How could MPs be freed from party leader control, as 71% of Canadians want?

This op-ed was published in shorter form online on June 19, 2021 by the Globe and Mail, on June 12, 2021 by the Huffington Post, on June 15, 2021 by the Charlottetown Guardian, and on June 24, 2021 by the The Hill Times

The national educational foundation Your Canada, Your Constitution (YCYC) released the results this week of the first-ever national survey of Canadians on the question of restricting the powers of political party leaders to control politicians in their party. The results show that a large majority of Canadians (71%) want legal restrictions on party leader powers to give more freedom and power to politicians in each party, while only 20% do not want these legal restrictions (9% did not answer).

The survey question described some of the key powers that party leaders now have: to choose their party’s election candidates; choose which politicians in their party sit on committees, and; to penalize politicians who don’t vote with their party in the legislature. Experts have concluded that political party leaders in Canada have more powers than party leaders in every other democracy worldwide.

During his successful Liberal leadership campaign, Justin Trudeau promised, among other democratic reforms, to open nominations processes in all ridings and not appoint election candidates, and to free MPs to vote against Cabinet when a bill contains an election platform, budget or Charter of Rights measure. However, he did not promise to change any laws to require himself and all party leaders to do these things.

So how could these powers be restricted? One way is to change the Constitution by adding rules that apply to all governments across the country. Alternately, at the federal level changing the Canada Elections Act to prohibit party leaders from appointing candidates (unless the riding association democratically agreed with the appointment) would be a first step. The federal Conservatives promised to make this change in their 2006 election platform, but broke their promise. Ironically, given Justin Trudeau’s promise, his father Pierre Trudeau made the changes to the federal elections law in 1970 that effectively gave party leaders control over riding associations and the selection of candidates.

If this law was changed, parties would very likely continue to use “character qualifications” surveys to determine whether candidates have any personal problems (past or present) that make them ineligible or unattractive as candidates. As a result, some limits would likely have to be set on these qualifications to ensure party leaders did not use them to arbitrarily keep out independent-minded candidates.

The Parliament of Canada Act or House and Senate rules would have to be changed as a second step to give all politicians in each party caucus the power to choose who sits on which committees (instead of the party leaders), and to set out when and why committee members could be changed, etc.

Those two steps (which could also be taken in any province by changing similar provincial laws) are relatively easy compared to setting limits on when party leaders can “whip” politicians in their party (ie. force them to vote with the party). In Britain, Australia and New Zealand, what is a “vote of non-confidence” is strictly defined in a document known as the “Cabinet manual” so that it can be determined clearly whether the national government has the confidence of the legislature. Essentially, a vote of non-confidence has to say explicitly that “the legislature has no confidence in the government” – and such a rule could be implemented across Canada.

The non-confidence vote rule in these countries does not mean that MPs can vote as they like on every other measure proposed in the legislature, but it does free MPs somewhat because it effectively prohibits the Prime Minister from forcing MPs to toe the ruling party line by arbitrarily designating any bill or resolution as a vote of confidence/non-confidence.

It could be left to each party leader in Canada to decide which other votes in the legislature are “whippable” but the results of YCYC’s survey indicate that a large majority of Canadians also want restrictions on party leaders in this area. As noted above, Justin Trudeau has proposed three restrictions on his powers that could be a good start, but they are so briefly summarized that they leave him a lot of wiggle room.

Requiring MPs to vote the party line only on matters “that implement the 2015 Liberal platform” sounds good but could easily mean requiring them to support very specific measures that were only vaguely promised in the platform. And promising to whip MPs only on votes “that enable budget or significant money measures” or that “speak to the shared values embodied in the Charter of Rights and Freedoms” also sounds reasonable. However, what does “significant” mean exactly, and what if non-budgetary measures are included in a budget (although Trudeau also promised not to use omnibus budget bills), and what is the scope of the “shared values” given that many, many bills touch on Charter values in one way or another, directly or indirectly.

As a result, more specific restrictions than those proposed by Trudeau would be needed to make votes actually free. Clear rules would also be needed on how and in what circumstances party leaders could penalize politicians who don’t toe the party line — rules that establish, for example, whether the leader should be allowed to suspend or kick someone out of the party’s caucus or whether approval of a majority (or two-thirds majority) of the caucus would be needed to impose this penalty.

As well, rules would be needed to determine when a politician could justifiably leave the party to sit as an independent. Some propose that politicians who do this should always be required to resign their seat and, if they want it back, to run in a by-election. However, if a party’s leader breaks all the party’s election promises, or is jailed for corruption, should politicians be required to stick with the leader and the party or face a by-election, even if a large majority of voters in their riding want them to leave?

Some say even greater changes are needed to balance the powers of leaders and individual politicians, such as giving party caucuses the power to fire the leader, as in Britain and Australia. However, given that many leaders in Canada are elected by direct votes of party members, and given that politicians in each party do have some power now to collectively challenge any leader, it is unlikely that change will go this far in Canada.

There are other areas of concern about ruling party leaders that seem more ripe for change — in another YCYC-VCVC survey released in January, 84% of Canadians supported enacting new rules about when the Prime Minister and premiers can open and close parliament; what measures can be included in bills such as budgets; whether a government has lost a vote that should cause an election; whether an election should be called just because a Prime Minister or premier wants an election, and; which political party, or parties, will be the government after an election.

Although a large majority of Canadian want these restrictions on their leaders, most are likely unaware that we already have Canadian governments where the politicians are much more free.

There are no political parties in the Northwest Territories, and in the territory of Nunavut, and their politicians make decisions by consensus, with the Premier and the Cabinet elected by the members of the legislature.

Overall, given that a large majority of Canadians want these changes, how federal, provincial (and Yukon Territory) political party leaders respond is a test of whether Canada is actually a democracy. Will any leaders introduce new rules to restrict their own powers in any of the ways that 71% of Canadians want – or to put it another way, if any politician proposes new restrictions, will party leaders allow politicians in their parties to vote freely on the proposals? Given the YCYC survey results, if any party leader proposes or allows these changes they will very likely be applauded by a large majority of Canadians, as well as by politicians in their party.