Howard Anglin: The faulty Reform Act replaces the will of Parliament with the whims of caucus

About the best thing that can be said of the 2014 Reform Act is that it might have been worse.

As originally proposed, the act would have required every federal party to adopt its provisions for removing a party leader and selecting an interim leader. This would have been an unprecedented state intrusion into the operations of what are, at heart, still private bodies.

We regulate political parties lightly in Canada, and with good reason. They are self-governing civil society organizations, largely run by volunteers who have come together to participate in our political system. With the exception of laws to ensure reasonably fair elections conducted under uniform rules, their inner workings are for them to organize as it suits them.

If the Green Party wants to act like a campus activist club, making decisions by consensus with a leader who isn’t really the leader, it can do that. If another party wants to engage its grassroots by using a one member-one-vote system to choose or remove a leader, then have at it. It’s none of the government’s business.

Fortunately, the Reform Act was itself reformed before it was adopted. In its final form, the act leaves it up to each party’s caucus to decide for itself at the beginning of each session of Parliament whether it wants to adopt some or all the act’s rules, including a provision that allows 20 percent of a party’s sitting MPs to initiate a leadership review in which just 50 percent plus one caucus votes are enough to replace the party leader.

But making the choice optional still goes too far. It asks the caucus to make a decision that should belong to the party, of which the elected members are just one part. Elsewhere on this site, Ken Boessenkool has explained how the act’s fundamental error is that it mistakes the caucus for the party, or rather it fails to account for the difference. He’s right, and the point can’t be made enough. There may be an important legal distinction between the partisan operations of the party and the party caucus, but that does not mean they are unrelated or can be treated as though they were. They are inextricable both in theory and in practice.

One of the three clauses of the Reform Act’s preamble notes that “in Canada, the executive branch of government is accountable to the legislative branch in accordance with the concept of responsible government, which is the foundation of the Westminster system of parliamentary democracy.” This is a true and accurate statement, but quite what it is doing introducing an act that deals with internal party procedures beats me.

There is no “executive” in a party caucus, even in the caucus of the governing party. In the Liberal party’s weekly caucus meetings, Mr. Trudeau and his cabinet appear not in their roles as ministers of the government but as Liberal members of Parliament. And there is obviously no hint of the executive in the opposition parties.

The preamble’s second clause muddles matters further. By stating that “the leadership of political parties must maintain the confidence of their caucuses,” the act implicitly introduces the formal idea of “confidence” into the informal business of party caucuses.

“Confidence” in the Westminster system is a term of art. It is the key to what Bagehot called the “efficient secret” of our parliamentary system, which is that the government is embedded within the legislature, where it is subject to constant scrutiny and continues to be accountable to the people through their representatives between elections.

The statements in the act’s preamble are fine and true, but they are irrelevant. And they are undercut by the provisions of the act itself, which follow like a thudding non sequitur. By confusing the colloquial notion of caucus’s confidence in the party leader with the formal mechanism of the “confidence of the House,” the Reform Act encourages caucuses to move away from the most important feature of Responsible Government.

To illustrate the point, imagine the Liberal caucus adopts the Reform Act’s leadership review and replacement provisions at its first meeting. It would mean that just 32 Liberal MPs could initiate a review of the prime minister, and just 81 MPs—less than a quarter of all MPs in the House—could oust a sitting prime minister. The whims of a caucus replace the will of Parliament.

You might object that this is all beside the point—that, in reality, a prime minister who has lost the support of a clear majority of his caucus will resign anyway, and that the same goes for the leader of any party. I agree, but that is not a point in favour of the Reform Act. At best it shows that its leadership provisions are superfluous, and superfluous isn’t the same as harmless.

Boessenkool rightly points out the potential instability introduced by requiring only 20 percent of caucus to initiate a leadership review in which a bare majority can remove a party leader. It invites the sort of chaos that afflicted Australian politics a decade ago, when leadership “spills” briefly overtook footy as the national sport Down Under, and sober considerations of the good of the party, let alone the good of the country, were eclipsed by personal vendettas and factional revenge.

Even if Canadian political parties manage to avoid Australia’s civil wars—which only ended when the Australian Labor party raised the threshold for removing a leader to 75 percent of caucus (60 percent in opposition) and the Liberals raised their threshold to two-thirds of caucus—vesting so much power in such a small subsection of a party poses special problems for a party in need of political renewal, as the official opposition invariably is.

Take the current Conservative Party of Canada, which has now lost three elections in a row and needs to find a way to expand beyond its base of about 100-120 seats. I have no doubt that each of the 119 members in the CPC caucus room would rather be part of a majority and that they all have ideas about how to broaden the party’s appeal, but their views on how to do that will inevitably reflect the perspectives of their ridings and regions.

The current caucus represents, by definition, the party’s most winnable ridings. It may include members from a few swing ridings but, again by definition, it doesn’t represent any of the 51 additional ridings the party must win to form government. It is more rural, more western, and, yes, less diverse than the country or the suburban ridings it needs to win next time. None of that is the fault of the members who worked hard to be elected, but they should consider seriously the missing voices of those 51 lost seats before they exercise the power to decide for themselves the future leadership of the party.

Having disparaged the Reform Act, I would like to end by praising its author. Michael Chong is one of the most thoughtful and serious politicians we have. His desire to reinvigorate Parliament by encouraging members to exercise more independence from party leadership is, at least in principle, a worthy cause. As happens so often in politics, however, it’s not the noble ends that are the problem, it’s the faulty means.