Parliament's lost promise

By Robert Sibley
Oct 11, 2008

When the Fathers of Confederation stitched Canada together out of the remnants of Britain's North American colonies, they gave little thought to the notion of a Canadian "national" identity. All of them, including French-Canadian politicians, saw themselves as British subjects. They rejected following the American constitutional model. Sovereignty was not to be found in abstractions like "we, the people." For Canada's 19th-century founders, political authority and legitimacy ultimately had to rest in a concrete institution, namely Parliament.

"The Fathers and legislators regarded Parliament as more than an institution necessary to union, more than a mechanical device, as it were, to bring the provinces together," says Janet Ajzenstat, a political scientist at McMaster University. "They thought that Parliament would define the nation ... (and) give them what we now call an 'identity'."

This idea was at the heart of Canada's political history, at least until recently. We are (or were) a nation of institutions, not identity. Canada constituted a "political community" characterized by institutional arrangements intended to mitigate those divisions -- language, religion, culture and geography -- that would threaten its survival. The federal government's fundamental task was to sustain this political community through the prudent stewardship of its institutions.

Not any more, it seems. According to scholars, successive federal governments, whether Liberal or Conservative, have done a poor job in recent decades of maintaining Canada's political institutions. As far back as the 1970s, Donald Smiley, one of Canada's pre-eminent political scientists, argued that "the ineffectualness of the apparatus of the central government is overwhelming and palpable to any person who is exposed to Ottawa even briefly."

Things haven't improved in the intervening years, says Donald Savoie, a political scientist who specializes in institutional analysis. In a series of books and essays written over the past decade, the University of Moncton professor argues that Canada's major institutions no longer fulfil their functions as well as they should. "The chain of accountability, from voters to MP, from MP to prime minister and cabinet ministers, from ministers to the heads of government departments and agencies, and from senior civil servants to front-line managers to their employees, has broken down."

Does this situation constitute a crisis in Canada's political order? Political philosophers define "crisis" as that condition in which the concepts by which we arrange our social and political existence no longer make sense. When the institutions overarching our daily lives -- legislatures, political authorities, courts and bureaucracies -- no longer provide a coherent sense of meaning and order, well, that's a crisis.

By this definition, Canada has arguably been in crisis mode for a long time.

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Canadians haven't heard much about this institutional crisis during the election. The topic was not broached in the leaders' debates. There's been little commentary in the media. And with the exception of the Greens, the parties' platforms contain only minimal references to institutional concerns.

The New Democrats promise "to ensure every vote counts" by introducing electoral changes that would mix a system of proportional representation with party representation. They reaffirm their intentions to abolish "the undemocratic and unnecessary Senate." They also promise to introduce legislation that would forbid MPs from joining another party without first resigning their seat and running in a byelection.

The Conservatives' institutional platform is even more minimalist. They reiterate their intention to reform or abolish the Senate. They, too, promise legislation to "move closer towards representation by population in the House of Commons for Ontario, British Columbia and Alberta, while protecting the seat counts of the other provinces." There's also a promise to "reform" appointments to federal agencies, boards and commissions.

The Liberals offer even less. The party's platform refers to the need for "respectful federalism," and then takes three paragraphs to slag the Conservatives for "three years of a disrespectful and aggressive approach to federalism." The Liberals' attitude, it seems, is "crisis? What crisis?"

The Green party's platform offers more, but it largely repeats the party's 2006 commitment to "Reviving Good Government." For example, the Greens want to replace the current electoral system with a proportional representation system. "The Green party believes that it's time to get past the first-past-the-post system and build a House of Commons that reflects Canada's multifaceted population." The party also proposes, among other items, replacing the ethics commissioner, who reports to the prime minister, with an independent Ethics Commission that would report to Parliament, requiring MPs and their staffs to be trained in "the basics of good management and ethics," and lowering the voting age to 17.

Clearly, institutional reform is not a hot-button topic in this election. This is puzzling, considering that Conservative leader Stephen Harper is the most reform-minded prime minister in recent decades, at least when it comes to the country's political institutions. He even wants to boost the number of MPs. Bill C-22 would add 22 seats to Parliament to reflect population growth across the country. Under the legislation, British Columbia would receive seven more seats, Alberta five and Ontario 10 -- far fewer than the 21 new seats Liberal Premier Dalton McGuinty thinks the province should get.

But the "reform" Mr. Harper really wants is the reconfiguration of the Senate. He regards the Senate as lacking democratic legitimacy because its members are appointed by governor-in-council on the recommendation of the prime minister (which, of course, means they are the prime minister's pick). However, his government's minority status has stymied efforts to push two Senate reform bills through Parliament. Bill C-20 would give provinces the opportunity to hold elections to produce senatorial candidates from among whom the prime minister would make his choices. Another bill, C-19, would limit senators' terms to eight years. The bills will likely be back on the legislative agenda if the Conservatives are re-elected. Should those "reforms" be approved, it would be the biggest change to Canada's parliamentary system since Confederation.

The question, of course, is whether Senate "reform" would ease Canada's institutional crisis. Or would there be unintended consequences?

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The Fathers of Confederation thought they were averting a crisis when they established the Senate. The House of Commons was intended to provide electoral representation in proportion to provincial population, but the Senate was formed of equal numbers of members from Quebec, Ontario and the two Maritime provinces that initially joined Confederation. As Donald Smiley pointed out, the founders assumed the Senate's capacity to represent regional interests would make it an integral part of a "national" parliament. Unfortunately, says Mr. Smiley, the Senate has "never been an effective outlet for provincial attitudes and interests."

Constitutionally, the Senate has nearly the same powers as the Commons, except that it cannot initiate appropriation and tax bills. In practice, the Senate seldom rejects bills approved by the Commons. It generally delays legislation by proposing amendments (although the Liberal majority in the Senate enjoyed hamstringing the Mulroney government in the late 1980s). However, the Senate has one feature that makes it unique in the world of legislative structures. Many countries have bicameral legislatures -- a popularly elected lower house and an upper house that provides for some form of regional representation. In most countries, the members of these second chambers are either elected or delegated by sub-national governments or legislatures. In Canada, however, as political scientists Robert and Doreen Jackson observe, the Senate "is the only legislative chamber in the western world whose members are all appointed."

Therein lies the "crisis" of the Senate. The upper chamber is often mocked as a retirement home for "layabouts," "bagmen" and "cronies." Behind this mockery is a deeper issue: Many treat the Senate as an "object of ridicule," to quote former prime minister John Turner, because its members are not elected. In an age that genuflects before the democratic principle, unelected lawmakers lack legitimacy. "The prime minister's power over the appointment of senators is the source of the Senate's greatest lack of legitimacy and the greatest barrier to Senate reform," says political scientist Campbell Sharman of the University of British Columbia.

Politicians are reluctant to surrender power, but Mr. Harper appears willing to do just that, at least to some degree. He makes no secret of his dislike for the Senate's by-appointment-only roster. But he needs provincial agreement for constitutional change to restructure the institution. That hasn't been forthcoming, particularly from Ontario and Quebec. They like things the way they are because the two provinces dominate the Senate's 105-seat composition, with 48 seats between them. The three Maritime provinces and the four Western provinces also have 48 senators. (Newfoundland and Labrador has six senators, while Canada's three colonies, Yukon, Northwest Territories and Nunavut, each have one.) Westerners think they are being shortchanged, considering their growing populations and increasing economic clout. They regard Senate "reform" as a way to compensate for central Canada's political dominance.

Caught between the cleavages, Mr. Harper tried an end-run. Bills C-19 and C-20 effectively allow Senate "reform" without the need for constitutional change. Mr. Harper's legislation was intended to pressure all the provinces to follow Alberta's precedent-setting senatorial votes. He's also refused to appoint senators when a seat becomes vacant.

This latter tactic has created a significant gap in the senatorial ranks. Mr. Harper has appointed only two senators -- Quebecer Michel Fortier and Bert Brown, the elected candidate from Alberta -- even though a significant number of vacancies have occurred since the defeat of the Liberals in 2006. (There may be another if Mr. Fortier wins a Commons seat on Tuesday.) Currently there are 16 seats vacant, including four from Quebec and two from Ontario. That number is sure to grow as more senators hit the mandatory retirement age of 75.

If the Harper government wins re-election the Senate will increasingly become an echo chamber, exacerbating the institutional crisis, says Roger Gibbons, head of the Canada West Foundation. "Attrition is whittling down the number of senators to the point where the Senate's functionality will soon be called into question. There will be legal and political challenges to fill Senate vacancies and, as legislative conflicts between the House and the Senate increase, the wheels of government will turn even more slowly." (Quebec Premier Jean Charest has already threatened court action should Mr. Harper proceed with his Senate reform plans.)

Why would any prime minister want to make a parliamentary institution more dysfunctional? Moreover, why would any government want a Senate made up of elected members? Possessed of a heightened sense of legitimacy, elected Senators wouldn't necessarily see themselves beholden to the prime minister. Their partisan or regional attachments might well be at odds with the prime minister.

But perhaps Mr. Harper is employing the principle of creative destruction. "There is also the possibility that the Harper government is playing a very long game," says professor Sharman.

"If several provinces agreed to hold Senate nominee elections and it began to look as though there would be sufficient partisan representation from those elections to affect the partisan balance in the Senate, alarm bells would ring in party headquarters and premiers' offices across Canada. This may provide the background for concerted moves for substantial constitutional reform of the Senate to reduce its powers and, perhaps, to modify its composition."

An elected Senate would undoubtedly change Parliament, as well as the workings of federal and provincial governments. There might also be unintended consequences. An elected Senate could clash with the Commons for power and influence, resulting in even greater institutional dysfunction, and the weakening of the federal government in favour of provincial governments.

With this in mind, some scholars urge caution. "The advocates of election never specify what functions the new Senate would perform," says University of Saskatchewan professor David Smith. "Would an elected, equal and effective Senate ... be in a position to block a government's legislative agenda?"

Thus, Senate "reform" may not be the be-all, end-all to institutional reform. But then it is not the only source of institutional crisis.

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One of the reasons Mr. Harper gave for calling an election was that the House of Commons was not working. "We have an increasingly difficult parliamentary situation because we have increasingly divergent views on a range of issues, whether it's the economy, the environment, the criminal justice system, the view of our country in the world," he said.

Others have made similar observations. "The Commons has become increasingly dysfunctional," editors at the Saskatoon StarPhoenix wrote in a recent editorial. "While mindless shouts and insults always have been a staple of question period, even the mindless insulters have started to complain about the incivility in the place during the terms of the past two minority governments."

A politician attacking another is, of course, nothing new. But there was a time when MPs abused each other during question period only to dine together in the Commons cafeteria. Nowadays, though, the insults are personal and vitriolic. As the StarPhoenix put it: "The House wasn't dysfunctional in terms of governing so much as in terms of human interaction."

This is not good, say scholars. "Parliament is the most vital democratic institution that we have in this country," says Donald Savoie.

"The one institution that links St. John's, Newfoundland, to Victoria, B.C., is Parliament ... (But) Parliament is not working ..."

How has it come to this? Mr. Savoie traces the responsibility, in part, to the Prime Minister's Office. The PMO's stranglehold on power reduces members of Parliament to "nobodies," as Pierre Trudeau once put it.

This breeds the kind of impotent frustration that degenerates into insults and accusations that would get MPs sued if uttered outside the Commons.

Mr. Savoie describes this centralization of power as "court" government; that is, government in which the "king," or prime minister, no longer relies on cabinet ministers or public servants for policy-making advice. Rather, a small group of "courtiers" help the prime minister formulate policy. Power is stripped from Parliament and cabinet as a whole, and taken up by a handful of advisers, friends, lobbyists and, perhaps, trusted cabinet ministers who serve at the prime minister's pleasure.

Canada's "court" government began with Mr. Trudeau and his notions of rational government, says Mr. Savoie. "Cabinet decision-making as we knew it up until the (Lester) Pearson era doesn't exist." It's gotten more centralized ever since. "Prime ministers Trudeau, (Brian) Mulroney, and (Jean) Chrétien all pretty well decided on their own and on the advice of their senior advisers at the centre of government what needed to be done ... If a line department did not cooperate fully, Trudeau simply established an 'ad hoc group of officials' at the centre to advise him ... Both Mulroney and Chrétien followed in Trudeau's footsteps."

So, too, did Paul Martin and Stephen Harper, says Mr. Savoie. Mr. Harper, he says, has taken prime ministerial authority to a "new level of centralized command and control." For instance, the prime minister used his authority to fire Nuclear Safety Commission head Linda Keen. "Effective power now rests with the prime minister and a small group of carefully selected courtiers."

Centralization of power in the PMO undermines the institutional sovereignty that the Fathers of Confederation hoped would accrue to Parliament. But it hasn't helped that MPs acquiesced to their "nobody" status. As Mr. Savoie says, "much of Parliament's decline has been self-inflicted."

Unlike American congressmen, MPs are not elected to govern. That is not the intention of the Canadian parliamentary system. They are elected, says Mr. Savoie, "to hold those who govern accountable for their policies and decisions." Unfortunately, parliamentarians seem no longer able, or willing, to do this job. Mr. Savoie argues that the current fashion for setting up "officers of Parliament" -- budget and audit officers, along with information, privacy and ethics commissioners -- amounts to a de facto surrender of parliamentary responsibility.

"Parliamentarians, it seems, have turned over much of their accountability responsibilities to officers of Parliament and to the media," says Mr. Savoie. These officers try to find something wrong, and, no surprise, there is always something wrong to be found. "The result is that those in government have several independent voices constantly overlooking their shoulders from different and at times conflicting perspectives (say, privacy versus access to information)."

Naturally, opposition parties regard these officers as their "natural allies," and don't challenge them, much less hold them to account, says Mr. Savoie. If MPs on the government side dare to question these officers' work, the opposition -- and the media -- accuses them of partisan self-interest. Nobody, it seems, watches the watchers. "It is no exaggeration to say that what an officer of Parliament writes is often taken as gospel, but what a government minister or official says is invariably regarded as self-serving or as posturing." The consequence, Mr. Savoie suggests, is that MPs no longer fulfil their primary function of holding government to account, thus justifying Mr. Trudeau's description.

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So, what is to be done? Mr. Savoie argues that the roles of the prime minister, cabinet, and the public service need to be examined with a view to redefining them, in law if necessary. "The relationship among Parliament, the prime minister, ministers and public servants is in need of repair, and we are ill-served by pretending that all is well. We should no longer tolerate court government, by which a political leader with the help of a handful of courtiers shapes and reshapes instruments of power at will."

Mr. Savoie argues that MPs can reinvigorate Parliament by recognizing it as the crucial linchpin in the Canadian political order. "The time has come to engage Canadians in a debate on the role of Parliament, officers of Parliament, the prime minister, cabinet and the public services, and for Canadians and public servants to tell Parliament, 'Heal thyself'." The point isn't merely to rebalance power, but to recover the role of Parliament that the Fathers of Confederation envisioned for the institution.

This is Janet Ajzenstat's point, too. Generations of Canadians have been taught to think of Canada's founders as a dull lot, philosophically speaking. The businessmen-cum-politicians -- "pragmatic lawyers" and "railway buccaneers," as scholars have described them -- who created Canada were interested in profit and power more than first principles and national purpose. Not completely, says Ms. Ajzenstat.

The founders understood issues of cultural diversity and national identity, she says. But their purpose was to secure an institutional order that could provide conditions of law and order. They rejected the idea of trying to impose a national identity not only because the English-speaking and French-speaking colonies couldn't agree on what that identity should be, but also because "a substantive identity is inevitably exclusive, favouring the founding peoples over latecomers, the majority over minorities."

Instead, Canada's founders established an institution, Parliament, to promote the essentials of civilized order -- the rule of law, equal rights, justice, and civil peace. "Our national identity rests on the fact that our national institutions are inclusive," Ms. Ajzenstat concludes. "All are subject to the rule of law. Parliament speaks for all."

Admittedly, parliamentarians often fail to live up to this ideal. But it hasn't helped that Parliament's inclusive potential has been undermined by all-powerful prime ministers, an unelected judiciary that presumes to dictate policy, interest groups devoted to narrow causes, a media that reduces politics to "gotcha" entertainment, and parliamentary officers that, it seems, are beyond scrutiny. If Canada's institutional crisis is ever to be resolved, Canadians need, in Mr. Savoie's words, "to make Parliament resonate again as a national forum."


Selected Sources

Janet Ajzenstat, The Canadian Founding: John Locke and Parliament, 2007, and The Once and Future Canadian Democracy, 2003.

Roger Gibbons, "Senate reform sure to surface as critical issue," Saskatoon StarPhoenix, Aug. 29, 2008.

Robert and Doreen Jackson, Politics in Canada, 2nd edition, 1990.

Kathryn May, "Time to stop prime ministers from ruling like kings, expert says," Ottawa Citizen, May 5, 2008.

Donald Savoie, Court Government and the Collapse of Accountability in Canada and the United Kingdom, 2008, Breaking the Bargain: Public Servants, Ministers, and Parliament, 2003, and Governing from the Centre: The Concentration of Power in Canadian Politics, 1999. Also, "The broken chain of accountability," Globe and Mail, May 17, 2008.

Campbell Sharman, "Political Legitimacy for an Appointed Senate," Institute for Research on Public Policy, September 2008.

Donald Smiley, Canada in Question: Federalism in the Eighties, 3rd edition, 1980,

David Smith, The Canadian Senate in Bicameral Perspective, 2003, and "Senate reform must be orderly," The StarPhoenix, Dec. 12, 2003.

The StarPhoenix, "Blindly backing Senate changes can harm Sask.," May 24, 2008.

© The Ottawa Citizen 2008