The expulsion of two Liberal cabinet ministers from their caucus shows the need for ambitious democratic reforms, reforms that are not easily subverted.

The SNC-Lavalin affair offers a rare glimpse into the inner workings of the PMO, and raises concerns about prosecutorial independence and political interference in our judicial system. But it also revealed something equally concerning – the disempowerment of members of Parliament versus their party leaders. Justin Trudeau’s unilateral expulsion of MPs Jody Wilson-Raybould and Jane Philpott from the Liberal team is a testament to the omnipotence of prime ministers over their caucuses. Clearly, more expansive parliamentary reforms are required.

The Reform Act, 2014

The last major attempt to rebalance power in Parliament was with the Reform Act, 2014, which came into force on October 26, 2015, seven days after the last general election. The legislation included amendments to the Parliament of Canada Act. Those amendments to section 49 require MPs to take four votes as they arrive for the new Parliament after each general election. These rules lay out the process for caucuses to

expel and readmit a caucus member,

elect and remove the caucus chair,

review and remove the party leader by caucus, and

elect an interim leader in the event the leader suddenly dies, becomes incapacitated, suddenly resigns or is otherwise removed.

The rules allow MPs to ensure that they, not the leader, control these processes. In effect, the rules concern where power lies within Parliament ─ the heart of our democracy. The votes are to be recorded (just as votes are recorded in the House of Commons), and the results reported to the Speaker of the House of Commons.

If a majority of caucus votes “yes” to a particular rule, then the rule is in force until the next general election. If a majority votes “no” to a rule, then caucus reverts to the unwritten practice that has long governed caucuses on Parliament Hill – that is, the leader has free rein to do what he or she wants.

The missing Liberal (and NDP) caucus votes

And yet, the four required votes never took place inside the Liberal caucus, which met a day after the swearing in of the Liberal government at Rideau Hall in 2015. The prime minister and his leadership team ignored the obligation to have MPs vote on the four rules, in direct contravention of section 49 of the Parliament of Canada Act.

At the time, there was scant coverage of what had happened. Since then, the high-profile expulsion of Wilson-Raybould and Philpott has shone a light on the details. MPs who were present at that first post-election caucus meeting have publicly confirmed that the recorded votes did not take place as required by law. (A recorded vote requires each MP to vote, and have their vote formally recorded).

It’s not clear why Trudeau and his leadership team blocked Liberal MPs from voting. Maybe they worried that MPs might vote “yes” to the rules, empowering themselves to the detriment of the PMO. Maybe they thought the secret nature of caucus shielded them from complying with the law. Or maybe they believed that caucus is not subject to the law.

The requirement for the four votes was well publicized at the time, and even if it hadn’t been, ignorance of the law is no excuse for noncompliance. The changes introduced by the Reform Act, 2014, garnered much media attention in the two years leading up to the 2015 election. A Globe and Mail editorial published only days before that first Liberal caucus meeting encouraged MPs to exercise their new-found powers through the four votes.

The first recorded vote that should have taken place concerned the rule on caucus expulsions. Had Liberals MPs been able to vote, maybe they would have voted “yes” to the rule. Caucus expulsions would then have been a decision made by the entire caucus – not the leader – on a secret ballot. Maybe they would have voted “no” to the rule, declining to have it apply to their caucus. Who knows? They never had the chance to vote.

It’s worth noting that the NDP also did not comply with the law; they didn’t vote on the four rules in a recorded manner during their first caucus meeting after the election. Former NDP MP Erin Weir, who had been expelled from caucus, said that no vote on the rules took place in 2015.

MPs in the Conservative caucus voted “yes” to the rule concerning caucus expulsions and preventing the party leader from unilaterally expelling a member. The Conservative caucus complied with section 49 and conducted the four recorded votes as required. The Conservative leader currently does not have the authority to expel a member. All Conservative MPs who have left the Conservative caucus in the 42nd Parliament did so because they resigned ─ the leader has no authority to expel, and caucus has never held an expulsion vote.

Some have argued that, given the chance, Liberal MPs would have voted “no” at the first caucus meeting and rejected the expulsion rule anyway. Others have argued that even if they had voted “yes” and brought the rule into force, a majority of Liberals MPs would have voted to expel Wilson-Raybould and Philpott on a secret ballot. These arguments are missing the point. In a democracy, process is fundamental. How decisions are made is just as important as what decisions are made. This is an essential, defining characteristic that distinguishes democracies from other systems.

Why caucus expulsions are a big deal

The rule in section 49 of the Parliament of Canada Act lays out a clear, fair process and deliberately sets the bar high for expulsion.

In the cases of MPs Wilson-Raybould and Philpott, at least 15 percent of Liberal MPs would have been required to write to the caucus chair requesting a secret-ballot expulsion vote. And then, a majority of the entire caucus – not just the MPs present for the vote – would have been required to vote in favour of expulsion for it to have taken place.

In other words, as the Liberal caucus had 179 members, at least 36 Liberal MPs would have been required to write to the caucus chair requesting an expulsion vote. The chair would have called a meeting, at which a minimum of 90 secret ballots in favour of expulsion would have been required. If only 120 MPs showed up to vote, 90 secret ballots in favour of expulsion would still have been required.

Wilson-Raybould and Philpott were not afforded that clear, fair process for expulsion. Since the law was not followed and the authority to expel never clarified at that first caucus meeting, Trudeau’s authority to expel MPs Wilson-Raybould and Philpott is questionable.

Caucus expulsions are not a trivial matter. They go to the heart of power in our democratic system. MPs who are not in a caucus are precluded from membership on a standing committee; they have no right to introduce motions or vote in committee, to give a speech during a take-note debate; they are relegated to asking questions at the very end of question period (as if they were being allowed the crumbs off the table); they have no access to caucus research budgets; the list goes on. MPs who are not in a caucus or who run as independent candidates have far fewer rights and powers than party MPs and party candidates. This is why there are so few of them. And this is why independent candidates rarely get elected. The entire system has been deliberately stacked against them

Caucus expulsions by a party leader also subvert our constitutional order. Leaders are supposed to be accountable to caucus, and the prime minister to the House of Commons as a whole – not the other way around. This accountability is an integral part of the confidence convention.

A law flouted with impunity

A week after being expelled from the caucus, Philpott rose in the House of Commons and made an appeal to Speaker Geoff Regan. She indicated that there had been a breach of the Parliament of Canada Act and her right to a fair process for caucus expulsion had been denied. She asked the Speaker to allow her case to be adjudicated by the House of Commons as a whole. In his ruling, the Speaker denied her request.

The Speaker has made it clear he will not intervene in a breach of the Parliament of Canada Act. Meanwhile, the courts have made it clear they will not intervene in the internal affairs of the House of Commons or its caucuses. So, this is the end of the road for Philpott’s appeal. There is no other avenue available to her.

The lack of an avenue to adjudicate this breach of the Parliament of Canada Act could be addressed by an amendment to the law, to provide for an appeal to the Standing Committee on Procedure and House Affairs – although this might be futile, as committee membership falls under the control of the party leader and, in a majority parliament, the PMO.

A better approach would be to amend the Parliament of Canada Act by replacing the requirement for recorded votes at the first caucus meeting after an election with secret ballot votes. Voting by secret ballot creates a physical record of paper ballots, making it more difficult for the caucus leadership to contravene the law. Voting by secret ballot also eliminates the possibility that caucus members might be intimidated by the leadership. This is why secret ballots were introduced in the 1874 federal election. The first two federal elections of 1867 and 1872 were conducted by open and oral voting, with the shenanigans that transpired to show for it.

Alternatively, the four recorded votes could be done away with entirely. The requirement for recorded votes on each of the rules was an amendment to the original Reform Act bill, in order to gain support for its passage through Parliament. The original Bill made all four rules mandatory in all caucuses. If the requirement to vote that is specified in section 49 was eliminated, the four caucus rules would be in force in all caucuses. MPs could not be unilaterally expelled by the party leader; it could happen only with a secret ballot of caucus. Caucus members would have the right to elect and remove the caucus chair, to review and remove the leader (including the prime minister), and to elect the interim leader – all by secret ballot vote. It would result in a big shift in the balance of power in Ottawa, reducing the power of party leaders, particularly the prime minister, and empowering elected members of Parliament to better represent their constituents.

The Reform Act, 2014, assumed that the rule of law is strong in the corridors of Parliament. It assumed that members of Parliament would self-regulate and govern themselves according to that principle. What took place at the first Liberal caucus meeting makes it clear that this assumption was wrong. It revealed a deep rot in Parliament. What took place justified the whole purpose of the Reform Act, which is to rebalance the power between elected MPs and all-too powerful party leaders, who are so powerful they believe themselves to be above the law.

The amendments I have suggested above would ensure that the legal right and obligation of members of Parliament to decide who has power to expel is respected, while strengthening the rule of law.

The Reform Act, 2014, was just a small step in the right direction of rebalancing power in Ottawa. But even though it passed into law it was of little force, because it ran into a political culture that is “all about the leader.” But the SNC-Lavalin affair and the resulting expulsions of Wilson-Raybould and Philpott have shed light on the need for much more ambitious democratic reforms, reforms that are not easily subverted. Perhaps it’s time for another, much bigger Reform Act.

Photo: Prime Minister Justin Trudeau stands in the House of Commons during question period in Ottawa on April 9, 2019. The Canadian Press, by Sean Kilpatrick.

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