AN OMNIBUS IS A BUS
We are meant to be living in a parliamentary democracy. Central to this system is the power of Parliament through the confidence it gives and takes away from governments. But the other equally important power is Parliament’s obligation to examine, one by one, each proposed change or initiative.
In most cases, that process of examination is far more important than the technicality of a parliamentary vote. Of course there must be votes in order to convert proposed legislation into law. The vote is the punctuation of the democratic parliamentary sentence. The sentence itself is the debate. The vote finishes the sentence. But the content that produces the punctuation is the debate.
Why one by one? So that the representatives of the people can focus on the topic of each law. This matter of focus is particularly important. It is how the intelligence of democracy works. We do not merely receive leadership, as in authoritarian regimes. We constantly consider leadership. And so the topic of each proposed law is focused on and examined, clause by clause. Time is taken. This is a slow process. It is meant to be slow. Speed, except in an extreme crisis, is not a characteristic of democracy, and certainly not of parliamentary democracy. It takes a great deal of time to flesh out ideas, intents, positives and negatives, and to flush them out into the broad public domain so that citizens hear about them and have time to think and consider and gradually express themselves.
We all know that these parliamentary powers – of bestowing and taking away confidence in a government, of examining and deciding on laws – have been weakened over recent decades by the rise of highly formalized political parties. The real power has slipped more or less to the prime minister’s office and the bureaucracy. And this is more or less the case in parliamentary democracies all over the world.
Commentators on power and those who exercise it have gradually and correspondingly downplayed the importance of debate and discussion. More precisely, they have denigrated language as the means by which we work out what to do, reducing it to the declarative, the assertive, the formulaic. And so they have increasingly criticized both Parliament and parliamentarians for wasting the time of the experts, who just want to get on with running things. In other words, those who believe their job is to be efficient and to reward efficiency criticize Parliament for its inefficiency. This innocuous argument may sound vaguely familiar. It is, of course, the latest version of Mussolinian corporatism. Making the trains run on time, as they used to say. It is a rejection of functioning democracy in favour of narrow delivery systems. This in turn can be made less boring by the distraction of heroic leaders, which increasingly means celebrity leaders, or leaders who affect the characteristics of celebrities. If they can’t make themselves appear heroic, they can rely on the mechanisms of plebiscite government and, as I mentioned a few pages ago, on the cheap exploitation of populism and nationalism.
The democratic position can be summarized in two points. First, parliamentary power carries with it the power of the people through the government’s having the confidence of the House. Second, the idea of giving and taking away that parliamentary confidence may work differently today because of the formalization of political parties, but the principle of confidence remains a fundamental characteristic of parliamentary democracy. To see it fully in action you need only elect a minority government. Prime ministers and their offices hate minorities, as do the technocrats – whether public or private sector. Curiously enough, so do most commentators. They are all addicted to the corporatist or Mussolinian idea of efficiency. What this tells us is that the ability to examine pieces of legislation slowly, one by one, is probably even more important today in an era of technocracy; that is, an era when experts are resistant to being examined by generalists. There is now a desperate need to parse the mechanisms of power.
So this is a time when ideologues can hide behind the dominant mythology of efficiency in order to run roughshod over Parliament, as if they were acting in the public interest. How? By saving time and therefore money. How? By not wasting time on debate. On words. On ideas. On consideration. The impatient taxpayer overrides the concerned citizen, as if self-interest overrides the obligation of the citizenry and of their elected representatives to protect and advance the public good.
It is true that a transparent parliamentary discussion of legislation may not lead to governmental defeats in Parliament when the moment comes to vote. But these debates do lead to public awareness. And that can make a government’s situation untenable. Some might say that that also is no longer so, that no one follows parliamentary debates. In fact it all depends on which debate, on how these debates are treated by the debaters and by the press. Taken seriously, they can have a serious effect. And even when they seem to be being ignored, ideas are nevertheless being brought into the light. You could say that debate liberates ideas from the confines of the inward-looking specialist processes and from the ideologues’ insistence on superficial phrases of purpose and inevitability. Like a flock of game birds hiding in the long grass of expertise, ideas are indeed flushed out by debate and forced to fly up into the public air.
We never really know what will happen after that, how we the public will embrace certain ideas and reject others, fixing on them and shooting them down. Or how we then decide to punish those in power who have ignored our indications of displeasure. That openness is part of the citizen’s mindset, of the indirect effect of parliamentary democracy.
The plebiscite or referendum system of government is quite different. It is the Napoleonic or heroic model, in which the government assumes a black-and-white version of power. This always involves marginalizing all other competing institutions, such as Parliament. It also means that power must override authority, which is the domain of the head of state, or, in the Canadian case, the authority of the Crown – that is, the people – which resides with the effective head of state, the governor general. In other words, in a plebiscite system of government, the citizen is left to vote once in a general election – for or against – then to sit back for four or five years, leaving those in power with a generalized mandate to do what they want. It is a form of direct democracy, if you like. The exact opposite of parliamentary or indirect democracy.
Let me put this another way. Direct democracy without strong countervailing forces is not democracy. That’s why the U.S. system of government limits the direct power of the president with three – originally four – strong counterweights: the Senate, the House of Representatives and the Supreme Court. The state governments used to be more of a counterweight. Now you might say they simply have different responsibilities.
This comparison of Canada with the United States is important because the accelerating use by Canadian governments of gigantic omnibus bills as catch-all mechanisms is taken directly from the U.S. Congress. The Canadian omnibus bills are now presented as Budget Implementation Acts, as if they were coherent outcomes of the budget. In fact, much of the content is not budgetary, or only marginally so. They are policy items. And there is no common or integrated theme.
Worse still, the detailed examination of the contents is controlled by the Finance Committee, while the subjects being examined are about the environment or transportation or whatever. These are very different policy items requiring separate acts of Parliament in order to permit proper debate and proper examination in the appropriate committee – in other words, proper fleshing out of the different ideas in each act.
The concept of a vast potpourri of ideas bundled up in a budget bill comes directly from the Congress’s approach to budgeting. Their budget bills are a grab bag of items. But in their case there is a good reason. The American budget bills are the outcome of long, hard-fought battles in Congress and Congress committees over government spending. The outcome may be a cynical compromise – a bridge offered here in return for an airport there. It may be filled with contradictions and basely political. But it is the result of a fully fleshed-out debate and committee examination. It is the result of a balanced democratic process.
The Canadian imitation is completely different. It is all about removing any possible counterweights, about eliminating most debate. It constricts committee examination. Canadian omnibus bills have been turned into an expression of raw power – the will of the government organized to minimize the role of Parliament and to short-circuit public debate. The democratic function is eliminated as a reality. What remains is pro-forma voting. A pastiche of parliamentary democracy.
And so the form now taken by Canadian omnibus bills does not belong to parliamentary democracy. It belongs to the referendum or plebiscite system.
Does that mean there can be no omnibus bills in a parliamentary system? Not at all. A small omnibus bill with a coherent policy theme can fit into parliamentary traditions. A massive catch-all omnibus bill disguised as a Budget Implementation Act belongs to the plebiscite system. In between there is less clarity. With Bills C-38 and C-45, we are clearly in Napoleonic plebiscite territory.
Let me explain this situation a third way.
Some people argue that we should all relax. Not only does parliamentary debate not matter, but omnibus bills have been around for almost half a century; were invented by Pierre Trudeau with his 1968 Criminal Law Amendment Act. Every government since has used the omnibus mechanism as a sensible way to speed up and make sense of the arcane parliamentary process.
This is an intentional misrepresentation, which is to say, it is a lie.
What is true is that governments have long created packages of laws, probably since 1888, when two railway agreements were linked. The point is obvious: parliamentary omnibus bills were about putting together legislation linked by a single theme. Trudeau’s 1968 law was concentrated on reforming criminal law, with a special focus on expanding personal rights and privacy. In 1971 there was a major departmental restructuring. In 1982 there was an energy sector act.
In 1988 a Liberal speaker of the House approved the Free Trade Act, ruling that an omnibus bill must have one basic principle or purpose that ties together the proposed enactments and thereby renders the bill intelligible for parliamentary purposes. Why mention that the speaker was a Liberal? Because the government was Conservative, which highlights just how non-partisan the ruling was.
Even within this principle, Parliament has often been uncomfortable with such limitations on the people’s right to have their representatives debate legislation. So in 1982 the House forced the division of the omnibus bill into eight separate pieces of legislation.
These are not technical fights. They are fundamental issues of democracy. They tell us why the omnibus bills of the last few years are radically different from what came before.
The plebiscite or referendum form of government to which I have been referring first developed into a modern alternative to democracy under Napoleon. The idea was that the legitimacy of government would be transferred from the people to the government via periodic mass votes. In between there was no need for debate. There was no need to parse policy.
This approach was refined by authoritarian governments throughout the nineteenth century and on into the 1930s. By then it had been formalized as a characteristic of populist governments, an approach now associated with Argentina’s Peronism.
Is this really relevant to what is happening in Canada? Is the change in the type of omnibus bill really so great?
The answer lies in straightforward comparisons. For example, the single-theme omnibus bills of the late-nineteenth century through the twentieth averaged seventy pages in length. The recent omnibus bills average three hundred pages. In 2012, Bill C-38 – in which the stripping of protection from fish habitats is mixed up with unemployment insurance eligibility – was 425 pages long with 753 clauses changing 69 unrelated laws. In the same year, Bill C-45 was 457 pages long and used 516 clauses to amend 64 laws. These ranged from stripping the environmental protection from rivers and lakes to altering public sector pensions.
The outcome is clear. In twelve months, Parliament was bullied into radically altering 133 largely unrelated laws through two acts. There was very little debate.
This was a direct negation of our democratic system. Napoleon would have approved. Mussolini would have been jealous. Peron would have been filled with admiration.
Please forgive this bit of boring political science 101. But the odd thing is that the political scientists remained pretty silent during the events of 2012. Is it that they have fallen into a cynical mindset? Or have they become so obsessed by themselves as scientists that they have channelled their intellect into a microscopic measurement of power – the way the television camera has reduced the apparent complexity of hockey by fixating on the puck? And so, in an academic version of the Wayne Gretzky dictum about skating not to where the puck is but to where the puck will go, most of them seem to follow what happens rather than seeing what should or could or ought to happen in the context of the system. Or perhaps most of them have simply lost the habit of intervening in public, as if it were beneath their dignity. If so, this is part of the crisis of academics withdrawing from public commitment and so betraying the central purpose of their tenure, which exists for the precise purpose of giving them the independence to intervene publicly without the risk of being fired.
Some NGOs did raise their voice. A bit. Rather primly. Very quietly. Certainly not insistently. Rarely in the street. Civil society too has become a world of professionals. Technocrats for the good, but nevertheless technocratic. Or are they afraid that the new rules surrounding charitable status – without which it is difficult to raise money – actually represent a politicization of the sector by the current government? That if they speak up clearly on public issues they risk having their charitable status removed or finding themselves being audited every year, at great expense, to say nothing of the waste of time? Is this really happening to respectable civil society organizations? Yes it is. Has the arm’s-length relationship between political power and public administration – the firewall that has been central to the functioning of modern Canadian society – actually been removed? There is evidence to this effect.
I should add that this concept of the arm’s-length relationship has been what separates a small group of democratic countries from the many authoritarian regimes and from those weaker democracies that believe political power carries the right to politicize public programming by helping your friends and punishing your enemies. Countries that believe in the arm’s-length principle have more active and outspoken citizens, a more vibrant democracy, a fairer society. If, as it appears, Canada is being shifted from the arm’s-length model to one in which power gives all rights, then we are at a dangerous turning point.
It was Aboriginals – through the Idle No More movement, through the frustration of youth, through a wave of new voices across the country, through their AFN leadership – who raised their voices, went into the street, took personal action, seized every opportunity to speak up.
Their message? Our system is being changed in a profound way. Democratic permission has not been given for such changes. Parliament has been denied its fundamental responsibility of free speech; that is, of normal, full debate. And this to an unprecedented degree.
As I have already said, this latest move of public interventions by indigenous peoples needs to be seen as a sign of self-confidence, a sign of their comeback, of their willingness to take the lead.
In situations like these, all of us who do not go into the streets, who do not directly engage in some verbal or physical way, begin by seeing ourselves as outsiders or simple observers. Perhaps as concerned observers. Some among us then lose interest. We go back to our daily routine. Others become annoyed. They see themselves as free-floating individuals. Whatever they do, whatever their routine is, trumps the actions and needs of everyone else. In a sense they have inverted the ethical idea that a society is a place in which the actions of an individual should not harm other individuals. The broad, humanist idea that individualism is about involvement in the shared public good is thus reduced by the self-absorbed and easily annoyed among us to mean that we must not be inconvenienced in our habits. And these sacred habits may vary from our daily needs to go driving and shopping to our unimpeded right to serve our own interests, even if fellow citizens are left to suffer. In this twisted scenario, those who are protesting against wrong being done to them or who are willing to make sacrifices for the broader public good are converted by the annoyed, self-obsessed observer into selfish people getting in the way of average citizens who wish to go about their normal lives undisturbed.
What we saw developing around Idle No More was that many Canadians, not normally involved in Aboriginal issues, began to feel themselves involved and concerned. They began to see themselves as somehow part of what was being said in the streets. True, they did not at first get up and go into the streets. But in conversations everywhere you could hear people worrying, somehow trying to understand the arguments being put forward. This could indicate a real step forward in the national psyche. And remember, it all happened during the winter. For Canadians, there is something particularly convincing about people going into the streets in the winter and staying there.
When I talked at the time with young First Nations leaders across the country – professors, businesspeople, professionals, writers, politicians – they were excited about Idle No More. Not necessarily by the organization itself, which might morph into something else or into many new things. And not necessarily because they believed it had the answers or could succeed in some dramatic way. But because it showed the breadth and depth of commitment in their communities. A grassroots commitment to the public good. And it showed a widespread determination by a new generation to be heard, to be part of a serious discussion of the future.
This generation feels that it is on the move. Its members are not prepared to live with disappointment. What if Canada, through its various leaders, fails to seize this opportunity? Fails to listen? To discuss? Fails to work, through a broad, transparent negotiation, toward a sense of resolution, a sense of concrete respect and creative progress? What if Canada wraps itself in an omnibus approach to power? Plebiscitary? In effect Napoleonic? Well then, Canada will have forced this burgeoning Aboriginal leadership into a renewed sense of exclusion. It will have produced – quite unnecessarily – a whole new phenomenon of bitterness. And this anger and disappointment, this loss of hope, will be solidly built upon a foundation of one hundred and fifty years of betrayal, anger and disappointment. Is this really what Canadians want? To confirm to young Aboriginals that their only possible relationship with Canadian society is one of negativity and bitterness? The obligation of those with power is to avoid such a situation. If they do not, we will all suffer greatly. The obligations of citizens is to make it clear that Aboriginal issues are central to our public concerns, that we want them dealt with in a fully democratic context of openness and justice, that we will vote accordingly.
The flow of history is reinforcing the position of Aboriginal peoples. This is a historic and a human opportunity. To attempt to deny or to turn back such a moment of creativity would be self-destructive for Canada.