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| Michael Chong sitting at his desk in his Fergus Constituency office. Photo by Tim Allman. |
The following transcripts have been edited to improve the reading and---I hope---still accurately convey the gist of what Chong had to say about a fairly complex subject.
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Hulet: My first question is how well do most MPs understand how important the rules that they are working under are for the function of a real democracy?
Chong: I think most understand the importance but not many come to the job with a lot of knowledge, so they don't understand the implications. Our rules are both written and unwritten, and a lot of them have evolved through many decades and are only really well known to those who practice them. And that's one of the unique characteristics of the Canadian system. Unlike the US which has an entirely written constitution, our's is a hybrid that is partially written and partially unwritten. A lot of those conventions govern parliament and that's why a lot of MPs---when first selected---have very little idea about how they function.
Hulet: So about the reforms that you have been promoting. Are they a response to how the unwritten rules have evolved? Or do you have a sense that sometimes people change written rules in order to change the unwritten rules? I'm wondering how much those two things play against each other in what you're doing.
Chong: The reforms that I've brought forward are an attempt to address both. They have changed considerably in our Parliament over the last 150 years.
I often say to people that Sir John A. MacDonald would not recognize how the House of Commons operates. He would be familiar with the buildings of Parliament, but the rules---both written and unwritten---have changed a lot in the last 150 years. It has gone from a Parliament where the elected member was the primary organizing entity to a one where political parties---and particularly the leaders---are the primary organizing principle. And I think that that has fundamentally changed the system and diverted it from what the political constitution prescribes.We have written rules and those can be found in the standing orders of the House of Commons----which anyone can download in a pdf document. They're also found in written law, for example the Parliament of Canada Act. They're found in parts of our written constitution, the 1867, and 1982 Constitution Acts, for example, and then we have the unwritten rules which are the conventions that govern a lot of what we do in the Commons and it's committees. These unwritten rules---or "conventions" as they are often called---can evolve.
Political theorists often say that the test for an unwritten convention is two-fold. Can it be articulated? Secondly, do the actors in a political system act in conformity with that explicitly defined rule? If the answer is "yes", then an unwritten convention exists. They can evolve, and many have for many years. In the early 1980s there was a Supreme Court reference to the conventions that govern our system. The government of Pierre Trudeau asked the court if the written constitution allows the government to unilaterally patriate the constitution back from the United Kingdom. He also asked whether the unwritten constitution allows the same thing.
The Supreme Court said "Yes" to the first one, and "No" to the second. So there's an example of how our system works. Sometimes the unwritten rules are at odds with written ones. So the two parts are always in tension with one another. All of which is to say that as a result, the vast majority of MPs---when they first come to Ottawa---do not know the rules and how the place actually operates. And it takes some years to learn.
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I think some background info would probably be useful here. For those readers who might not know it, the government of Canada didn't really have full control over it's own constitution until 1982. Great Britain had given all Commonwealth nations full legislative independence in 1931. But because in Canada the provinces couldn't agree upon an amendment formula, Canada had asked the UK that Canada's "constitution"---the British North America (BNA) Act of 1867---be specifically excluded from those laws that the Canadian Parliament could change. There had been changes to the BNA Act between 1952 and 1975, but those had been allowed because the British Parliament had amended the BNA Act in 1949 to give the Canadian Parliament the limited authority necessary to do those specific things.
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| Rene Levesque, Party Quebecois premier from 1976 to 1985. Toronto Star photo c/o the Toronto Public Library Archives. Used under the "fair dealing" provision of the Copyright Act. |
The Liberal government under Pierre Trudeau wanted to find some way to bring the constitution "home"---specifically to enshrine Canadian rights and freedoms, and, to give the Supreme Court the power to preserve them from infringement by elected officials. But most of the premiers at the time were loathe to create new limitations on their power, so they had never agreed upon any sort of amending formula. Moreover, at that specific time the government of Quebec was composed of separatists lead by Premier Rene Levesque. Since Levesque wanted to lead the province out of confederation, there was no way that he would agree to any changes to the constitution---simply because that would not only imply endorsing the Canada as a political entity, but also because by doing so it would remove one of the arguments for separation in the first place (ie: the continued ties to Great Britain).
As Chong points out, the Supreme Court ruled that the federal government had the authority to change the constitution, but it couldn't do so unilaterally---there had to be significant support by the premiers too, but total consensus wasn't necessary.
Trudeau got his way because he held the threat of a referendum over the heads of the premiers and polling showed that his charter of rights and freedoms was overwhelmingly supported by ordinary voters, both within the entire country and the province of Quebec. This peeled off the other premiers and left Levesque all by himself. Incidentally, this political event is called "the night of the long knives" by Quebec separatists because they view it as an example of English Canada ganging up on Quebec. To contrast this narrative, polling of French-speaking Canadians seems to indicate that they are just as supportive of the Charter of Rights and Freedoms as the rest of the country. (In contrast, the politicians who supported the deal called it "the kitchen accord".)
In the end the Premiers outside of Quebec agreed to bring the power of changing the constitution back to Canada by accepting an amendment system that in most cases required support by two thirds of the Premiers representing more than 50% of the population. In exchange, Trudeau accepted the introduction of a "notwithstanding clause" that allows provincial governments the right to create legislation that ignores a provision in the Charter of Rights and Freedoms---as long as that exemption only lasts five years unless it is passed again in the provincial parliament for another five years.
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Hulet: Can you give me a specific example of an unwritten rule that has actually changed?
Chong: Sure.
There are a number of unwritten conventions governing Question Period that have changed. For example you will notice today that question period questions are now limited to 35 seconds. There is no rule that says that questions and answers have to be limited to 35 seconds. That unwritten rule came about as a result of an agreement between the party whips and the house leaders in the 1990s. There was a discussion with regard to the way question period operated and this small group of people decided that they would limit the amount of time to 35 seconds. Before that, it was up to the discretion of the Speaker and people were often allowed up to a minute, or a minute and a half for a question; and a minute, minute and a half for an answer. So that's an example of a minor rule that has changed.
Probably the biggest one I can think of allowed caucus to directly elect the interim party leader. That was done under an unwritten rule. For many decades in our history, elected members of parliament would directly elect---or remove---a party leader. That unwritten rule has evolved in that it is rarely used any more.Hulet: That leads into another question. What impact do you think changing the system from one where delegates at a leadership convention elect the leader to one where leaders are directly elected by the rank-and-file members has influenced the power of the party leader?
Chong: I'd say that it's massively grown the power of the party leader---particularly the Prime Minister. When delegates elected a party leader we were talking about a small group of about 1,000, maybe 2,000 delegates who would elect the party leader. And many of these delegates would be Parliamentarians themselves: MPs, Senators, ex-members, ex officio members of the party, and, so on.
Because the group was quite small, the party leader was accountable. Today we elect party leaders through a one member, one vote system---and in most party's constitutions that doesn't happen very often. For most parties, once they elect a leader that leader doesn't face a leadership review if they gain power.
For example, Jean Chretien was elected Liberal party leader in 1990 and did not have to face a leadership review vote ever during his time in power and did not relinquish power until October, 2003---13 years later. Not only was there no leadership review, during that 13 year time frame, most of the party members who had voted for him in 1990 were no long living or were no longer party members by the time 2003 came around. And the same was true for Mr. Harper who was first elected party leader in March 2004 when he resigned as party leader in 2015 he had never faced a party review vote. And most of the party members who'd voted for him were no longer party members or no longer alive by the time 2015 came around.
That lack of accountability has strengthened party leaders considerably. So that's unlike the old system where party leaders were constantly and on a daily and weekly basis, accountable to elected members of Parliament. That's because at any moment in time they could remove the party leader----even if he was the Prime Minister. In the system we used to have, the system that is mostly existent in the UK and Australia---although they've gone through some rule changes more recently---the party leader is constantly having to make sure that they are accountable to MPs. And if they're not, they're removed.
We've seen that countless times in Australia and numerous times in the last several decades in the UK. So party leaders have to be constantly accountable to their MPs, who in turn have to be constantly accountable to their constituents. But here we have a system where party leaders get elected once and it's very difficult to remove them. The one limitation is that party leaders do face an automatic review vote by delegates at a nation policy convention after an election in which they do not form a government. So there is theoretical accountability in most party constitutions, but it's not sufficient. It's just not the same type of accountability that we used to have. Moreover, the moral authority of the delegates simply isn't as great as it used to be.
Hulet: Because the leader was directly voted into his position by the party rank-and-file---.
Chong: Yeah. And if the leader becomes Prime Minister there is no review vote. And actually, a point of correction. I said Mr. Harper never received a review vote after he was elected leader in March 2004. That's not correct. He was elected in March 2004, he had a review vote because he lost the election in 2005. But between that review vote and 2015 he never had a review vote because he was Prime Minister.
Hulet: You mentioned how long Jean Chretien went---.
Chong: He never had a review vote!
Hulet: The immediate thing that jumped into my head was whether that long, long time without a review vote was why there was that nasty internal battle between him and John Turner---.
Chong: Exactly! That's exactly what happened. So because there is no mechanism to remove a leader once they become Prime Minister, it becomes a massive battle in the caucus and the party that drags out for years. Because there is no mechanism, and so that's exactly what happened with the Martin/Chretien battles.
Whereas in the UK and Australia presently, when there is a desire to remove the leader it's a very quick process that happens in a matter of weeks, rather than years. And you're seeing that right now in the UK where Teresa May was told by caucus that she had to go. They were gentle about it, they didn't force a review vote to remove her, they simply said: "We'd like you to go, please give us your date for resigning" and she gave them a date. And that's why they are currently going through a leadership vote.
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| Jean Chretien. Photo by Joe Howell. Image c/o Wiki Commons |
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| Photo by Andrew Rusk. Image c/o Wiki Commons. |
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I keep getting complaints that my articles are too long, so I'm going to end the first part of my interview with Michael Chong here. Next time I'll be talking about how the existing rules influence the day-to-day life of Parliament and get in the way of effective governance, and, while parties can cause problems, they are still essential to politics.
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Furthermore I say onto you, we need to deal with the climate crisis!
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