Reviving democracy

Screen Shot 2020-05-31 at 09.59.26Lorrie Goldstein, a veteran Toronto Sun journalist and a constant critic of Justin Trudeau’s inept management of government, was, I hope, only trying to stir up a little controversy when he said, just the other day, on social media:

 

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My hope is that he was trying, indirectly, to remind us that we, Canadians, and our good friends and neighbours, the Americans, have two distinctly different models of democratic government. The US model, with which, sadly, many Canadians are far more familiar than they are with our own, is a representative system. In theory,  and in practice at some levels, each citizen is represented in each of the coequal executive, legislative and judicial branches of government. Now, the US system was designed in the late 18th-century, based, largely, on some late 17th-century political philosophy. The system was designed to provide a careful balance between branches of government and it was designed when there was a very real fear that full-blown democracy would equal chaos. The system was carefully designed to be very, very difficult to change.

Our, Westminister system is much older and it is very, very revolutionary. It rests on a wholly theoretical notion that we are the Queen’s subjects and that she appoints an executive to govern us, and courts to protect us and that she allows us to constrain her power through a parliament than she summons when she wants our advice. In fact, we, the people, imposed our will on the monarch several times over the centuries, going so far, in 1649, as to kill the king in order to make our point. By 1688 we had, pretty well, established the notion that the sovereign reigns and the people rule, through their elected parliament, subject only to the courts which enforce (and interpret) the laws that the people make in the sovereign’s name.

The wonderful thing about our system is that it’s not written down … that’s one of the the ways that it’s revolutionary. It’s revolutionary because it’s evolutionary. It evolves, day-by-day, year-by-year and century-by-century to keep pace with our evolving view of democracy … which had become more and more liberal over the centuries since the times of the Anglo-Saxon kings and the Witenagemot. But every step in the process is enshrined in our common law.

The other wonderful thing about our system is that it is both representative and responsible: representative OF us and, more importantly, responsible TO us.

The issue of responsibility is what separates the two systems. In the US system, the people elect their representatives, the president, governors, mayors, senators (only elected since the early 20th century) and congressman and state assembly members and city, town and village councillors and (sometimes) judges and sheriffs and police chiefs, too, for fixed terms. Once elected the representatives govern in ways that (we hope) their best judgement suggests are correct. In the Westminster system, going all the way back to before there even was a Westminster, the sovereign must always have a council. Once again this is not written down, anywhere, but it underpins almost everything about any system of democratic government: the head-of=state, the queen or a president, cannot govern by fiat, (S)he must always be guided by a council which represents, however indirectly, the people. Now, in Anglo-Saxon times the council was the Witan and it represented the people who mattered ~ the landowning nobles. At times the Witan even selected (elected? appointed?) the king, himself. By about 1700 the council was, formally, the Privy Council, and a bit less formally, it was a committee of the privy council, called the cabinet, that “ruled” on the monarch’s behalf. The main constraints on that rule were:

  • First, Parliament held, firmly, on to its ancient right to control the purse-strings. No tax could be levied, no monies spent by the cabinet or the king unless pArliament voted for them;
  • Second, the courts ~ wherein judges were appointed by parliament but, once appointed, guarded their own independence with both ferocity and considerable political acumen ~ judged what the laws passed by parliament and the regulations issued by cabinet actually meant; and
  • Third, the cabinet was drawn from parliament and the prime minister, the First Lord of the Treasury, may only govern, in the monarch’s name, so long as (s)he has the confidence of the House of Commons. Nothing, not war and insurrection, not bombs falling on Westminster, itself, and, certainly, no virus, can ever change that. It is an absolutely immutable principle. It’s not written down, anywhere, but the Governor-General and Chief Justice of the Supreme Court and the Chief of the Defence Staff and every other senior official charged with managing Canada understands that it is the absolute “law of the land.” And it is what sets the two systems apart. That’s the other way that our system is responsible. The sovereign’s council can only govern with the active, day-by-day consent of the people. We ~ our elected rrpresentatives ~ can fire our governors at any time.

In America the head-of-state, who is also the head-of-government, is elected for a four-year term, and, as we have just seen, it is (by constitutional design) very, very hard to depose him or her ~ no matter how incredibly stupid or corrupt (s)he may be.

In Canada, the head-of-state is the Queen, represented, locally, by the Governor-Screen Shot 2020-05-31 at 14.16.21General. We, all those with a Westminster model, used a convenient myth that the head-of-state, who is the commander-in-chief of the armed forces, actually “leads.” The notion is convenient because we can mythologize the Queen or the GG and make them what we wish we could all be ourselves: noble and good and brave and so on. We used to talk about “taking the King’s (or Queen’s) Screen Shot 2020-05-31 at 14.21.50shilling” and obeying her or his orders. It was easier to tell men that they would suffer, fight and die for “Good Queen Anne,” or even for “Mad King George” than for, say, Sidney Godolphin, brilliant politician though he may have been, or for Spencer Perceval. Even in the 17th, 18th and 19th centuries politicians were often held in low esteem while monarchs were just as often revered. In the Westminster system, 7a2a78a9c4aad663bce82f05a3e3fbbeScreen Shot 2020-05-31 at 14.00.57we separate the head-of-government function from the person of the had-of-state. The former may be a rascal, the latter is seen to be the personification of all that is good about us and our country. It’s not that the American system is wrong, it’s just different, and it needs different mythologies.

But, the key feature of our system, the feature that makes it both revolutionary and better, is the notion of responsible government.  Because the government, the executive, must be responsible to parliament … it must, always, have the confidence of parliament, and parliament represents the people, in their communities, then we can see than the executive, the government, the cabinet must have the confidence of the people. Now, when it does have that confidence, a Canadian (or Australian or British or German or Indian) head-of-government (prime minister or chancellor) has near-dictatorial power. It’s a bit trickier, depending upon the rules, in a federal state where the federal legislature has two houses: one to represent the people, roughly equally, in their communities ~ the House of Commons or, in French, la Chambre des communes, and the other to represent the people in their sovereign provinces ~ the Senate, in Canada.

While the basics of democracy in Canada ~ the Westminster system of responsible government ~ is sound, there are a couple of serious problems.

A Canadian government must, sometimes, even when it has a solid majority in the Commons, deal with an opposition-led Senate. It doesn’t bother Canadian prime ministers now, because the Senate is in dire need of reform to give it the political legitimacy (it needs to be elected) which will allow it to exercise its proper role ~ asserting the rights of the provinces to contain and constrain the federal government in some specific areas ~ not including the power to tax which lies solely with the Commons. That’s one of the features of Canada’s democracy which, unlike that of, say, Australia or Germany, needs to be reinvented. Canada came to nationhood when people still mistrusted full-blown democracy. The appointed Senate was seen, in 1867, to be a necessary “chamber of sober second thought” which would not allow the more democratic Commons to make rash choices. The US Senate, after which it was named, was also, until early in the 20th century, appointed. By the early 20th century, when Australia become independent, the idea of an elected Senate was popular, and, in the 1940s when the German Constitution was being drafted no one in their right mind would have suggested that the Bundesrat should not be democratically elected.

(In fact, the Bundesrat, where each state’s ‘delegation’ is elected during the state general elections, is the model for how I believe Canada’s Senate should be elected.)

Once the Senate is elected it will make itself effective. The current Senate is 31053117_Chantal_Petitclerc_2017undemocratic … worse it is, by existing, anti-democratic. There are some exceptional people in the Senate, today, there are many distinguished Canadians who serve us well. Maybe some of them would never have stood for election but some would and there are always many, many excellent Canadians who will.

Another important feature of responsible government, one which is in grave danger of actually disappearing entirely in Canada, is a second level of responsibility: the doctrine of ministerial responsibility. This doctrine says, simply, that whatever is done by bureaucrats or officials or soldiers and policemen, for that matter, is the responsibility of the minister and the minister must answer for it, account for it and take responsibility for it. Bureaucrats maybe be called to answer questions, to give information, but their actions are always the responsibility of the minister and if those actions are found to be wrong then the minister must take appropriate remedial action … including resignation. When, in 1993, a Somali teenager was killed by Canadian soldiers while in Canadian military custody a chain of events ensued that ended the careers of several Screen Shot 2020-05-31 at 15.22.47military officers but failed, utterly to hold the political centre to account. In fact, just after the event, Conservative Minister of National Defence Kim Campbell tried to brush the death and allegation of misconduct by the Canadian Airborne Regiment aside. She should have resigned because these events, acts of serious misconduct, occurred “on her watch.” But she was running for the leadership of her party (and she would become, for a short while, prime minister) and her leader, Prime Minister Brian Mulroney, protected her. Mulroney had accepted the resignation of a previous defence minister, Robert Coates, for personal misconduct, but the doctrine of ministerial responsibility was already seriously weakened when Pierre Trudeau had failed to allow or require that e.g. John Munro resign for alleged insider stock trading.

But things got even worse. In 1997, as the formal inquiry into the whole Somalia Affair got closer and closer to examining political actions, Prime Minister Jean Chrétien shut down the judicial Inquiry, which he had created when newly elected, in 1994, in some large part to embarrass his Conservative opponents. He did so, in part, to protect his defence ministers, David Collenette and Doug Young, because the Inquiry’s questions were getting into the area of what happened in headquarters after 1993 ~ i.e. a potential coverup that might have involved Mr Collenette and Mr Young. M Chrétien was quite happy to see soldiers and officers and even admirals and generals sent to collonetteprison but he could not tolerate the idea that the scandal might touch a Liberal minister. In fact, Mr Collennette had already resigned from cabinet, ostensively on an unrelated matter ~ because of a letter he had written to the Immigration and Refugee Appeal Board on behalf of a constituent, which was a matter worthy of resignation, but many Ottawa insiders suggested because the Inquiry was getting closer and closer to him And the cabinet and the dreaded word: coverup. (I was only a colonel, but I heard those whispers in the hallways on the Executive Floor when (not too often, thankfully) I had occasion to visit.) 

Mr Collennete’s travails illustrate two important features about ministerial responsibility:

  • First, he resigned, officially, for what is, today, the only “good” reason left: he was caught doing something personally improper; and
  • Second, his resignation resulted in only a short visit to the backbenchers. Prime Minister Chrétien, very properly, returned him to cabinet after six months.

Both actions were entirely appropriate.

Should Kim Campbell have resigned over something that happened thousands of miles away, on a military operation, far from her direct control? Yes! Her personal honour and honour of the crown demanded no less. She was in no way even remotely in the “chain of command” but she wanted to be the Minister of National Defence, responsible for the Department of National Defence, which includes the Canadian Armed Forces. When Canada’s sailors, soldiers and air force members do well the minister is always front and centre to share in the glory. When the Forces screw up, as they did in Somalia, in a big way, the minister needs to be front and centre again, accepting political responsibility. It might not have killed her party leadership bid. Resigning, doing the honourable thing, taking responsibility, might have enhanced her reputation … we’ll never know. While the case is extreme, it was the kind of thing that in an earlier era, even in the Diefenbaker era, would have resulted in a resignation and a temporary ‘tour’ on the backbenchers for a valuable minister, which Campbell was.

Those are, in my opinion, the two things wrong with parliamentary democracy in Canada. How many votes each leader or each party got is totally irrelevant. In our system what matters is: can the leader of a party secure the confidence of the House of Commons? If (s)he can then (s)he can govern, if (s)he cannot then the Governor-General must find a new leader or call an election. It’s an elegant system; it’s revolutionary in the sense that the elected government can be thrown out of office if it loses the support of members, including from its own party. It’s evolutionary in the sense that its roots are almost 1,500 years old and it changes, ever so slightly, year-by-year, and, every now and again, in major ways ~ think 1688. It is also, and this is its key advantage over the US system, responsible in addition to being representative.

 

 

 

3 thoughts on “Reviving democracy

  1. Dear Sir,
    I am working with the High Commission of India in Canada, Ottawa and would like to get in touch with you by email or telephone. Please do drop us a line if that is convenient.
    Warm Regards

  2. Canada’s pretensions to having a Westminster representative government were defeated in the Canada Elections Act of 1970. We now have an executive-led government.

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