Concentration of Power

I rarely look at federal politics these days. It is good for my mental health to focus on matters I can actually do something about. Provincial matters are unavoidable for me, because the province (increasingly) directly controls municipalities: the provincial government determines what municipalities can do, how we can do it, and has veto power on a growing number of municipal matters. So even when I don’t watch the provincial political news, I’m very aware of the way that the provincial government has been continually concentrating power in their Cabinet through increasing ministerial oversight and powers. And when I scanned the federal news this morning, I see that they’re doing very similar things. So here’s a brief explainer of how our parliaments are supposed to work, how they’ve been distorted by decades of concentration of power in party leaders and cabinets, and the latest examples of this kind of distortion.

How Parliament Should Work

As a parliamentary democracy, our system of governance centres Parliament, the body of elected officials (and appointed Senators) who make decisions on behalf of their constituents (us). While the government itself is technically the Cabinet (the Prime Minister and Ministers, or the Premier and Ministers at the provincial level), the government presents its agenda in a series of motions that need to get the approval of the majority of Members of Parliament or Members of Provincial Parliament, who each represent an electoral district full of citizens. In this way, we all get some say in what direction our country or province is taking. Members have debates on the motions, make adjustments to them in committees so that they can be improved and get more support, and eventually decide on them one way or another.

We do similar things at the municipal level, though we have a much more streamlined process. If you’ve tuned in to a council meeting, you may have noticed that our motions to enact by-laws all include the words “first, second, and third reading, and passed on this day….” In Parliament those readings all happen on different days with committee meetings in between, in order to ensure greater transparency and opportunity to improve bills. We do still have opportunity to debate the motion, but the matters we address locally often have little to debate: most of our by-laws are procedural, which is to say that they are a way of passing authority to staff to fulfill the will of council by carrying out their duties and running the municipality in accordance with the laws and frameworks the province provides. When we do have a by-law that impacts residents directly, such as the animal control by-law that’s currently pending, we receive a staff report indicating the research staff have done into the matter and their recommendations; if that report leaves council with any doubts or concerns, we move to refer it back to staff for more work. The animal control by-law has been in front of council twice now, and it would have come back to council a third time for final approval by now except that staff received new information and are working to improve it in light of that information. So while we don’t formally adhere to the same structure of multiple readings, we still get as many readings as we need to make a good decision.

How Parliament is Broken

As complex as procedural rules can be, the general principle of Parliament I described above is pretty straightforward: the government’s agenda needs to be debated, improved, and approved by a majority of MPs (or MPPs)(and then the Senate). That still technically happens, but not really.

That’s because governments going back decades have been tweaking the rules to give themselves more power. Yes, they still have to present their agenda through bills that need to pass Parliament; but those bills are now very often massive omnibus bills that deal with hundreds of changes to the law all at the same time, making debating all of those changes impossible. And then, frequently, the government moves to curtail debate anyway. Party leaders control which of their members are allowed to speak, so only approved talking-points are allowed, which means no real debates happen anyway. So while Parliament is still going through the motions, it is no longer the place where decisions are made. Particularly in a majority government, where the outcome of any vote is pre-determined by the governing party because of the way that parties control their members, the important decisions are made before the bill is even introduced.

But even if the government can get around Parliament, they were still elected, so they’re still legitimate…right? Sort of. No party campaigns on its entire policy book, and very few voters know any party’s entire election platform much less the entire policy book, so it’s always a massive stretch when a new government claims to have a “mandate from the people” to enact their agenda. Very often, election campaigns are carried out on vibes and misinformation, “dog whistles” and branding and sloganeering. And no government is held to their policy platform once the election is over, either.

But we don’t just vote on the basis of a platform, we also vote based on the people, right? Ideally, yes. But political parties govern themselves in ways that subordinate their members to the leader to such a degree that individual members of a party caucus are almost irrelevant. It used to be that a party caucus (the elected members of the party) chose their own leader, and that leader needed to maintain their confidence; now a leader is chosen directly by party members, and can expel or demote members of caucus who disagree with them. MPs and MPPs are told by their leader how to vote on every bill, and I’d be surprised if all of them even read every bill, especially given how long they often are.

All of this could be manageable, and government could retain its legitimacy, so long as it operates in a transparent and accountable way through the work of Parliament. But as I’ve just explained (far too briefly), Parliament is mostly a charade. Question Period is actually rehearsed. And most of the decisions that actually matter happen in places where there is neither transparency nor accountability.

For a much more in-depth look at these problems, and more, along with historical context for it all, I highly recommend you check out Andrew Coyne’s book The Crisis of Canadian Democracy. Here he is talking about it on TVO:

Skipping the Process

The way that governments have gotten around accountability and transparency that I described above had them still going through the motions, but that’s terribly inconvenient. If you still need to have a debate (even though the decisions have already been made) you need to rehearse that debate, do media scrums, and give the opposition the chance to argue and accuse and maneuver and otherwise campaign in what has become an endless campaign cycle. It’s much more efficient, then, to just skip the process of accountability and transparency. Governments at the federal and provincial levels can do this by simply giving their Ministers more power to act on their own.

In this podcast, which did not help me fall back to sleep early this morning, they discuss the way that the senate is currently pushing back on some legislation that seems to be passing the minority Parliament with support from both the Liberals and Conservatives. Skip ahead to 7:01, and listen to about 16:30.

They mention two bills, one of which is C-12, which makes significant changes to the refugee asylum process. As this CBC article about it notes, the Canadian Bar Association and Amnesty International both testified before the Senate saying that these changes would create a two-tiered asylum system. As Althia Raj noted in the podcast above, Parliament didn’t study this bill at all; as the Migrant Rights Network mentioned in the CBC article here, they didn’t get a chance to testify in the House of Commons committees. Only the Senate committee bothered with this step. While having a quality bill that incorporates the needs and input of relevant stakeholders is the ostensible goal of Parliament, it is not in fact a requirement. I’ll echo Raj here and say that I’m thankful we have a Senate, which exists for exactly this reason: to give sober second thought to bills that should not have passed the House of Commons.

Ministerial Power

The other thing that C-12 does that allows the government to skip democratic processes is it grants more ministerial power to override existing processes, which were set up through bills that passed Parliament, whenever the Minister deems it to be “in the public interest.” Leaving “the public interest” undefined allows the Minister to act quickly on matters of importance, but it also allows the Minister to shoehorn virtually anything into the notion of “public interest” without parliamentary oversight.

I want to stress that there is a legitimate use for ministerial powers. Some of the more important decisions a government can make are the ones about who gets to make a decision, and how. Consider it from the perspective of financial controls, even in a workplace: do you need to get your boss’ permission to open a package of pencils or paper? Who has authorization to spend company money, and how much can they spend before they need approvals from someone else? These are the kinds of questions that I like to think of in terms of “can you make the decisions you need to make in order to do your job effectively?” If the answer is no, then there’s a structural problem. The same is true of governments: if an entire arm of the government is hamstrung by rules that prevent them from making timely decisions on matters of high importance, that’s a problem. In such situations, it is warranted to ensure that people have the power to get the job done, within reasonable limits.

But when governments are frequently giving themselves more and more powers that are not subject to parliamentary oversight, this ought to be a cause for alarm. And the current Ontario provincial government does this all the time. Every bill I’ve ever looked at from the Ford government has entrenched more power in the relevant minister, usually giving them new powers over municipalities, conservation authorities, school boards, or other organizations that, while subject to provincial law and oversight, have traditionally functioned independently of the province. And it’s frustrating to see the federal government doing it too.

While a majority government can always just pass a new bill to enact its will, that’s still a time-consuming process that comes with media scrutiny and all the joys of partisan politics. Why do all of that when you can have a minister quietly make a ruling on a matter? The only way we’d even hear about it is if someone who is affected by it goes to the media.

Above the Law

The other way that governments have been consolidating power is by exempting themselves from the rules. Specifically, the way that political parties are exempt from privacy and finance legislation. This is a longstanding problem, but it’s getting worse, as discussed on the podcast above, with Bill C-4.

I think at this point we’re all getting used to the idea that our data matters. It is highly valuable, and subject to misuse and mishandling. Canada has some fairly robust data privacy laws, though they need to be significantly strengthened with regard to online data (but don’t get me started on the way tech companies exploit us all, just follow Corey Doctorow). But Canadian political parties are exempt from the privacy laws we do have, and now are making themselves exempt from provincial-level privacy laws too. And this passed the House of Commons without debate. The Senate is proving its worth by drawing attention to these things, even if it doesn’t go so far as to use its power to actually prevent them from passing.

In Conclusion

Finding the sweet spot between government efficiency and effectiveness, on one hand, and accountability and transparency, on the other, is no easy task. But we have democratic systems for a reason: we should not leave major decisions to be made by interested parties without having all rights holders have a say. If we weren’t interested in democratic principles and processes, we should have a meritocracy in which the highly educated and experienced members of the public service run the country on our behalf. That would be much more efficient and effective than giving elected officials, who may or may not listen to the advice of the public service, do so. Right now we have the pretence of both public oversight and staff expertise, but neither one is guaranteed when we give a cabinet minister extraordinary powers within a party system that ensures that minister is controlled by their party leader who is inherently subject to the incentives and influences of a winner-take-all partisan system.

We all deserve better than that.