Virus poses big challenge to democracy
Are Canada’s governing institutions functioning as they ought to in this time of global crisis?
Canada is often envied at times of crisis for the ability of our governing institutions to act decisively without sacrificing the quality of our democracy or the principles of good governance. Politicians and public servants are trusted to serve the public interest and our institutions are intended to make sure they do.
In the time of COVID-19, are our governing institutions actually functioning as they ought to? The Queen’s University School of Policy Studies has created a Governance Working Group of leading scholars and practitioners to help answer that question.
In a series of weekly opinion pieces, it offers insights into the operation of the legislative, executive and judicial branches of our government, focusing on federalism, constitutionalism, the rule of law, ministerial responsibility and accountability. How are our governing institutions shaping and being shaped by the coronavirus challenge? What does this portend for the governance of Canada?
Today: Is the executive evading parliamentary scrutiny?
In early 2019, during what is now known as the SNC-Lavalin affair, Canadians were able to watch, day after day, as opposition MPs grilled the Liberal government about potential political interference in the workings of the justice system. These MPs posed a series of uncomfortable questions during both committee hearings and House of Commons question period. Requests from the opposition also prompted an ethics investigation that found the prime minister had indeed tried to “circumvent, undermine and ultimately discredit” the independence of the director of public prosecutions.
For Canadians, it was an illustration of why Parliament matters. Yet, during the COVID-19 crisis, Parliament has been mostly relegated to the sidelines.
Canadians expect their prime minister to be front and centre during a crisis such as the novel coronavirus pandemic, but few demand a more central role for Parliament. Calls by the opposition parties for more involvement in policy-making during this period have been dismissed too easily — and it may hurt Canadians in the long run.
This unfortunate oversight is, ironically, due to the very nature and good functioning of our governing institutions. A strength of the Canadian political system is that the executive, embodied in the prime minister and cabinet, is empowered to act decisively and efficiently. In both majority and minority government situations, one key duty of Parliament is to pass the executive’s legislative agenda. These clear roles for a strong executive and a supporting legislature ensure order and undisrupted governance even during emergencies.
This strength of our system was evident when the government, reacting to the effects of the economic shutdown, proposed emergency legislation and Parliament reconvened to pass it, authorizing massive government funding to help Canadians cope. The executive acted quickly and Parliament supported this decisive action, as both should have.
To ensure the prime minister and cabinet don’t become too powerful, however, Parliament has a second important duty — one often undervalued. Parliament must hold the government to account for its decisions and actions.
Opposition parties normally perform this function by asking tough questions in the House of Commons during question period; debating the Throne Speech; scrutinizing the budget and fiscal updates; or bringing government witnesses before Commons committees. Recall then-Conservative MP Lisa Raitt’s methodical questioning of former justice minister Jody Wilson-Raybould and former Clerk of the Privy Council Michael Wernick during the SNC-Lavalin affair at the justice committee. And who can forget then-NDP opposition leader Tom Mulcair’s rapid fire cross-examination of Stephen Harper over the Mike Duffy spending controversy, day after day in the Commons?
By confronting the government directly and in person, opposition parties shine a light on instances of questionable or poor judgment, and offer alternative views or scenarios, so that citizens can decide to keep or fire the government in the next election. In this way, the opposition helps ensure good, transparent governance — although often at the cost of appearing negative or confrontational.
Canadians witnessed the opposition performing this important function during the COVID-19 crisis when opposition MPs asked about support for farmers, seniors, students and others who were suffering financially, but weren’t included in the government’s initial assistance packages. The Liberals responded by extending help to more Canadians. The Conservative and NDP opposition also asked tough questions about government measures to process assistance applications and deny fraudulent applications by individuals or scam artists. Here, the prime minister reiterated the government focus on helping Canadians and only promised “retroactive action” on fraudulent claims.
These two duties of Parliament — to support and scrutinize government actions — are captured in two of the most fundamental principles of our system underpinning how government raises and spends money:
1. Government cannot raise money except by parliamentary approval; and
2. Government can only spend money as authorized by Parliament.
To ensure the prime minister and cabinet don’t become too powerful ... Parliament must hold the government to account for its decisions and actions.
These core principles of democratic control of the public purse were at the heart of the Conservative opposition party’s strenuous objection when the Liberals included a clause in the COVID-19 emergency legislation that would have allowed the government to spend, borrow or raise money without parliamentary approval until December 2021. In a dramatic Commons session in late March, the parties compromised, with an extension to Sept. 30, 2020.
In the extraordinary conditions created by the pandemic, the executive is able to act expeditiously, but may be escaping the level of parliamentary scrutiny necessary for democratic controls of fairness and fiscal probity. For example:
The prime minister has been making massive spending announcements directly to the news media in a controlled setting outside Rideau Cottage rather than in the Commons, where he would face immediate opposition criticism and interrogation;
During the critical weeks of the pandemic, Parliament was reduced to two virtual sittings and one scantly attended in-person meeting each week. This format failed to attract the public attention necessary for meaningful accountability. More frequent meetings give opposition parties the opportunity to relentlessly pursue issues day after day, and to raise other important subjects that are being subsumed by COVID -19. As of this past week, by agreement of the Liberal government and the NDP, full parliamentary sittings were pushed back to September, no electronic voting was introduced, and the sittings of the special committee on COVID-19 were expanded in a hybrid form, allowing MPs to attend in person and virtually over the summer.
Parliament has been operating with reduced powers under the new arrangements. The virtual sittings of the special committee served as a temporary oversight and accountability mechanism of the government, but the committee could only consider ministerial announcements, allow members to present petitions, and question ministers regarding the pandemic (this week’s arrangements widen the ability to ask questions on disparate topics). It lacks the full authority of Parliament to compel the government to make documents or witnesses available. Although the government has been producing witnesses, the leader of the Opposition has charged that if the government “is allowed to hide information” or “pick and choose which questions they want to answer and when,” then Parliament’s effectiveness in scrutinizing government decisions on COVID -19 spending and other matters is significantly reduced.
Parliament hastily approved Bills C-13, C-14 and C-15, giving legislative authority for unprecedented levels of government spending for COVID-19 as was necessary to meet public need, but the government refused opposition calls to place the extraordinary grants of power to cabinet in separate bills, which would have allowed time for proper debate, or to include more robust measures for parliamentary oversight of these powers;
Finally, the delay of the 2020 federal budget and fiscal update and the government’s ability to spend without parliamentary approval until Sept. 30 — though ultimately allowed by the opposition — strike at the heart of accountability.
The short-term danger is that the government’s responses to COVID-19 may have costly flaws that could have been prevented with adequate opposition scrutiny. The long-term peril is that the balance between the executive’s ability to act decisively and Parliament’s ability to ensure that government action is scrutinized, justified and transparent no longer holds.
Restoring the balance in normal times — whatever constitutes normal after the crisis — will be difficult, perhaps impossible. The price, financial and democratic, will be paid by future generations. Kathy Brock is a professor in the School of Policy Studies, Queen’s University, and chair of the National Accreditation Board for Programs in Public Administration. She has published books, academic articles and reports on comparative politics and government, federalism and constitutional matters. Brock is co-author of Canadian Politics Today: Democracy, Diversity and Good Government (Pearson, 2020).
The delay of the 2020 federal budget and fiscal update
... strike at the heart of accountability.