Thursday, January 28, 2010

Harper-Proofing Canadian Democracy: Delegated Authority

One of the areas where the Cons have rightfully faced at least some resistance is in trying to take executive control over an increased range of policy decisions - with a prime example being their move to allow the Minister of Immigration free rein in picking and choosing what immigrants are allowed into the country (which the Libs unfortunately wound up supporting in the end). But there hasn't yet been much attention paid to the question of whether Canada's system of governance is already set up to allow for too much executive power to set policy. And I'd think now would be the time to raise the issue as part of the discussion of the limits on top-down power.

Of course, a complete review of the federal regulatory structure is probably a bit ambitious for a single blog post. But let's look at least in general terms at what can be done to keep more policy-making power in the hands of Parliament - rather than (as the Cons seem to want) limiting MPs' role to deciding whether or not to vote out the current holders of executive power.

Nearly any statute will include regulation-making authority to facilitate the implementation of the policy included in the statute, and I certainly don't object to that. But many also seem to include a broad scope for delegated power to effectively take precedence over the purpose of a particular law - e.g. by dictating how the policy underlying the statute will be applied (as in the immigration categories discussed above), or by allowing for exemptions which undermine the point of a policy (see the Cons' wholesale elimination of environmental assessments for infrastructure projects).

In effect, there's a continuum of delegation ranging from having policy determined mostly by statute with the executive role based primarily on implementing the will of Parliament, to having Parliament set up a series of departmental structures which are close to policy-neutral which can then be used for whatever purpose a particular government sees fit. And it's worth taking a serious look at whether Canada has veered too far toward the latter.

Of course, there's a limit to how much detail can be dealt with by statute. And we know all too well from the climate change experience that the Cons aren't above flat-out ignoring the law of the land if it doesn't suit their mood.

But in order to ensure that the policy actually implemented by Canada's executive branch reflects the will of Parliament, it's still worth defaulting to the position that the purpose of any given area of legislative action should be governed by statute and implemented by the executive - such that broad policy issues worthy of debate in Parliament aren't delegated to be decided at the ministerial level.

In closing, I'll recognize that any suggestion along the lines of the above is bound to be met with the answer that it's easy to impose limitations on government when one actually isn't involved in running it. And in theory, an ideal government might well function more smoothly if it didn't have to clear its policy choices with the people's representatives.

To that, I'd counter that it's equally easy to say we should blindly trust that whoever's in power will do the right thing when one actually holds it (or expects to hold it in the near future). But surely one of the lessons of Harper's stay in power has to be that we shouldn't take the good faith of the executive branch of government for granted - a point which even Michael Ignatieff seems to be acknowledging lately. And if ensuring that Harper and his ilk can't use Parliament as little more than a rubber stamp means requiring governments of all stripes to be more accountable to Parliament, then that's a tradeoff worth making.

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