Clo­sure and Time Al­lo­ca­tion: Strik­ing a Bal­ance in a 21st Cen­tury Par­lia­ment

Be­cause Par­lia­ment’s func­tion in a democ­racy is not only to pass leg­is­la­tion but to de­bate it, the pro­ce­dural weapons of clo­sure and time al­lo­ca­tion, as mech­a­nisms that sus­pend and limit that very de­bate, are de­ployed with cau­tion and de­plored by those th

Policy - - In This Issue - Yaroslav Baran

The cur­rent mid-way pause in the 42nd Par­lia­ment has led to pre­dictable re­views of the gov­ern­ment’s record of pass­ing leg­is­la­tion. In rel­a­tive terms, Team Trudeau has passed roughly as many bills as the Harper ma­jor­ity gov­ern­ment had en­acted in its first two years.

Pre­dictably, in to­day’s po­lit­i­cal cul­ture, leg­isla­tive pro­duc­tiv­ity is a com­mon mea­sure of per­for­mance. The Trudeau gov­ern­ment, for in­stance, es­tab­lished a spe­cial cen­tral cab­i­net

com­mit­tee specif­i­cally fo­cused on track­ing “re­sults” and com­mu­ni­cat­ing them to the pub­lic.

Gov­ern­ments fo­cused on re­sults are un­der­stand­ably in­ter­ested in the tools that ex­pe­dite their pro­duc­tiv­ity. None is more no­to­ri­ous than The Guil­lo­tine—West­min­ster par­lia­men­tary jar­gon for two mech­a­nisms: “clo­sure” and “time al­lo­ca­tion”. Both are tools to cut off de­bate and force a vote, and are of­ten used in­ter­change­ably in par­lia­men­tary short­hand.

In Canada, clo­sure (Stand­ing Or­der 57) is a votable mo­tion that en­sures a cur­rent de­bate is no longer ad­journed. It slightly extends the hours of sit­ting that day, but en­sures that all fi­nal votes are taken that night. Sim­i­larly, time al­lo­ca­tion (Stand­ing Or­der 78(3)) dic­tates a set pe­riod of de­bate time to fin­ish a de­bate—usu­ally one day. Both are in­creas­ingly used

The im­per­a­tives of gov­ern­ment and the en­ti­tle­ments of the Com­mons are there­fore on a struc­tural col­li­sion course. The im­passe was iden­ti­fied in the early years of Par­lia­ment. In clas­sic Cana­dian fash­ion, it was rec­og­nized that nei­ther right is ab­so­lute.

by gov­ern­ments in to­day’s re­sults­driven cul­ture, and both are de­rided by op­po­si­tion par­ties of all stripes. The no­to­ri­ety comes from a clash of two fundamental as­pects of our par­lia­men­tary tra­di­tion. One is that, in a West­min­ster model, gov­ern­ments are ex­pected to pass leg­is­la­tion. De­bate is meant to probe and im­prove bills, but gov­ern­ments are meant to gov­ern—if you don’t like what they’re do­ing, then throw the bums out at the next elec­tion.

The op­pos­ing tra­di­tion, how­ever, is com­prised of two fundamental prin­ci­ples of the House of Com­mons. The first is the “re­spon­si­ble gov­ern­ment” tenet that the peo­ple, (through their elected rep­re­sen­ta­tives) are en­ti­tled to thor­oughly, rig­or­ously and af­fir­ma­tively scru­ti­nize every act of gov­ern­ment. The sec­ond is the point of priv­i­lege that each MP in­di­vid­u­ally is en­ti­tled to speak to any mat­ter be­fore the House of Com­mons.

The im­per­a­tives of gov­ern­ment and the en­ti­tle­ments of the Com­mons are there­fore on a struc­tural col­li­sion course. The im-

passe was iden­ti­fied in the early years of Par­lia­ment. In clas­sic Cana­dian fash­ion, it was rec­og­nized that nei­ther right is ab­so­lute, and ei­ther en­tity could un­duly abuse its priv­i­leges in the ab­sence of the op­pos­ing priv­i­leges.

Gov­ern­ments would run roughshod over (and ul­ti­mately be­come alien­ated from) the pub­lic with­out a coun­ter­vail­ing right to ad­e­quate par­lia­men­tary scru­tiny. Con­versely, with­out the prospect of a guil­lo­tine, op­po­si­tion par­ties could fil­i­buster all gov­ern­ment bills in­def­i­nitely, us­ing de­bate as a pre­text for po­lit­i­cal ob­struc­tion. The use of time al­lo­ca­tion and clo­sure has in­creased over the years along­side a grow­ing vol­ume of par­lia­men­tary ac­tiv­ity. And with the in­creased use has come in­creased de­bate about how to fairly strike that bal­ance of in­ter­ests.

The two tools are slightly dif­fer­ent, with their own histories. And both have al­ways been con­tro­ver­sial.

Clo­sure was first in­tro­duced in West­min­ster in 1881 and has ex­isted in Canada since it was adopted in 1913 to cur­tail a de­bate on a naval aid bill. It was, at first, spar­ingly used, but its no­to­ri­ety spiked in 1956 over a pipeline bill. The Lib­er­als in­tro­duced a bill to fa­cil­i­tate a pipeline from Al­berta to Cen­tral Canada. While the So­cial Credit Party sup­ported the bill, the Con­ser­va­tives and CCF op­posed pas­sion­ately. Clo­sure was used four times, the bill passed, and Tran­sCanada Pipelines was born. The gov­ern­ment was de­feated the fol­low­ing year af­ter 22 years in of­fice, pri­mar­ily over a nar­ra­tive of dic­ta­to­rial prac­tice in Par­lia­ment— no­tably its abuse of clo­sure.

Clo­sure has re­tained its no­to­ri­ety since the Pipeline De­bate, partly due to the high-pro­file and con­tro­ver­sial is­sues on which it has been in­voked since: re­in­stat­ing gov­ern­ment bills af­ter pro­ro­ga­tion, rewrit­ing the House of Com­mons pro­ce­dural rule­book, re­design­ing the Cana­dian flag, strik­ing a com­mit­tee to re­write the Con­sti­tu­tion, and pass­ing the Canada-U.S. Free Trade Agree­ment. In fact, many of the wa­ter­shed mo­ments that de­fine the Canada of to­day were forced through un­der par­lia­men­tary guil­lo­tine.

Time al­lo­ca­tion” sounds far more omi­nous than “clo­sure”— as though you’ve just in­vited the Swiss to come in and pre­pare an or­derly itin­er­ary to keep every­body on track.

The use of time al­lo­ca­tion and clo­sure has in­creased over the years along­side a grow­ing vol­ume of par­lia­men­tary ac­tiv­ity. And with the in­creased use has come in­creased de­bate about how to fairly strike that bal­ance of in­ter­ests.

Time al­lo­ca­tion evolved as an off­shoot of clo­sure, and has be­come a sort of clo­sure with a PR team. Not­with­stand­ing the high drama of the Pipeline De­bate, there was an in­creas­ing recog­ni­tion in the 1960s that a higher-ac­tiv­ity House ei­ther needed more hours in a day or to find a way to rea­son­ably ap­por­tion time to dif­fer­ent de­bates. In 1965, an in­terim rule (S.O. 15-A) pro­vided for a multi-party steer­ing com­mit­tee to ne­go­ti­ate timeta­bles and al­lowed for gov­ern­ment to dic­tate uni­lat­er­ally only in cases of gen­uine im­passe. It was re­placed with tweaks in 1969, and “Stand­ing Or­der 78” was born. It al­lowed for time-tabling by con­sen­sus (78(1)), by ma­jor­ity of par­ties’ con­sent (78(2)), or by uni­lat­eral gov­ern­ment pro­posal if ne­go­ti­a­tions fail (78(3)). That lat­ter vari­ant is the one that mat­ters, be­ing the ana­logue to tra­di­tional clo­sure.

Op­po­si­tion par­ties al­most im­me­di­ately de­cried the new rule’s abuse, and the equa­tion with clo­sure so­lid­i­fied fol­low­ing suc­ces­sive speak­ers’

rul­ings whereby the chair re­fused to pass judg­ment on al­le­ga­tions that the req­ui­site “ne­go­ti­a­tions” between the par­ties were be­com­ing pro forma and disin­gen­u­ous.

Con­tem­po­rary gov­ern­ments pre­fer time al­lo­ca­tion, and decades of jurispru­dence have made it eas­ier to use. It’s also marginally more ef­fi­cient than clo­sure in that it doesn’t re­quire sit­ting into the night. The nomen­cla­ture also gives it an edge: “Time al­lo­ca­tion” sounds far more omi­nous than “clo­sure”—as though you’ve just in­vited the Swiss to come in and pre­pare an or­derly itin­er­ary to keep every­body on track.

Use of guil­lotines has sig­nif­i­cantly in­creased in re­cent decades, and the tra­jec­tory con­tin­ues to climb. All par­ties in op­po­si­tion re­nounce the tools, then in­cre­men­tally redis­cover them once in gov­ern­ment. The only re­prieve has been mi­nor­ity gov­ern­ments—for ex­am­ple, the Harper gov­ern­ment used Stand­ing Or­der 78(3) just once in the mi­nor­ity 39th Par­lia­ment (and only af­ter an agree­ment with the Lib­er­als to sup­port the mo­tion). The pre­ced­ing Martin mi­nor­ity didn’t use it at all in the 38th Par­lia­ment, com­pared with 12 uses in the ma­jor­ity 37th and 30 uses in the ma­jor­ity 36th.

Ma­jor­ity gov­ern­ments love their guil­lo­tine, and in­creas­ingly feel they can’t do busi­ness with­out it. In once case, in the 36th Par­lia­ment, when the Op­po­si­tion caught the Chré­tien gov­ern­ment off-guard and wiped clo­sure and time al­lo­ca­tion off the rule­book with a sur­prise vote (full dis­clo­sure: this au­thor was a prin­ci­pal ac­tor in the ca­per), the gov­ern­ment House Leader was so in­censed that he made ma­jor con­ces­sions to get the tools back—more Op­po­si­tion Days and ex­panded vota­bil­ity for Pri­vate Mem­bers’ Busi­ness.

So, what is to be done? We cul­tur­ally dis­ap­prove of th­ese tools, yet we’ve cre­ated an im­per­a­tive for gov­ern­ment “re­sults” that re­quires their use. What­ever the so­lu­tion, it must be pred­i­cated on bal­ance—there is no ab­so­lute. Par­lia­men­tary priv­i­lege is not a li­cense for D.C.-style grid­lock, and a gov­ern­ment’s right to gov­ern is not a li­cense to steam­roll Par­lia­ment. For starters, we may want to re-eval­u­ate our quan­ti­ta­tive ap­proach to ap­prais­ing gov­ern­ments. If we cri­tique the cur­rent regime for pass­ing only half as many bills as the pre­vi­ous Con­ser­va­tive gov­ern­ment, we must also ac­knowl­edge the Lib­er­als have used time al­lo­ca­tion only half as of­ten. The two go hand in hand.

We also have to ac­cept that the al­ter­na­tive to guil­lotines is an in­evitable move to­ward more om­nibus leg­is­la­tion, to lower the num­ber of bills while mov­ing the same bulk of busi­ness. The ques­tion, then, isn’t “if”— it’s “how” to treat th­ese tools.

In 2001, the rules gov­ern­ing both time al­lo­ca­tion and clo­sure were tweaked to re­quire a min­is­ter to jus­tify their use in a half-hour grilling on the floor of the Com­mons. This change did not cur­tail the avail­abil­ity of th­ese tools, but bol­stered ac­count­abil­ity. Th­ese are the kinds of re­forms that should be en­cour­aged.

Ac­count­abil­ity only works, how­ever, if the tools are not nor­mal­ized. In clas­sic Cana­dian man­ner, the so­lu­tions are found not in the rules, but in the right cul­tural at­ti­tude sur­round­ing the issue. Op­po­si­tion par­ties must con­tinue to de­cry the use of clo­sure, specif­i­cally to avoid its nor­mal­iza­tion. The 30-minute grilling can­not be­come a cyn­i­cal pro-forma ex­er­cise for a min­is­ter to get his or her bill back on timetable. Guil­lo­tine mo­tions must be avail­able but also ex­cep­tional. And every house leader must be made to feel sheep­ish about us­ing it.

What­ever the so­lu­tion, it must be pred­i­cated on bal­ance— there is no ab­so­lute. Par­lia­men­tary priv­i­lege is not a li­cense for D.C.-style grid­lock, and a gov­ern­ment’s right to gov­ern is not a li­cense to steam­roll Par­lia­ment.

The fi­nal part of the so­lu­tion lies with the Cana­dian pub­lic and its level of civic en­gage­ment. When the peo­ple stop watch­ing Par­lia­ment, gov­ern­ments start abus­ing their pow­ers. The op­po­si­tion may cry foul as loud as can be, but if we are too busy watch­ing cat videos and Kar­dashi­ans, and be­come in­creas­ingly di­vorced from civil en­gage­ment, there will be no­body there to hear those howls.

IStock photo

Par­lia­ment Hill on a win­ter’s day. The Cen­tre Block and the House of Com­mons Cham­ber are the fo­cal points of the on­go­ing strug­gle between gov­ern­ment and op­po­si­tion over time al­lo­ca­tion.

Adam Scotti photo

Prime Min­is­ter Trudeau in the House of Com­mons dur­ing ques­tion pe­riod, in the fall sit­ting, 2017, where time al­lo­ca­tion be­came an issue in the Lib­eral gov­ern­ment man­ag­ing its agenda.

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