ill-informed critics, who unfortunately include our prime minister, proportional representation would not lead to an unruly House of Commons and disruptive extremist groupings. An electoral system based on proportional representation would in fact go a long way to empowering MPs and encouraging collaboration, while curbing executive power.

The government’s decision to abruptly withdraw support for electoral reform to replace the first-past-the-post system is yet more evidence of a government out of touch with Canadians, and more interested in holding onto majority power. The prime minister and his entourage have wrongly assumed that Canadians do not care enough about the issue to affect their re-election plans. Trudeau acknowledged this all too clearly when he suggested that Canadians were far less interested in reform now because his government was so much better-liked than the Harper regime. The decision to abandon electoral reform will arguably have a serious impact on the longevity of this federal government.

Senate Reform

The federal government’s changes to the Senate appointment process, while temporarily closing down the embarrassing soap opera that played out under the Harper administration, are unlikely to survive much beyond the current prime minister’s tenure.  The new process involves an Independent Advisory Board that gathers applicants (through outreach to some 200 select non-governmental associations and similar groups, as well as through media advertisements), examines online applications and prepares a short list of “merit-based” appointments for the consideration of the prime minister.

At best, these attempts to lessen partisanship threaten to transform the legislative body into a passive advisory panel and an ineffective component of the legislative process.  And despite the government rhetoric about respecting an arm’s-length process and appointing only “independent” senators, the new appointees are still completely dependent on the prime minister’s approval.

Without much more structural openness and transparency, appointments are still easily guided by the leader’s entourage through the new channels onto the short list. And a new game will quietly develop involving behind-the-scenes campaigns to patronize the non-governmental associations and other groups on the advisory committee’s outreach list in order to be endorsed and included on their short list of Senate candidates.

To ensure more than cosmetic change that a successor government can quickly reverse, constitutional reform is required to either abolish the Senate or design a new Senate structure with powers and a seat distribution appropriate to the 21st century. At the very least, should a reformed Senate remain an appointed body after full and free constitutional debate over the alternative options of election or abolition, the process of appointment must be completely independent from the executive branch, not the sham independence of the current arrangements.

Yet the prime minister and his entourage continue to be extraordinarily averse to engaging with the people of Canada in an open constitutional reform process, even one that is focused on a single issue like Senate reform.  They argue that constitutional reform is unnecessary and should be avoided.  This is a dangerous attitude.  Constitutional debate and reform may be “difficult”, but it is an absolutely essential component of a well-functioning representative democracy.  The prime minister and premiers cannot shrink from their democratic obligations to present and future generations of Canadians to consult the people in a meaningful way on proposals to update the basic rules and structure of our democracy. In Expanding Direct Citizen Participation, I discuss the additional need for constitutional reform to involve a consultative referendum, as well as our experience with and lessons to be drawn from the Charlottetown referendum in 1992.