Yaroslav Baran

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 they silence. Conservative strategist and procedural expert Yaroslav Baran calculates the political cost-benefit ratios.

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 by governments in today’s results-driven 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 impasse 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 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.

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.

Yaroslav Baran is a strategic communications adviser and proceduralist who has worked in both government and opposition, most recently as chief of staff to the government house leader. He is a principal with the Earnscliffe Strategy Group in Ottawa. yaroslav@earnscliffe.ca, Twitter: @YaroslavB