Grégoire Webber: Commons and Government: Some Tools of Opposition

Many things once said cannot now be said about the Westminster constitution. In times past, one could affirm with conviction that the government’s relations with the House of Commons were guided by the ability of the Commons to choose another government. The assembly which chooses our prime minister, Bagehot would write in 1867, can choose another at any time. It ‘electoral function’ is constant. Today, the willingness of the Commons to choose another government seems less potent, with party discipline in turn disciplining the judgment of Members of Parliament. With few exceptions, the electoral function of the Commons is paired with the electoral function of the citizenry: they choose on occasion of general elections. Does it follow that the parliamentary opposition is less potent in holding the government to account? Mindful of the distorting potential of any one example, recent events in the Parliament of Canada provide some avenues for reflection.

On 14 June 2012, the House of Commons sat for more than 22 consecutive hours. Near all of that time was devoted to recording report stage divisions on 157 motions to amend the government’s budget implementation bill, the Jobs, Growth and Long-term Prosperity Act (Bill C-38). The opposition was defeated on each one of the amendments, as it expected to be. So why did it insist on the amendments and persist in calling for division?

The opposition parties decried how the more than 400 pages comprising Bill C-38 contained various provisions having too little relation to the implementation of the Minister of Finance’s budget. A summary of the changes proposed in the bill include: (a) the creation of a new Act of Parliament, the Canada Environmental Assessment Act, which would modify the number of federal environmental assessments; (b) changes to the protection of fish habitats under the Fisheries Act; (c) raising the age of eligibility to qualify for old age security benefits; (d) reform of the unemployment insurance benefit system; (e) eliminating the office of the Inspector General within the Canadian Security Intelligence Service; and (f) amending the Immigration and Refugee Protection Act’s federal skilled-worker programme.

The opposition insisted that various measures warranted sustained parliamentary study and should be separated from the budget bill. The government disagreed, insisting on the importance and immediacy of the package of reforms. With the whips exerting their influence during committee study, no amendments to the bill were accepted by the government members holding a majority on the Standing Committee on Finance, the only House committee to review Bill C-38. The bill returned to the floor of the House and there the opposition parties looked to exert influence.

More than 871 motions to amend the bill were placed on the notice paper. The Speaker ruled that (a) ‘motions to delete clauses have always been found to be in order’, subject to minimising ‘the amount of time spent in the House on this kind of motion by grouping them as tightly as possible and by applying the vote on one to as many others as possible’ and (b) that motions to amend clauses of the bill submitted by members who had no opportunity to present amendments at committee stage were, ‘consistent with the current practice’, selected ‘except in the case where similar motions had already been considered by the committee and where all other procedural requirements have been met’. Of the 871 motions, the Speaker’s ruling resulted in 157 votes scheduled for report stage.

The House did not rise on 13 June 2012 and continued into the following day. True to the procedure of the House, the parliamentary calendar insisted that the 13th of June did not end at the 24th hour, but only at the 47th (in non-parliamentary terms: 11:44pm on 14 June 2012). In the 22-hour report stage marathon, 157 votes were taken on division, two MPs celebrated their birthdays, and various sleep deprivation tactics were employed to keep the government members alive to the need to rise when their turn on division arose. The presence of government members was especially important given the official opposition’s insistence that all amendments to the budget implementation bill, even to those parts not of a financial matter, should be considered a matter of confidence.

In the end, Bill C-38 passed report stage without amendment. On 18 June, the bill received third reading and, that same day, received first reading in the appointed Senate, where it is expected to receive quick passage. The government secured the passage of its bill through the House, as both it and the opposition knew it would. Why, then, the bother of 157 votes and lack of sleep?

Under the Westminster constitution, the opposition is constitutionally presumed to lose to the government and, with few exceptions, can hope for no greater a victory than a diminished majority for the government on division. When faced with a majority government, the tools available to the opposition are no longer to convince the House that another government should be preferred, but rather the following: argument and time. Opposition members can try to persuade the government or they can try to frustrate the government’s timetable.

The opposition will persuade the government when it has persuaded the public first, but then the influence belongs primarily to the constituents who lobby backbench MPs who in turn lobby their frontbench in caucus. The merits of arguments against the government’s proposals may fall on deaf ears across the isle, but they are made not so much to the prime minister and his cabinet, but to their supporters in the public.

In its use of time, however, the influence is entirely that of the opposition, though it may be encouraged by popular support or discouraged by its absence. Without doubt, the very presence of an opposition within the Commons delays government. Ivor Jennings reported how, between 1 and 7 September 1939, the UK Parliament ‘passed enough legislation to occupy two or three sessions, because the Opposition agreed not to oppose’. It follows that, because the constitution does not ask the opposition to agree not to oppose (save in emergency circumstances), the opposition is entitled to its time to criticise the government and to examine and comment on proposals brought before it. But how much time and for how long?

The answer turns on the relationship of the government to the opposition. Marathon sittings are not the norm and, so, one might surmise that they are called on only to signal other breaches of the norm. In this case, the opposition concluded that the government’s omnibus budget implementation bill has an abuse of the procedure of the House and a challenge to parliamentary scrutiny of the government’s legislative proposals. In turn, it denied that government access to the usual channels to facilitate the workings of the parliamentary calendar.

Had the government capitulated and redrawn its budget bill, it could have expected opposition support for timely passage of its budget, and perhaps, in turn, for timely passage of its other measures, but all at the expense of carrying through in an expedited manner reforms of its choosing.

What did the opposition achieve with its 22-hour marathon if not the defeat of the government or amendments to the bill? Within the chamber, it signalled to the government that, notwithstanding the government’s recently acquired majority within the House, the minority opposition would not stand idly by while the government pursues the business of governing. Perhaps emboldened by the knowledge that the government’s backbenchers will sustain the chamber’s confidence in the frontbench, the opposition will be searching in holding the government to account. Although omnibus budget implementation bills have been used in the past, the opposition can rightly be taken to question: what is to stop a government from including the all of the legislative measures outlined in the Speech from the Throne in a single budget bill and proroguing the chamber until the next speech and budget?

Beyond the chamber, the opposition successfully drew attention to the government’s (ab)use of parliamentary procedure, with much popular commentary and greater attention to the government’s budget and other measures than might otherwise have been received.

Whether the achievements of the opposition within and beyond the chamber will endure beyond a news cycle is open to question, but consider the following two thoughts in closing: (i) at the end of the 22-hour marathon, the official opposition showed no signs of defeat despite losing 157 divisions to the government—instead, the chant “2015” (being the year of the next federal election) ‘started in the upper reaches of the NDP backbench and soon cascaded into a common, deskthumping chorus just before midnight Thursday in the House of Commons’; and (ii) perhaps echoing the same message, albeit from the other side of the isle, several government backbenchers feared that their leadership had expended ‘substantial political capital’ in achieving in one budget bill what could have been achieved, without loss of political capital, in several over time.

Grégoire Webber is Lecturer in Law at the London School of Economics and Political Science.