Why I am in the House today

UPDATE AT 1:24pm, March 24, 2020:

If you read my essay below, I make it clear that my objections are completely procedural. I have no objection to the relief measures bill passing today as long as the government provides it to MPs with enough time to read and understand it. The reason the House of Commons is suspended right now is because other MPs are working with the government to ensure the bill is acceptable to all MPs present.

–Scott Reid

———-o0o———-

Before I deny unanimous consent to the motion which will be introduced in the House of Commons today (and also to leave a record, in case the Government behaves responsibly and eliminates the need for me to do so), I think I ought to go onto the public record, explaining my reasons for denying my consent to the motion which will be presented today when the House begins its emergency sitting. I ought also to outline the changes which would have to be made, in order for me to give my consent.

Moreover, I need to explain why I turned up in the House of Commons at all today, despite a request from the Whips of all parties that their members stay away from the House of Commons, and notwithstanding the Prime Minister’s admonishment that Canadians “go home and stay home.” This second explanation will follow, after I have dealt with the first item.

———-o0o———-

Why I cannot allow the House of Commons to adopt any further legislation, sight unseen.

On Friday, March 13, a motion was adopted by unanimous consent in the House of Commons. Along with a series of non-objectionable measures, which were enumerated in the motion as items (a) through (p), the motion included two provisions which are blatantly unconstitutional. These provisions caused the House of Commons to adopt Bills that had not yet been given what we call “First Reading.”

In other words, the House adopted Bills that it had not actually seen, and whose contents were therefore unknown to the Members of the House. More colloquially, the House agreed to buy a pig in a poke (or, more correctly, several pigs in a poke, since more than one Bill was thereby enacted).

Here are the offending provisions of the motion:

(d)     the motions to concur in Supplementary Estimates (b) for the fiscal year ending on March 31, 2020, and interim supply for the fiscal year ending on March 31, 2021, be deemed adopted on division and the appropriation bills based thereon be deemed to have been introduced and read a first time, deemed read a second time and referred to a committee of the whole on division, and deemed considered in committee of the whole, deemed reported without amendment, deemed concurred in at report stage on division, deemed read a third time and passed on division.

(f)     a bill in the name of the Minister of Finance, entitled An Act to amend the Financial Administration Act (special warrant), be deemed to have been introduced and read a first time, deemed read a second time and referred to a committee of the whole on division, and deemed considered in committee of the whole, deemed reported without amendment, deemed concurred in at report stage on division, deemed read a third time and passed on division.

As you can see, these provisions cause acts which could (notwithstanding their limited-sounding titles) contain a wide variety of measures which might not have met with the approval of the House, had the House been given the opportunity to inspect them. This would not have been a problem if the appropriate minister had engaged in First Reading of each of the bills, and then given the House adequate time to inspect the contents, to ensure that they were acceptable. Deeming acceptance at all later stages of a bill is something that is done as a matter of course. But you can’t even tell, from the wording of provisions (d) and (f), that three Bills are actually being approved, rather than only two.

The assistant deputy speaker, who was in the Chair at the time, should have ruled the motion out of order, and should have instructed the Government House Leader to return to the House with a properly-written motion, which would have involved giving a proper First Reading to each of the three new Bills being adopted in the motion.

Rewriting the motion, and introducing the bills, one at a time, would have taken up some time, and it might have proved necessary to temporarily suspend proceedings, while the details were sorted out. All this business could easily have been concluded by the end of the day, and would not have necessitated any delay in dealing with the nation’s business. Friday the 13th sitting of the House lasted 25 minutes. Surely what was done in 25 minutes could still have been done, without any negative consequences, in a few hours, and in a way more respectful to the House.

I do not deny that the COVID-19 crisis had, by the 13th, induced widespread panic among the public, in Canada and abroad. But panic is never, ever, an excuse to override our ancient political conventions (“conventions” = accepted practices, that override the formal rules, whatever those nominal rules might happen to be).  These conventions are the oldest and best protections that exist for our political liberties.

What happened on Friday the 13th was a collective error, and can be forgiven, as long as all participants acknowledge, post facto, that—whatever the merits of the content of Bills C-10, C-11 and C-12—the House of Commons can never give its consent to a measure, the content of which has not yet been revealed to the House.

But there is no guarantee that the Government has learned this lesson. Indeed, if we are to take our signs from the first draft of Bill C-13, which is to be introduced today (and which was leaked last night), it would appear that the Government’s primary interest is in using the COVID-19 crisis to strip away any Parliamentary oversight whatever, between now and December 2021—twenty-one months in the future, and long after the health crisis is likely to have come to an end.

In such an environment, I found myself, over the past few days, growing increasingly alarmed—even before the first draft of Bill C-13 revealed that the Government was planning on enacting what the Constitutional Authorities refer to as a “Henry VIII Bill” (i.e. an act to allow the Executive to function without the approval of Parliament). I decided that I would have to come to Commons, take my seat, and deny unanimous consent, if the bill—any bill, including one that turns out on inspection to be innocuous—were introduced in such a way as to deprive MPs like myself the ability to read the bill prior to giving our consent.

What would have happened if Bill C-13 had been drafted in advance, and had been included in the package of measures adopted, in a single swoop, eleven days ago? In a flash, Canada would have ceased to have Responsible Government until the year 2022.

In other words, a motion like the one introduced on Friday the 13th is always and without exception unacceptable, and so too is a bill which is introduced by the relevant minister, followed by a demand for its approval prior to adequate time having been afforded for MPs to take a closer look at it.

———-o0o———-

Why I cannot obey an illegal order to stay away from the Commons.

I can only exercise my right to deny unanimous consent if I am present in the House of Commons at the moment when that consent is sought.

Therefore, the only credible rationale, as far as I can see, for a deal between the Liberals and the other parties, under the terms of which MPs were ordered to stay away from the House of Commons, is to make sure that each of the abstaining (or absenting) MPs would thereby be deprived of his or her ability to say “No”—the ability of which is, of course, the whole reason why the unanimous consent rule exists in the first place.

Over the past 48 hours, as I informed several colleagues of my intention to come to Ottawa, I expressed my fear of the wrath of my party Whip, for so overtly breaching his orders, and for making a mess of our all-important Message Discipline. I outlined my fears to a highly-placed fellow-MP within my own caucus, and that person (I want to anonymize in order to protect identities) pointed out that I need not work myself into an emotional frenzy over the possibility of my impending martyrdom: Thanks to the fact that the Conservative caucus has adopted the rules for caucus expulsions outlined in the Parliament of Canada Act, an MP can’t be removed from the Conservative caucus by any means other than by a secret-ballot vote of his or her peers (and that can only happen at a caucus meeting, which presumably can’t happen until late April).

But if I were a Liberal, turning up in defiance of an order from my Whip, I would not have the protections of this provision of the Act (which the Liberal caucus did not adopt), and I could be expelled from my caucus—which almost certainly would mean the end of my political career—with the same ruthlessness used by Justin Trudeau to dispose of Jane Philpott last year.

Her expulsion served merely as yet another tedious demonstration of the truth, universally acknowledged, that an MP in possession of a good conscience must be in want of a new career in the private sector. But what is happening today is much more sinister: The prime minister of Canada—the de facto wielder of the awesome powers of the Crown, notwithstanding the charming fictions about the powers of Her Majesty the Queen that are woven into the Victorian prose of our Constitution—claims the power to order his MPs to stay away from Parliament and their duties, and to (metaphorically speaking) cut off their heads if they fail to obey. This power is as offensive in the hands of Justin Trudeau as it was in the hands of Henry VIII, who seems to have become a role model for our prime minister.

This is precisely why our predecessors, about a century after Henry’s time, adopted the rule that the most precious of all privileges, appertaining to MPs, is the right to to participate in the proceedings of the House of Commons, unimpeded by the King’s Men—or anybody else. By a convention that dates back to the time of Robert Walpole and King George I, the prime minister wields, in practice, all of the powers of the monarch. He is, in essence, what the Greeks of Aristotle’s time would have described as an “elective monarch.” This must mean that the prime minister also takes on all of the obligations of the monarch, including the obligation to never impede MPs from attending to the business of the House.

If the conventional obligation to not impede MPs from attending to the business of the House, and of voting therein does not extend to the prime minister, then the system of Responsible Government which cost so many lives, in Britain in the  1600s, and in 1837-38 in Canada, is undone. A new convention will have emerged: That on any occasion when a new and unexpected crisis arises, MPs may be ordered to stay home by their respective party leaders so that some kind of elite-level deal may be executed to apply their votes in their absence. The process, underway for several decades, of reducing MPs to mere banner-carriers, whose only purpose is to fill the blank space on the election ballot beside the party name, will have been completed.

A final note, to address the Red Herring that it is dangerous for MPs to travel to Ottawa in the Plague Year. 

We MPs were given a series of nonsensical arguments about why we must not, in the present crisis, attend to our duties. One of these arguments was that MPs cannot safely travel to the nation’s capital, from their ridings scattered across the land, because this would cause them to be on airplanes where they might catch COVID-19 from an asymptomatic carrier, or else become carriers themselves.

This seemed instinctively wrong to me. Is it too dangerous to have MPs sit next to each other in the House of Commons? In that case, as one fellow Conservative MP pointed out to me, we could rent the Ottawa Convention Centre, and hold our emergency sitting there. In that cavernous space—not currently being used for any trade shows—all 338 MPs could sit without being within two meters of each other. We could set up microphones on stands, to allow MPs to participate. What’s that you say? Such arrangements could not be done quickly enough? Well, back in 1916, when Parliament burned to the ground, the House of Commons met the very next day at what is now the Museum of Nature.  If the Parliament of Canada is not sufficiently competent to organize a move down the street in the ten-day period between March 13 and March 24, then it is clearly not competent enough to respond coherently to the COVID-19 crisis.

What about the danger of MPs sitting on flights to and from Ottawa? Well, to start with, if this is such a critical health risk, why are we allowing commercial flights to continue, from one Canadian city to another? Are the lives of MPs sacred, and those of ordinary Canadians inconsequential? Either it is too dangerous for anyone to fly, and all domestic flights should be shut down at once, or it is not, and MPs should be permitted to fly too. But the Government hasn’t suggested shutting down all domestic flights, and the Opposition hasn’t called for the Government to do so.

If, notwithstanding the foregoing, such flights seem too dangerous, then how about allowing MPs to book a whole row of seats on their flights? How about booking some school buses to pick them up at the airport, so that they can all sit more than two meters apart on the way to their apartments in Ottawa?

When a note from my Whip, warning that MPs must not fly, came in to my email in-box last week, I responded that:

• I am a local, Ottawa Valley MP, with no need to travel by air;
• my seat is located at the end of a row, in as isolated a position as possible, so I can exercise my duties from that position; and
• therefore I can attend to my duties without physical contact with any other human being.

The response was to tell me to stay away anyway—in the interest of honouring the deal with the Liberals, to keep as many MPs as possible out of the House. Once I saw this—followed by an astonishing assertion that for any MP who turns up unannounced, the Whip would order another MP to not enter the House (once again, it was emphasized, in order to allow our leadership to honour the deal with the Liberals) I realized there was no longer any point in my communicating further with my party’s Whip. The real point of the travel ban was to honour an elite-level deal that is itself utterly inexcusable.

Of course, the argument for staying away is further weakened when you remember that all the MPs who attended were hand-picked by the leadership of the party. While I do not dispute the choices that were made, as to who would attend (in fact, I think the choices made, from among my own colleagues were excellent—if forced at gunpoint to select eleven MPs, these are probably the ones that I myself would have selected), the precedent is alarming.

So, unless someone stands athwart the march of history, crying “No!” a new convention will be established. Under these circumstances, here’s the appropriate question: Under the new convention, which MPs will be permitted to exercise their franchise? Answer: the ones chosen by the party leader, who may well select them, without seeking the approval of his or her caucus.

None of the incipient new conventions outlined above can be allowed to stand, or Responsible Government in Canada is over. Full Stop.

Posted in: Blog, Publications