PROC Committee Report

The Conservative Case For Parliamentary Democracy

The House of Commons is not some technology problem awaiting a solution.  Parliament is also “more than just procedure—it is the custodian of the nation’s freedom”, to quote John Diefenbaker,[1] whose words are now inscribed in our passports.

Our Parliament traces its lineage back some eight centuries.  While democracy has unquestionably evolved, one of the few constants amidst this change was that the House met in person.  Abandoning this is not a simple matter.  The recent calls for the House to “just get on Zoom already” brought to mind the words of Winston Churchill:

It is difficult to explain this to those who do not know our ways.  They cannot easily be made to understand why we consider that the intensity, passion, intimacy, informality and spontaneity of our Debates constitute the personality of the House of Commons and endow it at once with its focus and its strength.[2]

Parliament must meet—its role and place are fundamental

In a democratic country, the elected legislature is the beating heart of its system of government.  It is where the viewpoints from all corners of the country get expressed.  It is also where the executive government accounts for its choices, priorities, and actions.

Christian Leuprecht, a political scientist, spoke about this role during a crisis:

Ultimately the underlying primary constitutional principle here is the principle of responsible government.  It is about ministerial responsibility, first and foremost, during a crisis and an emergency….  Especially during a time of crisis, Parliament has a supreme duty to hold the executive to account.  Canadians need continuous parliamentary audit of the executive and the bureaucracy’s judgment.[3]

Marc Bosc, former Acting Clerk of the House, articulated Parliament’s place at this time:

In too many countries around the world, dominant executive branches of government eclipse Parliament.  This makes parliaments weaker and less relevant.  That imbalance needs to be addressed, especially in a time of crisis.  The House of Commons needs to be functioning and to be seen to be functioning.  I want to be clear: Parliament, particularly the House of Commons, is an essential service to the country.  Members of Parliament are also essential workers….[4]

Greg Tardi, a former lawyer for the House, cautioned us, “if there is no Parliament, if there is no give-and-take, if there is no communication between the governors and the people, essentially, in my view, democracy breaks down.”[5]

The Official Opposition firmly acknowledges the central place of Parliament within Canadian democracy and resolutely calls for its role to be restored fully.

Parliament has been getting results for Canadians—and it should keep it up

Tough times require tough, but necessary questions.  While MPs are unanimously committed to getting Canadians through this pandemic in the safest, healthiest and most economically viable way possible, that does not mean we all agree on every detail. 

The sense of a common mission among parliamentarians does not, though, forbid scrutiny.  Paul Thomas, a political scientist, pointed out in a Winnipeg Free Press op-ed:

all MLAs are expected to provide scrutiny but in practice the task is performed mainly by the Official Opposition.  During a crisis, this task becomes more difficult because the Opposition can be accused of obstruction when it is merely trying to perform an essential function.[6]

But these views are not just academic concerns.  Veteran observers of Canadian politics have also made similar points.  John Ibbitson, for example, wrote,

Everything that is being debated on Twitter and Facebook and in the news media needs to be debated on the floor of the House and in Question Period.  Canada is a parliamentary democracy, health emergency or no health emergency….  The opposition parties have every right to raise these issues, and the governing party has every right to defend its record.  The place to do that is in Parliament, not just once a day in front of a microphone.[7]

His Quebec counterpart, Manon Cornellier, wrote in Le Devoir that

The Conservatives … are right to require the government to be more accountable.  Constant speeches and press conferences cannot replace the duty of ministers and the Prime Minister to be accountable before elected representatives. In a British type of Parliament, the existence of the government depends on the trust of the House.  Ultimately, the government must answer for its actions and decisions to the House.[8]

Sometimes the simple act of asking questions—and of knowing that questions must be answered—requires a government to “up its game”.  Asking questions and giving voice to concerns can generate constructive solutions to policy shortcomings. 

On COVID-19, opposition efforts led to, for example, enhanced wage subsidies, student supports, reduced penalties for part-time workers, preventing new parents from losing benefits, authorizing credit unions to deliver loans, and connecting employers with potential employees.  These are undoubtedly improvements for Canadians, and they all came from opposition MPs questioning the government’s programme design choices.

If other legislatures are resuscitating parliamentary life, so can ours

The United Kingdom House of Commons resumed sitting April 21, 2020, and the Speaker was empowered to regulate the number of persons in the Chamber, currently limited at about 50 MPs, while facilitating virtual participation in “hybrid” proceedings.[9]  On May 12, the House extended these provisions until its Whitsun recess on May 20, but it is expected to resume full physical sittings upon its return June 2.[10]  In Edinburgh, the Scottish Parliament, in addition to virtual questioning sessions, held sittings where almost half the chairs in the chamber were removed, with arrangements for voting by members who could not sit inside (but which turned out not to be necessary).[11]

The Australian Senate and House of Representatives have each sat periodically during the pandemic.[12]  New Zealand’s House of Representatives met during the pandemic, and resumed its usual schedule of three sittings per week on April 28, 2020.[13] While each House had reduced attendance for distancing, neither embraced virtual sittings.

Closer to home, most provincial legislatures have held special sittings during the pandemic and are now returning to the rhythms of regular life or making plans to do so.

The Legislative Assembly of Ontario sat on May 12, 2020, and will sit twice per week in subsequent weeks for the rest of the spring.[14]  The National Assembly of Quebec sat on May 13, 2020, with regular sittings also set to resume the week of May 25, for the balance of the spring, with reduced attendance.[15]

The Legislative Assembly of New Brunswick is scheduled to resume sitting on May 26.  Potential arrangements being discussed include limiting attendance, using a larger venue, seating MLAs in the galleries, and installing plexiglass between desks.[16]

The Legislative Assembly of Manitoba began once-weekly sittings on May 6 with physical distancing measures put into place.[17]  The Legislative Assembly of British Columbia is expected to resume “regular sittings”, with the next phase of that province’s re-opening plan, anticipated in mid-May 2020.[18]

The Legislative Assembly of Prince Edward Island is expected to sit May 22, 2020, coinciding with the expected start of the next phase of that province’s re-opening plan.  Discussions are underway about possibilities like reduced attendance or seating MLAs in the galleries; relocation was ruled out as “an unlikely solution in the short term”.[19]

The Legislative Assembly of Alberta held a two-week sitting prior to Easter, and has since resumed sitting on May 6, 2020, with an expectation that it will work to complete the spring legislative agenda.  Physical distancing precautions are being taken.[20]

Following the successes of our House (discussed below) and others—and their plans to resume sitting, in line with re-opening plans—the Official Opposition recommends that the House join these legislatures by resuming its sittings on May 25.

Sitting in the Chamber is important—and it can be done safely

In the midst of the Second World War, Mr. Churchill, explained how instrumental the House is in providing vigour to a country’s democratic life:

The vitality and the authority of the House of Commons and its hold upon an electorate, based upon universal suffrage, depends to no small extent upon its episodes and great moments, even upon its scenes and rows, which, as everyone will agree, are better conducted at close quarters.  Destroy that hold which Parliament has upon the public mind and has preserved through all these changing, turbulent times and the living organism of the House of Commons would be greatly impaired.  You may have a machine, but the House of Commons is much more than a machine….[21]

Veteran columnist Andrew Coyne fleshed out this concept for our present times:

It is not only necessary that these debates be open to the public.  It is necessary also that they be dramatic – to focus people’s attention, draw them in, implicate them in the outcome.  And that, as any theatregoer knows, requires the actors to be physically present: to emphasize that power is in the balance, not just abstract questions of principle, and that these are flesh-and-blood human beings contending with one another, with all their strengths and all their failings.[22]

Not only is the nature of debating and discussing the nation’s issues important, but so, too, is the physical venue in which it occurs.  Mr. Bosc brought home to us this point:

an overarching principle … is the importance of having that physical gathering of members in Ottawa.  I think that it is extremely important for citizens to be able to see their institution at work in a particular setting they are familiar with.  Visually it’s impressive; it gives it the gravitas and importance it deserves.  The trappings are important, I’m not going to lie….  There are elements of having that particular setting that give importance to the activity.[23]

Gary O’Brien, a former Clerk of the Senate, made an impassioned plea to the Committee to place the struggles we face in this pandemic within the context of history:

The values of Parliament are so much at stake.  I know it’s a terrible illness.  The pandemic is so terrible—there’s no question about that—but this is our Constitution.  This is our primary constitutional institution and we should guard that as much as possible….  The long arm of history is what I’m concerned about.  The House has always had obstacles.  I’m a student of pre-Confederation history.  The first meeting took place in 1792, in Upper Canada.  Imagine the member from Ottawa who had to go all the way to [Niagara-on-the-Lake], which is where that was, and the hardships he had to endure to get to Parliament, but he did it because of the importance of the institution.  I think we have to keep that in mind even in this pandemic.[24]

Experience shows that the House can meet responsibly in person while observing public health guidance.  Since first adjourning for the pandemic, it has since sat five times.  At each sitting, about three dozen MPs attended and Standing Order 17 (requiring Members to speak from assigned seats) was suspended to allow distancing.[25]  The Special Committee on the COVID-19 Pandemic has also met three times in the Chamber.  Not one incident of COVID-19 has been associated with any of these.

The Honourable Anthony Rota, the Speaker of the House, assured us that “as far as the public health guidelines go, we have been doing our best to make sure that it does take place.  …in the House, sitting in the chair, I get to observe what’s going on and, overall, everyone is staying at least six feet apart.”[26]  Similarly, the Committee heard from Nicole Gagnon, of the International Association of Conference Interpreters (Canada Region), that “no one is worried about potential COVID-19 infection.”[27]

The House Administration requires “about the same” staff onsite for a virtual sitting as an in-person one,[28] and “almost twice” the staff to support a virtual committee meeting than normal,[29] plus the Translation Bureau cycles interpreters, who work on Parliament Hill, at a 50% quicker pace for virtual meetings while also adding “co-ordinators”.[30]  Meanwhile, Michel Patrice, the Deputy Clerk (Administration), assured us that “we’ve basically planned our work around the requirements in terms of increasing cleaning, and we’re able to support those requirements.”[31]

The Globe and Mail observed, in an editorial last month, about our situation that,

If it’s possible to safely physically distance in grocery stores, on transit and … in garden centres, then 30 to 40 MPs representing a proportionally scaled-down version of the full House—as was done twice to pass emergency legislation—can safety gather in a chamber designed to hold 338 MPs.  And given the necessity for Canadians to self-isolate for a while longer, if a small number of MPs have to spend the next few weeks in Ottawa, without flying home on weekends, so be it.[32]

We agree.  The Official Opposition recommends that the House use its Chamber for its sittings.  We also urge the parties’ House leaders and whips to continue their successful approach to managing sittings by accommodating prevailing public health guidance, including the suspension of Standing Order 17.

Amid the pandemic, we need to accommodate all MPs’ participation

Dr. O’Brien warned us that, in his assessment, “the ultimate goal of allowing Parliament to operate as far as virtually as possible without a continued physical presence in Ottawa appears to me to go beyond changing just the work ways of the House.”[33]

Several witnesses urged us to consider a hybrid model of House sittings, where a physical sitting would be held and attendance augmented by Members participating remotely by videoconference, as a preferable approach.  Mr. Bosc, who had urged upon us the importance of the physical venue, described the hybrid model as having

the benefit of retaining for members and the House the flexibility and agility afforded by in-person sittings, while respecting public health guidelines by supplementing such sittings with virtual participation that has the added benefit of safely ensuring cross-country representation.[34]

The Honourable Gordon Barnhart, another former Clerk of the Senate, advised that

I think with appropriate physical distancing the House can meet with 20 or perhaps 30 people spread around.  The risk isn’t all that high and physical distancing should be practised, but to make sure, a greater number of people can participate, I would weigh in on the side of virtual attendance by the other members.[35]

Responding to a concern that hybrid proceedings treat MPs unequally and, therefore, breach privilege, Mr. Bosc assured us bluntly, “I don’t share your concern at all”.[36]

The Official Opposition recommends that the hybrid model be used to enable 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.  We strongly oppose, however, the use of any virtual proceedings to consider legislation, a budget or an Address in Reply.

Virtual committees should continue and must have more than virtual powers

Our committee system is the workhorse of parliamentary business.  Several of our standing committees, but not even a third of them, have been empowered to meet virtually.  At the start of the virtual experiment, committees were allowed to meet “for the sole purpose of receiving evidence”;[37] committees were not even allowed to choose the witnesses who would appear.  After negotiations, at the risk of the opposition being painted by the Liberals as opposing important aid for Canadian workers, committees now “may also consider motions requesting or scheduling specific witnesses”.[38]

Committees still are not allowed to ask for documents, to pass resolutions declaring their opinions, or even to write reports simply summarizing what they have heard and giving their thoughts about it.  (This report is a specifically carved-out exception.[39])

Emmett Macfarlane, a political scientist, made the point to the Committee that “a key concern about Parliament’s role … is that all MPs be able to participate as fully and as practicably possible.”[40]  We agree.  The Honourable Peter Milliken, a former Speaker of the House, suggested that the hybrid model would be well-suited for committees.[41]

The Official Opposition recommends that all standing and special committees be empowered to hold virtual or hybrid meetings while the current public health guidance remains in place; and that virtual committees be authorized to exercise all of the powers normally available to them at meetings in Ottawa.

These changes must be temporary and explicitly linked to the current pandemic

Until a vaccine or a treatment is developed for COVID-19, we must be ready to live with this terrible disease for a time.  While we must brace for epidemic waves, and variations in the prevailing health advice, we should not admit defeat and treat it as permanent.

Dr. Macfarlane urged our Committee to take an explicitly short-term perspective:

I think that any changes … that aim to facilitate virtual processes should be framed explicitly as emergency measures.  Provisions for virtual participation should be regarded as a temporary stopgap measure to ensure Parliament can continue to play its fundamental role to the best degree possible, but they cannot replace an in-person Parliament during normal times.[42]

Christine de Clercy, another political scientist, cautioned that “this period of crisis, in other words, should not serve as an accidental gateway to bringing in a permanent method of virtual assembly that is not well understood and that carries large democratic implications for Canada.”[43]  Conservatives agree with these professors’ concerns.

The Official Opposition recommends that these proposed arrangements expire on the first sitting day in September 2020, so that this Committee may review their implementation and make recommendations about renewal (and adjustments).

Alternatives to virtual sittings were virtually overlooked

As we watch provinces easing restrictions, we must think ahead to the full course of the pandemic.  The evolution of public health advice is likely to resemble a dimmer switch, not an on-off switch—and we must consider parliamentary arrangements similarly.

Conservatives asked, for example, about the possibility of sitting in a larger venue, to allow for greater physical distancing.  Mr. Patrice answered, “I must admit that it’s quite interesting”, and Barbara Raymond, from the Public Health Agency of Canada, admitted, “it certainly sounds as though you would definitely be able to meet and surpass your physical distancing requirements.”[44]  As noted earlier, some provincial legislatures are contemplating, or have contemplated, such an option already.

The Official Opposition recommends that the Committee explore thoroughly and seriously non-virtual alternatives which could allow for MPs’ greater participation.

Continued study would allow for many concerns to be assessed better

A trial-run of hybrid House proceedings would allow the Committee to have more meetings to hear evidence about many important issues before any possible extension, if the health situation requires, of these arrangements.  Some examples follow.

Technological resources: The Speaker urged us to follow a principle that “all members must be able to participate, recognizing that connectivity can vary in constituencies,” because MPs with Internet woes “have the same rights as everyone else and that has to be respected.”[45]  Yet, we heard the House’s own resources are quite limited.[46]  Additionally, high-speed Internet is not universally available across Canada; Canadian Radio-television and Telecommunications Commission data show that only 40% of rural households have access to Internet speeds like those available in urban communities.[47]

Security shortcomings: Conservatives were alarmed to read, on the day of the first virtual meeting of the Special Committee on the COVID-19 Pandemic, that the videoconference platform we were using, Zoom, was described as a “gold rush for cyber spies”.[48]  Though some witnesses were satisfied with the arrangements for public meetings, other gaps and shortcomings remain unaddressed.  House Administration officials confirmed that they cannot assure confidentiality of in camera committee or caucus meetings.[49]  This could have many implications for parliamentary privilege.[50]

Safeguarding bilingualism: We were troubled to learn that interpreters’ injuries have increased exponentially since the implementation of virtual committee proceedings, with April 2020 injuries exceeding those in all of 2019.[51]  Even their employer conceded that “the conditions are difficult for the interpreters.”[52]  Between injuries, pandemic precautions, and the consequences of school closures, we are seeing our pool of available interpreters steadily shrinking, approaching a “worst-case scenario” that parliamentary activities could be jeopardized.[53]  Not only is this distressing for our hard-working interpreters, but it places bilingualism in the House at grave risk.

Quorum: Philippe Dufresne, the Law Clerk, believes our constitutional quorum requirement could be satisfied with virtual attendance while suggesting doubts could be mitigated through the use of “hybrid” sittings or a constitutional amendment.[54]  Meanwhile, Australia’s House of Representatives observes a very similarly worded constitutional requirement,[55] and its Clerk, Clarissa Surtees, said, “this requirement has always been interpreted as meaning that ‘the presence’ means physical presence”.[56]

These are different jurisdictions, with different constitutions and jurisprudence, so both interpretations might be correct.  While we respect the Law Clerk’s analysis and opinion, it is not just an academic question.  As he pointed out, “it’s possible that a court could disagree… [and] what was adopted in the impugned proceeding could be invalidated.”[57]  Leaving a cloud over any House decisions, especially on COVID-19 aid, is not ideal.

Electronic voting: While Liberal Committee members expressed enthusiastic curiosity about electronic voting, the Speaker’s cautious statement spoke volumes to us: “Voting is something that I don’t see happening in the near future.  That’s something that requires some technology that personally I’m not yet comfortable with.”[58]  Beyond technical readiness, Dr. de Clercy raised a serious substantive concern about electronic voting: “One of the challenges in the move to virtual assembly is to ensure that e-deliberation is more than just an episodic, half-hearted online opinion poll.”[59]

The Official Opposition recommends that the Committee study be continued to allow these concerns and shortcomings, among others, to be assessed better.

Press conferences are not a substitute for Parliament

In the past weeks, government scrutiny has largely been left to press conferences.  The Prime Minister hosts a morning show at his doorstep, followed by an after-show, often hosted by the Deputy Prime Minister, for ministers mere feet from the House Chamber.

Unique circumstances may have made this a necessity in the pandemic’s first days, but we are long past that.  This minority government, however, seems to find it more comfortable to face the Parliamentary Press Gallery than its parliamentary opposition.  After all, most of the questions come from government-owned broadcasters and newspapers getting new government bailouts.  We even learnt recently the Prime Minister’s staff help screen many of those who get to question their boss.[60]

This is not democracy.  On the motion extending the U.K.’s hybrid trial, a former chair of our counterpart committee said, “we need to be in this place, eyeballing Government Ministers”.[61] We could not have said it better—but, we worry this is not the Liberal plan.

In last year’s election, the Liberal Party committed to “working with Parliament to introduce new technology or other institutional changes to better connect Members with their constituents”.[62]  This has since been transposed into the Prime Minister’s mandate letter to the Government House Leader.[63]  Recalling that electronic voting was proposed in the former Government House Leader’s heavily-disputed discussion paper,[64] and that remote participation was also discussed in the context of reform ideas, are these “virtual Parliament” efforts all part of a longer game plan?

As we saw from the Government’s efforts to seize parliamentary control over spending and taxation through Bill C-13, some Liberals have been keen students of Rahm Emanuel’s cynical maxim to “never allow a crisis to go to waste”.

The Official Opposition will strongly resist any effort to exploit the pandemic as a cover to implement a permanent virtual Parliament, with its reduced ability to hold a government accountable, gravely undermining our democracy.