PROC Committee Report

The Conservative Plan For Safe, Responsible House Sittings

The Liberals’ drive to implement remote electronic voting could have vast unintended consequences to centuries of parliamentary practices.  It strikes at the heart of the fundamental nature of parliamentary democracy itself and risks national unity.

“Parliament is not a congress of ambassadors from different and hostile interests … but parliament is a deliberative assembly of one nation, with one interest, that of the whole,” as Edmund Burke famously addressed the electors of Bristol.[1]  By turning our House of Commons from one body which meets together and reaches a collective decision into a collection of 338 physically-separated decision-makers, it will strain the ability to reach truly pan-Canadian decisions which benefit the whole of Canada.

Though the majority of the Procedure and House Affairs Committee recommends multiple voting methods be tested, before any alternative voting procedures are put in place, the thrust and detail of many of the Committee’s other recommendations adopted spell out the Liberals’ preferred answer: remote, app-based voting.

Of course, we recognize the COVID-19 pandemic requires us to change our routines.  However, the underlying currents, during this study, heading toward a remote voting app made us question, again, if “a crisis was not being left to go to waste”.

The underlying Liberal motivations left us skeptical

The Liberal interest in electronic voting is not a new curiosity, arising solely in response to the current pandemic.  In fact, it has a long history.

In 1997, at one of this Committee’s first meetings following that year’s election, the then-Government House Leader, the Honourable Don Boudria, attended “to suggest the time has come to move to electronic voting in the House of Commons.”[2]

In 2001, the then-Liberal government, freshly re-elected, pledged in its Speech from the Throne, that “the Government will make further proposals to improve procedures in the House and Senate.  Among other measures, voting procedures will be modernized in the House of Commons”.[3]  Indeed, it would be this Committee’s first study.[4]  Though two Liberals courageously voted against their whip, stalling a report,[5] the Committee soon agreed “in principle [to] the adoption of an electronic voting system in the House”.[6]

While waiting for a report from the Clerk of the House before proceeding further,[7] the topic was not taken up again.  Yet, the project nevertheless evolved.  As the former special committee on House modernization noted, in 2003, “the Chamber Technology Infrastructure Project, which will be implemented this summer and next, will ensure that the Chamber has the necessary infrastructure in place to permit some system of electronic voting, if and when it is approved.”[8]  That report recommended the development of “a detailed proposal for an electronic voting system”, so that “such a system, if approved, be implemented as part of the renovations to the chamber in the summer of 2004.”[9]  While the recommendation was never concurred in by the House,[10] the necessary infrastructure for electronic voting was still installed in Members’ desks.[11]

Flashing forward to the current Liberal government, the then-Government House Leader, the Honourable Bardish Chagger, proposed in her highly controversial 2017 discussion paper that “consideration should be given to how technology could be incorporated into the proceedings of the House…. One obvious application of technology to the operation of the House is electronic voting.”[12]  Ms. Chagger called upon the House to “think about truly modernizing how we spend our time here”, defending this proposal as allowing “more time to get work done outside the chamber.”[13]

In last year’s general election, the Liberal Party committed to “working with Parliament to introduce new technology or other institutional changes to better connect Members with their constituents”.[14]  A candidate who ran on that platform explained it to us as “basically how we get things working better than they are today and serve Canadians better.”[15]  The platform’s vague, cryptic—almost coded—language was transposed into the Prime Minister’s mandate letter to the Government House Leader.[16]

During recent weeks, when Liberals have been at pains to assert that their interest in remote voting is purely a pandemic measure, the mask sometimes slipped.

In the House debate on the motion instructing the Committee to undertake this study, Rachel Bendayan, a parliamentary secretary (and a former chief of staff to Ms. Chagger), told the House about her “24/7” constituency work—something every one of us knows well during this pandemic—and said that the Liberal motion “would allow us to continue this important work in our ridings.”[17]

More recently, the Government House Leader, the Honourable Pablo Rodriguez, issued a press release calling upon us to “support proposals to modernize the House so that MPs can vote electronically.”[18]

So, which is it?  Is the pandemic edition of electronic voting meant to be a health precaution?  Or is it really a cover to “modernize” the House and allow Liberal MPs to stay in their ridings?  The reader can understand our doubts about Liberal motives.

Despite the Liberal talking points and contrary to the government’s instruction motion to “make recommendations on how to modify the Standing Orders for the duration of the COVID-19 pandemic”; and even in defiance of the majority’s observation that “the Committee heard unanimously from witnesses that [Standing Order changes] should have a fixed expiration date”—printed beneath the heading “formal Standing Order changes of a fixed duration” and just ahead of the heading “need for thorough study prior to making permanent modifications to the Standing Orders”—the majority has recommended permanent amendments to the Standing Orders, plus other recommendations applicable beyond the current pandemic.

The Official Opposition recommends that any changes proposed by the Committee, including amendments to the Standing Orders, expire on December 31, 2020.  If pandemic conditions require, they can always be renewed (and improved based on the benefit of experience with them) for a further, defined period into 2021.  Once through the pandemic, we can have a proper review of emergency preparedness.

The Liberals seemed committed not just to a direction, but to a specific outcome

From the beginning, the Liberals had their eyes on app-based voting.  Like the issue of time-limited procedural reforms, the evidence would not deter them.

Though we have many concerns about remote voting, it is noteworthy that several of the Committee’s witnesses strongly urged the use of video-based voting, based on our existing videoconference platform, rather than going with a separate, new smartphone application.[19]  (Video voting is also the system used in the Legislative Assembly of British Columbia, as well as many Canadian municipal councils—not to mention this House’s own committees—and it was proposed for hybrid sittings of the Newfoundland and Labrador House of Assembly.[20])  However, when faced with one witness’s suggestion, a Liberal colleague responded, plaintively asking, “is there not an opportunity here to develop an application or have a web-based voting system”.[21]

Witnesses were not just ignored, some were attacked.  One panel which did not mirror the Liberals’ enthusiasm was dismissed as a “wasted … 90 minutes”, with the Committee’s senior Liberal backbencher declaring critical opinions unwelcome:

The only thing I would add is that I have no problem hearing from good, solid witnesses about how we do this, but the reality of the situation is that the first panel we had today … were just talking about whether or not we should be doing it.  We’re well beyond that; that ship has sailed.  Parliament has decided that we’re going to do it, and they specifically say how we’re going to do it, not if.  Perhaps, as the steering committee or the subcommittee, we need to go back and revisit who these witnesses are and try to get a determination as to whether or not they’re going to be providing constructive input on how we make this happen.[22]

In fairness, we got a preview of this during deliberations on the Committee’s May report when the Australian House of Representatives—from which we would have really appreciated hearing witnesses, given it is also part of a continent-spanning, federal, bicameral parliament partly sharing a common constitutional history with Canada—was dismissed as “the least progressive”.[23]  Given Australia’s COVID-19 experience—with only 10% of the cases and 1% of the deaths as Canada has experienced[24]—perhaps it is little surprise the Liberals would not welcome pandemic comparisons.

According to research prepared for the Committee, electronic, remote voting has not been implemented in most major comparative, elected legislatures, such as the Australian Senate and House of Representatives, the French Senate and National Assembly, the New Zealand House of Representatives, the United Kingdom House of Commons (except for seven sitting days at the height of its pandemic), the United States Senate and House of Representatives, as well as provincial and territorial legislative assemblies (with the exception of British Columbia).[25]

As for the broader international experience, the majority’s report notes Gabriela Cuevas Barron’s evidence about the proportion of legislatures using digital tools and remote proceedings.  However, it should be noted these figures would also include, for example, Cuba’s National Assembly of the People’s Power,[26] a place most Canadians would not associate with robust democracy.  It’s little wonder the majority was not interested in adding the Inter-Parliamentary Union President’s caveat:

We receive the reports that the national parliaments want us to receive.  We receive beautiful news from most parliaments.  The IPU study has a bias, to be honest.  If I review the notes I have received, some very authoritarian countries are saying they have lovely parliaments, and we all know that is not true.[27]

We, too, know it’s not true, yet the Liberals are happy to present it as evidence in favour of their virtual parliament designs.

The Committee worked hard—but in service of a Liberal talking point

In defending May’s renewed suspension of regular sittings, some ten weeks after they ended, the Prime Minister invoked the sudden need to consider new voting methods before the House could resume,[28] this after also justifying April’s suspension on the basis of figuring out a virtual parliament.[29]  Yet, committees had been able to vote effortlessly—once they were permitted by the Liberals to consider votable business.

Meanwhile, our United Kingdom counterparts managed this spring to accomplish many innovations all while transacting parliamentary business (not to mention that our sibling committee managed to produce five reports in the same period)[30].  Over this time, the U.K. House of Commons has, so far, incorporated physical distancing into its regular voting process, empowered all committees to conduct full business virtually, allowed hybrid sittings for “scrutiny proceedings”, applied attendance limits in the Chamber, expanded hybrid sittings to “substantive proceedings”, endorsed the principle of remote voting, authorized remote voting, reverted to in-person voting, implemented a new voting method within the Chamber, resumed hybrid “scrutiny proceedings”, authorized and expanded proxy voting by certain MPs, and reverted to lobby-based voting with new measures for physical distancing.[31]  Canada’s “innovation” pales in comparison.

It’s important to bear in mind that the U.K.’s initial, rapid reforms enjoyed all-party consensus, as Conservative and Labour MPs told us.[32]  Indeed, as Matthew Hamlyn, an official with the U.K. House, told the Committee, the government could have, with its majority of 80, got anything it wanted; instead, “That’s not been the approach.  There’s been a lot of very thorough consultation between parties.”[33]

Given the productivity of our Committee’s U.K. counterpart, we certainly could have found practical, workable solutions in much less time had the government invested the political will.  The Prime Minister’s fixation on remote voting, as a means of avoiding all other aspects of Parliament, and his MPs’ lust to vote by app, threw two recent observations by veteran journalist Paul Wells into sharp relief:

• This government is deeply in love with the idea that it can only handle one problem at a time.  It seems to view this as some kind of virtue.[34]
• complex problems actually don’t get solved with innovation and partnership that you can see from the moon.  Complex problems are a slog.  They’re boring.  They’re no fun….  Getting there from here is the kind of dreary, discouraging work that self-impressed governments like to avoid while they build still more monuments to their own cleverness.[35]

It’s a shame that parliamentary accountability was sacrificed for the Liberals’ virtue in pushing for a sleek, clever voting app.  Canada’s experience, meanwhile, stands in contrast to the U.K. where, as the Right Honourable Harriet Harman, a senior opposition MP, told us, “I don’t feel the government has been trying to evade accountability.”[36]

While the Committee’s work was important, the government’s approach leaves us to conclude that this study had more to do with validating a Liberal talking point.

The House of Commons must—and can—conduct its business in person

May’s Conservative dissent outlined (as extensively as the ten-page limit allowed) the compelling arguments for the House of Commons to resume promptly its regular orders of business in its proper location.  We have not changed our minds on this.

In the subsequent months, provincial legislatures have continued or resumed sitting:

• Ontario’s Legislative Assembly will continue its spring sitting until July 22, with a new voting procedure using its lobbies.[37]
• Quebec’s National Assembly sat until June 12, using a block voting procedure, adjourning to September 15.[38]
• New Brunswick’s Legislative Assembly sat, with modified seating arrangements, from May 26 to 28 and from June 9 to 18, adjourning to September 15.[39]
• Manitoba’s Legislative Assembly continued its spring sitting until May 27.[40]
• British Columbia’s Legislative Assembly resumed June 22, with hybrid sittings, and is expected to sit until August 14.[41]
• Prince Edward Island’s Legislative Assembly sat, with modified seating arrangements, from May 26 until July 14.[42]
• Saskatchewan’s Legislative Assembly sat, with attendance limits and using a proxy voting procedure, from June 15 until July 3.[43]
• Alberta’s Legislative Assembly will continue its spring sitting until July 23.[44]
• Newfoundland and Labrador’s House of Assembly sat, with modified seating arrangements, from June 9 to 18.[45]

Notably, the only provincial legislature without pandemic sittings is Nova Scotia’s—also, the only one with a Liberal majority—and that has not gone without controversy.[46]

Since May, other parts of the Canadian economy and society, too, in all parts of the country, have started returning to something resembling normality as businesses re-open, inter-provincial quarantine requirements are removed or reduced, travel patterns rebound, permitted gathering sizes increase, personal protective equipment stocks rebuild, and testing and contact-tracing protocols have greatly strengthened.  The case for the House of Commons resuming its sittings is even stronger than it was in May.

In May, we outlined evidence about safe gatherings in West Block.  Nothing in this regard has changed.  From March 14 to July 5, there were 190 parliamentary gatherings—including nine House sittings, 18 meetings of the Special Committee on the COVID-19 Pandemic in the Chamber, four in-person committee meetings, plus 159 virtual committee and Board of Internal Economy meetings, for which officials, staff, interpreters, etc., were physically present on Parliament Hill.  In respect of these 190 gatherings, there were no actual or suspected COVID-19 cases linked to them, no precautionary quarantines or self-isolation required because of attendance at them, and none of them have been of interest in any contact tracing investigations.[47]

It is possible for the House to sit safely—our experience shows just that.  For those meetings, physical distancing has been successfully observed through attendance reduced by self-restraint.  We were reassured by the House Administration’s analysis showing that 86 Members, plus the Speaker, can be seated in the Chamber in full compliance with physical distancing advice.[48]  Therefore, the Official Opposition recommends that the House resume its scheduled sittings, in the Chamber, and to ensure physical distancing, (a) Standing Order 17 (concerning the use of assigned seats) be suspended, and (b) the Speaker may regulate the presence of Members within the Chamber, up to a maximum of 86 Members at any one time, provided that any limit shall be subject to “sub-limits” established for each party based on its proportionate share of the total seats in the House.

While travel remains available, safe and perfectly legal,[49] we acknowledge keeping up pre-pandemic travel patterns is not advisable.  As the Globe and Mail’s editorial board wrote, “if a small number of MPs have to spend the next few weeks in Ottawa, without flying home on weekends, so be it.”[50]  We also recognize that the House’s collective privileges include the authority to maintain the attendance and service of its Members.[51]  Therefore, the Official Opposition also recommends that Members physically attending sittings of the House be strongly encouraged to remain in the National Capital Region during weekends between sitting weeks, to minimize travel into and out of the region.  This is but a trifling sacrifice compared to the hardships of Canada’s earliest parliamentarians which had been explained to the Committee.[52]

Another of the House’s collective privileges is the right to regulate its internal affairs, including the administration of its precinct.[53]  One notable exercise of this privilege for the pandemic was the Legislative Assembly of Ontario’s implementation of a “COVID-19 Active Screening Protocol”, applicable to its members, including conferring “the sole and personal authority on the Speaker to refuse the entry of any Member of the Assembly … to the Legislative Precinct”.[54]  While we’re pleased the Committee recommended integrating updated health advice into House procedures, we can do better.  To assure the health and safety of all present at House sittings, the Official Opposition further recommends that Members, upon arriving in or returning to the National Capital Region, be required to be undergo COVID-19 screening and testing before first entering the Chamber; that Members, while they remain in the National Capital Region, continue to be screened or tested at least weekly; and that the House of Commons Administration engage with Ottawa Public Health, Centre intégré de santé et de services sociaux de l’Outaouais, and other appropriate public health officials as may be necessary to give effect to this recommendation.

Though most MPs could be in Ottawa, we must recognize that not all can be

As we wrote in May, accommodations are needed for those MPs who, for reasons associated with COVID-19-related public health guidance, are not able to be present can still participate in the House’s constitutional duty of holding the government to account.  However, we draw the line at votable business and remote decision-making.

Also in May, we outlined concerns about the constitutionality of a “virtual” quorum.  While it might sound like the perfect topic for a law school faculty lounge debate, the stakes couldn’t be higher.  As Philippe Dufresne, the House’s Law Clerk, told us, if a court disagrees, “what was adopted in the impugned proceeding [further COVID-19 aid and all other laws, for example] could be invalidated”.[55]

To achieve this balance, the Official Opposition recommends that the Speaker may, with the agreement of the House leaders of the recognized parties, modify the application of any Standing Order, rule or other practice to authorize the remote participation of Members during Statements by Members, Oral Questions, Routine Proceedings, adjournment proceedings, emergency debates and take-note debates, provided that quorum for hybrid sittings be based on the presence of Members physically present in the Chamber, and that motions without notice may only be moved by Members present in the Chamber.

With respect to committee meetings, we’re relieved the Committee recommended—unlike in May—that all committees may, once again, meet and exercise all their usual powers.  By September, it will have been over six months since that last happened—something, notably, the U.K. House of Commons ensured, before it took its pandemic adjournment, would not be interrupted.

Safe in-person voting is possible and doable

Voting is an integral part of parliamentary proceedings.  As we heard, it must not be treated in isolation to the other parts,[56] and it must be “more than just an episodic, half-hearted online opinion poll.”[57]  Voting cannot, as the Honourable Bill Blaikie once described past Liberal efforts, be treated as some “kind of a bean-counting exercise”.[58]  A safe, responsible approach to voting, like all parts of House sittings, is necessary.

With that in mind, the Opposition House Leader, the Honourable Candice Bergen, asked the Speaker to undertake an analysis of several in-person voting alternatives.[59]  In his reply, which he shared with the Committee, he outlined six different voting methods, each of which was fully compliant with current public health guidance.[60]

With respect to the Speaker’s analysis, there was no single voting option, in our view, which stood clearly head and shoulders above the others; in fact, one reading of it would suggest that a “mix-and-match” approach, with different circumstances suggesting a different method, might be the wisest course.  Plus, all-party consensus for procedural changes, an essential principle, must be accounted for.  Therefore, we were pleased the Committee endorsed the substance of our recommendation (which also formed part of an opposition motion placed on notice May 21)[61] to empower the Speaker and the recognized parties’ whips to modify in-person voting procedures, even if we don’t understand its amendment to modify in-person voting for fully-virtual sittings. 

We are also happy the Committee has recommended testing of in-person voting options this summer, though we suspect we were just being “humoured” given, as we note in the opening passages, the die seems to have been cast for implementing a voting app.

To address certain standing votes which do not use recorded divisions, the Official Opposition recommends that, with respect to motions currently requiring ten, 15 or 25 MPs, in order to force those motions to be withdrawn, the thresholds be lowered to five MPs while Chamber attendance is restricted.

What’s old is new, again

In May, we wrote that the one constant of many centuries of parliamentary history and evolution was that business had been transacted in person, and switching away from this would be no simple matter.  As the Right Honourable Karen Bradley, the Chair of our Committee’s U.K. counterpart, put it, “The biggest changes to our proceedings

in 700 years have happened in the last few weeks.”[62]

While a virtual parliament would have been science-fiction in the not-so-distant past, efforts to relocate parliament forcibly against members’ wishes are almost as old as parliament itself.  King Henry VI, a 15th Century English monarch, for example, tried to hold sessions away from Westminster, but Members also resisted those attempts.[63]

Comparing today to much more recent history, though, we have yet another ethics scandal enveloping Justin Trudeau and his Cabinet, we have a fiscal situation which would make past Liberal governments simply blush, we are witnessing another broad-sided attack on law-abiding firearms owners by Liberal ministers, and we have yet another Liberal cabinet coming up desperately short on economic policy when Canadians sorely need help. 

What’s old is, indeed, new, again.  All of these issues, and many more, cry out for parliamentary scrutiny and engagement.

Mr. Trudeau’s six-month string of press conferences is simply no substitute for Parliament—and adding much-separated, far-flung envoys voting by smartphone will not improve this state of affairs whatsoever.

By contrast, this Conservative plan for safe, responsible House sittings will bring Canada’s democracy out of its Liberal-induced coma, have the government held accountable properly, and ensure progress is made for Canadians who need it.