With a special guest appearance by the Governor General?

By Aaron Wherry - Tuesday, January 22, 2013 at 10:58 AM - 0 Comments

While the Prime Minister’s Office and Ned Franks explain the reasons for not involving the Governor General in a meeting between the Prime Minister and First Nations leaders, Charlie Angus seems to try to articulate a compromise.

But NDP MP Charlie Angus, whose Northern Ontario riding includes Ms. Spence’s Attawapiskat community, said the Prime Minister should allow the Governor-General to open any future meeting in order to build trust and “dial down the rhetoric.” “I’m concerned about the symbolism if [Ms. Spence] got sick or something happened — I think it would really throw everything off track,” he said. “If [Mr. Harper] sends some message of goodwill, we could ratchet this down a lot.”

This sounds like a proposal to have the Governor General do what he did a year ago at the Crown-First Nations gathering.

There are a couple ways to question this proposal. The first is the practical: Would this be enough to satisfy Theresa Spence and those who are following her lead on this demand that the Governor General be involved? If the answer is no, this proposal is moot.

But even if this would be sufficient to appease Ms. Spence, there is the philosophical question: Is any compromise worth making when it is based on a very problematic understanding of how our democracy works? Is it worth finding a compromise at the risk of perpetuating—or seeming to give into—a very problematic understanding of how our democracy works?

I think I generally lean towards upholding the principles of our democracy and refusing demands that seem to be based on a very problematic understanding our how our democracy works, but if having David Johnston stand up and say a few words (presuming he then takes his leave and goes back to Rideau Hall) would be enough to get past this odd stand-off, I’m somewhat tempted to say go for it and be done with it. (Alternatively, you refuse a compromise, stick with the principled view and assume that this point of dispute will ultimately pass. I suppose this calculation involves judging Ms. Spence’s present and future health and the likelihood she’ll give up her protest or otherwise be fine.)

‘Parliamentary business as warfare’

By Aaron Wherry - Wednesday, September 28, 2011 at 10:01 AM - 11 Comments

Ned Franks considers the early days of the 41st Parliament.

“I would have thought they would have changed, and stopped their approach to Parliamentary business as warfare by any other means,” Prof. Franks told The Hill Times. “They’re governing by fiat, and they’re forgetting that though they have a majority of seats, they got less than 40 per cent of the vote in May. I’m disappointed. I was expecting better.”

As discussed in the Hill Times piece, among those called by Conservatives to appear before a committee concerning the CBC is a sitting Federal Court judge.

That Senate reform bill: alive in the water

By Colby Cosh - Wednesday, June 22, 2011 at 5:25 AM - 0 Comments

In a recent dead-tree Maclean’s I gave a little preview of the constitutional issues that the government’s piecemeal Senate reform effort, now launched, will raise if it is brought before a court. Readers may not be aware that the nature of Senate elections was discussed very recently in the Senate itself—in March, when a Senatorial Selection Act (S-8) was briefly debated there. The provisions of that bill have now been incorporated into a schedule to House of Commons Bill C-7.

Today’s Star has a piece from Susan Delacourt in which scholarly all-rounder Ned Franks calls Senate elections “dead in the water” and “sure to get shot down by the Supreme Court”. I don’t want to call this a misrepresentation of the expert consensus, nor to challenge the stature of Ned Franks, but it seems to me that few other opponents of Senate elections are as confident as these quotes suggest. As I wrote, it is not clear exactly how much change Parliament is free to make to constitutional arrangements by statute alone. The Constitution Act text says that the 7/50 amending formula has to be followed before “the powers of the Senate and the method of selecting Senators” are changed. But under C-7, Senators are explicitly still appointed by the Governor-General as before. (“Senators to be appointed for a province or territory should be chosen from a list of Senate nominees submitted by the government of the province or territory.”)

Indeed, the flow of moral force through the text of the bill shows amusing evidence of judiciary-proofing. Look at section 2 of C-7:

2. The framework in the schedule sets out a basis for the selection of Senate nominees.

Key phrase, for the purpose of a future court test: “Senate nominees”, as opposed to Senators. The message to the courts is that we are not creating a formally elected Senate, but merely a means of bringing “nominees” to the attention of the Prime Minister. It’s an important distinction, also observed in s.3 of the bill:

3. If a province or territory has enacted legislation that is substantially in accordance with the framework set out in the schedule, the Prime Minister, in recommending Senate nominees to the Governor General, must consider names from the most current list of Senate nominees selected for that province or territory.

Key phrase: “must consider”, as opposed to “must accept” or “must recommend”. The bill is carefully keeping its toes within the boundaries set out by Peter Hogg in a discussion of a still earlier, failed Conservative reform bill:

…right now the Prime Minister could, if he wished, commission an informal poll as to the wishes of the electorate with respect to an appointment from a particular province. The Prime Minister could right now, and in fact has done, respect the choice of the electorate expressed in a provincial election, as we know has been done in respect of appointments from Alberta, where those elections have been held.

So all Bill C-20 does is make a formal consultation process available to the Prime Minister, should he choose to take advantage of it. As you will know, the Prime Minister does not need to take advantage of the consultation process if he doesn’t want to; the bill leaves that as a matter of discretion in the Governor in Council. If the Prime Minister does order the formal consultation process to take place, he does not have to respect the results in making recommendations for appointments.

I fully recognize… obviously a court would recognize that after Parliament has established the complicated process proposed by Bill C-20, no Prime Minister is likely to continue to make appointments in the old way. But I say that is a truth of politics, not a truth of law.

As crafty as those concluding words sound, I do not see how Hogg’s logic is assailable. I’m not an advocate of Senate elections per se. But Franks-style constitutional opposition to Senate reform requires acceptance of an absurdity: that otherwise qualified candidates for the upper house somehow become morally ineligible if they happen to have won a vote. The Constitution can and does stop people from entering the Senate solely by virtue of election. I don’t see how it can thwart a scheme for holding advisory elections that are binding only by virtue of the common regard in which we hold procedurally fair expressions of democratic sentiment.

'It offended her professional responsibilities'

By Aaron Wherry - Monday, June 6, 2011 at 8:50 AM - 90 Comments

Ned Franks considers the circumstances of the rogue Senate page.

Brigette DePape’s breaking of the rules governing the behaviour of the staff of Parliament was not civil disobedience. She was not protesting a specific law or policy. She was simply objecting to the results of a democratic nationwide election in which she, along with every other citizen 18 years or older, was entitled to vote. Her act was amusing, and held a sort of childish charm. But it offended her professional responsibilities.

'What he’s trying to do is elevate expediency into a constitutional principle'

By Aaron Wherry - Friday, April 22, 2011 at 10:53 AM - 79 Comments

Ned Franks considers that which Stephen Harper considers debatable.

Parliamentary expert Ned Franks dismissed Harper’s comments as “constitutional nonsense.” “There’s only one requirement for being the government and that is you must enjoy the confidence of the House of Commons,” said Franks, professor emeritus at Queen’s University. “It’s not a constitutional debate. Constitutionally, there’s absolutely no question. There are ample precedents both in Canada and abroad to support it.”

Franks accused the Conservative leader of trying to rewrite the Constitution for his own end. “He’s trying to change not just the Constitution in terms of what confidence means, he’s also trying to change it in terms of how governments are formed,” Franks said. “What he’s trying to do is elevate expediency into a constitutional principle.”

'There's so much cuckoo around this'

By Aaron Wherry - Wednesday, April 13, 2011 at 9:40 AM - 54 Comments

The Canadian Press checks Mr. Harper’s understanding of the constitution.

A government must have the confidence of the House of Commons in order to remain legitimate. But if Harper’s Conservatives have the most seats on May 3, they still need the support of the majority of the House of Commons in order to form government.If Harper loses that confidence, there are two choices, explains Russell. He can ask the Governor General to hold another election. Or the Governor General can look for another option among the other parties.

Setting the agenda

By Aaron Wherry - Tuesday, April 12, 2011 at 2:50 PM - 3 Comments

Before tonight’s debates, here is last night’s discussion on The Agenda. It’s a good thing they kept Ned Franks and I in separate cities, otherwise we would’ve come to blows around the two and a half minute mark here.

The democracy election

By Aaron Wherry - Monday, March 21, 2011 at 10:00 AM - 36 Comments

The Star sizes up a potential campaign.

The swirling ethical questions were enough to prompt Liberal Leader Michael Ignatieff to say he would be “delighted” to challenge the Tories’ democratic record in an election.

Parliamentary expert Ned Franks said issues around the government’s approach to democracy should get an airing on the campaign trail, especially given Harper’s dismissive response to the findings his government has abused parliamentary procedure. “Ultimately what you’re saying as prime minister is ‘I don’t give a damn what Parliament does. I’m going my way,’ ” said Franks, a professor emeritus at Queen’s University. “You can get away with it for a time but we live in a democracy, not a dictatorship,” he said.

A majority of respondents to a recent Ipsos Reid poll put “honest, open and trustworthy government” ahead of “economic recovery” as the top issue.

Three rulings in 12 months

By Aaron Wherry - Thursday, March 10, 2011 at 9:01 AM - 26 Comments

Ned Franks considers yesterday’s two rulings together with last year’s ruling on detainee documents.

Parliamentary procedure expert Ned Franks said no government in Canadian history has been cited so many times for ignoring the rights of Parliament. He offered two possible explanations.”(The rulings) suggest, to put it kindly, that the government is, at a minimum, ignorant of the rules and principles governing parliamentary democracy and, to put it unkindly, that they don’t give a damn and they’ll try to get away with what they can.”

The Globe sees contempt. Steven Chase adds yesterday’s rulings to Peter Milliken’s legacy.

'We shape our buildings, and afterward our buildings shape us'

By Aaron Wherry - Wednesday, March 9, 2011 at 9:48 AM - 2 Comments

Ned Franks considers House attendance.

For most of the time, our House of Commons is like Canada itself: a vast sparsely populated tract dotted with isolated human settlements. Is this what we want?

The House: Further reading

By Aaron Wherry - Tuesday, February 22, 2011 at 9:20 AM - 6 Comments

For their assistance when I was putting together last week’s piece on the House—and for the indispensable sites they respectively maintain—I owe a huge debt of gratitude to Michael Mulley of openparliament.ca and Cory Horner of howdtheyvote.ca. I also must thank Ned Franks, both for his writing on Parliament and omnibus legislation and his perspective.

Those seeking perspective and data, should start with Parliament’s own tallies of private members’ bills passed, legislation adopted and sitting days.

Beyond those, there are several other texts that proved helpful. Continue…

A lack of oversight

By Aaron Wherry - Monday, February 21, 2011 at 3:26 PM - 38 Comments

Bea Vongdouangchanh looks at one of the primary gaps in the legislative process.

“There’s just a need for Parliamentarians to have more information as to what they’re signing off on, whether it’s appropriations or legislation,” said Parliamentary Budget Officer Kevin Page, who, at the House Finance Committee last Tuesday said that “there is genuine concern that Parliament is losing control of its fiduciary responsibilities of approving financial authorities of public monies as afforded in the Constitution.” Mr. Page has been trying to get information from the government on its analysis of crime legislation and even its plan for operational freezes in the federal public service only to be stymied by the Conservatives calling that information “Cabinet confidences.”

'She has to go'

By Aaron Wherry - Tuesday, February 15, 2011 at 1:57 PM - 63 Comments

Ned Franks, the dean of parliamentary scholars, passes judgment on Bev Oda.

“My belief is she has to go. There is no excuse for what she did. She altered a document to misrepresent a recommendation – and then she claimed she hadn’t done it. Those are two of the worst offences a minister can do,” says Dr. Franks. “She may resign but the House of Commons might still find her guilty of contempt of Parliament. The last time somebody was found guilty of contempt of Parliament was in 1913, almost a century ago. It’s a very rare thing.”

The shorter Parliament, the unscrutinized government

By Aaron Wherry - Monday, January 3, 2011 at 1:31 PM - 46 Comments

As Ned Franks notes, Parliament’s 119-day sitting last year was in line with a steady decline that goes back decades—see my numbers here and Prof. Franks’ numbers here. At the time of the last prorogation, Parliament was due to sit for 136 days in 2010. If the government sticks to the current schedule for 2011, it will sit for 134 days.

Prof. Franks also points—as he did in July—to the current use of omnibus budget legislation.

They’ve also resorted more frequently to passing general enabling legislation, giving the government broad discretion to act in future without going back to Parliament for approval. The upshot is that the government evades scrutiny and Canadians are left in the dark about what their federal politicians are up to.

“I think there’s a problem there,” Franks said in an interview. ”I think in the long term government itself suffers because the bills that get through haven’t stood the test of parliamentary scrutiny . . . And so, we’re governed in ignorance.”

Election windows in 2011: There's only one

By Paul Wells - Wednesday, December 29, 2010 at 11:53 AM - 146 Comments

“That doesn’t necessarily mean the Harper government is legislating less. Franks said the government pushed about half of a normal year’s legislation through in a single bill — this year’s massive budget implementation bill which included varied measures dealing with all manner of subjects from environmental assessments to the post office to the future of Canada’s atomic energy industry…

“‘What they’ve done is in this (budget implementation bill) is just whop, whop, whop, whop, whop, a whole bunch (of measures),’  he said.

“‘The country didn’t even know what happened.’”

— Canadian Press, today

As is so often the case, the prime minister isn’t even trying to hide what he’s up to. Before the G-20 this summer Stephen Harper sat down with reporters from Reuters. One of their questions was about his skimpy record of legislative achievement. Hey, big shot, didn’t you promise to recalibrate after you prorogued? Where’s the new direction?

“I think in the end we actually got some pretty good results,” Harper replied. “Particularly in the closing days. As you know, we got the budget implementation bill through.”

One bill? “The budget bill was wide-ranging legislation that had a lot, not just of important budgetary measures, but important measures for the Canadian economy. So I think the passage of the budget bill, in and of itself, made the parliamentary sessions productive.”

What I need to emphasize here is that Harper wasn’t waving around the one bit of work he’d got done to claim he’d implemented a lot of change. He had actually implemented a lot of change. As Ned Franks notes in Joan Bryden’s story above, this budget implementation bill was a whopper: 900 pages, with amendments to five dozen laws. It changed environmental assessment of energy projects. It provided for the sale of AECL. It ended the Canada Post monopoly on overseas mail. And more more more.

At the time, Michael Ignatieff was stinging from his autumn 2009 attempt to “bring the government down,” something the Liberals have never been able to do without other parties’ help. As a direct result he had a new OLO senior staff who had come on board expressing a strong preference that he give them a year to fix up his office and platform. So he was out of the business of voting against the government on confidence bills. Knowing this, the New Democrats launched a little campaign against the budget bill. They kept at it. And at it, soon making the Liberals as much the target of their critique as the Conservatives. They put together a video of Jack Layton’s critiques of the “Trojan Horse” bill:

But that was last year. Times change. Continue…

The inexperienced lifer

By Aaron Wherry - Tuesday, August 31, 2010 at 11:05 AM - 0 Comments

Over the weekend, Jeffrey Simpson lamented for the lifers he sees as presently dominating federal politics. He defined a lifer as one who has been involved for a long period of time at any level of politics, not just as a candidate or elected representative. In this way, for instance, Mr. Harper is a lifer because he has been involved in politics since the mid-80s.

The academic research in this regard—though Simpson’s definition complicates a direct comparison and his focus on party leaders is relevant—has generally raised the alarm about the exact opposite concern: that our MPs have too little experience and are too prone to turnover. To wit. Continue…

The grab bag

By Aaron Wherry - Thursday, July 15, 2010 at 11:53 AM - 0 Comments

Ned Franks takes on the blight of omnibus legislation.

In far too short a period, the House and Senate finance committees examining C-9 had to inform themselves and vote on changes and innovations to taxation and other financial measures. They had to consider amendments to the laws governing pensions and the Federal-Provincial Arrangements Act. They had to examine a Canada-Poland agreement on social security, a proposal to eliminate Canada Post’s monopoly over mail to be delivered outside Canada, provisions to permit credit unions to act as banks, and legislation permitting to sell off much of AECL. Other provisions of C-9 permit fundamental changes to the environmental review process.

This is only a few of the topics in C-9. Many of these sections have little if any relationship to the budget – they should have been presented to Parliament as stand-alone bills and examined by the appropriate specialist committees.

This could all be dismissed as somehow arcane, but, as noted a couple months ago, a suggestion from the Liberal leader at an event here in Ottawa that Parliament cease with the practice of omnibus legislation won fairly substantial applause from the brothers and sisters of Canada’s trade unions. Note too, roughly along these same lines, that when Mr. Ignatieff took questions yesterday, two Kingstonites rose with questions about relatively obscure bits of legislation.

The wasted Parliament

By Aaron Wherry - Monday, June 14, 2010 at 8:55 AM - 21 Comments

Joan Bryden surveys the results of this session.

As of today, only two appropriation bills — important but routine pieces of legislation that ensure the government has money to operate — have received royal assent after winning approval from both the House of Commons and Senate.

A handful more — including an all-party brokered compromise on refugee reforms and a massive, omnibus budget implementation bill — might yet become law in a last-minute flurry of activity … The Commons is expected to break as early as Thursday but the Senate may sit up to an additional three weeks to deal with legislation the government deems most urgent.

Parliamentary expert Ned Franks says he can’t recall another legislative sitting that has accomplished so little. ”There might have been (but) I have no record of it,” says the political scientist.

A recent committee that didn't leak secrets

By John Geddes - Thursday, April 29, 2010 at 1:26 PM - 26 Comments

As all-party talks get rolling into how the House Afghanistan committee might see sensitive documents but also keep state secrets, MPs should look back at the experience of the 2000 Sub-Committee on Organized Crime of the Standing Committee on Justice and Human Rights.

That sub-committee was created in the spring of 2000 and reported back to the House in the fall. It was chaired by former Liberal MP Paul Devillers, and only a couple of its former members still sit in Parliament—Liberal John McKay and, interestingly enough, Conservative Peter MacKay, now the defence minister. (The surname similarity is a bit confusing, so I’ll used first and last names throughout.)

Continue…

Reaction and perspective

By Aaron Wherry - Wednesday, April 28, 2010 at 9:41 AM - 21 Comments

Canwest rounds up the reviews of Mr. Milliken’s ruling. Ned Franks and Errol Mendes columnize their thoughts.

From the House, I would note (as I did) that when the Speaker was done, he was applauded by all sides of the chamber.

Our political class, or distinct lack thereof

By Aaron Wherry - Thursday, January 28, 2010 at 2:56 PM - 11 Comments

Alison Loat pulls together various strands to consider turnover and experience in the House of Commons.

So is it a problem? Maybe, maybe not. It’s a good thing to have fresh minds and a comparatively open political system. Furthermore, it’s unclear how realistically we can change it even if we wanted to (although better HR management in politics would be a most welcome change). To paraphrase a wiser observer than myself, I guess the real question is whether our Parliament is too transient to properly do its job.

How to go about this (III)

By Aaron Wherry - Friday, January 22, 2010 at 4:29 PM - 31 Comments

Spoke to Ned Franks just now. Here’s the essential gist of our conversation.

Q: So if the NDP comes in and says, just lays out legislation that says, essentially, the Prime Minister cannot prorogue Parliament without a majority vote of the House of Commons, a majority of members, that effectively limits, from that points forward the Prime Minister can’t prorogue Parliament without a majority vote of the House of Commons?

A: Well, they wouldn’t say it that way. What they would say is the Prime Minister cannot advise the Governor General to prorogue Parliament unless a motion to that effect has been passed in the House of Commons. So it’s limiting the Prime Minister’s power to advise rather than the Governor General’s discretion … It would leave the Governor General open to prorogue without the advice of the Prime Minister.

Q: I thought it would require some sort of constitutional wrangling.

A: The Conservatives might argue that Parliament cannot legislate limiting the Crown’s discretion and reserve powers, but Parliament isn’t as long as it’s limiting the Prime Minister’s powers to advise. Advice within the meaning of the constitutional meaning of advice to the Governor General.

'My intention is to share impressions and raise questions'

By Aaron Wherry - Wednesday, January 20, 2010 at 1:51 PM - 3 Comments

Alison Loat graciously passed along the Ned Franks essay she noted a couple times last week and now Prof. Franks has graciously passed along his blessing to post that essay for wider consumption. You can download it here.

In additions to Franks’ own impressions, he looks closely at how often Parliament has been sitting, how successful it has been in passing legislation, and how rapidly its membership has changed in recent years, with various observations about how Parliament, as a community in and of itself, has changed over the last several decades. A rather necessary read if you’re at all interested in the current discussion.

The shorter and shorter Parliament (III)

By Aaron Wherry - Thursday, January 14, 2010 at 3:08 PM - 8 Comments

With greater perspective than ours, professor Ned Franks reviews the state of Parliament’s sitting.

*From 1969-1973, Parliament sat an average of 163 days/year
*1974-1978, 156 days/year
*1980-1983, 139 days/year
*1984-1988, 163 days/year
*1989-1993, 115 days/year
*1994-1998, 124 days/year
*1999-2003, 115 days/year