The SNC-Lavalin affair, which continues to reverberate, raises many issues in a democracy dominated by political parties — and all these issues take on greater relevance with a federal election approaching. One of them is the conflict that can arise between the conscience of a politician and the strictures of party politics, in a variety of contexts, and how that conflict should be resolved. When our representatives are voting on legislation, there are good reasons to favour conscience.

Nearly all Canadian politicians belong to political parties, and the requirement to vote on legislation as their party directs (or else be sanctioned) is the norm. Since the 1960s, there have been only 14 “free votes” in Parliament. These votes, also known as conscience votes, are usually granted for morally controversial topics such as abortion, euthanasia and capital punishment. In Canada, the decision to grant a free vote rests with the leaders of the political parties.

The rise of political parties, coupled with the view that politicians are agents of their constituents, largely explains the rarity of free votes in many liberal democracies. If the job description of a politician is to carry out the will of voters by enacting the platform of the political party to which they belong, free votes are unnecessary.

The agency model of representation clashes with the view that politicians are entrusted by voters to advance the common good and the public interest by using their own reason and judgment. Political theorist and philosopher Edmund Burke, in his victory speech upon winning re-election to the British House of Commons in 1774, articulated this model of representation. While Burke believed that politicians must assign “great weight” to the wishes of voters, he also believed that politicians must not simply sacrifice their own opinion, judgment or conscience to the will of their constituents.

Free votes are at times granted if legislation engages a “conscience issue,” but this term is misleading. Legislation on defence spending or social assistance can raise moral considerations, but in Canada these matters have not been considered issues that call for a free vote. The focus on identifying a “conscience issue” also overlooks the proposition that politicians should evaluate all legislation against the standard of whether it serves the common good and the public interest. If that is the case, perhaps every vote in a legislature is, at least to some degree, a matter of conscience.

To question party discipline is not to dismiss the important contributions of political parties. These organizations craft their policy positions based on what they believe will serve the common good and the public interest. Parties have generally proven to be effective in achieving policy goals and stable governance. There remains the question, however, of whether strict party discipline enhances or weakens a representative democracy. Political parties form around a set of principles, but coerced conformity with them — at all times and without exception — may not be necessary for parties to flourish. In Canada, strict party discipline did not emerge until the latter half of the 20th century.

The experience in other countries supports the view that an absolutist approach to party discipline is not essential to the proper functioning of political parties in a democracy. Party discipline is also the norm in the United Kingdom, but to a lesser degree of intensity than in Canada. In the United States, where party discipline is far more relaxed, free votes are a strange concept. Broadly stated, for American lawmakers, every vote is a free vote. Among federal parties in Canada, only the Green Party has a policy of free votes as standard practice.

By limiting democratic freedom, strict party discipline can have an exclusionary effect both on persons who seek elected office and on voters. The effect is acute in democracies like Canada where long-standing political parties have dominated the halls of power to the extent that it is exceedingly difficult to be elected as an independent or to succeed as a new political party. When a feature of a democracy creates barriers to democratic participation, the feature may actually be a flaw.

The Supreme Court of Canada once noted that individual conscience “lies at the heart of our democratic political tradition.” If that is true, strict party discipline in Canada should be discarded. To do so would require amendments to legislation governing parliamentary procedure, unless political parties change their policies on free votes. Some may argue that this change would stifle parties, yet they are still effective in countries where party discipline is less stringent.

If strict party discipline were to disappear in Canada, it seems likely that politicians would still toe the party line on most votes. The experience in countries such as the United States suggests as much. The decision to break ranks would, one hopes, be made only for compelling reasons such as where politicians believe that toeing the line would harm the common good or the public interest.

When push comes to shove, voters probably prefer politicians who do what they believe to be right rather than robotically obeying their leaders. The mainly positive reaction to the decisions of Jody Wilson-Raybould and Jane Philpott in the SNC-Lavalin affair reveals as much. At the very least, voters have more respect for politicians who show integrity by following their conscience — even if they disagree with the convictions inspiring such choices.

We must not forget that individual exercises of conscience can transform societies for the better. The majority may sincerely — but wrongly — believe a cause or idea to be good and true. For people such as Martin Luther King Jr., Nelson Mandela and Mahatma Gandhi, the causes and ideas they opposed were widely thought to be legitimate and even righteous in their time. Thanks to their exercises of conscience, today we recognize those causes and ideas as instances of evil and injustice.

The humility that enables a society to recognize its defects and the need for improvement is less likely to emerge if conscience is denigrated in politics or if partisan allegiance is said to extinguish conscience. Freedom of conscience promotes moral growth, for individuals and societies alike. Conscience, though inherently individual, is vital to the common good. In order to realize societies that are just and equitable, it is safe to say that freedom of conscience — especially for the people who govern and shape them — is nothing short of indispensable.

Photo: Independent MPs and former cabinet ministers Jane Philpott and Jody Wilson-Raybould speak to reporters before Question Period on Parliament Hill in Ottawa, a day after being removed from the Liberal caucus on Wednesday, April 3, 2019. The Canadian Press, by Justin Tang.

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Brian Bird
Brian Bird is an assistant professor at the Peter A. Allard School of Law at the University of British Columbia and is a research fellow at the Religious Freedom Institute in Washington, DC.

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